Punjab-Haryana High Court
Balwant Singh Chaudhary vs The Hindustan Petroleum Corporation ... on 11 February, 2004
Equivalent citations: (2004)137PLR198
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. In the present revision petition, the petitioners are aggrieved against the order passed by the Appellate Authority Sonepat who dismissed the ejectment petition filed by the petitioners on the ground that the rented land is required for bona fide use of the petitioners.
2. The land measuring 54 feet x 39 feet situated at Rohtak Road in Sonepat urban area was leased to the respondent herein. The said lease was renewed vide lease dated 10.2.1988 commencing from 1.4.1987 for a period of 10 years i.e. upto 31.3.1997. It has been alleged by the petitioners that petitioner No. 1 was the owner of the plot but vide registered gift deed dated 2.5.1976 this plot of land was gifted to petitioner No. 2, his son. The petitioners have sought the ejectment of the respondent on the ground that rented land is required by the petitioner No. 1 for his own use. He is not occupying in the urban area concerned for the purpose of business any other rented land and he has not vacated such rented land without sufficient cause after the commencement of East Punjab Rent Restriction Act, 1949. It is further pleaded that petitioner No. 1 has become quite old and he cannot cultivate agricultural land, which he owns, therefore, he wants to start a business of his own on the rented land alongwith his son petitioner No. 2 and they intend to provide a Show-room for doing their business.
3. In written statement it was stated that petitioner No. 1 does not require rented land for his own use. He is occupying other land within the urban area and has got vacated many such rented land without sufficient cause after the commencement of the Act. The petitioner No. 1 is not cultivating any agricultural land. The agricultural land is owned by petitioner No. 2 and his brother. It was denied that petitioner No. 1 want to start business on his own land alongwith the petitioner No. 2. Petitioner No. 1 is not in dire necessity of keeping his son with him because of his old age. Mere ipse dixit of the landlord that he wants to set up business, cannot be accepted as a bona fide necessity. The story of setting up of a business is nothing but a pretext of seeking the ejectment of the respondent. It was further pleaded that the petitioner No. 2 is a permanent resident of Canada. He has acquired citizenship of Canada. He is holding a degree of Engineering and is working as a qualified Engineer in Canada, and therefore the story set up by the petitioner is a mere wish, want and excuse in order to seek ejectment of the respondent. The petitioners have not mentioned the business which they intend to do after getting the land in dispute vacated from the respondent.
4. After filing replication by the landlord, the learned trial court framed the following issues for trial:
1. Whether petitioner No. l requires the demised premises for his own use and occupation? If so, to what effect? OPA
2. Whether the value and utility of the demised premises has been materially effected? OPA
3. Relief.
5. In support of issue No. 1, the petitioners have appeared as AW1 and AW2 respectively as well as produced AW3 Ram Jiwan, the person who has prepared the site plan and AW4 Suresh Chaudhary, AW5 Ram Bhaj in support of their claim of bona fide requirement of the rented land. To rebut the evidence led by the petitioner, respondents have produced RW1-Raja Tikkoo, Sr. Regional Manager, RW2-Ajay Singh, Senior Sales Officer, Dilbagh Singh-RW3 and Chandgi Ram-RW4 a person allegedly known to the landlord.
6. After considering the respective evidence led by the parties, the learned Rent Controller passed an order of ejectment holding that the rented land is required for bona fide use and occupation of the landlord. However, in appeal the finding recorded by the learned Rent Controller were reversed. The Appellate Authority while reversing the ejectment order, inter alia, held that the petitioners have not disclosed whether they have looked for a shop where they want to start the business or that petitioner No. 2 is trying to come back to India. It is not stated or proved that they planned to construct the show room or they have moved the concerned authority for permission to construct any show room. They have not also proved any document to show that they were intending to start the business. The Appellate Authority relied upon the statement of Dil Bahar Singh-AW2 to conclude that he has not come to India to help his father in business.
7. The learned counsel for the petitioner has vehemently argued that the reasoning given by the learned Appellate Authority are not germane to assess the bona fide requirement to be proved in terms of the statutory provisions. It has come in evidence that petitioner No. 1. was the owner of the agricultural land which he cannot cultivate because of his advanced age. He has sought ejectment of the tenant from the rented land to enable the petitioners to construct a show room to set up their business. AW2-Dil Bahar Singh appearing in the witness box stated that he wants to start his business of Hardware Store and Sanitary ware. He has also stated that he has financial means to set up a business.
8. The landlord is entitled to seek ejectment of a tenant in possession of a rented land in terms of Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for short "the Act"). Section 13 of the Act reads as under: -
"13. Eviction of tenants:-
1) A tenant in possession of a building or rented land shall not be evicted therefrom except in accordance with the provisions of this section.
2) xx xx xx xx xx xx
3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession -
a) xx xx xx xx xx xx
b) in the case of rented land, if he requires it for his own use, is not occupying in the urban area concerned for the purpose of his business any other rented land had has not vacated such rented land without sufficient cause after the commencement of the 1949 Act."
XX XX XX XX XX XX"
9. In J.Pandu v. R. Narsubai, 1987(1) R.L.R. 499 the Hon'ble Supreme Court while considering the requirement of a landlady for eviction of a tenant for carrying of a business of her son, has held that the son's business is deemed to be a family business and therefore, the landlord is liable to seek eviction. It was so held as under:
"It may incidentally be stated here that the appellant as well as the respondent's son are both having photographic studios. The business run by a respondent's son is said to be family business and hence it is as much the respondent's business as her son's. In view of this position there is no scope for contending that the respondent does not require the premises for herself but for her son's business and as such she is not entitled to an order of eviction under Section 10(3)(a)(iii). Therefore, even assuming that Section 10(3)(a)(iii) should be construed in a restricted manner as contended by Mr. Subba Rao we find that the respondent's requirement of the premises satisfies the conditions imposed by the sub-section."
10. In Raj Kumar Khaitan and Ors. v. Bibi Abaida Khatun and Anr., A.I.R. 1995 Supreme Court 576, the Hon'ble Supreme Court has held that precise nature of the buisness need not be stated while seeking ejectment of the tenant. Hon'ble Supreme Court set aside the order passed by the High Court wherein it was held that it was necessary for the landlord to plead the nature of the business which the landlord wanted to start in the premises. It was so held as under:
"3. It is clear from the averments made in the above quoted paragraphs that the plaintiffs 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. The High Court, however, came to the conclusion that apart from above quoted pleadings it was necessary to plead the nature of the business which the appellants-plaintiffs wanted to start in the premises. We are of the view that the High Court fell into patent error. It was not necessary for the appellants-landlords to indicate the precise nature of the business which they intended to start in the premises. Even if the nature of business would have been indicated nobody could bind the landlords to start the same business in the premises after it was vacated."
11. In Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kothune and Anr., A.I.R. 1999 S.C. 2226, the Supreme Court was seized of a matter arising out of Bombay Rent, Hotel and Lodging House Rates Control Act, 1947, wherein the landlord has sought eviction of the tenant on the ground of bona fide requirement of starting business. It was held that the landlord who seeks eviction of his tenant on the ground of bona fide requirement of starting business need not establish that he possesses know-how for doing business. In para No. 11 of the judgment, Supreme Court held as under: -
"If a person wants to start new business of his own it may be to his own advantage if he acquires experience in that line. But to say that any venture of a person in the business filed without acquiring past experience reflects lack of his bona fides is a fallacious and unpragmatic approach. Many a business have flourished in this country by leaps and bounds which were started by novice in the field; and many other business ventures have gone haywire despite vast experience to the credit of the propounders. The opinion of the learned single Judge that acquisition of sufficient know-how is a pre-condition for even proposing to start any business, if gains approval as a proposition of law, is likely to shatter the initiative of young talents and deter new entrepreneurs from entering any field of business or commercial activity. Experience can be earned even while the business is in progress. It is too pendantic a norm to be formulated that "no experience no venture."
12. In Raghunath G. Panhale (dead) by LRs. v. Chaganlal Sundarji and Co., A.I.R. 1999 S.C. 3864=(1999)8 Supreme Court Cases 1, Supreme Court was again considering the Bomaby Rents, Hotel and Lodging House Rates Control Act, 1947, wherein the landlord has sought eviction pleading bona fide and reasonable requirement. After the death of the original landlord, one of the legal representatives pleaded that the premises were required for himself for starting grocery business. It was stated that he found it difficult to maintain his family and wanted to improve his livelihood by starting a grocery business. The Court interpreted the expression "the premises are reasonably and bona fide required by the landlord" for his own occupation. In Para Nos. 6 and 11 of the judgment, Supreme Court held as under:-
"6. The word "reasonable", in our view, connotes that the requirement or need is not fanciful or unreasonable. It cannot be a mere desire. The word "requirement' coupled with the word reasonable means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity (Aitken' v. Shaw, 1933 S.L.T. 21; Nevile v. Hordy, (1928)90 L.J. Ch. 158). A reasonable and bona fide requirement is something in between a mere desire or wish on one hand and a compelling or dire or absolute necessity at the other end. It may be a need in presenti or within reasonable proximity in the future. The use of the word "bona fide" is an additional requirement under Section 13(1)(g) and it means that the requirement must also be honest and not tainted with any oblique motive."
11. It will be seen that the trial Court and the appellate Court had clearly erred in law. They practically equated the test of "need or requirement" to be equivalent to "dire or absolute or compelling necessity." According to them, if the plaintiff had not permanently lost his job on account of the lockout or if he had not resigned his job, he could not be treated as a person without any means of livelihood, as contended by him and hence not entitled to an order for possession of the shop. This test, in our view, is not the proper test. A landlord need not lose his existing job nor resign it nor reach a level of starvation to contemplate that he must get possession of his premises for establishing a business. The manner in which the Courts have gone into the meaning of "lockout" in the Industrial Disputes Act, 1947 appears to us to be nothing but a perverse approach to the problem. One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long-drawn litigation. If he resigned his job, he might indeed end up in utter poverty. Joblessness is not a condition precedent for seeking to get back one's premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the long-drawn litigation he started some other temporary water business to sustain himself, that would not be an indication that the need for establishing a grocery shop was not a bona fide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant. It is not necessary for the landlord to adduce evidence that he had money in deposit in a bank nor produce proof of funds to prove his readiness and willingness as in a suit for specific performance of an agreement of sale of immovable property. So far as experience is concerned, one would not think that a grocery business was one which required extraordinary expertise. It is, therefore, clear that the entire approach of both the courts was absolutely wrong in law and perverse on fact....."
13. In Dhannalal v. Kalawatibai and Ors., A.I.R. 2002 S.C. 2572=(2002)6 Supreme Court Cases 16, the Supreme Court was seized of the matter where the landlord had pleaded bona fide requirement for starting business of his two sons in respect of two shops in possession of the tenant arising out of the M.P. Accommodation Control Act, 1961. The Court had found that none of the landlords is possessed of any other alternative suitable accommodation nor the landlords can be compelled to carry on the business to rented premises. The proved requirement of the landlord cannot be defeated by the tenant by submitting that the landlord can start or comfortably continue to run his business in rented premises. It was held that the bona fides of the need of the landlord for the premises or additional premises has to be determined by the Court by applying objective standards and once the Court is satisfied of such bona fides then in the matter of choosing out of more accommodations than one available to the landlord, his subjective choice shall be respected by the Court. In para No. 27 of the judgment, Supreme Court (Para 26 of A.I.R.) held as under:-
"So far as the challenge to proof of requirement is concerned it merits a summary dismissal. The Rent Controlling Authority and the High Court, both, have on a meticulous evaluation of evidence found the requirement proved. None of the landlords is possessed of any other suitable alternative accommodation of his or her own to satisfy the requirement found proved. A landlord cannot be compelled to carry on business in rented premises and the proved requirement cannot be defeated by the tenant submitting that the landlord can start or comfortably continue to run his business in rented premises. It has come in evidence that the landlords have secured possession of some premises in Ahilyapura locality situated at a short distance from the suit premises but the Ahilyapura accommodation is again a tenanted accommodation and hence irrelevant for defeating the claim of the landlords..... The bona fides of the need of the landlord for the premises or additional premises have to be determined by the court by applying objective standard and once the court is satisfied of such bona fides then in the matter of choosing out of more accommodations than one available to the landlord, his subjective choice shall be respected by the Court..."
14. In Atma S.Berar v. Mukhtiar Singh, (2003-1)133 P.L.R. 371 (S.C.), while considering the provisions of the East Punjab Urban Rent Restriction Act, 1949, Supreme Court has held that the requirement in the sense of felt need which is an outcome of a sincere, honest desire in contradistinction with a mere pretense or pretext to evict a tenant refers to a state of mind prevailing with the landlord. The only way of peeping into the mind of the landlord is an exercise undertaken by the Judge of facts by placing himself in the armchair of landlord and then posing a question himself-whether in the given facts, substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere or honest. In Para Nos. 8 and 11 of the judgment, Supreme Court held as under:-
"8. One of the grounds for eviction contemplated by all the rent control legislations, which otherwise generally lean heavily in favour of the tenants, is the need of the owner landlord to have his own premises, residential or non-residential, for his own use or his own occupation. The expressions employed by different legislations may vary such as bona fide requirement, "genuine need", "requires reasonably and in good faith," and so on. Whatever be the expression employed, the underlying legislative intent is one and that has been demonstrated in several judicial pronouncements of which we would like to refer to only three.
11. 'Recently, in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, (1999)6 S.C.C. 222 this Court in a detailed judgment, dealing with this aspect, analysed the concept of bona fide requirement and said that the requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant refers to a state of mind prevailing with the landlord. The only way of peeping into the mind of the landlord is an exercise undertaken by the judge of facts by placing himself in the armchair of landlord and then posing a question 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 bona fide. We do not think that we can usefully add anything to the exposition of law or requirement for self-occupation than what has been already stated in the three precedents."
15. Even this court in the case reported as Kewai Krishan v. Amrik Singh, (2001-1)127 Punjab Law Reporter 485 has examined the principles of law required to be followed in the matter of eviction on the ground of bona fide use and occupation when the premises are required to set up an independent business for the son of the landlord. Relying upon the decision in the case of Raj Kumar Khaitan and Ors. v. Bibi Zubaida Khatun and Anr., A.I.R. 1995 S.C. 576, this Court held that it is not incumbent upon the landlord to express the precise business which is sought to be set up in the premises. While relying upon the decision in Dattatraya Laxman Kabmle's case (supra), this Court further held that the landlord has the financial means to establish the said business for his son and it is too pedantic a norm to be formulated that "no experience no venture".
16. In Ragavendra Kumar v. Firm Prem Machinary and Co., A.I.R. 2000 Supreme Court 534, the Hon'ble Supreme Court was considering a case where the landlord has number of shops and houses but he sought ejectment of the tenant on the ground that the said shop is suitable for his business purpose. It was held that the landlord is the best judge of his requirement of residential or business purpose and he has got complete freedom in the matter. It was so held as under:-
"It is the settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete, freedom in the matter. (See Prativa Devi (Smt.) T.V.Krishnan, (1996)5 S.C.C. 3531. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted."
17. In Joginder Pal v. Naval Kishore Behl, (2002-2)131 P.L.R. 625 (S.C.)the Hon'blel Supreme Court was considering the provisions of Section 13(3)(a)(ii) and the pari materia provisions of East Punjab Rent Restriction Act, 1949 to this Act, it has been held that the expression of his own use must be assigned a wider liberal and practical meaning. The requirement of the landlord of the demised premises for use as office of his Charted Accountant son is requirement of landlord for his own use. It was so held by the Hon'ble Supreme Court as follows:
"The expression for his own use as occurring in Section 13(3)(a)(iii) of the Act cannot be narrowly construed. The expression must be assigned a wider, liberal and practical meaning. The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use. The expression landlord require for his own use, is not confined in its meaning to actual physical user by the landlord personally. The requirement not only of the landlord himself but also of the normal emanations of the landlord is included therein. All the cases and circumstances in which actual physical occupation or user by someone else, would amount to occupation or user by the landlord himself cannot be exhaustively enumerated. It will depend on a variety or factors such as interrelationship and inter-dependence-economic or otherwise, between the landlord and such person in the background of social, social-religious and local customs and obligations of the society or region to which they belong."
18. In view of the judgments referred to above, it is held that it is not necessary for the landlord to plead and prove the specific business which he wants to set up in non-residential premises in respect of which eviction is sought.
19. It is also not necessary for the landlord to set up a business before seeking ejectment on the grounds of bona fide personal use and occupation. The essential idea basic to the cases of eviction on the ground of bona fide personal use and occupation is that the need of the landlord should be genuine and honest, conceived in good faith and the Court may also consider it reasonable to gratify that need. The requirement in law must have the objective element of a need. The Court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down.
20. The bona fide requirement in the sense of felt need is an outcome of a sincere, honest desire, in contradiction with a mere pretense or pretext to evict a tenant refers to a state of mind prevailing with the landlord. The only way of peeping into the mind of the landlord is an exercise undertaken by the Judge of facts by placing himself in the armchair of landlord and then posing a question himself-whether in the given facts,sub-stantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere or honest.
21. In the present case, it has come in evidence that the family of the landlord is residing in England. Petitioner No. 2 is a qualified Engineer. The landlords are possessed of means. Petitioner No. 1 has explained that due to advanced age, he cannot continue with agricultural operation and, therefore, he wants to set up a show room for his sons in rented land when made available to him. There is nothing to doubt the veracity of the statement of the petitioner wherein it has been stated that the petitioner intends to raise the construction of a show room to run the business on the rented land.
22. There is no evidence that the landlords have any other rented land available to set up the business nor it is the finding of the learned Appellate Authority as well. The reasons given by the learned Appellate Authority while accepting the appeal of the tenant are not the sound reasons in law. The contradiction pointed out by the learned Appellate Authority that the father while appearing as a witness has stated that he wants to start the business over the property in dispute with his son who is residing in Canada whereas the son appearing as a witness stated that he would start the business over the property in dispute and his father would help him is totally imaginary. The father and the son both deposed to the fact that they intend to start business with the help of each other.
23. The finding that there is no evidence that the landlords have tried to find out a shop anywhere to start business has not found favour with the Supreme Court in Datta-traya laxman Kumble's case (supra). Similarly, the reasoning given by the learned Appellate Authority that the petitioners have not produced any evidence for raising of construction of show room is not sustainable. Once the land is not available to enable the landlord to raise the construction, any such preparation is meaningless.
24. The conclusion drawn by the Appellate Authority that petitioner No. 2 has not yet come to India is not supported by any evidence. Once a witness has appeared and not cross-examined on a particular point, it is no safe to draw an adverse inference against the statement given by the witness. There is no evidence to doubt the statement of the petitioners that the rented land is required by the petitioners for their own use and occupation. The learned Rent Controller has given cogent reasons while allowing the ejectment petition. However, the Appellate Authority on the basis of conjectures which are not relevant dismissed the ejectment petition.
25. In view of the above, present revision petition is accepted. The order passed by the learned Appellate Authority is set aside and that of learned Rent Controller is re stored. However, the respondent is given three months time to hand over the actual physical possession of the premises in dispute to the petitioners.