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S.K. Chatterji Vs. Hiralal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 7466 of 1973
Judge
Reported inAIR1976All512
ActsUttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 21
AppellantS.K. Chatterji
RespondentHiralal and ors.
Appellant AdvocatePalok Basu, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition allowed
Excerpt:
property - bona fide requirement - section 21, explanation 4 of u.p. urban buildings(regulation of letting, rent and eviction) act,1972 - building under tenancy is a part of the building - the remaining part whereof is in the occupation of the landlord for residential purpose - when requirement established - legally irrebuttable presumption - conclusive proof - building is bonafide required. - - 5. it is well settled that in all cases primarily the language employed is the determining factor of intention. ho, however, failed to satisfy me that the explanation iv to section 21 applied to the case......part of the building was disputed by him. the prescribed authority came to the conclusion that the remaining portion of the building was not in possession of respondents nos. 1 and 2. on this finding he rejected the application filed by them. respondents nos. 1 and 2 preferred an appeal before the learned district judge under section 22 of the new act against the aforesaid judgment of the prescribed authority.in the appeal a statement was made before the learned ii additional district judge that in house no. 80 besides respondents nos. 1 and 2, there were four tenants one of whom was the petitioner. it was, however, admitted by petitioner's counsel that his tenancy was in the same house in a portion of which respondents nos. 1 and 2 were residing. on this state of affairs, the learned.....
Judgment:
ORDER

K.C. Agrawal, J.

1. This is an application under Section 151 of the Civil Procedure Code for recalling the order dated October 27, 1975, on the ground that the said judgment was given without hearing counsel appearing for the respondents Nos. 1 and 2. The ground disclosed in the application makes out a case for setting aside the said order inasmuch as Sri Bharat Ji Agrawal, who was appearing for these respondents did not have any notice. I accordingly recall the order dated October 27, 1975. Heard counsel for the parties on merits of the case.

2. The only question involved in this case is about the scope of Explanation (iv) to Section 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The said explanation reads as under:

'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 the residential purposes, shall be conclusive to prove that the building is bona fide required by the landlord.'

3. The necessary facts are that a house bearing Municipal No. 80, Mohat-shimganj, Allahabad belonged to Hira Lal and Smt. Sheo Pyari Devi, respondents Nos. 1 and 2. They filed an application under Section 21 (1) (a) of the New Act for the release of a portion of theaforesaid house in the tenancy of thepetitioner on the ground that the same was needed by them for their personal occupation. The application was also founded on the allegation that the building in the tenancy of the petitioner was a part of house No. 80, the remaining part of which was in occupation of respondents 1 and 2 for their residential purposes.

The application was resisted by the petitioner and the fact that respondents Nos. 1 and 2 were in possession of the remaining part of the building was disputed by him. The prescribed Authority came to the conclusion that the remaining portion of the building was not in possession of respondents Nos. 1 and 2. On this finding he rejected the application filed by them. Respondents Nos. 1 and 2 preferred an appeal before the learned District Judge under Section 22 of the New Act against the aforesaid judgment of the Prescribed Authority.

In the appeal a statement was made before the learned II Additional District Judge that in house No. 80 besides respondents Nos. 1 and 2, there were four tenants one of whom was the petitioner. It was, however, admitted by petitioner's counsel that his tenancy was in the same house in a portion of which respondents Nos. 1 and 2 were residing. On this state of affairs, the learned District Judge found that the only question to be considered was whether respondents 1 and 2 were entitled to the benefit of Explanation (iv) of Section 21 mentioned above. He decided the above question in favour of respondents Nos. 1 and 2 and holding that they were entitled to the benefit of the said Explanation, allowed the appeal. Dissatisfied the petitioner has filed the present writ petition.

4. The only question that arises for decision in this petition is whether respondents Nos. 1 and 2 were entitled to the benefit of the aforesaid explanation. The requirement of the aforesaid explanation is that the building under tenancy is a part of the building the remaining part whereof is in the occupation of the landlord for residential purpose. This explanation has created a legally irre-buttable presumption that in case the aforesaid requirement is established, the same shall be a conclusive proof that the building is bona fide required by the landlord. Strict compliance of the requirement of the aforesaid explanation is, therefore, necessary for holding the need of the landlord to be conclusive in accordance with the aforesaid explanation. The requirement of the aforesaid explanation is that the remaining part of the building a part of which is in occupation of a tenant, should be in the possession of the landlord for residential purpose.

In other words, the landlord must be in possession of the entire remaining portion of the premises other than that which is in occupation of the tenant against whom an application under Section 21 has been filed. The Hindi version of Explanation (iv) of Section 21 used the word 'shes' in place of 'remaining'. The use of the word 'shes' in the aforesaid Explanation makes it clear that the said Explanation can apply only when the entire portion other than that in possession of the tenant against whom the application under Section 2l has been filed, is in the occupation, of the landlord. The Shorter Oxford Dictionary gives meaning of the word 'remaining' as 'to be left after the removal' and 'to be left over and above what has already been done'.

Similar is the meaning given in Webster's dictionary. The same is 'to be a part not destroyed'. It is, therefore, necessary for the application of the aforesaid provision that the remaining portion of the house must be in occupation of the landlord and not only one of the portions of the said house. In the instant case, there were four tenants apart from respondents Nos. 1 and 2. Respondents Nos. 1 and 2 were in occupation of only one portion. They were not in occupation of all the remaining four portions of the said house. They could not, therefore, get the benefit of Explanation (iv) to Section 21.

The learned District Judge, therefore, fell into error in holding that the respondents Nos. 1 and 2 would be entitled to the benefit of the aforesaid provision. The reasoning of the learned District Judge that the Legislature could not have intended to extend the benefit of this Explanation to only those landlords who have only one tenant in a portion of their residential house, is erroneous. He fell into error as he did not attach importance to the language employed in the Explanation. The learned District Judge has further referred to the intention of the Legislature and on this basis found that in a case where two rooms were let out to one tenant was not distinguishable from one where two rooms had been let to two tenants separately.

5. It is well settled that in all cases primarily the language employed is the determining factor of intention. As observed by Hon'ble Gajendragadkar, J., (as he then was) in Kanailal Sur v. Paramnidhi Sadhukhan, (AIR 1957 SC 907), the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. The question, therefore, is not what may be supposed to have been intended but what has been actually said. The enquiry, therefore, should have been as to what the words used in the Expanation mean and not what the intention of the Legislature was. The words used, in my opinion, were clear to convey the meaning that the entire portion other than that of the tenant should be in the occupation of the landlord.

6. I do not also agree with the view of the learned District Judge that the intention of enacting Explanation (iv) was to confer its benefit even to those cases where there are more than one tenant living in different portions of the house. In order to ascertain the intention of the Legistature two factors are necessary to be taken into account. One of them is the meaning of the words used in the provision. The other is the concept of the 'purpose' or 'the reason and spirit' pervading through the Statute. It was observed by Sir John Nicholl that 'the key to the opening of every law is the reason and the spirit of the law'. (Brett v. Brett, (1826) 2 Add 210).

This aspect of 'purpose' is the very foundation of the rule in Heydon's case, (1584-76 ER 637) reported by Lord Coke as far back as 1584. As observed by Lord Hand, J., 'Statutes should be construed not as theorem ..... but with imagination of purpose behind them.' Taking these canons of interpretation into account, it seems to me that the purpose of making the provision of Explanation (iv) should have been kept in view by the learned District Judge while interpreting Explanation (iv). The purpose to my mind is to treat need of a landlord about a portion of house in the tenancy of a tenant, as conclusive where he is living in the remaining part thereof. This was purposely done to give possession to landlords in those accommodations in which the landlord is living along with one tenant. The purpose was not to extend its benefit to a landlord where there are tenants more than one living in the same house. If such an interpretation is accepted the same is likely to defeat the purpose and object of the Act, the same being to regulate eviction of tenants.

7. Sri Bharat Ji Agarwal, learned counsel for the respondents NOS. 1 and 2 however stated that the view of the learned District Judge about the application of Explanation (iv) to Section 21 to the facts of the present case was correct and therefore the same should be upheld. Ho, however, failed to satisfy me that the Explanation IV to Section 21 applied to the case. As stated above since there were more than one tenant living in the house, it is not possible to give benefit of Explanation IV to the landlords respondents 1 and 2. No other point was urged on behalf of the respondents.

8. In the result, the writ petition succeeds and is allowed. The order of the learned District Judge dated 23-10-1973 is quashed with costs to the petitioner by the respondents 1 and 2.


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