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CASE NO.: Appeal (civil)  1386 of 2008

PETITIONER: Shiv Singh Chak

RESPONDENT: Baby Jain

DATE OF JUDGMENT: 07/02/2008

BENCH: K. G. Balakrishnan & R. V. Raveendran & J. M. Panchal

JUDGMENT: JUDGMENT

O R D E R  

CIVIL APPEAL NO 1386 OF 2008  (Arising out of SLP(Civil) No. 1100 of  2007)

K.G.BALAKRISHNAN, CJI

       Leave granted. Heard learned counsel.  2.      The respondent is the landlord and appellant is the tenant in regard to  the petition schedule shop (’shop’ for short) situated at Tundla, District  Firozabad. The respondent filed an eviction petition before the Prescribed  Authority, alleging that she had let out the shop when she and her family  was living at Etah, that her family had subsequently shifted to Tundla and  that she required the shop for her husband to carry on his business in motor  parts. She further alleged that the appellant owned and possessed several  shops near to the schedule shop, but had not vacated the shop belonging to  her, and that he will not be put to any hardship if he is evicted as he could  conveniently shift and occupy his own shop.  

3.      The appellant herein resisted the said petition. After considering the  evidence, the Prescribed Authority, by judgment dated 14.3.2002, allowed  the eviction petition under section 21(1)(a) of the Uttar Pradesh Urban  Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (’Act’ for  short). The appeal filed by the appellant was dismissed by the Appellate  authority by judgment dated 13.1.2006. The writ petition filed by the  appellant before the High Court of Allahabad, challenging the order of the  Appellate Authority was also dismissed by the order under appeal dated  28.10.2006.  

4.      We find that the concurrent findings of the Prescribed Authority and  Appellate Authority in favour of the landlord-respondent, on the question of  bona fide need and comparative hardship, have been rightly affirmed by the  High Court and no ground is made out to interfere with the said findings of  fact.  

5.      Learned counsel for the petitioner, however, submitted that the  judgment of the High Court suffers from a serious legal infirmity as it  wrongly placed reliance upon Explanation (i) in section 21(1) of the Act to  hold that it was not necessary for the landlord to prove that her need was  bona fide or comparative greater hardship. According to him, explanation (i)  applies only to residential buildings and not to non-residential buildings and  the High Court could not have relied upon the said provision.  

6.      For convenience, we may extract the relevant portion of section 21 of  the Act as follows :  "21.    Proceedings for release of building under occupation of tenant. \026

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(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)     that the building is bona fide 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;  x x x

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 or is wholly dependant 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;  

x x x x x

Clause (a) of sub-section (1) of section 21 enables the Prescribed Authority  to pass an order of eviction on an application by the landlord if it is satisfied  that the building is bona fide required by the landlord for occupation for  himself or any member of his family. The fourth and last proviso to sub- section (1) provides that except in the cases provided for in the explanation,  the Prescribed Authority shall 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. Explanation (i) to section 21(1)  of the Act provides that where a proceeding for eviction is initiated by the  landlord in regard to a residential building under section 21(1) of the Act and  where the tenant or any member of his family has acquired a vacant  residential building in the same city/town/area, the prescribed Authority  shall not entertain any objection of the tenant against the application for  eviction. In effect this means that where the landlord avers and proves in an  eviction proceedings relating to a residential building under section 21(1) of  the Act, that the tenant has acquired vacant possession of a residential  building in the same city/town/area, it will not be permissible for the tenant  to challenge the bonafides of the landlord or put forth any hardship as a  defence. But the said explanation (i) to section 21(1) does not apply to non- residential buildings. The Explanation to section 21(1) starts with the words  "In the case of a residential building". As the Explanation is inapplicable to  a non-residential building, the bar contained in clause (i) of the Explanation  will not operate where the eviction petition is in regard to a non-residential  building. But the fact that the tenant has acquired a suitable alternative non- residential building may, however, be urged as a good ground to hold that no  hardship will be caused to the tenant if he is evicted from the premises let  out to him.  

6.      The High Court has thus committed an error in observing the  Explanation (i) makes it unnecessary to examine the bonafides of the  landlord and the issue of comparative hardship in this case. We are however,  of the view that this error on the part of the High Court does not necessitate

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interference with the ultimate decision of the High Court nor calls for a  remand as contended by the learned counsel for the appellant. We have  already noticed that the Prescribed Authority and Appellate Authority have  recorded clear concurrent findings of fact that the landlord bona fide requires  the shop and that the appellant will not be put to any hardship in view of   availability of suitable shop. These findings have been considered and  affirmed by the High Court while dismissing the writ petition.  

7.      We, therefore, dismiss this appeal as having no merit, subject to the  clarification about the applicability of Explanation (i) of Section 21(1) of the  Act. However, the appellant is granted time till 31st May, 2008 to vacate the  shop in question subject to his filing the usual undertaking before this Court  within a period of four weeks from today and continuing to pay the agreed  rent till 31st May, 2008.