Hari Swarup, J.:— This petition has been filed by a tenant against the order passed in proceedings under the U.P Urban Building (Regulation of Letting and Eviction) Act, 1972, (hereinafter referred to as the Act). An application was moved under Section 21(1) of the Act for release of the accommodation. The application was rejected by the prescribed authority. The landlord went up in appeal. The appeal was allowed and the eviction of the tenant has been ordered.
2. According to the finding of the appellate court, the landlord lives on the first floor while the tenant lived on the ground floor. The latrine, which is on the ground floor, was in common use. He also found that at some time the water tap was also common. On these findings he 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 bona fide required by the landlord. The appellate court then recorded the finding that the need of the tenant was comparatively greater than the need of the landlord, but still allowed the appeal because, according to him, the need of the landlord was bona fide. The first question that arises for consideration is whether Explanation (iv) to sub-section (1) of Section 21 of the 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 whereof is in the occupation of the landlord for residential purposes, shall be conclusive to prove that the building is bona fide required by the landlord.”
3. It has been contended on behalf of the respondent that the ‘building under tenancy’ is a part of the entire building and hence explanation (iv) applies. The contention of the petitioner on the other hand is that the word ‘building’ here is only a synonym for the word ‘accommodation’ as was used in U.P Act III of 1947. In case 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 part of the entire accommodation or not. If, however, 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.
4. Under the old Act premises to be dealt with for purposes of control of letting was called an ‘accommodation’. It was defined in Section 2(a):—
“(a) ‘accommodation’ means residential and non-residential accommodation in any building or part of a building and includes,
(i) gardens, grounds and outhouses, of any appurtenant to such building or part of a building;
(ii) any furniture supplied by the landlord for use in such building or part of a building;
(iii) any fitting affixed to such building or part of a building for the mere beneficial enjoyment, thereof,
but does not include any accommodation used as a factory for an industrial purpose where the business carried on in or upon the building is also leased out to the lessee by the same transaction.”
5. In the present Act the premises to be dealt with for purposes of letting have been described as ‘building’. The definition of building given in Section 3(i) is as under:—
“‘building’, means a residential or non-residential roofed structure and includes—
(i) any land (including any garden), garages and out houses, appurtenant to such building;
(ii) any furniture supplied by the landlord for use in such building;
(iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof.”
6. Comparing the two definitions there appears to be no difference between the word ‘accommodation’ as used under the old Act and the ‘building’ used under the new Act. It is undeniable that a superstructure may be divisible in different accommodation which can be separately let out and then, according to the definition each such portion of the super-structure will be a ‘building’. The word ‘building’ in the new Act has thus a special meaning and not the meaning ordinarily understood. It does not mean the entire super-structure, but means only the portion of a super-structure which is independently liable to be dealt with for purposes of letting out. This is the only meaning which the legislature could have in mind while on acting the new Act in the context of the modern system of construction of residential and non-residential building. The enactment has been made in an age when multi-storeyed flats are being constructed and buildings are so designed that they are devisible into separate independent residential units and separate commercial units. The control of letting under the Act, through the various provisions of the Act, is to control the letting of each such accommodation. It is wholly immaterial whether such accommodation forms the entire unit of super-structure or is apart of a super-structure. A ‘building’ under this Act means only an independent allotable accommodation, whether singly situated or is part of a building complex. In the present case the landlord is 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.
7. The presumption, in the absence of express indication is not that the legislature changes, the law, the presumption is about the continuity of law. Explanation (i) to Section 21(1) is pari materia with Rule 7 of the U.P (Temporary) Control of Rent and Eviction Rules. Rule 7 runs as under:—
“7. Allotment of a portion of accommodation—Where a portion of accommodation falls vacant and the owner is in occupation of another portion thereof, the District Magistrate shall, before making the allotment order, consult the owner and shall as far as possible, make the allotment in accordance with the wishes of the owner.”
8. The meaning and purport of explanation (iv), therefore, should be similar to the meaning given by the Court's to rule 7. A Full Bench of this Court considered rule 7. The majority of the learned Judges were of the opinion that the word ‘accommodation’ means a unit of accommodation and not the entire super-structure. A whole superstructure may have various accommodation and for the application of rule 7, it was held that the landlord must occupy a portion not of the entire super-structure but of the ‘accommodation’. A similar view was expressed by a Division Bench in the case of Sri Krishna Khanna v. Additional District Magistrate, Kanpur . 1964 A.L.J 710.. In that case the building consisted of two stories. The first storey was in occupation of the tenant while the second storey was in the occupation of the landlord. Rule 7 was held not applicable.
9. In explanation (iv) the ‘building’ under tenancy to be a part of a building the remaining part whereof is in the occupation of the landlord must be a portion which is not an independently allotable unit. Explanation (iv) deals with buildings for residential purposes and it may, therefore, be taken that if a super-structure or a portion 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 the super-structure are independently fit for residential purposes and are allotable as such under the Act. Explanation (iv) was thus not attracted in the present case. Once explanation (iv) is not attracted the landlord had to prove the bona fide nature of his need and the prescribed and the appellate authorities had to apply the principles laid down for grant or rejection of an application in rule 16(1) of the U.P Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972. It appears that the appellate court was under the impression that once the bona fide nature of the need of the landlord had been established the need of the tenant was immaterial and he should be directed to be ejected. This is contrary to the provisions of rule 16 as well as to the provisions of Section 21 of the Act. In the case of Roshanlal v. Smt. Ramadevi . 1975 A.L.R 13. it was held that even though the need of the landlord was bona fide, permission for eviction under Section 21 could not be granted without comparing the needs of the landlord and tenant. It is well established that in case the tenant's need is found to be greater than the landlord's need, the tenant cannot be ordered to be evicted. Even if explanation (iv) to Section 21(1) were deemed applicable it will not exclude rule 16, because the portion of rule 16, except in cases provided for in the explanation to Section 21(1) in rule 16 have been held to be ultra vires by a Division Bench of this Court (Lucknow Bench) in Civil Misc. Writ No. 224 of 1973 connected with Civil Misc. Writ Nos. 319 of 1973, 763 of 1974 and 1047 of 1974. The learned District Judge erred in thinking that once the need of the landlord was bona fide nothing more was to be considered. He was clearly in error. He should have applied the principles laid down in rule 16(1)(a) and (d) before upsetting the order of the Prescribed Authority.
10. As the learned District Judge has misdirected himself, the appellate order cannot be deemed to have been passed in accordance with law. In the result the petition is allowed. The order of the appellate court dated May 6, 1974 is quashed and the appellate court is directed to readmit the appeal to its original number and decide it afresh in accordance with law. In the circumstances of the case the parties will bear their own costs.