Sant Ram Ghai (deceased) And Others vs Additional District Judge/FTC 1st Dehradun & Others

Sudhanshu Dhulia, J.

This is a landlord's writ petition arising out of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (from hereinafter referred to as the "Act"), where the release application filed by the landlord under Section 21(1)(a) of the Act on the ground that the premises which has been rented out to the tenant be released in his favour and the ground for bona fide need which was raised was that on the said premises he wants to set up a shop for beauty parlour for his daughter-in-law. It is again an admitted case of the landlord that at the time of filing of the release application in the year 2002, his daughter-in-law was already running a beauty parlour from the family residence as she had done a diploma in beauty parlour in the year 1995 and his son was also helping his wife (daughter-in-law of the landlord) in the business, but for the reason that it was becoming difficult to run a beauty parlour from the residence, since as it caused inconvenience for the family, they wanted the accommodation which was rented out to the tenant/respondent no. 3 to be released, for running a beauty parlour. The release application of the landlord was dismissed by the Prescribed Authority vide order dated 28.06.2003 holding that landlord does not have a bona fide need, inasmuch as the beauty parlour is already running from the residential premises, which is an admitted fact. The Prescribed Authority did not accept the ground raised by the landlord that the family is not comfortable having to put up with a beauty parlour within their residential house.

The Prescribed Authority also came to the conclusion that daughter-in-law, in any case, is not a part of the family as defined under Section 3(g) of the Act. The definition of family as given under Section 3(g) reads as under:-

"3.(g) "Family", in relation to a landlord or tenant of a building, means, his or her-

(i) spouse;

(ii) male lineal descendants;

(iii) such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building;"

Against the order of the Prescribed Authority, the landlord filed an appeal under Section 22 of the Act before the Additional District Judge, Dehradun which was also dismissed vide order dated 23.08.2004. Since certain new developments have also taken place during this period, a new plea was also raised by the landlord in the appeal stating that he has given one percent of his total share of wealth, which included the rented premises, in favour of his daughter-in-law and therefore now his daughter-in-law stands in the shoes of the landlord.

Evidently, this plea was taken by the landlord in order to wriggle out the objections raised before the Prescribed Authority, as to the plea of bona fide need in favour of the daughter-in-law, since the daughter-in-law does not come under the definition of "family", under the Act. Seemingly this conduct of the landlord is deplorable. It is a sharp tactics employed to abuse the process of law. This was a wholly unnecessary, yet a mischievous plea, raised at the appellate stage, which has been condemned in so many words by the appellate court itself that this has been done to mislead the court.

Nevertheless, the fact remains that the landlord was never going to get any benefit out of this plea. Landlord and tenant have been clearly defined in Act No.13 of 1972 itself. Ownership of a property does not have a direct bearing in rent cases. A tenant is a person who gives rent to the landlord and the landlord is a person who receives rent from the tenant and in that capacity he is the landlord.

The definition of tenant and landlord is given in Section 3(a) and Section 3(j) of the Act respectively which is as follows:-

"3(a) "tenant", in relation to a building, means a person by whom its rent is payable, and on the tenant's death-

(1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death;

(2) in the case of a non-residential building, his heirs;

Explanation.- An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant;

3(j) "Landlord", in relation to a building, means a person to whom its rent is or if the building were let, would be, payable and includes, except in Clause (g) the agent or attorney or such person;"

It is quite possible that owner of a property may be quite different from the landlord. The law recognizes it. Therefore, this plea was wholly unnecessary and in any case the landlord will not get any benefit out of it. In any case, the appellate court has also rejected the plea of the landlord and has come to the conclusion that the landlord has no bona fide need, again on the ground that daughter-in-law is not a part of the family, and therefore the plea of bona fide need cannot be raised in favour of the daughter-in-law. Moreover, the finding has also come that the shop which was next to the premises in dispute was available to the landlord but it was not used for the said purpose and rather it was sold in the year 1996. If there was actually a bona fide need for the daughter-in-law and she wanted to run a beauty parlour from the premises, there was no need of selling this property in the year 1996.

During the pendency of the writ petition, a supplementary counter affidavit has also been filed by the tenant/respondent no. 3 stating that the landlord has other properties as well, including a huge property at Gandhi Road where he runs a shop. During the pendency of the writ petition, the landlord passed away on 24.08.2007 and subsequently his legal heirs were substituted vide order dated 26.09.2007.

All the same, the plea of bona fide need raised by the landlord has been rejected by the Prescribed Authority as well as by the lower Appellate Court on wholly unreasonable grounds. It is for the landlord to set up a bona fide need and in case the landlord feels that the beauty parlour which though is being run from his residential premises, needs to be shifted to the shop which is presently being rented out to the tenant, his bona fide need cannot be rejected. The plea of the landlord that the family is feeling uneasy about the beauty parlour being run from the residential premises has not been accepted by the Prescribed Authority or by the lower Appellate Court, which was not the correct approach. It is quite normal, if the family members are not feeling comfortable with a "beauty parlour", being run from their residential house.

The question of bona fide need is always a mixed question of law and fact and in order to establish a bona fide need, the landlord must establish that there is actually a "need". The need must be of landlord personally or for his family members or even for a person "who depends upon the landlord", as accepted by at least two decisions of the Allahabad High Court in the case of Badri Narain Razdan vs. Third Additional District Judge, Allahabad and Others, passed in Civil Misc. Writ Petition No.7262 of 1979 and Jang Bahadur Saxena Vs. VIIIth Additional District Judge, Kanpur and others, passed in Civil Misc. Writ Petition No.10472 of 1980. The Hon'ble Apex Court as well in the case of Joginder Pal vs. Naval Kishore Behal, reported in (2002) 5 SCC 397 in paragraph nos. 14 and 15 has held as under:-

"14. Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 provides for the accommodation being released if bona fide required by the landlord for occupation by himself or members of his family or for any person for whose benefit it is held by him. In Nand Rani v. ADJ the need was for setting up the daughter's son in business. The daughter's son was not a member of the family nor the accommodation could be said to be held for his benefit. The Court held that the provisions of the Act cannot be read so as to put an end to the ties of affection, friendship, kinship or sheer necessity. In appropriate circumstances the landlord may be so much concerned with and interested in the requirement of or for another person, who is not a member of his family as defined in Section 3(g), that the requirement may be properly regarded as the landlord's own requirement depending on the extent of the landlord's identification with the person concerned to be determined on the evidence and circumstances of the particular case.

Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 entitles a landlord to recover possession of any premises on the court being satisfied that "the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held". In Nanalal Goverdhandas & Co. v. Samratbai Lilachand Shah the High Court construed the import of the words "by himself" and held that "for occupation by himself" does not restrict the proposed occupation to the occupation of landlord alone but may include the occupation by member of his family. The requirement of the landlord for occupation by the dependant of the landlord may be the requirement by the landlord. In a given case the landlord may be dependent upon a person and it may be the necessity of the landlord that such other person should occupy the premises. If emotionally the landlord feels that a relation of his, such as daughter or son-in-law, should stay with him, it can be regarded as the requirement by the landlord of the premises "for occupation by himself". This is as regards residential premises. In case on non-residential premises, if the landlord's interests are shown to be linked with the occupation of those premises by someone for whom he is seeking the possession of the suit premises it can be said that the requirement of the landlord for occupation by himself is established. The High Court also held that if there is a moral or legal obligation of the landlord to provide accommodation to a particular person then the requirement by the landlord for occupation of that person may squarely fall under Section 13(1)(g). Having taken into consideration the several precedents from different High Courts the learned Judge held that the determinative test underlying the several propositions propounded by the High Courts is the basic fact that the requirement is by the landlord and the one who would physically occupy the premises so as to tantamount to occupation of the premises "by himself" i.e. the landlord. In Institute of Radio Technology v. Pandurang Baburao Section 11 of the Bombay Rent Restriction Act, 1939 was dealt with by the Division Bench and the words "his own occupation" were held to include occupation by all persons who are dependent on the landlord."

Moreover, the definition of a family has been very broadly construed by the Courts in the case of Gulshera Khanam v. Aftab Ahmad, reported in (2016) 9 SCC 414. The definition does not exclude the daughter-in-law. The definition of "family" includes any female having a legal right of residence in that building. Therefore, the daughter-in-law would be a part of the family. In case bona fide need is set up for the daughter-in-law, it cannot be said that there is no bona fide need of the landlord. Therefore, the courts below have misread the relevant provisions of law, while interpreting, analyzing the bona fide need of the landlord. This aspect is also strengthen from the recent decision of the Hon'ble Apex Court in the case of Gulshera Khanam v. Aftab Ahmad, reported in (2016) 9 SCC 414. Relevant paragraph nos. 22 to 25 of the aforesaid judgment read as under:-

"22.Coming to the second question first, in our opinion, its answer depends upon the proper interpretation of the definition of the word "family" as defined in Section 3(g) of the Act. It reads as under:

"3.(g) "family", in relation to a landlord or tenant of a building, means, his or her-

(i) spouse;

(ii)male lineal descendants;

(iii) such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building;"

Perusal of the aforequoted definition would go to show that family in relation to landlord or tenant of a building would include; (1) spouse, (2) male lineal descendants, (3) such parents, grandparents, unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant as may have been residing with the landlord. The definition further says, "family" includes in relation to landlord, any female having a legal right of residence in that building.

The inclusive part of the definition, which is enacted only for the benefit of "female" in relation to the landlord, adds one more category of person in addition to those specified in clauses (i) to (iii), namely, any female having a legal right of residence in that building".

A fortiori, any female, if she is having a legal right of residence in that building, is also included in the definition of "family" in relation to landlord regardless of the fact whether she is married or not. In other words, in order to claim the benefit of the expression "family", a female must have a "legal right of residence" in the building. Such female would then be entitled to seek eviction of the tenant from such building for her need."

Moreover, during the pendency of the writ petition, again it is an admitted fact that on 24.08.2007, the landlord has actually passed away and the husband of the daughter-in-law for whose benefit the shop was to be released being a legal heir is now the petitioner before this Court. The plea therefore raised by the respondents has now no force as the daughter-in-law is now no more just a daughter-in-law, but she is the spouse of the landlord, which in any case now comes under the definition of family.

In view of the above, the writ petition is allowed. The orders dated 28.06.2003 and 23.08.2004 are hereby set aside. The release application of the landlord stands allowed. Let the tenant be evicted from the premises in question, within two months.