Smt. Banno vs Rasheed and Others

V.K. Shukla, J.—This is tenant''s petition questioning the validity of order dated 18.01.2008 passed by Prescribed Authority, allowing release application of the landlord u/s 21 (1) (a) of U.P. Act No. XIII of 1972 and the order of its affirmance dated 20.09.2008 passed in appeal preferred u/s 22 of U.P. Act No. XIII of 1972.

Brief background of the case, as disclosed in the writ petition, is that the landlord filed release application u/s 21(1)(a) of U.P. Act No. XIII of 1972 for shop in question, wherein petitioner was carrying on Dry Cleaning Business. The need, which was set up in the release application, was for the son, Allah Bux, who was unemployed, so that he may open general merchant shop and settle himself. Said application was objected to by filing written statement and taking stand therein that the need was neither bona fide nor genuine, and further, the son was already engaged in the business of trading of cattle and the family in question was influential. It was also sought to be contended that landlord had purchased another shop in the name of his brother, which was situated towards southern side road of Madina Hotel having water rate No. 2930. It was also asserted that landlord had two storied building at Delhi Gate Road, wherein there were two shops on ground floor. During pendency of proceedings, tenant died and his widow was substituted. In support of his case, landlord filed his own affidavit as well as affidavit of his son. The petitioner got filed affidavits of Kartar Singh, Haria and Devi Ram. The Prescribed Authority considered the case and need of the landlord was found to be bona fide and genuine. On comparative hardship front also finding was returned in favour of the landlord. Aggrieved against the said order, appeal was preferred by petitioner and the same was also dismissed. At this juncture, present writ petition has been filed.

Sri P.K. Jain, Senior Advocate, assisted by Sri Rajesh Pachauri and Sri Amitabh Agrawal, Advocates, learned Counsel appearing for the petitioner, contended with vehemence that in the present case, need in question was not at all bona fide and genuine, rather it was patently whimsical, as the landlord had got alternative accommodation, which was equally suitable, and as landlord had arbitrarily chosen the present premises in question, the finding of fact recorded on the question of bona fide need is unsustainable, and coupled with this, petitioner is ready to shift to alternative accommodation, but the said facet has not been considered, as such writ petition deserves to be allowed.

Countering the said submission Sri Rahul Sahai, Advocate appearing along with Sri Anurodh Mishra, Advocate, contended that both the courts below have recorded concurrent finding of fact in favour of landlord qua settlement of his unemployed son, and the said findings being neither perverse nor unreasonable, same are not liable to be interfered with. Coupled with this, alternative accommodation is part and parcel of residential house and the same is not shop, as such writ petition is liable to be dismissed.

After respective arguments have been advanced, factual position which emerges and qua which there is no dispute, is that the landlord requires the shop in dispute for settlement of his unemployed son for opening general merchandise business. Both, the Prescribed Authority as well as the Appellate Authority have considered the evidence available on record and recorded finding of fact that son of the landlord was unemployed and the need set up by him was bona fide and genuine, inasmuch as landlord''s son had got no business in his name. Once this factual position has emerged on the basis of evidence and there being no contrary material brought to show and substantiate that the son was engaged in any other business, the finding of fact cannot be interfered with; the need set up has to be accepted as bona fide and genuine and the landlord has every right to see that his son settles down independently and merely because during this period his release application was pending, son was assisting in his family business, same would not dilute the bona fide and genuine need of the landlord.

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.

On the parameters as set out in the judgments quoted above, the need set up by the landlord to settle his unemployed son, said finding of fact returned on the question of bona fide need by the Prescribed Authority as well as the appellate authority are hereby confirmed.

Much emphasis has been laid on the fact that alternative accommodation was there at the discretion of the landlord and in this background need cannot be said to be bona fide and genuine. For this purpose reliance has been placed on the judgment of this Court in the case of Santosh Kumar Sharma v. VIth Additional District Judge, Saharanpur and Ors. 2006 (63) ALR 248, wherein view has been taken that where alternative accommodation, which is equally suitable as the tenanted accommodation sought to be released is available to the landlord, the need of the landlord for tenanted accommodation cannot be said to be bona fide. This judgment will not at all come to rescue of petitioner, for the simple reason that here tenanted shop lies in Koshi Kalan, whereas residential premises of the landlord is situated at Chatta, district Mathura at the distance of 10 Kilometres from Koshi Kalan, as informed by both the sides. Qua the said premises, which has been suggested as alternative accommodation, categorical finding of fact has been retunred that the same is residential premises situated in residential area. Coupled with this, it has also come on record that Varandah of the residential premises has been partitioned by wall. Once such factual position has emerged, then landlord cannot be forced to carry on business as indicated/suggested, inasmuch as it is prerogative and discretion of the landlord to chose the place and site for business, which would be conducive to him to carry on business. Once this fact has been admitted that residential building is at Chhata situated in residential area and the shop in question is situated in commercial locality, in this background, alternative accommodation suggested is of no consequence, inasmuch as, it is not at all equally suitable. Thus, there is no doubt qua bona fide and genuine need set up by the landlord.

Now coming to the question of comparative hardship, once this is the fact that son of the landlord is unemployed and intends to settle himself, and this is also admitted fact that litigation is going on for the last more than nine years, and no attempt has been made by the tenant to search for alternative accommodation, then balance would tilt in favour of landlord.

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.

Consequently, in the present case as no attempt has been made by tenant to search for alternative accommodation for all these years, then vis-a-vis requirement of unemployed son of the landlord, who has been waiting for all these years to settle independently, on comparative hardship front, the scale will tilt in favour of the landlord in the facts of the case.

At last, it has been contended by the petitioner that in the residential house at Chhata, she be provided alternative accommodation. Once this fact has come on record that the same is residential house, merely because varandah has been partitioned, this Court cannot compel the landlord to provide the said space to the petitioner, specially when Chhata is at about 10 Kilometres away from Koshi Kalan, such a request cannot be accepted.

Consequently, writ petition fails and the same is dismissed. Petitioner is 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.