M. P. Saxena, J. - (1.) THIS is a tenant's petition arising out of proceedings under Section 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter called the Act.
(2.) ISHWAR Saran, opposite party No. 3, is the owner of house No. 18 Saket in the town of Meerut. A portion of this house consisting of drawing room, bed room with attached bath room, dining room, kitchen and enclosed open space on the east was let out to the petitioner on a monthly rent of Rs. 150/-. The remaining portion of this house was in the occupation of the landlord opposite party. The latter moved an application under Section 21 (1) (a) of the Act for release of the tenanted accommodation on the ground that he bonafide required it for his own use as marriages of his sons were to be solemnised and his grand children were to receive education in Meerut and the present accommodation in his possession was not sufficient to meet his requirements. He also claimed the benefit of Explanation (iv) to Section 21 (1) (a) of the Act as it existed at that time. The petitioner contested that application, inter alia, on the grounds that the landlord had no bonafide need for the disputed accommodation and the application was moved with a view to enhance rent ; that Explanation (iv) was not applicable to this case ; that he never gave any undertaking to vacate the house and that greater hardship would be caused to him if the application was allowed than would be caused to the landlord by the rejection of the application. The Prescribed Authority came to the conclusion that Explanation (iv) to Sec. 21 (1) (a) of the Act was applicable to this case because the tenant was living in a portion of the building the remaining portion whereof was in possession of the landlord for residential purpose. In view of this finding he did not feel the necessity of comparing the relative hardship of the landlord and the tenant and allowed the release application on 22-3-1974.
(3.) THE tenant filed an appeal under Section 22 of the Act and the learned District Judge also came to the same conclusion and dismissed the appeal on 27-11-1976. According to him also, comparison of relative hardships was not necessary as Explanation (iv) to Section 21 (1) (a) of the Act was applicable. Hence this writ petition for quashing the order passed by the learned District Judge. The first question that arises for consideration is whether Explanation (iv) to Section 21 (1) (a) as it stood prior to the amendment, was applicable to this case. This Explanation read, as follows ; "The fact that the building under tenancy is a part of a building the remaining part whereof is in the occupation of the landlord for residential purposes shall be conclusive to prove that the building is bonafide required by the landlord." It was deleted by the U. P. Act 28 of 1976 with effect from 5-7-1976, i. e., after the release application was allowed by the Prescribed Authority and during the pendency of the appeal in the court of the District Judge. The question for consideration obviously arises as to when a building under tenancy of the tenant shall be deemed to be a part of the building remaining part whereof is in occupation of the landlord for his residential purposes. This question has been the subject-matter of decision in several cases and it will suffice if reference is made to two of them. In Chhunno Lal v. Second Additional District Judge, 1975 AWC 390 a single Judge of this Court held that if a superstructure or a part thereof is an independent residential unit and a part of that independent unit is in the tenancy of a person then Explanation (iv) will be attracted. It will not be attracted in case the two portions of superstructure are independently fit for residential purposes and are allotable as such under the Act. This view was approved by the Supreme Court in the case of Mohd. Shafi v. VII Additional District & Sessions Judge, Allahabad, 1977 AWC 300. Their Lordships of the Supreme Court observed that the object of the legislature clearly was that where there is a single unit of accommodation of which a part has been let out to a tenant the landlord who is in occupation of the remaining part should be entitled to recover possession of the part let out to the tenant. If this test is applied to the instant case there will be no difficulty in holding that the tenant is in possession of the building the remaining part whereof is in occupation of the landlord for residential purposes. In para. 17 of the counter affidavit the landlord opposite party has stated that both the portions are connected with each other and are inseparable. He has also stated that amenities such as entrance, open terrace, platform, gallery, electric connection and water connection etc. are commonly shared. In the rejoinder affidavit the petitioner has made a vague denial of the same. Both the lower authorities have, therefore, held that the portions in possession of the tenant and the landlord are one unit and not two separate allotable units and Explanation (iv) applies.;