Punjab-Haryana High Court
Tarsem Lal vs Pritam Dass Khullar on 7 July, 2005
Equivalent citations: (2006)142PLR61
Author: S.S. Saron
Bench: S.S. Saron
JUDGMENT S.S. Saron, J.
1. This revision petition has been filed against the order dated 27.4.2005, passed by the Appellate Authority under the East Punjab Urban Rent Restriction Act, 1949 (Act, for short), whereby the appeal of the tenant-petitioner against the order of his ejectment, passed by the learned Controller on 2.5.2003 has been dismissed.
2. The landlord-respondent filed a petition under Section 13 of the Act for ejectment of the tenant-petitioner from the shop as detailed in the head note of the petition. The ejectment was sought on the ground that the tenant-petitioner had neither paid nor tendered rent of the shop in dispute to the landlord-respondent w.e.f. 1.3.1993 and thus, was in arrears of rent. Besides, the petitioner is a retired person and requires the shop in dispute for his own personal use and occupation. Insofar as the issue of arrears of rent is concerned, it was found that the tenant-petitioner was not in arrears. However, it was found that the landlord-respondent required the shop in dispute for his personal use and occupation. The said finding of the learned Rent Controller has been affirmed by the Appellant Authority, which is assailed in this revision petition.
3. Mr. Sanjay Majithia, learned Counsel for the tenant-petitioner has vehemently contended that the Authorities under the Act have committed material irregularities in allowing the petition and there has been mis-reading of evidence on record. It is contended that the material and evidence on record merely show that the landlord-respondent has a desire for the shop whereas under the law, he has a need for the same. Therefore, it is contended that for the failure of the landlord-respondent to show his bonafide need, the Authorities under the Act have erred in passing the impugned orders. In support of his contention, Mr. Majithia has placed strong reliance on a judgment of this Court in the case of Brij Lal v. Arjan Singh, 1979(2) Rent Law Reporter 273 and has laid emphasis on the two judgments of the Hon'ble Supreme Court referred to in the said case i.e. Phiroze Bamanji Desai v. Chandrakant M. Patel and Ors., and Mattulal v. Radhe Lal , to contend that mere assertion of the landlord that he requires the non-residential accommodation in occupation of the tenant for starting or continuing his own business is not enough. It is contended that the landlord has not shown any bona fide need of the demised premises but has only shown a desire, which is not a ground for seeking ejectment of the tenant-petitioner.
4. Mr. Parveen Kumar, Advocate, has put in a caveat petition and has opposed the revision petition. He has contended that the Authorities under the Act have reached a clear finding of fact that the landlord-respondent requires the demised premises for his own use and occupation. It is contended that the landlord-respondent-has retired from Indian Army and then joined the Central Police Organisation from where he had also retired. Now, he has to shift to Dasuya where he is to carry out his own business. He has laid emphasis on the fact that the landlord-respondent has got his gas connection shifted from Bombay to Dasuya and his need is bonafide.
5. I have given my thoughtful consideration to the respective contentions of the learned Counsel for the parties.
6. It may be noticed that the learned Rent Controller, after consideration of the material and evidence on the record, as also the case law cited on behalf of the parties, has noticed that the shop in dispute was required by the landlord-respondent for opening new business and to settle in his brotherhood. He (landlord-respondent) had asked the tenant-petitioner to vacate the premises in dispute but in vain. Then he filed a petition for eviction of the tenant-petitioner. The landlord-respondent has brought on record a copy of the Gas Connection as Mark 'A' to show that because he was to settle at Dasuya from Bombay he had got the Gas Connection transferred from Bombay to Dasuya. Jagdish Singh (PW-3), owner of the Gas Agency was examined by the landlord-respondent, who deposed that the Gas Connection was issued after verification of the Ration Card. The said witness brought on record copy of the Transfer Voucher, Mark 'C' copy of declaration, Ex.P-3/1, copy of certificate showing the issuance of connection, Ex.P-3/2, copy of Ration Card, Mark Ex.P-3/B, copy of affidavit of Pritam Dass, Mark Ex.P3/C, copy of confirmation letter, Ex.P3/3 and photocopy of voucher for issuance of Gas, Ex.P3/B.
7. From the above, it was found that the petitioner had indeed decided to settle at Dasuya. Accordingly, it was held that the landlord-respondent needed the buifding for his own use. It was observed that the landlord-respondent needed the building for his own use. It was observed that the landlord-respondent was at the fag end of his life being retired from the department of Police and had proved his necessity for the shop in dispute, for the personal use and occupation. Consequently, the order of ejectment was passed. The said order has been affirmed by the Appellate Authority. On a consideration of the evidence and material on the record, it was found that the shop in dispute was required by the landlord-respondent and that his requirement was genuine and bona fide. Consequently, the appeal of the tenant-petitioner was dismissed.
8. The contention of Mr. Majithia that in fact it is the only desire on the part of the landlord-respondent to occupy the premises and he has not shown any specific need, may be noticed. It is contended that in fact during the deposition in the Court, the landlord-respondent has not stated as to what business he intended to start. In this respect, it is appropriate to note that the Hon'ble Supreme Court in the case of Phiroze Bamanji Desai (supra), referred to by the learned Counsel for the petitioner, observed while interpreting the word "requires" in Section 13(1)(g) of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947, that there must be an element of need and not mere desire before a landlord can be said to require the premises for his own use and occupation. Similarly, in Mattulal's case (supra), it was again reiterated by the Hon'ble Apex Court that mere assertion on the part of the landlord that he requires the non-residential accommodation in the occupation of the tenant for starting or continuing his own business, was not decisive. However, it was observed that it is for the Court to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied, is an objective test and not as subjective one and merely because a landlord asserts that he wants the non-residential accommodation for the purpose of starting or continuing his own business, that would not be enough to establish that he requires it for that purpose and that his requirement is bona fide. The word "required", it was held, signifies that mere desire on the part of the landlord is not enough but there should be an element of need, and the landlord must show the burden being upon him that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business.
9. There is no dispute to the proposition of law laid down by the Hon'ble Apex Court and it is to be seen whether the landlord-respondent genuinely requires the non-residential accommodation for his own need. The learned Counsel for the petitioner has also referred to the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta 1999 Haryana Rent Reporter 396 (S.C.), to contend that as to what is bona fide need has been considered. It was observed therein as to what is a bonafide requirement is not defined in the Act. The words 'need and require' both denote a certain degree of want with a thrust within demanding fulfillment. 'Need' or 'requirement' qualified by word 'bonafide' or, 'genuine' proceeding as an adjective is an expression often used in Rent Control Laws. 'Bonafide or genuine need' of the landlord or that the landlord 'genuinely requires' or 'requires bonafide' an accommodation for occupation by or use for himself is an accepted ground for eviction and such expression is often employed by Rent Control legislation draftsman. The two expressions are interchangeable in practice and carry the same meaning. Thus, the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires is much more higher than in mere desire. The phrase required bonafide is suggestive of legislative intent that a mere desire which is outcome of whim or fancy or facts should place himself in the arm chair of the landlord and then ask the question to himself -whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bonafide. It was held that the failure on the part of the landlord to substantiate the pleaded need or in a given case, positive material brought on the record by the tenant enabling the Court drawing an inference that the reality was to the Contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord.
10. In the facts and circumstances of the present case, it is appropriate to note that the landlord-respondent has retired from service and there is a clear intention on his part to shift to his native town Dasuya. He has stated that he wants to reside with the brotherhood. During the course of arguments, it has also been pointed out that the wife of the landlord-respondent has also retired from the Education Department at Bombay. In the circumstances, in respect of a person who has retired from service, it can be said that there is no genuine desire on his part to shift to Dasuya and reside there. Merely because the landlord-respondent has been residing at Bombay and now intends to reside at Dasuya, it cannot be said that his need is not genuine. The fact that the landlord-respondent has not been able to indicate as to what business he intends to start, is also quite inconsequential. At present, he does not have any business and being retired person, it is only when he occupies the shop then he would consider the feasibility of starting some business. It is not that the landlord is required to give a project report to the tenant of the business that he intends to start. The Hon'ble Supreme Court in the case; Raj Kumar Khaitan and Ors. v. Bibi Zubaida Khatitn, , which was a case under the Bihar Buildings (Lease, Rent and Eviction) Control Act, considered the question where the landlords asserted that there was no other means of livelihood with them and as such they wanted to set up their own business in the premises in dispute. It was held that the landlords need not indicate the precise nature of the business which they intended to start there.
11. From the standpoint of the landlord-respondent, it may be noticed that he has retired from service and wants to start some business to settle down. He intends to settle with his brotherhood at Dasuya. As regard the nature of the business, it is for him to decide. In the circumstances, it cannot be said that it is a case where the landlord is only wanting to get rid of his tenant. Besides, it may be noticed that the eviction in the case in hand has been passed in terms of Section 13(3)(a) of the Act and Sub-section (4) of Section 13 of the Act enjoins that where a landlord who has obtained possession of the building or rented land in pursuance of an order under sub-paragraph (i) or sub-paragraph (ii) of paragraph (a) of Sub-section (3) does not himself occupy it for a continuous period of 12 months from the date of obtaining the possession, then the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored the possession of such building and the Controller shall make an order accordingly. Therefore, in terms of the protection provided under Section 13(4) of the Act, the apprehension of the petitioner-tenant in the facts and circumstances of the case would not be there. The Authorities under the Act having concurrently found the need of the landlord-respondent to be genuine, no ground for interference is made out in the exercise of the revisional jurisdiction of this Court under Section 15(5) of the Act.
12. For the foregoing reasons, there is no merit in this revision petition and the same