Om Prakash v. Bhagwan Das
SEN, J. After hearing learned counsel for the parties,
we are satisfied that the High Court, in the facts and
circumstances of the case, was clearly in error in interfering
with the order passed by the Prescribed Authority, Varanasi
and that of the 11 Additional District Judge, Varanasi by
which they allowed the application made by the appellant under
s. 21(1) (a) of the U.P. Urban Buildings (Regulation of Lett
ing, Rent and Eviction) Act, 1972. Although the Authorities on
a consideration of the evidence came to the conclusion that
the need of the landlord was bona fide and he was entitled to
the release of the demised premises under s. 21(1) (a) of the
Act. Admittedly, the appellant and the respondent are displac
ed persons and the authorities held that since the appellant
was living in rented premises there was no reason why he
should be deprived of the beneficial enjoyment of his own
property.
D.
In Bhaicband Ratanshi v. I.:ixmlsbanker Tribhovan, [ 1981]
3 s.c.c. 502 this Court interpreting the analogous provisions
in s. 13 (1) (g) of the Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947 observed :
"The Legislature by enacting Section 13 (2) of the
Act seeks to strike a just balance between the
landlord and the tenant so that the order of evic
tion under Section 13 (1) (g) o·f the Act does not
cause any hardship to either side. The considera
tions that weigh in striking ·a just balance between
the landlord and the tenant were indicated in a
series of decisions of the Court of Appeal, inter
preting an analogous provision of the Rent {Ind
Mortgage Interest Restrictions (Amendment) Act,
1933 (c,32), Section 3 (1), Schedule I, para (h) :
Sim v. Wilson, [1946] 2 All E.R. 261; Fowle v.
Bell, [1946] 2 All E.R. 668; Sad.th v. Penny, [1946]
2 All E.R. 672; Chandler v. St.revett:, [1947] l All
E.R. 164; and Kelley v. Gooclirin, [1947] l All E.R.
810. One of the most. important factors in consider-
ing the question of greater hardship is whether
other reasonable accommodation. is available to the
landlord or the tenant. The court would have to put
in the scale other circumstances which would tilt
the balance of hardship on either side, including
financial means available to them for securing
alternative accommodation either by purchase or by
hiring one, the nature and extent of the business
or other requirement of residential accommodation,
as the case may be, It must, however, be observed
that the existence of alternative accommodation on
both sides is an important but not a decisive
factor. On the issue of greater hardship the
English Courts have uniformly laid down that the
burden of proof is on the tenant. We are inclined
to the view that on the terms of Section 13 (2) of
'
the Act, the decision cannot turn on mere burden of :,_ ,.
proof, but both the parties must lead evidence. The
question whether or not there would be greater
hardship caused to the tenant by passing the decree
must necessarily depend on facts and circumstances
of each case."
OM PRAKASH v. BHAGWAN DAS [SEN, J. ] 601
A plain reading of s. 21 (l)(a) of the Act read with the
4th proviso thereto and r. 16 (l)(f) shows that the scheme
under the Act is the same. One of the factors prescribed by r~
16 (l)(f) is that if the landlord applies for ejectment of the
tenant on the ground that the accommodation is bona fide
required by him for his use and the.members of his family and
if the landlord offers reasonably suitable accommodation to
the tenant for the needs of his family, the landlord's claim
for eviction shall be considered liberally. In the present
case, the Prescribed Authority and the II Additional District
Judge both, after considering the coqiaratl.ve hardship likely
to be caused to the tenant and the landlord, recorded a find
ing that on the refusal of the application, the landlord would
be put to greater hardship.
There was no infirmity in the order of the Prescribed
Authority or that of the learned II Additional District Judge.
The refusal of the application of the landlord under s. 21 (1)
~
.+ (a) of the Act would undoubtedly cause greater hardship to him
as that would deprive of his beneficial enjoyment of his own
property. In such a case, it could not be said that the land
lord had not fulfilled the requirement of the 4th proviso to
s. 21(1) (a) of the Act. The High Court obviously committed an
error in interfering with the findings of the Prescribed
Authority and the learned II Additional District Judge on the
ground that the landlord had failed to fulfil the requirements
of the 4th proviso to s. 21 (1) (a) of the Act.
~ We wish to record that Shri R.B •. Mehrotra learned counsel
for the appellant made an offer that the rented premises in
occupation of the appellant may be given to the respondent who
is his tenant in exchange. We think that this was a very
reasonable offer and should be accepted. Shri Sunil Aml:Mani,
learned counsel appearing for the respondent stated that the
respondent was not agreeable to his proposal. We, therefore,
heard the parties on merits.
-f ln the view that we take, the appeal llllSt succeed and is
allowed. We set aside the judgment and order of the High Court
and restore that of the Prescribed Authority, Varaaasi and
that of the 11 Additional District Judge, Varanasi directing
the release of the accommodation under s. 21 (1) (a) of the
Act. We direct that the. Prescribed Authority, Vacanasi shall
602 SUPREME COURT REPORTS [19861 1 s.c.R.
on an application being made by the parties, allot the rented ,~
premises occupied by the appellant in favour of the respondent
with the consent of the landlord. If no such consent is forth
coming, the Prescribed Authority shall allot a reasonably
suitable alternative accoTlllOOdation to the respondent for his
occupation on such terms as he may deem fit.
We further direct that the order of eviction shall not be
executed for six months in the event the respondent furnishes '
usual undertaking within four weeks from today. Both the
parties shall, in the meantime, move to the Prescribed
Authority, Varanasi, for permission to exchange their
respective premises on the terms set out above.
No costs.
M.L.A. Appeal allCMed.