Chander Mohan Tandon v. District Judge, Barabanki — 1987 DIGILAW 763 (ALL)

JUDGMENT S.C. Mathur, J. - This is tenant's petition arising from the proceedings for eviction from accommodation under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent Eviction) Act, 1972 (Act No. XIII of 1972). The petitioners have lost before both the authorities below. 2. The dispute in the petition pertains to a premises comprising of a shop and a residential portion situate in mohalla Rasulpur Town of Nawabganj, District Barabanki. The entire accommodation is with the petitioners at a monthly rent of Rs. 136. The premises in dispute formed part of a bigger house which was the subject-matter of partition Suit No. 60 of 1969 which was decided in the year 1971. As a result of the partition effected in this suit, the premises in question fell to the share of Opposite Parties Nos. 3 and 4 Surrendra Nath and Triloki Nath. After the partition Opposite Parties Nos. 3 and 4 had to vacate the other portion of the bigger house which had fallen to the share of the other co-sharer. In view of the partition Opposite Parties Nos. 3 and 4 requested the petitioners to vacate the premises in question so as to make the same available to them for their occupation but they did not pay need to request. Accordingly the said opposite parties took a house on rent from Smt. Tulsa Devi. The opposite parties alleged that the house was 100 years old and was in a dilapidated condition. They however took the house as they had no accommodation to shift to. Meanwhile they filed Suit No. 60 of 1986 against the petitioners for their eviction from the accommodation in question. The eviction was claimed on the basis of default in payment of rent and inapplicability of U.P. Act No. III of 1947 ; the in-applicability of the Act was claimed on the basis that the premises had been newly constructed. The opposite parties lost in the Trial Court but won in the higher Court. Thereafter there was approach to this Court wherein they again lost. Meanwhile the house of Smt. Tulsa Devi which they had taken on rent fell down dislodging the opposite parties therefrom. At this stage Ramakant one of the brothers of Opposite Parties Nos. The opposite parties lost in the Trial Court but won in the higher Court. Thereafter there was approach to this Court wherein they again lost. Meanwhile the house of Smt. Tulsa Devi which they had taken on rent fell down dislodging the opposite parties therefrom. At this stage Ramakant one of the brothers of Opposite Parties Nos. 3 and 4 came to their rescue by allowing one of the accommodation allotted to his share to be occupied by she Opposite Party No. 3 in the specific understanding that he will vacate the said accommodation whenever required. So far as the Opposite Party No. 4 was concerned he was posted at Kanpur and had at his disposal only a single room accommodation there. He had to shift his family from Barabanki to Kanpur and to accommodate in the said single room accommodation Ramakant retired from service and insisted on getting possession of the room which he had allowed Surrendra Nath to occupy. The landlord opposite parties pleaded that on the facts hereinbefore mentioned they required the accommodation in question for their personal use. It was pointed out that in due course of time Opposite Party No. 4 Triloki Nath would retire and he would also settle down at Barabanki. It was also stated that the sons of Opposite Parties Nos. 3 and 4 had grown up and were not doing anything and were required to be settled in business. 3. After pointing out their bona fide requirement in the manner mentioned herein above, Opposite Parties Nos. 3 and 4 pleaded that the petitioners were rich people and owned several houses, shops, motor garages and ice factory in the District of Barabanki and therefore they will not be prejudiced in case they were evicted from the accommodation in question. It was stated that they had taken on rent a shop adjacent to the premises in question in which business in the name and style of Modern Steel Works had been started. It was averred that the petitioners wanted to take advantage of their money in pressurising the Opposite Parties Nos. 3 and 4 to sell the accommodation in their favour but the opposite parties did not agree to sell the accommodation as they required the same for their own occupation and they did not possess any other accommodation at Barabanki or elsewhere. 4. The application for release was contested by the petitioners. 3 and 4 to sell the accommodation in their favour but the opposite parties did not agree to sell the accommodation as they required the same for their own occupation and they did not possess any other accommodation at Barabanki or elsewhere. 4. The application for release was contested by the petitioners. The written statement was filed by Opposite Party No. 5. Regarding the need of the landlord Surendra Nath he pleaded that he was comfortably living in the house of Ramakant and he is in possession of a shop in which he was presently carrying on the profession of dentistry which he had given up and the shop was lying vacant and was available for the settlement of his son in;,business, if In fact the said son was required to be settled in business, although it was denied that the son was intended to be settled in business. The requirement or impending retirement of Ramakant was also not accepted. 5. Regarding the landlord Triloki Nath it was stated that he was not due to retire shortly and he was living comfortably with his family at Kanpur where he was posted. It was denied that his son was to be settled in business. 6. In support of their respective pleas the petitioners and the opposite parties No. 3 and 4 filed affidavits. The two authorities below have accepted the landlord's plea that they are in need of the accommodation in question. That finding has been arrived at on the basis of evidence on record and does not suffer from any legal infirmity. Being finding of fact the said finding cannot be interfered with in the present case and, therefore, I confirm the same. 7. The learned Counsel for the petitioners, however, submitted that Triloki Nath opposite party No. 4 is not due to retire shortly but is due to retire shortly but is due to retire in the year 1999 and, therefore, there was no occasion for the authorities below to consider his bona fide requirement at this stage. The argument is based on mis-reading of the plea of opposite parties No. 3 and 4. The argument is based on mis-reading of the plea of opposite parties No. 3 and 4. The case of opposite parties No. 3 and 4 was that the family of Triloki Nath was also residing in a portion of the house which was the subject matter of partition Suit No. 60 of 1969 and the family members had to vacate the said portion after partition. The family members were thereafter accommodated in the house taken on rent from Smt. Tulsa Devi and when even that house collapsed the family members went to live with opposite party No. 4 at Kanpur. At Kanpur opposite party No. 4 had a single room accommodation in his possession. Obviously that accommodation is insufficient for the retirements of opposite party No. 4 and his family members. The plea of opposite parties No. 3 and 4 was that once the premises in question become available to them the family members of Triloki Nath will also shift to the premises in question from Kanpur. The retirement of Triloki Nath in the year 1999 is, therefore, irrelevant. 8. It was next submitted by the learned Counsel that the application under Section 21 of the landlords did not contain any averment to the effect that the landlord will suffer greater hardship from the rejection of their application than the petitioners will suffer from the application being allowed and, therefore the order of eviction is not sustainable. In support of his plea that such an averment was required to be made in the application the learned Counsel has placed reliance upon 1986 AWC 317 : 1986 (1) ARC 324 ; Babulal Sahu v. Smt. Tulsa Bai and others. In paragraphs 5 and 6 of the report Hon'ble S.K. Dhaon, J. has made the following observations : "5. Having gone through the application under Section 21 (1) (a) made by the landlady I find that in it, it is averred that her need is genuine and greater than that of the petitioner. There is no averment as regards the hardship to be suffered by either of the two parties. Having gone through the application under Section 21 (1) (a) made by the landlady I find that in it, it is averred that her need is genuine and greater than that of the petitioner. There is no averment as regards the hardship to be suffered by either of the two parties. The Appellate Authority has taken the view that the admission made by the petitioner that the application of the landlady should be accepted in law tantamounts to the fulfilment of the requirements of the provisions as contained in Section 21 (1) (a) and, therefore, the Prescribed Authority had passed the order in accordance with that section. 6. Having considered the matter carefully I am unable to subscribe to this view. Neither the contents of the application made by the landlady disclose that she will suffer greater hardship than the petitioner if the order of eviction is not passed, nor do, on their orders, either the Prescribed Authority or the Appellate Authority record any finding that the landlady will suffer greater hardship than the petitioner in the event an order of eviction is not passed. The net result is that an important ingredient of Section 21(1)(a) remains unsatisfied." 9. In this case comparison of hardship had not been done either by the Prescribed Authority or by the Appellate Authority. It is in this context that it has been observed that although the application under Section 21 contained averment to the effect that the need of the landlady was genuine and greater than that of the tenant, there was no averment as regards the hardship to be suffered by either of the two parties. Proviso 4 to sub-section (1) of Section 21 which requires the hardships to be compared reads as follows:- "Provided also that the Prescribed Authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed." This proviso casts an obligation upon the Prescribed Authority and not upon the landlord seeking eviction under Section 21(1) (a). In my opinion Hon'ble Dhaon, J. did not intend to lay down that if an application under Section 21 (1) (a) does not contain an averment to the effect that the landlord will suffer greater hardship from the rejection of his application than the tenant will suffer from the application being allowed, the application would not be maintainable. Hon'ble Dhaon, J. only intended to point out that neither the Prescribed Authority nor the District Judge cared to discharge the statutory obligation laid upon them under the fourth proviso nor the landlady had made any averment to that effect. Be that is it may, in the present case there is no lack of such averment. The opposite parties No. 3 and 4 after pointing out the hardship through which they were passing and indicating their genuine requirement for the accommodation in question also pointed out that the petitioners were rich persons and owned severed accommodations including houses and shops. The obvious purpose of making this reference was to point out that on a comparison of hardships the landlords will suffer more in case their application was rejected than the tenants who had several accommodations at their disposal. The opposite parties No. 3 and 4 went to the extent of pointing out that very recently the petitioners had taken a shop on rent adjoining to the shop comprised in the premises in question. In my opinion, therefore, it is not a case which lacks pleadings on the question of comparative hardship. 10. The learned Counsel further submitted that in the present case no finding had been recorded by the Prescribed Authority on the question of comparative hardship and yet the learned District Judge wrongly observed that such a comparison had been done which he confirmed. According to the learned Counsel if there was no comparison by the Prescribed Authority the confirmation of the supposed finding by the learned District Judge also becomes vitiated. I have gone through the order of the Prescribed Authority and the judgment of the learned District Judge. I am unable to agree with the submission of the learned Counsel that there is no comparison of hardships by the Prescribed Authority. The Prescribed Authority has compared the hardships in the last two paragraphs of his order before the operative portion of the order. I am unable to agree with the submission of the learned Counsel that there is no comparison of hardships by the Prescribed Authority. The Prescribed Authority has compared the hardships in the last two paragraphs of his order before the operative portion of the order. The learned District Judge has elaborated the matter further and stated that the tenant's financial position is very sound and the landlords are financially week. He has stated that the landlords had to borrow money from the tenants for constructing the premises. He has further observed that there was evidence on record to the effect that shops were available in the vicinity. The petitioners themselves admitted that during the pendency of the proceedings they acquired a shop and a son of one of the petitioners had started his business therein after referring to this fact the learned District Judge has observed that if the tenants had so desired they could have obtained another shop for shifting the business from the shop in question. He has observed that the petitioners did not produce any evidence to show that they made any effort to acquire any shop in place of the present shop and they were unsuccessful. These are the relevant facts to be considered for comparison of hardships. The argument of the learned Counsel for the petitioners, therefore, that the hardships have not been compared is incorrect. 11. It is next submitted that there has been violation of Rule 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 inasmuch as the length for which the petitioners had been doing business in the shop in question has not been considered. The learned Counsel for the landlords has rightly pointed out that the petitioners have not been doing business in the shop in question for long inasmuch as the shop in question was taken on rent by them only in the year 1965 and thereafter there has been litigation between the parties regarding possession of the shop since the year 1969. 12. Further I am unable to agree with the submission of the learned Counsel for the petitioners that the period of occupation of the shop by the petitioners has not been considered by the authorities below. 12. Further I am unable to agree with the submission of the learned Counsel for the petitioners that the period of occupation of the shop by the petitioners has not been considered by the authorities below. The consideration comprises in pointing out that the petitioners will not suffer any prejudice as shops are available in the vicinity of the premises in question and the petitioners being financially well off have the capacity to acquire the shops. For considering Clause (a) of Rule 16 (2) it was not necessary for the District Judge to first count the number of years and then say that the period was not long enough to reject the landlord's claim. Clause (a) has been considered along with Clause (b) under which there is greater justification for allowing application when the tenant has available with him suitable accommodation to which he can shift his business without material loss. The suitable accommodation need not at the time of passing the order be actually in the hands of the tenants. Its prospective availability will also attract Clause (b). 13. In support of his plea that the period of tenant's occupation of the shop has to be specifically considered, the learned Counsel has relied upon 1978 AWC 183 , Basant Lal v. VIIIth Addl. District Judge and others. This was a case in which the tenant had been in occupation for the last thirty years. In the case on hand over if the period of suit filed prior to the filing of the application under Section 21 is included, the petitioners had been in occupation for only sixteen years prior to the filing of the said application and out of these sixteen years the parties had spent about eleven years (from 1969 to 1980) in previous litigation for eviction. 14. For the same purpose the learned Counsel has relied upon 1984 (2) ARC 615, Sadat Ali v. 1st Additional District Judge, Farrukhabad and others. This was also a case in which the tenant had been in occupation of the shop for about thirty five years. 14. For the same purpose the learned Counsel has relied upon 1984 (2) ARC 615, Sadat Ali v. 1st Additional District Judge, Farrukhabad and others. This was also a case in which the tenant had been in occupation of the shop for about thirty five years. It has been observed in para 18 that : "This rule has not been referred to by the Appellate Authority nor does it appear to have been present in the mind of Appellate Authority when he decided the appeal." In the present case the Appellate Authority has reproduced the entire Rule 161 (2) and it cannot be said that the rule was not present in his mind. Of course he has not specifically said that the period of occupation was not too long to record finding of hardship in favour of the tenant. The Appellate Authority found that the present was a case to which Clause (b) of the Rule 16(2) was more attracted inasmuch as the evidence on record shows that shops were available in the vicinity of the premises in dispute. Not only this, a shop was actually acquired by the tenant during the pendency of the proceeding to settle the son of one of the petitioners in business. The principle of Clause (c) has also been applied by the said authority. This clause provides that greater the existing business of the landlords own, apart from the business proposed to be set up in the leased premises, the less the justification for allowing the application. The Prescribed Authority has pointed out that while the petitioners are engaged in a variety of trades, landlord's sons are not engaged in any business whatsoever and they are unemployed. Further landlord Surendra Nath does have,in his possession a shop in which he is doing his dentistry business but his son cannot be involved in the said business because he does not possess the requisite qualification for that business or profession. The principle of Clause (c) can be applied in the reverse direction against the tenant when he has several businesses while the landlord has none or very little. 15. The detailed discussion made by the learned District Judge on the question of comparative hardship shows that the requirements of Rule 16 (2) were very much present in his mind. The principle of Clause (c) can be applied in the reverse direction against the tenant when he has several businesses while the landlord has none or very little. 15. The detailed discussion made by the learned District Judge on the question of comparative hardship shows that the requirements of Rule 16 (2) were very much present in his mind. Accordingly the decision of this Court in Saodat Ali's case is of on assistance to the learned Counsel. 16. 1981 ARC 108, Banerji Das v. State of U.P. and others and 1986 ALJ 1415 : 1986 (2) ARC 334 ; Habib-ul-Rahman v. 1st Addl. District Judge, Bijnor and others, which are authorities on Clause (d) of Rule 16 (2) were also cited by the learned Counsel with the argument that the conditions prescribed in Clause (d) were not satisfied. This clause requires due consideration to be given to the fact of acquisition of technical education by the persons mentioned in this clause for the settlement of whom the leased premises is required. These authorities are irrelevant because the authorities below have given no benefit to the landlord under Clause (d). 17. This clause requires due consideration to be given to the fact of acquisition of technical education by the persons mentioned in this clause for the settlement of whom the leased premises is required. These authorities are irrelevant because the authorities below have given no benefit to the landlord under Clause (d). 17. The findings of fact recorded by the authorities below which could not be assailed by the learned Counsel for the petitioners are these the tenant-petitioners are rich people they own several buildings, they are engaged in several businesses there business is being expended from time to time, even during the pendency of the present proceedings a shop was acquired by them in which the son of one of the petitioners was settled in business, on the other hand the landlords are financially week, they had at one stage to borrow money from the petitioners, one of the landlords Surendra Nath carries on a small dentistry business and the other Triloki Nath holds a petty employment in an office at Kanpur where he lives in a single room accommodation with his family of ten members, the family members, prior to partition of the ancestral house, were staying in the ancestral house, later on account of want of accommodation at Barabanki they had to be shifted to Kanpur where they are presently living, there is acute shortage of accommodation at Kanpur, landlord Surendra Nath had in his occupation one room allowed to him by his brother Ramakant who has since retired and is insisting on getting back that accommodation, apart from the premises in question the landlords do not own any other accommodation where they may shift to, sons of both the landlords have completed their education and are unemployed, they have to be settled in business for which no other accommodation is available to them, shops are available in the vicinity of the premises in question. A tacit finding is that the petitioners being rich can acquire another shop if the really need one in replacement of the shop in question but the same is not true of the landlords who are financially week. 18. From the above findings of fact it would be seen that the present fight is between the poor landlords and rich tenants. 18. From the above findings of fact it would be seen that the present fight is between the poor landlords and rich tenants. The rich tenants want to appropriate to themselves the right to expend their business by acquiring new shops and setting their grown up sons in business but when the right is claimed by the landlords to settle their unemployed sons in business, the same is denied. 19. From the findings stated above the judgment of the Court below is pre-eminently just and fair and does not call for any interference even if it is found that one of the clauses of Rule 16 (2) has not been fully dealt with. In a petition under Article 226 of the Constitution Courts duty is to ensure justice between the parties. The order of the authorities below is not to be interfered with on mere technicality. Interference with the impugned order will result in grave injustice to the landlords whose unemployed grown up sons are without a source of livelihood. 20. Great stress was laid by the learned Counsel for the petitioners on the fact that in the shop in question the business of Chemist and Drugist is being carried on and the said shop adjoins the clinic of the petitioner No. 6 and therefore if the said business is shifted from the present premises the income from the shop will be very much affected. This appears to be merely a surmise of the petitioners. The learned District Judge has pointed out that shops are available in the vicinity of the shop in question, shifting of the business a few paces away from the clinic will not materially effect the income from the business. 21. In view of the above the petition fails and is hereby dismissed with costs to contesting opposite parties no. 3 and 4. The interim order, if any, shall stand discharged. The petitioner are allowed three months time to vacate the premises.