Satish Chandra, C.J:— Finding a conflict of opinion between the learned single Judges of this Court, another learned single Judge has referred this writ petition to a Division Bench.

2. The petitioner is the landlady of the accommodation in dispute which is situate on the first floor of the building in Deharadun. The landlady applied for permission to sue for the ejectment of the tenant under the Rent Control Act of 1947. These proceedings were treated to be for release under Section 21 of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The tenant-respondent contested the proceedings. The Prescribed Authority held that the heed of the landlady was genuine. On application for release was allowed. On appeal, however, that order was set aside and the matter was sent back for decision afresh. After remand, the Prescribed Authority held that the need of the landlady for the accommodation in dispute was not bona fide and that comparatively, hardship to the tenant would be much greater if he is ordered to be evicted. On these findings, the release application was dismissed. Aggrieved, the landlady went up to appeal.

3. In appeal, it was urged that since the tenant's son had constructed another building in the same town? Explanation (i) of Sec. 21(1) of the Rent Control Act, 1972 debarred the tenant from raising any objection to the release application of the landlady. The learned Judge found that the tenant's son has admittedly constructed the Kothi and that it was vacant on July, 15, 1972 when the Act of 1972 came into force. It was let out to tenants much later. Consequently Explanation (i) of Section 21(1) of the Act was applicable to the fact of the present case and so no objection on behalf of the tenant to the release application was liable to be heard. The learned Judge went on to consider fee question whether the landlady had established her bona fide need for the accommodation in question. After referring to the evidence led by her as well as by the tenant, the learned Judge came to the conclusion that the accommodation in actual possession of the landlady on the ground floor was sufficient for her needs and that she had failed to establish bona fide need for the accommodation in question, namely, which was in the occupation of the tenant on the first floor of the building. On these findings, the appeal was dismissed.

4. Aggrieved, the landlady came to this Court by way of a writ petition.

5. On behalf of the landlady, reliance was placed upon Smt. Urmila Rani Telang v. III Addl. Dist. J. (1977 (UP) RCC 654). In this case, a learned single Judge held that a bare reading of sub-cl. (i) of the Explanation would show that where a tenant constructs a residential building in the same city, he is precluded from raising the objection relating to the bona fide requirement of the premises by the landlord. The necessary result of this sub-clause is that the need of the landlord about the house will be deemed to be genuine. Consequently, the Court is precluded from examining the question of bona fide requirement of the premises by the landlord and to reject his application in case he finds that the same is not bona fide. As a matter of fact, the landlord is not required in such a case to adduce any evidence in support of his bona fide requirements. The presumption of the need being conclusive, the Court is bound to draw the same in his favour and to proceed on that basis.

6. On behalf of the tenant, reliance was placed upon Kailash Chand v. IIIrd Addl. Dist. Judge (1977 (UP) RCC 211). In this case, another learned single Judge held that the Explanation does not require the raising of presumption that the need of the landlord was genuine or that it was bona fide required by him. The landlord has yet to prove these things to the satisfaction of the Prescribed Authority though the tenant is precluded from raising any objection to the release application. The view taken in Kailash Chand's case has been accepted in Sheri Singh v. IIIrd Addl. Dist. Judge (1978 (UP) RCC 253). This case was decided by the learned Judge who decided Smt. Urmila Rani's case. He held that where the Explanation applies, the tenant is debarred from raising an objection to the landlord's application for release. But it was also observed:

“He could, of course, challenge that the need of respondent No. 3 was not genuine.”

7. In other words, though the tenant could not put forward his own need as an objection to the release application of the landlord yet he was entitled to say that the landlord's need was not genuine.

8. In Gopal v. IVth Addl. Dist. Judge, 1978 (UP) RCC 375, it was held that where the Explanation applies, no presumption as to the bona fide need of the landlord can be raised. The landlord has to establish that his need was genuine to the satisfaction of the Prescribed Authority. In support, reliance was placed upon Kailash Chand's case. In Fahim Khan v. District Judge, Varanasi (1978 (UP) RCC 486) it was held that under the Explanation, the bar is that the tenant would not be entitled to resist the application, of the landlord. It does not do away with the requirement of a landlord of establishing the bona fide requirement of the premises. Again, reliance was placed upon Kailash Chand's case. The same view was taken in Smt. Ganeshi Devi v. IVth Addl. Dist. Judge, Meerut (1978 (UP) RCC 339) In our view, the view taken in Kailash Chand's case is the correct view. Section 21 provides for release of an accommodation in favour of the landlord. It states:

“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) ………

Provided also that the Prescribed. Authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed.

Explanation. — In the case of a residential building—

(i) where the tenant or any member of his family who has normally been residing with him or is wholly dependent on him has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, Municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained:

9. The scheme of S. 21 is that a landlord can apply for release of the accommodation in his favour on fulfilling the statutory conditions. The condition in cl. (a) postulates that the building is bona fide required by the landlord for occupation by himself or any member of his family, etc. to the satisfaction of the Prescribed Authority. Under the proviso, the Prescribed Authority is statutorily bound to compare the likely hardship of the landlord and the tenant except in cases provided for in the Explanation. The First Explanation says that where the tenant or any member of his family has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, “no objection by the tenant against an application under this sub-section shall be entertained.” Thus, in cases where the Explanation applies, the tenant is barred from raising any objection to the landlord's application. In such a case, the Prescribed Authority is exempt from comparing the hardship of the landlord with that of the tenant. The tenant goes out of the picture.

10. Yet the condition precedent to the landlord's entitlement to an order for release is given in sub-s. (1) itself: and the condition is that the building is bona fide required by the landlord; and the same should be established to the satisfaction of the Prescribed Authority. It is true that the tenant is not entitled to contest such an application, but nonetheless the landlord has to establish his case to the satisfaction of the Prescribed Authority. The situation is somewhat akin to a suit filed in the regular Court to which the defendant does not file any defence; but the same cannot be decreed merely for that reason, because the plaintiff has to establish his case by producing evidence prima facie to the satisfaction of the Court in order to get a decree.

11. The decision in Smt. Urmila Rani's case that the necessary result of the application of the Explanation is that the need of the landlord would be deemed genuine and the Court is precluded from examining his bona fide requirement does not lay down the correct law. The further observation in Sher Singh's case that the tenant can still challenge the need of the landlord is also not an accurate statement of law. The tenant is debarred from participating in the proceedings. He cannot raise any objection to landlord's application for release. Obviously he cannot question or lead evidence to challenge the bona fide need of the landlord.

12. We may consider the problem from another view-point. Section 12 provides for vacancy which may be deemed to have taken place. Sub-section (3) says:—

“(3) In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, Municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy.

13. This provision is substantially similar to the Explanation to S. 21(1). In such a situation, the tenant will be deemed to have ceased to occupy the building under his tenancy. Such an accommodation is open to allotment under S. 16. In the case of deemed vacancy, the landlord can apply for release and any other person can also apply for allotment. The release application of the landlord can be granted only if the District Magistrate is satisfied that the building is bona fide required by the landlord for occupation by himself or any member of his family, etc. This provision is identified to cl. (a) of S. 21(1).

14. The position is that where the tenant acquires another building within the meaning of S. 12(3), vacancy is deemed to come into existence and it is open to the landlord to apply for release and it is equally open to anyone else to apply for an allotment. The application for release can be made either under S. 21(1) or under S. 16. Under S. 16, a release application cannot be allowed unless the condition mentioned in it is satisfied. The condition is of bona fide requirement, In proceedings under S. 16, a person who has applied for allotment is entitled to participate and contest the release application. This also shows that the mere application of the Explanation to S. 21(1) does not absolve the landlord from establishing to the satisfaction of the Prescribed Authority his bona fide need or requirement.

15. If it is held that on the application of the Explanation a statutory presumption of the landlord's bona fide need has to be raised. Section 21(1) may come in conflict with S. 16. In an identical situation, under S. 16, the landlord has to establish his bona fide need.

16. Under the scheme of the Act, it is impossible to arrive at the conclusion that because the tenant has acquired another house, the landlord is precluded from proving his bona fide need.

17. We, therefore, hold that on the finding of fact recorded by the Courts below, the Explanation was applicable. The tenant was precluded from raising any objection to the application of the landlord, but nonetheless the latter was bound to establish his bona fide need. A perusal of the judgment of the learned District Judge shows that he has relied upon evidence filed by the tenant.

18. The tenant was barred from raising any objection; which means that he was barred from participating in the proceedings, by way of leading evidence or even countermanding the evidence that may be led by the landlord.

19. In the result, the writ petition succeeds and is allowed. The finding of the learned District Judge that the landlady has failed to establish her bona fide need is set aside and the matter is sent back to the learned Judge for recording a fresh finding on that point after excluding from consideration the evidence that has been led on behalf of the tenant. The applicant will be entitled to costs.

20. Petition allowed.