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2008 DIGILAW 1062 (ALL)

AWADHESH KUMAR SINGH v. RAKESH MOHAN SRIVASTAVA

2008-05-15

DILIP GUPTA

body2008
DILIP GUPTA, J. ( 1 ) -THIS petition has been filed by the tenant to assail the order passed by the Prescribed Authority by which the application filed by the landlord under section 21 (1) (a) of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "act") for eviction of the tenant from the residential premises as the landlord bona fide required the same was allowed. The petitioner has also sought the quashing of the order by which the appeal filed under section 22 of the Act was dismissed. ( 2 ) THE records of the writ petition indicate that the Prescribed Authority while allowing the application under section 21 (1) (a) of the Act, recorded a categorical finding of fact that the landlord bona fide required the premises in dispute and he was likely to suffer greater hardship in the event, the application was rejected. It also found that the wife of the tenant had built a residential house in the same city. ( 3 ) THE tenant filed an appeal under section 22 of the Act. During the pendency of the appeal, the tenant filed an application for production of additional evidence since the house of the wife of the tenant available in the same city had been ordered to be demolished by the Municipal Authorities as it was not built according to the sanctioned plan. The additional evidence was accepted by the Appellate Court by the order dated 14. 11. 2006. ( 4 ) THE Appellate Court examined the evidence on record and confirmed the finding of the Prescribed Authority regarding bona fide need and, accordingly, dismissed the appeal. ( 5 ) I have heard Sri Sanjiv Singh, learned Counsel for the petitioner and Sri Pravin Kumar Srivastava, learned Counsel for the respondent-landlord and have perused the material available on the record. ( 6 ) LEARNED Counsel for the petitioner submitted that the Appellate Court has not recorded any finding about comparative hardship. He also submitted that the residential house in the name of his wife situated in the same city was ordered to be demolished by the Municipal Authorities and, therefore, in such a situation, the finding recorded by the Prescribed Authority regarding comparative hardship deserves to be set aside. He also submitted that the residential house in the name of his wife situated in the same city was ordered to be demolished by the Municipal Authorities and, therefore, in such a situation, the finding recorded by the Prescribed Authority regarding comparative hardship deserves to be set aside. ( 7 ) LEARNED Counsel for the respondent submitted that Explanation (i) to the fourth proviso to section 21 (1) of the Act was attracted since the wife of the landlord had acquired a residential house in the same city. He, therefore, submitted that the landlord had only to establish his bona fide need and the comparative hardship was not to be examined. In support of his contention he has placed reliance upon the decision of the Supreme Court in Sudha Agrawal v. Xth Additional District Judge, 1999 (37) AIR 110 (SC ). ( 8 ) IN order to appreciate the contentions advanced by learned Counsel for the parties, it would be necessary to place the relevant provisions of section 21 (1) of the Act and the same are as follows:- "21. Proceedings for release of building under occupation of tenant.- (1) 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 any of the following grounds exists, namely:- (a ). . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . Provided that. . . . . . . . . . . . . . . . . Provided further that. . . . . . . . . . . . . . . . . Provided also that. . . . . . . . . . . . . . . . . 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. . . 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. Explanation.-In the case of a residential building:- (i) where 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 otherwise acquired in a vacant state or has got 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. Note.-For the purpose of this clause a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allottee or licensee. " ( 9 ) IN the present case, it is not in dispute that the tenants wife had acquired a residential building in the same city. Explanation (i) to the fourth proviso to section 21 (1) of the Act was, therefore, clearly attracted, in such circumstances, the landlord was required to establish bona fide need only and his hardship was not to be compared. This is what was observed by the Supreme Court in Sudha Agrawal v. Xth Additional District judge, (supra) and the relevant portion of the judgment is as follows:- "a perusal of section 21 (1) (a) shows that a landlord can succeed in his application for eviction of a tenant if he establishes before the Prescribed authority that his need for the premises is bona fide. Fourth proviso of section 21 (1) provides that the Prescribed Authority, while considering the bona fide requirement of the landlord has also to 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 excepting in cases provided for in explanation (i ). Explanation (i) provides that where the tenant or any member of his family who is normally residing with him or 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, no objection by the tenant against an application under this sub-section shall be entertained. The aforesaid provisions extracted above show that in cases where explanation (i) is applicable no presumption can be raised with regard to the need of the landlord as bona fide. The only effect of application of explanation (i) is that the tenant is not entitled to contest the application filed by the landlord and the Prescribed Authority is not required to compare the hardship of the landlord with that of the tenant which he otherwise required to do under fourth proviso of section 21 (1) of the Act. We have noticed earlier that the landlord can get an order of release in his favour only when he proves his need as bona fide before the Prescribed Authority. It is no doubt true that the application of landlord is uncontested as the tenant is out of field, still the landlord has to establish his bona fide need. In fact the landlord is required to stand on his own legs and he cannot derive any advantage of absence of defence of the tenant. The proceedings before the Prescribed Authority is like a uncontested suit, where there is no defence of the defendant. In such a suit plaintiff in order to get decree must prove his case to the satisfaction of the Court. Applying the said principle to the present case, we have no doubt in out mind that by application of explanation (i) the landlord is not discharged from the burden of proving his need as bona fide. Further we also do not find any provision in the Act creating any presumption in favour of the landlord as regard his need as bona fide. Further we also do not find any provision in the Act creating any presumption in favour of the landlord as regard his need as bona fide. " (Emphasis supplied) ( 10 ) IT is, therefore, clear that if Explanation (i) to the fourth proviso to section 21 (1) of the Act is attracted, then the landlord is not discharged from the burden of proving his bona fide need which he has to establish and the only effect of the aforesaid Explanation is that the tenant is not entitled to contest the application filed by the landlord and the hardship of the landlord with that of the tenant is not required to be compared. ( 11 ) SUCH being the position, the learned Counsel for the petitioner is not justified in contending that the Appellate Authority should have recorded a finding about comparative hardship and even a perusal of the judgment of the Appellate Court indicates that what was sought to be urged before it was that even if the appellants wife had acquired another house in the same city, then too it was imperative for the landlord to prove that he bona fide required the premises in dispute. This statement was obviously made in the context of Explanation (i) contained to the fourth proviso to section 21 (1) of the Act. ( 12 ) IT is the contention of the learned Counsel for the petitioner that there is an order of demolition of the residential house in the name of his wife situated in the same city. The house was constructed prior to 1998 and learned Counsel for the petitioner has stated that till date the house has not been demolished and that the tenant has also moved an application for setting aside the ex-parte order. The reason for demolition as mentioned by learned Counsel for the petitioner is the house had not built in accordance with the sanctioned plan. It is, therefore, clear that only that portion, which is not in accordance with the sanctioned plan can be demolished, if at all the demolition is to take place. ( 13 ) IT has now to be determined whether the Prescribed Authority and the Appellate Authority were justified in holding that the landlord bona fide required the premises occupied by the tenant. ( 13 ) IT has now to be determined whether the Prescribed Authority and the Appellate Authority were justified in holding that the landlord bona fide required the premises occupied by the tenant. The Appellate Authority has observed that the landlord was living on the first floor and had four small rooms and one drawing room while the tenant was residing on the ground floor and had two rooms in his possession. The Appellate Court has found that the landlord was registered with the Bar Council of the State as a lawyer in the year 1994 and was practicing in the Civil Court. He had two sons, who had done B. Sc. and Intermediate. His mother was also living with him. In such circumstances, one room was to be occupied by the applicant, two rooms by the two sons and one room was to be occupied by his mother. The drawing room on the first floor had been converted into the lawyers chamber. The Appellate Court found that the two rooms on the ground floor, which were in the occupation of the tenant, were bona fide required by the landlord for the purposes of a drawing-room and a store-room. This finding was recorded after taking into consideration the status of the landlord and the requirement. ( 14 ) THE Supreme Court in Munni Lal and others v. Prescribed Authority and others, AIR 1978 SC 29 =1981 ARC 470, had observed that while examining the finding of bona fide need, it is not for the High Court, in the exercise of its jurisdiction under Article 226 of the Constitution, to reappraise the evidence and come to its own conclusion which may be different from that reached by the District Judge or the Prescribed Authority. ( 15 ) IN the present case, the Prescribed Authority as well as the Appellate Authority have considered the material on record and have concluded that the landlord bona fide required the premises. This finding is based on appraisal of evidence and does not call for any interference under Article 226 of the Constitution of India. The writ petition is, therefore, liable to be dismissed. ( 16 ) IN the end learned Counsel appearing for the petitioner submitted that four months may be given to the petitioner to hand over peaceful possession of the premises to the landlord. The writ petition is, therefore, liable to be dismissed. ( 16 ) IN the end learned Counsel appearing for the petitioner submitted that four months may be given to the petitioner to hand over peaceful possession of the premises to the landlord. ( 17 ) LEARNED Counsel appearing for the landlord submitted that the Court may grant the aforesaid time provided the petitioner gives the usual undertaking within three weeks from today before the Court below. ( 18 ) THE Writ petition is, accordingly, dismissed. The petitioner shall not be ejected from the premises in dispute for a period of four months from today provided the petitioner gives the following undertaking before the Court below within three weeks from today:- 1. That the petitioner shall pay damages at the rate of Rs. 300/- per month upto the date he hands over the possession of the premises to the landlord. 2. That the petitioner shall not induct any other person in the premises. 3. That the petitioner shall hand over peaceful possession of the premises to the landlord on or before the expiry of four months. ( 19 ) IT is made clear that in the event the petitioner fails to give the undertaking within the aforesaid period or fails to comply with any of the terms of the undertaking, then in that case, it will be open to the landlord to get the order executed. Petition Dismissed. .