Allahabad High Court
Surendra Singh vs Additional District Judge Court No.11, ... on 11 July, 2019
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 5 A.F.R. Case :- WRIT - A No. - 10232 of 2019 Petitioner :- Surendra Singh Respondent :- Additional District Judge Court No.11, Muzaffarnagar And 4 Others Counsel for Petitioner :- Nipun Singh Counsel for Respondent :- Sumit Daga Hon'ble Surya Prakash Kesarwani,J.
1- Heard Sri Nipun Singh, learned counsel for the tenant-petitioner and Sri Sumit Daga, learned counsel for the plaintiffs-respondents.
2- Briefly stated facts of the present case are that undisputedly, the petitioner was a tenant of a shop situate in Bagh Keshodas, Roorki Road, Muzaffarnagar. The total area of the property was 2654 Sq. Mts. On the front portion of the aforesaid property there were some shops which were let out. The respondent-landlord wanted to construct a commercial complex over the disputed property. For this purpose, he got prepared the map and also obtained requisite permission. The front portion of the aforesaid property was occupied by seven shops. The petitioner's shop is one of those seven shops. The respondent-landlord/plaintiff has filed P.A. Cases for eviction of the tenants. He filed P.A. Case No.12 of 2009 against the petitioner-tenant on 1.10.2009, under U.P. Act 13 of 1972.
3- In paragraph-10 of their application, the plaintiff-landlord/respondents specifically stated that the construction of ground floor over the aforesaid property has been completed and the plaintiffs are ready and undertake to provide one shop to the petitioner-tenant in place of the disputed shop within 6 to 12 months after the disputed shop is vacated and in the shop so offered, the petitioner-tenant may carry on his business of electric goods. It was further stated that in the event, the petitioner-tenant finds that the shop offered is not appropriate then he may search for a suitable shop within 3 to 6 months, which he may get at Roorki and Ansari roads, where several shops have been built. He also named several markets where the shops were available.
4- The Prescribed Authority allowed the aforesaid P.A. case on two grounds -firstly, the disputed shop is in dilapidated condition and secondly, there is bonafide need of the plaintiff-landlord/respondent. The aforesaid P.A. case was allowed by the Civil Judge (Senior Division), Muzaffarnagar by judgment dated 18.8.2017.
5- Aggrieved with this judgment, the petitioner-tenant filed Rent Control Appeal No.6 of 2017 (Surendra Singh v. Alok Swaroop and others ), which was dismissed by impugned judgment dated 17.4.2019 passed by the Additional District Judge (Court No.11), Muzaffarnagar. The appellate court set aside the order dated 18.8.2017 passed by the Prescribed Authority and upheld the findings of the Prescribed Authority on the ground of bonafide need. In support the appellate court relied upon the judgments of Hon'ble Supreme Court in R.V.E. Venkatachala Gounder v. Venkatesha Gupta and others, (2002)4 SCC 437 and S. Venugopal v. A Karruppusami and another, (2006) 4 SCC 507 (Paragraph 10 and 11).
6- Aggrieved with the aforesaid two judgments the petitioner-tenant has filed the present writ petition under Article 226 of the Constitution of India.
7- Learned counsel for the petitioner-tenant submits that the plaintiff-landlord/respondents were in need of the disputed shop only for the purposes of passage to the commercial complex constructed by them and since some of the shops situated on the front portion has either been vacated by Court's judgment or by compromise, therefore, the need of the plaintiff-appellant/respondents stands satisfied.
8- Learned counsel for the plaintiff-landlord/respondents supports the impugned judgments.
9- I have carefully considered the submissions of the learned counsels for the parties and perused the impugned judgments.
10- Admittedly, there were seven tenants occupying the front portion of the property in question including the tenant-petitioner. These front portion (seven shops) situate on Roorki Road (G.T. Road) were single storied. According to the tenant-petitioner he is a tenant of one of the shops at a monthly rent of Rs.115/-. In para-1 of the release application dated 1.10.2009 it was stated that these shops were constructed about 70-75 year ago. The total area of the property in question is about 2,654 Sq. Mts. The landlord-respondents wanted to construct a commercial complex over the aforesaid land. For this purpose, they got the map sanctioned from Muzaffar Nagar Development Authority. They filed release application for release of all the shops. The release application dated 1.10.2009 filed against the tenant-petitioner was registered as P.A. Case No.12 of 2009. The release applications filed against other tenants being P.A. Case No.230 of 2009, P.A Case No.14 of 2009, P.A. Case No.15 of 2009, P.A. Case No.16 of 2009 and P.A. Case No.18 of 2009, were allowed and the shops were vacated. The financial resources of the landlord-respondents to construct the commercial complex could not be disputed by the tenant-petitioner. The landlord-respondents offered a shop to the tenant-petitioner on the ground-floor of the aforesaid commercial complex as an alternative accommodation to the tenanted shop. However, the tenant-petitioner has not accepted that offer and did not vacate the shop. The tenant-petitioner is the only tenant occupying a shop in the front portion of the aforesaid commercial complex facing to Roorki-Meerut road. The tenant-petitioner has neither accepted the offered shop at the ground-floor nor arranged any alternative accommodation, although the release application was filed in the year 2009.
11- Both the courts below have recorded concurrent findings of fact based on consideration of relevant evidences on record that the landlord-respondents are in bonafide need of the disputed shop and comparative hardship is in their favour.
12- In Smt. Shanti Devi and another v. Swami Ashanand and another, (2003) 2 SCC 26 (Para-5), Hon'ble Supreme Court interpreted the provisions of Section 21(1)(a) of U.P. Act 13 of 1972 and held that this provision is very widely worded. Demolition and reconstruction for occupation by landlord himself either for residential purpose or for purposes of any profession, trade or calling is permissible. The words 'profession, trade or calling' are very wide and include all activities wherein a person may usefully and/ or gainfully engage himself.
13- In S. Venugopal v. A Karruppusami and another, (2006) 4 SCC 507 (Paragraph 11, 12 and 13), Hon'ble Supreme Court considered bonafide need of the landlord on the facts that the disputed property has acquired commercial value and, therefore, the the landlord wished to demolish the old single storey structure and to construct a multi-storeyed building which may fetch him higher rent and has applied to the competent authorities and got the plans approved, and held that the landlord's bonafide need is true.
14- The tenant-petitioner has not disputed the fact even before this Court that the landlord-respondents have offered him a shop on the ground-floor for vacating the disputed shop and that the commercial complex as per sanctioned map has already been constructed by the landlord-respondents over the land in question and the only shop is of the petitioner which obstructed the front portion of the newly constructed commercial complex. Under the circumstances, the bonafide need of the landlord-respondents stands proved under Section 21(1)(a) of U.P. Act 13 of 1972 and also in view of the law laid down by Hon'ble Supreme Court in the case of Smt. Shanti Devi and another (supra). Under the circumstances, the conduct of the tenant-petitioner in not vacating the shop, cannot be appreciated, inasmuch as he is the only tenant, who is obstructing better beneficial use of the commercial complex by the landlord-respondents.
15- In S. Venugopal v. A Karruppusami and another, (2006) 4 SCC 507 (Paragraph 11), Hon'ble Supreme Court held as under :
"11. In the instant case, we find that the property owned by the landlord, whatever may have been its value in the past, has acquired commercial value and, therefore, the landlord wishes to demolish the old single storey structure and to construct a multi-storyed building which may fetch him higher rent, apart from serving his own needs. The landlord had already applied to the competent authorities and got the plans approved. Taking into consideration all these reasons, we are convinced that the landlord bona fide intends to demolish the old building and to construct a new one. Raising funds for erecting a structure in a commercial center is not at all difficult when a large number of builders, financiers as well as banks are willing to advance funds to erect new structures in commercial areas. This is apart from the fact that the landlord has himself indicated that he was willing to invest a sum of Rs. One and a half lakh of his own, and he owns properties and jewellery worth a few lakhs".
16- In R.V.E. Venkatachala Gounder v. Venkatesha Gupta and others, (2002)4 SCC 437 and S. Venugopal v. A Karruppusami and another, (2006) 4 SCC 507 (Paragraph 11 and 12), Hon'ble Supreme Court held as under:
"11.We may refer to two decisions of Madras High Court. In S. Raju and others Vs. K. Nathamani, 1998 (3) LW 214, the Constitution Bench decision has been followed and it has been held that when new buildings with modern amenities have come up in that locality, naturally the building in question may become unsuitable to the surroundings and a liability, in its present condition, to the landlord. Keeping the building in the same condition will amount to asking the landlord to shoulder the burden for ever. Tenants may be satisfied with the present state of the building since they have to pay only a nominal rent but the Rent Control Legislation, beneficial to the landlord and the tenant both, should be interpreted in that way. For the purpose of proving his bonafides the landlord need only show that he has got the capacity to raise the necessary funds. In A.N. Srinivasa Thevar Vs. Sundarambal alias Prema W/o. Chandrakumar, 1995 (2) LW 14, even before the decision by Constitution Bench in Vijay Singh's case was available, it was held in the light of the decision in P. Orr & Sons that the availability of the following factors was sufficient to make out a case of bona fide requirement under Section 14(1)(b): "(a) Capacity of the landlord to demolish and to reconstruct is undisputed and also proved satisfactorily; (b) The size of the existing building occupies only one third of the site, leaving two third behind vacant and unutilized; (c) Demand for additional space: The demised premises is situated in a busy locality. Therefore, there is a great demand for additional space in the locality which could be met by demolishing the existing small building and putting up a larger building providing for future development vertically also, by building pucca terraced building; (d) The economic advantage: A modern construction of a larger building shall certainly yield better revenue and also appreciate in value, when compared to the asbestos sheet roofed old building." In that case, it was observed that the existing building was an old, out-model asbestos sheet building proposed to be replaced with better and modern building which would provide for better quality accommodation to the needs of the present days as the preservation of such building in a busy locality of a town shall not only be an eyesore but also against the souring public demand for additional space. Viewed from the angle of general interest of the public which, according to the decision in P. Orr & Sons is one of the considerations, it was observed that a big site should yield to a larger modern building with an increased and enlarged accommodation having better facilities to solve the ever increasing demand for more space. Stalling growth and development for the sake of one tenant who is in occupation of an old model building constructed with mud and mortar and asbestos sheets occupying only one third of the site was held to be not conducive to public interest. We approve the statement of law and the approach adopted by Madras High Court in both the abovesaid decisions. The structural and physical features and the nature of the construction of the building cannot be ignored. Even in P. Orr & Sons, this Court was of opinion that various circumstances, such as the capacity of the landlord, size of the existing building, the demand for additional space, the condition of the place, the economic advantage and other factors, justifying investment of capital on reconstruction may be taken into account by the concerned authorities, while considering the requirement for reconstruction of the building as the essential and overriding consideration in the general interest of the public and for the protection of the tenant from unreasonable eviction".
"12. Reverting back to the case at hand, we find that the six tenants are not in full occupation of the entire space available. The landlord proposes to construct a new and modern building in busy commercial locality of a rising city. The landlord requires a part of the newly constructed building for his own personal use and such part of the newly constructed building as would be in excess of his own requirement he is willing to let out at current rate of rent to his tenants which would obviously augment his earnings. The newly constructed double storeyed building, would certainly provide much more total accommodation than what is available. In such circumstances the offer of the tenant that they are prepared to pay the rent at the current rate, the one which the landlord expects on reconstruction, becomes irrelevant and should not have prevailed with the High Court".
17- In Ranjeet Singh v. Ravi Prakash, (2004) 3 SCC 682 (Paragraph-4), Hon'ble Supreme Court considered the scope of Article 226 and 227 of the Constitution of India in matters arising from the application under Section 21 (1)(a) and (b) of U.P. Act No.13 of 1972, and held as under:
"4. Feeling aggrieved by the judgment of the Appellate Court, the respondent preferred a writ petition in the High Court of Judicature at Allahabad under Article 226 and alternatively under Article 227 of the Constitution. It was heard by a learned Single Judge of the High Court. The High Court has set aside the judgment of the Appellate Court and restored that of the Trial Court. A perusal of the judgment of the High Court shows that the High Court has clearly exceeded its jurisdiction in setting aside the judgment of the Appellate Court. Though not specifically stated, the phraseology employed by the High Court in its judgment, goes to show that the High Court has exercised its certiorari jurisdiction for correcting the judgment of the Appellate Court. In Surya Dev Rai Vs. Ram Chander Rai & Ors. - (2003) 6 SCC 675, this Court has ruled that to be amenable to correction in certiorari jurisdiction, the error committed by the Court or Authority on whose judgment the High Court was exercising jurisdiction, should be an error which is self-evident. An error which needs to be established by lengthy and complicated arguments or by indulging into a long- drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai (Supra) that the jurisdiction was not available to be exercised for indulging into re- appreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal. The High Court has itself recorded in its judgment that "considering the evidence on the record carefully" it was inclined not to sustain the judgment of the Appellate Court. On its own showing, the High Court has acted like an Appellate Court which was not permissible for it to do under Article 226 or Article 227 of the Constitution".
18- In Mohd. Ayub and another v. Mukesh Chand, (2012)2 SCC 155 (Paragraph 15), Hon'ble Supreme Court held as under:
"15. It is well settled 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 a 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".
19- In the case of Nidhi v. Ram Kripal Sharma (Dead) through legal representatives, (2017)5 SCC 640 (Paragraph 14 and 16), Hon'ble Supreme Court held as under:
"14. The legislations made for dealing with such landlord-tenant disputes were pro-tenant as the court tends to bend towards the tenant in order to do justice with the tenant; but in the process of doing justice the Court cannot be over zealous and forget its duty towards the landlord also as ultimately, it is the landlord who owns the property and is entitled to possession of the same when he proves his bonafide beyond reasonable doubt as it is in the case before this Court".
16. Ordinarily, rights of the parties stand crystallised on the date of institution of the suit. However, the court has power to take note of the subsequent events and mould the relief accordingly. Power of the court to take note of subsequent events came up for consideration in a number of decisions. In Om Prakash Gupta vs. Ranbir B. Goyal (2002) 2 SCC 256, this Court held as under:-
"11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor & General Traders (1975) 1 SCC 770 this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed".
20- In Vijay Kumar Gupta and another v. Smt. Sumitra Devi and others, 2014(1) ARC 371 (Paragraph 20), a Bench of this Court held that it is settled law that the landlord is the best judge of his need and this Court could not interfere in concurrent findings of fact regarding bonafide need establish before the Prescribed Authority and the appellate authority by the respondent-landlord. This Court can interfere only when there is a perversity in the findings recorded or when the courts below have acted without jurisdiction or far in excess of jurisdiction.
21- In Smt. Shamim Begum and others v. Dinesh Kumar and others, 2019(1) ADJ 160 (Paragraph Nos. 11 and 12), a Bench of this Court held that a landlord has got a right to expand his business and in case, he requires additional space for it, the need cannot be said to be malafide. The tenant cannot dictate terms to the landlord as to how he should specify his need. The Court cannot act as a rationing authority and force the landlord not to expand his business or carry on in the same shop.
22- In Praveen Kumar Jain v. Kamal Gupta, 2019(1) AWC 310 (Paragraph 13), a Bench of this Court observed that the landlord was sole person who could have taken a decision as to which shop fulfils his need and the needs of his family. The tenant or for that matter even the Court could not guide the landlord as to which accommodation he should view to fulfil his need and which accommodation he shall not use.
23- In Manish Mehra v. Ram Lal Gupta and another, 2016 (1) ARC 135 (Paragraph No.6), a Bench of this Court held that it is the choice of the landlord to use a particular portion of the building for particular purpose. The tenant cannot be guide in this respect.
24- The judgment in the case of Mattulal v. Radhe Lal, AIR 1974 SC 1596 (Para-12) heavily relied by the learned counsel for the tenant-petitioner does not support the case of the tenant-petitioner.
In the said case Hon'ble Supreme Court held that-
"Mere assertion on the part of the landlord that he requires non-residential accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for the Court to determine the truth of the assertion and also whether it is bonafide. The test which has to be applied is an objective test and not a subjective one and merely because a landlord asserts that he wants the non-residential accommodation for the purpose of starting or continuing his own business, that would not be enough to establish that he requires it for that purpose and that his requirement is bonafide. The word 'required' signifies that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must show the burden being upon him that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business".
25- Similar view has been taken by Hon'ble Supreme Court in the case of Deena Nath v. Pooran Lal, (2001) 5 S.C.C.705 (Paragraph Nos. 15,16 and 17).
26- In the present case, I find that both the courts below have objectively examined the bonafide need of the landlord-respondents and found that he is in bonafide need of the disputed shop. Therefore, these judgments are of no help on the facts of the present case.
27- Under the facts and circumstances of the case, as briefly noted above, the findings of both the courts below with regard to bonafide need of the plaintiff-landlord/respondents cannot be said to suffer from any legal infirmity. The findings recorded by the courts below are findings of fact, which are based on relevant evidences on record.
28- The legal position and conclusions as stated above are briefly summarized as under:
(i) Section 21(1)(a) of U.P. Act 13 of 1972 is very widely worded. Demolition and reconstruction for occupation by landlord himself either for residential purpose or for purposes of any profession, trade or calling is permissible. The words 'profession, trade or calling' are very wide and include all activities wherein a person may usefully and/ or gainfully engage himself.
(ii) If the disputed property has acquired commercial value and, therefore, the the landlord wished to demolish the old single storey structure and to construct a multi-storeyed building which may fetch him higher rent and has applied to the competent authorities and got the plans approved, then the landlord's bonafide need is true.
(iii) It is well settled 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 is for the landlord to decide which business he wants to do. The Court cannot advise him.
(iv) Landlord is the best judge of his need and this Court can not interfere in concurrent findings of fact regarding bonafide need establish before the Prescribed Authority and the appellate authority. This Court can interfere only when there is perversity in the findings recorded or when the courts below have acted without jurisdiction or far in excess of jurisdiction. A landlord has got a right to expand his business and in case, he requires additional space for it, the need cannot be said to be malafide. The tenant cannot dictate terms to the landlord as to how he should satisfy his need. Landlord is sole person who can take a decision as to which shop fulfils his need and the needs of his family. The tenant or for that matter even the Court can not guide the landlord as to which accommodation he should view to fulfil his need and which accommodation he shall not use.
(v) To be amenable to correction in certiorari jurisdiction, the error committed by the Court or Authority on whose judgment this Court is exercising jurisdiction, should be an error which is self-evident. An error which needs to be established by lengthy and complicated arguments or by indulging into a long- drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai (Supra) that the jurisdiction was not available to be exercised for indulging into re- appreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal.
(vi) The tenant-petitioner has not disputed the fact even before this Court that the landlord-respondents have offered him a shop on the ground-floor for vacating the disputed shop and that the commercial complex as per sanctioned map has already been constructed by the landlord-respondents over the land in question and the only shop is of the petitioner which obstructed the front portion of the newly constructed commercial complex. Under the circumstances, the bonafide need of the landlord-respondents stands proved under Section 21(1)(a) of U.P. Act 13 of 1972. Under the circumstances, the conduct of the tenant-petitioner in not vacating the shop, cannot be appreciated, inasmuch as he is the only tenant, who is obstructing better beneficial use of the commercial complex by the landlord-respondents.
(viii) Under the facts and circumstances of the case, the findings of both the courts below with regard to bonafide need of the plaintiff-landlord/respondents cannot be said to suffer from any legal infirmity. The findings recorded by the courts below are findings of fact, which are based on relevant evidences on record.
29- For all the reasons aforestated, this writ petition is dismissed with cost of Rs.5,000/-.
Order Date :- 11.7.2019 Ak/