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2001 DIGILAW 335 (ALL)

ASHOK KESARWANI v. . LALTA PRASAD

2001-04-10

U.S.TRIPATHI

body2001
U. S. TRIPALHI, J. ( 1 ) THIS writ petition has been filed for issuance of a writ, order or direction in the nature of certiorari quashing the impugned order dated 4. 11. 2000 passed by 15th Additional District judge, Kanpur Nagar in Rent Appeal No. 31 of 1998. ( 2 ) THE respondent, owner/ landlord of premises No. 133/128 M. Block Kidwai Nagar, Kanpur moved" an application under Section 21 (1) (a) of U. P. Act No. XIII of 1972. (hereinafter called the Act), against the petitioner/tenant before the Prescribed Authority for release of the above premises on the ground of his personal need. The case of respondent was that the petitioner was tenant of three shops on ground floor of the premises in question on monthly rental of Rs. 250, in which he runs a shop of building materials and hardware. He started business under the name of a new firm and included in the said firm other persons, who were not his family members as partners. The respondent/landlord was a Doctor and he was running his clinic in premises No. 110/241 R. K. Nagar, Kanpur Nagar. which he had taken on tenancy. He wanted to shift his clinic to his own premises. His one son Satyendra Kumar was running a medical store in mohalla vijaya Nagar in a tenanted portion. His other son was also a doctor and he runs his clinic in a tenanted portion in mohalla Ratan Lal Nagar. The respondent wanted to shift his sons to the premises in question and thus, required all the three shops for himself and his two sons. The need of respondent was bona fide and genuine. He asked the petitioner to vacate the premises, but he refused. ( 3 ) THE petitioner contested the above application mainly on the ground that all the partners of the firm running business in the premises in question were his family members. He was not running business under the name of M/s. Ashok Trading Construction and Suppliers. The respondent had sufficient accommodation and had no necessity for shifting his clinic. The sons of the respondent had also chosen suitable places for their clinic and medical store and the need of the respondent was not bona fide and genuine. He was not running business under the name of M/s. Ashok Trading Construction and Suppliers. The respondent had sufficient accommodation and had no necessity for shifting his clinic. The sons of the respondent had also chosen suitable places for their clinic and medical store and the need of the respondent was not bona fide and genuine. ( 4 ) THE Learned Prescribed Authority on considering the case and evidence of the parties held that the business of respondent and his sons were being run at the places specified in the application and no need to shift the same in the premises in question had been shown. Contrary to it, the petitioner/tenant had no other place for his business. The need of landlord, therefore, was not bona fide and genuine. With these findings, she dismissed the application. ( 5 ) THE landlord filed an appeal before the appellate court. The appellate court on re-appraisal of the case and evidence of the parlies held that need of landlord was bona fide and genuine and the landlord would suffer greater hardship than that of tenant. With these findings he allowed the appeal and released the premises in favour of respondent. The petitioner had challenged above order of appellate court in this writ petition. ( 6 ) HEARD the learned counsel for the parties and perused the record. ( 7 ) THE learned counsel for the petitioner contended that the landlord can get an order of release in his favour only when he proves his need bona fide. Before the Prescribed Authority, the respondent in this case had not shown any reason as to why he wanted to shift clinic of himself and one of his son and medical store of another son from the tenanted premises and the appellate court wrongly allowed the application without showing any element of need or necessity by the landlord. The lower appellate court allowed the application simply on the ground that landlord has a right to occupy his premises, without considering at all as to whether the landlord bona fide required the same. He further contended that respondent was 82 years old and he was not in a position to run his clinic and that his sons had shops at their disposal, where they were carrying on business. He further contended that respondent was 82 years old and he was not in a position to run his clinic and that his sons had shops at their disposal, where they were carrying on business. Jitendra Prasad, son of the respondent died during pendency of appeal and his need to shift in premises in suit ceased to exist. In support of his above contentions he placed reliance on decisions in Ram Das v. Ishwar Chander and others. AIR 1988 SC 1422 ; Mattulal v. Radhe, air 3974 SC 159 : Sudha Agrawal v. Xth Addl. District Judge and others, AIR 1999 SC 2975 : sardar Jasiuant Sirigh v. IVth Additional District Judge. Kanpur Nagar and others, 1995 (2)ARC 8 and Shiv Mural v. IInd A. D. J. . Varanasi. 2000 (2) ARC 585. ( 8 ) ON the other hand, the learned counsel for the respondent contended that the finding recorded by the appellate authority regarding bona fide and genuine need cannot be interfered with in writ petition In exercise of powers of superintendence under Articles 226 and 227 of the Constitution on reappraisal of evidence. That no landlord can be compelled to occupy the tenanted accommodation, and the landlord cannot be denied eviction of tenants simply because tenant had no alternative accommodation to shift In it. He further contended that subsequent event cannot be taken into consideration in writ petition as decree passed by the appellate court became final on issue of bona fide need, which is to be judged on the date of application. In support of his above contention he placed reliance on decisions In Manna Lal v. IInd Additional District Judge, jaunpur and others. 1986 (1) ARC 210 ; Sardar Jaswant Singh v. IVth Additional District Judge, kanpur Nagar and others. 1995 (2) ARC 8 ; Kamleshhwar Prasad v. Pradumanju Agarwal (dead)by L. Rs and others. 1997 (1) ARC 627 and Bal Mukund v. XIth Addl. District Judge. Meerut and others, 1990 (1) ARC 576. ( 9 ) IT is true that for getting a premises released under Section 21 of the Act on personal need, the landlord has to prove his bona fide requirement and bona fide requirement means a "reasonable" requirement, i. e. . need of the landlord should be genuine and honest, conceived in good faith, and Court must also consider it reasonable to gratify that need. need of the landlord should be genuine and honest, conceived in good faith, and Court must also consider it reasonable to gratify that need. As held in the case of Ram Das u. Ishwar Chander and others (supra) landlords desire for possession, however, honest it might otherwise be, has inevitably a subjective element in it and that, that desire to become a "requirement" in law must have the objective element of a "need". Regarding finding of bona jide need of landlord, the Prescribed Authority or the appellate authority had also to consider comparative hardships of the landlord and tenant. In the instant case the need of the landlord was that he and one of his son were running clinics in tenanted portions and the other son was running a medical store also in a tenanted portion in different mohallas and he required premises in question for running clinic of himself and the clinic and medical store of his sons in one premises. It is not disputed that the landlord and one of his son were medical practitioners and were running their clinics in different mohallas in tenanted portions. The appellate authority has observed that landlord had filed an affidavit in support of his need and the tenant had not filed any evidence and. therefore, need of landlord could not be rebutted. He also observed that a landlord cannot be compelled to run his business in tenanted portion. Considering the facts and circumstances of the case and evidence on record, I find no perversity in the findings of the appellate court, that the need of landlord was bona fide and genuine. As held by Apex Court in the case of Mattulal u. Radhey (supra) the finding reached by the Additional District Judge, the first appellate court, on an appreciation of evidence regarding need of landlord is a finding of fact and not a finding of mixed law and fact and it cannot be interfered with by the High Court in second appeal unless it is shown that in reaching It a mistake of law is committed by the additional District Judge or it is based on no evidence or is such as no reasonable man can reach. It was also held by single Judge decision of this Court in Manna Lal v. Ilnd Additional district Judge. It was also held by single Judge decision of this Court in Manna Lal v. Ilnd Additional district Judge. Jaunpur and others (supra) that the finding about the need of the landlord of the shop Is a finding of fact. Again it was held in the case of Sardar Jaswant Singh v. IVth additional District Judge, Kanpur Nagar and others (supra) that the finding that the need of landlord was bona fide and genuine is a finding of fact and it cannot be interfered with in writ jurisdiction as held by Supreme Court in Munni Devi v. Addl. District Judge and others. AIR 1978 SC 29 . ( 10 ) IT was also raised before the appellate authority by the tenant that one of the son of the landlord namely, Jitendra Prasad died during pendency of the appeal and. therefore, need of landlord had been curtailed. But the appellate authority had given due consideration of the above contention and recorded a finding that on the death of Jitendra Prasad, the need of landlord was not squeezed or curtailed, because according to landlord, he had to settle 22 years old son of jitendra Prasad in disputed shop for running a departmental store, to earn his livelihood. ( 11 ) IN this way. the findings of fact recorded by the appellate court are based on evidence on record and it cannot be said that such conclusion cannot be reached by a reasonable man. Therefore, the finding of fact cannot be interfered with in the exercise of jurisdiction under articles 226 and 227 of the Constitution of India. ( 12 ) THE appellate authority had also considered the comparative hardships of the parties. The contention of the tenant was that he has no alternative accommodation to shift his business, but on this ground, the hardships of tenant cannot be said greater than that of landlord, as It was held by the Apex Court in the case of Gega Begum v. Abdul Ahad, 1986 SCFBRC 346, that if requirement for the house was found to be bona fide and genuine, then the landlord cannot be denied the eviction simply because the tenant had no alternative accommodation available. The tenant always suffers some sort of hardship on eviction, but that does not mean that he cannot be evicted even ff the landlord genuinely and bona Jide required the premises. The tenant always suffers some sort of hardship on eviction, but that does not mean that he cannot be evicted even ff the landlord genuinely and bona Jide required the premises. In this way, there is no ground to interfere with the finding of fact recorded by the appellate authority on bona fide need of the landlord and comparative hardship. ( 13 ) THE writ petition having no force is liable to be dismissed. ( 14 ) THE writ petition is. accordingly, dismissed. However, the tenant is given six months time to vacate the premises in question, failing which landlord shall get him evicted through Court.