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PETITIONER: SUDHA AGRAWAL

       Vs.

RESPONDENT: XTH ADDL. DISTRICT JUDGE

DATE OF JUDGMENT:       04/08/1999

BENCH: V.N.Khare, Syed Shah Mohammed Quadri

JUDGMENT:

V.N. KHARE, J.:

     The  appellant herein is the landlord of the  premises in dispute.  The premises consists of ground floor and first floor.   The respondent-tenant is in occupation of the  said premises.  The ground floor of the premises is being used by the  tenant for non-residential purposes, whereas the  first floor   is   being  used   for  residential  purpose.    The appellant-landlord   filed   an   application   before   the Prescribed   Authority,  Varanasi,  for   eviction  of   the respondent-tenant  on  the  ground   that  he  required  the premises  for his bona fide need.  In the said  application, the   landlord   also   took  a   plea  that  the   son   of respondent-tenant  who was ordinarily residing with him  has constructed  a residential premises in the city of Varanasi, and  as  such  under explanation (i) to  fourth  proviso  of sub-section  (1) of Section 21 of the U.P.  Urban  Buildings (Regulation   of  Letting,  Rent  &  Eviction)   Act,   1972 (hereinafter  referred to as the Act), the tenant  besides being debarred from contesting the application, his need has to  be presumed bona fide.  A written statement was filed by the  respondent  tenant wherein the allegations made in  the application  were denied.  The Prescribed Authority took the view  that  since  the premises was let out  to  the  tenant partially  for  non-residential purposes and  partially  for residential  purposes,  the  benefit of explanation  (i)  to fourth  proviso of sub-section (1) of Section 21 of the  Act is  not available to the landlord.  The prescribed authority also  found that the need set up by the landlord is not bona fide.   Consequently,  the application for eviction  of  the tenant  from  the  premises was rejected by  the  Prescribed Authority.

     Aggrieved,  the landlord-appellant preferred an appeal which was dismissed by the appellate authority affirming the finding  of  the  Prescribed Authority.  The  writ  petition filed  by  the landlord has also been dismissed by the  High Court.

     It  is urged by the counsel appearing on behalf of the appellant  that in view of explanation (i) to fourth proviso of  sub-section (1) of Section 21 of the Act, not only  that

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the  tenant  was  debarred from contesting  the  application filed  by  the  landlord, but also the need set  up  by  the landlord  in  the said application has to be  presumed  bona fide.   Learned  counsel appearing for the tenant,  however, argued  that in the present case, explanation (i) to  fourth proviso  of sub-section (1) of Section 21 of the Act is  not attracted  and  in  any case, even if it is  held  that  the explanation  (i)  is  applicable in the  present  case,  the landlord  independently  has to prove that his need is  bona fide  and the alleged need set out in the application cannot be presumed to be bona fide.

     After we heard the learned counsel for the parties, we assume  for the sake of the argument that explanation (i) to fourth  proviso of sub-section (1) of Section 21 of the  Act is  available to the appellant landlord without deciding the question  whether  explanation  (i)  is  applicable  to  the present  case  or  not.  For appreciating the  arguments  of learned  counsel for the parties, it is necessary to set out the relevant provisions, which are extracted herein below :-

     Section  21(1)(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;

     Fourth  proviso  to  sub-section (1) of Section  21  - 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  (i) to fourth proviso of sub- section (1) of  Section 21 - In case of a residential building :-  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.

     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

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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  our 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.

     This  view  of ours finds support from  the  provision contained  in  Sections  12 and 16 of the Act.   Section  12 provides  the contingency when a building shall be deemed to have  fallen vacant.  Sub-section (3) of Section 12 provides that  in 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, town, notified area or town area in which  the  building under tenancy is situate, he  shall  be deemed  to  have  ceased to occupy the  building  under  his tenancy.   Section 16 provides that a landlord can apply  to the  District  Magistrate for release of the premises  which has  fallen or deemed to have fallen vacant if the  premises is  bona  fide required.  Thus, in cases where the  premises has  fallen  vacant  or deemed to have  fallen  vacant,  the landlord  necessarily  has to apply before  the  appropriate authority  for release of the premises in his favour and  he can  get  an order of release of the premises only  when  he satisfies  the  Prescribed Authority in respect of his  bona fide  requirement  for the premises.  If explanation (i)  to fourth proviso of Section 21(1)(a) is to be read as creating presumption  in  favour  of the landlord in respect  of  the requirement of landlord as bona fide, in that event the said explanation  would come into conflict with Section 16 of the Act.   It  is  well  known rule  of  interpretation  that  a provision of a statute is required to be interpreted in such a  manner  which  may  avoid possible  conflict  in  various provisions of a statute.

     In view of the legal position discussed above, we find that  there is no presumption in favour of the landlord that his   need  is  bona  fide  by  virtue  of  application   of explanation  (i)  to  fourth proviso of sub-section  (1)  of Section  21  of the Act and the landlord has to  allege  and prove  his  requirement as bona fide in order to  evict  the tenant  from the premises.  In the present case,  concurrent finding  of fact has been recorded by the courts below  that the  need of the landlord was not bona fide.  Such a finding

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cannot  be  interfered with in this appeal.  We,  therefore, find no merit in these appeals.  The appeals are accordingly dismissed.  There shall be no order as to costs.