OM PRAKASHversusBHAGWAN DAS

    598

A
                                 OM PRAKASH                             +-
                                    v.
                              BllAGWAN DAS

                             MARCH 10, 1986

B               [A.P. SEN, B.C. RAY AND K.N. SINGH, JJ.]

          U.P. Urban Buildings (Regulation of Rent and Eviction)
    Act 1972 & U.P. Urban Buildings (Regulation of Letting, Rent &
    Eviction) Rules, 1972, s. 21(1) (a) 4th Proviso/Rule 16(l)(f)
    - Landlord seeking ajectment of tenant on bona fide need -
c   Landlord offering reasonable, suitable accormnodation to tenant
    - Landlord's claim to eviction to be considered liberally.

          The Prescribed Authority, Varanasi and the Second
    Additional District Judge, in revision, after considering the
    comparative hardship likely to be caused to the tenant and the
D   landlord, allowed the application of the appellant - landlord
    under s. 2l(l)(a) of the U.P. Urban Buildings (Regulation of
                                                                               .
    Letting, Rent and Eviction) Act, 1972 on the ground that the
    need of the appellant-landlord was bona fide and he was
    entitled to the release of the demised premises. The Authori-
    ties also held that since the appellant was living in the
E   rented premises, there was no reason why he should be deprived
    of the beneficial enjoyment of his own property. However, in
    the appeal, the High Court set aside the orders passed by the
    aforesaid two Authorities.

          Allowing the appeal,
F
          BEU> : 1. There was no infirmity in the order of the
    Prescribed Authority or that of the learned II Additional
    District Judge. The High Court was clearly in error in
    interfering with the order passed by the Prescribed Authority,
    Varanasi and that of the II Additional District Judge,
G   Varanasi. The judgment and order of the High Court are,
    therefore, set aside. The order of the Prescribed Authority,
    Varanasi and that of the II Additional Judge, Varanasi              ,.._
    directing the release of the acco111110dation under s. 21 (1 )(a)
    of the Act are restored. [601 D; 601 H)

H
                OM PRAKASH v. BHAGWAN DAS [SEN, J. ]           599

                                                                     A
      2. 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 acco111DOdation 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 B
be considered liberally. (601 B]

       In the instant case, the refusal of the application of
the landlord under s. 21 (l) (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 landlord had not fulfilled the            C
requirement of the 4th proviso to s.2l(l)(a) of the Act.
(601 D]
        CIVIL APPELLATE JURISDICTION       Civil Appeal No. 959 of
1986.
                                                                     D.
      From the Judgment and Order dated 1.5.1985 of the
Allahabad High Court in C.M.W.~. No. 11377 of 1980.

        R.B. Mehrotra for the Appellant.

        Sunil Aml:Mani and Mukul Mudgal for the Respondent.          E

        The Judgment of the Court was delivered by

      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       F
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          G
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            H
property.
        600                SUPREME COURT REPORTS        [1986] l s.c.R.


A             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
B                  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-
c                  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
D                  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
E                  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
F                  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
    G              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."
    H
                        OM PRAKASH v. BHAGWAN DAS [SEN, J. ]           601

                                                                             A
               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      B
          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     c
          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     D
          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      E
          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     F
          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.
                                                                             G
     -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      H
    602                SUPREME COURT REPORTS        [19861 1 s.c.R.

A
    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.
B
         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.
c
          No costs.



    M.L.A.                                          Appeal allCMed.