Rajasthan High Court - Jaipur
Narain Lal vs Smt Manju Devi Rawat And Anr on 25 August, 2023
Author: Sameer Jain
Bench: Sameer Jain
[2023:RJ-JP:14941]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 17196/2010
Narain Lal S/o Shri Trilok Chand Sindhi, Nataraj Electricals,
Shakti Bazar, in Front of Arjun Medical, Brijrajpura, Kota.
Non-applicant----Petitioner
Versus
1. Smt. Manju Devi Rawat W/o Late Shri Surendra Singh
Rawat, R/o Village- Medh, Post Bosal (Talla), District
Paudi Garwal (Uttranchal) through special power of
attorney holder- Shri Dhirendra Singh S/o Shri Bindu
Singh Rawat R/o in Front of Arjun Medical, Brijrajpura,
Kota (Raj.).
Applicant/Non-petitioner
2. Appellate Rent Tribunal, Kota, Rajasthan.
Proforma non-petitioner
For Petitioner(s) : Mr. Pratush Sharma
For Respondent(s) : Mr. R. K. Agarwal, Sr. Advocate with
Mr. Adhiraj Modi Mr. Shubham Kumar Sharma HON'BLE MR. JUSTICE SAMEER JAIN Judgment Reserved on 14/07/2023 Pronounced on 25/08/2023
1. The instant petition is filed under Article 227 of the Constitution of India for quashing and setting aside the judgment and recovery certificate dated 14.07.2010, passed by the Appellate Rent Tribunal, whereby Appeal No. 98/2007 was allowed and the judgment and recovery certificate dated 20.04.2007, passed by the Rent Tribunal, was set aside.
2. The relevant facts, necessary for the just and efficacious adjudication of the instant writ petition, are as follows:- (Downloaded on 11/11/2023 at 07:32:29 PM)
[2023:RJ-JP:14941] (2 of 13) [CW-17196/2010] 2/1. That the respondent-landlady filed an Original Application under Section 9 of the Rajasthan Rent Control Act, 2001 against the petitioner-tenant, for eviction from the subject properties encompassing of a shop and godown, on the ground of bonafide necessity.
2/2. That in the said Original Application, it was averred that the son of the respondent-landlady, required the shop and godown in question, for conducting business therein. It is pertinent to note that the subject properties are situated in Kota, Rajasthan. 2/3. That the petitioner-tenant, by way of their reply, contested the ground of bonafide necessity as raised by the respondent- landlady inter-alia alleging that the respondent-landlady along with her son Mr. Jitendra Rawat, for whose purported business the necessity has allegedly arisen, reside in Village Medh, Uttarakhand.
2/4. That after hearing the contentions raised by the respondent- landlady as well as the petitioner-tenant, the learned Rent Tribunal dismissed the Original Application vide order dated 20.04.2007. 2/5. Thereafter, aggrieved by the order of dismissal, the respondent-landlady filed Appeal No.98/2007 before the Appellate Rent Tribunal.
2/6. That vide order dated 14.07.2010, the learned Appellate Rent Tribunal, allowed the appeal filed by the respondent-landlady and ordered the eviction of the petitioner-tenant from the subject properties herein.
(Downloaded on 11/11/2023 at 07:32:29 PM) [2023:RJ-JP:14941] (3 of 13) [CW-17196/2010] 2/7. That being aggrieved of the impugned order of eviction dated 14.07.2010, the petitioner-tenant has preferred the instant writ petition.
3. Learned counsel for the petitioner-tenant has contended that the impugned order dated 14.07.2010 is wholly arbitrary, illegal and erroneous on the face of the record. In order to substantiate upon the said contention, learned counsel raised the following grounds:
3/1. That the respondent-landlady along with her son, Mr. Jitendra Rawat, qua whom the bonafide necessity of conducting business has arisen, reside in Village Medh- Uttarakhand. Whereas, the subject properties are situated in Kota. Therefore, at the very outset, it is apparent that the respondent-landlady as well as her son cannot operate and/or conduct any business in Kota. Moreover, it was also stated that the son of the respondent- landlady is engaged in looking after his late father's properties in Medh, Uttarakhand. Thus, the possibility of relocating to Kota for conducting business therein does not arise and the consequential ground of bonafide necessity is not made out in the facts and circumstances of the case.
3/2. That during the pendency of the present writ petition, another shop owned by the respondent-landlady was vacated. Yet, despite conducting her son's business therein, the respondent- landlady further let out the premises to another tenant. Thus, contravening the ground of bonafide necessity. 3/3. That the respondent-landlady does not own and/or possess any residential premises in Kota. Every property owned by the (Downloaded on 11/11/2023 at 07:32:29 PM) [2023:RJ-JP:14941] (4 of 13) [CW-17196/2010] respondent-landlady in the city has been let out for commercial activities. Thus, it can be deduced that if any bonafide necessity for conducting business indeed subsists, then the respondent- landlady would have kept a vacant premises in Kota for residential purposes.
3/4. That the respondent-landlady and her son, Mr. Jitendra Rawat, in their cross-examination before the Tribunal, furnished contradictory statements qua their source of income and ownership of land and resources in Uttarakhand, thereby, casting a doubt upon the genuineness of their need to conduct business in Kota. In this regard, learned counsel submitted that in the Original Application so filed by the respondent-landlady, she failed to disclose the nature of business sought to be conducted by her son, Mr. Jitendra Rawat. Moreover, the respondent-landlady also failed to exhibit any financial arrangement at her end, for conducting a business. Thus, in light of the above, it was argued that under the garb of enhancing rent of the subject properties, the respondent- landlady has initiated the eviction proceedings on a false pretext. Therefore, the impugned order dated 14.07.2010 deserves to be quashed and set aside.
4. Per contra, learned Senior Counsel Mr. R.K Agarwal, appearing on behalf of the respondent-landlady, has submitted that the impugned order dated 14.07.2010, passed by the learned Appellate Rent Tribunal, is passed in accordance with the settled position of law, having considered all the material stipulations, that escaped the attention of the learned Rent Tribunal. Thus, the order dated 14.07.2010 calls for no interference of this Court. In (Downloaded on 11/11/2023 at 07:32:29 PM) [2023:RJ-JP:14941] (5 of 13) [CW-17196/2010] support of his contention, learned Senior Counsel submitted that the fact of the respondent-landlady along with her, Mr. Jitendra Rawat, residing in Medh, Uttarakhand, cannot be a ground for nullifying the claim of bonafide necessity in Kota. In this regard, learned counsel submitted that until 1995, the respondent- landlady used to reside with her family in Kota itself. However, after the death of her husband, she relocated to her parental home in Medh, Uttarakhand. The son of the respondent-landlady completed his education up till Class 12 in Uttarakhand. Thereafter, upon attaining the age of majority and being unemployed thereafter, the respondent-landlady required the premises owned by her in Kota, for conducting business for her son therein with an aim to alleviate their financial position.
5. Secondly, qua the argument raised by the petitioner-tenant regarding the lack of a business plan/proposition and vacation of another premises owned by the respondent-landlady, during the pendency of the dispute, which was subsequently given on rent, learned Senior Counsel submitted that its a settled position of law that the tenant cannot dictate the terms of business to the landlord/landlady. In support of the aforementioned arguments, reliance was placed on the dictum of the Apex Court in Raghunath G. Panhale (Dead) By LRs vs. Chaganlal Sundarji and Co. reported in (1999) 8 SCC 1. Thus, in light of the aforesaid, it was prayed that present writ petition be dismissed and accordingly, the stay granted on the operation of the impugned order dated 14.07.2010 be vacated.
(Downloaded on 11/11/2023 at 07:32:29 PM) [2023:RJ-JP:14941] (6 of 13) [CW-17196/2010]
6. Heard the arguments advanced by learned counsel for both the sides, scanned the record of the writ petition and perused the judgment(s) cited at Bar.
7. It is trite law that there is limited scope of interference with a well-reasoned order while exercising the jurisdiction under Article 227 of the Constitution of India. It is a well settled principle of law that in the guise of exercising jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself into a court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held that though the powers under Article 227 are wide, they must be exercised sparingly and only to keep subordinate courts and Tribunals within the bounds of their authority and not to correct mere errors. Reliance in this respect can be placed on Hon'ble Apex Court judgmnent of Mohd. Inam vs. Sanjay Kumar Singhal and Ors.: (2020) 7 SCC 327.
8. It is pertinent to note that while passing the impugned order dated 14.07.2010, the learned Appellate Rent Tribunal, took into consideration the following aspects, germane for the just and efficacious disposal of the present writ petition, namely:-
8/1. That the respondent-landlady, until the year 1995, used to perpetually reside in Kota along with her husband, Mr. Surendra Rawat as well as her son, Mr, Jitendra Rawat. However, it was only after the tragic death of her late husband, that she moved to her parental home in Medh, Uttarakhand along with her son, thereby, (Downloaded on 11/11/2023 at 07:32:29 PM) [2023:RJ-JP:14941] (7 of 13) [CW-17196/2010] duly renting out their properties in Kota, including the subject property herein.
8/2. That the son of the respondent-landlady, Mr. Jitendra Rawat, completed his education until Class 12 in Uttarakhand. It was only after he attained the age of majority and was an unemployed youth, the respondent-landlady sought to conduct business in the subject properties in Kota for her son, to alleviate their financial duress.
8/3. That the learned Appellate Rent Tribunal, while adjudicating upon the lis in question, also paid due heed to the financial situation of the respondent-landlady. Furthermore, while acknowledging the fact that at the time being or during the pendency of the present dispute, the respondent-landlady did not have any vacant residential premises in Kota to reside, whilst conducting business from the subject properties, learned Tribunal duly considered the plausible factum of the respondent-landlady vacating the residential premises let out by her in Kota, subject to the outcome of the dispute/eviction and the subsequent possession of the subject properties. Moreover, the learned Tribunal also duly held that even if it is assumed that the respondent-landlady did not own any residential premises in Kota, then even under such circumstances, it was always within her power to rent residential accommodation in the city. It was rightly held that ownership of residential premises cannot be the sole determining factor in adjudging the plausibility of conducting business in the city.
(Downloaded on 11/11/2023 at 07:32:29 PM) [2023:RJ-JP:14941] (8 of 13) [CW-17196/2010] 8/4. That while dealing with the contention raised by the tenant qua the non-disclosure of the nature of business sought to be conducted by the son of the respondent-landlady and the consequential failure to exhibit any financial arrangement at her end warranting the bonafide necessity, learned Appellate Rent Tribunal held that its a settled position of law that the tenant cannot dictate the terms of business to the landlord/landlady. Moreover, qua the lack of financial backing and/or funds, it was held that it was always the prerogative of the respondent-landlady to take a loan for conducting the said business and the said plausibility, cannot be ruled out to cast a shadow of doubt on the bonafide necessity accruing to the respondent-landlady. 8/5. That as per Section 9(i) of the Rajasthan Rent Control Act, 2001, the Rent Tribunal can order eviction of a tenant after satisfying itself that the landlord/landlady, reasonably and bonafidely requires the premises, for the use or occupation of himself or his family members. In this regard, the learned Appellate Rent Tribunal noted that the tenants, either by way of their pleadings or otherwise, failed to contest and/or challenge the claim of the respondent-landlady's son being unemployed, thereby inadvertently strengthening the bonafide and reasonable requirement of the respondent-landlady to obtain possession of the subject premises for conducting business for her unemployed son therein.
9. In furtherance of the observations made herein-above, it is of utmost significance to note that the lack of financial assurance or funding cannot be permitted to be a determining factor in (Downloaded on 11/11/2023 at 07:32:29 PM) [2023:RJ-JP:14941] (9 of 13) [CW-17196/2010] adjudging a claim of bonafide necessity for conducting business on the shops so rented by the landlord/landlady. At the outset, it is germane to note that the very primitive aim of conducting business is to alleviate the financial position of oneself as well as their family. Thus, if the financial constraints of an individual are permitted to act as a determining factor in adjudging the claim of bonafide necessity, then it would be subservient/contradictory to the very aim of setting up the business in the premises as sought to be vacated, on reasonable and bonafide grounds.
10. In this regard, and especially qua the issue of lack of monetary funds/financial constraints to conduct business, reliance can be placed on the judgment of the Hon'ble Apex Court in G.C. Kapoor vs. Nand Kumar Bhasin and Ors. reported in AIR 2002 SC 200, wherein it was held that:
"Regarding financial capacity of the appellant, the courts below have held that appellant did not have financial capacity. From records we find that the appellant produced revenue records to show his ownership over agricultural land in addition to the suit premises and made a categorical statement that he would be able to raise fund from financial institutions. Both the courts below with mathematical precision considered this aspect while coming to the fact that he does not have financial capacity. We are of the view that these are irrelevant consideration as the question of having necessary fund to start the business is not at all necessary in view of the law laid down by this Court in the above decision namely Dattatraya Laxman Kamble (supra).
That apart, as the appellant has got immovable property it would not be difficult for him to raise necessary fund and, therefore we hold that the finding on this point of the courts below is not sustainable."
(Downloaded on 11/11/2023 at 07:32:29 PM)
[2023:RJ-JP:14941] (10 of 13) [CW-17196/2010]
11. Similarly, on the issue of non-availability of residential premises, it can be said that the absence of ownership or possession of residential property in the city, where business is sought to be conducted, cannot be the sole determining factor in adjudging the claim of bonafide necessity of the landlord/landlady. It is always plausible that the landlord/landlady, upon commencing with the said business as sought to be conducted, can always rent out a residential premises or make alternative arrangements. Reliance in this regard can be placed upon the dictum of the Hon'ble Apex Court in Sarla Ahuja vs. United India Insurance Co. Ltd. reported in (1998) 8 SCC 119, wherein it was held that:
"When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting 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 endeavor as to how else the landlord could have adjusted himself."
12. In this regard, it is noted that the judgment as relied upon by the learned Senior Counsel appearing on behalf of the respondent-landlady in the case of Raghunath G. Panhale (Supra) is applicable in the facts and circumstances of the present case. In the said judgment, it was held that the landlord need not reach a level of starvation to justify getting possession of (Downloaded on 11/11/2023 at 07:32:29 PM) [2023:RJ-JP:14941] (11 of 13) [CW-17196/2010] the suit premises in order to establish a business. Furthermore, Hon'ble Apex also held that it is not necessary for the landlord to prove that he had money to invest in the new business contemplated, nor that he had experience of it. Therefore, it was not necessary for the respondent-landlady to adduce evidence that she had money in deposit in a bank nor produce proof of funds to prove her readiness and willingness as in a suit for specific performance of an agreement of sale of immovable property.
13. Lastly, in consonance with the observations made herein- above, and especially qua the argument raised by the learned counsel for the petitioner-tenant qua the respondent-landlady and her son, Mr. Jitendra Rawat residing in Uttarakhand thereby, causing prejudice to the claim of bonafide necessity of conducting business in Kota, it would be prudent to place reliance upon the dictum of the Hon'ble Apex in R.C. Tamrakar and Anr. vs. Nidi Lekha reported in (2001) 8 SCC 431. In the said judgment, it was held that:
"Regarding bonafide requirement of the landlady, the Trial Court after appreciation of the evidence on record held that premises in question was required by the landlady for bonafide occupation for residential purpose for herself. The First Appellate Court set aside the finding on the ground that need of the landlady was not bonafide as her son has constructed a house where she could stay. Though the tenant left the suit premises on his transfer to a place called Sivani where he has been provided accommodation by his employer, where he is living with his wife and he has also a house at Sivani, the First Appellate Court erroneously took into consideration that the suit premises is required (Downloaded on 11/11/2023 at 07:32:29 PM) [2023:RJ-JP:14941] (12 of 13) [CW-17196/2010] for accommodation of his ailing grandmother and his son, who is doing business in the suit premises.
These are absolutely extraneous consideration as while considering the bonafide need of the landlord under the Act, the court need not take into consideration these facts.
Law is well settled that it is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. In deciding the question of the bonafide requirement, it is unnecessary to make an endeavor as to how else landlord could have adjusted himself."
14. Therefore, taking note of the observations made herein-above and after having exhaustively considered the impugned judgment dated 14.07.2010, this Court is of the view that the learned Appellate Tribunal has passed a well-reasoned speaking order and after consideration of material aspects, arrived at a logical conclusion. This Court is in complete agreement with the reasoning adopted by the Appellate Tribunal. There was no violation of principles of natural justice and no palpable error has crept in the order of the learned Tribunal, warranting interference under Article 227 of the Constitution of India.
15. Accordingly, relying upon the judgments of the Apex Court in G.C. Kapoor (Supra), Sarla Ahuja (Supra), Raghunath G. Panhale (Supra) and R.C. Tamrakar (Supra) and in view of the foregoing discussion and observations made herein-above, this Court does not find any merit in this writ petition.
16. However, considering the fact that the petitioner-tenant has been a tenant in the subject properties for a considerable period of (Downloaded on 11/11/2023 at 07:32:29 PM) [2023:RJ-JP:14941] (13 of 13) [CW-17196/2010] time and as of date, has commercial operations running therein, this Court deems it appropriate to grant the petitioner reasonable time to vacate the rented shop by 31.01.2024 subject to their furnishing an undertaking with the Tribunal below, within 15 days from today with an advance copy thereof to the opposite party (respondent), to pay or deposit the entire arrears of rent, if any, within a period of one month from today and will further continue to pay the monthly rental consideration, till the date of actual delivery of possession of the subject property in question, by 10th day of the next succeeding month or in advance to the respondent-landlady in her bank account or by way of cash and that the petitioner shall not sub-let, assign or part with possession of rented shop or any part thereof in favour of anyone else and would not create any third party interest in the same during the aforesaid period. If, however, the tenant fails to furnish undertaking to the above effect, the respondent-landlady would be entitled to get the judgment/decree of eviction executed forthwith in accordance with law. All the other benefits granted by the learned Appellate Tribunal, by way of the judgment dated 14.07.2010 be provided consequently and the provisions of Rent Control Act be enforceable for consequential relief(s).
17. In light of the above, the present writ petition is dismissed. Consequently, stay granted vide order dated 05.01.2011 stands vacated. Pending applications, if any, are also disposed of.
(SAMEER JAIN),J Pooja/117 (Downloaded on 11/11/2023 at 07:32:29 PM) Powered by TCPDF (www.tcpdf.org)