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Dhirendra Mohan Saksena v. Prescribed Authority, Bareilly And Others
Factual and Procedural Background
The petitioner filed a writ petition seeking quashing of the order dated 22 April 1988 (Annexure 2) passed by respondent No. 2 rejecting the petitioner's application for release of an accommodation in Bareilly under Section 21(1)(a) of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 ("the Act, 1972"). Respondent No. 3 was the tenant of the accommodation. The Prescribed Authority had earlier allowed the petitioner's release application by order dated 5 December 1986 (Annexure 1), holding that the petitioner's need was bona fide. The tenant (respondent No. 3) appealed that order before the V Additional District Judge, Bareilly. Before the appellate court the petitioner relied on Explanation (i) to Section 21, asserting that the tenant had built a house in Bareilly (35/1-41-42, Rampur Garden) and hence could not object to release. The Prescribed Authority and the appellate court reached different conclusions: the Prescribed Authority accepted the petitioner's bona fide need, but the appellate court reversed that decision, finding that the petitioner failed to rebut the tenant's claim that the petitioner possessed several other buildings, and therefore the petitioner's need was not bona fide. The present writ challenges the appellate court's order of 22 April 1988.
Legal Issues Presented
- Whether Explanation (i) to Section 21(1)(a) of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 operates to disentitle a tenant from objecting to a landlord's release application solely because the tenant has built a house in the same town where the disputed accommodation is situate.
- Whether, in resolving a release application under Section 21(1)(a), the landlord (petitioner) is relieved of the initial onus to establish bona fide need when Explanation (i) is attracted, or whether the landlord must in all events discharge the burden of proving bona fide need.
- Whether the appellate authority was correct in holding that the petitioner failed to establish bona fide need because the tenant had alleged (and the appellate authority accepted) that the petitioner owned several alternative accommodations in Bareilly.
- How the burden of proof operates between tenant and landlord in the factual matrix where the tenant alleges the landlord possesses alternative accommodations.
Arguments of the Parties
Petitioner's Arguments
- The petitioner asserted a bona fide need for the accommodation and relied on Explanation (i) to Section 21(1)(a) to contend that the tenant, having built a house in Bareilly (specified as 35/1-41-42, Rampur Garden), could not properly object to the release application.
- Before the appellate court the petitioner reiterated that the tenant had built the house in the same city, invoking Explanation (i) to argue that the tenant was disentitled from objecting.
Tenant's / Respondent No. 2's Arguments
- The tenant contended that the petitioner owned several houses in Bareilly (specific house numbers alleged: 129, 193, 258, 230, 331, 99 and 112-A in Mohalla Karolan, and house No. 193 in Gali Maliyan), and therefore the petitioner's need for the disputed accommodation was not bona fide.
- The appellate authority (respondent No. 2) held that the petitioner failed to produce documentary or cogent evidence to rebut the tenant's allegation; it drew an adverse inference and held the burden lay on the landlord to contradict the tenant's statement, concluding that the petitioner had alternative accommodation available.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jan Mohammad alias Jan v. VII Additional District Judge, Meerut | Holds that where the tenant has built a house in the same town as the disputed accommodation, the tenant becomes disentitled to object to the landlord's release application (common ratio cited). | The court identified this decision as part of a set of authorities sharing a common ratio. However, because there is a conflicting line of authority, the court stated such decisions cannot be relied upon unless the conflict is resolved by a Division or larger Bench. |
| Ravendra Prakash Sharma v. Kamlesh Chandra | Same common ratio: tenant having built a house in the same town disentitles the tenant from objecting to release. | Recognised by the court as part of the group of authorities supporting the Explanation (i) view; treated as conflicting with a contrary authority and therefore not decisive absent larger-Bench resolution. |
| Smt. I.B Paul v. VI Additional District Judge, Meerut | Same common ratio: tenant-built house in the same town leads to tenant's disentitlement to object. | Noted as part of the cluster of decisions favouring the petitioner; the court observed the conflict with other authorities and declined to treat the cluster as conclusively binding without a Division Bench decision. |
| Smt. Shakuntala Sharma v. Appellate Authority, Moradabad | Same common ratio: tenant-built house in same town disentitles tenant from objecting. | Included among the consistent decisions; the court observed the presence of conflicting authority on the point and indicated such conflict must be resolved by a larger Bench before those decisions can be treated as definitively controlling. |
| Sharda Prasad v. Smt. Sampati Devi | Contrary principle: Explanation (i) does not absolve the landlord of the initial burden under Section 21(1)(a) to establish bona fide need; the tenant's possession of another accommodation only tilts the balance in the landlord's favour if the landlord's bona fide need is otherwise proved. | The appellate authority relied on this decision. The court in the present opinion treated it as creating a conflicting line of authority; it considered whether the petitioner could nevertheless succeed even assuming Sharda Prasad's principle, and analysed the burden of proof on the facts, ultimately upholding the Prescribed Authority's finding of bona fide need. |
Court's Reasoning and Analysis
The court proceeded by first identifying a direct conflict in the High Court authorities on the legal effect of Explanation (i) to Section 21(1)(a). One set of decisions held that a tenant who has built a house in the same town is disentitled to object to a landlord's release application; another decision (Sharda Prasad) held that Explanation (i) does not relieve the landlord of the initial burden to prove bona fide need. The court observed that because these views are in conflict, those precedents cannot be treated as decisively binding unless the difference is resolved by a Division or larger Bench.
The court then examined whether the petitioner could succeed even if Sharda Prasad's contrary view were applied (i.e., assuming the landlord must always establish bona fide need). The appellate authority had concluded the petitioner failed to establish bona fide need because the tenant alleged the petitioner owned several houses in Bareilly and the petitioner did not produce documentary evidence to rebut that allegation. The appellate authority drew an adverse inference and held the onus lay on the landlord to disprove the tenant's assertions.
The court analysed the burden of proof and its shifting character: when a party asserts and establishes a fact by reasonable evidence, the onus shifts to the other party to rebut; the onus is not stationary but moves with the course of proof. The key question was whether, on the facts, the tenant had established by reasonable evidence that the alleged houses belonged to the petitioner. The court found that the tenant had failed to adduce even a semblance of evidence to prove ownership by the petitioner of the other accommodations. Because the tenant did not prove the positive fact it alleged, there was nothing requiring the petitioner to undertake a rebuttal burden to prove a negative.
Given the tenant's failure to prove ownership of alternative accommodation, the appellate authority's finding that the petitioner's need was not bona fide was held to be patently erroneous and unsustainable. The court therefore accepted the Prescribed Authority's earlier finding that the petitioner had established a bona fide need. Since the tenant (respondent No. 3) had built his own house in Bareilly, the court held the comparative hardship inquiry (comparing tenant's likely hardship with landlord's hardship) was dispensed with under Explanation (i).
Holding and Implications
Core Ruling: The writ petition was allowed and the impugned order dated 22 April 1988 (Annexure 2) passed by respondent No. 2 was QUASHED. The petition was allowed.
Implications:
- The Prescribed Authority's order dated 5 December 1986 (Annexure 1), which accepted the petitioner's bona fide need, is upheld in place of the appellate order that had reversed it.
- On the facts of this case, because the tenant had built his own house in Bareilly and the tenant failed to prove that the petitioner owned alternative accommodation, the court dispensed with a comparison of hardship between the tenant and the landlord.
- There will be no order as to costs.
- The court noted that conflicting High Court decisions exist on the legal effect of Explanation (i) to Section 21(1)(a) and stated that such conflict can only be finally resolved by a Division Bench or larger Bench; the present decision resolves the matter on the specific facts and burden-of-proof analysis in this case rather than resolving the larger conflict of authority.
Om Prakash, J.:— This petition is filed for quashing the order dated 22nd April, 1988, Annexure 2 to the writ petition passed by the respondent No. 2 rejecting the application of the petitioner for release of the accommodation, situate in Bareilly under Section 21(1)(a) of the U.P Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act, 1972). The respondent No. 3 is the tenant of the said accommodation. The petitioner avered that his need for the accommodation was bona fide. The said application was allowed by the Prescribed Authority by the order dated 5th December, 1986, Annexure 1 to the writ petition accepting the case of the petitioner that his need for the accommodation was bona fide. The respondent No. 3 preferred an appeal before the learned V Additional District Judge, Bareilly against the said order. Before the learned Additional District Judge, the petitioner reiterated that the tenant had built up a house that is 35/1-41-42, Rampur Garden in the same city, namely, Bareilly and, therefore, Explanation (i) to Section 21 of the Act, 1972 is applicable and consequently no objection by the tenant against the petitioner's application could be entertained. Both the Prescribed Authority as well as the appellate court rejected such contention of the petitioner. Whereas the prescribed authority accepted the contention of the petitioner, that he required the accommodation bona fide, the appellate court took the view that the petitioner failed to rebut the case of the tenant that the former had possessed of several buildings, and, therefore, his need was not bona fide. That is why the appellate court reversed the order of the prescribed authority and rejected the release application of the petitioner.
2. Before me, the learned counsel for the petitioner heavily relied on the Explanation (i) to Section 21 of the Act and contended on that basis that the tenant having built up a house in Bareilly itself where the suit accommodation is situate, no objection from him against the release application could be entertained within the meaning of the said Explanation.
3. In support of his contention, the learned counsel for the petitioner relied on Jan Mohammad alias Jan v. VII Additional District Judge, Meerut,1 Ravendra Prakash Sharma v. Kamlesh Chandra,2 Smt. I.B Paul v. VI Additional District Judge, Meerut,3 and Smt. Shakuntala Sharma v. Appellate Authority Moradabad,4 The common ratio of all these authorities is that the tenant having built up a house in the same town where the accommodation release of which is sought, is situate, becomes disentitled to raise any objection against the release application. However, both the prescribed authority and the appellate authority relied on Sharda Prasad v. Smt. Sampati Devi,5 in which learned single Judge took a contrary view that despite the fact that the tenant had built up a house in the same town, the petitioner is under legal obligation under the provisions of main Section 21 of the Act to establish his bona fide need and unless such burden is discharged, the petitioner could not succeed merely by virtue of the fact that the tenant had built up house in the same town. The leaned Judge, taking contrary view observed:
“……the fact that the tenant has been able to acquire another accommodation would not entitle the landlord to obtain release in his favour. The circumstance of the tenant having another accommodation at his disposal would tilt the balance in the landlord's favour only in other things are equal i.e, his need is bona fide. Explanation I, therefore, does not exonerate the landlord from discharging the initial burden which rests on him of establishing that the accommodation is bona fide, required by him in the absence of such condition, the benefit contemplated by the Explanation cannot be vailed of.”
4. While taking the contrary view, the learned single Judge further observed:
“The Explanation only dispenses with the requirement which is embodied in the proviso, namely ‘taking into account likely hardship of the tenant’ as against the likely hardship to the landlord from the refusal of the application. Only this part of the procedure which enjoins a comparison of the respective needs of the landlord and tenant is dispensed with by the Explanation but its effect must be circumscribed within this limit. It cannot be protected further so as to suspend the existence of the preliminary condition enshrined in the substantive part of Section 21(1)(a) which makes a condition of the bona fide requirement of the landlord imperative.”
5. It is, therefore, manifest that in the aforesaid two sets of decisions, the learned Judge of this Court took conflicting views on the Explanation (i) to Section 21 of the Act, 1972. This being so no reliance can be placed on them unless the difference is resolved by a Division or larger Bench.
6. But then the question arises whether the petitioner can succeed even if the reliance is placed on the case of Sharda Prasad (supra) taking a contrary view that despite the circumstance envisaged by the Explanation (i) to Section 21 being in existence, the petitioner is not absolved of his legal obligation to establish the bona fide need to secure release of the accommodation. The ratio of this decision is that despite the tenant having built up a house in the same town, the petitioner has got to establish his bona fide need before securing release of the accommodation. Whereas the prescribed authority took the view that the petitioner had established his bona fide need, the appellate Court reversed the order of prescribed authority and found that the petitioner failed to establish his bona fide need. The question therefore, is whether the appellate authority was right in holding that the petitioner failed to establish his bona fide need in regard to the accommodation in dispute. The contention of the tenant before the respondent No. 2 was the petitioner owned several houses, namely, 129, 193, 258, 230, 331, 99 and 112-A situate in Mohalla Karolan, Bareilly besides the house No. 193 situate in Gali Maliyan, Bareilly. The respondent No. 2 took the view that the petitioner miserably failed to rebut such case of the tenant and that as the petitioner failed to produce the documentary evidence which he could have produced to rebut the aforesaid case of the tenant, an adverse inference could be drawn against the petitioner that he failed to produce the documentary evidence because he owned several aforesaid houses in Bareilly. The respondent No. 2 observed that the burden lay upon the landlord to contradict the statement of the tenant that the former owned several accommodations in Bareilly and that the landlord has not adduced any cogent proof that the aforesaid houses did not pertain to his family and were not available to him. He also observed that the petitioner failed even to show by reliable and cogent evidence that house No. 193, Gali Maliyan, Bareilly and house No. 35.A/4-B, Rampur Garden Bareilly do not belong to him. In the opinion of the respondent No. 2 the burden to prove such a fact was on the landlord which he miserably failed to discharge. Therefore the respondent No. 2 inferred that the petitioner was in possession of the alternative accommodation and therefore his need was not bona fide. In my considered opinion, the view taken by the respondent No. 2 cannot be sustained. The case of the tenant was that the petitioner owned several houses in Bareilly and, therefore, his need was not bona fide. This is well settled law that onus is not stationary and it keeps on moving, like a pendulam of a clock. When a party to the suit asserts some fact and establishes that by reasonable evidence then the burden is shifted to the other party to rebut the same and when that party rebuts such contention by reasonable evidence then again the burden is shifted to the party, who originally asserted a fact. The question for consideration is whether on the facts and circumstances of this case, the tenant successfully established by reasonable evidence that the accommodation named above belonged to the petitioner. Unless some evidence is given by the tenant to establish the averment that the petitioner owned several accommodations, in Bareilly, the burden of proof could not be shifted to the petitioner. The case of the petitioner is that they did not own any other accommodation in Bareilly and, therefore, it was the duty of the tenant to establish by independent evidence that the petitioner owned several accommodations and unless this fact is established by reasonable evidence adduced by the tenant no burden would be shifted to the petitioner to rebut the case of the tenant. Unless something is established, no rebuttal is required. The question is, did the tenant establish the fact that the petitioner owned several accommodations in Bareilly? The answer is clearly no, because not even the symblance of evidence, much less reasonable evidence was adduced by the tenant to prove his averment that the petitioner was the owner of several accommodations. On these facts, it is clear that the petitioner could not be forced to prove negative fact that he was not the owner in possession of any other accommodation. It is not a negative fact but a positive one, which has to be proved. The tenant having asserted that several houses belonged to the petitioner carried the burden to prove that fact and not the petitioner. The tenant having failed to prove his averment that several houses belonged to the petitioner in Bareilly, the finding of the respondent No. 2 that the requirement of the petitioner of the disputed accommodation was not bona fide, is patently erroneous and unsustainable.
7. On these facts, the view taken by the Prescribed Authority that the petitioner successfully established his bona fide need, deserves to be accepted and the same is upheld after reversing the order of the respondent No. 2 in this regard. So the petitioner having established his bona fide need and according to the respondent No. 2 the respondent No. 3 having built up his own house in Bareilly, comparison of hardship between the tenant and the landlord has to be dispensed with.
8. For the above reasons, the writ petition succeeds and is allowed and the impugned order, dated 22nd April, 1988. Annexure 2 to the writ petition passed by the respondent No. 2, is quashed. On the facts and circumstances of the case there will be no order as to costs.
9. Petition Allowed.
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