JUDGMENT
Rajesh Tandon, J.
1. Heard Mr. Sharad Sharma, learned Counsel for the petitioners and Sri P.C. Maulekhi, learned Counsel for the respondents.
2. By the present writ petition, the petitioners have prayed for a writ, order or direction in the nature of certiorari quashing the orders dated 15.7.2004 & 14.10.2004 passed by respondents No. 2 and 1 respectively.
3. Factual Aspects of the Case:- Briefly stated, the petitioners have filed this petition against the judgment and order dated 14.10.2004 passed by the District Judge in Rent Control and Appeal No. 9 of 2004 under Section 22 of Act No. 13 of 1972 thereby confirming the judgment/order passed by respondent No. 2 in Prescribed Authority Case No. 10 of 1995 Virendra Swaroop Gupta v. Bhu Prakash dated 5.7.2004 by virtue of which the petitioners have been directed to vacate the premises in question, which is in their possession.
4. According to the petitioners, late husband of the respondent No. 3 alleged to have purchased the property by virtue of a registered sale deed dated 13.8.1986. Petitioners are the tenants of the part of residential portion of house No. 61/62.
5. As per release application filed by the respondents, they have contended that in compliance to the provisions of Section 21 of Act No. 13 of 1972 they have sent 6 months notice for vacation of the tenement on 9.4.1992.
6. In the release application filed by the landlord Sri Virendra Swaroop Gupta, it has been stated that he has urgent and bonafide need of the accommodation.
7. After receiving the notices, the petitioners have put their appearance and filed their written objection to the release application on 10.8.1997. In Paragraph 11 of the written statement, it has been submitted by the petitioners that since the tenement has not been demarcated by meets and bounds the application for release is not maintainable. The release was contested on the grounds by the petitioners stating therein that they are in occupation of the building as tenants prior to the purchase by the landlord i.e. since 1986.
8. There is shop No..6 on the ground-floor towards the Bara Bazar (main) and above to it, there is ground floor of building No. 61/62, which opens towards the Bara Bazar (Back,) in which petitioners are tenants.
9. Petitioners have submitted that the second floor of the building in dispute under the ownership of the respondent Nos. 3 to 6 was occupied by another tenant Smt. Vimla Bijalwan, who is still in occupation of the part of the building against whom no release has been sought.
10. Landlord/respondents have submitted that they have bonafide need for residential purposes with regard to the part of the building in which, the petitioners are tenants. It has also been stated that the landlord/respondents No. 3 to 6 have no other alternative house to live in and they have to shift from time to time after taking rental accommodation. At the time of purchase of the house, the landlord/respondents No. 3 to 6 used to live with his family in the house of their maternal uncle late Sri Shivnarayan Garg with him. At present, the respondent Nos. 3 to 6 are living in the house of their brother namely Mr. Dinesh Chandra.
11. The landlord/respondent Nos. 3 to 6 have contended that the petitioner No. 1 occupies a transferable post and is. residing out of Nainital, hence there happens to be no genuine need and so far as the petitioner No. 2 is concerned, it was pleaded that the petitioner No. 2 is Junior Engineer in Electricity Department and he occupies a transferable post. Relevant Para 7 of the release application is quoted below:-
^^;g fd foi{kh uEcj 1 Hkw&izdk’k ftyk iwfrZ
dk;kZy; esa baLisDVj Fkk vkSj bldk VªkaUlQj gksdj ;g vc dbZ c”kksZa ls
uSuhrky ‘kgj ds ckgj gS foi{kh uEcj 2 pUnz izdk’k ts- bZ- fctyh foHkkx esa gS
vkSj bldk in Hkh VªklQjscy gSA**
12. Landlords/applicants have filed affidavit of Smt. Pramod Agarwal paper Nos. 91 Ga/1 to 91 Ga/6, affidavit of Sri Dinesh Chandra Paper Nos. 92 Ga/1 92 Ga/3, affidavit of Saurabh Gupta Paper No. 97 Ga/2 alongwith Sale Deed in support of their application.
13. Petitioners have filed List from 100 Ga to 101 Ga/1, affidavit of Bhu Prakash Kannaujia paper No. 101 Ga/3, affidavit of Sri Chandra Prakash Paper No. 102 Ga, Affidavit of Sri Kuldeep Kannaujia paper No. 103 Ga and affidavit of Sri Rupesh Kumar Kannaujia paper No. 104 Ga etc. in support of their claim.
14. The prescribed authority has framed following points while deciding the application under Section 21 of U.P. Act No. 13 of 1972:-
1- izkFkhZx.k o foi{khx.k ds e/; Hkou Lokeh o
fdjk;snkj dk lEcU/k gksA
2- izkFkhZx.k dks fookfnr lEifr dh rhoz ,oa
ln~Hkkoh vko’;drk gksA
3- rqyukRed n`f”V ls izkFkhZx.k dks ;g Hkh
flð djuk vko’;d gS fd ;fn izLrqr izkFkZuk vLohdkj fd;k tkrk gS rks izkFkhZx.k
dks foi{khx.k ds eqdkcys vf/kd dfBukbZ gksxhA
point No. 1 with regard to the relationship between the tenant and the landlord:-
15. So far as the point No. 1 is concerned, both the Courts below have recorded a finding that there is a relationship of landlord and tenant between the parties.
16. A perusal of the application filed under Section 21 (1) (a) of the Act shows that the building in question was purchased by late Virendra Swaroop Gupta vide sale deed dated 13.8.1986. Out of which in the lowest portion of the building No. 61/62 the petitioner are tenants on month-to-month basis.
17. It has also been admitted by the petitioners in their objection that they are tenants of the accommodation long long before Virendra Swaroop purchased the said accommodation.
18. However, it was admitted that Sri Virendra Swaroop, the husband of the respondent No. 3 purchased the said accommodation on 29.7.1986. Both the paragraphs i.e. of the application as well as of writ petition are quoted below:-
^^;g fd izkFkhx.k Lo- Jh fojsUn Lo:i us
jftLVªh cSukek fnukad 13-8-1986 ftldh jftLVªh cgh uEcj 1 ftYn 314 i`”V 212@214
Øe la[;k 343 ij lc jftLVªkj dk;kZy; uSuhrky esa gqbZ gS ds }kjk nqdku uEcj 6
rFkk mlds mij edku uEcj 61@62 dk ekfyd edku pyk vk
jgk Fkk mDr Hkou esa edku uEcj 61@62 ds lcls uhps dh
eafty esa foi{khx.k izkFkh dh [kjhn ls iwoZ ekg o ekg fdjk;snkj pys vk jgs FksA**
“That Para 1 of the application, as stated, is not admitted and is denied as such. It is only admitted in the Para that vide sale deed dated 29.7.1986 registered in the office of Sub Registrar, Nainital in Book No. 1, Vol. 314, on Pages 212 to 214 at serial No. 246 on 13.8.1986, the applicant purchased the shop No. 6 situated at Mallital, Nainital and the portion of the upper storeys thereof above the said shop No. 6. Rest of the Para is denied.”
19. Relying upon the decision of Brij Nandan Sahai v. IIIrd Additional District Judge and Ors., 1996 All. LJ. 1221 : 1996 (1) ARC 165 in Shankar Lal Khandelwal v. IVth ADJ, Mathura 1998 (2) ARC, Page 506, Allahabad High Court has held that where the relationship of landlord and tenant is admitted, the proceedings under Section 21 (1) is maintainable. The relevant observations of the Allahabad High Court in the case of Shankar Lal Khandelwal (supra) is quoted below:-
“The landlord filed application under Section 21(1) (a) of the Act on 22.1.1994 alleging that he was landlord of the accommodation in question. In Para 3 of the application it was stated that the petitioner is tenant of the said accommodation on monthly rent of Rs. 250 per month. The petitioner himself admitted that respondent No. 3 is landlord and he is tenant of the disputed accommodation on monthly rent of Rs. 250 per month. It was never the case of the petitioner that he is unauthorized occupant of the accommodation in question as there was no allotment order in his favour. In Brij Nandan Sahai Hajela v. Third Additional District Judge and Ors., 1996 AIL L.J. 1221 : 1996 (1) ARC 165, it has been held that if the application under Section 21 (1) (a) of the Act is filed on the allegation that there was no agreement of tenant between him arid the tenant against whom the application under Section 21 (1) (a) is filed, the said application is maintainable under the provisions of the aforesaid Act.”
20. Similar view has been taken by me in Shankari Devi v. District Judge Pauri Garhwal and Ors. reported in 2005 (1) A.R.C. Page 92 after relying upon the judgment of Shankar Lal Khandelwal (supra) as well as in 1996 (1) A.R.C. 165 Brij Nandan Sahai Hajela v. IIIrd Additional Civil Judge Shahjahanpur, 1996 (1) A.R.C. Page 165. Relevant Paragraphs 9 and 10 are quoted below:-
“Similar view has been taken in the case of Brij Nandan Sahai Hajela v. IIIrd Additional District Judge, Sahajahanpur reported in 1996 (1) A.R.C. 165. The observations made in Paras 8 and 9 are to the following effect:
“In Smt. Protima Chatterji and Ors. v. Special Judge, Kanpur and Ors., 1992 (2) A.R.C. 193, it was held that once the tenant admitted the relationship of landlord and tenant he cannot thereafter be pleaded to be unauthorised occupant. The application filed under Section 21 (1) (a) of the Act is maintainable.
21. Therefore, the finding on the relationship as well as maintainability of the application requires no interference under Article 226/227 of the Constitution of India.
Point No. 2 BONAFIDE NEED
22. While deciding the bona-fide need of the landlords, it has come in the evidence that the landlord/respondent Nos. 3 to 6 have no other sufficient accommodation to live-in.
23. In Paragraphs No. 2 as well as 4, it has been stated by the landlord that the premises is required for his occupation as well as for family members. The relevant paragraphs are quoted below:-
^^;g fd mDr Hkou izkFkhZ us viuh vko’;drk gsrq
[kjhnk Fkk vkSj cl [kjhn uksfVl 6 ekg vUrxZr /kkjk 21 m-iz- vf/kfu;ke 13 lu~
1972 fnukad 9-4-1952 foi{khx.k dks ns fn;k gSA
;g fd foi{kx.k dks fdjk;snkjh okys Hkkx dh
izkFkhZ dks viuh jgk;’kh bLrseky gsrq vko’;drk gS izkFkhZ ds ikl viuh jgk;’k
gsrq dksbZ fuf’pr O;oLFkk ugha gS vkSj og le; le; ij vyx vyx edkukr esa jgk gS
oDr [kjhn fookfnr Hkou izkFkhZ vius ekek Lo- Jh f’koukjk;.k xxZ ds eeku esa muds
lkFk jgrk Fkk ekStwnk le; esa izkFkhZ Jh fnus’k pUnz vxzoky tks fd izkFkhZ dh
iRuh ds HkkbZ gS muds edku esa jg jgk gS tks fd vkSj mls vius rFkk vius ifjokj
dh jgkb’k gsrq fu/kkZfjr jgkb’kh L;V dh vR;Ur vko’;drk gS izkFkhZ dh vko’;drk
lnHkkouk iw.kZ gSA**
24. In Paragraph 3 of the affidavit of Sri Dinesh Chandra, it has been stated that the premises in dispute is in the share of Sri Virendra Swaroop. Relevant paragraph is quoted below;
^^;g fd ‘kiFkdÙkkZ us nqdku ua- 5 izkFkhZ us
nqdku ua- 6 rFkk ‘kiFkdÙkkZ ds cM+s HkkbZ us nqdku u-a 4 [kjhns rFkk buds mij
ds Hkkx [kjhns Åij ugha Fkh vkSj vkil esa >xM+s dh vk’kadk Fkh vkSj i{kdkj
utnhdh fj’rsnkj gSaA vr% ge yksxksa ds chp vkilh jtkeUnh ls ikfjokfjd lSVyesaUV
gks x;k vkSj fookfn lSV rFkk Jh fxjh’kpUnz dh fdjk;snkjh okyh nqdku o lhM+h ds
uhps dk Hkkx rFkk Jherh foeyk fctyok.k dh fdjk;snkjh okyk Hkkx e; nqdku ua- 6
izkFkhZ ohjsUnz Lo:i dks crkSj rugk Hkou Lokeh feyk 61@62 dh nwljh eafty dk ckdh Hkkx o nqdku ua- 5 ‘kiFkdÙkkZ ds rUgk fgLls esa vk;k mDr
Hkkx esa ,d lsSV esa Jh g”kZ eksgu fdjk;s nkj Fks ;g lSV ‘kiFkÙkkZ us viuh
t:jr ds dkj.k fu;qDr djok;k Fkk nwlj Hkkx esa Jherh inek tks’kh fdjk;snkj gSA
nqdku ua- 4 rFkk 61@62 dk og Hkkx tks fd Jh xksfcUn yky dukSft;k o mlds cM+s HkkbZ dh fdjk;snkjh okyk
gS ‘kiFkdrkZ ds cM+s HkkbZ Jh jes’kpUnz ds rUgk fgLls esa vk;k fookfnr lSV dk
rUgk HkouLokeh izkFkhZ gSA**
25. In paragraph 5 of the affidavit, Sri Dinesh Chandra has stated that in his house, Sri Virendra Swaroop is living with his wife and three sons, due to which both of them Dinesh Chandra as well as the landlord are facing problem. Paragraph 5 of the affidavit is quoted below: –
^^;g fd ohjsUnz Lo:i ds ifjokj esa og mldh iRuh
o rhu iq= gSa] tks fd ‘kiFkdrkZ ds edku esa jg jgs gSa ftlls ‘kiFkdrkZ dks rFkk
izkFkhZ dks nksuksa dks ijs’kkuh gks jgh gS vkSj ‘kiFkdrkZ vc T;knk le; rd
izkFkhZ dks fjgk;’k dh vuqefr nsus esa vleFkZ gS] izkFkhZ dh fjgk;’kh gsrq mldh
vko’;drk lSV ckor ln~Hkkoukiw.kZ gSA**
26. Mr. Subodh Kumar has stated in Paragraph 3 of his affidavit that applicant is brother-in-law of Mr. Dinesh Chandra and living in his house as a licensee, although Sri Dinesh Chandra has many time asked him to live elsewhere. Relevant paragraph is quoted below:-
^^;g fd izkFkhZ ,oa mldk ifjokj Jh fnus’k pUnz
vxzoky tks izkFkhZ ds lkys gSa ds edku esa crkSj ykblsUlh jg jgk gS tc fd Jh
fnus’k pUnz vxzoky mijksDr izkFkhZ ls dbZ ckj viuk vyx vkokl dh O;oLFkk djus
gsrq dg pqdk gS ysfdu izkFkhZ vHkh rd vyx vkokl dh O;oLFkk ugha dj ik;k gS
D;ksafd izkFkhZ ds ikl fookfnr edku ds vykok vU; dksbZ vkokl ugha gSA**
27. Smt. Pramod Agarwal, widow of late Sri Virendra Swaroop in his affidavit has denied Para No. 1 of the additional written statement. Relevant Paragraph 3 is quoted below:-
^^;g fd vfrfjDr tokonkos ds in la[;k 1 esa fd;k
x;k dFku drbZ xyr o >wB gS bl lacU/k esa iwoZ esa Hkh ‘kiFkdrkZ ds ifr Lo- Jh
fojsUnz Lo:i o ‘kiFkdrkZ ds HkkbZ Jh fnus’k pUnz }kjk vius iwoZ ‘kiFki=ksa
fnukad 23-11-1998 ds fLFkfr Li”V dj nh xbZ gS ‘keFkdrkZ mu dFkuksa dk
vuqeksnu djrh gSA nqckjk dFku djus dh vko’;drk ugha gSA foi{khx.k csotg my>ko
mRiUu djus ds fy;s >wBk dFku dj jgk gSA**
28. A perusal of the affidavit of Sri Dinesh Chandra shows that he is owner of the second storey of the house No. 61/62, which is just above the premises in dispute. It has also been alleged in the affidavit that Sri Virendra Swaroop and his elder brother purchased shop No. 6 and 4 respectively and the portion above to it. Therefore, between the family member, a family partition took place and the portion of the premises in dispute, shop under the tenancy of Sri Girish Chandra, place beneath the staircase, portion under the tenancy of Mrs. Vimal Bijalwan along with shop No. 6 came in the share of Mr. Virendra Swaroop as a sole owner. The remaining part of the second storey of 61/62 and shop No. 5 came in the share of Sri Dinesh Chandra. Shop No. 4 and the portion of 61/62, which is under the tenancy of Sri Govind Lal Kannaujia and his brother came in the share of Mr. Ramesh Chandra. Sri Virendra Swaroop is the sole owner of the premises in dispute.
29. Both the Courts below have come to the conclusion that since the petitioners have their own residential accommodation at Bhawali and Ramnagar, where they can live with their children and if they want to live at Nainital, they can take another accommodation at Nainital. In these circumstances, respondents No. 3 and 4/landlords who are living in the house of his elder brother as licensee, their need is bonafide. The finding of the appellate Court is quoted below:-
^^bu ifjfFkfr;ksa esa foi{kh ds ikl Hkokyh o
jkeuxj esa vkokl miyC/k gS tgka ij fd og vius cPpksa dks LFkkukUrfjr djk ldrs
gSaA ;fn og uSuhrky es jguk pkgrs gSa rks uSuhrky esa gh nwljk vkokl ys ldrs
gSaA bu ifjfLFkfr;ksa esa ykbZlsalh ds :i esa jg jgs gSa] mudh vko’;drk lnHkkoh
o rhoz gS vkSj rqyukRed d”V o ifjfLFkfr;ksa esa izkFkZuki= Lohdkj gksus dh
n’kk es vihykFkhZx.k dks dksbZ ijs’kkuh ugha gksxh rFkk os vius vius edkuksa esa
jg ldrs gSa vkSj Hkou Lokeh dks mlds edku esa jgus ds vf/kdkj ls oafpr ugha fd;k
tk ldrk gSA
30. Since there is no sufficient alternative accommodation with the landlord/respondents, therefore, I find no infirmity in the order passed by the Courts below treating the need of the landlord to be bona-fide.
31. In Mrs. Bega Begum and Ors. v. Abdul Ahad Khan (dead) by L.R.s and Ors., AIR SC 1979 Page 272 : 1986 SCFBRC 346, it has been held as under:-
Paragraph 13.-“Moreover, Section 11(1) (h) of the Act uses the words reasonable requirement which undoubtedly postulate that there must be an element of need as opposed to a mere desire of wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire as the High Court has done in this case. It seems to us that the connotation of the term ‘need’ or ‘requirement’ should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act, which affords the facility of eviction of the tenant to the landlord on certain specified grounds, This appears to be the general scheme of all the Rent Control Acts, prevalent in other States in the country. This Court has considered the import of the word ‘requirement and pointed out that it merely connotes that there should be an element of need.”
Paragraph 19. In this connection our attention drawn to the evidence led by the defendants that the main source of their income is the hotel business carried on by them in the premises and if they are thrown “out they are not likely to get any alternative accommodation. The High Court has accepted the case of the defendants on this point, but does not appear to have considered the natural consequences which flow from a comparative assessment of the advantages and disadvantages of a landlord and the tenant if a decree for eviction follows. It is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed and was fully in contemplation of the legislature when Section 11 (1) (h) of the Act was introduced in the Act. This by itself would not be valid ground for refusing the plaintiffs decree for eviction.”
Paragraph 26.-“Thus, on a careful comparison and assessment of the relative advantages and disadvantages of the landlord and the tenant it seems to us that the scale is tilted in favour of the plaintiff. The inconvenience, loss and trouble resulting from denial of a decree for eviction in favour of the plaintiffs far outweigh the prejudice or the inconvenience which will be caused to the defendants. The High Court has unfortunately not weighed the evidence from that point of view.”
Paragraph 28- For the reason given above, the appeal is allowed. The judgment and decree of the High Court are set aside, and a decree for ejectment of the defendants from the house in dispute in hereby passed against the defendants. In the peculiar circumstances of this case, there will be no order as to costs.”
32. In Joginder Pal v. Naval Kishore Behal, 2002 SCFBRC 388, the Apex Court after relying upon the judgment of Mst. Bega Begum on Page No. 392 and Shiv Serup v. Dr. Mahesh Chandra Gupta, 1999 SCFBRC 330 occupation of the landlord shall include anything dependents. It has been held as under:-
Paragraph 15.- “Section 13 (10) (g) of Bombay Rent, Hostel and Lodging House Rates Control Act, 1947 entitles a landlord to recover possession of any premises on the Court being satisfied that “the premises are reasonably and bonafide required by the landlords for occupation by himself or by any person for whose benefit the premises are held,”
33. In Nandlal Goverdhandas and Co. and Ors. v. Smt. Samratbai Lilachand Shah, AIR 1981 Bom. 1, the High Court construed the import of words “by himself” and held that “for occupation by himself do not restrict the proposed occupation to the occupation of landlord alone but may include the occupation by member of his family. The requirement of the landlord for occupation by the dependent of the landlord may be the requirement by the landlord. In a given case the landlord may be dependent upon a person and it may be the necessity of the landlord that such other person should occupy the premises. It emotionally the landlord feels that a relation of his such as daughter or son-in-law should stay with him, it can be regarded as the requirement by the landlord of the premises ‘for occupation by himself. This is as regards residential premises. In case of non-residential premises it the landlord’s interests are shown to be linked with the occupation of those premises by some one for whom he is seeking the possession of the suit premises it can be said that the requirement of the landlord for occupation by himself is established. The High Court also held accommodation to a particular person then the requirement by the landlord for occupation of that person may squarely fall under Section 13 (1) (g). Having taken into consideration the several precedents from different High Courts the learned Judge held that the determinative test underlying the several propositions propounded by the High Courts is the basis fact that the requirement is by the landlord and that there must be a nexus between the interests of the landlord and the one who would physically occupy the premises so as to tantamount to occupation of the premises “by himself”, i.e. the landlord. In Institute of Radio Technology and Ors. v. Pandurang, AIR 1946 Bom. 212. Section 11 of Bombay Rent Restriction Act, 1939 was dealt with by the Division Bench and the word “his own occupation” were held to include occupation by all persons who are dependent on the landlord.”
Paragraph 22.- “In J.L Mehta v. Smt. Hira Devi, 1970 DLT 484 it was held that assigning a restricted meaning to the word “himself” would lead to anamalous and unreasonable results. The requirement of the sons of the landlady who were married and earning for themselves was held to be included within the requirement of ‘himself for the landlady.”
Paragraph 32.- “We have to give colour and content to the expression and provide the skin of living thought to the skeleton of the words which the legislature has not itself chosen to define. The Indian Society, its customs and requirements and the context where the provision is sent in the legislation are the guides the words ‘for his own use’ in Section 13 (3) (a) (ii) of the Act.”
34. In the case of Mrs. Meenal Eknath Kshirasagar v. Traders and Agencies, 1996 SCFBRC 477, the Apex Court after relying upon the judgment in Pranava Devi v. T.V. Krishnan, it has been held by the Apex Court that the landlord is the best Judge of his residential requirement. The observation are quoted below:-
“In Paranava Devi v. T.V. Krishnan to which our attention has been drawn by the learned Counsel for the appellant, this Court has pointed out the correct test which has to be applied in finding out whether the requirement of the landlord is bonafide or not. It has held that:-
“The landlord is the best Judge of his residential requirement. He has a complete freedom in the matter. It is no concern the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. There is no law which deprives the landlord of the beneficial enjoyment of his property.”
35. It is further held that what is to be considered is not merely the availability of alternative accommodation but also whether that landlord has a legal right to such accommodation.
36. The following decisions of the Bombay and Calcutta High Courts relied upon by the learned Counsel for the appellant are also helpful in deciding the question of bonafide requirement of the landlord. In Dishaw Billimoria v. Rustam Ji Master, the Bombay High Court has held that:
“Ordinarily speaking, an owner of premises, if he says he wishes to use them for his own purposes, is entitled to do so. What the Rent Act endeavours to provide for is the case of a landlord who evicts the existing tenants in order that he may let them to another tenant at a higher rent, or exact a higher rent from the tenant or a threat of eviction. It seems to me that the question in that case whether the plaintiff was reasonably dissatisfied with the premises which he rented in Giraum is irrelevant because in any event premises he was not bound to continue to rented premises with all the uncertainties of that tenure”.
37. The Calcutta High Court in Basant Lal Saha v. P.C. Chakravarty has observed as under:-
“Where a landlord seeks to eject a tenant on the ground of bonafide requirement within the meaning of Proviso (f) of Section 11 (1) of the Rent Control Act, 1948, he has to satisfy three tests:
(i) That he “requires” the premises;
(ii) That such requirement is for his “own occupation”; and
(iii) That his requirement is “bona fide”.
The word “require” means more than mere wish or convenience or fancy of the landlord. The landlord must show some need or necessity.
But it does not mean an absolute need or an absolute requirement in the sense that the landlord will not have any accommodation of any description and that he must actually be in street before he can demand his own house for his own occupation.”
38. The High Court has also observed that while considering the question of bonafide requirement the nature and character of landlord’s temporary accommodation at time when he is asking for a decree for possession, the insecurity or otherwise of the ensure that he might be holding at the time, the fact that he himself is under a notice to it, the scope, size and character of his requirement are all relevant factors that the Court has to consider.
39. In Nirmala Tandon v. Xth, ADJ, Kanpur Nagar, 1996 (2) ARC 409 it has been held that for a comfortable living of a person the bedroom alone does not constitute the requirement of a person. Law no where requires to mould the relief of the landlord in order to accommodate the tenant. The observations are quoted below:-
“It is elementary that for a comfortably living of a person like that of the landlord who enjoyed a good status when he was in employment and has a good social circle, the meager accommodation of a room of two cannot be considered sufficient by any standards for a comfortable living of person of that status. The bedroom by itself does not constitute the requirement of a person or the family. Some other accommodation is also needed for various other purposes. The accommodation must be commensurate to the position of a person that he enjoys in the society. The necessity of having a drawing room and dining room cannot be overlooked. A drawing room serves as a common room for the family members. The guests room is intended to preserve the privacy of the family members as against the outsiders staying with the family. The fact that the daughters have been married, is of not much importance, and they do not cease to be the family members.”
“On the contrary, Section 21 while protecting malafide eviction of a sitting tenant contemplates a provision for the benefit of the landlord also on the statutory requirement being made out in a given case. The bonafide need and the comparative hardship, when established, the landlord is entitled to the eviction of a sitting tenant and release of the accommodation under this tenancy. It is worth mentioning that the petitioners are living in the disputed accommodation at the rent of Rs. (sic) per month, while the landlord is made to pay a rent of Rs. 1400 per month and above that he is being deprived to live in his own house with his family at a place where he desires to settle, namely Kanpur after his retirement from service.”
40. In view of the above, I find no infirmity in the orders passed by the Courts below while deciding the application under Section 21 (1) (a) of the Act.
Point No. 3 Comparative Hardships:-
41. So far as the comparative hardship is concerned, it has come on the record that the petitioners/tenants have their own residential accommodation available with them at Ramnagar and Bhawali. This said fact has also come in Paragraph 12 of the order of the Appellate Court, which is quoted below:-
^^vihykFkhZ ds fo}ku vf/koDrk dk eq[; rdZ ;g
Fkk fd mlds ikl uSuhrky esa dksbZ vkokl ugha gS tcfd lkSjHk xqIrk us vius ‘kiFki=
97x esa dgk gS fd pUnzidk’k us Hkokyh esa 101 oxZehVj IykWV esa viuk edku fufeZr
dj fy;k gS tks iw.kZ gks pqdk gS] ftlds lanHkZ esa }kjk QksVksxzkQl dkxt la[;k 97x@12
o 97x@13 nkf[ky fd;s x;s gSaA blds vfrfjDr vihykFkhZ
Hkwizdk’k ds ikl ?kkle.Mh] pksjikuh jksM flfoy ykbZUl jkeuxj esa viuk edku gS
tks fd mldh iRuh iq”ik ds uke gS vkSj foi{kh Hkwizdk’k dk fjVk;esZaV ekpZ
2005 esa gksu okyk gSA foi{kh Hkwizdk’k dh iRuh ds edku dk vflLesUV dkxt l[;k 97@11 nkf[ky fd;k x;k gSA**
42. The landlord has stated in his release application that he has no other sufficient residential accommodation to live and he has to change the rental accommodation time to time. Relevant Paragraph 4 of the release application is quoted below:-
^^;g fd foi{kh dh fdjk;snkjh okys Hkkx dh
izkFkhZ dksd viuh jgk;’kh bLrseky gsrq vko’;rk gS izkFkhZx.k ds ikl viuh jgk;’k
gsrq dksbZ fuf’pr O;oLFkk ugha gSA vkSj og l;e le; ij vyx vyx edkukr esa jgk gS
oDr [kjhn fookfnr Hkou izkFkhx.k ds fojsUnz :i:i e; ifjokj vius ekek lo-
f’koukjk;.k xxZ ds edku esa muds lkFk jgrk Fkk ekStwnk le; esa izkFkhZx.k Jh
fnus’k pUnz vxzoky tks fd izkFkhZ dh iRuh ds HkkbZ gS muds edku esa jg jgk gS
tks fd vkSj mls vius rFkk vius ifjokj dh izkFkhx.k dks jgk;’k gsrq fu/kkZfjr
Li”V dh vR;Ur vko’;drk gS izkFkhZx.k dh vko’;drk ln~Hkkoukiw.kZ gSA**
43. The appellate Court has recorded this finding that the landlord has no other accommodation except the premises in question. The relevant portion of the paragraph is quoted herein below:-
^^izkFkhZx.k ds fo}ku vf/koDrk us nkSjku cgl ;g
Hkh rdZ fn;k fd foi{khx.k }kjk Hkh viuh lk{; esa dgha ;g ugha dgk x;k gS fd
izkFkhZx.k dh uSuhrky esa iz’uxr lEifr ds vykok vkSj lEifr gS vkSj vius vki
fdjk;snkjh ds edku esa jg jgs gks rFkk mudh vko’;drk rhoz ,oa ln~Hkkoh gS rFkk
foi{khx.k dh rqyuk esa vR;Ur dfBukbZ gSA**
44. In Nirmala Tandon v. Xth, ADJ, Kanpur Nagar, 1997 (29) ALR 12 (Sum.) : 1996 (2) ARC 409 it has been stated as under:-
“If on considering of comparative hardship it is found by the concerned authority that the comparative hardship of the landlord would be more if the application for release were to be rejected as compared to the hardship of the tenant if the application is granted, the release of the accommodation sought for cannot be validly refused. In Suraj Prasad Sharma v. IInd Additional District Judge, Mirzapur and Ors., 1983 (1) ARC 427, this Court has held as under:-
“It is common place fact that invariable when an application under Section 21 of Act is allowed, the tenant has to quit and this involves discomfort but if this alone was not sufficient to non-suit the landlord, no application for release could ever be allowed. Judging comparative hardships is a matter of deeper import and it would be elapsed order when dismisses a landlord’s application for release merely with the plaintitudinous observation that the tenant would be “thrown on the street”. The physical dispossession of tenant is the necessary concomitant of every release application of the landlord when is allowed. However, well found that the application may by, an element of inconvenience or discomfort is inherent in the very process of vacating an accommodation.”
45. Bharat Kumar Gupta v. VIIth ADJ, and Sessions Judge, Aligarh, 1997 (2) ARC 259, it has been held as under:-
“Rajendra Kumar Gupta v. Gupta Krishan and Ors., AIR 1995 Alld. 82 : 1994 (2) ARC 11. It has been held by Sudhir Narain, J. and I occur with the view taken therein that “one of the principles for considering comparative hardships of the parties is to find out as to whether the tenant had made a sincere effort to find out alternative accommodation and had placed material before the authorities to come to their conclusions that he made such an efforts. “The fact that earlier applications for release met the fate of rejection some 10 years ago, could not be projected backward to operate as an obstacle in the way of the release application being allowed as with the passage of time, the situation has undergone considerable change. Indubitably, Landlord Sajai Gupta did his M.A. after rejection of the earlier application and his failure to secure employment for himself, lends cogency to his moving the present application.”
46. In the case of Bhagwan Das v. Smt. Jiley Kaur and Ors., 1991 SCFBRC 182, after relying upon the judgment of Apex Court in Mst. Bega Begum v. Abdul Ahad Khan, 1979 SCC 273, has held relative advantage or disadvantage has to be proved by the tenant by leading evidence and the entire onus cannot be thrown on the plaintiffs. The observations are quoted below:-
“In Smt. Bega Begum v. Abdul Ahad Khan, 1979 (1) SCC 273 : 1986 SCFBRC 346 (SC), it was held that in deciding the extent of the hardship that may be caused to one party or the other, in case a decree for eviction is passed or is refused, each party has to prove its relative advantages and disadvantages and the entire onus cannot be thrown on the plaintiffs to prove that lesser disadvantages will be suffered by the defendants and that they were remediable,”
47. In view of the above, I find no infirmity in the order passed by the Courts below while deciding the comparative hardship of the parties in favour of the landlord.
48. Thus, both the Courts below have rightly recorded the concurrent findings of fact with regard to bonafide need in favour of the landlord respondent and the said findings require no interference under Article 226 of the Constitution of India.
Conclusion:-
49. In view of the findings of bonafide need as well as comparative hardship recorded by both the Courts below in favour of the landlord, writ petition lacks merit and deserves to be dismissed.
50. It is a case where the tenants have their own accommodation at different places where the landlord/respondent Nos. 3 to 6 are residing as a licensee in another house which does not belong to them.
51. The landlords have fully proved that they require the premises for themselves, as they have no other alternative residential accommodation to live in.
Point No. 4 Interference under Article 226/227 of the Constitution of India:-
52. In Nirmala Tandon v. Xth, ADJ, Kanpur Nagar, 1996 (2) ARC 409 it has been stated as under:-
“The writ petition of this Court under Articles 226 and 227 of the Constitution of India in such matters is of supervisory nature only and it does not sit as a Court of Appeal when called upon the Judge, the finding of the competent authorities, viz., bonafide need of the landlord and comparative hardship of the parties. The Court would not embark upon reappraisal of the evidence or substitute its own findings of fact in place of the findings reached by the fact finding authorities. It is clearly outside the Court and ambit of the judicial review when this Court exercise its powers under Article 226 of the Constitution of India.”
53. In view of the judgment of the Apex Court reported in 2004 A.R.C. (1) 613, Ranjeet Singh v. Ravi Prakash, the jurisdiction of the High Court under Article 226 is limited to the extent that the finding of fact recorded by the Court below cannot be interfered. The two Courts below have recorded concurrent findings and High Court cannot act like an appellate Court under Article 226/227 of the Constitution of India.
54. In Surya Dev Rai v. Ram Chander SCC 203 Vol-6 675 : 2003 (2) ARC 385, the Apex Court has held as under:-
“Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.”
“Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of facts or of law unless the following requirement are satisfied: (i) The error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.”
“A patent error is an error which is self-evidence i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view, the error cannot be called gross or patent.”
“The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or correction is yet capable of being corrected at the conclusion of the proceedings is an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and or early disposal of the suit of proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that every moment, may become incapable of correction at a letter stage and refused to intervene would result in stravesty of justice or where such refusal itself would result in prolonging of the Us.”
“The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a Court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.”
55. Relying upon the Judgment of Surya Dev Rai v. Ram Chandra, 2003 (6) SCC 675 : 2003 (2) ARC 385, the Apex Court in Ranjeet Singh v. Ravi Prakash, 2004 (3) SCC 682 : 2004 (1) ARC 613, has held as under:-
“As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution of India also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a Court of appeal.”
56. In the case of India Pipe Fitting Co. v. Fakruddin M.A. Baker and Anr. reported in 1978 A.I.R. (S.C.) Page 45 : 1978 ARC 224, the Apex Court has held as under:-
“The limitation of the High Court while exercising power under Article 227 of the Constitution is well settled. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset conclusions of facts however, erroneous those may be. It is well settled and perhaps too late in the day to refer to the decisions of the Constitution Bench of this Court in Waryam Singh v. Amarnath, 1954 SCR 565 : (AIR 1954 SC 215) where the principles have been clearly laid down as follows:- (at P. 217 of AIR).
“This power of superintendence conferred by Article 227 is. As pointed out by Harris C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (SB) to be exercised most sparingly and only in appropriate cases in order to keep to Subordinate Courts within the boundary of their authority and not for correcting mere erros”.
57. In view of the above, I find no infirmity in the orders passed by the Courts below while exercising the jurisdiction under Article 226/227 of the Constitution of India.
58. Alternatively, learned Counsel for the petitioner has prayed that sufficient time may be allowed in order to search out the accommodation.
59. I have considered the request of the petitioners and in view of the fact, the petitioners are granted time up to 30th of June, 2006 to vacate the premises provided an undertaking is given in the following terms by the petitioner:-
(i) to vacate the premises by 30th of June, 2006.
(ii) the undertaking shall be furnished by 15th of March, 2005
(iii) in case of default the decree for eviction shall be executed forthwith.
60. Writ Petition is dismissed. No order as to costs.