Allahabad High Court
Satya Narayan And Others vs Rayeesh And Others on 4 February, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR Court No. - 70 Case :- WRIT - A No. - 15 of 2009 Petitioner :- Satya Narayan And Others Respondent :- Rayeesh And Others Counsel for Petitioner :- Suresh Chandra Verma, ,Deepak Gaur Counsel for Respondent :- Anjani Kumar Dubey,Devesh Kumar Verma Hon'ble J.J. Munir,J.
This petition under Article 227 of the Constitution is directed against a concurrent refusal by the two Authorities below to release a shop in the tenancy occupation of respondent nos. 1, 2 and 3, in proceedings under Section 21(1)(a) of U.P. Act No. 13 of 1972 (for short, ' the Act').
2. The petitioners are the owners and landlords of a shop located at Mohalla Ajay Pal, Pargana and District Kannauj (for short 'the demised shop') the details whereof are set out at the foot of the release application dated 17.08.1985, moved before the Prescribed Authority. The release application was moved by the landlord, Bhikhari Lal against the tenant, Abdul Majid. The landlord and the tenant have both passed away pending proceedings before the Authorities below and this Court. It is the heirs and LRs of the landlord and the tenant who are litigating.
3. From the record of proceedings, it must be noted that learned counsel for the respondents has made a statement on 04.04.2009 that they do not wish to file a counter affidavit. Thereafter, they have indeed not filed a counter affidavit or sought leave to file one. The petition was formally admitted to hearing on 18.09.2021 and heard forthwith. On the said date also, learned counsel appearing for the respondents stood by the waiver of their right to file a return. Thus, this petition was heard on the basis of material placed on record, annexed to the petition and judgment was reserved.
4. These proceedings commenced with the presentation of an application to the Prescribed Authority on 17.08.1985 by Bhikhari Lal, the landlord of the demised shop against his tenant, Abdul Majid under Section 21(1)(a) of the Act, praying that it may be released in his favour on the ground of bona fide need. Abdul Majid, the tenant, was in occupation of the demised shop at a monthly rent of Rs. 20/-. The application for release was registered on the file of the Prescribed Authority as Case No. 5 of 1985. It was said in the application that Bhikhari Lal is the owner of the demised shop, which was a part of his house where he lived. The shop was located on the ground floor of the house. Bhikhari Lal was a professional maker of sweetmeats (Halvai). He had a number of sons and grandsons, who, after education, were unemployed. Three of Bhikhari Lal's sons, to wit, Ram Autar, Ram Adhar and Ram Kumar were litigating over one shop in order to establish their exclusive right. It was pleaded that Bhikhari Lal needed the demised shop bona fide to settle his sons and grandsons in business. It was pleaded that in order to find his sons and grandsons' an occupation, he wanted to utilize the demised shop. He wanted them to establish a soda water shop. He had also purchased a soda water machine, which was lying idle for want of space.
5. It was the further case of Bhikhari Lal that he had asked the tenant, Abdul Majid to vacate but to no avail. The tenant had also not paid rent since the month of October of the year preceding the presentation of the application. It is also said by the landlord that the tenant does not do any particular business in the demised shop. The tenant had other occupations to earn his livelihood. He did not at all need the shop. It was the landlord's case that the tenant had taken the demised shop on rent to establish a tailor' shop. However, he does some kind of a trade in potatoes. His tailoring business is not a going one and he does trade in potatoes and other vegetables. The tenant has a handsome income from his trade. The tenant utilizes the demised shop for the purpose of his residence, besides storing wares like toys and confectionery for children in scanty quantities. For most part of the time, it is the tenant's son who sits in the shop, which does not yield much income. The tenant's livelihood is not dependant on the shop. The landlord, Bhikhari Lal, has greater need for the shop, compared to the tenant. It was also pleaded by the landlord that the tenant's wife had a share in her ancestral property, whereas the tenant himself has substantial land in the Kannauj Sabzi Mandi, lying vacant. If the tenant were in need of an occupation, he could have established the business of his choice, utilizing the said vacant land. On the other hand, the landlord's sons and grandsons are going without an occupation, and consequently, without any means of livelihood. A plea was introduced through amendment that pending the release application, the tenant, Abdul Majid died and his son Mohd. Rayeesh had rented a grand shop in the Mohalla Sabzi Mandi, Kannauj, where he has established a retail shop dealing in footwear. Rayeesh was not at all in the need of the demised shop that is lying closed. There is no business being done there. The hardship of the petitioner was emphasized to be much more than that of the tenant.
6. A true copy of the affidavit of the landlord, Bhikhari Lal dated 02.12.2008 has been filed as Annexure no. 2 to the petition, whereas affidavits of the landlord's witnesses, Surendra Nath and Surajbali, have also been brought on record, copies whereof are annexed as Annexure nos. 3 and 4. There is a further affidavit by the landlord dated 12.04.1989. There is then an affidavit of Surendra Nath, a grandson of the landlord. The evidence on behalf of the tenant that has been annexed is a copy of the affidavit of the tenant Abdul Majid dated 12.04.1989. There is then a rejoinder affidavit of the landlord, Bhikhari Lal dated 12.04.1989. Besides, a copy of the rejoinder affidavit filed by Surendra Nath, the landlord's grandson has also been brought on record. A copy of the plaint giving rise to Civil Suit No. 134 of 1981, Ramadhar and another vs. Ram Autar and another, has been filed to evidence litigation between the landlord's son over their right to use the shop, subject matter of the said suit.
7. The Prescribed Authority, by his judgment and order dated 01.02.1990, dismissed the release application, holding that the landlord has no bona fide need and finding for the tenant on the count of comparative hardship as well. The landlord appealed the Prescribed Authority's judgment to the Appellate Authority vide Rent Control Appeal No. 22 of 1990. The Additional District Judge/Special Judge, SC/ST Act, Kannauj, acting as the Appellate Authority, before whom the appeal aforesaid came up for determination, heard and dismissed the appeal by the judgment and order impugned dated 19.09.2008.
8. Aggrieved, this petition was instituted, originally as a Writ Petition under Article 226 of the Constitution. By an amendment that was granted on 08.09.2021, this petition was converted to one under Article 227 of the Constitution. This petition was instituted by Satya Narayan and Pankaj, sons of late Ram Kumar, one of the sons of the landlord, Bhikhari Lal, besides Ram Adhar, Brij Kishore and Ram Kishor, sons of Bhikhari Lal. One of the sons of the late Bhikhari Lal was Ram Bharose and he had two sons, Ram Saran and Vishnu Saran. Vishnu Saran being dead, his widow and son, Smt. Kiran Gupta and Saurabh Gupta have also joined as petitioner nos. 7 and 6, respectively. Pending this petition, one of the sons of the landlord, Bhikhari Lal, that is to say Ram Adhar passed away on 12.01.2012. His heir and L.R., that is to say, his son Laxmi Kant, has been substituted as petitioner no. 4/1, under orders of this Court.
9. At the outset, this Court had remarked that both the landlord and tenant are dead and the litigation has passed on to the next generation. It must be added that indeed the litigation has passed on the landlord's side partly to the grandchildren and great grandchildren. It must be remarked here that the tenants having waived their right to file a return/counter affidavit, this Court proceeds to decide on the basis of averments in the writ petition, the records annexed and the judgment impugned; and upon hearing learned counsel appearing for parties.
10. Heard Mr. S.C. Verma, learned counsel for the petitioners, Mr. Anjani Kumar Dubey, learned counsel appearing on behalf of respondent nos. 1,2 and 3 and Mr. Devesh Kumar Verma, learned counsel appearing on behalf of respondent nos. 4 and 5 - the proforma respondents.
11. The landlord had a very large family with six sons and grandsons in their branches, for whose bona fide need to settle in business, he required the demised shop. The landlord, Bhikhari Lal's family is depicted in truncated pedigrees of each of his six sons, in paragraph 4 of the writ petition. The depiction of the landlord's family, divided into its six branches, as set out in paragraph no. 4 of the writ petition, is given below :
Bhikhari Lal (Now Deceased) Ram Bharose (dead), Ramadhar, Ram Autar, Ram Kumar (dead), Ram Kishore and Braj Kishore.
Now the family members of each son of the landlord, Bhikhari Lal are detailed as below:-
(I) Ram Bharose (Dead) Ram Saran Vishnu Saran (Medical Shop) (Dead) Ram Saran Vishnu Saran (Dead) Nitin (dead) Saurabh Smt. Kiran Gupta (aged about 20 years) (II) Ramadhar (No Shop) Subhash (Dead) Guddan (No Shop) Govind (No shop) Murari (No Shop) (III) Ram Autar Anil Suneel Sanjay (No Shop) (Paneer Shop) (No shop) (IV) Ram Kumar Satya Narayan Rameshwari Devi Pankaj (No shop) (Widow) (Made exclusive shop) (V) Ram Kishore (No shop) Siddarth Visham (11 years) (7 years) (VI) Braj Kishore @ Balle Raj Kumar Chaman Kumar
12. Since there is no counter affidavit on behalf of the tenant to this petition, the position and status of the landlord's sons and grandsons, who are the petitioners here vis-a-vis the accommodation available to them for occupation, remains undisputed. This was more or less the position before the Authorities below also.
13. Attention of this Court has been drawn to the landlord's affidavit dated 02.12.1988, filed before the Prescribed Authority, where in paragraph no. 5, he has said that three of his sons, to wit, Ram Autar, Ram Adhar and Ram Kumar are litigating over a single shop between them. By a judgment of the Court relating to the tenanted shop, that the three sons aforesaid were contending over, the claim of Ram Autar has been accepted. If the decision of the Court were not disturbed, two of his sons, Ram Adhar and Ram Kumar, would be rendered without occupation. The litigation has led to an ill-will between the landlord's sons. It has been averred further in paragraph no. 6 of the affidavit under reference, filed by the landlord, that he needs the demised shop bona fide so that he can settle his sons in business, who would be rendered occupation-less and go without livelihood.
14. Learned counsel for the petitioner has also invited the attention of the Court to the judgment of the ex Court of Munsif of Kannauj, passed in Original Suit No. 134 of 1981 on 17th November, 1988. It is a suit instituted by Ram Adhar and another brother against Ram Autar and the landlord, Chiranjeev Narayan. It is about the right to use of the shop situate at Saraimeera, Pargana and Tehsil Kannauj, District Farrukhabad, for the purpose of business by two brothers to the exclusion of the third. The relief sought was that the rent deed dated 28.11.1988, got executed by the defendant Ram Autar from the landlord defendant no. 2, Chiranjeev Narayan, may be declared void. It was brought on a cause of action that the plaintiffs were facing a threat of forcible dispossession by their brother, who is the defendant, in connivance with the landlord. The suit was decreed in terms that the defendants shall not interfere with the plaintiffs' business in the demised shop or dispossess them. However, relief in the suit, to the extent of declaring the rent deed void, was refused. It is not very relevant as to what the suit was precisely about and what relief was granted to which party. It is relevant to show that the sons of the landlord, Bhikhari Lal, were in strife amongst themselves, because of shortage of accommodation to establish business in order to earn their livelihood.
15. The Prescribed Authority, in answering the question of bona fide need of the landlord against him, has recorded findings to the effect that the landlord has said that his sons, though educated, are unemployed. He has grandsons too. It is said by the Prescribed Authority that the landlord has nowhere said, which of his sons and grandsons wish to establish the business of soda water in the demised shop. He has not even mentioned their name, qualification and age. It has also not been mentioned that for how long they are unemployed. It has been remarked that it is evident that the landlord does not need the demised shop for two of his grandsons. It is observed that the bona fide need of the three sons, whose names figure in the release application, can alone be considered, whose names are Ram Autar, Ram Adhar and Ram Kumar. They are doing business in one shop located in Saraimeera. Litigation is said to be pending between them, about which APW-1 (the landlord) has said in his affidavit that the litigation has recently been decided by the Munsif, Kannauj. According to that decision, only Ram Autar was recognized as the tenant. The judgment would render the other two sons, Ram Kumar and Ram Adhar, without any occupation.
16. This Court must remark that it is the part of the affidavit which we have noticed hereinabove and to which the learned Counsel for the petitioner drew our attention, that the Prescribed Authority, dilating upon a consideration of the landlord's need, has gone on to say that the tenant has said that all the three sons are tenants in the said shop and they do business there. The Prescribed Authority has observed that a copy of the judgment of the Munsif has not been filed wherefrom it may be ascertained which son of the landlord has got rights to the shop in Saraimira. The Prescribed Authority has remarked that merely filing an affidavit cannot lead to the inference that two sons of the landlord, Ram Adhar and Ram Kumar, have been rendered without occupation, in consequence of the learned Munsif's judgement. There is a remark in the Prescribed Authority's judgment that the issue about the two sons of the landlord, Ram Adhar and Ram Kumar has not been finally decided regarding their tenancy rights in the shop, where the three brothers are doing business.
17. About Ram Bharose, another son of the landlord, it is held by the Prescribed Authority that he had a shop, purchased out of his own funds, where two of his sons, that is to say, the landlord's grandsons, do business along with Ram Bharose. They too are into the business of sweetmeats. There is also this finding in the Prescribed Authority's judgment that another son of the landlord is into the trade of allopathic medicines, a fact which the landlord has acknowledged in the rejoinder affidavit. There is an observation further by the Prescribed Authority that about the other sons and grandsons, there are no details given, how long they are without an occupation and what is their age. There is a remark by the Prescribed Authority that absence of details about the other sons and the time period of their being without occupation, other than the three sons who are mentioned in the release application, would lead to an inference that the landlord's case is vague. It has then been held by the Prescribed Authority that so far as Brij Kishor, another son of the landlord is concerned, he does business along with his father. It has been concluded from this analysis about the landlord's case that his requirement for the demised shop is not bona fide and his need not genuine.
18. There is also a finding by the Prescribed Authority that no document about the soda water machine, that the landlord claims to have purchased, has been brought on record. It has also been said that the landlord runs a hotel, where one of his sons could work along with him. If the landlord really desires one of his sons or grandsons to do the business of vending soda water or trade in it, he could utilize the same premises where he runs his hotel. For this reason also, the landlord's need has not been found bona fide.
19. The Appellate Court has affirmed these findings with remarks to the effect that the landlord has not disclosed the names of his sons or grandsons whom he wants to do the business of dealing in soda water, and further, he has not brought on record any document to show that he has purchased a soda water machine. It has also been said, almost echoing the Prescribed Authority, that if the landlord wants one of his sons to do business in soda water, he could very well accommodate that in the premises where he runs his hotel. To the submission on behalf of the landlord that each of his sons are entitled to a separate business under the law, the Appellate Court has said that the principle is trite, but in the application for release made to the Prescribed Authority, it has not been mentioned as to which of his sons or grandsons he wants to establish in the business of dealing in soda water.
21. This Court must remark at once that the approach of the two Courts below is classically perverse. The evidence here shows that the landlord has six sons, of whom he has at least named three, fighting amongst themselves for a shop held on rent to carry on business. The three sons - Ram Autar, Ram Kumar and Ram Adhar were in such dire need of business premises, at the time when the landlord made this application for release, that all three of them were doing business in a single tenanted shop. It was not a shop of which the three brothers or one of them were owners. All three were tenants and were litigating over the issue as to which of them was entitled to the tenancy. If a landlord, who has admittedly a family, consisting of six sons and grandchildren in the branches of each of them, where three have been named to be doing business together in a tenanted shop, the facts are proof in themselves that the landlord's need is bona fide. Both the Courts below have gone off course in suggesting to the landlord how he could satisfy the need of his three sons, he has mentioned in the release application. The law on this point is well settled that it is not the business of the Court or a tenant to tell the landlord, how he should satisfy his need or that of his family members. It could not be dictated to the landlord that he should ask one of his sons or grandsons, whom he wanted to set up in the business of dealing in soda water, to utilize his existing hotel business premises for the purpose. The approach of the Authorities below is absolutely perverse and there cannot be, in the opinion of this Court, two views about it.
22. The remarks of the Authorities below that receipts about the soda water machine have not been produced, is also manifestly illegal. It is no business of the Courts below to have verifed whether the landlord would settle his unemployed sons, at least whom he has named in the application, in one business or the other. The landlord need not have come up with the detail that he has purchased a soda water machine or that is the business he intended to settle one or more of his unemployed sons in. Merely because the landlord put in his pleading the fact ex abundanti cautela that he had purchased a soda water machine that was lying idle, would not give the Courts below vantage to evaluate the genuineness of the landlord's need with reference to the said fact.
23. A careful look at the landlord's pleadings, if that kind of a hyper technical approach were at all to be countenanced, would show that he has said that he needs the demised shop for the purpose of settling his sons in business and in that connection, he has purchased a soda water machine. It is also said that the landlord would settle his son in the business of soda water or some other business. All this need not at all be the scope for the Court's inquiry, while judging the landlord's bona fide need. What the Court has to see is whether indeed the landlord's sons are unemployed and in need of a gainful occupation. That is amply demonstrated from the evidence on record. Whether the gainful employment utilizing the demised shop comes from manufacturing soda water or trading in it or by doing some other business, is not at all the Court's concern, or an issue about which the tenant can raise cudgels against the landlord.
24. In this connection, reference may be made to the decision of the Supreme Court in Mohd. Ayub and another vs. Mukesh Chand, 2012 (2) SCC 155, where it has been held:
"15. It is well-settled that the landlord's requirement need not be a dire necessity. The Court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. It was wrong on the part of the District Court to hold that the appellants' case that their sons want to start the general merchant business is pretence because they are dealing in eggs and it is not uncommon for a Muslim family to do the business of non-vegetarian food. It is for the landlord to decide which business he wants to do. The Court cannot advise him. Similarly, length of tenancy of the respondent in the circumstances of the case ought not to have weighed with the Courts below.
25. In Subhash Chand vs. Vinod Kumar Bansal, 2004 (56) ALR 36, this Court culled out the principles governing the right of an adult family member to be settled in business by the landlord vis-a-vis the issue of bona fide need. In Subhash Chandra (supra), it has been held:
24. From these decisions the following principles, amongst others, may be deducted:
(1) Every adult member of the family has right to settle himself in an independent business / profession / occupation of his individual aptitude.
(2) Existence of a family business will not debar such adult member from claiming his right to settle himself in an independent business/ profession / occupation even if he is already assisting in such family business. Further, the available resources of his father and other sources of income of the family will not be a hurdle in his way in claim-ing his right to settle himself in an independent business/ profession/ occupation.
(3) Every landlord is under moral obligation to settle his son well in his life and to contribute his best to see him economically independent.
(4) It is open to the landlord to file a release application for settling his son in an independent business/ profession/ occupation, irrespective of the existence of a family business in which such son may be assisting the landlord.
(5) An adult member of a family, for whose need the release application is filed, is not expected to sit idle during the pendency of the release application, and it is open to him to take up an alternative assignment or work or engagement while awaiting the release of the accommodation for settling himself in an independent business / profession/ occupation of his choice.
(6) The need of the landlord for settling his son in independent business will not be negatived on the ground of the existence of family business in which such son may be assisting the landlord, nor will such a need be negatived on the ground of the existing family business being a flourishing one or on the ground of already-available resources with the landlord and his family, nor will such a need be negatived on the ground that the nature of the independent business in which the son is to be settled is the same as that of the existing family business, nor will such a need be negatived on the ground that the son during the pendency of the release application has taken up an alternative assignment or work or engagement while awaiting the release of the accommodation for carrying on business/ profession/ occupation of his choice and aptitude.
(7) The Court should adopt a practical and meaningful approach guided by the realities of life and the relevant social context.
26. Regarding the right of the landlord to settle all his sons in business independently, reference may be made to the decision of this Court in Kaushal Kumar Gupta vs. Bishun Prasad and others, 2006 (1) ARC 73, where it was held:
3. The tenant pleaded that the landlord had two shops in which he could settle his son Ram Prakash. A Commission was issued who substituted his report dated 10.08.1992 alongwith the map. Copy of the report is Annexure ''4' to the writ petition. In the map of the Commissioner at the Page 44 of the paper book of the writ petition, the two shops alleged to be available to the landlord are shown to be situated towards south of the shop in dispute. In the southernmost shop the other son of the landlord Jitendra is doing business of selling Paan. In the shop just adjacent to the shop in dispute and situate towards south thereof, landlord is doing the business of repairing the utensils. Dimension of the said shop is 6 feet x 4 feet 5 inches. Commissioner found that in the house of the landlord which was adjacent to the said shops, some machinery etc. was kept which was used for repairing the utensils. The Prescribed Authority rejected the release application through judgement and order dated 14.11.1995 against which landlord filed Civil Appeal No. 10 of 1996. VIIth A.D.J. Shahjahanpur allowed the appeal on 15.12.2003 hence this writ petition by tenant.
4. The appellate Court held that no shop was available to the landlord for settling his son Ram Prakash in business. Landlord is entitled to settle all of his sons in separate business. Hence shop occupied by the other son of the landlord cannot be said to be available for settling Ram Prakash in business. As far as the shop adjacent to the shop; in dispute is concerned, it is being used by the landlord. The mere fact that part of the actual repairing business is carried out in side the house does not mean that for having the customers landlord does not require a shop. In a small shop of 6 fee x 4 feet 5 inches all the repairing job of utensils including heating etc. cannot be done. If due to paucity of accommodation landlord is using his residential house also for the said purpose, it cannot be said that the residential house shall be used by the landlord for his business and the shop situated towards south of the shop in dispute shall be given by him to his son Ram Prakash. There is therefore, no error in the finding of the lower appellate Court holding the need of the landlord to be bonafide.
27. The facts here that have been examined in wholesome and relevant detail show that the apparent and visible bona fides of the landlord's need have been ignored by the two Courts below adopting an approach that does not reflect current and consistent judicial opinion. To discard the landlord's case of a bona fide need for the demised shop to settle three of his sons in business, is absolutely perverse. Out of the three sons, Ram Kumar was dead when this petition was filed and Ram Adhar passed away pending this petition. Their heirs are now prosecuting the litigation. Ram Kishor, the son who was helping the landlord Bhikhari Lal in his business, is also a petitioner here, besides, Brij Kishor, another son of Bhikhari Lal. He is petitioner no. 5. Ram Bharose, another son of the landlord who is dead had two sons, Ram Saran and Vishnu Saran. Of them, Vishnu Saran had died and his widow and son are petitioner nos. 6 and 7. Thus, in the case of petitioner no. 6, it is the fourth generation of the landlord who are pursuing the claim for release. The release application here was filed in the year 1985 and by now, more than 36 years have elapsed. Much has changed for the parties, where, in the role of the landlord and the tenant, completely different persons have stepped in. Would it mean that the need of the landlord has now disappeared, as suggested by the learned counsel for the respondent-tenants? The learned Counsel for the respondent-tenants says that this Court must now dismiss the petition, leaving the landlords, who have stepped into the shoes of Bhikhari Lal, to establish their bona fide need in presenti through proceedings instituted afresh.
28. This Court is not in agreement with the aforesaid submission. This was precisely the issue and the approach of this Court that was in appeal before the Supreme Court in Ram Kumari Barnwal vs. Ram Lakhan (Dead), 2007 (68) ALR 136. The facts in Ram Kumari Barnwal (supra) can best be recounted in the words of their Lordships, which read:
3. The background facts as projected by the appellant are as follows:
Appellant is the owner and the landlord in respect of disputed shop situated in Mohalla Asifganj, Azamgarh City, Uttar Pradesh. In the year 1947 respondent No. 1 Ram Lakhan was inducted as a tenant in the shop in question on monthly rent of Rs. 40/- by the then owner. In the year 1952 the disputed shop was purchased by the appellant's mother Smt. Pyari Kunwar. After the death of his mother, appellant became owner of the property. Family of the appellant at that time was very small. Since appellant had no commercial space available he was carrying on business in a shop belonging to one Shri Jagannath which he had taken on rent. During the pendency of the case before the High Court, the appellant was evicted from the said shop and he has no other premises to carry on the business. Appellant has three sons. Apart from the disputed shop, the appellant had another small shop adjacent to it. As appellant's son Asthbujhi Prasad wanted to carry on business the said shop is being used by him. Appellant's two other sons are unemployed and one of them has completed Chartered Accountancy course. Due to non-availability of commercial space, the said son Kameshewar Prasad had to set up his office at a distance of 100 Kms. Since respondent No. 1 was repeatedly committing default in payment of rent to the mother of the appellant, a suit had been filed (Suit No. 23 of 1970) for ejectment of respondent No. 1 on the ground of default. Though suit was decreed upto second appeal stage, in appeal the order of ejectment was set aside by this Court by judgment dated 30.11.1976, as respondent No. 1 had started depositing rent under section 30 of the Act. In 1980, appellant moved an application under section 21 (1) (a) of the Act. The same was resisted by the respondent. The Prescribed Authority on the report of the Commissioner, who was appointed to make inspection of the premises, held that the eviction petition was not maintainable. The First Appellate Authority upheld the order of rejection by the Prescribed Authority. Appellant filed a writ petition before the High Court questioning correctness of the judgment and order dated 22.4.1983 of the Appellate Authority affirming order of the Prescribed Authority. Appellant brought to the notice of the High Court that he had been evicted from the tenanted premises where he was carrying on business and, therefore, he was left with no accommodation to earn his livelihood. The High Court, as noted supra, held that even if it is found that the findings of the Courts below are erroneous in law the matter has remanded to the Prescribed Authority as the release application was filed quarter of century ago, and bona fide need, and comparative hardship change by the passage of time. The writ petition was dismissed granting liberty to the appellant to file fresh release application.
29. It was observed by their Lordships in Ram Kumari Barnwal, thus:
4. Learned Counsel for the appellant submitted that the approach of the High Court is clearly erroneous. It is settled position in law that subsequent events can be taken note of. The High Court, even though referred to the relevance of the subsequent events erroneously came to the conclusion that even if the judgment and order passed by the Courts below are erroneous in law, the matter will have to be remanded to the Prescribed Authority. There is no such requirement in law. In fact, after noticing that the release application was filed about quarter of century back, it is really unfortunate that the High Court instead of deciding the matter dismissed the writ petition granting liberty to file fresh release application. In other words, instead of shortening litigation the High Court's order would mean unnecessary prolongation of litigation.
30. After an extensive review of authority, the Supreme Court in Ram Kumari Barnwal remanded the writ petition to this Court for consideration afresh, bearing in mind subsequent developments. In matters such as these, it would be bogging down the statute to throw out the release proceedings or to bring them to an illogical terminus, because in manifest illegality or by a perverse approach, the statutory authorities have turned down the landlord's prayer for release, which ought to have been allowed. Of course, the changed circumstances have to be taken into consideration. Here, they have changed to make the landlords' need more weighty.
31. Of the three sons, that is to say, Ram Adhar, Ram Kumar and Ram Autar, for whom the landlord Bhikhari Lal sought eviction, Ram Kumar and Ram Adhar are dead. The status of the heirs of Ram Adhar vis-a-vis the availability of business premises to them, depicted in their individual pedigree shown in paragraph no. 4 of the writ petition, reveals that Ram Adhar had two sons, Subhash and Guddan. Subhash is dead and has two sons, Govind and Murari. Neither Govind nor Murari have a shop with them to establish or run their business. The other son of Ram Adhar, Guddan also has no shop. Somehow, Ram Adhar's son, called Laxmi Kant, not shown in the pedigree, has been substituted as petitioner no. 4/1. The other son, Ram Kumar, who is also dead, shows for the status of his heirs, his two sons, Satya Narayan and Pankaj. Satya Narayan has no shop with him. He is the first petitioner to this writ petition. Pankaj has been candidly shown in paragraph no. 4, in the short pedigree relating to the branch of Ram Kumar, to have acquired an exclusive shop for himself. The other sons, who have joined this petition, like Ram Kishor, petitioner no. 8 does not have a shop for himself. The overall impression, without an hairsplitting analysis and arithmetically precise calculation of the bona fide need, is that amongst the many sons and grandsons of the landlord, Bhikhari Lal, there are still members of the family who are without a shop to settle themselves in business. The need of the landlord for the demised shop cannot be said to be effaced or one that has withered away. Bhikhari Lal had sought release of the demised shop to settle his sons in business and that need has survived the landlord through his unemployed sons, grandsons and great grandsons. The need of the surviving sons and grandsons has been pleaded to in paragraph no. 18 of the writ petition, to which there is no rebuttal through a counter affidavit.
32. This Court is of opinion that the bona fide need of the landlord to settle his unemployed sons and grandsons in business is still in existence and the Authorities below have returned perverse findings to turn down the landlord's case of a bona fide need for the demised shop.
33. Now, turning to the issue of comparative hardship, the finding of the Prescribed Authority about it has been largely the corollary of what the Authority has judged about the landlord's bona fide need. The Prescribed Authority has said that the landlord's bona fide need not being established, examining the issue of comparative hardship inter partes does not arise. Still he has gone on to say that if the demised shop were released, the tenant would not be left with any means to earn his livelihood. It has been remarked that the property received by him from his in-laws was utilized to support other members of his family comprising five brothers, two sisters and the mother. The two other shops that were pointed out to the Prescribed Authority have invited an observation that one has been rented out and the other is utilized by his wife's brother to do business of retail in shoes. It has been remarked that nothing has been shown or brought on record to prove what definite share falls to the tenant's wife, wherein the tenant could do business. It has then been observed by the Prescribed Authority that the landlord has one shop, wherein he does business along with his sons. If the landlord wants, he could utilize the same shop to install the soda water machine and carry on that business also. It is on these kinds of findings that the Prescribed Authority has held comparative hardship to lie in the tenants' favour. In the opinion of this Court, the tenant cannot be allowed the favour of comparative hardship to be answered for him by holding that the landlord could accommodate his various sons and grandsons in the shop, where he was doing the business of a hotel. The suggestion by the Authorities below that the soda water machine could be installed on the same premises as the hotel for the gainful employment of one or the other unemployed sons or grandsons, goes against the salutary principle that the Court or the tenant cannot dictate to the landlord how he would satisfy his bona fide need. For a fact, it has been pleaded that pending proceedings, both the landlord, Bhikari Lal and the tenant Abdul Majid, have died. It is averred that an uncontroverted affidavit of Ram Kishore and photographs of the shoe retail shop run by Rayeesh s/o Abdul Majid has been brought to the notice of the Appellate Court, but the Appellate Court has refused to look into it.
34. It is also averred that Rayeesh is carrying on his independent business of shoe retail in a rented shop, situate in a big market constructed by his maternal grandfather and uncles. Upon Abdul Majid's death, his son Rayeesh does not have any need for the demised shop. On the other hand, the landlord's family have increased in large numbers, in the period of nineteen years after filing the release application. It has been particularly averred that Satya Narayan, petitioner no.1 s/o Ram Kumar has no shop to carry on any business and he is without a gainful occupation. He is in need of the demised shop. Similarly, Saurabh, the major son of late Vishnu Saran, grandson of late Ram Bharose and the great grandson of the landlord, Bhikhari Lal has no shop. Petitioner no. 8, the son of Ram Kishore and the grandson of the landlord also has no shop to establish his business. Brij Kishore, petitioner no. 5 son of Bhikhari Lal is also without a shop and in need of one.
35. Thus, there are a number of members of the landlord Bhikhari Lal's family who are still unsettled and without occupation. The hardship is much greater for the landlord-petitioners than the tenant-respondents. These averments, as already said, are not at all disputed on behalf of the tenant. It is particularly averred in paragraph no. 20 of the writ petition that the tenant has not made any efforts to search an alternative shop during the long course of proceedings for release, which is a decisive factor that tips the scales of comparative hardship in favour of the landlord.
36. On this issue, in a very recent decision in Prakash Chandra vs. Ritesh Bhargawa, 2020 (9) ADJ 81, it was held:
"53. So far as comparative hardship is concerned, it is undisputed fact that the petitioner has never attempted to search alternative space for shifting his business and law is very well settled on this point. The Apex Court as well as this Court has repeatedly held that it is necessarily required on the part of tenant to make full endeavour to search alternative accommodation to prove his comparative hardship after receiving copy of release application. In the matter of Rajasthan State Road Transport Corporation (supra), the Court has clearly held that it is required on the part of tenant to make effort for searching alternative accommodation. Again in the matter of Salim Khan (supra), this Court, relying upon the judgments of the Apex Court as well as this Court, was of the view that it is required on the part of petitioner to search accommodation after filing the release application and in the present case there is no dispute that the petitioner had never made any effort to search alternative accommodation. Not only this, the Court has also considered the Rule 16 of the Rules, 1972 and considering the another judgment of Ganga Devi (supra), Court has taken the view that Rule 16 of Rules, 1972 would not come in the rescue of petitioner, in case, petitioner-tenant has not made any effort to search another accommodation. Here in the present case, there is no dispute on the point that petitioner has not made any effort to search alternative accommodation.
54. In the matter of Sarju Prasad (supra), this Court has again taken the same view and held that in case effort was not made for alternative accommodation, this would be sufficient to tilt the balance of comparative hardship against the tenant. This view was again repeated by this Court in the case of Bachchu Lal (supra) and held that to prove the comparative hardship, it is necessarily required to make effort to search alternative accommodation, which is absolutely missing in the present case.
37. There is indeed no finding in the judgments of the two Authorities below that the tenant had made any efforts to search an alternative accommodation, during the long pendency of the release application. Before this Court also, there is nothing said on affidavit on behalf of the tenant to rebut the categorical assertions in paragraph no. 20 of the petition, that no efforts were made by the tenant to search alternate accommodation. There is also no evidence on record that the other two tenants, to wit, Smt. Idrishan, widow of Abdul Majid and Jahan Aara, his daughter are doing any business utilizing the demised shop.
38. In view of all these facts, this Court is of clear opinion that the landlords would suffer far greater hardship if refusal of release were upheld, than the tenant by its acceptance. Upon an overall appraisal of the case of parties and the findings returned by the Authorities below on the evidence on record, this Court is of considered opinion that both the Authorities below have rendered judgment beset by perversity in overwhelming measure. There is absolutely no option but to grant release and order eviction of the tenant. This Court is of opinion that orders of release ought to be made by this Court under Article 227 of the Constitution, because there is hardly any dispute on facts that have been thrashed out in the judgments of the two Authorities below. The perversity vitiating the two judgments comes from a mis-application of legal principles that the law does not countenance. It is also to be borne in mind that the release proceedings in this case have extended across a period of thirty-six years. To remand proceedings at this stage to either of the two Authorities below, would inflict immeasurable injustice upon parties. Also, equities are overwhelmingly in favour of the landlord, where the tenant has been enjoying the demised shop on a monthly rent of Rs.20, which is ridiculous.
38. In the result, this petition succeeds and is allowed. The impugned orders dated 19.09.2008 passed by the Additional District Judge/Special Judge (SC/ST) Act in Rent Control Appeal No. 22 of 1990 and the order dated 01.02.1990 passed by the Prescribed Authority/Munsif in Rent Control Case No. 5 of 1985, are hereby set aside and reversed. The petitioners' release application stands allowed. The tenant-respondents shall vacate the premises within two months of this judgment and deliver peaceful and vacant possession to the petitioner-landlords. The petitioner-landlords shall pay in compensation to the tenants a sum equivalent of the rent for two years, which they shall do by depositing it before the Prescribed Authority. The Prescribed Authority shall release the deposited compensation in favour of the tenants. In the event of default on the respondents-tenant's part to vacate within two months, it will be open to the landlords to evict the respondent-tenants by an application to the Prescribed Authority, made under the rules, for the enforcement of this release order.
40. Let this order be communicated to the Prescribed Authority concerned through the District Judge, Kannauj by the Registrar (Compliance).
Order Date : 04.02.2022 Brijesh Maurya (J.J. Munir, J.)