OM PARKASH, J. - (1.) THIS petition is filed for quashing the order dated 22nd April, 1988, Annexure 2 to the writ petition passed by the respondent No. 2 rejecting the application of the petitioner for release of the accommodation situate in Bareilly under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act, 1972). The respondent No. 3 is the tenant of the said accommodation. The petitioner averred that his need for the accommodation was bonafide. The said application was allowed by the Prescribed Authority by the order dated 5th December, 1986, Annexure 1 to the writ petition accepting the case of the petitioner that his need for the accommodation was bonafide. The respondent No. 3 preferred an appeal before the learned V. Additional District Judge, Bareilly against the said order. Before the learned Additional District Judge, the petitioner reiterated that the tenant had built up a house that is 35/1-41-42, Rampur Garden in the same city, namely, Bareilly and, therefore, Explanation (i) to Section 21 of the Act, 1972 is applicable and consequently no objection by the tenant against the petitioner's application could be entertained. Both the Prescribed Authority as well as the appellate Court rejected such contention of the petitioner. Whereas the prescribed authority accepted the contention of the petitioner that he required the accommodation bonafide the appellate Court took the view that the petitioner failed to rebut the case of the tenant that the former had possessed of several buildings, and, therefore, his need was bonafide. That is why the appellate Court reversed the order of the prescribed authority and rejected the release application of the petitioner.
(2.) BEFORE me, the learned counsel for the petitioner heavily relied on the Explanation (i) to Section 21 of the Act and contended on that basis that the tenant having built up a house in Bareilly itself where the suit accommodation is situate, no objection from him against the release application could be entertained within the meaning of the said Explanation (i) to Section 21 of the Act and contended on that basis that the tenant having built up a house in Bereilly itself where the suit accommodation is situate, no objection from him against the release application could be entertained within the meaning of the said Explanation. In support of his contention, the learned counsel for the petitioner relied on Jan Mohammad alias Jan v. VII additional District Judge, Meerut and another, 1987(2) ARC 21, Ravendra Prakash Sharma v. Kamlesh Chandra and others, 1988(1) ARC 408, Smt. I.B. Paul v. VI Additional District Judge, Meerut and others, 1988(2) ARC 275 and Smt. Shakuntala Sharma and others v. Appellate Authority, Moradabad, 1989(1) ARC 492. The common ratio of all these authorities is that the tenant having built up a house in the same town where the accommodation release of which is sought, is situate, becomes disentitled to raise any objection against the release application. However, both the prescribed authority and the appellate authority relied on Sharda prasad v. Smt. Sampati Devi and others, 1983(1) ARC 378, in which learned Single Judge took a contrary view that despite the fact that the tenant had built up a house in the same town, the petitioner is under legal obligation under the provisions of main Section 21 of the Act to establish his bonafide need and unless such burden is discharged, the petitioner could not succeed merely by virtue of the fact that the tenant had built up house in the same town. The learned Judge, taking contrary view observed : "..... the fact that the tenant has been able to acquire another accommodation would not entitle the landlord to obtain release in his favour. The circumstance of the tenant having another accommodation at his disposal would tilt the balance in the landlord's favour only if other things are equal i.e., his need is bonafide. Explanation I, therefore, does not exonerate the landlord from discharging the initial burden which rests on him of establishing that the accommodation is bonafide required by him. In the absence of such condition, the benefit contemplated by the explanation cannot be a vialed of." While taking the contrary view, the learned Single Judge further observed : "The Explanation only dispenses with the requirement which is embodied in the proviso, namely 'taking into account likely hardship of the tenant' as against the likely hardship to the landlord from the refusal of the application. Only this part of the procedure which enjoins a comparison of the respective needs of the landlord and tenant is dispensed with by the Explanation but its effect must be circumscribed within this limit. It cannot be protected further so as to suspend the existence of the preliminary condition enshrined in the substantive part of Section 21(1)(a) which makes a condition of the bonafide requirement of the landlord imperative." It is, therefore, manifest that in the aforesaid two sets of decisions, the learned Judge of this Court took conflicting views on the Explanation (i) to Section 21 of the Act, 1972. This being so, no reliance can be placed on them unless the difference is resolved by a Division or larger Bench. But then the question arises whether the petitioner can succeed even if the reliance is placed on the case of Sharda Prasad (supra) taking a contrary view that despite the circumstance envisaged by the Explanation (i) to Section 21 being in existence, the petitioner is not absolved of his legal obligation to establish the bonafide need before securing release of the accommodation. Whereas the prescribed authority took the view that the petitioner had established his bonafide need, the appellate Court reversed the order of prescribed authority and found that the petitioner failed to establish his bonafide need. The question, therefore, is whether the appellate authority was right in holding that the petitioner has failed to establish his bonafide need in regard to the accommodation in dispute. The contention of the tenant before the respondent No. 2 was that the petitioner owned several houses, namely, 129, 193, 258, 230, 331, 99 and 112-A situate in Mohalla Karolan, Bareilly besides the house No. 193 situate in Gali Maliyan, Bareilly. The respondent No. 2 took the view that the petitioner miserably failed to rebut such case of the tenant and that as the petitioner failed to produce the documentary evidence which he could have produced to rebut the aforesaid case of the tenant, an adverse inference could be drawn against the petitioner that he failed to produce the documentary evidence because he owned several aforesaid houses in Bareilly. The respondent No. 2 observed that the burden lay upon the landlord to contradict the statement of the tenant that the former owned several accommodations in Bareilly and that the landlord has not adduced any cogent proof that the aforesaid houses did not pertain to his family and were not available to him. He also observed that the petitioner failed even to show by reliable and cogent evidence that House No. 193 Gali Maliyan, Bareily and house No. 35/A/4-B, Rampur Garden, Bareilly, do not belong to him. In the opinion of the respondent No. 2 the burden to prove such a fact was on the landlord, which he miserably failed to discharge. Therefore, the respondent No. 2 inferred that the petitioner was in possession of the alternative accommodation and, therefore, his need was not bonafide. This is well settled law that onus is not stationary and it keeps on moving like a pendulum of a clock. When a party in the suit asserts some fact and establishes that by reasonable evidence, then the burden is shifted to the other party to rebut the same and when that party rebuts such contention by reasonable evidence then again the burden is shifted to the party, who originally assessed the fact. The question for consideration is whether on the facts and circumstances of this case, the tenant successfully established by reasonable evidence that the accommodation named above, belonged to the petitioner. Unless some evidence is given by the tenant to establish the averment that the petitioner owned several accommodations, in Bareily, the burden of proof could not be shifted to the petitioner. The case of the petitioner is that they did not own any other accommodation in Bareilly and therefore, it was the duty of the tenant to establish by independent evidence that the petitioner owned several accommodations and unless this fact is established by reasonable evidence adduced by the tenant no burden would be shifted to the petitioner to rebut the case of the tenant. Unless something is established, no rebuttal is required. The question is, did the tenant establish the fact that the petitioner owned several accommodations in Bareilly ? The answer is clearly no, because not even the semblance of evidence, much less reasonable evidence was adduced by the tenant to prove his averment that the petitioner was the owner of several accommodations. On these facts, it is clear that the petitioner could not be forced to prove negative fact that he was not the owner in possession of any other accommodation. It is not a negative fact but a positive one, which has to be proved. The tenant having asserted that several houses belonged to the petitioner carried the burden to prove that fact and not the petitioner. The tenant having failed to prove his averment that several houses belonged to the petitioner in Bareilly, the finding of the respondent No. 2 that the requirement of the petitioner of the disputed accommodation was not bonafide is patently erroneous and unsustainable.
(3.) ONE these facts the view taken by the Prescribed Authority that the petitioner successfully established his bonafide need and according to the respondent No. 2, the respondent No. 3 having built up his own house in Bareilly, comparison of hardship between the tenant and the landlord has to be dispensed with.;