PETITIONER:
PREM CHAND
Vs.
RESPONDENT:
DISTRICT JUDGE, DEHRADUN & ANR.
DATE OF JUDGMENT23/11/1976
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]
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
:--
"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,
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