R.D.Misra and others vs Vth Additional District Judge, Meerut and another

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

This is tenants'' writ petition. Landlord respondent No. 2 Devendra Das filed release application against tenantspetitioners for eviction/release on the ground of bona fide need under section 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in the form of P.A. Case No. 145 of 1992, Devendra Das v. Smt. R.D. Mishra and others. Release application was dismissed by Prescribed Authority/VIth A.C.J., Meerut through judgment and order dated 11.3,1994. Against the said judgment and order, landlord respondent No. 2 filed Misc. Appeal No. 95 of 1994, Vth A.D.J., Meerut allowed the appeal through judgment and order dated 19.10.1995, set aside the judgment and order passed by the prescribed authority and allowed the release application of the landlord. Said judgment has been challenged through this writ petition.

Property in dispute is a house, rent of which is Rs. 18/ per month. It was pleaded in the release application that landlord was residing in the adjoining house, which was constructed on 65 square yards land and was double storied and he additionally required the accommodation in dispute for his need. It was specifically stated that landlord had a cow, which he tied in a room in the house on the ground floor and for tying the said cow, he required the accommodation in dispute. The Appellate Court mainly allowed the appeal on the ground that landlord was teacher in a Junior High School hence his status was quite high and tenant admitted that he (tenant) was of ordinary status. In respect of bona fide need, it was further stated by the Lower Appellate Court that married daughters also occasionally come to their parents. It was a sort of general finding.

The Appellate Court ultimately held that need of the landlord was bona fide. Thereafter Lower Appellate Court held that since all the sons of the original tenantDeo Narain Mishra were employed and doing business, hence they could easily search alternative accommodation. It was further held that no efforts were made by the tenant to search alternative accommodation. Accordingly, it was held that balance of hardship lay against tenants and in favour of the landlord.

As far as the finding of comparative hardship is concerned, I do not find any error in the said findings recorded by the Lower Appellate Court.

However, in my opinion, the findings on bona fide need recorded by Lower Appellate Court are quite cursory and unsatisfactory. The only specific finding on the basis of which bona fide need has held to be proved is that of status of the landlord. Other finding (regarding occasional visit of married daughters) is extremely general in nature.

Status of landlord is relevant but merely on the basis of status of landlord, bona fide need cannot be held to be proved unless it is specifically held that in view of number of family members of the landlord and his social status he requires additional accommodation. The prescribed authority had specifically dealt with this aspect and had held that there was no bona fide need for additional accommodation for the landlord.

Accordingly, in my opinion, matter requires remand. Lower Appellate court is required to decide the question of bona fide need specifically in the light of specific allegations and counter allegations made by the parties.

Writ petition is therefore allowed. Judgment and order passed by the Appellate Court is set aside and matter is remanded to the Lower Appellate Court to decide afresh.

Both the parties are directed to appear before Lower Appellate Court on 1.9.2008 along with certified copy of this judgment. Lower Appellate Court shall make all efforts to decide the appeal expeditiously.

I have held in Khursheeda v. AD.J. 2004 (55) ALR 586 and H.M, Kichlu v. AD.J. 2004 (57) ALR 485 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 M.V. Acharya v. State of Maharashtra, AIR 1998 SC 602 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. v. Union of India and another, (2008) 5 SCC 287=2008 (71) ALR 499 part of Para29 and Para34 of which are quoted below :

"29. 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 nonexistent.

In Malpe Vishwanath Acharya and others v. State of Maharashtra and another (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. v. Life Insurance Corporation of India, AIR 1996 SC 2410 paragraph11 of which is quoted below :

"It is wellsettled 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 Para8 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 S.F.P. v. L.I.C AIR 1996 SC 2410 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 un resoanble 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. Kitchlu v. A.D.J., 2004 (57) ALR 485 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 same principle may be applied while remanding the matter. Property in dispute is a residential house situate in Meerut and contains two rooms'', latrine, bathroom, rent of which is Rs. 18/ per month. It is virtually as well as actually no rent. It is rather ridiculous. It is therefore directed that irrespective of result of appeal tenant shall pay the rent to the landlord @ Rs. 700/per month w.e.f. July, 2008 onwards.

It may be mentioned that Sri Pramod Jain, learned Counsel for the tenants petitioners agreed for enhancement of rent, however, he asserted that enhancement to the extent of Rs. 700/ per month was too excessive.

In my opinion, rent of Rs. 700/ per month for two rooms, house in Meerut can, by no stretch of imagination, be said to be highly excessive. Current rent of such a house may be several times more than Rs. 700/ per month.