Citation Codes

Equivalent Citations

citation codes

Case Number

C.M.W.P No. 16751 of 1987

Attorney(S)

S.K.Gaur
S.C.Manjain
P.S.Tripathi

Judges

R.A Sharma
D.K Seth, JJ.

Acts

Section 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act)
Section 11 of West Bengal Premises Rent Control (Temporary provisions) Act, 1948
Clauses (a) and (b) of Sub-section (1) of Section 21
provision of Section 21 (1) (b) or Rule
Clauses (a) and (b) of Section 21 (1).
Clauses (a) and (b) of Section 21,
Sub-section (1) of Section 21
Clause (b) of Section 21 (1)
Rule 17 of the Rules

See more information ...

Smart Summary

Judgment Summary — R.K. Sharma, J.

Factual and Procedural Background

A learned Single Judge referred a specific question to a larger bench for decision: whether the landlord's need under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 can be considered even if the landlord pleads that the building is in a dilapidated condition and requires demolition and new construction.

The larger bench heard learned counsel for the parties and reproduced the text of Section 21(1) (clauses (a) and (b)) as central to the controversy. After legal analysis and consideration of precedent, the Court gave an affirmative answer to the referred question and directed that the papers of the case be laid before the learned Single Judge.

Legal Issues Presented

Whether the need of the landlord under Section 21(1)(a) can be considered even if the landlord pleads that the building is in a dilapidated condition and requires demolition and new construction.
Whether a building being in a dilapidated condition and thus falling within Clause (b) of Section 21(1) excludes application of Clause (a) where the landlord claims bona fide requirement for personal occupation.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
S. K. Gopalkrishna Chetty v. Ganeshan and Others, AIR 1975 SC 1750	Landlord's right to demolish and rebuild is a legitimate exercise of property rights and, per se, is not mala fide.	The Court relied on this principle to support the proposition that a landlord may legitimately require a building for reconstruction and personal occupation and that demolition for such purpose is not automatically suspect.
Bhulan Singh and others v. Ganendra Kumar Roy Chowdhury, AIR 1950 Calcutta 74	The state or condition of premises is not an essential factor where the statute speaks of bona fide requirement for rebuilding; the proviso did not limit the right to premises that already required rebuilding.	The Court cited this decision to support the view that the physical condition of premises is not necessarily determinative of a landlord's bona fide claim to require premises for rebuilding or personal occupation.
Smt. Champa Kunwar Thist v. District Judge, AIR 1976 All 252	Held that the state or condition of the building is not material for the purpose of application of Section 21(1)(a).	The Court referred to this decision as an authority consistent with the proposition that Clause (a) can apply irrespective of the building's condition when bona fide requirement is established.
Madan Gopal v. III Addl. District Judge, 1982 Allahabad Rent Cases 226	Held that a very old or dilapidated premises can be released under Section 21(1)(a) without complying with Section 21(1)(b) or Rule 17, where the landlord's need under Clause (a) is found bona fide.	The Court reproduced and relied on the extract to demonstrate that dilapidation does not preclude application of Clause (a) when the landlord's personal requirement is bona fide and genuine.
Hans Raj Sharma v. 1st Additional District Judge, Badaun, 1986(2) Allahabad Rent Cases 171	Analysis of Clauses (a) and (b): if building is required for personal occupation whether in existing form or after demolition and new construction, Clause (a) applies; Clause (b) applies where building is dilapidated and required for demolition and reconstruction but not for landlord's personal occupation.	The Court considered this decision, rejected an overbroad inference that Clause (b) would always exclude Clause (a) when a building is dilapidated, and stated that any impression contrary to the present judgment is over-ruled.

Court's Reasoning and Analysis

The Court began by reproducing Section 21(1) and isolating Clauses (a) and (b). It analyzed the two clauses to identify their respective legal focuses:

Clause (a) requires a bona fide requirement by the landlord for occupation by himself (or specified persons) either in the building's existing form or after demolition and rebuilding. In Clause (a) the physical condition of the building is not a material consideration; bona fide requirement is the condition precedent.
Clause (b) applies where the building is in a dilapidated condition and required by the landlord for demolition and new construction, but not for his own occupation. In Clause (b) the dilapidated condition of the building is a condition precedent, whereas bona fide personal requirement is not a requirement.

From this statutory analysis the Court reasoned that a dilapidated building may fall under either Clause (a) or Clause (b) depending on the facts — specifically, whether the landlord establishes a bona fide requirement for personal occupation after demolition and reconstruction. Thus, the mere allegation that a building is dilapidated and requires demolition does not automatically confine the case to Clause (b) and exclude Clause (a).

The Court rejected the submission that a dilapidated building covered by Clause (b) stands excluded from Clause (a). It explained that the clauses set out two alternative circumstances for release and different considerations govern each: bona fide requirement governs Clause (a) but not Clause (b); dilapidated condition governs Clause (b) but not Clause (a).

The Court supported its interpretive conclusion with precedent. It relied on Supreme Court authority (S. K. Gopalkrishna Chetty) to emphasise that demolition and rebuilding for legitimate purposes is not inherently mala fide. It also cited Calcutta High Court authority (Bhulan Singh) and earlier Allahabad decisions (Champa Kunwar Thist; Madan Gopal) that had held condition of the building is not material for Clause (a) and that dilapidated premises may nonetheless be released under Clause (a) where the landlord's bona fide requirement is established. The Court addressed Hans Raj Sharma and clarified that the decision did not decide the present controversy; any contrary impression in that case is over-ruled.

On the basis of these analyses and authorities the Court answered the referred question in the affirmative and directed that the papers be placed before the learned Single Judge for further proceedings.

Holding and Implications

Core Holding: The need of the landlord under Section 21(1)(a) can be considered even if the landlord had pleaded that the building is in dilapidated condition and requires demolition and new construction.

Implications:

Direct effect on the referred matter: the larger bench answered the referred question in the affirmative and ordered that the case papers be laid before the learned Single Judge for continuation of the proceedings in accordance with this view.
Interpretive consequence: a dilapidated condition of a building does not automatically confine the landlord's remedy to Clause (b); where the landlord establishes a bona fide requirement for personal occupation (even if that requires demolition and reconstruction) Clause (a) may apply.
The Court noted and relied on existing precedents supporting this construction and indicated that any contrary impression drawn from Hans Raj Sharma is over-ruled to the extent it conflicts with the present reasoning.

Show full summary ...

Gur Prasad v. Ist Addl. District Judge, Kanpur

R.K. Sharma, J.-

A learned Single Judge referred the following question for decision by a larger bench "whether the need of the landlord under section 21(1) (a) can be considered even if the landlord had pleaded that the building is in a dilapidated condition and requires demolition?

2. We have heard the learned counsel for the parties.

3. Section 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) provides for the release of building under occupation of a tenant on an application of the landlord. Sub-section (1) of Section 21 of so far as it is relevant for the present controversy is reproduced below:

"21. Proceedings for release of building under occupation of tenant - (1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely -

(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust.

(b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction." Clauses (a) and (b) of Sub-section (1) of Section 21 have laid down two circumstances under which a landlord can recover possession of the building from his tenant. Clause (a) covers a case when the building is bonafide required either in its existing form or after demolition and new construction by the landlord for his own occupation or for occupation of any member of his family. In such a case bona fide requirement of the landlord is a condition precedent for release of the building. But the state and condition of the building is not a relevant consideration for releases of the building in favour of the landlord under Clause (a). A building under tenancy may or may not be in good condition. It may be in dilapidated condition which requires demolition and new construction. But if the landlord bona fide requires such a building after demolition and new construction for his own occupation or for occupation of the members of his family, it can be released under Clause (a). Clause (b) covers a case where the building is in dilapidated condition and is required by the landlord for demolition and new construction, but not for his own occupation. A case of a building of dilapidated condition which needs demolition and new construction, can fall under any of the two Clauses (a) and (b) of Section 21 (1), depending on the fact whether it is required by the landlord for his own occupation after demolition and new construction or for its demolition and new construction only. When such a building is needed by the landlord for his own occupation the case will be covered by Clause (a). But if it is required merely for demolition and re-construction Clause (b) will be applicable to such a case.

4. The submission that as the building in dilapidated condition is covered by Clause (b) it stands excluded from Clause (a), cannot be accepted. The two clauses have merely laid down two circumstances under which a building can be released in favour of the landlord. Different considerations govern the two situations under the two clauses. Bona fide requirement of the building by the landlord is a relevant consideration under Clause (a) but it is not so under Clause (b). Likewise the condition of the building is not at all material under Clause (a) but it is a condition precedent under Clause (b). All the buildings irrespective of their conditions, if bona fide required by the landlord for his own occupation can be covered under Clause (a) but Clause (b) covers only a dilapidated building. Which of the two clauses will apply to a case will depend on the fact/question whether the building is bona fide required by the landlord for his own occupation. If the answer is in the affirmative Clause (a) will apply irrespective of the condition of the building. Clause (b) will be attracted only if a dilapidated building is required by landlord for demolition and new construction and not for his own occupation. If the dilapidated building is bona fide required by the landlord for his own occupation, his claim under Clause (a) cannot be rejected merely on the ground that the building in dilapidated condition is covered by Clause (b), because Clause (b) does not cover such a case. Subject to the regulatory provisions of the Act and the Rules framed thereunder a landlord has all the rights to use his property in any lawful manner and he cannot be denied such a right merely because his building is in a dilapidated condition which needs demolition and re-construction. Supreme Court in S. K. Gopalkrishna Chetty v. Ganeshan and Others, AIR 1975 SC 1750 has laid down that,

"a landlord has every right to demolish his property in order to build a new structure on the site to improve his business or to get better returns on, his investment. Such a stepper-se cannot be characterised as mala fide on the part of the landlord."

5. When the composite application under Clauses (a) and (b) of Section 21 (1) is made by the landlord it is open to him to press his case under any of the two clauses. He may claim eviction of the tenant under Clause (a) if proves bona fide requirement of the building for his personal occupation and also satisfies the other requirements laid down by the relevant Rules. In such a case even if the building is in dilapidated condition which requires demolition and new construction the case will be covered by Clause (a) and not by Clause (b). If the landlord fails to satisfy the requirement of Clause (a) he can still press the application for release of the building under Clause (b). "

6. In Bhulan Singh and others v. Ganendra Kumar Roy Chowdhury, AIR 1950 Calcutta 74, a Division Bench of Calcutta High Court while considering the proviso (f) to Section 11 of West Bengal Premises Rent Control (Temporary provisions) Act, 1948 which provided that where the premises are bona fide required by the landlord either for purposes of building or re-building, or for his own occupation or for the occupation of any person for whose benefit the premises are held it may be released in favour of the landlord, has laid down as under:

"It is suggested that this provision giving the landlord a right to possession, if he established that he required the premises bona fide for rebuilding, could have no application whatsoever unless the state of the premises was such that they required to be re-built. It is to be observed that proviso (f) to Section 11(1) of the Act does not mention premises requiring re-building. What it states is that Sub-Section (1) shall have no application if the landlord requires the premises bona fide for re-building. The state of the premises therefore is not an essential factor in the case."

7. Following the aforementioned decision of Calcutta High Court as well as other cases a learned Single Judge of this Court in Smt. Champa Kunwar Thist v. District Judge, AIR 1976 All 252, has held that state or the condition of the building is not material for the purpose of application of section 21(1) (a). Another learned Single Judge in Madan Gopal v. III Addl. District Judge, 1982 Allahabad Rent Cases, 226, has also held that a very old or dilapidated premises can be released under section 21 (1) (a) without complying with the provision of Section 21 (1) (b) or Rule 17. Relevant extract from the said decision of learned Judge is reproduced below:

"Then question arises for consideration whether the premises could have been released for making new constructions and that too after demolition of the premises in dispute, in absence of non-compliance of Rule 17 of the Rules framed under the 'Act'. It is not in dispute that the plan has already been submitted and the finding has been recorded by the appellate court that the shop is in dilapidated condition. The appellate court relied upon evidence including affidavits and other material on record in arriving at this finding. It believed the affidavits filed on behalf of landlord. Though the shop may not be in such a dilapidated condition which requires immediate attention, but it is an old shop and from its structure it can be said to be dilapidated. The word 'dilapidated' is a relative term and the meaning given to it cannot be static. Under section 21 (1) (a)of the 'Act' a premises can be released in the existing form even for the purpose of new constructions and in the instant case the need of the landlord has been held to be bona fide and genuine and the premises have been released under Section 21(1) of the Act and the need of the landlord having been found to be genuine under Section 21(1)(a) of the Act, as such, there was no question of applicability of section 21(1)(b) of the 'act' as also Rule 17 of the Rules framed under the Act. This ground also has got no force."

8. In Hans Raj Sharma v. 1st Additional District Judge, Badaun, 1986(2) Allahabad Rent Cases 171 a learned Single Judge while analysing Clauses (a) and (b) of Section 21, has held as follows :

"An analysis of the Clauses (a) and (b) clearly leads to the conclusion that where an landlord applies for an order of eviction of a tenant on the ground that the building is in a dilapidated condition and is required for purposes of demolition and new construction the case will be squarely covered by Clause (b). Where, on the other hand, the application of the landlord is founded on the assertion that the building is required for the personal occupation of the landlord whether in its existing form or after demolition and new construction, the case will be covered by clause (a) of section 21(1). A building may be required for personal occupation by the landlord after demolition and new construction even if it may not be in a dilapidated condition. The landlord may simply require the building for his personal occupation in whatever condition it may be, whether in its existing form or after demolition and new construction."

9. It is submitted that the aforesaid extract from the decision of Hans Raj Sharma v. 1st Addl. District Judge (supra) suggests that whenever a building is in-dilapidated condition and is required after demolition and new construction only Clause (b) of Section 21 (1) will be applicable. This submission is devoid of merit. Such an inference cannot be drawn from the aforementioned observation made by learned Judge in the case of Hans Raj Sharma (supra). In the aforesaid extract the learned Judge has analysed the two Clauses (a) and (b) of Section 21 (1). The learned Judge has categorically held that if

"the building is required for personal occupation of the landlord whether in its existing form or after demolition and new construction, the case will be covered by Clause (a) of Section 21 (1)"

. The learned Judge has also not held that the building which is in dilapidated condition and which needs demolition and new construction cannot be released under Clause (a) even if the landlord bona fide requires it for his own occupation after demolition and new constitution. In the case of Hans Raj Sharma issued the landlord's application under Section 21(1) was rejected by the Prescribed Authority and the appeal filed by him before the leaned District Judge was dismissed on the ground that his application inserted by first proviso to Section 21(1) as the period of three years has not elapsed since the date of purchase of the building by the landlord. This Court treated the landlords application as the one falling under Clause (b) and, therefore, held that the first proviso to Section 21(1) will not apply to such a case. The controversy which we are called upon to decide in the instant case was neither raised nor decided by the learned Judge in the case of Hans Raj Sharma (supra). Any observation made or impression given by the learned Judge in that case which is contrary to what is contained in this judgment stands over-ruled.

10. Our answer to the question referred to is as under:

11. The need of the landlord under section 21(1) (a) can be considered even if the landlord had pleaded that the building is in dilapidated condition and requires demolition and new construction.

12. Lay the papers of this case before the learned Single Judge.

Affirmative answer.

Gur Prasad v. Ist Addl. District Judge, Kanpur

Judgment Summary — R.K. Sharma, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gur Prasad v. Ist Addl. District Judge, Kanpur

Comments