- (1.) This is a tenant's petition under Article 226 of the Constitution of India.
(2.) The opposite party Nos. 1 and 2 are the owners of house No. 21/98 situate in English Lines in the City of Varanasi. It consists of the ground floor, first floor and the second floor. About 25 years ago the ground floor was let out to the petitioner for residential purposes. The first and the second floors remained with the landlords and the opposite party No. 1 resided in it. The opposite party No. 2 was carrying on business in Calcutta and was residing there. On 14.10.1971 the landlords moved an application under Section 3 of the erstwhile U.P. Act III of 1947 for permission to file a suit for eviction against the petitioner. It was alleged that the opposite party No. 2 who was living in Calcutta wanted to come back to Varanasi after closing his business there. He was already possessed of business premises in Varanasi but he needed accommodation for residence. The first and the second floor of this house were not sufficient to accommodate him. Therefore, they bonafide required the ground floor for the residence of opposite party No. 2. The petitioner resisted that application on a number of grounds. In the meantime the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the new Act) came into force and the application was treated as application for release under Section 21 of this Act and was disposed of by the Prescribed Authority. He was of the view that the landlord's need was bonafide. He released the ground floor in their favour. The tenant filed an appeal under Section 22 of the new Act. The learned District Judge came to the conclusion that the case was covered by Explanation (iv) to Section 21(1) of the Act. Accordingly he held that the building was bonafide required by the landlords and it was not necessary to compare the relative hardship of the landlord and the tenant, the appeal was dismissed.
(3.) The first question which arises for consideration is whether Explanation (iv) to Section 21(1) of the new Act applies to the facts of the present case. Explanation (iv) runs as under : "the fact that the building under tenancy is a part of a building the remaining part where of is in the occupation of the landlord for residential purposes, shall, be conclusive to prove that the building is bonafide required by the landlord." The learned counsel for the opposite parties has contended that the "building under tenancy" is a pair of the entire building and hence explanation (iv) applies. It is repelled on behalf of the petitioner on the ground that the word "building', here is synonym the word 'accommodation' as was used in U.P. Act III of 1947. In case of the words 'building under tenancy' are given the meaning of 'accommodation under tenancy' then the expression 'building the remaining part whereof is in occupation of the landlord will mean the accommodation the remaining part whereof is in occupation of the landlord and it will have to be seen whether the accommodation with the tenant is a part of the entire accommodation or not. If the word 'building' is given a wider meaning as including the entire superstructure, then of course the ground floor being part of the superstructure will be part of building the remaining part whereof is in the occupation of the landlord. Having heard the learned counsel for both sides it may be stated that this question came up for consideration in the case of Chunnoo Lal v. IInd Additional District Judge,1977 AWR 390 In that case also the entire superstructure consisted of the ground floor and the first floor. The tenant was in possession of the ground floor and the landlord lived on the first floor. The latrine which was on the ground floor was in common use. Some times the water tap was also common. Hari Swarup, J. observed that the word 'building' in the new Act has a special meaning. It does not mean the entire superstructure but means only the portion of a superstructure which is independently liable to be deal with for purposes of letting out, whether singly situated or is part of the building complex. Each portion is a separate allottable unit. He, therefore, held that the landlord, occupying the first floor which under the definition of the 'building' given in the Act will be a 'building' similarly the accommodation in occupation of the tenant, namely, the ground floor will be a 'building', within the meaning of the act. The two are to be dealt with separately and independently and cannot be deemed to be part of a 'building' for purposes of this Act. Explanation (iv) was held to be not applicable to such a case.;