Shri Gandhi Ashram Khadi Bhandar and Another and Ajit Kumar Jain vs XIX Additional District Judge and Others

V.K. Shukla, J.—Civil Misc. Writ Petition No. 34048 of 1999 has been filed by Shri Gandhi Ashram Khadi Bhandar, questioning the validity of order dated 16.05.1999 passed by the Prescribed Authority, allowing application moved on behalf of landlord u/s 21(1) (a) of U.P. Act No. XIII of 1972 and the order of its affirmance dated 28.07.1999, in appeal u/s 22 of the said Act. Civil Misc. Writ Petition No. 34519 of 1999 has been filed by the petitioner, questioning the validity of order dated 16.05.1999 passed by the Prescribed Authority, allowing application moved on behalf of landlord u/s 21 (1) (a) of U.P. Act No. XIII of 1972 and the order of its affirmance dated 28.07.1999, in appeal u/s 22 of the said Act.

Brief background of the case is that respondent No. 3, Anil Kumar Mittal is the landlord of premises No. 125, Sotiganj, Begaum Bridge Road, Meerut. In one portion of the said building, Shri Gandhi Ashram Khadi Bhandar has been there as tenant on monthly rent of Rs. 260/-. In the same very premises, there is shop of Ajit Kumar Jain on monthly rent of Rs. ,125/-. Respondent No. 3 filed P.A. Case Nos. 166/92 and 167/92 against Shri Gandhi Ashram Khadi Bhandra and Ajit Kumar Jain. In both the release application so moved, case of the landlord has been that he intends to open departmental store after reconstructing the premises in question; he bona fidely needs the premises in question , as his other business is too small. Release applications of the landlord was opposed by both the tenants by filing written statement. Precise stand taken by the tenants was that the need of the landlord was not at all bona fide and genuine; he had got extra source of income. Recently, he had sold his house situated at the first floor portion of the disputed premises, which was lying vacant; he could have carried on his business on the first floor. Additional objection was filed contending therein that the landlord has been carrying on business at Sadar Kabari Bazar; he can carry on business of departmental store from the said place. After the objections, written statement and additional objections had been filed, landlord filed his replica and contended therein that the said portion known as Marwari Bhojanalaya was vacated after long drawn litigation and by the time it was vacated, it had come to dilapidated condition, as such in order to avoid any mis-happening, such dilapidated portion of the building was got down, and the same is not at all befitting for the requirement. From the side of landlord his affidavit along with balance sheet, sale deed dated 28.02.1992 and other voluminous documents were filed. From the side of Gandhi Ashram, affidavit of Kr. Ganga Prasad Singh, Kalp Nath Rai and R.S. Gupta had been filed. Similarly, in P.A. Case No. 167 of 1992 affidavits on the similar line had been filed.

The Prescribed Authority in both the cases found the need of the landlord bona fide and genuine one and on comparative hardship finding was returned against the tenant. Both the tenants preferred separate appeals, both the appeals have been dismissed reiterating the same view. At this juncture, present writ petitions in question have been filed.

Pleadings interse parties have been exchanged; thereafter, with the consent of the parties, present writ petition has been taken up for final hearing and disposal.

Sri Atul Dayal, Advocate, learned Counsel appearing for Shri Gandhi Ashram Khadi Bhandar, contended with vehemence that in the present case need of landlord in no way could be termed as bona fide and genuine one and further incorrect statement of fact has been mentioned that business was being run in the name of his wife, whereas various entries showed and established that the landlord himself had control over the business, and further the landlord had alternative accommodation to establish himself, as such finding on bona fide front is perverse, and as far as comparative hardship is concerned, petitioners would be in more disadvantageous situation, as such release application ought to have been dismissed, and writ petition deserves to be allowed.

Sri Anjani Kumar Mishra, Advocate, learned Counsel appearing for writ petitioner, Ajit Kumar Jain, in writ petition No. 34519 of 1999, toed the same line of argument as has been advanced by Sri Atul Dayal and tried to contend that in the facts of the case need set up by the landlord was not at all bona fide and genuine and reiterated that on comparative hardship, petitioner was to suffer more and further as landlord required 2200 square feet and as per provisions of U.P. Urban Building Planning and Development Act, 1973, the area as was required was not available, in such a situation and in the facts of the case, writ petition deserves to be allowed.

Countering the said submissions, Sri Madan Mohan, Advocate, appearing for the landlord, has contended that both the courts below have recorded concurrent finding of fact qua bona fide need and comparative hardship, and this Court, in such a situation, should refuse to interfere with the findings recorded by the courts below, and further it is the choice of landlord as to which place would be much more suitable for carrying on business and the tenants have no role to play in the matter of choice of the landlord as to from where he should carry on business, in this background, writ petition deserves to be dismissed.

As much stress has been laid by the tenants on the fact that in fact, the landlord has chosen wrong place to carry on business; in fact he has been carrying on business in the name of his wife as well himself and at Sadar Kabari Bazar; he can carry on business of departmental store, which is appropriate for the said business of departmental store, and shop in question is not bona fidly required, the said issues are being adverted to, first on the parameters settled by Hon''ble Apex Court.

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, and choice of accommodation should be left to the needy. 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 Sait Nagjee Purushotham and Co. Ltd. Vs. Vimalabai Prabhulal and Others, has taken the view that it is prerogative of the landlord to decide for what purpose , he requires the shop in question, and tenant cannot dictate to landlord and advise him, what he should do and what he should not. Paragraphs 4, 7 and 8 being relevant are being quoted below:

First of all we shall take up the question of bona fide need of the landlords. so far as the partition of the property and the present premises coming to the share of the landlords are concerned, there is no dispute that the portion of the building has come to the share of the landlords and they are the owners as a result of the partition of the family properties. But the question is whether the landlords who are the owners of the portion of the building have substantiated the allegation with regard to the bona fide need or not. We have gone through the findings of the trial Court as well as that of the appellate authority and the High Court and after closely scrutinizing the same, we do not think that the finding recorded by appellate Court and the High Court can be interfered by this Court on the ground of being perverse or without any basis. The landlords have led evidence to show that one of their sons who had requisite qualification for starting a computer institute wants to establish the same at Calicut and others for extension of their business. The trial Court as well as the first appellate Court and the High Court examined the statements of P. Ws. 2 and 3 and after considering their evidence, the appellate Court reversed the finding of the trial Court and held that the need of the respondent-landlords to start business at Calicut, is bona fide and genuine. It was held that it cannot be said that a person who is already having business at one place cannot expand his business at any other place in the country. It is true that the landlords have their business spreading over Chennai and Hyderabad and if they wanted to expand their business at Calicut it cannot be said to be unnatural thereby denying the eviction of the tenant from the premises in question. It is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlords and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business. However, the trial Court held in favour of tenant appellant. But the appellate Court as well as the High Court after scrutinizing the evidence on record, reversed the finding of the trial Court and held that the need of establishing the business at Calicut by the landlords cannot be said to be lacking in bona fide.

In the case of Pratap Rai Tanwani and Another Vs. Uttam Chand and Another, it was held that the bona fide requirement of the landlord has to be seen on the date of the petition and the subsequent events intervening due to protracted litigation will not be relevant. It was held that the crucial date is the date of petition. Their Lordships further observed that the normal rule is that the rights and obligations of the parties are to be determined on the date of the petition and that subsequent events can be taken into consideration for moulding the reliefs provided such events had a material impact on those rights and obligations. It was further observed by their Lordships that it is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. Therefore, the Courts have to take a very pragmatic approach of the matter. It is the common experience in our country that specially landlord tenant litigation prolongs for a long period. It is true that neither the person who has started the litigation can sit idle nor the development of the events can be stopped by him. Therefore, the crucial event should be taken as on the date when the suit for eviction was filed unless the subsequent event materially changed the ground of relief.

In the case of Gaya Prasad v. Pradeep Srivastava reported in (2001) 2 SCC 604 their Lordships observed that the landlord should not be penalized for the slowness of the legal system and the crucial date for deciding the bona fide of the requirement of the landlord is the date of his application for eviction. Their Lordships also observed that the process of litigation cannot be made the basis denying the landlord relief while litigation at least reaches the final stages. However, their Lordships further added that subsequent events may in some situations be considered to have overshadowed the genuineness of the landlord''s need but only if they are of such nature and dimension as to completely eclipse such need and make it lose significance altogether.

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 paragraph 5 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.

On the parameters as set out by Hon''ble Apex Court, as far as choice of place is concerned, the tenant has no role to play in the matter, inasmuch as the landlord is the best judge to choose as to from which place he should carry on business. In the present case, landlord has chosen the premises in question as the best place to carry on his business, which is on the main road of Meerut city at Begum Bridge and has also given reasons for non opening of departmental store at Kabar Bazar, Meerut. Once this is the factual scenario, then in respect of choice of place to carry on business from Begum Bridge Road cannot be objected to. Submission made that the said area will fall short, after map is sanctioned as per the provisions of U.P. Urban Planning and Town Development Act, 1973, is also neither here nor there. Construction within the regulated area has to be carried out, as per the sanctioned plan, and in sanctioned map if area shown for opening of departmental store has been lessened, same will in no way dilute the choice of place, once landlord still carries the intention to open departmental store, within the space available, as per sanctioned map, in this background, tenants cannot be permitted to derive any benefit for advantage of the said situation.

It is further clearly reflected that the landlord has come up with specific case that he was running shuttering business at Kabari Bazar, and he intends to establish a new business. Once such is the need set up by the landlord, and both the courts below have accepted the need of the landlord to be bona fide one for setting up of new business over the disputed premises, then as far as bona fide need of the landlord is concerned, same is not at all liable to be interfered with. The question of bona fide need is essentially a question of fact, and this much has come in evidence that except for shuttering business, petitioner has no other business in his name and other documents available on record clearly substantiate that the other business was being carried by the wife of the landlord and the landlord himself had no independent business in his name. Merely because in some financial transaction entries have been shown in the name of landlord, bona fide need set up by the landlord cannot be doubted in the facts of the case.

Now question of comparative hardship 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.

In the present case, accepted position is that release application had been filed in the year 1992. Since then more than 18 years period have elapsed, and by now both the petitioners ought to have made alternative arrangement. In the present case, records are speaking for itself and in case the petitioners have not been able to arrange for alternative accommodation, then they themselves are to be blamed and here in addition to the same, finding is there that there is alternative accommodation available. In view of this there is no occasion to interfere with the orders impugned, qua finding of fact returned on the question of bona fide need and comparative hardship, both.

Consequently, writ petitions fail and the same are, accordingly, dismissed. Petitioners are 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.