Raj Bahadur vs District Judge and Others

V.K. Shukla, J.—This is landlord''s petition questioning the validity of order dated 06.02.1996 passed by District Judge, Allahabad , allowing appeal preferred u/s 22 of U.P. Act No. XIII of 1972.

Brief background of the case, as disclosed in the writ petition, is that the landlord filed release application u/s 21 (1) (a) of U.P. Act No. XIII of 1972 for release of the tenanted accommodation in occupation of Banke Lal on the ground that his mother, who was aged about 70 years, was not in a position to climb the upstairs; the visitors, who include the relatives and friends cannot be properly entertained in the house on account of paucity of accommodation; the family of landlord comprised of seven members, namely, landlord himself, his wife, mother, two sons and two daughters, and it was difficult to accommodate them on the first floor of the house and the house was in dilapidated condition, which required demolition and reconstruction. The accommodation in possession of landlord consisted of two rooms in the form of kotharies and a room inside the kothari besides open roof on the first floor and a room on the ground floor, which was being used for the purposes of stocking goods required by the landlord in connection with his trade and business. Said release application was opposed by the tenant by filing written statement, denying that need set up by landlord was not at all bona fide and genuine one. Evidence was led from both the sides. The Prescribed Authority considered the need of the landlord to be bona fide and genuine one and on comparative hardship front proceeded to allow the release application on 10.09.1985. Aggrieved against the said order, Rent Control Appeal No. 462 of 1985 had been filed. During pendency of appeal, various orders were passed against which, three writ petitions were filed, being writ petition Nos. 9421 of 1990, 22489 of 1990 and 23555 of 1990. All writ petitions were disposed of on 11.11.1994, with a direction for issuance of commission. Thereafter, commission was issued. The said appeal has been allowed on 06.02.1996. At this juncture, present writ petition has been filed.

Counter affidavit has been filed and therein it has been stated that the lower appellate court after considering the evidence on record came to the rightful conclusion that the room which was in occupation of the tenant was not at all required by the landlord. It has also been sought to be suggested that the premises in question was not at all being used. It has also been stated that new house has been purchased and he is staying therein. It has also been stated that at present moment, there is no water connection, no electricity connection and no telephone connection, as such in view of all these subsequent developments premises in question is not at all required.

Rejoinder affidavit has been filed, and therein it has been stated that with the passage of time family has increased many fold and it has been contended that wrong statement of fact has been mentioned that water connections etc. have been disconnected. In respect of two shops also details have been mentioned. It has also been contended that electricity connection was disconnected due to non-payment of huge amount of electricity charges and despite request of the petitioner to pay the same, the tenant has refused to pay even his share. So far as telephone connection is concerned, same is still continuing. It has also been stated that the respondent has acquired two rooms at 11/a Unchamandi, Allahabad. It has been contended that son is living separately.

After the pleadings have been exchanged, present writ petition, which itself is 12 years old, and litigation which in itself is twenty six years old, is being taken up for final hearing and disposal. At this juncture, conduct of counsel for the respondent is necessary to be mentioned. On 21.12.2006, case was listed and it was passed over on the illness slip of Sri V.C. Tripathi, Advocate, however, it was directed to be listed in the next cause list peremptorily. When it was next listed on 02.08.2007, it was passed over on the illness slip of Sri H.P. Singh, Advocate. The court again directed the case to be listed in the next cause list peremptorily. On 30.06.2008 and 14.07.2008, the case was passed over on the illness slip of the learned Counsel for the respondent and was directed to be listed in the next cause list. On 29.09.2008, again there was illness slip of Sri Hem Pratap Singh, Advocate. On the said date, learned Counsel for the petitioner pointed out that sending of illness slips is a dilatory tactics on the part of the respondent. On that day this case was directed to be listed in the next cause list amongst top ten cases. Thereafter, the matter has been listed today. There are two counsels for the respondent; Sri V.C. Tripathi and Sri Hem Pratap Singh. In spite of the fact that the case has been listed peremptorily, both the counsels have deliberately and intentionally sent illness slips. This has been practice of this Court that when cases are listed peremptorily, then in that event the case in question has to be taken up and it will not be passed over. This is a glaring case where the counsels concerned have misused the privilege of illness slip, as such this Court proceeds to hear the case ignoring the illness slips. Sri V.C. Tripathi, Advocate subsequently appeared and informed that he had not sent illness slip, and illness slip submitted on his behalf was fake.

Sri Pankaj Agrawal, learned Counsel for the petitioner, contended with vehemence that in the present case, District Judge while exercising the authority u/s 22 of U.P. Act No. XIII of 1972 has clearly misdirected himself by directing/guiding the petitioner as to in what way and manner he should live, and coupled with this, the case of the petitioner that his family has increased many fold with the passage of time, has been ignored and on mere surmises and conjectures order has been passed, as such same deserves to be quashed and writ petition is liable to be allowed, by restoring the order passed by Prescribed Authority.

Record in question has been seen. Admitted position is that landlord of house No. 11/a, Unchamandi, Allahabad, is in occupation of first floor of the said house and in his possession are two rooms in the form of kotharies and a room inside the kothari besides open roof on the first floor and a room on the ground floor. In the said premises on ground floor tenant has been occupying the same. One room one small kothari, Dalan and court yard. Petitioner''s specific case has been that his mother being aged about 70 years is not in a position to climb the upstairs and the visitors cannot be properly entertained in the house on account of paucity of accommodation and the family of the landlord consists of seven persons and it is difficult to accommodate them in the first floor of the said house and that the building being in dilapidated condition requires demolition and reconstruction.

The Prescribed Authority in the present case considered the bona fide and genuine need of the landlord and also on comparative hardship front gave finding against the tenant, and allowed the release application. Against the said order, appeal has been preferred and as the luck would have been, said appeal came up for hearing after more than a decade. The appeal has been allowed on 06.02.1996, against which present writ petition has been filed. After more than 12 years present writ petition has been taken up and the litigation is more than 25 years old. Still tenant is not interested, that the matter be adjudicated on merits, and in the said direction all tricks of trade have been pressed into service, so that final result is not there. Nothing more is being said and the merits of the matter are being adverted to.

The appellate court in the present case has considered the area which was in possession of the landlord and the most surprising feature of the aforementioned order is that after noticing the accommodation in occupation of the landlord, District Judge has proceeded to take note of the fact that earlier there was tin shed on the roof of the first floor measuring 10'' x 10'' and at present said tin shed in question is not there, and it has been suggested by the District Judge that landlord can again put tin shed to its original position, which would satisfy his need, if he is falling short of accommodation. Such suggestion at the level of the appellate forum is uncalled for. Hon''ble Apex Court in the case of Ragvendra Kumar v. Firm Prem Machinery 2000 (38) ALT 459, has clearly ruled that landlord is the best judge of his requirement for residential or business purpose. Once landlord is being forced to go in tenanted tin shed, then this ground in itself is much more ground to see that the need of the landlord is bona fide and genuine one. This observation of the District Judge is totally uncalled for and cannot be approved of.

Apart from this landlord has proceeded to mention that on the ground floor there is a room, which is being used by the landlord for stocking goods. It has been mentioned by the District Judge that earlier landlord was using it for residential purposes, as such at present also same can be used for residential purpose. District Judge has proceeded to give advice that landlord should store his goods at his shop. Appellate court failed to appreciate the contents of Advocate Commissioner''s report dated 11.09.1995 in full which clearly mentioned that one room at the ground floor was being used as godwon, wherein goods have been stored, and further shop situated at 210 Uncha Mandi, measuring 8 ft. x 12 ft. had a shutter, which was filled with goods, and even outside the shop goods were kept. Once landlord was retaining ground floor room for godwon, and the size of the shop was 8 ft .x 12 ft., and even outside the shop goods were left, then Appellate Court could not have asked the landlord to shift his goods from godown to shop by mentioning that it was in disuse. Suggestion on the part of the Appellate Court, cannot be subscribed and same is clearly overstepping of jurisdiction. Merely because earlier landlord was using it for residential purpose, petitioner cannot be forced to use the same. As per his requirement, landlord is the best judge in all these matters as to how he has to use the premises in question. The only requirement which the court is to examine is as to whether the premise in question is bona fidely required or not. In the present case District Judge has clearly overstepped by giving such advise as to where the landlord should keep goods for trade. Such view of the District Judge cannot be approved of.

Apart from this, in the present case this fact has been admitted that landlord for his family has three rooms to live in. The landlord has clearly set up a case that he has no place for visitors, therefore he was in dire need of the tenanted accommodation. District Judge has proceeded to mention that landlord is a hawker, as such there was no need of accommodation for guest room, as he has no social status. Appellate Court failed to take note of the fact that landlord was shopkeeper also. Once landlord has contended that he has married daughters and his guests are there, then to make comment on the status of the landlord that he is a hawker, is totally uncharitable and uncalled for, ignoring other material that he is shopkeeper. Landlord had every right to see that whenever his guests are there, they are offered proper place to sit in guest room. The District Judge has totally misdirected himself in recoding such findings.

The Appellate Authority has proceeded to record finding, that during all this period of litigation, house has been acquired by the landlord''s son and the need stands thus fulfilled. Precise case of petitioner has been that said son is married and living separately with his family. In order to arrive at conclusion of jointness of family, much emphasis has been placed on the affidavit filed by Raj Kumar Soni in Suit No. 656 of 1993. House in dispute has been purchased on 25.11.1994, affidavit on which reliance has been placed copy of which has been filed as Annexure CA-3, the same on the face of it is prior to 25.11.1994. All these circumstances are speaking for itself that by misconstruing the documents, unwarranted presumptions have been drawn. Admittedly, son is grown up, house has been purchased in his name, he has his own family, comprising of his wife and three children, in this background, non-suiting the bona fide need of the landlord cannot be approved of. On bona fide and genuine need front, order passed by Appellate Authority is not being approved and order passed by Prescribed Authority is restored.

On comparative hardship front also view point of Hon''ble Apex Court is being looked into. In Mst. Bega Begum and Others Vs. Abdul Ahad Khan (Dead) by Lrs. and Others, Hon''ble Apex court had occasion to deal in detail with the comparative hardship''s aspect as follows:

Moreover Section 11(h) of the Act uses the words ''reasonable requirement'' which undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire as the High Court has done in this case. It seems to us that the connotation of the term ''need'' or ''requirement'' should not be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for one landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts, prevalent in other State in the country. This Court has considered the import of the word requirement and pointed out that it merely connotes that there should be an element of need.

In this connection our attention was drawn to the evidence led by the defendants that the main source of their income is the hotel business carried on by them in the premises and if they are thrown out they are likely to get any alternative accommodation. The High Court has accepted the case of the defendants on this point, but does not appear to have considered the natural consequences, which flow from a comparative assessment of the advantages and disadvantages of the landlord and the tenant if a decree for eviction follows. It is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed, but such an event would happen whenever a decree for eviction is passed and was fully in contemplation of the legislature when Section 11(1)(h) of the Act was introduced in the Act. This by itself would not be valid ground for refusing the plaintiffs for eviction.

Thus, on careful comparison and assessment of the relative advantage and disadvantages of the landlord and the tenant it seems to us that the scale is titled in favour of the plaintiff. The inconvenience, loss and trouble resulting from denial of a decree for eviction in favour of the plaintiffs far outweight the eviction from that point of view.

Judgment quoted above has been followed by Hon''ble Apex Court in the case of Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada, , and apart from the same in paragraph 13 mentioned as follows:

In Mst. Bega Begum and Others Vs. Abdul Ahad Khan (Dead) by Lrs. and Others, the issue as to comparative hardship arose for the consideration of the Court of Appeal under the Rent Act, 1957. Lord Dennining opined: (All ER p. 457E-F)

When I look at all the evidence in this case and see the strong case of hardship which the landlord put forward, and when I see that the tenant did not give any evidence of any attempts made by him to find other accommodation, to look for another house, either to buy or to rent, it seems to me that there is only one reasonable conclusion to be arrived at, and that is that the tenant did not prove (and burden is on him to prove) the case of greater hardship.

Hodson, L.J. opined: (All ER p. 458)

The tenant has not been able to say anything more than the minimum which every tenant can say, namely, that he has in fact been in occupation of the bungalow, and that he has not at the moment any other place to go to. He has not, however, sought to prove anything additional to that by way of hardship, such as unsuccessful attempts to find other accommodation, or, indeed, to raise the question of his relative financial incompetence as compared with the landlord.

Hon''ble Apex Court in recent judgment of Ganga Devi v. District Judge Nainital 2008 (7) ADJ 501, where tenant has not made any effort to search accommodation, has not accorded any relief to the tenant. Paragraph s 15, 16 and 19 of the said judgment are being extracted below:

There is also nothing on record to show that for the last so many years the appellant had made any effort to find out a tenanted premises for herself so that she can continue with her business. No such material at least has been brought on record. Any subsequent event as regards thereto has neither been pleaded nor proved.

The provisions of the statutory rules must be interpreted so as to give effect to the object and purport of the Act. It cannot be applied in a vacuum, as the statute requires comparison of the hardship of both the tenant as also the landlord. It is, therefore, not a case where Rule 16 has any application.

The court would not determine a question only on the basis of sympathy or sentiment. Stricto sensu equity as such may not have any role to play.

In the facts and circumstances of this case, we are of the opinion, that six months'' time should be granted to the 1st respondent to vacate the premises, which should serve the ends of justice. It is directed accordingly. Subject to the aforementioned directions, this appeal is dismissed. In the facts and circumstances of this case, there shall be no order as to cost.

Petitioner''s family has grown with the passage of time, as on date petitioners liability is of himself, his wife, son Suraj Kumar, his wife Lalita, children Susmita and Aditya, and sons Kaushal Kumar. Kishan and mentally deranged daughter Juli. Here litigation is more than twenty five years old, all attempt has been made by tenant to delay the proceedings, but no real endeavour has been made to find out alternative accommodation. Bald assertion that he had tried and he was unsuccessful, is not the key to the problem. Since allowing of appeal, what effort has been made by him to search alternative accommodation. Moreover, whenever decree of eviction is passed, that is always followed by inconvenience and it does not mean that decree of eviction should be ruled out on the ground of inconvenience. Comparative hardship balance in the facts of present case would lean heavily in favour of landlord.

Consequently, writ petition succeeds and the same is allowed. The judgment dated 06.02.1996 passed by District Judge, Allahabad is quashed. The tenant is accorded six month''s time to vacate the premises in question and hand over its peaceful vacant possession to the landlord, subject to the condition that within one month from today affidavit shall be filed by the tenant before the Prescribed Authority that premises in question will be vacated on or before expiry of the period as aforesaid. In the event of affidavit not being filed within one month from today, the interim protection shall cease to operate, and landlord would be at liberty to proceed accordingly, and interim protection of this Court would not come to rescue of petitioner.