R.K.Gulati - (1.) THIS is a tenant's petition under Article 226 of the Constitution of India. The short question that arises for consideration is whether on the facts of the present case, the courts below have rightly invoked the revision as contained in the explanation attached to sub-section (1) of section 21 of the U. P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short "the Act"). The said explanation reads as under : "Explanation.- In the case of a residential building :- (i) Where the tenant or any member of his family (who has been normally residing with or his 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, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained; Note- For the purposes of this clause a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenent, allottee or licensee."
(2.) THE brief facts necessary for decision of the aforesaid controversy are these : THE dispute relates to House No. S-17/29-29-A, Mohalla Nade- sar, P. S. Cantt. City Varanasi, of which the 3rd respondent, Dhirendra Kumar Srivastava is the owner and landlord. According to the case set up by the 3rd respondent the disputed house amongst certain other non-residential properties, was alloted to his share in a family partition. THE house in question was initially in the tenancy of Dharam PaJ Kumar who died in the year 1983 leaving behind the petitioner Rajendra Pratap Kumra and another son, his wife and his widow-mother. In the year 1984 THE respondent-landlord filed an application under section 21 (1) (a) of the Act for release of the accommodation under the tenancy of the heirs and legal representatives of late Dharam Pal Kumra. THE release was sought on the ground, inter-alia, that late Dharam Pal Kumra in the year 1982-83 had constructed his own house no. C-27/277-9 at Mohalla Jagatganj, Varanasi and that house was available to the tenant petitioner and other co-tenants on the date when the proceedings under section 21 were instituted. Further, the petitioner Rajendra Pratap Kumra also acquired a M-I.G. residential flat under Bhadaun Vikas Yojna in the name of his wife, Smt. Madhu Kumra. THE respondent-landlord further alleged that he required the disputed accommodation for his own use and occupation and he had no other accommodation for his residence, and in case, the application was not allowed, he would suffer greater hardship. The Prescribed Authority found that the need of the respondent landlord was genuine and bona fide. On the question of hardship, the Prescribed Authority refused to consider the objections relating to release of the disputed accommodation, put forward by the tenant-petitioner and other co- tenants, in view of the bar envisaged in the explanation attached to subsection (1) of section 21 of the Act extracted above, namely, where the tenant or any member of his family who has been normally residing with or is wholly dependant 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, municipality, notified area or town area, no objection by the tenant against an application under sub-section (1) of section 21 shall be entertained. The order passed by the Prescribed Authority was confirmed in appeal. Being still aggrieved, Sri Rajendra Pratap Kumra one of the co-tenants, has filed this writ petition, challenging the validity of the orders passed by the courts below.
(3.) NOW, so far as the findings about the bona fide need of the respondent-landlord is concerned, the same were not disputed before me. It is also admitted to the petitioner that the house was built by his father and he also acquired a M.I.G. flat in the name of his wife. There is also not dispute that both these properties are located in the same city and are within the local limits of Varanasi where the disputed accommodation is situated. Learned counsel for the petitioner, however, threw a challenge to the Impugned orders on the ground that there are no findings in these orders to the effect that the newly constructed house was complete and, further, it was fit for habitation. In absence of any clear finding on these matters, the counsel urged, the mischief contained in the explanation to sub-section (1) of section 21 could not be brought into play. In this connection, reliance was placed upon a decision of this court in Krishna Kumar v. Prescribed Authority, 1980 (U. P.) 2 RCC 297, and my attention was invited to paragraph 14 of the report and in particular, to the passage exacted below : "......I am of the view that before Explanation (i) to section 21 of the Act can be invoked against a tenant, it must clearly be established that the tenants or any member of their family have acquired in vacant state a residential building. The provisions have serious repercussions on the rights of tenants, inasmuch as on the application of this Explanation, the tenants are debarred from raising any objection to an application under section 21 of the aforesaid Act. The provision must, therefore, be strictly construed. The obvious idea behind the provision is that a tenant who has acquired a residential building in the same city ought not be heard in opposition to an application for release filed by the landlord. It Is clear that if the tenant has acquired an alternative accommodation in a vacant state, which is available for residence, he should be debarred from raising an objection against an application under section 21 of the aforesaid Act. The question, therefore, in each case would be whether the tenant has acquired "in a vacant state" a residential building. A mere acquisition of residential building in a 'vacant state' in a physical sense, even though that building is not fit for human habitation, would not to my mind, bring the case within the sweep of Explanation I. " ;