Allahabad High Court
Suresh Chand Sharma vs Nand Kumar Kamal on 30 January, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 Case :- WRIT - A No. - 5166 of 2013 Petitioner :- Suresh Chand Sharma Respondent :- Nand Kumar Kamal Petitioner Counsel :- Manish Kumar Jain,Pramod Kumar Jain Respondent Counsel :- M.K. Gupta, Amit Gupta Hon'ble Sudhir Agarwal,J.
1. Heard Sri P.K. Jain, Senior Advocate, assisted by Sri Manish Kumar Jain, Advocate, for petitioner, Sri M.K. Gupta and Sri Amit Gupta, Advocates, for respondent, and, perused the record.
2. Learned counsels for respondent did not propose to file any counter affidavit and stated that on the basis of record of writ petition, it may be heard and decided finally at this stage. Hence with the consent of counsels for parties, I proceed accordingly under the Rules of the Court to decide the matter finally at this stage.
3. This is a tenant's writ petition. Respondent, Nand Kumar Kamal, instituted P.A. Case No. 19 of 2007 by filing an application under Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") seeking release of the accommodation in question on the ground or personal need.
4. The disputed premises is a shop situate at Hanuman Road, Shamli, District Muzaffar Nagar. Petitioner, Suresh Chandra Sharma, occupied the said premises on rent.
5. The application was contested by petitioner-tenant. Application, however, was allowed by Prescribed Authority/Civil Judge, Senior Division, Kairana, Muzaffar Nagar vide judgment dated 31.3.2012 and thereagainst petitioner's Rent Appeal No. 9 of 2012 has been dismissed by Addl. District Judge, Court No. 8, Muzaffar Nagar vide judgment dated 22.1.2013.
6. Senior Counsel Sri P.K. Jain, appearing on behalf of petitioner, vehemently contended that ground set up in the release application was that respondent-landlord, his wife, his son Vivek Kamal, daughter-in-law (son's wife) and three grandchildren are residing together. Besides two married daughters along with their family used to frequently visit the house and relationship of respondent-landlord's wife and daughter-in-law is quite strained as a result whereof it is difficult for both the families to stay in the same accommodation peacefully and respondent-landlord's son also finds it difficult to assist him in his existing business. Hence, he (respondent-landlord's sons), Vivek Kamal, intends to commence his separate business of departmental store for which shop in question is required. It is pointed out that during the pendency of the matter before Prescribed Authority, respondent-landlord's wife died, hence, the very foundation of the case, i.e., strained relations between respondent-landlord's wife and daughter-in-law disappeared, hence, both the judgments are illegal and liable to be set aside.
7. My attention is drawn to the affidavit of Sri Vivek Kamal, landlord's son, placed on record as Annexure 4 to writ petition, where in para 5 it has been admitted by landlord's son Vivek Kamal that his mother (deponent's mother and landlord's wife) had died.
8. It is next submitted that proceedings in question were not maintainable by virtue of Section 2 (1) (d) of Act, 1972 and it was barred, therefore, both the judgments are without jurisdiction. It is contended that shop in question along with its machinery for press work was let out to the petitioner and that being so, it comes within the term "industrial purposes", hence by virtue of Section 2 (1) (d) of Act, 1972, the proceedings in question were incompetent and barred. Reliance is placed in support of the above submissions on a decision of this Court in Neeyat Rout Vs. 4th Addl. District Judge, Varansi 2011 (1) ARC 288.
9. Sir M.K. Gupta, learned counsel for respondent-landlord, submitted that the very statement of respondent's son referred to by petitioner in para 5 of Annexure 4 shows that he has specifically said that his wife does not pay due respect to the father in law, and, on account of the conduct of wife, Vivek Kamal, landlord's son, does not find it expedient to work and assist his father in his running business of textiles, and, it is for this reason and peace of family, he intends to commence his independent and separate business in the shop in question.
10. So far as second issue is concerned, Sri M.K. Gupta, stated that the judgment relied by petitioner has not discussed any thing and there is no law laid down therein but on the contrary, there are various authorities of this Court holding that the kind of property involved in this case would not be covered by Section 2 (1) (d) of Act, 1972, and, therefore, submission is totally unfounded.
11. From the record, the facts, which clearly discern, are that respondent, Nand Kumar Kamal, is already running a textiles business in the name and style "M/s Vikas Textiles" at Kairana. The property in dispute situate at Shamli and parties have agreed before this Court that Kairana is a Township separate from Township Shamli inasmuch both are separate Tehsils of District Prabuddha Nagar. The two places, therefore, are totally different and situated distantly. Hence a business at Kairana cannot defy the intention of landlord to start another business by a member of his family at a different place.
12. There is no dispute about the fact that petitioner is tenant in the shop in question. Petitioner-tenant is running a printing press in the disputed shop. The tenant claimed that shop, at the time it was let out, had printing press machinery already installed thereat and he entered tenancy of the shop along with machinery etc. This statement of fact of petitioner-tenant was seriously disputed by respondent-landlord. Both the Courts below have looked into this aspect of the matter and have found that shop was initially let out to petitioner's father Brahmanand on monthly rent of Rs. 45/- after whose death tenancy rights devolved upon petitioner.
13. Similarly it has also come on record that shop in question was initially owned by one Hari Ram and was subsequently purchased by one Swami Sharan and respondent-landlord. It has also been stated that the shop was let out to Sri Brahmanand, petitioner's father, by erstwhile owner Hari Ram about 45 years back. The Courts below have found that the electric connection was obtained in 1962 for the purpose of running a printing press when the shop was already let out to Sri Brahmanand. In these circumstances, a finding of fact has been recorded by Courts below that shop was not let out along with machinery etc. for running a printing press but the printing press work was started by tenant subsequently, and, the mere fact that shop in question, subsequently, was purchased by respondent-landlord from Hari Ram would not mean that the tenanted premises will constitute a building let out along with its machinery. The electric connection and printing press belong to petitioner-tenant and not to the landlord. This concurrent finding of fact recorded by both the Courts below has not been shown perverse or contrary to record.
14. It would be appropriate at this stage to go through Section 2 (1) (d) of Act, 1972, which reads as under:
"(d) any building used or intended to be used for any other industrial purpose (that is to say, the for the purpose of manufacture, preservation or processing of any goods) or as a cinema or theatre, where the plant and apparatus installed for such purpose in the building is leased out along with the building;
Provided that nothing in this clause shall apply in relation to any shop or other building, situated within the precincts of the cinema or theatre, the tenancy in respect of which has been created separately from the tenancy in respect of the cinema or theatre,"
15. A perusal thereof shows that in a building used or intended to be used for any industrial purpose, if let out along with plant and apparatus installed for such purpose, only then the aforesaid provision would be attracted and not otherwise. Proviso to Section 2 (1) (d) of Act, 1972 admittedly has no role to play in the present case.
16. The aforesaid provision has been considered by this Court in Ganga Prasad Gupta Vs. Smt. Saleha Khatoon and others 1978 ARC 479 and in para 8 and 9 thereof, this Court said:
"8. This provision can be bifurcated in to two sentences.
(i) any building used or intended to be used for any other industrial purpose (that is to say, for the purpose of manufacture, preservation or processing of any goods), or as a cinema or theatre.
(ii) where the plant and apparatus installed for such purpose in the building is leased out along with the building.
9..... it is not possible to agree with the submissions of the learned counsel for the petitioner that the requirement of taking plant and apparatus is applicable to a case where a building is taken for the purpose of running a cinema or theatre. The purpose of this exemption is that the act will not apply where a building has been leased out along with the plant and apparatus. ... But, whereas, here a building alone was taken on lease without plant or apparatus, the aforesaid clause will not apply."
17. The aforesaid view was followed subsequently in Smt. Mango Devi Vs. Prescribed Authority, Aligarh and another 1985 (1) ARC 290 (para 3), Mohd. Yusuf Ali Khan Vs. M/s Surendra Trading Co. 1988 (2) ARC 31 and Anurag Agrawal Vs. Upendra Nath Bansal 2011 (1) ARC 49 (para 24 to 26).
18. The authorities cited by Sri Jain, learned Senior Advocate, in support of argument that Section 2 (1) (d) of Act, 1972 would be attracted, has no application for the reason that whether a printing press is an industrial purpose or not, need not be looked into in this case, when, admittedly, the building in dispute was not let out along with its plant and machinery which is a necessary ingredients to attract Section 2 (1) (d) of Act, 1972, and, in absence thereof, Section/provision itself would not be attracted, even if it is assumed that a printing press would satisfy the term "industrial purpose".
19. Looking to the matter in the light of above, I have no manner of doubt that Section 2 (1) (d) of Act 1972 does not come to operate in the present case and, therefore, the proceedings cannot be held incompetent. The Courts below have rightly held that property in dispute is within the ambit of Act, 1972 and proceedings initiated by respondent-landlord are valid and competent.
20. Now coming to the question of bona fide need, it cannot be doubted that major members of family of landlord are always entitled to commence their independent separate business and their requirement would be within the ambit of term "personal need" set up by landlord under Section 21 (1) (a) of Act, 1972. The case set up by respondent-landlord has been sought to be proved by evidence adduced including the statement of his son fortifying the stand taken by the respondent-landlord. It could not be shown fictitious, mere desire or artificial by the petitioner-tenant.
21. Section 21 of Act, 1972 confers a right on landlord to get a building, which is under occupation of a tenant, released on the ground specified therein and this includes bona fide requirement of building by himself or members of his family for whose benefit he held it. The right of landlord to judge his requirement and live according to his own wisdom and discretion cannot be controlled by third person, like tenant, or, even the Court. The purpose of the Court is to protect the tenant from unjustified eviction or abrupt increase of rent etc., but, simultaneously, if the landlord has come with the case of his own personal need, it has to be judged disparately, fairly and independently, so that a landlord, coming with a bona fide case, must be able to use his own premises for the purpose he has disclosed before the Court, if it is found bona fide and genuine. The issue of hardship between the two is an integral part of looking into the bona fide and genuity of personal need set up by landlord.
22. It cannot be disputed that it is the privilege of landlord to determine his way of living and accommodate himself and his family according to his status, requirement etc. He cannot be compelled to live in a particular manner either by tenant or any other agency. Even the Court of law must not dictate such terms to a landlord to live in a particular manner and adjust his needs accordingly.
23. In Prativa Devi Vs. T.V. Krishnan (1996) 5 SCC 353, the Apex Court said that the landlord is the best judge of his residential requirement. He has complete freedom in the matter. It is no concern of the courts to dictate to the landlord how and in what manner he should live or to prescribe for him a residential standard of their own. Therein the Court considered the age of landlord and doubted his need on the ground that in such advanced age, he would be requiring somebody to take care and therefore should live with other family members instead of alone. The Apex Court observed that High Court is rather solicitous about the age of the appellant and thinks that because of her age she needs to be looked after. That is a lookout of landlord and not of High Court. The Apex Court disapproved the approach of High Court and observed:
"We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property."
24. Similarly, in R. C. Tamrakar Vs. Nidi Lekha AIR 2001 SC 3806 the Court in para 10 and 11 said:
"10. 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.
11. Though the son of the landlady is a doctor and has constructed his own house, the landlady wants to stay in the suit premises. It is not the case of the tenant that landlady has any other suitable accommodation. Therefore, the High Court rightly set aside the finding of the First Appellate Court holding that landlady could not be compelled to reside with her son as her case was that she wanted to stay by herself in the suit premises because of her health condition and the climatic condition of that place suit her."
25. The above referred authorities though, were in the context of residential accommodation, but the principle that the landlord is the master of arranging his own affairs applies not only in respect to his residential accommodation but also the manner and method etc. of earning his livelihood for maintaining himself and family.
26. In Ragavendra Kumar Vs. Firm Prem Machinary & Co. (2000) 1 SCC 679, the Court said that landlord is best judge of his requirement for his residential or business purpose and he has complete freedom in the matter.
27. Further, in order to attract Section 21 (1) (a) of Act, 1972, the landlord must show it is not a mere desire but a need, which is an outcome of good faith also. The need must be bona fide, genuine, honest and conceived in good faith as observed in T. Sivasubramaniam & others Vs. Kasinath Pujari and others JT 1999 (6) SC 405.
28. In Akhileshwar Kumar Vs. Mustaqim AIR 2003 SC 532, the Court observed, where it is evident from record that the son of landlord is idle, without any adequate commercial activity available to him so as to gainfully employ him and where educated unemployed son, even if provisionally assisting his father, that would not mean that he should not or cannot start his own independent business and if a commercial accommodation is required for the said purpose, it cannot be be said that the need is not genuine and bona fide.
29. In Sushila Vs. II Addl. District Judge, Banda and others 2003 (1) ARC 256, the Court said that a married and major son cannot be compelled to join his father and do work with his running business but his need for settling an independent business has to be sustained.
30. In Yadvendra Arya and another Vs. Mukesh Kumar Verma 2008 (1) ARC 322, the Court reiterated that the landlord is best judge of his requirement and has got every right to file release application for settling his unemployed son in an independent business and son cannot be forcibly asked to be accommodated with father's business. Mere fact that landlord is a rich and affluent person will make no difference as held in Shamshad Ahmad and others Vs. Tilak Raj Bajaj and others 2008 (3) ARC 532.
31. On the question of comparative hardship, the Courts below have observed that petitioner-tenant did not make any attempt to find out any alternative accommodation. This is a relevant aspect to decide question of comparative hardship in favour of landlord and mere long possession of tenant is immaterial, as held in Sushila Vs. II Addl. District Judge, Banda and others (supra).
32. Looking to the concurrent findings recorded by Courts below and also the discussions made above, I find no reason to interfere with impugned judgments.
33. Writ petition lacks merit. Dismissed.
34. No costs.
Dt. 30.1.2013 PS