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2007 DIGILAW 1800 (ALL)

Rajendra Kumar v. Yatindra Nath Gupta

2007-07-05

RAKESH TIWARI

body2007
JUDGMENT : RAKESH TIWARI, J. 1. Heard learned Counsel for the parties and perused the record. 2. The Petitioner is a tenant of the Respondent-landlord. He is doing the business of photography in the shop in dispute. The Respondent-landlord filed P. A. Suit No. 13/1997, Yatindra Nath Gupta v. Rajendra Kumar, before the prescribed authority, Etawah, u/s 21(1)(a) of U.P. Act No. XIII of 1972, for ejectment and release of the shop in dispute on the ground of bona fide need and comparative hardship, inter alia, that he has two sons and two daughters. The elder son is in service and has been married while the younger son has passed LL.B. Examination and has been registered with Bar Council of Uttar Pradesh for practise and wants to practice with his father as an Income Tax Advocate, but his office admeasuring 8 feet x 7 feet is too small to accommodate two advocates. The prescribed authority allowed the suit vide judgment and order dated 17.11.2004 and directed the Petitioner-tenant to vacate the shop in dispute within two months. 3. Aggrieved the Petitioner filed P. A. Appeal No. 4/2004 before the District Judge, Etawah. However, the appeal has also been dismissed vide judgment and order dated 11.5.2007 affirming the judgment and order of the prescribed authority dated 17.11.2004 and granted two months' time for handing over possession of the shop in dispute to the Respondent-landlord. 4. The only contention of the learned Counsel for the Petitioner is that one of the shops has been given to one Sri Anand Agrawal without allotment order ; that he is doing the business of photography in the shop in dispute for the last about 66 years which is the only source of his livelihood. 5. No other point has been argued by the learned Counsel for the Petitioner. 6. These aspects of the matter have been dealt with by the courts below and it has been held: 7. In Gulab Bai v. Nalin Narsimoina 1993 (3) SCC 483, the Hon'ble Supreme Court has held: the words 'reasonable requirement' undoubtedly postulate that there must be an element of need as appeared to more 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. 8. The Hon'ble Supreme Court in Shiv Sarup Gupta Vs. Dr. 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. 8. The Hon'ble Supreme Court in Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, AIR 1999 SC 2507 has held: The term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much higher than a mere desire. The phrase "required bona fide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the armchair of the landlord and then ask the question to himself - whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. 9. In Pramod Kumar Verma Vs. VI Additional District Judge, Bijnor and others, (2000) 1 AWC 412 this Court has defined 'bona fide need' on the basis of decisions of the Hon'ble Supreme Court rendered in Mattulal Vs. Radhe Lal, AIR 1974 SC 1596 and Mst. Bega Begum and Others Vs. Abdul Ahad Khan (Dead) by Lrs. 9. In Pramod Kumar Verma Vs. VI Additional District Judge, Bijnor and others, (2000) 1 AWC 412 this Court has defined 'bona fide need' on the basis of decisions of the Hon'ble Supreme Court rendered in Mattulal Vs. Radhe Lal, AIR 1974 SC 1596 and Mst. Bega Begum and Others Vs. Abdul Ahad Khan (Dead) by Lrs. and Others, AIR 1979 SC 272 as under: The word 'bona fide' means genuinely and sincerely, i.e., in good faith in contradiction to mala fide. The requirement of an accommodation is not bona fide if it is sought for ulterior purposes but once it is established that the landlord requires the accommodation for the purpose which he alleges and there is no ulterior motive to evict the tenant that requirement should be bona fide. 10. This Court further in Smt. Tara Devi v. District Judge and Ors. 1979 ARC 382 , has held on the basis of the Hon'ble Supreme Court decision rendered in Mattulal Vs. Radhe Lal, AIR 1974 SC 1596 as under: It is for the Court to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and not a subjective one and merely because the landlord asserts that he wants the accommodation for his personal use would not be enough to establish that he requires it for his personal use. 11. In Mahavir Prasad v. VIth Additional District Judge, Gonda 1993 ARC 401, this Court has held: Bona fide requirement for a landlord for a shop would not mean that the landlord must be on the street before applying for vacation of the accommodation u/s 21 of the Act. 12. In Om Prakash Vs. Sunil Kumar and Others, (2004) 1 AWC 838 this Court on the basis of the Hon'ble Supreme Court decision rendered in Akhileshwar Kumar and Others Vs. Mustaqim and Others, AIR 2003 SC 532 has held: Every landlord and every adult member of the family of landlord has got a right to establish his independent separate business. Assisting the father or brother in family business cannot be a ground to deny the need for separate business. 13. Mustaqim and Others, AIR 2003 SC 532 has held: Every landlord and every adult member of the family of landlord has got a right to establish his independent separate business. Assisting the father or brother in family business cannot be a ground to deny the need for separate business. 13. In Ratan Singh Sehgal v. Ist Additional District Judge, Kanpur Nagar 2004 (1) ARC 110, this Court has held: Doing business with father or any other family member is no ground to deny the bona fide need for establishing independent business. 14. The finding of fact recorded by the prescribed authority is that the need of the landlord is bona fide and his hardship is greater than the tenant. This finding of fact assumes greater importance and the prescribed authority has also found as a matter of fact that the Petitioner has his house in Mohalla Lalpura in Etawah city ; that the Petitioner-tenant should have made alternative arrangement for his business in other shop as the litigation was going on for the last about ten years. 15. As far as the Respondent-landlord is concerned, the prescribed authority relied upon the decisions rendered in Kamar Khan v. IInd Additional District Judge, Dehradun and Ors. 1999 ALR 196 ; Babu Singh v. Additional District Judge, Kanpur Nagar and Ors. 2001 (2) AWC 1340 ; Murlidhar v. VIth Additional District Judge, Meerut and Ors. 1996 (2) AWC 2 (NOC) ; Radhey Shyam v. District Judge, Mirzapur 1996 JRJ 374 ; Sushila Vs. IInd Addl. District Judge, Banda and Others, AIR 2003 SC 780 wherein it has been held that an advocate can get vacated his shop for use of his chambers. 16. Concurrent findings of facts have been recorded by both the courts below on bona fide need and comparative hardship in favour of the Respondent-landlord. Both the courts below have held that the Respondent landlord being an advocate has bona fide need of the shop in dispute. His son has also passed LL.B. and requires an independent office. 17. I have also considered the aforesaid decisions and in my opinion also the prescribed authority has rightly come to the conclusion that the Respondent-landlord has bona fide need and will suffer greater hardship than the Petitioner-tenant in case the shop is not released in his favour, thus, the comparative hardship is also in his favour. 18. 17. I have also considered the aforesaid decisions and in my opinion also the prescribed authority has rightly come to the conclusion that the Respondent-landlord has bona fide need and will suffer greater hardship than the Petitioner-tenant in case the shop is not released in his favour, thus, the comparative hardship is also in his favour. 18. For the reasons stated above the petition is dismissed. No order as to costs. The court below allowed two months' time to vacate the shop in dispute. Six weeks' time is granted now again to the tenant to vacate the shop in dispute. No order as to costs.