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2008 DIGILAW 266 (ALL)

HARISH BHATIA v. JOHRA BEGUM

2008-02-04

DILIP GUPTA

body2008
DILIP GUPTA, J.-, J. ( 1 ) THIS petition has been filed by the tenant for quashing the judgment and order dated 10th December, 2007 passed by the learned additional District Judge, Court No. 3, Meerut by which the appeal filed by the landlady under section 22 of the U. P. Urban Buildings (Regulation of letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the act) was allowed. The appeal had been filed for setting aside the order dated 12th december, 2002 passed by the prescribed authority by which the application filed by the landlady under section 21 (1) (a) of the Act for eviction of the tenant from the shop in dispute was rejected. ( 2 ) THE application under section 21 (1) (a) of the Act, had been filed by the landlady Smt. Johra Begum on 30th April, 2002 stating inter alia that the opposite party was a tenant on monthly rent of Rs. 900/-; that the family of the applicant consisted of the applicant, her husband and her married son Maqbool ahmad; that Maqbool Ahmad had studied up to 8th class and was unemployed; that after his marriage the responsibilities of his family consisting of himself, his wife and his young son fell upon him, that the applicant had no shop from where she could establish her son in business; that the opposite party did not require the tenanted shop as he had started business at Delhi and the shop was usually closed. It was, therefore, prayed that the shop be released as the applicant bona fide required the tenanted premises for establish-ing her son in business and the applicant was likely to suffer greater hardship if the application was rejected. ( 3 ) THE aforesaid release application was contested by the tenant. It was, therefore, prayed that the shop be released as the applicant bona fide required the tenanted premises for establish-ing her son in business and the applicant was likely to suffer greater hardship if the application was rejected. ( 3 ) THE aforesaid release application was contested by the tenant. It was asserted that he was carrying on the business from the disputed shop; that his family consisted of himself, his wife and two sons; that apart from the disputed shop there was no other shop available with the tenant from where he could carry on his business; that he had earned goodwill of the business which he was doing from the disputed shop; that the landlady had concealed that the son of the landlady for whose need the release application had been filed was engaged in business from shop No. 181 at Sadar Bazar and that a shop was also available to the landlady on the second floor of the building which could be utilised for setting up the business for the son. ( 4 ) THE prescribed authority by the order dated 12th December, 2002 rejected the application holding that the need set up by the landlady was not bona fide and that there was a shop on the second floor from where she could set up her son in the business. The prescribed authority also recorded a finding that the landlady could not establish that the disputed shop remained closed. The prescribed authority also noticed that the landlady had not disclosed in the application the precise nature of the business which the son of the landlady intended to start from the disputed shop. ( 5 ) FEELING aggrieved, the landlady filed an appeal under section 22 of the act. During the pendency of the appeal the landlady filed an application that the landlady was ready to offer the shop situated on the second floor of the building to the tenant in lieu of the disputed shop. It needs to be mentioned that the prescribed authority had recorded a finding that there was a shop available with the landlady on the second floor from where her son could be established in business. It is this shop which the landlady offered in lieu of the disputed shop. This offer was not accepted by the tenant. It needs to be mentioned that the prescribed authority had recorded a finding that there was a shop available with the landlady on the second floor from where her son could be established in business. It is this shop which the landlady offered in lieu of the disputed shop. This offer was not accepted by the tenant. The Appellate Court ultimately allowed the appeal filed by the landlady holding that the shop was bona fide required by the landlady of establishing her son in business and that the landlady would suffer greater hardship as compared to the tenant if the application was rejected. ( 6 ) SRI M. D. Singh shekhar learned Senior Counsel appearing for the petitioner contended that the application filed by the landlady did not specifically state the nature of the business that her son would indulge in from the disputed shop and neither any affidavit was filed by the landlady to give this detail and, therefore, the Appellate Court was not justified in allowing the application. In support of his contention he has placed reliance upon the decisions of this Court in Smt. Mohini Devi Murarka v. Bhola Nath Seth and others 1976 (U. P.) RCC 173 and Smt. Savitri Devi v. The Vth Additional District Judge, Deoira and others. 1983 (1) ARC 224 Learned Senior Counsel further submitted that the Appellate Court did not award any amount towards compensation as was required to be awarded under the second proviso to section 21 (1) (b) of the Act. Learned Senior Counsel also submitted that in fact there was no informity in the findings recorded by the prescribed authority that the need of the landlady was not bona fide and that she was not likely to suffer greater hardship in the event the application was rejected and, therefore, the Appellate Court should not have reversed these findings. ( 7 ) LEARNED Counsel for the respondent-landlady, Mohd. Isa Khan, however, submitted that the landlady had specifically stated before the appellate authority that her husband was "doing business of selling school bags from shop No. 181 and her son would also do the same business from the disputed shop and, therefore, in such circumstances it cannot be said that the landlady had not disclosed the specific nature of business that was to be carried out by her son from the disputed shop. He further submitted that the tenant was not doing any business from the disputed shop as he had shifted to Delhi from where he was doing business and the shop remained closed; that merely because the son of the landlady had associated himself in the business of his father it cannot be said that he did not bona fide require the disputed shop for starting his own business; that the Appellate Court has given cogent reasons for holding that the shop was bona fide required by the landlady for starting an independent business for her son and that the applicant would suffer greater hardship in the event the shop was not released in her favour. He further submitted that the landlady was ready to offer two years rent towards compensation under the second proviso to section 21 (1) (b) of the Act. ( 8 ) THE first contention advanced by the learned Senior Counsel for the petitioner is that the landlady did not specifically state the nature of the business which would be started by her son from the disputed shop. It is true that this Court in Smt. Mohini Devi Murarka (supra) found no fault in the judgment of the Appellate Court wherein it was held that since the nature of the business was not disclosed, the need for starting of new business was not genuine, but in the subsequent decision rendered in Smt. Savitri Devi (supra) this Court consi dered the aforesaid decision in Smt. Mohini Devi (supra) and observed as follows : "having heard Counsel for the parties I am of opinion that there is substance in this submission. The Additional District Judge in emphasising on the circumstances that the nature of the business sought to be carried on in the shop in question had not been stated in the application for release, has placed reliance on the decision of a learned Single Judge of this Court in Smt. Mohini Devi Murarka v. Bhola Nath Seth and others. 1976 (U. P.) RCC 173 this question came up for consideration before the same learned judge in a subsequent case in Gur Prasad v. IVth Additional District and sessions Judge, Allahabad. 1976 (U. P.) RCC 173 this question came up for consideration before the same learned judge in a subsequent case in Gur Prasad v. IVth Additional District and sessions Judge, Allahabad. 1979 ARC 235 It was held that when a litigation takes several years to come to its end, it would not be proper to hold that the need of the landlord was not bona fide merely because the name of the business had not been given and that if the learned Additional District judge though that the omission to give the name was of some consequence he should have asked the landlord to file an affidavit in this regard and ask the landlord to file an affidavit in this regard. In this view of the matter I am of the opinion that in the instant case also the additional District Judge should have required the landlord to file an affidavit indicating the name of the business sought to be carried on in the shop in question before dismissing the application for release on the ground of non-disclosure of the nature of business. " (Emphasis supplied) ( 9 ) IN the present case, as noticed above, in the grounds of appeal the landlady had specifically stated that her son would do the same business of selling school bags as was being carried by her husband from shop No. 181. this fact has also been noticed by the Appellate Court. In such circumstances the contention advanced by the learned Senior Counsel for the petitioner that the application should have been rejected since that landlady had not disclosed the specific nature of the business to be established by her son from the disputed shop, cannot be accepted. ( 10 ) IT needs to be mentioned that in the application the landlady had come out with the specific case that the tenant was no longer carrying his business from the disputed shop as he had started doing business at Delhi. The prescribed authority did not accept this contention in view of the statement made by the landlady that the shop was usually closed because from this statement the prescribed authority drew an inference that the shop did open on the remaining days. The prescribed authority did not accept this contention in view of the statement made by the landlady that the shop was usually closed because from this statement the prescribed authority drew an inference that the shop did open on the remaining days. The prescribed authority also observed that the burden was on the landlady to give evidence as to when the shop was closed and when it open and it also did not accept the contention of the landlady that the tenant did not even get the sales tax registration of the shop renewed. The prescribed authority, therefore, held that the landlady had failed to prove that the tenant had stopped doing business from the disputed premises. ( 11 ) THE petitioner has filed along with this petition certain documents to show that in fact he was doing business from the disputed shop. The documents that have been filed are the sales tax assessment order for the year 1999-2000 and certain receipts regarding purchase of materials by Ekta Sales Corporation on various dates between 5th July, 2000 and May, 2002. The application was filed by the landlady on 16th August, 2002. No document was filed by the petitioner before the prescribed authority and one has been filed before this Court which may indicate that any sale had taken place from the disputed shop after 2000. The assessment order that has been brought on record is of the year 1999-2000 and even the receipts regarding purchase of material are prior to may, 2002. The prescribed authority, therefore, erred in holding that the landlady had failed to prove that the shop remained clossed. The burden shifted to the tenant to prove that he was carrying on business from the shop in dispute once it was stated by the landlady that he was not doing business from the disputed shop since he had shifted to Delhi. ( 12 ) THE second contention of the learned Senior Counsel for the petitioner is that the need of the landlady was not bona fide. It is not in dispute that the son of the landlady did not do any independent business from any particular place and all that has come on record is that he was assisting his father in the business of selling school bags from shop No. 181. It is not in dispute that the son of the landlady did not do any independent business from any particular place and all that has come on record is that he was assisting his father in the business of selling school bags from shop No. 181. The Courts have repeatedly held that the need of the landlord to establish an independent business for his major son is bona fide and merely because the son is rendering assistance in some business from another place will not satisfy his need. ( 13 ) IN this connection reference may be made to the decision of the Supreme court in Sushila v. IInd Additional District Judge, Banda and others, AIR 2003 SC 780 wherein it was observed: "we find that Prem Prakash is a young man who is unemployed. He is married and has children. There is every jurisdiction for him or for his mother to settle him in life independently. He cannot be compelled to join his father in his Goldsmith and mother lending work in his small shop. In our opinion, he is entitled to start business of his own choice and independently. The appellate Court took a view, as indicated above, which is palpably wrong and wholly unacceptable. " ( 14 ) IN Akhileshwar Kumar and others v. Mustaqim and others, AIR 2003 SC 532 the Supreme Court also observed : "in our opinion, the approach adopted by the High Court cannot be countenanced and has occasioned a failure of justice. Overwhelming evidence is available to show that the plaintiff No. 1 is sitting idle, without any adequate commercial activity available to him so as to gainfully employ him. The plaintiff No. 1 and his father both have deposed to this fact. Simply because the plaintiff No. 1 is provisionally assisting his father in their family business, it does not mean that he should never start his own independent business. The plaintiff No. 1 and his father both have deposed to this fact. Simply because the plaintiff No. 1 is provisionally assisting his father in their family business, it does not mean that he should never start his own independent business. " ( 15 ) IN Faiyaz Khan v. IInd Additional District Judge, Jhansi and others, 2006 (62) ALR 908 this Court also made the following observation : "appellate Court also examined the question of bona fide need thoroughly and recorded independent finding to the effect that need of the landlord faiyaz Khan to settle his son Sarfaraz Khan in business was quite bona fide (now Sarfaraz Khan is one of the petitioners substituted after the death of original petitioner Faiyaz Khan ). All the Courts at every stage held that Sarfaraz Khan was not doing any regular job and mere fact that he had a tempo did not satisfy his need. If for want of proper accommodation to start business landlord or any of his family members engages himself in temporary and causal jobs, it does not satisfy or substantially mitigate the need (vide : Ramkubai v. H. D. Chandak ). 1999 (37) ALR 837 (SC)" ( 16 ) THUS, the appellate authority was justified in holding that the landlady bona fide required the premises in dispute for establishing her son in business. Thus, the contention of the learned Senior Counsel for the petitioner cannot be accepted. ( 17 ) THE prescribed authority had observed that the landlady could establish the business for her son from the room available on the second floor. As notice above, even though the landlady denied that there was any vacant room on the second floor but yet before the appellate authority the landlady had even offered the said room to the tenant in lieu of the premises in dispute. This offer was rejected by the tenant and even before this Court this offer has not been accepted. The Supreme Court has time and again observed that it is not for the tenant to distaste to the landlord how he should adjust without getting possession of the tenanted premises. ( 18 ) IN Sarla Ahuja v. United India Insurance Co. Ltd. AIR 1999 SC 100 . the Supreme Court observed: ". . . . . . . . . . . . ( 18 ) IN Sarla Ahuja v. United India Insurance Co. Ltd. AIR 1999 SC 100 . the Supreme Court observed: ". . . . . . . . . . . . When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the rent controller to draw a presumption that the requirement of the landlord is bona fide, it is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself. " ( 19 ) THE Supreme Court in Ragawndra Kumar v. Firm Prem Machinary and co. , 2000 (38) ALR 458 (SC) also observed : ". . . . . . . . . . . . . . . . It is settled position of law that the landlord is best Judge of his requirement for residential or business purpose and he has got complete freedom in the matter. . . . . . . . . . . . . . " ( 20 ) THUS, even if there exists a room on the second floor, then too the tenant cannot dictate terms to the landlady to establish the business for her son from the said room on the second floor, particularly when the tenant himself feels that the said room is not appropriate for carrying out his business. ( 21 ) THIS apart, the tenant had made no effort during the pendency of the application to find out any alternative accommodation. The balance of hardship will, therefore, tilt against the tenant as was observed by this Court in faiyaz Khan (supra) : "concept of comparative hardship cannot be stretched to the extent of depriving the landlord of his property even if landlord is in real and imminent need. It has been brought on record that in adjoining town Dr. The balance of hardship will, therefore, tilt against the tenant as was observed by this Court in faiyaz Khan (supra) : "concept of comparative hardship cannot be stretched to the extent of depriving the landlord of his property even if landlord is in real and imminent need. It has been brought on record that in adjoining town Dr. Amin was having a clinic even though he asserted that he attended that only off and on. In any case tenant did not show that he made any efforts to search alternative accommodation after filing of the release application. As held by the Supreme Court in B. C. Bhutada v. C. R. Mundada, 2006 (63) ALR 438 (SC) this by itself was sufficient to tilt the balance of hardship against the tenant. " ( 22 ) THE appellate authority, on a proper appraisal of the evidence on record was, therefore, justified in coming to the conclusion that the need of the landlady for establishing her son was bona fide and she was likely to suffer greater hardship in the event the application is rejected. ( 23 ) THE last contention of the learned Senior Counsel for the petitioner is that no compensation, as provided for in the second proviso to section 21 (1) (b)of the Act was granted by the appellate authority. The learned Counsel of the landlady has readily offered to give two years rent towards the said compensation. The tenant is, therefore, held entitled to receive the said compensation. ( 24 ) THE writ petition is, accordingly, dismissed. It is, however, ordered that the landlady shall deposit an amount of two years rent with the prescribed authority towards the compensation under the second proviso to section 21 (1) (b) of the Act within a period of one month from today and the same shall be paid to the tenant as soon as he intimates the prescribed authority that he has vacated the premises. Petition Dismissed. .