Alakh Narain Batham and another vs Geeta Devi and others

Dilip Gupta, J.—This petition has been filed by the landlords for setting aside the judgment and order dated 27th April, 2004 passed by the learned Additional District Judge, Room No. 2, Kanpur Nagar by which Rent Control Appeal No. 37 of 1999 filed by the tenants against the order dated 23rd January, 1999 passed by the prescribed authority allowing the application filed by the landlords under section 21 (1) (a) of the U.P. urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the ''Act'') for eviction of the tenants from the shop in dispute was dismissed.

The landlords had filed the application under section 21 (1) (a) of the Act alleging that the applicants were educated unemployed; that they bona fide needed the shop in dispute for starting the business of general merchant from the shop in dispute as they had no other place available with them and that the applicants were likely to suffer greater hardship in the event the application was rejected. Thetenants filed the objections and various affidavits were exchanged between the parties.

The prescribed authority by the order dated 23rd January, 1999 allowed the application holding that the landlords bona fide required the shop for opening the shop of general merchant and that the applications were likely to suffer greater hardship in the event the application was rejected.

The tenants filed an appeal under section 22 of the Act and during the pendency of the appeal, they filed an affidavit of Santosh Gupta by way of additional evidence. The landlords filed a reply to the said affidavit but no rejoinder affidavit was filed by the tenants. The appeal was allowed holding that the landlords did not bona fide require the shop and that the landlords were not likely to suffer greater hardship in the event the application was rejected. The Appellate Court observed that the landlords were running a soap manufacturing factory which had been closed and, therefore, the said accommodation could be used by them for the shop; that the possession of shop No. 3 in House No. 6, Rail Bazar Cannt., Kanpur Nagar which was under the tenancy of Heera Lal was handed over to the landlords in 1995 and, therefore, if there was any bona fide need, they could have utilised the said shop.

Learned Counsel for the petitioners submitted that the findings recorded by the Appellate Court regarding bona fide need of the landlords and comparative hardship are perverse and are liable to be set aside. Learned Counsel appearing for the respondents, however, submitted that there is no infirmity in the findings recorded by the Appellate Court as cogent reasons have been given in arriving at this finding.

Elaborating his submissions, learned Counsel for the petitioners submitted that though the soap manufacturing factory was closed but that accommodation was not suitable for opening the general merchant shop and the Lower Appellate Court has not even recorded any finding about the nature and location of the accommodation. He submitted that even the tenant had not pleaded in the written statement that the said accommodation could be used for carrying on the business by the landlords but still the Appellate Court found that this place could be utilised for the purpose of the shop.

The plea that was set up in the written statement filed by the tenants was that after the closure of the factory, the landlords had let out the godown to Indian Press at the rate of Rs. WOO/ per month and the remaining portion to Munnu and Nanhe at the rate of Rs. 1500/ and Rs, 1000/ per month respectively. It was not the case taken up by the tenants that the landlords could start the business of general merchant shop from the factory and even before the prescribed authority, the landlord had come out with a categorical case that the factory was not on the main side or in the market area and was not suitable for starting the business of general merchant. In this connection the landlords had filed a joint affidavit and in paragraph 4 of the said affidavit, it was specifically stated that the factory was situated away from the market and inside the narrow lane from where it was not possible to start the business of general merchant. The tenant did not file any reply to this affidavit and this affidavit remained uncontroverted. It is, therefore, not possible to sustain this finding to the Appellate Court.

The Appellate Court has also observed that the landlord could start the business from Shop No. 3 situate in House No. 6, Rail Bazar Cantt., Kanpur Nagar which was under the tenancy of Heera Lal. The Appellate Court noticed that the earlier tenant Heera Lal had delivered vacant possession of the shop to the landlord in 1995 and thereafter the landlords had let out the said shop to Ajay Kumar son of Jagdish Prasad who was doing business from the shop.

Learned Counsel for the petitioners submitted that the petitioners had filed an affidavit specifically stating that Jagdish Prasad and Heera Lal were jointly carrying on the business since 1974 as partners and subsequently in 197576 Heera Lal withdrew from the business and Ajay Kumar son of Jagdish Prasad started doing business and he was also presently doing the business. He also submitted that the said shop was never given in the possession of the landlord and nor was it vacated. He submitted that the Appellate Court has wrongly placed reliance upon the affidavit of Shyam Kishore Gupta brother of Nand Kishore Gupta and son of Heera Lal.

Shyam Kishore Gupta in his affidavit stated that his father Heera Lal was earlier the tenant of shop No. 3 situate in House No. 6,, Rail Bazar Cantt., Kanpur Nagar and the petitioners were the landlords. On the death of his father Heera Lal, Shyam Kishore Gupta and his brother Nand Kishore Gupta became joint tenants and Nand Kishore Gupta gave possession of the shop to the landlords in 1995 who thereafter gave the shop on rent Ajay Kumar son of Jagdish Prasad and the said Ajay Gupta is running the sweet shop from the said shop. The appellate Court has placed reliance on this affidavit in order to come to the conclusion that the said shop was available to the landlords in 1995.

Learned Counsel for the petitioners submitted that the said affidavit was filed by Shyam Kishore Gupta who was separate in mess since the lifetime of his father and was also running a separate shop from House No. 44, Rail Bazar Cantt, Kanpur Nagar and that he had no concern with the aforesaid shop in which Heera Lal and Jagdish Prasad were jointly carrying on the business from 197475. In support of this contention, he has placed reliance on the subsequent affidavit filed by Nand Kishore Gupta in which these facts were stated to which here is no rebuttal.

It is correct that the Appellant Court has recorded a finding about shop No. 3 situate in House No. 6, Rail Bazar Cantt., Kanpur Nagar only on the basis of the affidavit filed by Santosh Kumar Gupta at the appellate stage, when landlords had filed a specific affidavit which was not controverted by the tenant that Santosh Kumar Gupta, brother of Nand Kishore Gupta and son of Heera Lal had no connection whatsoever with the said shop in question and was not only separate in mess but was engaged in business from a different shop, the Appellate Court was not justified in placing reliance upon that affidavit particularly when no reply was filed by the tenant to the subsequent affidavit. The Appellate Court was also not justified in disbelieving the affidavit of Nand Kishore Gupta only on the ground that the partnership deed had not been filed. It was not the case taken by the tenants that there was no partnership deed in writing between Heera Lal and Jagdish Prasad. It is not in dispute that Ajay Kumar is the son of Jagdish Prasad and he is running sweet shop from the said shop. There was no documentary evidence before the Appellate Court except the affidavit of Santosh Kumar Gupta that the possession of the said shop had been given to the landlords in 1995. The Appellate Court was, therefore, not justified in coming to the conclusion that the said shop was available to the petitioners for carrying the business.

The prescribed authority had recorded a categorical finding that the landlords bona fide required the shop in dispute for starting the business of general merchant. The landlords are educated and are unemployed. The Courts have repeatedly held that the need of the landlords to establish themselves in business is bona fide. The finding to the contrary recorded by the Appellate Court only on the ground that the landlord could have started the business of general merchant from either the soap factory which has been closed or form Shop No. 3 in House No. 6, has been found to be perverse. In such circumstances, the appellate authority fell in error in holding that the landlords did not bona fide require the shop in dispute. The finding recorded by the prescribed authority was justified in the facts and circumstances of the case.

The prescribed authority also recorded a finding that the landlords were likely to suffer greater hardship in the event the application was rejected. The appellate authority in a very casual manner observed that since the tenant was in occupation of the shop for quite some time and the landlords had been put in possession of a shop after the filing of the application, the tenant was likely to suffer greater hardship in the event the application was allowed.

Learned Counsel for the petitioners submitted that during the pendency of the application the tenants had not made any effort to find out an alternative accommodation and even otherwise merely because the tenant was in possession of the shop for a considerable period of time will not necessarily mean that the tenant will suffer greater hardship if''it is found that the landlords have no place to start their business.

The Supreme Court in Sushila v. Ilnd Additional District Judge, Banda and others, 2003 (52) ALR 160 (SC)=2003 (9) AIC 156. clearly observed that even if the tenant is in possession of the shop since a long time then too the same will have no material bearing in deciding the question of comparative hardship if the landlord has no other shop for starting the business. The relevant observations are quoted below :

"...................So far as the petitioner is concerned, she has no other shop where she can establish her married son who is unemployed. In such circumstances, the only fact that the shop in question is in possession of the tenant since long will have no material bearing in deciding the question of comparative hardship. To say that son of the petitionerlandlady may remain unemployed but the shop in question must continue to remain in occupancy of the tenant to whom yet another shop is available in Chowk Bazar would not withstand the guidelines and tests laid down in subrule (2) of Rule 16 of the Rules of 1972.

A bare perusal of Rules 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, makes it clear that the rule only prescribes certain factors which have also to be taken into account while considering the application for eviction of a tenant on the ground of bona fide need. Subrule 2 of Rule 16 quoted earlier relates to the cases of eviction from an accommodation for business use. Clause (a) of subrule 2 provides, greater the period of tenancy less the justification for allowing the application; whereas according to Clause (b) in case tenant has a suitable accommodation available to him to shift his business, greater the justification to allow the application. Availability of another suitable accommodation to the tenant, waters down the weight attached to the longer period of tenancy as a factor to be considered as provided under Clause (a) of subrule 2 of Rule 16. Yet another factor which may in some cases be relevant under Clause (c) is where the existing business of the landlord is quite huge and extensive leaving a.side the proposed business to be set up, there would be lesser justification to allow the application. The idea behind subclause (c) is apparent i.e., where the landlord runs a huge business eviction may not be resorted to for expansion or diversification of the business by uprooting a tenant having a small business for a very long period of time. In such a situation if eviction is ordered it is definitely bound to cause greater hardship to the tenant.

In the case in hand we find that even though the period of tenancy of the respondent is no doubt long but availability of another shop to him where he can very well shift his business as found by the prescribed authority, neutralises the factor of length of tenancy in the accommodation in dispute. We further find that the landlady has no other shop where she can establish her son who is married and unemployed. There is nothing on the record to indicate that the business of father of Prem Parkash is so huge or that it is a very flourishing business so as to attract application of Clause (c) of Rule 16 (2). As observed earlier it is clear that length of period of tenancy as provided under Clause (a) of subrule 2 of Rule 16 of the Rules, 1972 is only one of the factors to be taken into account in context with other facts and circumstances of the case. It cannot be a sole criterion or deciding factor to order or not the eviction of the tenant. Considering the facts in the light of Rule 16 pressed into service on behalf of the respondent, we find that according to the guidelines provided therein balance tilts in favour of the unemployed son of the landlady whose need is certainly bona fide and has also been so accepted by the respondent before us."

While deciding the question of bona fide, it has been found that there was no other shop available with the landlords from where the business could be carried out. In view of the aforesaid decision of the Supreme Court, the observation of the Appellate Court regarding length of the tenancy is not justified.

This apart, there is nothing on the record to indicate that any effort was made by the tenants to find out an alternative accommodation after filing of the release application. This Court in Faiyaz Khan v. IInd Additional District Judge, Jhansi and others, 2006 (62) ALR 908. clearly observed that in such eventuality the comparative hardship will tilt in favour of the landlord. The relevant observations are quoted below :

"Concept of comparative hardship can not be stretched to the extent of depriving the landlord of his property even if landlord is in real and imminent need. It has been brought on record that in adjoining town Dr. Amin was having a clinic even though he asserted that he attended that only off and on. In any case tenant did not show that he made any efforts to search alternative accommodation after filing of the release application. As held by the Supreme Court in B.C. Bhutada v. G.R. Mundada, AIR 2003 SC 2713. this by itself was sufficient to tilt the balance of hardship against the tenant."

Thus, in view of the aforesaid the finding recorded by the appellate authority regarding comparative hardship deserves to be set aside and is accordingly set aside. In the facts and circumstances of the case, the landlords will suffer greater hardship in the event the application filed by them is rejected.

In the end learned Counsel appearing for the tenants submitted that four months may be given to the tenants to handover peaceful possession of the shop to the landlords.

Learned Counsel appearing for the landlords submitted that the Court may grant the aforesaid time provided the tenants give the usual undertaking within three weeks from today before the Court below.

The writ petition is, accordingly, allowed the judgment and order dated 27th April, 2004 is set aside and the order dated 23rd January, 1999 passed by the prescribed authority is restored.

However, the tenants shall not be ejected from the shop in dispute for a period of four months from today provided they give the following undertaking before the Court below within three weeks from today :

That the tenants shall pay damages at the rate of Rs. 200/ per month beginning from April, 2008 up to the date they handover the possession of the shop to the landlords.

That the tenants shall not induct any other person in the shop.

That the tenants shall handover peaceful possession of the shop to the landlords on or before the expiry of four months.

It is made clear that in the event the tenants fail to give the undertaking within the aforesaid period or fail to comply with any of the terms of the undertaking, then in that case, it will be open to the landlords to get the order executed.