Supreme Court - Daily Orders
Harish Kumar (Dead) vs Pankaj Kumar Garg on 7 January, 2022
Bench: Uday Umesh Lalit, S. Ravindra Bhat
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.253 OF 2022
(@ Out of Special Leave to Appeal (C) No(s).9501/2018)
HARISH KUMAR (Since deceased)
Through: Lrs. Appellant(s)
VERSUS
PANKAJ KUMAR GARG Respondent(s)
O R D E R
Leave granted.
This appeal challenges the final judgment and order dated 19.12.2017
passed by the High Court of Uttarakhand, Nainital in Writ Petition
No.1754 of 2014 (M/S).
The appellant1 preferred an application under Section 21(1)(a) of
the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 19722 seeking release of the premises in possession of the
respondent-tenant. The premises were described in the application as
under:-
“A shop facing west in whose east, there is a passage-
aabchak, road in west, shop of Trilok Chand Satija in the
north and in the south, shop of Ramkishan Dass, Arvind
Kumar situated in Mohalla Mehtan, Main Bazar, Jwalapur
District:- Haridwar”
Signature Not Verified
The ground on which release was sought was pleaded as under:-
Digitally signed by
Indu Marwah
Date: 2022.01.12
17:49:06 IST
“3. That the younger son of the Plaintiff Vertul Kumar
Reason:
whose age is approximately 24 years who has taken the
education upto B.Com.. But despite making lots of effort
1 Since deceased, represented by his legal heirs and represent alives.
2 (‘the Act” for short) in its application to the State of Uttarakhand.
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he is not able to get the service and he is totally
unemployed.
4.That the plaintiff has met with an accident approximately
four years ago and there has been fracture in his right leg
and he often keeps sick and due to this reason, he is not
able to do the business. The son of the plaintiff is
Vertul Kumar who has also been unemployed, due to this
reason, there is tension in the house. The plaintiff
wants to be free from his duty and responsibility by
getting the business started for his son Vertul Kumar and
wants to settle him but plaintiff does not have any
property apart from the property in question in which he
could settle him by getting his business started. The
defendant does not have any requirement of the said shop.
The shop is often closed and defendant mostly does the
business of property dealing and he has occupied the
property merely for name sake and he does not have any
requirement of the property in question.
5.That the plaintiff wants to get his son Vertul Kumar
settled by starting the business but the plaintiff does not
have any other property apart of the property in question
for starting the business for his son. Due to this reason,
the plaintiff has immediate and legal and bonafide
requirement of the property in question so that he could
get his son settled by getting him in business and he could
be relieved from his responsibility.
6.That because Vertul Kumar is unemployed, there is also
problem in his marriage also not getting married.”
In response to the aforestated application, the respondent
submitted inter alia that after filing of said application seeking
release, he had been searching for an appropriate place to shift his
business but till the date of filing of the response, no proper place
could be secured by the respondent.
The Prescribed Authority by its order dated 21.02.2011, rejected
the application preferred by the appellant. However, in an appeal
arising therefrom, the Appellate Authority by its order dated
30.06.2014, accepted the submissions made by the appellant and allowed
the application for release preferred by the appellant. The Appellate
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Authority found that the bona fide requirement as pleaded by the
appellant was genuine. The relevant observations of the Appellate
Authority were:
“30. In this way on the basis of the entire analysis, the
court is of the view in regard to the bona fide requirement
of the plaintiff does not have any such place or property
available with him in addition to the disputed property
where the Plaintiff/Appellant could get the independent
business for livelihood of his unemployed son. The Plaintiff
has the right that he should make the proper place available
to his unemployed son for establishing his business.
31. In this way on the basis of the entire analysis,
the Court is of the view that the application for eviction
of the disputed property has been filed by the plaintiff for
establishing his unemployed son in any business and that too
in the circumstances where the son of the plaintiff is
educated unemployed and the plaintiff does not have any
commercial property then under these circumstances the
requirement of the plaintiff for eviction of the disputed
property will be immediately and will be considered to be
bona fide. In this way, this Court is not in agreement
with the finding of the lower court that the plaintiff does
not have the immediate and bona fide requirement of the
present shop.”
Thereafter the issue of comparative hardship was also dealt with
by the Appellate Authority and answered in favour of the appellant.
The matter was carried further by the respondent by filing Writ
Petition No.1754 of 2014 under Article 227 of the Constitution of India.
Said petition was allowed by the High Court principally on the ground
that the son of the appellant for whose benefit the release was sought
was assessed to Income Tax and was having income of Rs.1,14,508 per
annum and therefore was not an “unemployed” person. The High Court thus
found that no case was made out to maintain an application under Section
21(1)(a) of the Act. The writ petition was thus allowed and the
application for release preferred by the appellant was dismissed.
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In this appeal challenging the decision of the High Court, we
have heard Mr. A.K.Sangal, learned Senior Advocate in support of the
appeal and Mr. D.K. Garg, learned advocate for the respondent.
Section 21(1)(a) of the Act, under which the application for
release was filed, reads as under:
“21. Proceedings for release of building under occupation of
tenant.-
(1) The Prescribed Authority may, on an application of
the landlord in that behalf, order the eviction of a tenant
from the building under tenancy or any specified part
thereof if it is satisfied that any of the following grounds
exists namely-
(a) that the building is bona fide required either
in its existing form or after demolition and new
construction by the landlord for occupation by himself or
any member of his family, or any person for whose benefit it
is held by him, either for residential purposes or for
purposes of any profession, trade or calling, or where the
landlord is the trustee of a public charitable trust, for
the objects of the trust ………”
It is quite clear that aforestated provision seeking release of the
premises on the ground of bona fide requirement does not strictly require
the landlord to be “unemployed” to maintain an action. All that the
provision contemplates is that the requirement so pleaded by the landlord
must be bona fide.
It is to be noted that the instant premises have been in the
occupation of the tenant for more than 30 years and are situated in
Jwalapur near Haridwar. The facts on record indicate that the appellant
had suffered an accident and he genuinely wanted his son to be settled in
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business. It may be that the son of the appellant was having some income
but that by itself would not disentitle him from claiming release of the
premises on the ground of bona fide need. The need pleaded by the
appellant was found to be genuine and was accepted by the appellate
authority which is the final fact-finding authority. The issue with
regard to comparative hardship was also answered in favour of the
appellant.
In the circumstances, the High Court while exercising jurisdiction
under Article 227 of the Constitution of India was not justified in
upsetting the finding of fact rendered by the Appellant Authority.
We, therefore, allow this appeal, set aside the view taken by the
High Court and restore the order passed by the Appellate Authority.
At the request of Mr. D.K. Garg, learned advocate appearing for the
respondent, we however grant to the respondent time upto 31.12.2022 to
vacate the premises subject to the filing of usual Undertaking in the
Registry of this Court within three weeks from today.
Needless to say that the respondent shall clear all the arrears of
rent and continue to pay monthly rent regularly and shall vacate the
premises and handover peaceful possession to the appellant on or before
31.12.2022.
In case the Undertaking is not filed within three weeks from today,
the order passed by the Appellate Authority shall become executable
forthwith.
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The appeal is allowed in aforesaid terms. No costs.
……………………………………………………J.
[UDAY UMESH LALIT]
……………………………………………………J.
[S. RAVINDRA BHAT]
New Delhi;
January 7, 2022.
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ITEM NO.12 Court 2 (Video Conferencing) SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 9501/2018
(Arising out of impugned final judgment and order dated 19-12-2017 in
WPMS No. 1754/2014 passed by the High Court Of Uttarakhand At Nainital)
HARISH KUMAR (Since deceased)
Through: Lrs. Petitioner(s)
VERSUS
PANKAJ KUMAR GARG Respondent(s)
Date : 07-01-2022 This petition was called on for hearing today.
(I.A. No. 158268 Of 2021: Substitution application to bring on record
Legal Representatives of deceased petitioner)
CORAM :
HON'BLE MR. JUSTICE UDAY UMESH LALIT
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
For Petitioner(s) Mr. Anil Kumar Sangal, Senior Advocate
Mr. Siddharth Sangal, AOR
Ms. Nilanjani Tandon, Advocate
For Respondent(s) Mr. Dhananjay Garg, AOR
UPON hearing the counsel the Court made the following
O R D E R
The Special Leave Petitioner having expired during the pendency of the instant proceedings, the application for substitution preferred on behalf of appellant is allowed. The amended cause title which has been filed in the Registry is also taken on record.
Leave granted.
The appeal is allowed in terms of signed order. Pending applications, if any, shall stand disposed of.
(INDU MARWAH) (VIRENDER SINGH)
COURT MASTER (SH) BRANCH OFFICER
(SIGNED ORDER IS PLACED ON THE FILE)