MOHD. SHAFI versus SEVENTH ADDITIONAL DISTRICT & SESSIONS JUDGE, ALLAHABAD & ORS.

MOHD. SHAFI

SEVENTH ADDITIONAL DISTRICT & SESSIONS JUDGE .. ALLAHABAD & ORS.

December 16, 1976

[P. N. BHAGWATI, V. R. KRISHNA IYER AND S. MURTAZA FAZAL ALI, JJ.]

U.P. Urban Buildi11gs (Regulation of Le/ling, Rent and Eviction) Actfin2-Sec. 2! (I) expla11ation (iv )-Interpretation of benevolent legislarion-When two views possible-Whether to be construed strictly against the landlord-Meaning of "building" in explanation (iv)-Whether Unit of accommodation-Constitu:ion-Articles 226-227-Whether High Court can interfere with mixed questions of law a11d facts.

Respondent No. 3 owned double storey house. There were two tenements on the ground floor and two on the first floor. Each of the two tenements in the first floor was in possession of tenant. One of the tenements on the ground floor was in possession of respondent No. 3 while the other tenement on the ground floor was in possession of the appellant as tenant since the last over 35 years. Respondent No. 3 after terminating the tenancy of the appel-lant made an application before the prescribed authority under s. 21 (1) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. 13 of 1972) claiming release of the rented premises in her favour on the ground that she bona fide required them for occupation by herself and the members of her family for residential purposes. The prescribed authority held that the explanation (iv) to s. 21(1) of the Act was attracted in the present case since tb.e ground floor constituted building and part of it was under the tenancy of the appellant and the remaining part was in occupation of res-pondent No. 3. Under s. 21 (1) the prescribed authority has power to evict. tenant if it is satisfied that the building is bona fide required by the landlord ·for occupation by himself or any member of his family. The proviso, however, requires that ·except in the case mentioned in the explanation the prescribed authority shall 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. Explanation (iv) provides that the tact that the building under tenancy is part of building the remaining part whereof is in the occupation of the landlord for residential purposes, shall be conclusive to prove that the building is bona fide required by the landlard. The prescribed authority also went into the question of comparative hardship and held that greater hardship would be caused to respondent No. 3 by refusal of her appli-cation than what would be caused to the appellant by granting it.

In an appeal filed by the appellant, the District Court agreed with the· prescribed authority that explanation (iv) to section 21 (!) was applicable to the facts of the case and that it conclusively proved that the building was bona fide required by respondent No. 3. But on the question of greater hard-ship the District Court disagreed with the conclusion reached by the pres~rihed authority and held that the app~llant was ltkely to .suffer greater hardship by granting the application !ban what respondent No. 3 would. suf)'er by its refu.sal. The District Court accordingly allowed the appeal and drsmrssed the app!tci.-tion of respondent No. 3 for release of the rented premises. In writ petition filed by respondent No. 3 the High Court held that the prescribed authority had recorde~ definite fi!1d~ng of fact that the accommo-dation o0 the ground floor constituted one bmldmg and that the app.ellant was in possession of part of the buildi!1g. and resporiden! No. 3 wa~ m occupa-tion of the remaining part of the bmldmg for resrdentral purposes. The Hrgh Court held that once it wa~ held that explanation (iv) to ~. 21 (I) wa1: attracted

there could be no question· of examining comparative hardship. The High Court, therefore, allowed the writ petition and set aside the order of the Dist-rict Court and allowed the application of respondent No. 3 for release of the rented premises.

Allowing· the appeal by Speciai Leave, ·

HELD: i. If explanation (iv) to s. 21(1) is applicable in the present case, the question of comparative hardship of appellant and respondent No. 3 would not ar\se. [ 467 G]

Z. The High Court erred in holding that the finding that explanation (iv) was applicable is finding of fact and it was not competent for the High Court to interfere with it. Whether explanation (iv) is attracted in. the present case would depend upon the applicability to the facts of the correct interpretation of the explanation and it would, therefore, clearly be mixed question of law and fact and if the High Court found that in reaching its conclusion on this question the District Court proceeded on wrong interpretation of the expla-nation, the High Court can certainly correct the error and set aside the conclu-sion reached by the District Court. [ 469 A-G]

3. 1The language used by the Legislature in. explanation (iv) is extremely clumsy. The legislation should be couched in simple and plain language. Since the explanation raises conclusive presumption in favour of the landlord in legislation which is inbended to protect the ·tenant against unreasonable. eviction, 11 must be construed strictly against the landlord so as to cut as little as possible into the protection afforded to the tenant. If the language of the explanation is susceptible· of two interpretations we should prefer that which enlarges the protection of the tenant rather than that which restricts it. The. word building is used thrice in explanation (iv) and it is clear from the context in which it occurs that it is not intended to be used in its popular sense so M to mean the entire superstructure raised on the ground. The "building" jn the explanation is used to denote unit of which accommodation under tenancy constitutes part and the remaining part is in the. occupation of the landlord for residen-tial purposes. Where superstructure consists of two or more tenements' and each tenement is an independent unit distinct and separate from the other the explanation would be of no application because . each tenement would be unit and not part of unit. It is only where there is unit of accommoda-tion out of which part is under the tenancy and the remaining part is in occupation of the landlord that the explanation would be attracted. To deter-mine the applicability of the explanation, the question to be asked would be whether the accommodation under tenancy and the accommodation in occupa-tion of the landlord together constitute one unit of accommodation. This construction would be more consistent with the policy and intendment of the legislation which is to protect. the possession of the tenant unless the landlord establishes his bona fide requirement of the accommodation under tenancy. . [469 A-F, 470 A-G]

Since

[469 A-F, 470 A-G]

Chunnoo Lal v. Addi. District Judge, Allahabad [1975] 1 A.LR. 362, approved.

The Court remanded the matter back to the District Court to determine the question in the light of the interpretation of the explanation given in 'the judg-01ent.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 722 of 1.976. . (Appeal by Special Lea~e from· the Judgment and Order dated 14-5-1976 of the Allahabad High Court in C. M. W. No. 7441 of 1975).

K. P. Gupta and B. B. Tawak/ey, for the app\\\lant.,

S ... P, ·Gupta,· Pramod Swarup and Ma'noj .Swarup; for" tespori'dent No.3.-.-',. ·.·.. ·• -.,, ·" , .... .,,.,.,. .,.,.,,.

The Judgment of the Court was delivered by

BHAGWATI, J.-There is house bearing No. 10-A situate at Khuldabagh in the city of Allahabad belonging to respondent No. 3. · This house consists of ground floor and first floor. There are two tenements on the ground floor and two tenements on the first floor. Ea~h of the two tenements in the first floor is in the possession of tenant. The tenement on the northern side of the ground floor is in the possession of respondent NO: 3, while the tenement on the' south-ern side is in the possession of the appellant as tenant since the last over 35 years. The appellant pays rent of Rs. 4/- per month in res-pect of the tenement in his occupation. Respondent No .. 3, after determining the tenancy of the appellant, made an application before the Rent Control and Eviction Officer, Allahabad under section 3 of · the U.P. Rent Control & Eviction Act, 1947 for permission to file suit to eject the appellant on the ground that she bona fide required the rented premises in the possession of the appellant for her use and occupation. The Rent Control & Eviction Officer, on consideration of the evidence led before him, came to the conclusion that the need of respondent No. 3 for the rented premises was not bona fide and genuine and on this view, he rejected the application of respondent No. 3 by an order dated 23rd February, 1972. Respondent No. 3 preferred revision application against the decision of the Rent Con-trol and Eviction Officer to the Commissioner and, on the coming into force of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (U.P. Act No. 13 of 1972), this revision appli-cation came to be transferred to the District Court under section 43 (m) of that Act and it was numbered as Civil Appea-i No. 245 of 1972. The District Judge by an order dated 12th January, 1973 agreed with the view taken by the Rent Control and Eviction Officer and dismissed the appeal.

However, within short time thereafter, respondent No. 3, undaunt-ed by her failure, filed an application before the Prescribed Authority on l&th January, 1974 under section 21 ( 1) of U.P. Act No. 13 of 1972 claiming release of the rented premises in her favour on the ground that she bona fide required them for occupation by herself and , the members of her family for residential purposes. The Prescribed ,~ Authority held that Explanation (iv) to section 21(1) of U.P. Act No. 13 of 1972 was attracted in the present case, since the ground floor of house No. 10-A constitute building, part of which was under tenancy of the appellant and the remaining part was in the occupation of respondent No. 3 for residential purposes, and hence it must be held to be conclusively established that the rented premises were bona fide required by respondent No. 3. The Prescribed Authority also went into the question of comparative hardship of the appellant and respondent No. 3 and observed that greater h~rds?ip would be caused to respondent No. 3 by ·refusal of her appl1cat1on than what would be caused to the appellant by granting it On this view the Prescribed Authority aHowed the application of respondent No. '3 and released the rented premises in her favour.

The appellant being agl!rleved by the order passed bv the Prescribed Authority prefered an appeal to the District Court, Allahabad. The

The

District Court agreed with the view taken by the Prescribed Authority that Explanation (iv) to section 21(1) of U.P. Act No. 13 of 1972 was applicable to the facts of the present case and "that fact conclu-sively proved that the building was bona fide required" b>: re.spondcnt No. 3. But on the question of greater hardship, the. D1str1ct Col!rt disagreed with the conclusion reached by the Prescnbed Authonty and held that the appellant was likely to suffer greater hardship by granting the application than what respondent No. 3 would suffer by its refusal. The District Court accordingly allowed the appeal and rejected the application of respondent No. 3 for rnlease of rented premises.

This led to the filing of writ petition by respondent No. 3 in the High Court of Allahabad challenging the legality of the order rejecting her application. Respondent No. 3 contended .that since her bona fide requirement of the rented premises was established by reason of applicability of Explanation (iv) to section 21 (1) of U.P. Act No. 13 of 1972, the question of comparative hardship was immaterial and the District Court was in error in throwing out her application on the ground that greater hardship would be caused to the appellant by granting. her application than what would be caused to her by refusing . it. The High Court while dealing with this contention observed that the Prescribed Authority had recorded finding of fact that "the accom-modation on the ground floor constituted one building" and "the respondent was in possession of part of the building and the land-lady was in occupation of the remaining part of the building for resi-dential purposes" and this finding of fact reached by the Prescribed Authority was- confirmed by the District Court and in view of this tinding which the High Court apparently thought it could not disturb, the High Court proceeded on the basis that Explanation (iv) to sec-tion 21 (1) of U .P. Act No. 13 of 1972 ·was applicable in the present case. But the High Court went on to point out that once it was held that Explanation (iv) to section 21(1) of the U.P. Act No. 13 of 1972 was a'ttracted, there could be no question of examining compa-rative hardship, for in such case greater hardship of the tenant would be an irrelevant consideration. The High Court on this view allowed the writ petition, set aside the order of the District Court and ----,... allowed the application of respondent No. 3 for release of the rented premises but gave two months' time to the appellant to vacate the same. The ap_pellant being dissatisfied with this order passed by the High Court preferred the present appeal with special leave obtained from this Court.

Now, it may be pointed out straightaway that if Ex:planation (iv) to section 21(1) of U.P. Act No. 13 of 1972 is applicable in the present case, the question of comparing the relative hardship of the appellant and respondent No. 3 would not arise and respondent No. 3 would straightaway be entitled to an order of eviction as 8oon as she shows that the conditions specified in the Explanation are satisfied. Section 21 ( 1), as it stood at the material time with the retrospective amendment introduced by the U.P. Urban Buildin!!s (Regulation of Letting, Rent & Eviction) (Amendment) Act, 1976 being U.P. Act

No. 28 of 1976, was _in the followin~ terms-we are setting out here only the relevant portt9n of that section :-· ·

· "21. Proceedini:s for release of building under occupation of tenant.-

(1) The prescribed authority may, on an application of the landlord in that behalf order the eviction of tenant from the building under tenancy or any speci-fied part thereof if it is satisfied that any of the following grounds exists, namely,

(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 per-son for whose benefit it is held by him, either or residential purposes or for purposes of apy pro• fession, trade or calling, or where the landlord is the trustee of public charitable trust, for Lhc objects of the trust :

Provided also that the prescribed authority ~hall, except in cases provided for in tho Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hard-E ship to the landlord from the refusal of the applica-tion and for that purpose shall have tegard to such factors as may be prescribed.

Explanation : In the case of re~idential building-

(iv) tho fact that the building under tenancy is part of building the remaining part whereof is in the occupation of the landlord for residential purposes, shll be conclusive to prove thaf. the building is bona fide required by the land-lord."

The language of the proviso is clear and explicit and it requires the Prescribed Authority to take into account the relative hardship of the landlord and the tenant only in those cases which are not covered by the Explan<!t!Qn. If case falls within the Explanation, the proviso would have no application and it would not be necessary to consider the comparative hardship of the landlord and the tenant in deciding whether or not to make an order of eviction. The principal question which, therefore, arises for determination in this appeal is whether Explanation (iv) is 'attracted on the facts of the present case. The High Court seemed to take th_e view that the fin,ding of the Prescribed Authority that fX.J?J.a,riation (iv) w,as applicable in the . present case

was finding of fact and iinco this finding of fact was affirmed by the District Court in appeal, it was not competent to the High Court to interfere with it in the exercise of its extraordinary jurisdiction under Art. 226 of the Constitution and that was presumably the reason why the High Court accepted the hypothesis that the case was covered by Explaniition (iv). But this view of the High Court is plainly erro-neous because the question whether Explanation (iv) is attracted in . the present case would depend on the applicability to the facts, of the correct interpretation of the Explanation and it would,· therefore, clearly b.e mixed question of law and fact, and if the High Court found that in reaching its conclusion on this question the Distri~t Court proceed-·ed on wrong interpretation of the Explanation, the High Court could certainly correct the error and set aside the conclusion reached by the · District Court. We must, therefore, first consider what is the proper construction of the language employed in Explanation (iv).· It is apparent even on cursory r~ading of Explanation (iv) that the language employed by the Legislature in expressing its intent is extremely clumsy. This is glaring example of how the Legislature can by inapt and ill-considered drafting create uncertainty and promote litigation. It appears that sometimes the legislature forgets that laws :are intended for human beings and they should be so framed that an ordinary man can understand their true import and · meaning. The language in which the legislation is couched must be simple and plain so that even 'a man in the Clapam bus', or if we may indigenise this· ·expression 'a man in the DTC bus' should be able to follow its man-<late and injunction without the possibility of doubt or error. Here, unfortunately the language of Explanation (iv) is such that we have to grope our way in chaos of verbal darkness and try to arrive at the correct legislative meaning with great diffidence and hesitation. But there is one principle of interpretation which offers some guidance in the interpretation of the rather obscure language of this Explana-tion and it is that since the Explanation raises conclusive presumption in favour of the landlord in legislatiori which is intended to protect the tenant against unreasonable eviction, it. must be construed strictly against the landlord so as to cut as litt<!e as possible into the protection afforded to the tenant. If the language of the Explanation is susceptible of two interpretations, we should prefer that which enlarges the pro--~ . tection of the tenant rather than that which · res_tricts it. Bearing in / , mind his principle of interpretation, we may now approach the langu-age of Explanation (iv) and try to arrive at its proper construction. The word 'building' is used thrice in Explanation (iv) and it is -clear from the context in which it occurs that it is not intended to be used in its popular sense so as to mean the entire super-structure raised on the ground. The first time that the word 'building' is used is in the exoression 'the building under tenancy' and it is obvious that it is 'the building unc;Jer tenancy' which is intended to be referred when the word 'buHding' is used towards the end of the Explanation. It is in respect of 'the building under tenancy' that conclusive presump-tion is raised that it is bona fide required by the landlord. Now, 'the building under tenancy' cannot be the entire super-structure because what i's contemplated by the Explanation is that "the building under tenancv" must be "a part of building" and, therefore, it cannot be the whole super-structure. Here, the word 'building' obviously meaml

acco~odation. which is th~ subject-matter of tenancy. The question ~hus 1s : what 1s the sense m which the word 'building' is used when ~t ~ccurs for the second ~im~ i~ t?~ Explanation. The context clearly md1cates that the word bmldmg 1s there used to denote unit of whic~ _the acco~m.odation under . tenancy constitutes part and' the remammg part 1s m the occupation of the landlord for residential ~urp~ses. The acc?mmodation under tenancy and the accommoda-tion m the occupat10n of the landlord together go ·to make up the 'building'. The use of the word 'part' is clear pointer that the 'build-ing'., o~ which the ac~ommodation under tenancy and the accommo-dat10n m the occupat10n of the landlord are parts, must be unit. Where super-structure consists of two or more tenements and each· tenement is an independent unit distinct and separate from the other, the Explanation would be of no application, because each tenement would be unit and not part of unit. It is only where there is · unit of accommodation out of which part is under tenancy and the remaining part is in the occupation of the landlord, that the Expla-nation, would be attracted. To determine the applicability of the Explanation, the question to be asked would be whether the accommo-dation under tenancy and the accommodation in the occupation of the landlord together constitute one unit of accommodation? The object of the Legislature clearly was that where there is single unit of accommodation, of which part has been let out to tenant, the land-lord who is in occupation of the remaining part should be entitled to recover possession of the part let out to the tenant. It could never have been intended by the Legislature that where super-structure consists of two independent and separate units of accommodation one of which is let out to tenant and the other is in the occupation of the landlord, the landlord should, without any proof of bona fide requirement, be entitled to recover possession of the tenement let out to the tenant. It is difficult to see what social object or purpose the legislation could have had in view in conferring such right on the landlord. Such provision would be plainly contrary to the aim and objeciive of the legislation. On the other hand, if we read the Explanation to be applicable only to those cases where single unit of accommodation is divided by letting out part to tenant so that the landlord, who is in occupation of the remaining part, is given the right to evict the tenant and secure for himself possession of the whole unit, it would not unduly restrict or narrow down the protection against eviction afforded _,.....,. to the tenant. This construction would be more consistent with the policy and intendment of the legislation which is to protect the posses-sion of the tenant, unless the landlord establishes his bona fide require-ment of the accommodation under tenancy. We may point out that Mr. Justice Bari Swamp has also taken the. same view in well-considered judgment in Chunnoo Lal v. Addi. District Judge, Allah-abad(') and that decision has our approval.

Since the question as to the applicability of Explanation (iv) on the facts of the present case has not been considered by the High Court as well as the lower courts on the basis of the aforesaid con-struction of the Explanation, we must set aside the judgment of the High Court as also the order of the. District Court and remand the case to the District Court with direction to dispose it of in the light

(1) (1975) 1 A.L.R. 362.

of the interpretation placed by us on the. Explanation. It was con-tended before us on behaJ.f of the appellant that since Explanation (iv) has been omitted by U.P. Act No. 28 of 1976, respondent No. 3 was no longer entitled to take advantage of it and her claim for possession must fail. But the answer given by respondent No. 3 to this contention was that the omission of Explanation (iv) was pros-pective and not retrospective and since Explanation (iv) was in force at the date when respondent No. 3 filed her application for release, she had vested right to obtain release of the rented premises in her favour by virtue Explanation (iv) and that vested right was not taken away by the prospective omission of Explanation (iv) and hence she was entitled to rely on it despite its omission by U.P. Act No. 28 of 1976. We have not pronounced on these rival contentions since we think it would be better to leave it to the District Court to decide which con-tention is correct. If the District Court finds that by reason of the omission of Explanation (iv) by U.P. Act No. 28 of 1976 re·spondent No. 3 is no longer entitled to rely on it to sustain her claim for release of the rented premises in her favour, it will be unnecessary for the District Court to examine the further question .as to whether Expla-nation (iv) is attracted on the facts of the present case. If, on the other hand, District Court finds that the omission of Explanation (iv) by U.P. Act No. 28 of 1976 being prospective and not retrospective, respondent No. 3 is entitled to avail of that Explanation, the District Court will proceed to decide whether the two tenements or the ground floor constituted one single unit of accommodation so as to attract the applicability of Explanation (iv) and for this purpose, the District Court may, if it so thinks necessary, either take further evidence itself or require further evidence to be taken by the Prescribed Authority. If the District Court finds that the case is covered by Explanation (iv) , there would be no question of examining comparative hardship of the appellant and respondent No. 3, and respondent No. 3 would straightaway be entitled to an order of release of the rented premises in her favour. On the other hand, if the District Court comes to the conclusion that by reason of the omission of Explanation (iv) of the U.P. Act No. 28 of 1976 respondent No. 3 is not entitl!!d to rely on it or that Explanation (iv) is not applicable on the facts of the present case, the application of respondent No. 3 would fall, since it has already been found by the District Court-~.- and we do not propose t~ disturb this finding-that the appellant would suffer greater hardship by !!fanting of the application than what would be suffered by respondent No. 3 if the application were to be refused. We accordingly remand the matter to the District Court with no order as to costs. -

Appeal allowed.