Allabadi v. Haji Ramzani — 1978 DIGILAW 1052 (ALL)

JUDGMENT K.C Agarwal. J. - This writ petition is directed against an order of the IV Additional District Judge, Moradabad dated 20th May, 1975 dismissing the appeal filed by the landlords under section 22 of the U.P. Urban Buildings (Regulation of letting Rent and Eviction) Act (Act No XIII of 1972) (hereinafter referred to as Act No. XIII of 1972). 2. The facts which led to the filing of the present writ petition, briefly stated are these : House No. 25-C-2 Mohalla Asalatpura, Moradabad belonged to late Haji Karim Bux. It was a double storeyed building, of which the ground floor had been let out to Haji Ramzani, respondent no. 1 Haji Karim Bux died in the year 1947. He had three sons, namely Nazir Ahmad, Fida Husain and Mahammad Husain. The aforesaid house was partitioned amongst the three sons, through a registered partition, deed dated 14.10.1973. As a result of the partition, the house was divided into three portions. The three portions were shown by three different colours The portions of the house which came to the share of different, owners have been depicted by three colours in the map filed before the Prescribed Authority. The portion shown by violet colour in the said map came to the share of Nazir Alimad and his heirs. The petitioners nos. 1 to 7 are the heirs of Nazir Ahmad. The portion shown by pink colour was given to Fida Husain and his heirs. The heirs of Fida Husain are petitioners nos. 8 to 10. The last portion was shown by blue colour and had been given to Mohammad Husain and his heirs. Mohammad Husain himself is one of the petitioners. The portion shown by pink colour was owned by Smt. Ghafooran and her two daughters, Namely, Smt. Sabira Khatoon and Smt. Ahmadi Khatoon. After the partition of the house in three portions, the tenancy of Haji Ramjani was also divided into three parts. Consequent upon the bifurcation of tenancy, Haji Ramjani started paying rent of Rs. 20/- per month to each set. 3. After the partition of the house in three portions, the tenancy of Haji Ramjani was also divided into three parts. Consequent upon the bifurcation of tenancy, Haji Ramjani started paying rent of Rs. 20/- per month to each set. 3. On 15-2-1973, a joint application was filed by all the three sets under section 21(l)(a) of U.P. Act No. XIII of 1972 against Haji Ramzani for the release of the ground floor, which was in his occupation on the ground that the same was required by the members of the families of the three sets for their use and occupation. The landlords alleged that the accommodation in their occupation was insufficient and that they required additional accommodation for their residence. 4. The application was contested by the tenant. He asserted that the accommodation in possession of the landlords was sufficient for their residential requirements and that since he was using the portion of dispute as a godown for storing timber and as he had no other place to shift the godown, he was likely to suffer greater hardship. 5. The Prescribed Authority held that the need of the landlords was not bonafide as they had sufficient accommodation at their disposal for residential purposes. Therefore he dismissed the application. Against the said order, the landlords preferred an appeal. The appeal met with the same fate. Feeling aggrieved, the landlords filed the present writ petition. 6. The main question that arises for decision is whether the finding given by two courts below holding that the need of the landlords was not bonafide is erroneous. Undisputedly, the question whether the need of the landlords is bonafide is one of fact. In the instant case it will, however, be seen that the finding since was given on the basis of erroneous interpretation of section 21(1) (a) of U.P. Act No. XIII of 1972, the same cannot be said to be a finding of fact. In dealing with the requirements of the three sets of the landlords mentioned above, the learned Additional District Judge was obsessed with the idea that unless the accommodation in their possession was 'absolutely' insufficient for their residence, their additional requirement for accommodation could not be considered to be bonafide. In dealing with the requirements of the three sets of the landlords mentioned above, the learned Additional District Judge was obsessed with the idea that unless the accommodation in their possession was 'absolutely' insufficient for their residence, their additional requirement for accommodation could not be considered to be bonafide. A portion of the judgment of the court below is quoted below to show the approach with which the appeal was decided by the learned Additional District Judge : "From what has been discussed above it is apparent that Smt. Gafooran and her daughters Sabra Khatoon appellant have sufficient accommodation at their disposal and they need no additional accommodation for their residence. Similarly the accommodation in the possession of Allahadi and her sons is not so much insufficient as to say that they can not live without additional accommodation. They may have some inconvenience. But they have to tolerate it. It cannot be said that the accommodation in their possession is absolutely insufficient for their residence and that without additional accommodation, they cannot live without adverse effect on their health." 7. At another place the learned Additional District Judge observed that: "A local inspection of the house in question was made by the court. From the inspection it appeared that there was inconvenience for some of the appellant to live in the accommodation in their possession. The inconvenience can be tolerated in these hard times where population has increased much. The inconvenience cannot make the need of the appellants greater than the need of the respondent as has already been mentioned. The appellants, therefore, cannot seek the ejectment of the respondents". 8. Reverting to the legal position, it would appear that an application under section 21(1)(a) of the Act can be filed by a landlord for eviction of a tenant on the ground that the building is "bonafide required" either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family. The words which need interpretation are "bonafide required". The word "bonafide" appearing in this subsection has to be understood in a proper sense. In the context in which it is used, it connotes something more than a desire to have a building and much less than absolute necessity. There can be no doubt that the landlord must have a present need. The word "bonafide" appearing in this subsection has to be understood in a proper sense. In the context in which it is used, it connotes something more than a desire to have a building and much less than absolute necessity. There can be no doubt that the landlord must have a present need. The need must however be real, genuine and not faked. In other words it must be a true need and without stimulation or pretense with a view to find out whether the requirement of the landlord is bonafide, the Prescribed Authority is required to look into every relating fact and circumstances effecting the landlord and his possession, the nature and character of the landlord's accommodation at that time when he is asking for an order in his favour, the social status of the landlord, the scope, size and character of his requirement etc. These are all relevant factors for considering the question of bonafide requirement of a landlord. While interpreting a similar word used in section 10(3) (iii) of the Madras Buildings (Laws and Rent Control) Act, 1960, the Madras High Court held in Nathella v. Sanpath Chetty Vsha Vojinjee Bapulal, 1967(8) L.W., 73. "The expression, therefore, will have to be looked into the context, but subject to that, it means for the present purposes the landlord honestly desires to occupy the premises from which eviction is sought and his claim is not a device to serve an oblique purpose." 9. The expression 'bonafide' occurring in clause (a) of sub-section (1) of section 21 does not sustain the opinion that it is only when the need of the landlord is absolute then alone that he will be entitled to get the possession of the premises let out by him to a tenant. A landlord also cannot be compelled to cramp himself in the premises for the benefit of the tenant. Section 21(1)(a) does not say that the need of the landlord must be absolute need in the sense that until a landlord had not been able to show that he will have to take shelter on the street that he cannot demand his own house for his occupation. Section 21(1)(a) does not say that the need of the landlord must be absolute need in the sense that until a landlord had not been able to show that he will have to take shelter on the street that he cannot demand his own house for his occupation. It is also not correct that a landlord in order to succeed in an application filed under section 21(l)(a) of the Act, must show that his health or that any member of his family is being adversely affected because of the insufficient accommodation available with him. These are all irrelevant considerations and approaches to the problem. The need of the landlord has to be considered from a practical point of view in the background of the social conditions of our country. In Basant Lal Sahe v. P.C. Chakkarvarty, A.I.R. 1950, Calcutta 249. the Calcutta High Court held : "The Statute thereby recognise a wholesome principle that man should not be deprived of his own house If he bonafide requires it for his own occupation. Under the Common law or the Transfer of Property Act, the landlord has considerable rights to evict a tenant from his property. A good many of these rights have been taken away by the Act is order to meet the prevailing and acute shortage of housing accommodation for the citizens of this province. A statute like the west Bengal Premises (Temporary Provisions) Rent Control Act, 1948 is designed to meet the fugitive exigencies of the hour and in doing so the legislature in its wisdom has still left the landlord with that remant of his right, which is an incident of ownership to be able to evict a tenant, when he bonafide requires his property for his own occupation. This Court will be loath to confiscate that valuable right of the landlord without express statutory provision." I respectfully agree with this view. 10. Undoubtedly, the use of the word 'required' signifies that it must not be a mere desire or a wish of the landlord to occupy a house that he will become entitle to get the tenant thrown out of the premises. A landlord is required to show that he needs the premises let out by him to a tenant for his own use and occupation. 11. In Phiroze Ranranji Desai v. Chandrakant M.P. Patel and others, AIR 1974 Supreme Court 1059. A landlord is required to show that he needs the premises let out by him to a tenant for his own use and occupation. 11. In Phiroze Ranranji Desai v. Chandrakant M.P. Patel and others, AIR 1974 Supreme Court 1059. the Supreme Court observed that : "The District Judge did not misdirect himself in regard to the true meaning of the word 'requires' in section 13(l)(g) and interpreted it correctly to mean that there must be an element of need before a landlord can be said to 'require' premises for his own use and occupation. It is not enough that the Landlord should merely desire to use and occupy the premises. What is necessary is that he should need them for his own use and occupation." The same thing was reiterated by the Supreme Court in a subsequent decision reported in Mattulal v. Radhe Lal, 1975 R,C.J. 86. The Supreme Court laid down that "Mere assertion on the part of the landlord that he requires the non residential accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for the court to determine the truth of the assertion and also whether it is bonafide. The test which has to be applied is an objective test and not a subjective one. The word 'required' signifies that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must show the burden being upon him that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business. 12. The discussion made above would show that the learned Additional District Judge was wrong in holding that so long as the landlord did not establish the absolute need of the house he was not entitled to get the possession from his tenant. In fact he interpreted the section 21 (1)(a) wrongly and on account of wrong interpretation that he reached at an incorrect decision, simply because that some how or the other the landlords were living in the accommodations available with them that could not be a ground for holding that the additional premises were not required by them for their residence. In fact he interpreted the section 21 (1)(a) wrongly and on account of wrong interpretation that he reached at an incorrect decision, simply because that some how or the other the landlords were living in the accommodations available with them that could not be a ground for holding that the additional premises were not required by them for their residence. As already emphasised above the question of bonafide rule 2 requirement is a question of facts and the decision of each case will depend on its own facts and circumstances. While deciding an application filed by a landlord seeking eviction of a tenant for his use and occupation. what is required is an objective decision on the question of bonafide requirement on the basis of evidence and facts. A court should not hold the need of the landlord bonafide marely on his suggestion. Mere ipse dixit of a landlord cannot be acted upon. But in deciding the question of bonafide requirement of the test and not a subjective one. In the present case as the learned Additional District Judge thought that the landlord was required to establish his absolute necessity for occupying the house, he rejected the application. A landlord is only required to show his genuire requirement. 13. Learned counsel appearing for the tenant, however, contended that the findings given by the courts below since are findings of fact, this court has no jurisdiction to interfere under Article 226 of the Constitution. There can be no quarrel with the proposition advanced by the learned counsel for the respondent that the jurisdiction being supervisory, this Court cannot interfere even if a finding of fact is erroneous. But that is not the state of affairs in the present case. In the instant case, the appellate authority although found at places more than one that the accommodation in possession of the landlords was insufficient but even after giving that finding he held that since the landlords are living in the accommodation in their possession some how, the application was liable to be rejected. This is manifestly erroneous. Section 21(l)(a) does not require a landlord to compress himself in the house for the benefit of a tenant. 14. This is manifestly erroneous. Section 21(l)(a) does not require a landlord to compress himself in the house for the benefit of a tenant. 14. It is also worthy of being noted that while holding that the need of the land lord was not bona fida, the courts below also took into account the hardship which might be caused to the tenant by granting the application. To my mind this was note correct approach to Judge the bonafide of a landlord's need. The test which a landlord is required to be satisfied is whether he needs the house for his occupation and not whether the tenant needs the house or that an order for eviction will cause hardship to the tenant. The question of hardship is to be decided while comparing the need of the landlord with that of the tenant. 15. It was next pointed out by the learned counsel for respondent no. 1 last as the finding on the question of greater hardship was also one of fact, this court is not entitled to interfere. Again there can be no difficulty in accepting this argument. It, however, appears that the courts below committed manifest error in recording that finding also against the landlords and in favour of tenant. The finding of the courts below on the question of the comparative hardship also got coloured from the decision arrived at by the learned Additional District Judge on the question of the need of the land- lord was not genuine. 16. That apart, the court below relied upon Rule 16 (2)(a) of the Rules framed under the Act and concluded that since the tenant was in possession for the last 30 years the order of eviction could not be passed against him. The fourth proviso to sub-section (1) of section 21 no doubt lays down that the factors mentioned in rule 16 had to be taken into account for considering the question of comparative hardship. The suppression having regard to he used in rule 16 itself indicates that an authority is only required to take into account the various factors mentioned therein. None of them is conclusive or decisive of the question of comparative hardship. The suppression having regard to he used in rule 16 itself indicates that an authority is only required to take into account the various factors mentioned therein. None of them is conclusive or decisive of the question of comparative hardship. The fact that greater the period, since when the tenant have been carrying on his business in that building, could be a consideration in his favour, but the courts below was wrong in holding the same to be a conclusive circumstance and in arriving at a finding that the tenant was likely to suffer greater hardship. 17. Lastly Shri S.P. Gupta pointed out that since the writ petition had not been filed within 90 days of the impugned order, the same was liable to be dismissed on this ground. It appears that after the decision given by the learned Additional District Judge on 20th May, 1975 the landlords filed review application before him. The review application was dismissed on 13th August, 1975. Thereafter, the writ petition was moved on 11th December, 1975. As required by the rules of the High Court notice had been given by the landlords on 10th October, 1978. In this background ; it is not possible to hold that the landlords disentitled themselves from getting the relief from this Hon'ble Court on the ground that the writ petition filed by them suffers from the defect of laches. 18. In the result the writ petition succeeds and is allowed. The judgment of the learned Additional District Judge, dated 20th May, 1975 in set aside. He is directed to decide the appeal in accordance with law and the observations made above. The petitioners are entitled to get costs of this writ petition from respondent no. 1. The District Judge is directed to decide the appeal within three months from today.