SUDHA AGRAWALversusXTH ADDL. DISTRICT JUDGE AND ORS.

A                                SUDHA AGRA WAL
                                           v.
                    XTH ADDL. DISTRICT JUDGE AND ORS.

                                  AUGUST 4, 1999

B        .[V .N. KHARE AND SYED SHAH MOHAMMED QUAD RI, JJ .]


             U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act,
      1972-Sections 12,16,21 (1) (a), 21 (1) fourth proviso, explanation (1) to
~c
     fourth proviso of S. 21 (1 )-Eviction petition filed by landlord on the ground
      of bonafide need-Landlord contending that his need has to be presumed
     bonafide in view of explanation (i) to fourth proviso of S.21 (1)-Applicability
      of the said explanation presumed in favour of the landlord-Effect of-Held,
     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
D    Authority is not required to compare the hardship of the landlord with that
     of the tenant but there is no presumption in favour of the landlord that his
     need is bonafide by virtue of application of the said explanation and the
     landlord has to allege and prove that his requirement is bonafide in order
     to evict. the tenant from the premises.

E
           Presumption of bonafide need under explanation (i) to fourth proviso
     of S.21 (1) shall be contrary to the requirement of S. I 6-Jnterpretation of -
     Held, tha.t a provision of a statute is required tv be inte1preted in such a
     manner which may avoid possible conflict in various provisions of a statute-
     Interpretation of Statutes.
F
            Appellant-landlord filed an application before the Prescribed Authority
     for eviction of the respondent-tenant on the ground of bonafide need. The
     ground floor of the premises was being used by the tenant for non-residential
     purposes, whereas the first floor was being used for residential purpose. The
G    said application was rejected by the Prescribed Authority on the ground that
     the benefit of 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 was not available to the landlord since the premises was let out to the
     tenant partially for non-residential purpose and partially for residential
     purposes; and that the need set up by the landlord was not bonafide. Landlord's
H                                          62
              S. AGRAWAL v. XTH ADDL. DISTRICT JUDGE                          63

appeal against the said order was dismissed by the appellate authority. Writ         A
Petition filed by the landlord was also dismissed by the High Court. Hence,
these appeals.

      The appellant contended that in view of explanation (i) to fourth proviso
of sub-section (l) of.Section 21 of the Act, the tenant besides being debarred       B
from contesting the application filed by the landlord, the need set up by the
landlord in the application has also to be presumed bonajide.

         The respondent contended that explanation (i) to fourth proviso of sub-
section (l) of Section 21 of the Act is not attracted; and alternatively, even
if it is held applicable, the landlord independently has to prove that his need      C
is bonajide and the alleged need set out in the application can~ot be presumed
to be bonafide.

     This Court presumed that benefit of explanation (i) to fourth proviso
of sub-section (I) of Section 21 of the Act is available to the appellant
landlord without deciding the said question.                                         D

      Dismissing the appeals, the Court

        HELD: 1. A perusal of Section 2l(l)(a), fourth proviso of Section 21(1)
and explanation (i) to the said proviso shows that in cases where explanation        E
(i) is applicable no presumption can be raised with regard to the need of the
landlord as bonafide. 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 is otherwise required to do under
fourth proviso of Section 21(1) of the Act. The landlord can get an order of         F
release in his favour only when he proves his need as bonajide 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 bonafide need. In fact the landlord is relluired to stand on his own legs
and he cannot derive any advantage of absence of defence of the tenant The           G
 proceedings before the Prescribed Authority is like an-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 above principle, there is no doubt that by application of explanation (i) the
 landlord is not discharged from the burden of proving his need as bonafide.
 There is no provision in the Act creating any presumption in favour of the          H
      64                       SUPREME COURT REPORTS (1999] SUPP. l S.C.R.

 A landlord as regards his need as bonajide. Thus, there is no presumption in
      favour of the landlord that his need is bonafide by virtue of applic~tion 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 bonafide in
      order to evict the tenant from the premises. (66-E-H; 67-A)

B           2. Sections 12 and 16 of the Act support the above view. In cases where
      the premises has fallen vacant or deemed to have fallen vacant under Section
      12, the landlord necessarily has to apply under Section 16 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
C     Authority in respect of his bonafide requirement for the premises. If
      explanation (i) to fourth proviso of Section 21(l)(a) is to be read as creating
      presumption in favour of the landlord in respect of the requirement of
      landlord as bonajide, 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
,D    which may avoid possible conflict in various provisions of a statute.
                                                                        [67-D-E-F-G]

            3. Concurrent finding of fact has been recorded by the courts below· /
      that the need of the landlord was not bonafide. Such a finding cannot be
E     interfered with in appeal. (68-A-B)

              CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5737-5738 of
      1997.

            From the Judgment and Order dated 22.7.96 of the Allahabad High Court
      in W.P. No. 21380of1996.
F
              S. Kulshreshtha for the Appellant.

              R.B. Mehrotra and Rajesh for the Respondents.

              The Judgment of the Court was delivered by
G
  1          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
H     filed an application before the Prescribed Authority, Varanasi, for eviction of
      S. AGRA WAL v. XTH ADDL. DISTRICT JUDGE (V.N. KHARE, J.)                    65
· the respondent-tenant on the ground that he required the premises for his             A
  bonafide 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             B
  referred to as the 'Act'), the tenant besides being debarred from contesting
  the application, his need has to be presumed bonafide. 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      C
  proviso of sub-section (l) 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 bonafide. 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                  D
  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.

       rt is urged by the counsel appearing on behalf of the appellant that in          E
 view of explanation (i) to fourth proviso of sub:section (I) of Section 21 of
 the Act, not only that 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 bonafide. Learned counsel appearing for the
 tenant, however, argued that in the present case, explanation (i) to fourth
 proviso of sub-section (I) of Section 21 of the Act is not attracted and in any        F
 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 bonafide and the
 alleged need set out in the application cannot be presumed to be bonafide.

         After we heard the learned counsel for the parties, we assume for the          G
   sake of the argument that explanation (i) to fourth proviso of sub-section ( l)
 . 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:-                                                                              H
    66                       SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A           "Sectio11 2 I (/)(a) - that the building is bonafide required either in its .
            existing form or after demolition and new construction by the landlord
            for occupation by himselfor 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 charitabl«? trust, for the objects of the trust;
B
            Fourth proviso to sub-section (/) of Section 21 -Provided also that
            the prescribe~ authority shall, except in cases provided for in the
            Explafiation, 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
c           have regard to such factors as may be prescribed: ·
                                ,
            Explanation (i) fo fourth proviso of sub- section (/) of Section 21             ..
             - Jn case of a residential building :- where the tenant or any member
            qf his family (who has been normally residing with or is wholly
            'dependent on him) has buiit or has otherwise acquired in a vacant
D
             state or has got vacated after acquisition a residential building iri the
             same city, municipality, notified area or town area, no objection by the •
             tenant against an application. under this sub-section shpil be
            entertained."

           A perusal of Section 2l(l)(a) shows that a landlord can succeed in his
E
    application for eviction of a tenant if he establishes before the Prescribed ..
     Authority that his n~ed for the premises is bonafide. Fourth proviso of
     Section 21(1) provides that the Prescribed Authority, while considering the
    bonafide requirement of the landlord has also to take into account the likely
    hardship to the tenant from the grant of the application as againsr the likely
F   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
G   by the tenant against an application under this sub-section shall be entertained.
    The aforesaid provisions extracted. above show that in cases where explanation
    (i) is applicable no presuniptio~ .can be raised with regard to the need of the
    landlord as bonafide. Tne only effect of application of explanation (i) is that
    the tenant is not entitled to contest the application filed by the landlord and ' ·

H
    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
                                                                                            -
      S. AGRAWAL v. XTH ADDL. DISTRICT JUDGE [V.N. KHARE, J.)                67

 fourth proviso of Section 21(1) of the Act. We ha·.'e noticed earlier that the    A
 landlord can get an order of release in his favour only when he proves his
 need as bonafide 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 bonafide need. Jn! 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    B
 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 bonafide. Further we also do not find      C
 any provision in the Act creating any presumption in favour of the landlord
 as regard his need as bonafide.

         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 D
  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 E
  a landlord can apply to the District Magistrate for release of the premises .
  which has fallen or deemed to have fallen vacant ifthe premises is bonafide
  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 F
  respect of his bonafide 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 bonafide,
  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 G
  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 bonafide by virtue of
  application of explanation (i) to fourth proviso of sub-section (1) of Section   H
    68                      SUPREME COURT REPORTS [1999] SUPP. 1 S.C.R.

A 2 l of the Act and the landlord has to allege and prove his requirement as
    bonajide in order to evict the tenant from the premises. In the present case,
                                                                                      -
    ~oncurrent finding of fact has been recorded by the. courts below that the
    need of the land~ord was not bonafide. Such a finding cannot be interfered
    with in this appeal. We, therefore, find no merit in these appeals. The appeals
B   are accordingly dismissed. There shall be no order as to costs.

    A.KT.                                                     Appeals dismissed.