Satyendra Chandra Gupta vs Mahesh Kamal Bhowal

B.L. Hansaria, J.—A suit was filed in 1971 by the Petitioner, inter alia, for getting khas possession of a room measuring 9"x24" under the occupation of the Defendant opposite party as a tenant. Eviction was prayed for by the Plaintiff because according to him the room was needed for his ''own use and purpose''. This was contested by the Defendant. The suit was, however, decreed, which decision was affirmed in appeal. The Defendant approached this Court in revision when the matter was remanded to the learned first appellate court inasmuch as learned Brother Das, J. who heard that revision found that there was "not even a single sentence in the entire judgment as to the satisfaction of the Court about the Plaintff''s ''genuine need'' for his no-residential accommodation and that the need was ''bona fide'' to justify the Court to pass a decree for eviction on that ground", (That decision has since been reported in (1982) J GLR 653). As there was no finding to that affect, it was contended before this Court that a direction, be given to decide this aspect afresh. This Court accepted the contention and the case was accordingly remanded. The learned Assistant District Judge by the Impugned judgment has come to the finding that the room is not bona fide required by the Plaintiff for the purpose of expanding his glass business, which was the case put up in evidence. The Plaintiff has felt aggrieved at this finding and has approached this Court in revision to assail the same.

There is no dispute at the bar that mere desire of the landlord In this regard in not enough inasmuch as what proviso (c) of Section 5(1) of the Assam Urban Areas Rent Control Ace (for short, the Act) demands in this context is that the house is "bona fide required" by the landlord, Inter alia, "for has own occupation", It has been held by the Supreme Court in Mattual v. Radhelal AIR 1974 SC 1593 , that the word ''required'' signifies that there should be an element of need and the landlord must show the burden being upon him�that be genuinely requires the accommodation for his purpose. In this connection, I may cite with profit Modhurilata v. Gourpadda (1985) 1 GLR 392, wherein it has been stated by this Court that the words "bona fide requires" connote landlord''s genuine, pressing and honest need of the premises. It may, however, be pointed out that though the words of the proviso are that the house is required bona fide by the landlord "for has own occupation"., It is not disputed by Shri Bhattacharjee, in view of what has been stated in Sega Begum v. Abdul Ahad Khan AIR 1973 SC 272, that the words "own occupation" would not exclude the use of the house for purpose of business. Further, the necessity is not required to be only of the landlord, the same could also be of the person who are living with him as members of the same family.

To find out whether the requirement is genuine, pressing and honest, there can be no denial that the Court has to take into consideration various objective factors including the sufficiency of the space already at the disposal of the Plaintiff, the ground put forward by him for seeking eviction of the tenant and the availability of other accommodation at the disposal of the landlord which could meet his requirement. In so far as the question of comparative hardship is concerned, it is conceded by Shir Bhattacharjee that the Act does not contemplate weighing of the hardship of the landlord and tenant to decide the fate of an eviction suit.

A perusal of para 9 of the impugned judgment in which the learned Assistant District Judge has recorded his finding shows that he took into consideration five objective circumstances : (1) The suit room is situate at the business centre of Jorhat town. (2) The Plaintiff has "three business being run in three separate houses (rooms)'' within 15/20 feet of the suit premises, besides some vacant land behind these premises-all these being owned by the Plaintiff. (3) The room where-from the existing glass business of the Plaintiff is being carried on is 13 ''x 20'' in size, (4) The Plaintiff has failed to aver in his plaint the specific purpose of requirement of the suit premises. (5) "The Defendant has been there in the suit premises running the same photo business since after construction thereof and that the Defendant, having no other accommodation in the town to run the business, will be out of his photo-business as soon as he will be evicted from the suit house".

Keeping in view the above circumstances, the learned Assistant District Judge has concluded that the Plaintiff''s requirement of the suit premises is neither genuine nor reasonable, as he can very well effect the proposed expansion of his glass-business "having so much of accommodation available at his disposal" At other place the learned District Judge has observed that "the Plaintiff''s present accommodation is quite sufficient for his requirements".

The first four of the aforesaid five circumstances are, in my view, undoubtedly relevant for deciding the question as to whether the room under the occupation of the tenant was bona fide required by the landlord for expansion of his glass business. I have said so because if a business is being carried on in the centre of a town, one has to be satisfied with less elbow room than what one can expect in the outskirts As to the observation in the second circumstance that the Plaintiff has "three business being run in three separate houses (rooms)", it may be stated, as appears from other parts of the impugned judgment, that the Plaintiff is running a photo studio and is engaged in glass business, and these two activities are being carried in and from three separate rooms, one of which is being used as a godown for storing glasses which cannot be taken as a separate business. The having three separate rooms for his business purpose within 15'' to 20'' of the suit premises with vacant land behind these premises, and the size of the room wherefrom the glass business is carried on being 33'' x 20''. led the learned Assistant District Judge to conclude that the Plaintiff bad enough of accommodation at his disposal to undertake the proposed expansion of glass business. Sufficiency and proximity of space at the disposal of the Plaintiff to carry on his business were, according to me, the main factors which prevailed with the learned court below in rejecting the case of the Plaintiff that be really needed the room under the occupation of the Defendant to expand his glass business, These circumstances have to be regarded as quite germane to decide the point under examination. In coming to the aforesaid conclusion, the learned court below also took note of the fact that the purpose of the need had not been specified in the plaint. This circumstance cannot also be said to be irrelevant in deciding whether the need of the landlord was genuine.

In so far as the last circumstance, which is related to the fact that the Defendant having no other accommodation in the town to run the business will be out of his occupation as soon as he will be evicted from the suit house, Shri Sarma has contended that this aspect of the matter could not have been considered by the learned Assistant District Judge. I have my reservation here. According to me, even if the question of comparative hardship be non-examinable while deciding a case covered by the provisions of the Act, a Court of law may not be able to shut its eyes if an order of evictions is to result in throwing a tenant out of his occupation. For the case at hand nothing further need be said on this aspect because the question of hardship was not one of the main grounds for not accepting the case of the Plaintiff that he needed the suit premises for expanding his glass business, though the same was one of the factors which weighed with the learned Court below in ultimately dismissing the suit.

In view of all the above I am not satisfied if the finding arrived at by the learned Assistant District Judge can be interfered with by this Court in exercise of the limited jurisdiction available to it when examining a matter in revision. The petition, is, therefore, rejected.