Mohan Lal Vasudev vs Sardar Jasbir Singh

Lok Pal Singh, J

By means of present writ petition, petitioner has sought a writ of certiorari for quashing the judgment and order dated 11.08.2008 (Annexure-1) passed by the learned Prescribed Authority, Ist Additional Civil Judge (Senior Division), Dehradun in P.A. Case no.5 of 2005 Mohan Lal Vasudev vs. Sardar Jasbir Singh Wadhwa and judgment and order dated 08.02.2010 (Annexure-II) passed by the Additional District Judge/FTC-IV, Dehradun in Rent Control Appeal No.111 of 2008.

Brief facts of the case are that the petitioner is the owner of shop bearing no.7, Cement Road, Dehradun, which is under the tenancy of respondent @ Rs.50/- per month. Petitioner moved an application under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for release of shop in question on the ground of bonafide need of his son Sunil Chandra. It is stated that petitioner's elder son is employed in O.N.G.C. whereas his younger son Sunil Chandra is unemployed. He is married and his wife and son are dependent upon the petitioner. He is supplying bakery products from door to door and has no place to establish his business. It is also stated that there are number of shops vacant in the vicinity where the respondent can shift his business. Petitioner sent a legal notice to the respondent/tenant on 5.6.2004, which was duly served upon the respondent. Respondent/tenant appeared before the trial court and filed his objections to the release application. In the written statement, respondent/tenant admitted the landlord-tenant relationship. However, he denied the bonafide of the petitioner/landlord. Respondent alleged that the elder son of the petitioner is working in ONGC and is living separately whereas the younger son of petitioner is carrying business of Bakery and Confectionary from shop no.1; that petitioner has sufficient accommodation to run the business; petitioner's son has obtained a loan of Rs.55,000/- from the bank to run the confectionary business; that he is selling bakery items from door to door is incorrect; respondent is running his business of grocery in the shop in question since 1971 and has earned a goodwill; and his livelihood is dependent upon said business; and that respondent has tried to search alternative shop but to no avail.

Thereafter both the parties led their oral and documentary evidence. In documentary evidence, petitioner/landlord filed his affidavit vide list 23A/1 to 41, sale deed vide list 24A/13 to 28, sale deed vide list 24A/29 to 35, income certificates regarding assessment year 1998-99 to 2005-06 vide document 24A/36 to 51, annual tax vide list 24A/52 to 57, receipt obtained from City Youngs Preparatory School amounting to Rs.900/-, receipt issued by Doon Blossom Junior School regarding fees of petitioner's son Sunil Chandra paper no.24A/59, Mark-sheet paper no.24A/60, registration certificate 24A/61, map of property no.7 and 9, Cement Road, Dehradun paper no.24A/62. Peitioner/landlord, in oral evidence, filed affidavit of Rajesh Vasudev, Jogendra Kumar, H.K. Goel, Jitendra Mohan Agarwal, Neeral Goel, Vinod Kumar, Rajeev Kumar, Rajesh Tyagi, Rajeev Mata, Rajan Kumar Arora, Kishan narula, Chandra Prakash Kukreja, H.S. Bagga, Devendra Hurla, Vinay Dwivedi.

Respondent/tenant, in support of his averments made in the written statement, filed his affidavit paper no.79A/ to 21 along with annexures, list of applicants for Prime Minister Employment Scheme, photographs of the shop. In oral evidence, respondent filed affidavit of witnesses viz. Surjeet Singh, Smt. Manjeet Kaur, Harmeet Singh, Smt. Shakuntala Devi, Smt. Sunita Kumari, Ravindra Kumar, Rajkumar, Smt. Kamla Devi, Sanjeev Luthra, Manoj Kumar, Anil Bhaseen, J.D. Madhok.

After hearing the parties and on perusal of the evidence, learned Prescribed Authority rejected the bonafide need of the petitioner/landlord. While doing so, learned Prescribed Authority recorded finding that the petitioner's son Sunil Chandra had passed class XI in 1987 and got married in the year 1992. At present, he is aged about 35 years and the petitioner has not explained in the release application that from 1992 when his son got married and till 2005 when the release application was filed, how his son was earning for his livelihood and why the petitioner did not think about his son's employment from 1992 to 2005. Prescribed Authority further recorded a finding that the petitioner's son had raised a loan of Rs.50,000/- but he has not explained whether he had taken the said loan to run confectionary shop or for selling goods door to door and if the son of the petitioner has raised loan for confectionary shop, then the need for the shop in question does not arise. Further, finding was recorded that the petitioner is aged about 65 years and he has not disclosed how many persons are working with him in the said business and that petitioner's son might be working with his old aged father. Prescribed Authority further recorded a finding that the map plan annexed with the petition shows that the store available with the petitioner is square in size with dimensions 19 ft. x 19 ft. 2 inch x 29 ft. 11 inch x 4 ft., which may be divided into two parts and one part may be used by his son whereas the other would be sufficient for storage. On the issue of comparative hardship, the Prescribed Authority recorded a finding that as the petitioner/landlord has not been able to establish the bonafide need, the comparative hardship to the respondent/tenant would be greater as he has no alternative accommodation except the shop in question. Learned Prescribed Authority, vide judgment and order dated 11.08.2008, dismissed the release application. Feeling aggrieved, petitioner/landlord preferred an appeal being Rent Control Appeal No.111 of 2008.

Appellate Court also did not find favour to the petitioner/landlord and dismissed the appeal, vide judgment and order dated 8.2.2010.

I have heard learned counsel for the parties and have gone through the entire material available on record.

Learned Senior Counsel for the petitioner would contend that the courts below have erred in law in rejecting the release application of the petitioner/landlord which was filed on the ground of bonafide need of his younger son. He would contend that it is the moral as well as the social duty of the petitioner to get his son settled during his lifetime by providing him a shop to run his business. He would further contend that the bonafide need was proved on record but the Prescribed Authority rejected the same and set up a new case beyond the averments of the release application. Prescribed Authority has wrongly recorded a finding that the petitioner/landlord has not disclosed as to how many persons are working with him in the said business and further has wrongly suggested that the petitioner should partition the store to adjust his son in his bakery business. It is contended that it is the landlord's prerogative as to in which manner he wants to use his property. It is also contended that on the issue of comparative hardship both the courts below have recorded perverse finding that the comparative hardship to the respondent/tenant would be greater as he has no alternate accommodation except the shop in question.

Per contra, Mr. Aditya Singh, learned counsel for the respondent/tenant would submit that there are concurrent findings of fact recorded by the courts below in favour of the respondent/tenant and interference by this Court in such findings is not justified. He would further submit that the Prescribed Authority has rightly rejected the bonafide need of the petitioner as the same was not proved. As regards the comparative hardship, it is submitted that the respondent/tenant is running grocery shop in the shop in question since 1971 and has earn a goodwill, and in case shop in question is released in favour of the petitioner/landlord, it would cause irreparable loss and injury to the respondent/tenant.

The prime question to be answered is as to whether the petitioner/landlord is in bonafide requirement of the tenanted premises.

In the case at hand, the petitioner claims that he require the tenanted premises for his younger son, He is doing work of supplying bakery products from door to door and has no place to establish his business. Petitioner's younger son is married and his wife and son are dependent on the petitioner. On the other hand, respondent claims that petitioner has sufficient accommodation to run the business and that need shown by the petitioner for his son is not genuine. According to him, he is running his business of grocery in the shop in question since 1971 and has earned goodwill; and his livelihood is dependent upon said business; and that respondent has tried to search alternative shop but to no avail. Prescribed Authority as well as the appellate court has rejected the bonafide need of the petitioner. Prescribed Authority has recorded finding that the petitioner/landlord did not think about his son's employment, who is aged about 35 years, between the period 1992 to 2005 when his son got married. Prescribed Authority further observed that the petitioner has not disclosed how many persons are working with him in the said business and that petitioner's son might be working with his old aged father. Prescribed Authority further recorded a finding that there is store in the possession of the petitioner which may be divided into two parts, one part may be used by his son and other would be sufficient for storage. This Court cannot fathom as to how non-disclosing the number of persons working with the petitioner and further gaining possession of the store, can in any way prevent the petitioner from seeking eviction of the shop in question. It is quite natural that in order to establish the younger son, who is currently supplying bakery items door to door, petitioner wants to utilize the commercial property which he owns. The tenant has no right to dictate the terms and conditions to the landlord as to how he must use the commercial property which is under his ownership. It is well-settled that the landlord is the best judge of his own needs. It is his prerogative as to in which manner he wants to use his property and law should not and cannot prevent such utilization by a landlord in order to meet his bonafide requirement. Not only the Prescribed Authority, but the appellate court has gone one step ahead while rejecting the bona fide need of the landlord/petitioner. The appellate court termed the bona fide need of the petitioner/landlord as a mere desire.

The expression 'bona fide need', or 'requirement' has to be meaningfully construed so as to make the relief granted to the landlord real and practical. Hon'ble Supreme Court in Bega Begum vs. Abdul Ahad Khan AIR 1979 S.C. 272 has held that reasonable requirement undoubtedly postulates that there must be an element of need opposed to a mere desire or wish and that the distinction between the two must be kept in mind but it has given a caution that the expression should not be considered in a manner so as to make even a genuine need as nothing but a desire. The connotation of the term 'need' or word 'requirement' should not be artificially extended not its language so unduly stretched or stained as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act.

The right of the landlord for possession of his property for setting up a business for his son has been also recognized by the Apex Court in Ram Babu Aggarwal Vs. Jay Kishan Das (2010) 1 SCC 164, wherein it was held as under:

"However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also."

In Mohd. Ayub and another vs. Mukesh Chand (2012) 2 SCC 155, Hon'ble Apex Court has held as under:-

"15. It is well settled that 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 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.

It is also important to note that there is nothing on record to show that during the pendency of this litigation the respondent made any genuine efforts to find out any alternative accommodation. We specifically asked learned counsel for the respondent to point out any evidence to establish that the respondent made any such genuine efforts. He was unable to answer this query satisfactorily."

In Sait Nagjee Purushotham and Co. Ltd. v. Vimalabai Prabhulal and Ors. (2005) 8 SCC 252, the Apex Court has observed as under:-

"It is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business."

As regards the issue of comparative hardship, there is nothing on record to show that during the pendency of lis between the parties before different courts, the respondent/tenant made any genuine efforts to find out any alternative accommodation. Thus, comparative hardship is also tilted in favour of the petitioner in the facts and circumstances of the case.

In the backdrop of aforesaid discussion, this Court is of the view that the perverse findings of the courts below on the aspect of bonafide need and comparative hardship must be set aside. In such view of the matter, appeal is allowed. Impugned judgment and orders are quashed and set-aside. The respondent/tenant is granted six months' time to handover the vacant and peaceful possession of the premises in question to the petitioner/landlord, subject to the following:-

i) The respondent/tenant shall file an undertaking before the trial court within one month from today to the effect that he shall vacate the premises in question on or before 31st January, 2020 and shall handover vacant and peaceful possession of the premises in question to the landlord.

ii) The respondent/tenant shall undertake to pay the entire arrears of rent, if any, to the landlord within a period of two months from today.

iii) The respondent/tenant shall continue to pay the rent for the use and occupation of the premises in question on each succeeding month till vacation of the accommodation on 7th day of each month.

iv) The respondent/tenant shall not induct any other person in the premises in question.

v) In the event of default of any of the aforesaid conditions, the respondent/tenant shall not be entitled to continue in the premises in question up to 31.01.2020 and the decree shall be executed forthwith.

No order as to costs.