JUDGMENT Yatindra Singh, J.
1. This writ petition raises questions : Whether a landlord is required to allege and prove bona fide requirement in an application under Section 21 (8) of the U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, 1972 (the Act) for enhancement of the rent ? Is Section 21 (8), a proviso to Section 21 (1) (a) of the Act ? This is how these questions arise.
FACTS
2. The Punjab National Bank (the Bank) was a tenant of a portion of Building No. 7, Darshani Gate, Dehradun (the premises) prior to 9.2.1968 at the rate of Rs. 400 per month. Sri Tej Prakash and Sri Purshottam Das (the contesting respondents) are the landlords. A lease deed was executed on 9.2.1968 between the parties and the rent was enhanced to Rs. 530 per month. This lease was for a period of 10 years, which could be renewed for period of another 10 years. There is no mention if the rent could be enhanced or not.
3. The contesting respondent filed an application on 1.8.1985 for enhancement of rent under Section 21 (8) of the Act. This application was allowed by respondent No. 1 by his order dated 25.6.1987 and the rent was enhanced to Rs. 3.998 per month. Both sides filed appeals that were dismissed but there was some calculation mistake, which was corrected by the appellate court. This is not disputed here in the writ petition. After correction the rent was fixed at Rs. 3.878 per month. Hence the present writ petition by the Bank.
Does a landlord have to allege or proof bonafide need in an application under Section 21 (8) of the Act?
4. The Act provides regulation of letting, rent and eviction of tenants from buildings covered by the Act. The landlord can file a suit for eviction of a tenant from a building covered by the Act after terminating his tenancy on the grounds mentioned in Section 20 of the Act. The landlord can also file an application for eviction of a tenant on the grounds mentioned in Section 21 (1) or Section 21 (1A) or resort to summary trial under Chapter IVA of the Act. Section 21 (1) (a) of the Act envisages that a tenant may file an application for eviction of a tenant on the ground of personal need. Section 21 (8) of the Act is a kind of an exception to Section 21 (1) fa) of the Act in the sense that if a premises is let out to the persons mentioned in that sub-section. then no application under Section 21 (1) (a) can be filed. But does it mean that a landlord has to satisfy the conditions mentioned in the Section 21 (1) (a) of the Act.
5. One could have said that a landlord has to allege and prove bona fide need if there was proviso to subsection 21 (1) (a) to the effect :
Provided that the Prescribed Authority may, on being satisfied of the conditions under Section 21 (1) (a) of the Act. instead of ordering for eviction of State Government, local authority, Public Sector Corporation or recognised educational institution may enhance rent by a sum equivalent to one twelfth of ten per cent of the market value of the property.' But there is neither such proviso, nor the language of Section 21 (8) suggests that it should be so read. Section 21 (8) of tbe Act uses the words Nothing in clause (a) of Section 21 shall apply.....' These words are not similar to a proviso but are akin to a 'non obstante (notwithstanding! clause.' and like a 'notwithstanding clause' these words mean that the Section 21 (8) of the Act will have full operation 'inspite of or 'irrespective of the provisions of Section 21 (1) fa) of the Act.
6. The consequences mentioned in Section 21 (8) follow on satisfaction of the conditions mentioned in that sub-section. If the Act is applicable, then a landlord has to satisfy three conditions under Section 21 (8) of the Act. (i) The premise is let out to the persons mentioned in the Section 21 (8) of the Act. (ii) The rent is less than the rent calculated on the basis mentioned in the 1st proviso to that sub-section. (iii) The application is filed after expiration of five years from the date of the last order of enhancement [2nd Proviso). Section 21 (8) mentions Section 21 (1) fa) because application for release is filed under Section 21 (1) (a), but it does not mean that the landlord has to allege or prove that he bonafide requires the premise in an application under Section 21 (8) of the Act.
The valuation of the passage
7. The counsel for the petitioner further argued that while calculating the valuation of the building, the valuation of the common passage could not be taken into account. as there are other tenants who are also using the common passage. It is true that there are other tenants. It is for this reason that the Courts below have merely taken 50% of the valuation of the passage. The entire value of the passage has not been assigned to the Bank. There is no illegality on this account.
Does an agreement bar an application under Section 21 (8) ?
8. Sri Grover counsel for the Bank has submitted that the parties had entered into an agreement on 9.12.1968 by which the rent was enhanced to Rs. 530 per month and as the rent was mutually agreed between the parties, no application under Section 21 (8) was maintainable. This point has been considered and decided in favour of the landlord by three single Judge decisions of this Court in M/s. Tyre Corporation of India v. Krishnalal, 1994 (J) ARC 358. Indian Bank v. VIIth Addl. District Judge. Mazaffarnagar : 1993 (2) ARC 21 and State of U. P. v. District Judge. Dehradun, 1998 (2) ARC 554. I have my reservation for this view, but nothing has been argued or brought to my notice to differ and refer it to a larger bench. I leave the matter here.
CONCLUSION
9. A landlord in an application under Section 21 (81 of the Act does not have to allege or prove bone fide need. In circumstances of the case the inclusion of 50% of valuation of the common passage is correct. The writ petition is dismissed.