CHHOTEYLAL LOHIYA Vs. BINDRA PRASAD

JUDGEMENT

(1.) This writ petition is directed against an order of the First Additional District Judge, Allahabad, dated 30th March, 1974, who passed an order under Sec. 22 of the U. P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) allowing the appeal against the order of the Prescribed Authority, as well as the application of the landlord for the release of the accommodation in dispute under Sec. 21 of the Act. The Prescribed Authority after a comparison of the respective needs of the parties had held that the hardship of the tenant would be greater than that of the landlord and, therefore, rejected the application for the release of the accommodation. The appellate authority, on the other hand, held that the provisions of Explanation (1) to sub-section (1) of Sec. 21 of the Act were fully applicable and as such the application of the landlord for the release of the accommodation in dispute was liable to he allowed. He further held that in view of the provisions of Explanation (iv) to Sec. 21, as it stood before its amendment by U. P. Act No. 28 of 1976, the landlord being a resident of a portion of of the building, his need for the disputed accommodation was fully established.

(2.) The writ petition raises a number of contentions and even alleges that the record of the case before the Prescribed Authority was interpolated in order that the provisions of the Explanation (iv) to sub-section (1) of Sec. 21 of the Act could be availed of by the landlord. In my opinion. it is not necessary to go into this matter, for the Explanation (iv) to Sec. 21(1) of the Act is no longer on the statute book and has been deleted by the U.P. Act No. 28 of 1976. In view of the aforesaid amendment, the landlord is not entitled to the benefit of Explanation (iv) to Sec. 21(1) of the Act. The amending Act has made a new provision which is the fourth proviso to sub-section (1) of Sec. 21 of the Act, which reads as follows:-

(3.) It was contended that even otherwise the order of the appellate authority could be sustained on the ground that the provision of Explanation (i) to sub-section (1) of Sec. 21 of the Act was applicable. It was stated that the tenant had taken a house at 298-Kyedganj, Allahabad and living there along with his family. It was urged that since he had an alternative accommodation where he was living, the order of release in favour of the landlord could be passed without taking into consideration the fourth proviso to sub-section (1) of Sec. 21 of the Act. In my opinion, before the Explanation (i) to sub-section (1) of Sec. 21 of the Act is applicable it has to he shown that "the tenant or any member of his family who has been normally residing with him or his wholly dependant on him, has built or otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city. "In such a case no objection of the tenant against an application under sub-section of Sec. 21 will be entertained. The words or has otherwise acquired in a vacant state or has got vacated after acquisition" in the Explanation (1) refer to the acquisition by the tenant or by any member of his family of a building whether private or public. It may be owned by the tenant or by a member of his family, or it may have been taken or rent by the tenant or by a member of his family. Similarly where a tenant has come in possession of a public building as an allottee or a tenant or a licensee even in such state of affairs he would be deemed to have acquired a building. All that, therefore, is necessary to be established is that the tenant or a member of his family has acquired another building in the same city whether as owner or as a tenant or as an allottee or as a licensee. This fact has to be clearly established.