Allahabad High Court
Gauri Shankar Prajapati vs Ravikul Bansal on 21 March, 2024
Author: Ashutosh Srivastava
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD -1- A. F. R. Neutral Citation No. - 2024:AHC:51077 Judgment reserved on: 16.02.2024 Judgment delivered on: 21.03.2024 Court No. 50 1) Case :- WRIT - A No. - 1597 of 2024 Petitioner :- Gauri Shankar Prajapati Respondent :- Ravikul Bansal Counsel for Petitioner :- Rishikesh Tripathi Counsel for Respondent :- Ashish Agrawal,Rahul Agarwal Along with 2) Case :- WRIT - A No. - 1674 of 2024 Petitioner :- Sharda Respondent :- Ravikul Bansal Counsel for Petitioner :- Rishikesh Tripathi Counsel for Respondent :- Ashish Agrawal,Rahul Agarwal 3) Case :- WRIT - A No. - 1747 of 2024 Petitioner :- Shyam Singh Respondent :- Ravikul Bansal Counsel for Petitioner :- Rishikesh Tripathi Counsel for Respondent :- Ashish Agrawal,Rahul Agarwal Hon'ble Ashutosh Srivastava,J.
1. All the above referred writ petitions involve identical questions of law and facts. The Writ Petition (A) No. 1597 of 2024 is being treated as the leading writ petition and the facts pertaining to the same is being considered for deciding the controversy involved.
2. Heard Shri Rishikesh Tripathi, learned counsel for the petitioner and Shri Rahul Agarwal, learned counsel for the caveator/respondent.
3. The instant writ petition, at the instance of the tenant/petitioner, has been filed assailing the judgment and order dated 6.1.2024 passed by the learned Addl. District Judge, Banda in Rent Control Appeal No. 8 of 2022 as also the judgment and order dated 24.5.2022 passed by the learned -2- Prescribed Authority/Civil Judge (Sr.Div.), Banda in Rent Case No. 5 of 2018 (RaviKul Bansal versus Gauri Shankar Prajapati).
4. By the judgment and order dated 24.5.2022, the learned Prescribed Authority allowed the release application under Section 21 (1) (a) of U.P. Act No. 13 of 1972. By the judgment and order dated 6.1.2024, the Appellate Authority has dismissed the Rent Appeal and upheld the judgment and order of the Prescribed Authority dated 24.5.2022.
5. The facts shorn of unnecessary details giving rise to the controversy involved between the parties are that the petitioner is a tenant in a shop @ Rs.500/- per month and is doing hardware business. The respondent is the landlord. A release application under Section 21 (1) (a) of the U.P. Act No. 13 of 1972 was filed by the respondent/landlord against the tenant/petitioner setting up a bona fide need of the premises under the tenancy of the petitioner for his son Anshul Bansal for installing a digital printing press, which will require an area of 2100 square feet. The business of digital printing press involves setting up of Colour Printing Machines, Paper Cutting Machines, Perfect Binding Machines, Book Binding Machines, Punching and Creasing Machine besides numerous computers. It was alleged that the landlord has got 2086 square feet area in his possession i.e. area in which the shop under the tenancy of the petitioner and other tenants is situate which is best suited for setting up the printing press.
6. The release application was contested by the tenant/petitioner by filing written statement stating inter alia that the landlord/respondent is a man of means possessed of about 35 shops and 10 to 15 suits have been filed for eviction of the tenants. The tenant/petitioner filed evidence in the form of an affidavit stating that the landlord/respondent has alternate accommodation to cater to his need. He also filed photographs of the vacant shops and also got issued Amin Commission.
7. The learned Prescribed Authority vide its judgment and order dated -3- 24.5.2022 allowed the release application returning the finding of bona fide need in favour of the landlord/respondent and against the tenant/petitioner. The finding on the question of comparative hardship was also recorded in favour of the landlord/respondent and against the tenant/petitioner.
8. The tenant/petitioner assailed the order of the learned Prescribed Authority in rent appeal. During the pendency of the appeal, the tenant/petitioner came to know that some shops have come in possession of the landlord/respondent, which would satisfy the need set up and such information was sought to be brought on record by filing an application for adducing additional evidence under Order 41 Rule 27 CPC. The judgment in SCC Case No. 7 of 2015, judgment in SCC Case No. 3 of 2001, judgment in SCC Case No. 1 of 2005 and judgment in Case No. 2 of 2015 were brought on record to demonstrate that the subject matter of the SCC Suits decreed in favour of the landlord/respondent were in his possession. The premises released were two compounds in possession of Assistant Commissioner, Commercial Tax, one shop of tenant Mahboob Khan, one shop in possession of tenant Smt. Kamla Devi, one shop of Moti Lal Richhariya. The application for additional evidence was allowed.
9. Shri Rishikesh Tripathi, learned counsel for the tenant/petitioner has assailed the orders of the Prescribed Authority as also of the Appellate Authority on the ground that the learned Prescribed Authority without considering the evidence on record allowed the release application. The Appellate Authority also committed the same mistake even though it proceeded to take on record the additional evidence adduced by the tenant/petitioner by allowing the application under Order 41 Rule 27 CPC. It is contended that the landlord/respondent was possessed with adequate alternate vacant accommodation which was suitable to satisfy the need set up but the Court below failed to consider the evidence and proceeded to allow the release application. Reliance has been placed upon the decision of the Apex Court reported in 1981 (3) SCC 103 (Hasmat Rai and another versus -4- Raghunath Prasad) to buttress the argument that subsequent events that take place during the pendency of the proceedings are required to be taken into consideration for assessing the bona fide need of the landlord which must continue to exist till final determination of the case. Reliance is also placed upon another decision of the Apex Court reported in AIR 1999 Supreme Court 2507 (Shiv Sarup Gupta versus Dr. Mahesh Chand Gupta) to buttress the proposition that requirement of the premises under the tenancy of a tenant by the landlord must be more than a mere desire and the availability of an alternate accommodation with the landlord may have a bearing on the bona fide need of the landlord which the Court is required to consider while deciding the question of bona fide need. Based on the above submissions, learned counsel for the tenant/petitioner submits that both the orders of the Prescribed Authority and Appellate Authority are not sustainable and deserves to be set aside and the writ petition is liable to be allowed.
10. Per contra, Shri Rahul Agarwal, learned counsel appearing for the landlord/respondent submits that both Authorities have upheld the bona fide need and comparative hardship in favour of the landlord/respondent. The findings are based on cogent grounds and the findings being findings of fact are not liable to be interfered with under Article 226 of the Constitution of India. The writ petition is liable to be dismissed at the threshold. Reliance is placed upon decision of the Apex Court reported in 1998 (8) SCC 119, 2005 (8) SCC 252, 2003 (2) SCC 320, 2012 (2) SCC 155 and 2007 (4) SCC 465 to submit that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself, it is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion or for setting up his son, it cannot be said that the need is not genuine, if landlord is already running a successful business or that his sons are already employed, the owner of the property cannot be denied eviction and compelled to live poorly merely to enable tenants to carry on their flourishing business actively at the cost of the landlord, the landlord's requirement need be a dire -5- necessity and that the landlord is the best judge of his requirement and Courts have no concern to dictate the landlord as to how and in what manner, he should live. The bona fide personal need is a question of fact and should not be normally interfered with. It is accordingly prayed that the writ petition warrants dismissal.
11. I have heard the learned counsels for the parties and have perused the record as also the case laws cited by the counsels.
12. In order to appreciate the rival submissions of the learned counsels for the parties, it would be opt to understand as to what is meant by the terms "bona fide". The Apex Court in the case of Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta reported in 1999 (6) SCC 222 held as under:- "13. ..., the term bona fide 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 b ona fide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A 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, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the court. The judge of facts should place himself in the armchair 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 bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on 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. Once the court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that -6- not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against."
13. The availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation suitable and convenient in all respects as the accommodation with the tenant may have an adverse bearing on the finding as to bona fide need of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstances would enable the Court drawing an inference that the need of the landlord was not bona fide or the state of mind of the landlord was not honest, sincere and natural. Secondly, if alternate accommodation is shown to exist, the landlord is required to satisfy the Court that the available accommodation is not suitable for the need set up. In the opinion of the Court the need of the premises as set up in the release application is required to be evaluated viz a viz the available alternate accommodation. A conclusion need not be drawn that the need of the landlord is not genuine or bona fide merely on the ground that he is in possession of alternative accommodation. In M.M. Quasim Vs. Manohar Lal Sharma, reported in AIR 1981 SC 1113 the Apex Court has held that the landlord does not have an unfettered right to choose the premises but merely showing that the landlord has some other vacant premises in his possession may not be sufficient to negative the landlord claim if the vacant premises were not suitable for the purpose for which the landlord required the premises. In Sarla Ahuja Vs. United India Insurance Company Limited, reported in 1998 (8) SCC 119, the Apex Court held that the Authority considering the requirement of the landlord should not proceed on assumption that the landlords requirement should not proceed on the assumption that the landlords requirement is not bona fide when a landlord shows a prima facie case a presumption that the requirement of the -7- landlord is bona fide is available to be drawn. It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.
14. The above legal position has further been reiterated by the Apex Court in the case of M/s Sait Nagjee Purushotham & Co. Ltd vs Vimalabai Prabhulal & Ors. reported in 2003 (8) SCC 252, case of Badrinarayan Chemical Bhutada Vs. Govindram Ramgopal Mundada reported in 2003 (2) SCC 320. In the case of Mohd. Ayub & another Vs. Mukesh Chand reported in 2012 (2) SCC 155 relied upon by learned counsel for the landlord/ respondent.
15. Now coming to the need as set up in the release application, the Court finds that the landlord / respondent has set up the need for his son Anshu Bansal who wants to set up a business of Digital Printing. The said business requires setting up of Colour Printing Machines, Paper Cutting Machines, Perfect Binding Machines, Book Binding Machines, Punching and Creasing Machine besides numerous computers. The requirement is for approx 2100 square ft. space. The landlord/ respondent is in possession of approx 2086 square ft. space as has been depicted in the map along with the release application. If, the spaces depicted by unshaded portion in occupation of tenants including the petitioner whose tenancy is depicted by Letters B, B1, B2, B3 is released in favour of the landlord/ respondent, he will have 2086 square ft. of space which will fulfill his bona fide need. The other tenanted premises under the tenancy of Sharda and Shyam Singh are the subject matters of the connected writ petitions.
16. In the opinion of the Court, the business of Digital Printing is to be carried out at one place and it would not be feasible to carry on the said business in different spaces. The other accommodations though available to -8- the landlord can not be utilized for satisfying the need as set up. The properties available with the landlord which have been brought on record by the application under Order 41 Rule 27 CPC as additional evidence are not at all germane for determining the bona fide need of the landlord.
17. This Court having gone through the judgment and orders of the learned Prescribed Authority as also the Appellate Authority finds that findings of fact have been recorded by both Authorities on the question of bona fide need and comparative hardship which findings are based on proper appreciation of the materials on record and consideration of the correct law. The findings of fact recorded do not call for any interference by this Court in exercise of its powers under Article 226 of the Constitution of India particularly, in view of the settled legal position of law that it is for the landlord to decide how and in what manner, he should live his own life and cannot be guided, controlled or restricted by any third person including the Court.
18. In view of the above, the Court finds no merit in the writ petitions. Accordingly, all the aforesaid writ petitions are dismissed.
19. Parties to bear their own costs.
Order Date :- 21.03.2024 Ravi Prakash (Ashutosh Srivastava,J.)