Mohd.Sohail vs Additional District Judge-10, Lucknow and Another

A.N. Varma, J.—The instant petition arises out of proceedings initiated by the petitioner under Section 21 (1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U.P. Act No.13 of 1972 (hereinafter referred to as the ''Act'') for the ejectment of the opposite party No.2. The application for release of the building was allowed by the Prescribed Authority vide judgment and order dated 6.10.2004, on the ground of genuine need of the petitioner. The appeal preferred by the opposite party No.2 was allowed by the opposite party No.1, vide judgment and order dated 20.7.2005.

The controversy in the petition centres around a portion of house No.165/1, Maulviganj, Hata Khan Faquir Mohammad, P.S. Aminabad, District Lucknow, of which the petitioner is the landlord and opposite party No.2 being tenant of the same i.e. in one room in the ground floor of the said house on a monthly rent of Rs.250. The case set up by the petitioner was that his family consisted of himself, his wife and five sons. The eldest son Mohd. Iqbal was doing his business as a skin merchant and carried on his work from house No.162/242, Chikmandi, Aminabad. The second son Ejaz was in Saudi Arabia and third son Mohd. Miraj and fifth son Mohd. Tikhlaq were running a stationary goods shop and fourth son Mohd. Ashfaq was unemployed and was yet to start his business of Card Board material for which the petitioner had to provide him some finds but he had no accommodation for his said son to begin the aforesaid business. It was further the case of the petitioner that opposite party No.2 has since closed down his business and the shop under his tenancy has been locked, as he has gone to Saudi Arabia where he was working.

In view of the fact that the shop in question was being occupied by opposite party No.2, and no business was being carried out, therefore, the same was required by the petitioner to establish his one son in business as he had no other shop for the purpose. The need, therefore, of the landlord was bondafide, genuine and pressing. It was also the case of the petitioner that in case his application for release is rejected greater hardship would occasion to him in comparison to opposite party No.2, in case he is allowed to retain the possession of the shop in question without any business activity being carried out in the same.

To the said application under Section 21 (1)(a) of the Act, opposite party No.2 filed a written statement through his wife. It was not disputed that opposite party No.2 at the time when the application under Section 21(1)(a) of the Act was preferred, was in Saudi Arabia and in the shop in question electric repair work was being carried on under the supervision of his wife with the help of other electricians. It was further pleaded that Mohd. Ashfaq for whom the shop in question was required, is already settled in business. It was further averred that apart from the shop in question there were several other shops of which the petitioner was owner and, therefore, his need for the same for establishing his son in business was not bonafide and genuine. The plea of comparative hardship was also raised which according to opposite party No.2 tilted in his favour.

5.The Prescribed Authority vide its judgment and order dated 6.10.2004 allowed the application preferred by the petitioner under Section 21(1)(a) of the Act and directed the opposite party No.2 to vacate the shop in question within a period of one month. Being aggrieved against the said judgment and order the petitioner filed appeal under Section 22 of the Act. Opposite party No.1 vide its judgment and order dated 20.7.2005 allowed the appeal and set aside the judgment and decree passed by the Prescribed Authority.

On 16.9.2005, the writ petition filed by the petitioner, challenging the judgment by the appellate authority was admitted and the notices were issued to opposite party No.2 and 24.10.2005 was the date fixed for appearance of the said opposite party. Since the notices were issued and no registered cover was received back, therefore, vide office report dated 18.11.2005, service on opposite party No.2 was deemed sufficient under Chapter 8 Rule 12 of the Allahabad High Court Rules. From the order sheet it appears that on several dates the case was listed but no one appeared for opposite party No.2, therefore, vide order dated 1.3.2006, the case was directed to be listed for final hearing. Despite service of notice being sufficient and no one appeared for opposite party No.2 when the matter was taken up for hearing, therefore, the Court proceeded to hear the matter.

I have heard Shri Devendra Mohan Shukla, holding brief for J.N. Mathur, learned counsel for the petitioner.

Shri Shukla, vehemently argued that the judgment and order passed by opposite party No.1 allowing the appeal is illegal and suffers from manifest errors of law. His submission is that need of the landlord under Section 21(1)(a) of the Act was required to be scrutinized on the date when such an application was preferred. He further submitted that in view of the fact that on the date when the said application was filed by the landlord the opposite party No.2 was not in India and was abroad in connection with some occupation and the shop was being run through Furqan Ahmad and Rizwan Ahmad, therefore, a subtenancy had been created in the premises in question. In this connection, the learned counsel referred to Section 25 of the Act, which contemplates with regard to prohibition of subletting. SubClause 1 of Section 15(1)(2) says that a tenant ceases to occupy the building under Clause (b) of Section 1 or Section 2 of Section 12 of the Act and he is deemed to have sublet the building. The submission of the learned counsel for the appellant is that even otherwise Furqan and Rizwan not being member of family were admitted in the shop, therefore, the said building was sublet and, therefore, opposite party No.2 was liable to be ejected. He also referred to Section 12(1)(b) of the Act, which postulates that a landlord or a tenant of a building shall be deemed to have ceased to occupy the building or part thereof in case he allows the same to be occupied by a person who is not a member of his family. Admittedly, Furqan and Rizwan are not the members of the family of the opposite party No.2, therefore, as per his submission, there was a deemed vacancy and the case of opposite party No.2 for comparative hardship in so far as he was concerned was not required to be considered by opposite party No.1. According to the learned counsel, the lower appellate Court has not taken into account these aspects of the matter.

Submission of Shri Shukla further was that the observation made by the learned appellate Court that since the shop in question was required by the landlord to expand the business of his son and, therefore, the need was not bonafide is also misplaced inasmuch as every person has a right to expand his business and augment his income and, therefore, the release of building cannot be denied merely on the ground that a landlord or a member of his family intends to expand his business and to increase his income. According to the learned counsel the question of comparative hardship has also wrongly been considered by opposite party No.1 inasmuch as landlord would be put to a greater hardship in case his application for release is disallowed in compared to right of the tenant if it is allowed because at the relevant time the opposite party No.2 was not in India and was abroad and was engaged in some other occupation. The business activity, if any, in the shop in question being done by persons not member of the family could not be taken into account for the purposes of same being done by tenant. In support of his case learned counsel relied upon the AIR 2001 Supreme Court Page No.803, Gaya Prasad v. Pradeep Shrivastava, 2003 (1) Supreme Court Cases page No.28, Sushila v. II Additional District Judge, Banda and Others, and 2006 (2) ALJ page No.304, Kafeel Ahmad v. Smt. Satvindra Kaur.

In case of Gaya Prasad (supra) the Hon''ble Supreme Court said that the crucial date for deciding as to the bonafide requirement of the landlord is the date on which he makes an application for eviction.

In paragraph 10, the Apex Court observed as follows:

�We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bona fides of the requirement pleaced by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. During 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would be get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, pating might stick on its surface nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period.�

Opposite party No.1 while deciding the appeal failed to consider the need of the petitioner and prayer for eviction of opposite party No.2 on the date when the said application was preferred. He was completely oblivious of the fact that on the said date no business activity was being carried on by opposite party No.2 himself. On the contrary the shop was being run by persons not by the members of the family of the tenant but by strangers who had no right to enter the premises. This being so the requirement of the shop by the landlord could not be turned down on the ground that the son was engaged in business with his brother and only with an intention to expand the business that the shop in question was required. The finding recorded by opposite party No.1 to that effect as well as on question of comparative hardship is manifestly erroneous.

In case of Sushila v. Second Additional District Judge, Banda (supra) the Apex Court was considering the question of hardship with regard to the son of landlord who was technically qualified but did not have any shop to do his separate independent business. It was observed that greater hardship would occasion to the landlady in the event the application for eviction is disallowed. In paragraphs 10 and 11, the Apex Court observed as follows:

�A bare perusal of Rule 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 Caluse (b) in case the 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 aside the proposed business to be set up, there would be lesser justification to allow the application. The idea behind Clause (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 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, neutralizes 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 record to indicate that the business of the father of Prem Prakash 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 the length of the 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 bonafide and has also been so accepted by the respondent before us.�

In Kafeel Ahmad v. Smt. Satvindra Kaur, this Court observed that every adult member of landlord''s family is entitled to do separate business. No one can be compelled to participate in business carried out by other family members. It was also observed that since the tenant had not made any effort after making of application under Section 21 of the Act, to search out any alternative accommodation, therefore, there would be greater hardship to the landlord if the application is disallowed.

Paragraph 6 to 8 of the aforesaid judgment is reproduced hereunder:

�In my opinion, even if partition is altogether ignores, the need for Jagmohan husband of the landlady cannot be said to be not bonafide. It is not disputed that the shop premises in which Jagmohan was doing business belonged to his father Asha Singh. If a person died leaving behind five sons three shops, then it is quite reasonable and natural that the two sons who have got their own shops agree to leave the three inherited shops for those three sons who do not own any shop. Husband of the landlady belongs to the business family doing retail business. His father Asha Singh left behind five sons and all of them required separate shops for doing separate business. (it has been held by the Supreme Court in Sushila v. ADJ, (AIR 2003 SC 780); 2003 All LJ 411, and A.Kumar v. Mustaquim (AIR 2003 SC 532) that every male adult member of landlord''s family is entitled to do independent separate business and one can be compelled to participate in the business carried out by other family members). For the five sons of Asha Singh only five shops are available, hence each sons is entitled to do independent business. As such all of them are entitled to one shop each.

Accordingly, I do not find any error in the finding of bonafide need recorded by the Appellate Court.

In respect of comparative hardship appellate Court held that tenant did not make any effort to search alternative accommodation after filing of the release application, hence question of comparative hardship had to be decided against him. This finding is perfectly in consonance with the view of the Supreme Court expressed in B.C. Bhutada v. G.R. Mundada, (AIR 2003 SC 2713).�

Thus, the entire approach of opposite party No.1 in allowing the appeal preferred by opposite party No.2 is manifestly erroneous and cannot be allowed to be sustained. The opposite party No.1 fell in grave error in not considering the need of the landlord on the date when the application under Section 21(1)(a) of the Act, was made. It further committed an error in not considering the question of comparative hardship in its right perspective. It failed to appreciate likely hardship which may occasion to the landlord from the refusal of the application as against likely hardship to the tenant from the grant of the application when at the relevant time opposite party No.2 was not in India and was himself not doing any business activity in the shop in question. While considering the question of comparative hardship the opposite party No.1 also did not have regard to the factors to be taken into account as enumerated under Rule 16 of the Rules framed under the Act.

In the circumstances, the writ petition succeeds and is allowed with costs. The judgment and order passed by the Appellate Court is hereby set aside. Opposite party No.1 is directed to restore the appeal and decide afresh the question of need of the landlord as well as comparative hardship in the light of the observations made hereinabove keeping in mind principles laid down by the Apex Court as well as by this Court, referred to hereinabove.

Opposite party No.1 shall decide the appeal after notice to opposite party No.2 within a period of two months from the date certified copy of this order is placed before the said opposite party.

(Petition allowed)