Jai Ram Gupta and Another vs Jai Ram Verma and Another

S.U. Khan, J.—Heard learned Counsel for the parties.

These three writ petitions have been filed by the same landlords whose release applications u/s 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, filed on the ground of bona fide need against tenants who are respondent No. 1 in each of these petitions have been rejected. The properties in dispute are three shops adjoining to each other. One shop each is in possession of the respondent No. 1 in each of these writ petitions. The need set up in the release application was that the landlords wanted to settle their son in business who intended to open a departmental store after demolition of the three shops and constructing a new big shop for being used as departmental store. Release application against tenant Ghanshyam Das Sunar since deceased and survived by Jairam Verma was registered as Rent Case No. 27 of 1991, release application against Bhoop Chandra Sharma was registered as Rent Case No. 35 of 1991 and release application against Palak Dhari was registered as Rent Case No. 12 of 1992. Prescribed Authority/Special C.J.M., Kanpur allowed the release applications through common judgment and order dated 14.11.1994. Against the said order three appeals were filed being Rent Appeal No. 128 of 1994, 140 of 1994 and 17 of 1994.

Appeals were allowed by XIV A.D.J., Kanpur Nagar through judgment and order dated 8.1.1996 and order of the prescribed authority allowing the release application was set aside, hence this writ petition by the landlord. Landlords purchased the property in dispute in 1977. Each tenanted accommodation consists of two portions, one on the front and one on the back side. The dimension of each front portion is 12 feet 8 inch x 9 feet. The dimension of each back portion is 9 feet x 9 feet. Palak Dhari is carrying on the business of Bhurji (grain parcher) and the accommodation in his possession is on extreme south. The accommodation in possession of Bhoop Chandra Sharma is on north side. Jai Ram Verma is tenant of the accommodation in the middle and the rent of each shop is about Rs. 10 per month. Landlords are residing on the first floor of the accommodations in dispute. It was pleaded by the landlord that they had two sons. Elder son Daya Shanker was partner in the family business firm, however, Ram Shankar Gupta younger son of the landlord was unemployed and he wanted to open departmental provisional store. The appellate court agreed with the prescribed authority on several points, however appellate authority allowed the appeals only and only on the ground that Ram Shanker Gupta was found to be doing the business of selling and purchasing shares and had some money in his account.

In my opinion the view taken by appellate court is utterly erroneous in law. Selling and purchasing shares (for one self and not for others) cannot be said to be a regular business. Several people sell and purchase shares for investment. Appellate court did not find that any regular business was being done by Ram Shanker Gupta. The appellate court itself rightly rejected the contention of the tenants that need was not bona fide as occasionally Ram Shanker Gupta was helping his father and brother in the family business. Supreme Court in Sushila Vs. IInd Addl. District Judge, Banda and Others, ; Col. Shiv Mohan Kunzroo and Others Vs. Dy. Secretary, U.P. Shasan and Others, and Ram Kumar Barnwal v. Ram Lakhan AIR 2007 SC 3250 : 2007 (3) AWC 2866 (SC), has held that every adult members of the landlords'' family is entitled to independent separate business.

The tenant had also contended that towards the other side of the property in dispute there was a big shop let out to another tenant by the landlords and that shop was on the main road (Meston Road) which could have better satisfied the need of the landlord for opening departmental store, hence landlord should have filed release application against the said tenant. It was further contended by the tenants that property in dispute was situate on narrow lane/road. This contention was also rightly rejected by the lower appellate court. Out of several tenants, landlord is at complete liberty to file release application against any one.

As far as comparative hardship is concerned prescribed authority rightly held that it lay in favour of the landlord. Tenant did not make any effort to search alternative accommodation. As held by the Supreme Court in Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada, such omissions is sufficient to tilt the balance of comparative hardship in favour of landlord.

In my opinion looking to the facts and circumstances of the case it was a fit case for part release. Need of the landlord was quite bona fide. However, it could well be satisfied by releasing two of the three shops. An accommodation of about 22 feet x 18 feet is quite sufficient for opening a big shop which may also be termed as departmental store.

Out of the three tenants, two i.e., Jai Ram Verma and Bhoop Chandra Sharma are goldsmiths. They can very well arrange alternative accommodation. However, the tenant Palak Dhari tenant is carrying on business of Bhurji and his income must not be much. Accordingly, in my opinion release application against Jai Ram Verma and Bhoop Chandra Sharma deserve to be allowed. The Supreme Court in R.C. Kesharwani v. D. Prasad 2002 (2) ARC 298, has held that question of part release can firstly and finally be decided by the High Court in exercise of writ jurisdiction.

Writ Petition Nos. 16632 of 1996 and 16637 of 1996 are therefore, allowed. Judgment and orders passed by the lower appellate court in respect of the appeals of these two tenants are set aside and judgment and orders passed by prescribed authority directing eviction of these two tenants are restored. However, writ petition against the tenant Palak Dhari (No. 16638 of 1996) is dismissed. In the writ petition against Palak Dhari, i.e., Writ Petition No. 16638 of 1996 an impleadment application was filed. However, as the writ petition is dismissed, hence there is no heed to say anything regarding impleadment application which was filed by Krishna Devi and three other legal representatives of Ram Tahal, claiming joint tenancy.

Bhoop Chandra Sharma and Jai Ram Verma are granted six months'' time to vacate provided that:

Within one month from today tenants file an undertaking before the prescribed authority to the effect that on or before the expiry of aforesaid period of six months they will willingly vacate and handover possession of the property in dispute to the landlord-respondents;

For this period of six months, which has been granted to the tenants to vacate, they are required to pay Rs. 6,000 (at the rate of Rs. 1,000 per month) as rent/damages for use and occupation. This amount shall also be deposited within one month before the prescribed authority and shall immediately be paid to the landlord-respondents.

In case of default in compliance of any of these conditions, tenants shall be evicted through process of Court after one month. It is further directed that in case undertaking is not filed or Rs. 6,000 are not deposited within one month then tenants shall be liable to pay damages at the rate of Rs. 2,000 per month since after one month till the date of actual vacation.

Similarly, if after filing the aforesaid undertaking and depositing Rs. 6,000 the accommodation in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 2,000 per month since after six months till actual vacation. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and execution application u/s 23 of the Act.

I have held in Smt. Khursheeda Begum and Others Vs. Additional District Judge and Others, and H.M. Kichlu v. A.D.J. 2004 (2) ARC 652, that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the said relief already granted by the courts below, writ court is empowered to enhance the rent to a reasonable extent.

In the aforesaid authority of Khursheeda (supra), I placed reliance upon the Supreme Court authority of Malpe Vishwanath Acharya and Others Vs. State of Maharashtra and Another, where it was held that it was essential to provide for periodical enhancement of rent under the Rent Control Acts. The Supreme Court has further held that frozen rents are giving rise to lawlessness and landlords out of frustration are approaching muscle man to get the premises vacated and courts of law are becoming redundant in this sphere. This authority has recently been followed by the Supreme Court in Satyawati Sharma (Dead) by LRs. Vs. Union of India (UOI) and Another, of which are quoted below:

It is trite to say that legislation which may be quite reasonable and rationale at the time of its enactment may with the lapse of time and/or due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equity and even if the validity of such legislation may have been upheld at a given point of time, the Court may, in subsequent litigation, strike down the same if it is found that the rationale of classification has become non-existent.

In Malpe Vishwanath Acharya and Ors. v. State of Maharashtra and Anr. (supra), the Court found that the criteria for determination and fixation of rent by freezing or by pegging down of rent as on 1.9.1940 or as on first date of letting, had, with the passage of time become irrational and arbitrary but did not strike down the same on the ground that extended period of Bombay Rent Act was coming to an end on 31.3.1998.

Under U.P. Rent Control Act, there is no provision of enhancement of rent after October, 1972 [Except where landlord is public charitable or public religious institution (Section 9A) or Government is tenant (Section 21 (8)]. In the aforesaid authority of Khursheeda, I have also placed reliance upon the authority of Supreme Court in Shangrila Food Products Ltd. and another Vs. Life Insurance Corporation of India and another, of which is quoted below:

It is well-settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.

Thereafter in Para 8 of the aforesaid authority of Khursheeda, I held as under:

Rent Control Act confers a reasonable advantage upon the tenant of protection against arbitrary eviction. Tenant under the Rent Control Act cannot be evicted except on specific grounds like bona fide need of the landlord, arrears of rent, subletting and material alteration etc. This advantage is also coupled with the advantage of immunity from enhancement of rent. The latter advantage cannot be said to be either reasonable or equitable. The Supreme Court in the aforesaid authority of Shangrila Food Products Ltd. and another Vs. Life Insurance Corporation of India and another, has laid down that while granting relief to a party the writ Court can very well ask the said party to shed the unfair advantage which it gained under the impugned order. By slightly extending the said doctrine it may safely be held that while granting the reasonable advantage to the tenant conferred upon him by the Rent Control Act the tenant may be asked to shed the unreasonable arbitrary advantage conferred upon him by the said Rent Control Act. The writ court therefore, while granting or maintaining the relief against arbitrary ejectment to the tenant can very well ask the tenant to shed the unreasonable benefit of the Rent Control Act granted to him in the form of immunity against enhancement of rent, however inadequate the rent might be. Tenant will have to shed the undue advantage of immunity from enhancement of rent under the Rent Control Act to barter his protection from arbitrary eviction provided for by the said Act.

Thereafter in H. M. Kichlu v. A.D.J. 2004 (2) ARC 652, I have held that the same principle of enhancement of rent to a reasonable extent may be made applicable while dismissing the writ petition of the landlord for the reason that by doing so writ court approves the protection of Rent Control Act granted to the tenant by the courts below.

The rent of the shop in possession of Palak Dhari is enhanced to Rs. 500 per month as the shop in dispute is situate in Kanpur which is most expensive city and Meston Road which is an important commercial area of Kanpur is very near to the shop in dispute.