JUDGMENT S.K. Dhaon, J. - This petition, at the instance of a tenant, is directed against an order passed by the Appellate Authority constituted under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) allowing the appeal of the landlord and reversing the order of the Prescribed Authority. By the impugned Order dated 15th March, 1980, the application purported to have been made by the landlord u/s 21(1) of the Act for the release of a residential accommodation has been allowed initially. The tenant was a mortgagee-in-possession of the accommodation in dispute. The landlord redeemed the same. However, the Petitioner was permitted to occupy the accommodation as a tenant. 2. The Prescribed Authority recorded a finding that the need of the landlord was neither bona fide nor genuine. It also recorded a finding that the tenant will suffer greater hardship than the landlord in the event the application of the landlord for the release of the accommodation in dispute is accepted. The Appellate Authority disagreed with the view of the Prescribed Authority on both the counts. 3. It is not in dispute that at the relevant time, apart from the tenant, his widowed daughter and her son had been residing in the accommodation in dispute. In the counter-affidavit filed in this Court by and on behalf of the landlord it has been averred that after the impugned order of the Appellate Authority the said daughter of the tenant built a residential building in the same city wherein the accommodation in dispute is situate. This averment has not been denied in the rejoinder-affidavit filed by and on behalf of the Petitioner-tenant. We have, therefore, to proceed on the assumption that the averments made in the counter-affidavit are correct. 4. It is now well settled that the subsequent event, namely, the building of a house by the widowed daughter of the tenant can be and should be taken into account in proceedings Under Article 226 of the constitution.
We have, therefore, to proceed on the assumption that the averments made in the counter-affidavit are correct. 4. It is now well settled that the subsequent event, namely, the building of a house by the widowed daughter of the tenant can be and should be taken into account in proceedings Under Article 226 of the constitution. The Explanation to Sub-section (1) of Section 21 of the Act, which is relevant for the present petition, provides that in the case of a residential building, while the tenant or any member of his family who has been normally residing with him or is wholly dependent on him has built or has other-vise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection of a tenant against an application under this Sub-section shall be entertained. In view of this provision it is not open to the tenant to raise any objection to the application for the release of an accommodation made by the landlord. 5. Learned Counsel for the tenant contends that the provisions as contained in the Explanation aforementioned really mean that the terms of the Explanation will apply only if a member of the family of a tenant continues to reside with the tenant despite his building a house or acquiring a house etc. in the same city etc. Any other construction, according to him, will lead to a great hardship to the tenant. This submission is not sustainable either on principle or authority. 6. The relevant provisions of the Act are these. Section 12 provides that a landlord or a tenant of a building shall be deemed to have ceased to occupy a building or part thereof if he has allowed it to be occupied by any person who is not a member of his family. "Family'' is defined in Section 3 to mean in relation to a landlord or tenant of a building, his or her spouse, their lineal descendants, such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant as may have been residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building.
Sub-section (3) of Section 12 provides that in the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate he shall of deemed to have ceased to occupy the building under his tenancy. The Explanation to Sub-section (3) provides that the expression "any member of family ', in relation to a tenant, shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant. This Explanation was inserted by the U.P. Act No. 28 of 1976. 7. Sub-section (4) of Section 20 makes a provision for relieving the tenant against his liability for eviction on the grounds mentioned in Clause (a) of Sub-section (2) of Section 20 if the tenant makes the requisite deposits in accordance with the conditions laid down in Sub-section (4). However, in the proviso to Sub-section (4) the concession given in the enacting clause has been taken away in a situation where a tenant or any member of his family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area. 8. Section 21(1) as relevant to the present controversy, provides that the Prescribed Authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that the building is bonafide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the" trustee of a public charitable trust, for the objects of the trust. 9. The fourth proviso to Sub-section (1) of Section 21 was inserted by the U.P. Act No. 28 of 1976 with retrospective operation.
9. The fourth proviso to Sub-section (1) of Section 21 was inserted by the U.P. Act No. 28 of 1976 with retrospective operation. It reads: Provided also that the Prescribed Authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed. 10. Clause (i) of the Explanation to Section 21(1) reads: In the case of a residential building (i) where the tenant or any member of his family who has been normally residing with or is wholly dependent on him has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this Sub-section shall be entertained (underlined by me). The aforequoted Explanation minus the portion underlined was in the statute book from the very inception. In other words, the same was in existence before the insertion of the fourth proviso aforequoted by the U.P. Act No. 28 of 1976. The words underlined by me in the Explanation were inserted by U.P. Act No. 28 of 1976. 11. It will be immediately seen that the words "has been normally residing with him or is wholly dependent on him" were designedly used by the Legislature in U.P. Act No. 28 of 1976. These words are free from any ambiguity and have a clear meaning. It is well-known that primarily the intention of the Legislature has to be gathered by the words used by it. A court of law may add or substract words in exceptional cases where it feels that the Legislature has not been able to effectuate its intention by the words used by it. In other words, it is permissible to a court to legislate in the garb of interpretation only in a situation where the words used by the Legislature do not convey a clear meaning. No such contingency exists with regard to the words used by the Legislature in the instant case. 12. The element of hardship has no place where the words used by the Legislature are free from ambiguity.
No such contingency exists with regard to the words used by the Legislature in the instant case. 12. The element of hardship has no place where the words used by the Legislature are free from ambiguity. We have already seen that the relevant words used by the Legislature are not susceptible of creating any doubt or confusion. On the contrary, by introducing the words underlined by me in the Explanation by U.P. Act No. 28 of 1976 the Legislature has taken a definite step to mitigate the rigour of the provisions as contained originally in the Explanation. But for the words inserted by the U.P. Act No. 28 of 1976 the consequences as contemplated by the provisions as contained in the Explanation would have ensured immediately if any member of the family of a tenant built or acquired in a vacant state etc. a residential building in the same city. We have already seen the definition of the family u/s 3. For example if either the spouse of a tenant or male lineal descendants of a tenant, even though living far away from the tenant and not having a normal residence with the tenant, constructed a house or acquired the same in the vacant state etc. in the same city, the tenant would have become defenseless in an action taken by the landlord u/s 21(1) for the release of an accommodation. Realising the gravity of the hardship to the tenant the Legislature intervened and introduced the provision with a retrospective effect that the tenant will be obliged to give a cake-walk to landlord in proceedings u/s 21(1) only in a situation where any member of the family of the tenant who has been normally residing with him or is wholly dependent on him builds a house or acquires the same in a vacant state etc. 13. The submission of the learned Counsel for the tenant that for attracting the terms of the Explanation a member of the family of the tenant should continue to reside with the tenant is not tenable. It is not the submission of the learned Counsel nor can it be that the word "or" in the portion underlined by me should be read as "and". We have already seen that a similar provision has been made by the Legislature in the Explanation to Sub-section (3) of Section 12.
It is not the submission of the learned Counsel nor can it be that the word "or" in the portion underlined by me should be read as "and". We have already seen that a similar provision has been made by the Legislature in the Explanation to Sub-section (3) of Section 12. We have also seen that the relevant provisions in the Explanation to Sub-section (3) of Section 12 and in the Explanation to Sub-section (1) of Section 21 were inserted by the Amending Act No. 28 of 1976. In the Explanation to Sub-section (3) of Section 12 the Legislature left no room for any controversy when it used the clear words "neither been normally residing with nor is wholly dependent on such tenant". If this cannot be done or should not be done, then it is crystal clear that the provisions of the Explanation envisage two different categories of a member of the family of a tenant. The one is there she who has been normally residing with the tenant and the second is he or she who is wholly dependent on the tenant. 14. The preamble to the Act states that the Legislature has intervened in the interest of the general public, for regulation of letting and rent of, and the eviction of tenants from certain class of buildings situated in urban areas and for matters connected therewith. Therefore, the policy and the object of the Act, no doubt, is the mitigation of the hardship of the tenants and such mitigation can be attained by several measures. Balancing of the interest of the landlord on the one hand and the tenant on the other in a reasonable manner appears to be an ideal approach for administering the provisions of the Act. The paucity of accommodations can only be met by house constructing activity on a large scale and this activity has to keep pace with ever increasing population. Social legislations alone cannot be the panacea. By means of legislation only some regulations can be enforced. Therefore, the legislative mandate that a tenant having his own accommodation in a city etc. should not be permitted to remain in occupation of another accommodation as a tenant in the same city etc.
Social legislations alone cannot be the panacea. By means of legislation only some regulations can be enforced. Therefore, the legislative mandate that a tenant having his own accommodation in a city etc. should not be permitted to remain in occupation of another accommodation as a tenant in the same city etc. can neither be dubbed as arbitrary or harsh or unreasonable and that appears to be the legislative intent in Sub-section (3) of Section 12 and Explanation (i) to Sub-section (1) of Section 21. 15. In Mangi Lai v. Additional District Judge, 1980 AWC 33 Full Bench the provisions of Clause (i) of the Explanation to Sub-section (1) of Section 21 came up for consideration before five Hon'ble Judges of this Court. This Court held that in view of the contents of the Explanation a tenant is precluded from raising any objection to the release application made by a landlord u/s 21(1)(a). His say is limited to the question whether the conditions as laid down for the application of the contents of the Explanation are in existence. 16. Learned Counsel for the Petitioner has rightly contended that despite the fulfilment of the conditions as laid down in Clause (1) to the Explanation the condition precedent to the acceptance of an application made by the landlord u/s 21(1) is the satisfaction of the Prescribed Authority that the building is bonafide required by the landlord for occupation by himself or any member of his family. He, however, contends that the tenant, despite the Explanation, has not been deprived of his right to contest the application on merits so far as the case suit up by the landlord that the building is bonafide required by him is concerned. He points out that the fourth proviso to Section 21(1) and the Explanation should be read together. In other words, in the Explanation the legislative intent is that the objection of the tenant that be would suffer greater hardship than the landlord if an order of release is passed alone is excluded from consideration. This submission runs counter to the decision of the Full Bench of this Court in Mangi Lai's case (supra) that apart. I have already emphasised that the Explanation was in the statute book From the very inception, that is, when the U.P. Act No. 13 of 1972 was enforced with effect from 15th July, 19/2.
This submission runs counter to the decision of the Full Bench of this Court in Mangi Lai's case (supra) that apart. I have already emphasised that the Explanation was in the statute book From the very inception, that is, when the U.P. Act No. 13 of 1972 was enforced with effect from 15th July, 19/2. The fourth proviso was inserted retrospectively by the U.P. Act No. 28 of 1976. Before this was done, Rule 16 of the Rules framed under the Act enjoined that while considering an application u/s 21(1) the authority concerned should compare the comparative hardship of the landlord and the tenant. This Rule was struck down by a Full Bench of this Court on the ground that it ran counter to the express provisions in Section 21(1). Thereafter the fourth proviso was inserted by the Legislature. Thus, the position is clear that Clause (i) to the Explanation had full play even before the insertion of the fourth proviso. Its effect was that upon the fulfilment of the condition laid down in the said clause the objection of the tenant against the application made by the landlord u/s 21(1) could not be entertained. The Legislature kept up this policy by providing expressly that the terms of the fourth proviso will not apply to a situation governed by the Explanation. The net result is that Clause (i) to the Explanation prohibits the consideration of the objection of the tenant to an application for release mace by the landlord u/s 21(1) altogether 17. The Appellate Authority has recorded a clear finding that the need of the landlord for the accommodation in dispute is bonafide and genuine. This finding is based on the appreciation of the material placed on record by the landlord. There is no infirmity in the finding so as to entitle the Petitioner to invoke the jurisdiction of this Court Under Article 226 of the Constitution. 18. In the result, this petition fails and is dismissed. However, there shall be no order as to costs.