Allahabad High Court
Rajendra Prasad Gupta vs Upper District Judge And Ors. on 2 April, 2008
Author: Dilip Gupta
Bench: Dilip Gupta
JUDGMENT Dilip Gupta, J.
1. This petition under Article 226 of the Constitution of India has been filed by the tenant to assail the order passed by the Prescribed Authority in favour of the landlord under Section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) for eviction of the tenant from the shop in dispute. The petitioner has also sought the quashing of the order passed by the Appellate Authority by which the appeal filed under Section 22 of the Act, was dismissed.
2. The records of the writ petition indicate that the landlord had filed an application under Section 21 (1) (a) of the Act for release of the disputed shop and for eviction of the tenant on the ground that the landlord bona fide required the premises for setting up an independent business for his son who was of marriageable age. It was also asserted by the landlord that he would suffer greater hardship in the event the application was rejected. The tenant filed a reply to the aforesaid application and it was stated that the landlord could establish his eldest son in business from the portion available in the gallery of his residential portion.
3. The Prescribed Authority found the need of the landlord to establish his eldest son in business to be bona fide as business could not done from the 4 feet gallery as alleged by the tenant. The Prescribed Authority also found that the landlord was likely to suffer greater hardship in the event the application was rejected and in coming to this conclusion, the Prescribed Authority has also taken into consideration the fact that during the pendency of the application filed by the landlord, the tenant had made no efforts whatsoever to obtain any alternative accommodation. The Appellate Authority has confirmed the findings of the Prescribed Authority.
4. Learned Counsel for the petitioner raised the same contentions as were advanced before the Prescribed Authority and the Appellate Authority. He also contended that no compensation was awarded to the tenant as was required to be awarded under the second proviso to Section 21 (1) of the Act.
5. I have carefully considered the submissions advanced by learned Counsel for the parties.
6. It has to be determined whether the need of the applicant to obtain the disputed shop was bona fide.
7. However, before adverting to the facts of this case it would be necessary to refer to the decision of the Supreme Court in Siddalingamma and Anr. v. Mamtha Shenoy wherein it has been observed that some sympathy has to be shown to the landlord when an application is moved for eviction on ground of bona fide requirements:
Rent Control Legislation generally leans in favour of tenant, it is only the provision for seeking eviction of the tenant on the ground of bona fide requirement of landlord for his own occupation or use of the tenanted accommodation which treats the landlord with some sympathy. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta this Court has held that a bona fide requirement must be an outcome of a sincere, honest desire in contra-distinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts, by placing himself in the place of the landlord is, whether in the given facts proved by material on record 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 concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life....
It is in the light of the aforesaid provisions that the facts of this case have to be examined.
8. The need of the landlord to establish his son in an independent business is bona fide as was observed by the Supreme Court in Sushila v. IInd Additional District Judge Banda and Ors. :
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.
9. The contention of the learned Counsel for the petitioner is that the landlord could have established his son in business from the four feet gallery of the residential house cannot also be accepted.
10. This Court in Shrimati Shakuntala Devi Rathod v. Smt. Raj Kumari and Ors. 2008 (2) ADJ 189 while considering whether any business can be done in a gallery measuring 3 feet observed as follows:
As far as the small shops situated in the gallery of 3-4 feet towards south and west of the shop in dispute are concerned, the tenant himself refused the offer of the landlady in respect of these shops. No proper business may be run from a shop situate in 2.5-3 feet wide gallery. Availability of less suitable accommodation is no ground to reject the release application for more suitable accommodation vide C. Persad (dead through L.Rs.) and Ors. v. U.K. Verma and Ors. .
11. This apart, the Supreme Court has held that it is for the landlord to choose the place where he wants to do business or reside. In this connection reference may be made to Sarla Ahuja v. United Insurance Company wherein the Supreme Court observed:
...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 is 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 endeavour as to how else the landlord could have adjusted himself.
12. The Supreme Court in Ragavendra Kumar v. Firm Prem Machinary and Co. also observed:
...It is 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....
13. The Supreme Court in Akhileshwar Kumar and Ors. v. Mustaqim and Ors. observed that once it has been proved by a landlord that the suit accommodation is required bona fide by him then choosing of the accommodation which cannot be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. In this connection it observed as follows:
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 unutilized. 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.
14. In Dhannalal v. Kalawatibai and Ors. , the Supreme Court observed:
...Another alternative accommodation pointed out by the tenant is the one situated on the first floor of the building. It has come in the evidence that the second floor of the building is used for residence of the landlords while the first floor is used partly as a godown and partly for stitching the clothes which are sold as readymade garments in the shop of respondent No. 3. To amount to an alternate non-residential accommodation so as to defeat the requirement of the landlord for the suit premises, it should be reasonably suitable non-residential accommodation. It should be suitable in all respects as the suit accommodation is. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta this Court has held that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. The availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. 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 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. For the business, which the respondents No. 2 and 3 propose to start or continue respectively, an accommodation situated on the first floor cannot be said to be an alternative suitable accommodation in comparison with the shops situated on the ground floor. A shop on the first floor cannot attract the same number of customers and earn the same business as a shop situated on the ground floor would do.
15. The Prescribed Authority and the Appellate Authority have both held that the need of landlord was bona fide and he was likely to suffer greater hardship in the event the application was rejected.
16. The Supreme Court in Munni Lal and Ors. v. Prescribed Authority and Ors. clearly observed that while examining the findings of bona fide need and comparative hardship of landlord and tenant it is not for the High Court in the exercise of its jurisdiction under Article 226 of the Constitution to reappraise the evidence and come to its own conclusion which may be different from that reached by the District Judge or the Prescribed Authority.
17. This apart, the tenant made no effort during the pendency of the application to find out an alternative accommodation.
18. In Faiyaz Khan v. 2nd Additional District Judge Jhansi and Ors. 2006 (24) LCD 929, this Court observed:
Concept of comparative hardship can not be stretched to the extent of depriving the landlord of his property even if landlord is in real and imminent need. It has been brought on record that in adjoining town Dr. Amin was having a clinic even though he asserted that he attended that only off and on. In any case tenant did not show that he made any efforts to search alternative accommodation after filing of the release application. As held by the Supreme Court in B.C. Bhutada v. G.R. Mundada , this by itself was sufficient to tilt the balance of hardship against the tenant.
19. Learned Counsel for the petitioner also submitted that the tenant was entitled to compensation as provided for in the second proviso to Section 21 (1) (a) of the Act. This proviso stipulates that where the application is made under Section 21 (1) (a) of the Act in respect of building let out exclusively for non-residential purposes, the Prescribed Authority, while making the order of eviction shall after considering all relevant fact of the case, award against the landlord to the tenant an amount not exceeding two years rent as compensation. This compensation was not awarded by the Prescribed Authority and neither this issue was raised by the tenant either before the Prescribed Authority or before the Appellate Authority.
20. Normally in such a situation notice should be issued to the landlord but I consider it appropriate to decide this petition without issuing any notice to the landlord as any delay in the disposal of this petition will work to his prejudice. Liberty is however, given to the landlord to move an appropriate application in the event he is aggrieved by this part of the order.
21. On a consideration of the facts and circumstances of the case, the tenant shall be entitled to receive two years rent as compensation.
22. In the end learned Counsel for the petitioner, however, prayed that some reasonable time may be given to the petitioner to vacate the shop.
The petitioner shall not be ejected from the shop in dispute for a period of three months from today provided the petitioner submits the following undertaking before the Court below within three weeks from today.
1. That the petitioner shall pay damages at the rate of Rs. 300/- per month beginning from the month of April 2008 up to the date he hands-over the possession of the shop to the landlord.
2. That the petitioner shall not induct any other person in the shop.
3. That the petitioner shall handover peaceful possession of the shop to the landlord on or before the expiry of three months.
23. It is made clear that in the event the petitioner fails to give the undertaking within the aforesaid period or fails to comply with any of the terms of the undertaking, then in that case, it will be open to the landlord to get the decree executed.
24. The petition is partly allowed to the extent indicated above.