Husena and Another vs Jumman and Another

Dilip Gupta, J.—This petition has been by the tenants for quashing the Judgment and order dated 28th February 2008 by which the Appeal filed by the landlady u/s 22 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) was allowed.

The landlady had filed an application u/s 21(1)(a) of the Act for eviction of the tenant from the house in dispute namely House No. 182/1 situated in Mohallah Moghalahi District Fatehpur. The applicant was residing in House No. 189 at Mohallah Moghalahi which had only one small ''''Kothari'' measuring 12 ft X 71/2 ft on a monthly rent of Rs. 40/-; that it was extremely difficult for the applicant to live in that small ''''Kothari'' along with husband as it did not contain any latrine, bathroom and kitchen and nor was it possible to entertain any guest; that the applicant had no other house in District Fatehpur except the house in dispute; that the tenants on the other hand, had a big house in Mohallah Moghalahi and the tenants mainly resided in that house which was sufficient to meet their requirement; that the house in dispute was bona-fide required for the purposes of residence and also for the purposes of business of timber which her husband wanted to do for maintaining the family.

The tenants contested the application filed by the landlady and asserted that the applicant was not residing in a tenanted house along with her husband but in fact was residing in the house of her daughter and the applicant did not bona-fide require the premises in dispute since there was sufficient accommodation available in that house where the applicant was residing. It was also asserted that the tenants would suffer greater hardship in case the release application was allowed.

The Prescribed Authority rejected the application filed by the applicant holding that the applicant did not bona-fide require the premises and nor the applicant was likely to suffer greater hardship in the event the application was rejected. Feeling aggrieved, the applicant filed an Appeal u/s 22 of the Act, which was allowed by the Judgment and order dated 28th February 2008.

It needs to be noticed that during the pendency of the Appeal the sole applicant died and the husband and daughter were impleaded as legal heirs and representatives. An additional plea had also been taken by the Appellant in the Appeal that opposite party No. 2 Husena with his family resides in the house of opposite party No. 3 Malka situate in Mohallah Moghalahi Town Bindki and that Husena had also built his own house in Town Bindki some times in December 2005/January 2006 and is residing there. It was, therefore, asserted that both Husena and Malka had acquired separate houses and were residing there.

The Appellate Court has observed that it was not in dispute that the applicant along with her husband was residing in the house owned by their daughter Shakeela at the time when the application u/s 21(1)(a) of the Act had been filed. This house had been transferred by the husband of the applicant in favour of daughter Shakeela much earlier. The Appellate Court, therefore, observed that whether the applicant was residing as a tenant or as licensee in the house of the daughter was immaterial and the application filed by her u/s 21(1)(a) of the Act could not be rejected on this ground. The Appellate Court also observed that Malka owned a separate House No. 85 Mohallah Moghalahi Town Bindki District Fatehpur where the opposite party No. 1 Smt. Kallo and opposite party No. 2 Husena were also residing ordinarily in that house. The Appellate Court also observed that the landlady was likely to suffer greater hardship in case the application was rejected as the tenants were ordinarily residing at House No. 85 Mohallah Moghalahi in the same Town and that during the pendency of the release application no efforts were made by them to search an alternative accommodation.

I have heard Sri S.F.A. Naqvi learned Counsel for the petitioners and Sri S.K. Mishra learned Counsel appearing for the respondents.

Learned Counsel for the petitioners submitted that the need of the applicant was not bona-fide inasmuch as the daughter''s house had sufficient accommodation. He further contended that the Appellate Court wrongly committed an illegality in holding the applicant was likely to suffer greater hardship in the event the release application was rejected. Learned Counsel for the respondents has, however, submitted that the findings recorded by the Appellate Court are based on appraisal of evidence and do not call for any interference by this Court under Article 226 of the Constitution of India.

The contention of learned Counsel for the petitioners is that the applicant did not bona-fide require the premises in dispute inasmuch as the daughter''s house had sufficient accommodation to meet the requirement.

As noticed hereinabove, the accommodation owned by the daughter was a small ''''Kothari'' measuring 12 ft X 71/2 ft which did not even have a separate latrine, bathroom. This apart, the house was not owned by the applicant and it has to be seen whether in such a case whether the need is bona-fide.

In Siddalingamma and Another Vs. Mamtha Shenoy, the Supreme Court elaborately explained what ''''bona-fide'' need is and the relevant observations are as follows:

Rent Control Legislation generally leans in favour of tenant, it is only the provision for seeking eviction of the tenant on the ground of bona fide requirement of landlord for his own occupation or use of the tenanted accommodation which treats the landlord with some sympathy. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, this Court has held that a bona fide requirement must be an outcome of a sincere, honest desire in contra-distinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts, by placing himself in the place of the landlord is, whether in the given facts proved by material on record the need to occupy the premises can be said to be natural, real, sincere honest? If the answer be in the positive the need is bona fide. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself dwell into lesser premises so as to protect the tenant''s continued occupation in tenancy premises....

In Sarla Ahuja Vs. United India Insurance Company Limited, , the Supreme Court also observed:

...When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.

In Ragavendra Kumar Vs. Firm Prem Machinary and Co., , the Supreme Court pointed out thatF the landlord has complete freedom to chose his requirement for residential purposes and it was observed:

...It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter....

The facts, as they emerge from the pleadings clearly show that the applicant did not own any other accommodation in the Town except the house in dispute and that the applicant was residing in the house of the daughter in a small ''''Kothari''.

In such circumstances, when the said applicant does not have any other house in the city, it is difficult to hold that the need of the said applicant is not bona-fide. It cannot be said that the need is arbitrary, whimsical or fanciful. In fact the need is pressing as there is no suitable accommodation for the landlord. The Supreme Court in Julieta Antonieta Tarcato v. Suleiman Ismail AIR 2007 SCW 1538 observed that a landlady has every right to occupy her own premises and she cannot be told to share the accommodation with her relations. The relevant observations are as follows:

...The finding of bonafide personal need recorded by the Appellate Court is a finding of fact based on the evidence on record. We have considered the evidence on record and we find that the finding recorded by the Appellate Court did not deserve to be set aside. In fact, the High Court also was of the same view, but in the changed circumstances having regard to the events that took place during the pendency of the Writ Petition, the High Court interfered with the order of the Appellate Court. We hold that the High Court was not justified in doing so. It cannot be lost sight of that the premises which the appellant required for her personal bonafide need belonged to her. She was residing in those premises with other family members for many years. Unfortunately, she suffered an accident and in the absence of any other grown up male member in the family she was persuaded by her brother Lawrence to come and reside in his apartment which was one of the flats in the Ashoka Apartment and which was owned by him and his brother Tito. After residing there for several years, the appellant felt that she should not burden her brother any more and, therefore wanted to shift to her own accommodation which was then in occupation of the respondent. The Trial Court made much of the fact that the appellant had also pleaded her bonafide need of providing accommodation to other members of the family. While doing so the Trial Court completely lost sight of the fact that apart from the requirement of other members of the family, the appellant also required the premises for her own accommodation. Thus, even if the other members of the family no longer required the premises, the requirement of the appellant survived. She had every right to occupy her own premises and she could not be told that she should share accommodation with her brother in another apartment.

In such circumstances, there is no error in the finding recorded by the Appellate Authority that the applicant bona-fide required the house in dispute.

Learned Counsel for the petitioner then contended that the Appellate Court was not justified in holding that the applicant was likely to suffer greater hardship.

This contention cannot be accepted. There is nothing on the record to indicate that the tenant made any effort during the pendency of the application to find out any alternative accommodation.

In Faiyaz Khan v. 2nd Additional District Judge, Jhansi and Ors. 2006 (24) LCD 929, this Court observed:

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 Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada, this by itself was sufficient to tilt the balance of hardship against the tenant.

This apart, the Appellate Court has also held that the tenants have another residential house namely House No. 85 situated in the same Town where they were ordinarily residing. They will, therefore, not suffer greater hardship in case the release application was allowed. Thus, the balance of hardship is clearly in favour of the applicant.

The Appellate Authority has, on appraisal of evidence, recorded a categorical finding of fact regarding bona-fide need and comparative hardship. The Supreme Court in Muni Lal and Others Vs. Prescribed Authority and Others, clearly observed that while examining the findings of bona-fide need and comparative hardship of landlord and tenant it is not for the High Court in the exercise of its jurisdiction under Article 226 of the Constitution to reappraise the evidence and come to its own conclusion which may be different from that reached by the Appellate Authority.

This view has been reaffirmed by the Supreme Court in Surya Dev Rai v. Ran Chander Rai and Ors. 2003 (2) ARC 385 and Ranjeet Singh v. Ravi Prakash 2004 (1) ARC 613.

There is, therefore, no merit in this petition. It is, accordingly, dismissed.