Shakeel Ahmad and Others vs Ram Babu and Others

V.K. Shukla, J.—This is tenant petition questioning the validity of the judgment and order dated 19.01.1998 passed by Prescribed Authority allowing the release application filed u/s 21(1)(a) of U.P. Act No. XIII of 1972 and order of its affirmance dated 12.09.2008 passed in Appeal filed u/s 22 of U.P. Act No. XIII of 1972.

Brief facts of the case is that Ram Babu S/o Ganeshi Lal filed application for release u/s 21(1)(a) of U.P. Act No. XIII of 1972 against the petitioner as well as respondents No. 2 to 8 mentioning therein that he has been serving as Teacher in Government Uchchattar Madhyamik Vidyalaya Mitarbar, District Gwalior Madhya Pradesh and he was staying in a tenanted house and he was about to retire and he has got his wife and two sons who are unemployed and three daughters, and he intends to settle at Kashganj as such accommodation in question is bonafidly required. Said application was opposed by filing written statement contending therein that need set up is not at all bonafide and genuine one. Before Prescribed Authority evidence was led from both the side and thereafter Prescribed Authority found the need of landlord to be genuine and bonafide one and accommodation being required for settling both unemployed sons. On comparative hardship front also finding has been returned in favour of the landlord. Against the said order Rent Control Appeal No. 3 of 1998 was filed and same was also dismissed on 12.09.2008. At this juncture present writ petition has been filed.

Sri A.K. Gutpa, Advocate appearing on behalf of tenant contended with vehemence that in the present case both the courts below have clearly erred in law in accepting landlords need to be bonafide and genuine one and even on the comparative hardship by recording finding in favour of the landlord whereas facts demonstrated otherwise. Coupled with this once building in question was to be demolished then compliance of Rule 17 of the U.P. Urban Buildings (Regulation of Letting Rent & Eviction) Rules 1972 ought to have been looked into and both the courts below have failed to advert itself in the present case, on said aspect of the matter, as such orders passed are liable to be quashed.

Countering the said submission Sri S.K. Mishra Advocate contended that in the present case after appreciation of evidence concurrent finding of facts has been returned on bonafide need front and on comparative hardship front, as such no interference be made. Coupled with this Rule 17 of 1972 Rules is not applicable and attracted in the present case, as present application had been filed u/s 21(1)(a) of U.P. Act No. XIII of 1972, as such writ petition in question deserves to be dismissed.

After respective arguments have been advanced factual position which is emerging in the present case is that Ram Babu has been performing and discharging duties as Teacher at Government Uchchattar Madhyamik Vidyalaya Mitarbar, District Gwalior Madhya Pradesh and he was to attain the age of superannuation and as his two sons were unemployed as such for said purpose release application was moved u/s 21(1)(a) of U.P. Act No. XIII of 1972. Both the courts below have categorically recorded finding of facts that both sons of the landlord namely Anoop Maheshwari and Pawan Maheshwari are unemployed and in this background need of the landlord has been accepted to be bonafide and genuine one.

Hon''ble Apex Court in the case of Smt. Sushila v. 2nd Additional District Judge, Banda and Ors. 2003 (1) ARC 256 has taken the view that need for settling married and major son is bona fide need, and he cannot be compelled to join his father and do work. Relevant paragraphs 5,10 and 11 of the said judgment are being extracted below:

We find that Prem Prakash is a young man who is unemployed. He is married and has children. There is every justification for him or for his mother to settle him in life independently. He cannot be compelled to join his father in his Goldsmith and money-lending work in his small shop. In our opinion, he is entitled to start business of his own choice and independently. The appellate Court took a view, as indicated above, which is palpably wrong and wholly unacceptable.

In the case in hand we find that even 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 Authority, neutralises 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 the record to indicate that the business of 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 length of period of tenancy as provided under Clause (a) of Sub-rule (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 bona fide and has also been so accepted by the respondent before us.

It may be mentioned that we are not taking into account of Clause (d) of Sub-rule (2) of Rule 16 of the Rules; where yet another factor is to be borne in mind, in favour of releasing the shop, if the person has some technical education to his credit but not employed in any Government service and wants to engage in self-employment. The Petitioner had shown that her son Prem Parkash had undergone a training course in household electrical wiring and had obtained a certificate from Industrial Training Institute, Banda. He did not get any Government job and wanted to be self-employed by starting a shop of electrical goods and utensils. The Prescribed Authority considered this factor but we find that the appellate Court expressed doubt on the fact that the certificate related to Prem Parkash being lead by the fact that his residence was shown as village Lukhtara, undisputedly that village also falls in the district of Banda. It was also observed by the appellate Court that it could not be shown as to what Government job Prem Parkash could get by virtue of the certificate he had obtained from Industrial Training Institute, Banda. The whole approach to the point was misdirected. Be that as it may, we make it clear that even by excluding the factor of Prem Parkash being technically educated, otherwise as well as find that the need and requirement of the landlady is bona fide even after considering the same in the light of Rule 16 of the Rules and in the background of comparative hardship which we find would be more to the landlady, in the event of disallowing the application for eviction.

Hon''ble Apex Court in the case of Akhileshwar Kumar and Others Vs. Mustaqim and Others, took the view that simply because educated unemployed son was provisionally assisting his father in family business same does not mean that he should not start his own independent business. Relevant paragraphs 3 and 4 are being extracted below:

In our opinion, the approach adopted by the High Court cannot be countenanced and has occasioned a failure of justice. Overwhelming evidence is available to show that the plaintiff No. 1 is sitting idle, without any adequate commercial activity available to him so as to gainfully employ him. The plaintiff No. 1 and his father both have deposed to this fact. Simply because the plaintiff No. 1 is provisionally assisting his father in their family business, it does not mean that he should never start his own independent business. What the High Court has overlooked is the evidence to the effect, relied on by the trial Court too, that the husband of plaintiff No. 4, i.e. son-in-law of Ram Chandra Sao, was assisting the latter in his business and there was little left to be done by the three sons.

So is the case with the availability of alternative accommodation, as opined by the High Court. There is a shop in respect of which a suit for eviction was filed to satisfy the need of plaintiff No. 2. The suit was compromised and the shop was got vacated. The shop is meant for the business of plaintiff No. 2. There is yet another shop constructed by the father of the plaintiffs which is situated over a septic tank but the same is almost inaccessible inasmuch as there is a deep ditch in front of the shop and that is why it is lying vacant and utilized. Once it has been proved by a landlord that the suit accommodation is required bona fide by him for his own purpose and such satisfaction withstands the test of objective assessment by the Court of facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. The Court cannot thrust upon its own choice on the needy. Of course, the choice has to be exercised reasonably and not whimsically. The alternative accommodation which have prevailed with the High Court are either not available to the plaintiff No. 1 or not suitable in all respects as the suit accommodation is. The approach of the High Court that an accommodation got vacated to satisfy the need of plaintiff No. 2, who too is an educated unemployed, should be diverted or can be considered as relevant alternative accommodation to satisfy the requirement of plaintiff No. 1 another educated unemployed brother, cannot be countenanced. So also considering a shop situated over a septic tank and inaccessible on account of a ditch in front of the shop and hence lying vacant cannot be considered a suitable alternative to the suit shop which is situated in a marketing complex, is easily accessible and has been purchased by the plaintiffs to satisfy the felt need of one of them.

Hon''ble Apex Court in the case of Ragavendra Kumar Vs. Firm Prem Machinary and Co., has held as follows:

It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. (See: Prativa Devi Vs. T.V. Krishnan, . In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted.

Hon''ble Apex Court in the case of Yadvendra Arya and Anr. v. Mukesh Kumar Verma 2008 (1) ARC 256 has taken the view that it is landlord who is the best judge of his requirement.

On the parameters as set out in the present case once landlord has retired and required premises in question for his use and shop in question is required for settling his sons, said finding of facts returned in respect of bonafide need, is not at all liable to be interfered with.

Now coming on comparative hardship front, in the facts of present case it would be landlord, who is likely to suffer irreparable loss qua his unemployed son as compared to the tenant who has not made any effort to search out alternative accommodation.

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.

In the present case this is undisputed position that at Kasganj, district Etah landlord and his family members has no place except the place which has been described in the application. Proceedings has been initiated way back on 21.03.1993 and since then more than 15 years period have elapsed and tenant has not made any attempt and endeavour to search out alternative accommodation. Once tenant has not made any attempt or endeavour to search out alternative accommodation and sons of landlord are still unemployed as per the finding returned then the balance of hardship would much more title in favour of landlord.

Contention which has been advanced on behalf of the petitioner that in the present case Rule 17 of the U.P. Urban Buildings (Regulation of Letting Rent & Eviction ) Rules 1972 has not been complied with is now being adverted to. Rule 17 of the U.P. Urban Buildings (Regulation of Letting Rent & Eviction ) Rules 1972 are to be complied with when release application has been filed u/s 21(1)(b) of U.P. Act No. XIII of 1972. Once release application has been filed u/s 21(1)(a) of U.P. Act No. XIII of 1972 wherein for the purpose of bonafide need building in question can be released either in existing form and landlord has been conferred with right to demolish and reconstruct the same. Rule 17 of the U.P. Urban Buildings (Regulation of Letting Rent & Eviction) Rules 1972 is not all applicable in the facts of the present case, as its are operation is all together different.

Consequently present writ petition is dismissed. However tenants are granted time to vacate the premises in question within six months from today and hand over peaceful possession to the landlord subject to the condition that undertaking is furnished within one month before Prescribed Authority that peaceful possession would be handed over. In the event of failure to furnish undertaking interim protection accorded shall come to an end and landlord would be free to execute the eviction decree.