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PETITIONER: PREM CHAND

       Vs.

RESPONDENT: DISTRICT JUDGE, DEHRADUN & ANR.

DATE OF JUDGMENT23/11/1976

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. CHANDRACHUD, Y.V. FAZALALI, SYED MURTAZA

CITATION:  1977 AIR  364            1977 SCR  (2) 170  1977 SCC  (1) 254

ACT:             U.P.   Urban Buildings  (Regulation  of  Letting,   Rent         and Eviction)  Act 1972, s. 21(1) Explanation (iv), presump-         tion  of bonafide requirement when applicable--Whether  shop         run  in residential building converts it  into  non-residen-         tial.

HEADNOTE:             The  appellant was a tenant occupying two rooms  in  the         residential house of respondent No. 2.  He used one room for         living  purposes  and the other as a  tailoring  shop.   The         landlady  brought a suit for his eviction on the  ground  of         personal  requirement.  but the same was  dismissed  by  the         District Magistrate. An appeal to the District Judge  Dehra-         dun  was  allowed, and Explanation (iv) to s. 21(1)  of  the         U.P. Urban Buildings (Regulation of Letting, Rent and  Evic-         tion) Act, 1972 was held applicable.  The view was upheld by         the  High Court in petition filed by the appellant who  con-         tended  that  due to his shop the house  under  tenancy  had         ceased to be a residential building  and  that   Explanation         (iv) was not applicable.  The High Court rejected the  peti-         tion.         Dismissing the appeal, the Court             HELD:  Explanation (iv) provides a conclusive and  irre-         buttable  presumption  of  bona fide  requirement  once  the         conditions mentioned therein are established.  The tests for         application of Explanation (iv) are as follows:            (1) The building should be a residential building; and            (2)  The landlord must be in occupation of a part of  the         building  for residential purposes, the other part being  in         the occupation of the tenant.             If the above two tests are fulfilled in a case, there is         no need for the landlord to establish any other requirement.         [172F-H]             (2) The fact that a tailoring shop is run in one of  the         rooms  is  not sufficient to convert what otherwise  to  all         intents and purposes is a residential building, into a  non-         residential building. [172E-F]

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JUDGMENT:         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1043 of 1976.             Appeal  by  Special Leave from the  Judgment  and  Order         dated 9-3-1976 of the Allahabad High Court in  Civil  Misc.,         Petn.  No. 6938/74.         K.P. Kapur and A.L. Trehan, for the appellant.         S.C. Agrawal and M.M.D. Srivastava, for respondent No. 2.         The Judgment of the Court was delivered by             GOSWAMI,  J.--This  appeal by special leave  is  by  the         tenant (to be described hereinafter as the appellant) and is         directed against the judgment of the High Court of Allahabad         in a writ petition at his         171         instance which was dismissed.  The District Judge, Dehradun,         who had earlier dismissed his appeal, has been impleaded  as         respondent No. 1.         The facts may briefly be stated:             The  appellant  is admittedly the tenant under  the  2nd         respondent (to be described herinafter as the respondent) in         respect of two rooms of House No. 11, Rajput Road, Dehradun.         This  house has  four rooms of which only two rooms  are  in         occupation  of  the appellant. The other two  rooms  are  in         occupation of the respondent whose two sons stay there;  the         eider  one living with his wife.  The respondent is  an  old         lady with an ailing husband and wants to have vacant posses-         sion  of the two rooms so that the entire family can  reside         at the same place.  With that end in view, on June 22, 1972,         the  respondent filed an application under section 3 of  the         United  Provinces (Temporary) Control of Rent  and  Eviction         Act, 1947 (U.P. Act No. III of 1947) for permission to bring         a suit against the appellant for his eviction on the  ground         of  bona fide personal requirement.  During the pendency  of         this application before the Rent Control and Eviction  Offi-         cer,  the U.P. Urban Buildings (Regulation of Letting,  Rent         and Eviction) Act 1972 (U.P. Act No. 13 of 1972)  (hereinaf-         ter  to  be  referred to as the Act) came  into  force  with         effect from July 15, 1972, repealing the earlier Act of 1947         with certain savings as mentioned in section 43 of the  Act.         As  a consequence of enforcement of the Act the  proceedings         under  section  3 that were pending under  the  earlier  Act         converted into one under section 21 of the new Act (U.P. Act         No.  13 of 1972). The prescribed authority  (The  Additional         District Magistrate) rejected the application.  The respond-         ent then preferred an appeal to  the District Judge,  Dehra-         dun,  who  allowed the same on the ground of bona  fide  re-         quirement  relying on the sole ground that Explanation  (iv)         to  section 21(1) of the Act was applicable to the facts  of         the case. The appellant being aggrieved by the order of ’the         District  Judge preferred a writ application before the High         Court which, as stated earlier, was disallowed.             Before  we deal with the question of law raised in  this         appeal  we  may  note the findings of fact  reached  by  the         District Judge.  The District Judge found as follows :--                             "It  will  appear  that  the  house   in                       question  is a residential building.   It  has                       been  built  for residential purposes  and  is                       being primarily used therefor.  Simply because                       the tenant is also carrying on the business of                       tailoring in one of the rooms will not convert                       it   into   non-residential   building.    The                       landlady is admittedly occupying the remaining                       portion thereof."                       Even  the  prescribed authority at  the  first                       instance had observed as follows in his  order                       :--

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                           "I  have inspected the demised  premises                       situated  at 11, Rajpur Road, Dehradun in  the                       presence of both the parties. On inspection it                       was found that disputed house is one  building                       fin which one portion is in the possession  of                       the respondent-                       tenant.  The one portion of the building is in                       the   occupation   of   the   applicant    for                       residential purposes.  The respondent has  two                       small  rooms and a very small courtyard.   Out                       of  those two rooms each one is about  8  wide                       and  8 long, there is a tailoring shop of  the                       respondent.  The other room is being used  for                       residential  purposes.  The applicant has  two                       rooms  of  the same size  and  one  additional                       courtyard."                           The question that arises for consideration                       is  whether Explanation (iv) of clause (1)  of                       section 21 of the Act has been correctly  held                       to be applicable by the District Judge and the                       High Court to the facts as found.  Explanation                       (iv) of section 21 (1) reads as follows :--                       "In the case of a residential building--                          (iv)  the  fact  that  the  building  under                       tenancy is a part of a building the  remaining                       part  whereof  is  in the  occupation  of  the                       landlord  for  residential purposes,  shah  be                       conclusive to prove that the building is  bona                       fide required by the landlord."             It is submitted by the appellant that the building under         tenancy  is not a residential building and,  therefore,  the         condition  precedent to the application of Explanation  (iv)         is  absent  in this case.  According to  counsel  since  the         tenant is admittedly running a tailoring shop in one of  the         two  rooms  under his occupation the house ceases  to  be  a         residential building.             We are unable to accept this submission.  The  appellant         has only two small rooms in which he resides with his  wife,         two  young sons and one daughter and although he may have  a         tailoring  shop in one of his rooms it is not unlikely  that         that  very room is utilised as bed room for one or two  mem-         bers  of his family at night.  The fact that he runs a  tai-         loring shop in one of the rooms is not sufficient to convert         what otherwise to all intents and purposes is a  residential         building  into  a non-residential building.  The  tests  for         application of Explanation (iv) are as follows :--                          (1)  the building should be  a  residential                       building; and                          (2)  the landlord must be in occupation  of                       a.part   of  the  building   for   residential                       purposes,   the  other  part  being   in   the                       occupation of the tenant.         If  the  above  two tests are fulfilled in a  case  it  will         furnish  under the law a conclusive proof that the  building         is,  bona fide, required by the Landlord.  There is no  need         for the landlord to establish any other requirement.  Expla-         nation (iv) provides a conclusive and irrebuttable  presump-         tion of bona fide requirement once the conditions  mentioned         therein  are established.  The two tests are  fulfil.led  in         this case on the findings of fact as noted above.  We are of         opinion that the District         173         Judge  was  right in his finding that  Explanation  (iv)  of         section  21  (1) was applicable which view  was  also  later         upheld  by  the High Court. The High Court  was,  therefore,

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       right in dismissing the writ application.             We may observe that we are not required to consider,  in         this  appeal,  the effect of the Amendment Act 28  of  1976,         which  came into force on July 5, 1976, whereby  Explanation         (iv) was omitted; nor has any argument been advanced in that         connection.             There  is no merit in this appeal which   is  dismissed.         We  will, however, make no order as to costs.  The appellant         may  continue in possession of the suit premises  till  30th         April, 1977.  He shall hand over vacant and peaceful posses-         sion thereof on May 1, 1977, to the respondent.         M.R.                                           Appeal   dis-         missed.         174