PETITIONER:
OM PRAKASH
Vs.
RESPONDENT:
BHAGWAN DAS
DATE OF JUDGMENT10/03/1986
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
RAY, B.C. (J)
SINGH, K.N. (J)
CITATION:
1986 AIR 1643 1986 SCR (1) 598
1986 SCC (2) 428 1986 SCALE (1)1278
ACT:
U.P. Urban Buildings (Regulation of Rent and Eviction)
Act 1972 & U.P. Urban Buildings (Regulation of Letting, Rent
& Eviction) Rules, 1972, s. 21(1) (a) 4th Proviso/Rule
16(1)(f) - Landlord seeking ejectment of tenant on bona fide
need -Landlord offering reasonable, suitable accommodation
to tenant- Landlord's claim to eviction to be considered
liberally.
HELD:
The Prescribed Authority, Varanasi and the Second
Additional District Judge, in revision, after considering
the comparative hardship likely to be caused to the tenant
and the landlord, allowed the application of the appellant -
landlord under s. 21(1)(a) of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972 on the
ground that the need of the appellant-landlord was bona fide
and he was entitled to the release of the demised premises.
The Authorities also held that since the appellant was
living in the rented premises, there was no reason why he
should be deprived of the beneficial enjoyment of his own
property. However, in the appeal, the High Court set aside
the orders passed by the aforesaid two Authorities.
Allowing the appeal,
^
HELD : 1. There was no infirmity in the order of the
Prescribed Authority or that of the learned II Additional
District Judge. The High Court was clearly in error in
interfering with the order passed by the Prescribed
Authority, Varanasi and that of the II Additional District
Judge, Varanasi. The judgment and order of the High Court
are, therefore, set aside. The order of the Prescribed
Authority, Varanasi and that of the II Additional Judge,
Varanasi directing the release of the accommodation under
s.21 (1)(a) of the Act are restored. [601 D; 601 H]
599
2. One of the factors prescribed by r. 16 (1)(f) is
that if the landlord applies for ejectment of the tenant on
the ground that the accommodation is bona fide required by
him for his use and the members of his family and if the
landlord offers reasonably suitable accommodation to the
tenant for the needs of his family, the landlord's claim for
eviction shall be considered liberally. [601 B]
In the instant case, the refusal of the application of
the landlord under s.21 (1)(a) of the Act would undoubtedly
cause greater hardship to him as that would deprive of his
beneficial enjoyment of his own property. In such a case, it
could not be said that the landlord had not fulfilled the
requirement of the 4th proviso to s.21(1)(a) of the Act.[601
D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 959 of
1986.
From the Judgment and Order dated 1.5.1985 of the
Allahabad High Court in C.M.W.P. No. 11377 of 1980.
R.B. Mehrotra for the Appellant.
Sunil Ambwani and Mukul Mudgal for the Respondent.
The Judgment of the Court was delivered by
SEN, J. After hearing learned counsel for the parties,
we are satisfied that the High Court, in the facts and
circumstances of the case, was clearrly in error in
interfering with the order passed by the Prescribed
Authority, Varanasi and that of the II Additional District
Judge, Varanasi by which they allowed the application made
by the appellant under s. 21(1) (a) of the U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Act,
1972. Although the Authorities on a consideration of the
evidence came to the conclusion that the need of the
landlord was bona fide and he was entitled to the release of
the demised premises under s. 21(1) (a) of the Act.
Admittedly, the appellant and the respondent are displaced
persons and the authorities held that since the appellant
was living in rented premises there was no reason why he
should be deprived of the beneficial enjoyment of his own
property.
600
In Bhaichand Ratanshi v. Laxmishanker Tribhovan, [1981]
3 S.C.C. 502 this Court interpreting the analogous
provisions in s. 13 (1) (g) of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 observed :
“The Legislature by enacting Section 13 (2) of the
Act seeks to strike a just balance between the
landlord and the tenant so that the order of
eviction under Section 13 (1) (g) of the Act does
not cause any hardship to either side. The
considerations that weigh in striking a just
balance between the landlord and the tenant were
indicated in a series of decisions of the Court of
Appeal, interpreting an analogous provision of the
Rent and Mortgage Interest Restrictions
(Amendment) Act, 1933 (c.32), Section 3 (1),
Schedule I, para (h) : Sims v. Wilson, [1946] 2
All E.R. 261; Fowle v.Bell, [1946] 2 All E.R. 668;
Smith v. Penny, [1946] 2 All E.R. 672; Chandler v.
Strevett, [1947] 1 All E.R. 164; and Kelley v.
Goodwin, [1947] 1 All E.R.810. One of the most
important factors in considering the question of
greater hardship is whether other reasonable
accommodation is available to the landlord or the
tenant. The court would have to put in the scale
other circumstances which would tilt the balance
of hardship on either side, including financial
means available to them for securing alternative
accommodation either by purchase or by hiring one,
the nature and extent of the business or other
requirement of residential accommodation, as the
case may be. It must, however, be observed that
the existence of alternative accommodation on both
sides is an important but not a decisive factor.
On the issue of greater hardship the English
Courts have uniformly laid down that the burden of
proof is on the tenant. We are inclined to the
view that on the terms of Section 13 (2) of the
Act, the decision cannot turn on mere burden of
proof, but both the parties must lead evidence.
The question whether or not there would be greater
hardship caused to the tenant by passing the
decree must necessarily depend on facts and
circumstances of each case.”
601
A plain reading of s. 21 (1)(a) of the Act read with
the 4th proviso thereto and r. 16 (1)(f) shows that the
scheme under the Act is the same. One of the factors
prescribed by r. 16 (1)(f) is that if the landlord applies
for ejectment of the tenant on the ground that the
accommodation is bona fide required by him for his use and
the members of his family and if the landlord offers
reasonably suitable accommodation to the tenant for the
needs of his family, the landlord’s claim for eviction shall
be considered liberally. In the present case, the Prescribed
Authority and the II Additional District Judge both, after
considering the comparative hardship likely to be caused to
the tenant and the landlord, recorded a finding that on the
refusal of the application, the landlord would be put to
greater hardship.
There was no infirmity in the order of the Prescribed
Authority or that of the learned II Additional District
Judge. The refusal of the application of the landlord under
s. 21 (1) (a) of the Act would undoubtedly cause greater
hardship to him as that would deprive of his beneficial
enjoyment of his own property. In such a case, it could not
be said that the landlord had not fulfilled the requirement
of the 4th proviso to s. 21(1) (a) of the Act. The High
Court obviously committed an error in interfering with the
findings of the Prescribed Authority and the learned II
Additional District Judge on the ground that the landlord
had failed to fulfil the requirements of the 4th proviso to
s. 21 (1) (a) of the Act.
We wish to record that Shri R.B.Mehrotra learned
counsel for the appellant made an offer that the rented
premises in occupation of the appellant may be given to the
respondent who is his tenant in exchange. We think that this
was a very reasonable offer and should be accepted. Shri
Sunil Ambwani, learned counsel appearing for the respondent
stated that the respondent was not agreeable to his
proposal. We, therefore, heard the parties on merits.
In the view that we take, the appeal must succeed and
is allowed. We set aside the judgment and order of the High
Court and restore that of the Prescribed Authority, Varanasi
and that of the II Additional District Judge, Varanasi
directing the release of the accommodation under s. 21 (1)
(a) of the Act. We direct that the Prescribed Authority,
Varanasi shall
602
on an application being made by the parties, allot the
rented premises occupied by the appellant in favour of the
respondent with the consent of the landlord. If no such
consent is forthcoming, the Prescribed Authority shall allot
a reasonably suitable alternative accommodation to the
respondent for his occupation on such terms as he may deem
fit.
We further direct that the order of eviction shall not
be executed for six months in the event the respondent
furnishes usual undertaking within four weeks from today.
Both the parties shall, in the meantime, move to the
Prescribed Authority, Varanasi, for permission to exchange
their respective premises on the terms set out above.
No costs.
M.L.A. Appeal allowed.
603