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Reserved
Civil Misc. Writ Petition No.34048 of 1999
Shri Gandhi Ashram Khadi Bhandar
and another
Versus
XIX Additional District Judge,
Meerut and others
Connected with
Civil Misc. Writ Petition No.34519 of 1999
Ajit Kumar Jain
Versus
XIX Additional District Judge,
Meerut and others
Hon'ble V.K. Shukla, J.
Civil Misc. Writ Petition No.34048 of 1999 has been filed by Shri Gandhi
Ashram Khadi Bhandar, questioning the validity of order dated 16.05.1999
passed by the Prescribed Authority, allowing application moved on behalf of
landlord under Section 21 (1) (a) of U.P. Act No. XIII of 1972 and the order of
its affirmance dated 28.07.1999, in appeal under Section 22 of the said Act.
Civil Misc. Writ Petition No.34519 of 1999 has been filed by the petitioner,
questioning the validity of order dated 16.05.1999 passed by the Prescribed
Authority, allowing application moved on behalf of landlord under Section 21
(1) (a) of U.P. Act No. XIII of 1972 and the order of its affirmance dated
28.07.1999, in appeal under Section 22 of the said Act.
Brief background of the case is that respondent No.3, Anil Kumar Mittal
is the landlord of premises No.125, Sotiganj, Begaum Bridge Road, Meerut. In
one portion of the said building, Shri Gandhi Ashram Khadi Bhandar has been
there as tenant on monthly rent of Rs.260/-. In the same very premises, there
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is shop of Ajit Kumar Jain on monthly rent of Rs.,125/-. Respondent No.3 filed
P.A. Case Nos. 166/92 and 167/92 against Shri Gandhi Ashram Khadi Bhandra
and Ajit Kumar Jain. In both the release application so moved, case of the
landlord has been that he intends to open departmental store after
reconstructing the premises in question; he bona fidely needs the premises in
question , as his other business is too small. Release applications of the
landlord was opposed by both the tenants by filing written statement. Precise
stand taken by the tenants was that the need of the landlord was not at all
bona fide and genuine; he had got extra source of income. Recently, he had
sold his house situated at the first floor portion of the disputed premises, which
was lying vacant; he could have carried on his business on the first floor.
Additional objection was filed contending therein that the landlord has been
carrying on business at Sadar Kabari Bazar; he can carry on business of
departmental store from the said place. After the objections, written statement
and additional objections had been filed, landlord filed his replica and
contended therein that the said portion known as Marwari Bhojanalaya was
vacated after long drawn litigation and by the time it was vacated, it had come
to dilapidated condition, as such in order to avoid any mis-happening, such
dilapidated portion of the building was got down, and the same is not at all
befitting for the requirement. From the side of landlord his affidavit along with
balance sheet, sale deed dated 28.02.1992 and other voluminous documents
were filed. From the side of Gandhi Ashram, affidavit of Kr. Ganga Prasad
Singh, Kalp Nath Rai and R.S. Gupta had been filed. Similarly, in P.A. Case
No.167 of 1992 affidavits on the similar line had been filed.
The Prescribed Authority in both the cases found the need of the
landlord bona fide and genuine one and on comparative hardship finding was
returned against the tenant. Both the tenants preferred separate appeals, both
the appeals have been dismissed reiterating the same view. At this juncture,
present writ petitions in question have been filed.
Pleadings interse parties have been exchanged; thereafter, with the
consent of the parties, present writ petition has been taken up for final hearing
and disposal.
Sri Atul Dayal, Advocate, learned counsel appearing for Shri Gandhi
Ashram Khadi Bhandar, contended with vehemence that in the present case
need of landlord in no way could be termed as bona fide and genuine one and
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further incorrect statement of fact has been mentioned that business was being
run in the name of his wife, whereas various entries showed and established
that the landlord himself had control over the business, and further the landlord
had alternative accommodation to establish himself, as such finding on bona
fide front is perverse, and as far as comparative hardship is concerned,
petitioners would be in more disadvantageous situation, as such release
application ought to have been dismissed, and writ petition deserves to be
allowed.
Sri Anjani Kumar Mishra, Advocate, learned counsel appearing for writ
petitioner, Ajit Kumar Jain, in writ petition No.34519 of 1999, toed the same line
of argument as has been advanced by Sri Atul Dayal and tried to contend that
in the facts of the case need set up by the landlord was not at all bona fide and
genuine and reiterated that on comparative hardship, petitioner was to suffer
more and further as landlord required 2200 square feet and as per provisions
of U.P. Urban Building Planning and Development Act, 1973, the area as was
required was not available, in such a situation and in the facts of the case, writ
petition deserves to be allowed.
Countering the said submissions, Sri Madan Mohan, Advocate,
appearing for the landlord, has contended that both the courts below have
recorded concurrent finding of fact qua bona fide need and comparative
hardship, and this Court, in such a situation, should refuse to interfere with the
findings recorded by the courts below, and further it is the choice of landlord as
to which place would be much more suitable for carrying on business and the
tenants have no role to play in the matter of choice of the landlord as to from
where he should carry on business, in this background, writ petition deserves
to be dismissed.
As much stress has been laid by the tenants on the fact that in fact, the
landlord has chosen wrong place to carry on business; in fact he has been
carrying on business in the name of his wife as well himself and at Sadar
Kabari Bazar; he can carry on business of departmental store, which is
appropriate for the said business of departmental store, and shop in question
is not bona fidly required, the said issues are being adverted to, first on the
parameters settled by Hon’ble Apex Court.
Hon’ble Apex Court in the case of Akhileshwar Kumar and others v.
Mustaqim, AIR 2003 SC 532, took the view that simply because educated
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unemployed son was provisionally assisting his father in family business same
does not mean that he should not start his own independent business, and
choice of accommodation should be left to the needy. Relevant paragraphs 3
and 4 are being extracted below:
“3. In our opinion, the approach adopted by the High Court cannot be
countenanced and has occasioned a failure of justice. Overwhelming
evidence is available to show that the plaintiff No. 1 is sitting idle, without
any adequate commercial activity available to him so as to gainfully
employ him. The plaintiff No. 1 and his father both have deposed to this
fact. Simply because the plaintiff No. 1 is provisionally assisting his father
in their family business, it does not mean that he should never start his
own independent business. What the High Court has overlooked is the
evidence to the effect, relied on by the trial Court too, that the husband of
plaintiff No. 4, i.e. son-in-law of Ram Chandra Sao, was assisting the latter
in his business and there was little left to be done by the three sons.
4. So is the case with the availability of alternative accommodation, as
opined by the High Court. There is a shop in respect of which a suit for
eviction was filed to satisfy the need of plaintiff No. 2. The suit was
compromised and the shop was got vacated. The shop is meant for the
business of plaintiff No. 2. There is yet another shop constructed by the
father of the plaintiffs which is situated over a septic tank but the same is
almost inaccessible inasmuch as there is a deep ditch in front of the shop
and that is why it is lying vacant and utilized. Once it has been proved by a
landlord that the suit accommodation is required bona fide by him for his
own purpose and such satisfaction withstands the test of objective
assessment by the Court of facts then choosing of the accommodation
which would be reasonable to satisfy such requirement has to be left to the
subjective choice of the needy. The Court cannot thrust upon its own
choice on the needy. Of course, the choice has to be exercised reasonably
and not whimsically. The alternative accommodation which have prevailed
with the High Court are either not available to the plaintiff No. 1 or not
suitable in all respects as the suit accommodation is. The approach of the
High Court that an accommodation got vacated to satisfy the need of
plaintiff No. 2, who too is an educated unemployed, should be diverted or
can be considered as relevant alternative accommodation to satisfy the
requirement of plaintiff No. 1 another educated unemployed brother,
cannot be countenanced. So also considering a shop situated over a
septic tank and inaccessible on account of a ditch in front of the shop and
hence lying vacant cannot be considered a suitable alternative to the suit
shop which is situated in a marketing complex, is easily accessible and
has been purchased by the plaintiffs to satisfy the felt need of one of
them.”
Hon’ble Apex Court in the case of Sait Nagjee Purshottam & Co. Ltd.
vs. Vimalbhai Prabhulal and others, 2005(8) SCC 252, has taken the view
that it is prerogative of the landlord to decide for what purpose , he requires the
shop in question, and tenant cannot dictate to landlord and advise him, what
he should do and what he should not. Paragraphs 4, 7 and 8 being relevant
are being quoted below:
“4. First of all we shall take up the question of bona fide need of
the landlords. so far as the partition of the property and the
present premises coming to the share of the landlords are
concerned, there is no dispute that the portion of the building
has come to the share of the landlords and they are the owners
5as a result of the partition of the family properties. But the
question is whether the landlords who are the owners of the
portion of the building have substantiated the allegation with
regard to the bona fide need or not. We have gone through the
findings of the trial Court as well as that of the appellate
authority and the High Court and after closely scrutinizing the
same, we do not think that the finding recorded by appellate
Court and the High Court can be interfered by this Court on the
ground of being perverse or without any basis. The landlords
have led evidence to show that one of their sons who had
requisite qualification for starting a computer institute wants to
establish the same at Calicut and others for extension of their
business. The trial Court as well as the first appellate Court and
the High Court examined the statements of P. Ws. 2 and 3 and
after considering their evidence, the appellate Court reversed
the finding of the trial Court and held that the need of the
respondent-landlords to start business at Calicut, is bona fide
and genuine. It was held that it cannot be said that a person
who is already having business at one place cannot expand his
business at any other place in the country. It is true that the
landlords have their business spreading over Chennai and
Hyderabad and if they wanted to expand their business at
Calicut it cannot be said to be unnatural thereby denying the
eviction of the tenant from the premises in question. It is always
the prerogative of the landlord that if he requires the premises
in question for his bona fide use for expansion of business this
is no ground to say that the landlords are already having their
business at Chennai and Hyderabad therefore, it is not genuine
need. It is not the tenant who can dictate the terms to the
landlords and advise him what he should do and what he
should not. It is always the privilege of the landlord to choose
the nature of the business and the place of business. However,
the trial Court held in favour of tenant appellant. But the
appellate Court as well as the High Court after scrutinizing the
evidence on record, reversed the finding of the trial Court and
held that the need of establishing the business at Calicut by the
landlords cannot be said to be lacking in bona fide.
7. In the case of Pratap Rai Tanwani and Anr. v. Uttam
Chand and Anr. reported in (2004) 8 SCC 490, it was held that
the bona fide requirement of the landlord has to be seen on the
date of the petition and the subsequent events intervening due
to protracted litigation will not be relevant. It was held that the
crucial date is the date of petition. Their Lordships further
observed that the normal rule is that the rights and obligations
of the parties are to be determined on the date of the petition
and that subsequent events can be taken into consideration for
moulding the reliefs provided such events had a material impact
on those rights and obligations. It was further observed by
their Lordships that it is a stark reality that the longer is the life
of the litigation the more would be the number of developments
sprouting up during the long interregnum. Therefore, the Courts
have to take a very pragmatic approach of the matter. It is the
common experience in our country that specially landlord tenant
litigation prolongs for a long period. It is true that neither the
person who has started the litigation can sit idle nor the
development of the events can be stopped by him. Therefore,
the crucial event should be taken as on the date when the suit
for eviction was filed unless the subsequent event materially
changed the ground of relief.
8. In the case of Gaya Prasad v. Pradeep Srivastava
reported in (2001) 2 SCC 604, their Lordships observed that the
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landlord should not be penalized for the slowness of the legal
system and the crucial date for deciding the bona fide of the
requirement of the landlord is the date of his application for
eviction. Their Lordships also observed that the process of
litigation cannot be made the basis denying the landlord relief
while litigation at least reaches the final stages. However, their
Lordships further added that subsequent events may in some
situations be considered to have overshadowed the
genuineness of the landlord’s need but only if they are of such
nature and dimension as to completely eclipse such need and
make it lose significance altogether.
Hon’ble Apex Court in the case of Smt. Sushila v. 2nd Additional
District Judge, Banda and others, 2003 (1) ARC 256 has taken the view
that need for settling married and major son is bona fide need, and he cannot
be compelled to join his father and do work. Relevant paragraph 5 of the said
judgment are being extracted below:
“5. We find that Prem Prakash is a young man who is
unemployed. He is married and has children. There is every
justification for him or for his mother to settle him in life
independently. He cannot be compelled to join his father in his
Goldsmith and money-lending work in his small shop. In our opinion,
he is entitled to start business of his own choice and independently.
The appellate Court took a view, as indicated above, which is
palpably wrong and wholly unacceptable.”
On the parameters as set out by Hon’ble Apex Court, as far as choice of
place is concerned, the tenant has no role to play in the matter, inasmuch as the
landlord is the best judge to choose as to from which place he should carry on
business. In the present case, landlord has chosen the premises in question as the
best place to carry on his business, which is on the main road of Meerut city at
Begum Bridge and has also given reasons for non opening of departmental store at
Kabar Bazar, Meerut. Once this is the factual scenario, then in respect of choice of
place to carry on business from Begum Bridge Road cannot be objected to.
Submission made that the said area will fall short, after map is sanctioned as per
the provisions of U.P. Urban Planning and Town Development Act, 1973, is also
neither here nor there. Construction within the regulated area has to be carried out,
as per the sanctioned plan, and in sanctioned map if area shown for opening of
departmental store has been lessened, same will in no way dilute the choice of
place, once landlord still carries the intention to open departmental store, within the
space available, as per sanctioned map, in this background, tenants cannot be
permitted to derive any benefit for advantage of the said situation.
It is further clearly reflected that the landlord has come up with specific case
that he was running shuttering business at Kabari Bazar, and he intends to
establish a new business. Once such is the need set up by the landlord, and both
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the courts below have accepted the need of the landlord to be bona fide one for
setting up of new business over the disputed premises, then as far as bona fide
need of the landlord is concerned, same is not at all liable to be interfered with. The
question of bona fide need is essentially a question of fact, and this much has come
in evidence that except for shuttering business, petitioner has no other business in
his name and other documents available on record clearly substantiate that the
other business was being carried by the wife of the landlord and the landlord
himself had no independent business in his name. Merely because in some
financial transaction entries have been shown in the name of landlord, bona fide
need set up by the landlord cannot be doubted in the facts of the case.
Now question of comparative hardship is being looked into.
In Mst. Begam Begum & Ors. V. Abdul Ahad Khan (d) by Lrs & Ors.
(1979(1) SCC 273) Hon’ble Apex court had occasion to deal in detail with the
comparative hardship’s aspect as follows:
“Moreover Section 11(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 or 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 as to make it impossible or
extremely difficult for one 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 us to be the general scheme of all the Rent
Control Acts, prevalent in other State 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.
In this connection our attention was 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 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 the
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, but such an event would happen whenever 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 for eviction.
Thus, on careful comparison and assessment of the relative
advantage and disadvantages of the landlord and the tenant it seems to
us that the scale is titled in favour of the plaintiff. The inconvenience,
loss and trouble resulting from denial of a decree for eviction in favour
of the plaintiffs far outweight the eviction from that point of view.”
Judgment quoted above has been followed by Hon’ble Apex Court in
the case of Badrinarayan Chunnilal Bhutda v. Govind Ram Munada,
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2003 (2) SCC 320, and apart from the same in paragraph 13 mentioned as
follows:
“13. In Piper v. Harvey, (1979) 1 SCC 273 the issue
as to comparative hardship arose for the consideration of the
Court of Appeal under the Rent Act, 1957. Lord Dennining
opined: (All ER p. 457E-F)
“When I look at all the evidence in this case and see
the strong case of hardship which the landlord put forward,
and when I see that the tenant did not give any evidence of
any attempts made by him to find other accommodation, to
look for another house, either to buy or to rent, it seems to
me that there is only one reasonable conclusion to be arrived
at, and that is that the tenant did not prove (and burden is on
him to prove) the case of greater hardship.”
Hodson, L.J. opined: (All ER p. 458)
“The tenant has not been able to say anything more
than the minimum which every tenant can say, namely, that
he has in fact been in occupation of the bungalow, and that
he has not at the moment any other place to go to. He has
not, however, sought to prove anything additional to that by
way of hardship, such as unsuccessful attempts to find other
accommodation, or, indeed, to raise the question of his
relative financial incompetence as compared with the
landlord.”
Hon’ble Apex Court in recent judgment of Ganga Devi v. District
Judge Nainital, 2008 (7) ADJ 501, where tenant has not made any effort to
search accommodation, has not accorded any relief to the tenant. Paragraph s
15, 16 and 19 of the said judgment are being extracted below:
“15. There is also nothing on record to show that for the last so
many years the appellant had made any effort to find out a
tenanted premises for herself so that she can continue with her
business. No such material at least has been brought on record.
Any subsequent event as regards thereto has neither been
pleaded nor proved.
The provisions of the statutory rules must be interpreted so
as to give effect to the object and purport of the Act. It cannot
be applied in a vacuum, as the statute requires comparison of
the hardship of both the tenant as also the landlord. It is,
therefore, not a case where Rule 16 has any application.
16. The court would not determine a question only on the
basis of sympathy or sentiment. Stricto sensu equity as such
may not have any role to play.
19. In the facts and circumstances of this case, we are of the
opinion, that six months’ time should be granted to the 1st
respondent to vacate the premises, which should serve the
ends of justice. It is directed accordingly. Subject to the
aforementioned directions, this appeal is dismissed. In the facts
and circumstances of this case, there shall be no order as to
cost.”
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In the present case, accepted position is that release application had
been filed in the year 1992. Since then more than 18 years period have
elapsed, and by now both the petitioners ought to have made alternative
arrangement. In the present case, records are speaking for itself and in case
the petitioners have not been able to arrange for alternative accommodation,
then they themselves are to be blamed and here in addition to the same,
finding is there that there is alternative accommodation available. In view of
this there is no occasion to interfere with the orders impugned, qua finding of
fact returned on the question of bona fide need and comparative hardship,
both.
Consequently, writ petitions fail and the same are, accordingly,
dismissed. Petitioners are accorded six month’s time to vacate the premises
in question and hand over its peaceful vacant possession to the landlord,
subject to the condition that within one month from today affidavit shall be filed
by the tenant before the Prescribed Authority that premises in question will be
vacated on or before expiry of the period as aforesaid. In the event of affidavit
not being filed within one month from today, the interim protection shall cease
to operate, and landlord would be at liberty to proceed accordingly, and interim
protection of this Court would not come to rescue of petitioner.
03.07.2010
SRY.