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2009 DIGILAW 1360 (ALL)

AMIT KUMAR v. ABDUL HAI KHARADWALA

2009-04-13

PRAKASH KRISHNA

body2009
JUDGMENT PRAKASH KRISHNA, J.-It is an unfortunate litigation. 2. Having found that two sons of the landlady are unemployed and not engaged in any business, the Appellate Court held that the need of the landlady, respondent No.3, whose husband has died at young age and was carrying on the business of general provision in a rented shop and which she had to vacate due to the pressure of the landlord of the said shop, is not bona fide within the meaning of section 21 (1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act No. 13 of 1972 (hereinafter to referred as the Act). What is the more disturbing is that the respondent-tenant has been found to have three shops newly constructed by him even then the release application was rejected as the Appellate Court was of the view that the respondent tenant is well settled in the disputed tenanted shop and he would suffer greater hardship. 3. Smt. Pushpa widow of the late Shatrughan Das, the petitioner No.3 herein, filed an application under section 21 (1)(a) of the said Act against the sole respondent on the allegation that she is the owner and landlady of the house No. 168 Ka, Ward No.6, Mohalla Chainya Bari under Nagar Palika Basti, Tappa Haveli wherein there is a shop measuring 18 ft. x 10 ft. in possession of the respondent as tenant. The respondent-tenant took the said shop for repairing the machineries but subsequently established lathe machines therein. Her husband Shatrughan Das met untimely death with the result that his two sons Amit Kumar and Sumit Kumar (petitioners No. 1 and 2) left their studies in between. Late Shatrughan Das was running a general merchant shop in a tenanted accommodation but on account of his untimely death, she (the widow) could not resist the pressure of the landlord of that shop and because of her widowhood and two minor children (petitioners No. 1 and 2), as then they were, vacated it. 4. The-release of the said shop was sought for on the ground that the family has no source of livelihood due to closure of general merchant shop and her two sons (petitioners No. 1 and 2) are unemployed and not engaged in any business: The petitioner No.2 has got training of wiring of electric motors. She will establish her sons therein. The-release of the said shop was sought for on the ground that the family has no source of livelihood due to closure of general merchant shop and her two sons (petitioners No. 1 and 2) are unemployed and not engaged in any business: The petitioner No.2 has got training of wiring of electric motors. She will establish her sons therein. As regards the comparative hardship it was stated - that the tenant has got his own shop at the shortest distance from the shop in dispute on the main road coming from Hospital crossing to Kaili Hospital in the name of his wife Smt. Jaibunnisa. He has got constructed three big shops besides the_ vacant piece of land. These shops are situate adjoining the road surrounded by other shops. The said area has commercial value. The tenant will not suffer any hardship as he can shift his business to anyone of these shops owned by him in the name of his wife. 5. The application was contested by denying the need of the petitioners. The fact that he has purchased the land in name of his wife and has constructed three shops, was not disputed in reply to the release application. He came out with the explanation that he is not having good relations with his wife and the said land was purchased by the wife out of her own resources with which he has no concern. 6. The Prescribed Authority by the order dated 31.1.2007 found that the need of the landlord is bona fide and genuine as her two sons Amit Kumar and Sumit Kumar are not engaged in any business or profession and to establish them the disputed shop is bona fide required. The landlady has got no other shop, while the tenant has got constructed three shops in the name of his wife Jabunnisa at a commercial place and will not suffer any hardship if the release application is allowed. The said order was carried in appeal No. 8 of 2007 before the District Judge, Basti who by the impugned order dated 30.5.2007 has allowed the appeal and rejected the release application. 7. Shri A.K. Gupta, learned Counsel for the petitioners, submits that the view taken by the Court below is wholly perverse and arbitrary. The said order was carried in appeal No. 8 of 2007 before the District Judge, Basti who by the impugned order dated 30.5.2007 has allowed the appeal and rejected the release application. 7. Shri A.K. Gupta, learned Counsel for the petitioners, submits that the view taken by the Court below is wholly perverse and arbitrary. The two sons of the Jandlady have been found unemployed and not engaged in any business by the Appellate Court but a finding that the need is not bona fide has been recorded on ipse dixit of the Appellate Court. The view taken by the Appellate Court that why his landlord yielded pressure to the landlord of the shop wherein her husband was carrying on the general merchandise business and why her two sons are requiring the disputed shop after doing nothing for about 8 years, are not relevant consideration for holding that the need of the landlady is not bona fide and genuine. 8. On the question of comparative hardship it was submitted that indisputably, the respondent-tenant has purchased some land near hospital Chauraha in the vacate state in the name of his wife as i was found even by the Appellate Court and thereupon he has got constructed three shops and the said accommodation is within the radius of three kilometers of Basti town, there was not justification to hold that it is the tenant who would suffer greater hardship if the release application is allowed, submits the learned Counsel for the petitioners. 9. In contra, Shri S.K. Rai, Advocate, submits that a proceeding under section 21 (1)(b) of the Act was initiated earlier on the ground that the building in question is in a dilapidated condition. The said application was allowed by the Prescribed Authority and the order of the Prescribed Authority was confirmed in appeal but these orders have been quashed by the High Court in writ petition on the ground of non compliance of statutory requirements of Rule 17 of the Rules framed under the said Act. Shortly thereafter, initiation of the 'present proceeding giving rise to the present petition speaks volume against the petitioners' bona fide need. He further submits that the shops constructed near Hospital Chauraha cannot be taken into consisieration while considering the comparative hardships of the pries. 10. Considered the respective submissions of the learned Counsel for the parties and perused the record. 11. He further submits that the shops constructed near Hospital Chauraha cannot be taken into consisieration while considering the comparative hardships of the pries. 10. Considered the respective submissions of the learned Counsel for the parties and perused the record. 11. The following facts are not in dispute : (i) Shri Shatrughan, husband of the landlady himself was a tenant in a ship and after his death the said shop was got vacated by its landlord. (ii) There is no source of livelihood to the family of the landlord due to the vacation of the shop of the husband. (iii) Two sons namely Amit Kumar and Sumit Kumar (petitioners No.1 and 2), herein are not engaged in any business and are unemployed and doing nothing. (iv) The tenant after purchase of a piece of land near Hospital Chauraha got constructed three, shops thereon. (v) The case of the respondent tenant is that the said property was purchased by his wife and he has no cordial relations with her. However, it may be noted that no such finding was recorded by the Appellate Court. 12. On these facts, the question which requires for consideration is whether the need of the landlady can be called as bona fide and genuine or it is a mere desire to occupy the disputed shop. It was found by the Prescribed Authority that the need of the landlady is bona fide and genuine. The said judgment has been criticized by the Appellate Court who proceeded to consider the question with the following observations : "He (Prescribed Authority) taken it for granted that if the sons of landlord are unemployed, their need is bona fide. The word 'need' means desire, wish, will and it may be said that the landlord has a desire that her sons may start their own business." 13. The Court below was obsessed with the view that the landlady had to vacate the shop sometime in 2002 i.e. about two years before the filing of present application. At that time, the applicant No. 1 was aged about 24 years. The applicants No.1 and 2 passed Intermediate Examination in the year 199697. They were about 18 years old at that time. Why the applicant No.1 never thought to start any business after completing education, is a factor which shows that the need of the applicant Nos. At that time, the applicant No. 1 was aged about 24 years. The applicants No.1 and 2 passed Intermediate Examination in the year 199697. They were about 18 years old at that time. Why the applicant No.1 never thought to start any business after completing education, is a factor which shows that the need of the applicant Nos. 1 and 2 cannot be considered a bona fide need in the light of their past conduct, holds the Appellate Court. 14. The said approach of the Appellate Court is wholly arbitrary. The fact remains that the applicant No. 1 is not doing any business nor is gainfully employed anywhere. It was not found by the Appellate Court that Amit Kumar (petitioner No.1) is employed or gainfully engaged anywhere in any manner. 15. It is an acknowledged legal position that it is the duty of every landlord to establish his son who is unemployed and not engaged in any business and if a shop is required, the requirement is not a short of bona fide need vide Sushila v. IInd Additional District Judge and others. 1 1. 2003 (52) ALR 160 (SC). The relevant portion is extracted below : "We find that Prem Prakash is young man who is unemployed. He is married and has children. There is every justification for him or for his mother to settle him in life independently. He cannot be compelled to join his father in his goldsmith and money lending 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, is palpably wrong and is wholly unacceptable." 16. Ragavendra Kumar v. Fiml Prem Machinery & Company 2 2. 2000 (38) ALR 458 (SC). is an authority for the proposition that the landlord is the best judge of his own requirement for residential or commercial purpose and has complete freedom in the matter. In this authority the Apex Court has relied upon its earlier judgment in Prativa Devi v. T. V. Krishnan. 3 3. (1996) 5 SCC 353 . 17. In Joginder Pal v. Naval Kishore Behal, 4 4. (2002) 5 SCC 397 . In this authority the Apex Court has relied upon its earlier judgment in Prativa Devi v. T. V. Krishnan. 3 3. (1996) 5 SCC 353 . 17. In Joginder Pal v. Naval Kishore Behal, 4 4. (2002) 5 SCC 397 . the Apex Court with a reference to the provisions of East Punjab Urban Rent Restriction Act, on the question of bona fide need, after surveying its earlier pronouncements, has held that the requirement of a major son and a coparcener in a joint Hindu family intending to start a business is the requirement of the landlord himself as was held in B. Balaiah v. Chandoor Lachaiah. 5 5. AIR 1965 AP 435 . The words "for his own use" must receive a wide, liberal and useful meaning rather than a strict or narrow construction. It has been further held that while casting its judicial verdict, the Court shall adopt a practical and meaningful approach guided by the realities of life. 18. In Ms. Bega Bagum and others v. Abdul Ahad Khan and others 6 6. (1979) 1 SCC 273 . it has been held that rent control laws must be constructed reasonably. They should be interpreted in such a way as to achieve the object of enabling landlord to evict tenant where the statute grants such right in favour of landlord. 19. It has been held by the Apex Court in the case of Akhileshwar Kumar and others v. Mustaqim and others 7 7. JT 2002 (10) SC 203. that landlord has the right of choosing the accommodation which would be reasonable to satisfy his requirements. In Sarla Ahuja v. United India Insurance Co. Ltd., 8 8. AIR 1999 SC 100 . it has been held by the Apex Court that the fact that landlady was in possession of another flat in another city is not a ground to disentitle her to seek recovery of possession of tenanted premises. 20. It is not necessary to burden this judgment with various pronouncements on the point in issue as the matter appears to be well settled. 21. Strangely enough, the need of the second son, Sumit Kumar, has been discarded on the ground that he is not a diploma holder nor there is anything to show that he is skilled in electric motor winding work. 21. Strangely enough, the need of the second son, Sumit Kumar, has been discarded on the ground that he is not a diploma holder nor there is anything to show that he is skilled in electric motor winding work. The appellate authority has addressed the issue with the observation that name of mechanic under whom he took the training or details for which duration he remained under training, have not been given. Then, it was observed that the work shown to be started by Sumit Kumar is not such, for which a shop is necessarily required." 22. A reading of the judgment of the Appellate Court gives an impression that it has been delivered whimsically and in ignorance of the relevant considerations. The following sentences of the judgment are interesting and fortify the arbitrariness and whimsicalness of the Appellate Court :- "In the present case it is clear that after passing Intermediate Examination the applicant No. 1 had an opportunity to help his mother in general merchandise work in the shop taken on rent by his mother when he was between the age of 18 and 24 years which was more suitable time. After doing nothing for about eight years now all of a sudden the need has been shown to start business." 23. The aforesaid paragraph clearly states that the two sons of the landlady are doing nothing for about 8 years. The further observation that all of sudden the need has been shown to start business is totally unfounded. The Court was ignorant of the fact that earlier the release of shop was sought for under section 21 (1) (b) of the Act which was granted initially but the release order was set aside by the High Court for non-compliance of the provisions' of Rule 17 of the Rules framed under the Act. 24. The other aspect of the case according to the landlady is that the tenant has purchased land near Hospital Chauraha in vacant state and has got constructed three big shops on it. It has been stated in the release application that the said property is at a short distance from the shop in question vide para 13 of the release application. In para 29 of the written statement/reply the tenant has not denied that the said property is not situate at a short distance from the shop if). question. It has been stated in the release application that the said property is at a short distance from the shop in question vide para 13 of the release application. In para 29 of the written statement/reply the tenant has not denied that the said property is not situate at a short distance from the shop if). question. Only this much has been stated that his relations are not cordial with his wife and she purchased it from her own sources and the said land lies in a village without naming it. 50 far as the relationship in between the tenant and his wife is concerned, the Appellate Court has not said a word abut it nor there is any evidence except the bald statement of the tenant that his relationship with his wife is not cordial. In this view of the matter, an irresistible conclusion is that the tenant has got three shops at the short distance from the disputed shop. The Appellate Court has considered this aspect of the matter in paragraph 15 of the, judgment. From the photographs of the newly constructed shops it appears that these shops are situate in a lonely place and therefore, the tenant cannot be asked to shift to a lonely place, says the Appellate Court. The Appellate Court has not found that these shops are not suitable or are not situate at a short distance from the disputed shop. It has also not been found by it that the said shops belong to the wife of the tenant. In the absence of any such plea or cogent evidence, the observation of the Court below on the basis of photographs are liable to be ignored, as it is based on presumptions and assumptions. 25. In this view of the matter, obviously the said shops are available to the respondent-tenant and he can shift his business. At this stage, it may be noted that the case of the landlady in the release application is that the tenant is keeping the shop in dispute locked and demanding premiums for its vacation. The disputed shop presently is fetching only Rs. 100/- as rent. 26. In Mst. Bega Begum and others v. Abdul Ahad Khan and others, 1 1. At this stage, it may be noted that the case of the landlady in the release application is that the tenant is keeping the shop in dispute locked and demanding premiums for its vacation. The disputed shop presently is fetching only Rs. 100/- as rent. 26. In Mst. Bega Begum and others v. Abdul Ahad Khan and others, 1 1. AIR 1979 SC 272 it has been held by the Apex Court that it is not doubtful that the tenant will have to be ousted from the tenanted accommodation if a decree for eviction is passed but such an event would happen whenever a decree for eviction is passed. This by itself would not be a valid ground for refusing the landlord, a decree for eviction. In deciding the extent of hardship that may be caused to one party or the other, in case a decree for eviction is passed or refused, each party has to prove its relative advantage or disadvantage and the entire onus cannot be thrown on the landlord to prove that lesser disadvantages will be suffered by the tenant and they were remediable. The tenant-respondent has failed to place any material that no alternative accommodation in spite of search is not available to him. 27. In view of the above discussion, the finding on the question of bona fide need and comparative hardship in the impugned order being perverse and contrary to law cannot be sustained. They are based on irrelevant considerations and in disregard of the relevant material on record. The findings being perverse are liable to be set aside and they are hereby reversed and the order of the prescribed authority is restored. 28. Before saying omega to the case, it may be noted that Shri Piyush Kumar, the then learned District Judge, has passed the impugned judgment and order against all the judicial norms in arbitrary fashion and the order shows lack of judicial approach. 29. In the result the writ petition succeeds and is allowed. The impugned order is set aside. The order passed by the Prescribed Authority is restored back. 30. At the end, the learned Counsel for the respondent prayed for time to vacate the accommodation in dispute to which the learned Counsel appearing for the petitioners has no serious objection. He fairly accepts that some reasonable time may be granted to the respondent. The order passed by the Prescribed Authority is restored back. 30. At the end, the learned Counsel for the respondent prayed for time to vacate the accommodation in dispute to which the learned Counsel appearing for the petitioners has no serious objection. He fairly accepts that some reasonable time may be granted to the respondent. The respondent is permitted to remain in the disputed accommodation till 31.8.2009 provided he files an undertaking on affidavit within a period of one month before the Trial Court that he will vacate the disputed accommodation and will hand over the peaceful vacant possession to the petitioners on or before 31.8.2009. The respondent shall also deposit the arrears of rent including future rent up, to 31.8.2009 within a period of one month. 31. In case of default of either of this conditions as stipulated above, the time granted by this Court shall stand vacated automatically and it shall be open to the landlord to apply for execution of the release order. If the respondent fails to vacate the accommodation in dispute on or before 31.8.2009, the Executing Court shall issue a writ for delivery of possession as soon as it is applied for and the respondent shall be liable to pay damages @ Rs. 4,000/(Rupees Four Thousand only) per month from today to the date of actual delivery of possession. . In the result, the writ petition is allowed with cost of Rs. 3,000/- (Rupees Three Thousand only). Petition Allowed.