Chaman Lal v. Jyoti Prasad — 1978 DIGILAW 1270 (ALL)

JUDGMENT K.C. Agrawal, J. - This is a tenant's writ petition filed against the judgment of the Additional District Judge, Kanpur, dismissing the appeal filed by the petitioner. 2. The dispute in the present case is with respect to a shop No. 108/19, P. Road, Kanpur. The shop is 3 meter x 4.4 meters. It had been let out to the petitioner in 1948 and since then the petitioner is carrying on his Purchune business therein. Jyoti Prasad, respondent No. 1 who is the son of the landlord of the shop was previously employed in the U.P. Public Works Department as an overseer. He retired from the service in 1961. On 18th August, 1972 Jyoti Prasad filed an application for release of the shop under Section 2C(l)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) on the ground of personal requirement. In the application the landlord stated that he had a large family and that the income which he was deriving from the rent of the various buildings let out as well as from the pension was insufficient to meet the requirements of the family. It was also alleged by him that one of his sons was previously doing contract work in the Nagar Mahapalika but owing to losses, he had to stop the work and to take up the running of a flour mill from which the monthly income earned was only Rs. 100/-. The landlord also alleged that the petitioner had three more shops in the flourishing localities of the city and that he would not suffer any hardship if he was evicted from the shop in question. 3. The application was resisted by the petitioner. He alleged that the landlord did not require the shop for occupation by himself. The petitioner claimed the landlord was having huge income from the rent received from various accommodations and that his son was also settled. The petitioner asserted that he had no connection or concern with the three alternative shops mentioned by the landlord in his application, that the business run in the shop in dispute was the only source of his income. 4. Before the Prescribed Authority, the parties filed affidavits and other documentary evidence. On 6.8.1976, the Prescribed Authority allowed the application on the finding that the need of the landlord was bonafide. 4. Before the Prescribed Authority, the parties filed affidavits and other documentary evidence. On 6.8.1976, the Prescribed Authority allowed the application on the finding that the need of the landlord was bonafide. He also held that the landlord was doing business in a very small shop and that he required the premises in dispute for shifting his business to the disputed one. On these findings the application filed by the landlord was allowed. Against the aforesaid judgment the petitioner filed an appeal. The appeal was dismissed. Being aggrieved the petitioner filed the present writ petition. 5. The first question that was raised by the learned counsel for the petitioner was that the finding given by the Courts below on the question of bonafide requirement of the premises was erroneous. He submitted that the application had been filed by the landlord for the need of his son who was already settled in a business and as such the application was wrongly allowed. 6. Before proceeding to decide the points, we have to bear in mind that the U.P. Act No. 13 of 1972 had been enacted for the purpose of protecting tenants from unreasonable eviction. A landlord cannot eject his tenant on his fanciful whim or false pretext of acquiring an accommodation. This is clear from the words themselves used by the Legislature in Section 21. In deciding an application filed under Section 21, an authority is required to give full effect to the scheme without engrafting and adding to the language used in this provision which may not be congenial to or inconsistent with such express words. 7. It is to be seen that the words used in Section 21(1)(a) of the Act are 'bonafide required', the word 'bonafide' signifies that the need of the building should be in good faith. It is, however, worthy of being noted that the clause does not speak of the bonafides of the landlord, but it says that the claim of the landlord that he requires for certain purposes should be bonafide, that is to say, honest in the circumstances. The investigation, is, therefore, not to be confined to the existence of an intention of the kind of the landlord, but that intention must be honestly held in relation to the surrounding circumstances. Briefly speaking, the bonafides of the claim is the real criteria which has to be objectively decided. The investigation, is, therefore, not to be confined to the existence of an intention of the kind of the landlord, but that intention must be honestly held in relation to the surrounding circumstances. Briefly speaking, the bonafides of the claim is the real criteria which has to be objectively decided. The finding given should not be based on the ipse dixit of the landlord. 8. In the instant case, it would appear that the appellate authority found that one of the sons of the landlord was unemployed and that he was required to be settled in the business. In fact this finding of the appellate authority is beyond the pleadings of the parties. The case of the landlord was that Satish Chandra, his son was looking after the Atta Chakki business. He had, however, claimed that as the income derived from the said business was only Rs. 100/-, Satish Chandra was required to be settled in another business. The appellate authority did not record any finding on the aforesaid controversy. He erroneously observed in paragraph 6 that "the family of his unemployed son lives with him and is dependent upon him." This shows that the appellate authority did not even properly understand the controversy and held on a wrong premise that the need of the landlord was bonafide. It would have been a different matter if the appellate authority would have given the aforesaid finding after taking into account the correct ground on which the application was founded. The fact that the Prescribed Authority also did not decide the controversy of bonafide requirement from a correct angle shows that its finding was based on conjectures. 9. Another thing which largely influenced the finding of the bonafide requirement of the shop in' favour of the landlord was his preparedness to give possession of the shop which was in possession of the landlord and in which he was running his Purchune business. It is true that this shop was also situated in the same locality where the disputed shop is but the area of the aforesaid shop was 3' x 5', and it was under a staircase. The offer of the landlord to the tenant that the latter could occupy the said shop was hardly relevant for holding that the need of the landlord was bonafide. It may be noted that the shop in dispute was 3 meters x 4.4 meters. The offer of the landlord to the tenant that the latter could occupy the said shop was hardly relevant for holding that the need of the landlord was bonafide. It may be noted that the shop in dispute was 3 meters x 4.4 meters. Moreover, the offer of the landlord could not in itself establish that his need was bonafide. 10. It is a settled law that if a finding has been influenced by considerations that cannot lawfully be taken into account, or by a disregard of the relevant considerations, a Court could hold that the power has not been validly exercised. It would have been of course a different matter if an authority may consider irrelevant matters in arriving at its decision if those considerations did not affect the ultimate decision. In the instant case it appears to me that the offer which had been made by the landlord strongly influenced the finding of the two Courts below in holding that the need of the landlord was bonafide. 11. In Mattu Lal v. Radhey Lal, 1975 R.C.J. 86, the Supreme Court has laid down the test which has to be applied in such a case. It was emphasised that mere assertion on the part of the landlord that he requires the non-residential accommodation in the occupation of a tenant for the purpose of starting his own business is not decisive. It is for the Court to determine the truth of the assertion and also whether it is bonafide. 12. The judgment of the appellate authority is also vitiated on account of the erroneous finding given on the question of comparative hardship. The appellate authority held that as the tenant-petitioner had other alternative shops available to him he was not liable, to suffer any hardship. The case of the landlord was that the tenant was a member of a joint family which had business at three places and that the petitioner could also shift his business to the premises which was already in possession of his other brothers. 13. The finding of the appellate authority is manifestly erroneous. Even if the petitioner was living with his brothers and was a member of the joint family, the same could not be a ground to hold that the petitioner was not likely to suffer. 13. The finding of the appellate authority is manifestly erroneous. Even if the petitioner was living with his brothers and was a member of the joint family, the same could not be a ground to hold that the petitioner was not likely to suffer. The case of the tenant was that he was living separately and further that the business run in the premises in dispute had nothing to do with the family of which he was a member. Even if it was wrong that the petitioner was living separately, that did not mean that the business of the petitioner could not be separate. In fact the appellate authority also appears to have held that the business of the petitioner was separate. He, however, thought that since the petitioner could shift his business to one of the shops in occupation of one of the brothers, the tenant was not likely to suffer any hardship. It is obvious that the business of the petitioner, being separate, could not be shifted and amalgamated with that of his brothers. Merely because the brothers of the petitioner were well placed in life this could not show the petitioner was not likely to suffer any hardship. That could not be a basis to hold that the petitioner was not required to run his shop independently of his brothers. It was not correct to hold that the petitioner could join one of his brothers. The question of comparative hardship had to be decided by taking into account the various factors stated in rule 16(2) of the rules of the Act and the decisions given on it. 14. For what I have said above, I find that the judgments of the two Court below on the questions of bonafide requirement as well as on comparative hardship have been wrongly decided and as a result thereof, the appellate judgment is liable to be quashed. 'The appellate authority is directed to decide the appeal afresh. It will also consider the prayer of admitting additional evidence if the same is made by the parties. While giving the direction to the appellate authority to the above effect, I do not mean to lay down that additional evidence should be admitted irrespective of the fact that grounds for the admission of the same have not been made out. It will also consider the prayer of admitting additional evidence if the same is made by the parties. While giving the direction to the appellate authority to the above effect, I do not mean to lay down that additional evidence should be admitted irrespective of the fact that grounds for the admission of the same have not been made out. The appellate Authority will admit evidence only if a case for the same has been established in accordance with law. 15. In the result, the writ petition succeeds and is allowed. The judgment of the Additional District Judge (annexure 9) is quashed. He is directed to decide the appeal afresh. In the circumstances, I direct the parties to bear their own costs.