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2012 DIGILAW 1387 (RAJ)

Parasmal v. Appellate Rent Tribunal, Bhilwara

2012-05-28

GOPAL KRISHAN VYAS

body2012
Hon'ble VYAS, J.—Instant writ petition has been filed against the judgment and order dated 1.11.2011 passed by the Appellate Rent Tribunal, Bhilwara in Civil Appeal (Rent Control) No. 134 of 2007 whereby the Appellate Rent Tribunal affirmed the judgment and certificate of eviction passed by the Rent Tribunal and Civil Judge (Sr.Div.), Bhilwara dated 25.9.2007 in Case No. 292/2004, by which, certificate for eviction from the premises in question was passed. 2. Brief facts of the case are that the petition took shop No.38 situated in Azad Market, Bhilwara on rent from the respondent on 1.8.1979 at the rate of Rs.180/- per month. The respondent landlord filed petition under Sections 6 and 9 of the Rajasthan Rent Control Act, 2001 before the Rent Tribunal, Bhilwara seeking eviction from the property in question on the ground of material alteration and damage of the rented premises, nuisance and bona fide necessity for his daughter-in-law. After filing reply by the petitioner before the Rent Tribunal, the Rent Tribunal rendered judgment on 25.9.2007 and issued certificate of eviction in favour of the landlord respondent for eviction on the ground that requirement of rented premises for the purpose of starting a coaching center-cum-computer class for daughter-in-law of the landlord is bona fide necessity and further held that the petitioner tenant is in possession of alternative place of business. 3. Against the judgment dated 25.9.2007, the petitioner tenant preferred appeal before the Appellate Rent Tribunal but the Appellate Rent Tribunal dismissed the said appeal vide its judgment dated 1.11.2011 even if taking clear note of inconsistency in the testimony of respondent landlord and his daughter-in-law with respect to rented premises. 4. Learned counsel for the petitioner while assailing the validity of both the judgments impugned submits that the Rent Tribunal has failed to appreciate the crucial evidentiary aspect, as also, failed to ascertain the contours of Section 9(1) of the Act of 2011. With regard to the ground of bona fide necessity, it is submitted that this plea can be taken by the landlord for the use of occupation of himself or his family or for the use or occupation of any person for whose benefit the premises are held. It is vehemently contended by learned counsel for the petitioner that both the Courts below have failed to examine the aforesaid question in the light of judicial pronouncements. 5. It is vehemently contended by learned counsel for the petitioner that both the Courts below have failed to examine the aforesaid question in the light of judicial pronouncements. 5. It is further submitted that as per Section 9 of the Act of 2001, eviction can be ordered on the ground of use or occupation of the premises by the landlord or the family which is to be taken as one unit and not individuals in isolation. The intention of the legislature is clear that premises is to be used or occupied by any individual belonging to the family of the landlord. In this case, the requirement of premises by the respondent landlord is for his daughter-in-law which does not fall under Sec. 9(1) of the Act. Under the legal concept of "the use or occupation of any person for whose entitled in law or upon facts to take the plea of bona fide necessity for his daughter-in-law because she has separate identity with her husband, therefore, the appellate Rent Tribunal has failed to appreciate the principle "arms length operation" and "separate identity". 6. Learned counsel for the petitioner vehemently argued that as per Section 9(1) of the Act, the eviction can be ordered if the premises is required reasonably and bona fide by the landlord for use and occupation of himself and family or for whose benefit the premises is held. But, here, in this case, the daughter-in-law cannot be included in the definition of "family" of the landlord, therefore, the judgment impugned and certificate passed by the Rent Tribunal is totally illegal. 7. Learned counsel for the petitioner invited my attention towards following definitions of the word "family" : "Oxford (i) a group consisting of two parents and their children living together as a unit. (ii) a group of people related by blood or marriage. Manupatra (i) husband, wife and children. (ii) all blood relations Besides the above definitions, learned counsel placed reliance upon the definition clauses occurring in various statutes such as Employees' State Insurance Act, 1948, Employees' Provident Fund Scheme, 1952, Employees' Compensation Act, 1923, Hindu Adoptions and Maintenance Act, 1956 and Urban Land (Ceiling and Regulation) Act, 1976. While adverting to the above definitions of the term "family" counsel for the petitioner placed reliance upon the following judgments in support of his argument: 1. (1997) 2 SCC 53 , K.V. Muthu vs. Angamuthu Ammal 2. While adverting to the above definitions of the term "family" counsel for the petitioner placed reliance upon the following judgments in support of his argument: 1. (1997) 2 SCC 53 , K.V. Muthu vs. Angamuthu Ammal 2. (2002) 5 SCC 397 , Joginder al vs. Nand Kishore Behal 3. (2003) 4 SCC 549 , Dwarka Prasad vs. Niranjan & Anr. 4. (1980) 4 SCC 716 Sasanka Sekhar Maity vs. U.O.I. 5. AIR 1994 All 398 , Shri Ramnath Yadav vs. Rent Control Officer 6. AIR 2001 SC 2148 , S. Venkatappa vs. Narayanappa 7. AIR 1981 SC 234 , Bhim Singhji vs. U.O.I. 8. AIR 1982 SC 1091 , Baldev Sahai vs. R.C. Bhasin. 8. Inviting attention towards the above judgments cited and various definitions of "family" occurring in different statutes and mentioned in the dictionaries learned counsel for the petitioner submitted that bona fide necessity of the daughter-in-law cannot be treated to be a ground for eviction, therefore, the judgment impugned may be quashed and set aside. 9. Per contra, counsel appearing on behalf of the respondent vehemently submits that the definition of "family" is flexible. All the members living together are required to be treated as members of family under Section 9(1) of the Act. The bona fide necessity of daughter-in-law can be a ground for eviction because daughter-in-law cannot be treated under the unit of son, therefore, the grounds and argument raised by counsel for the petitioner has no substance. Learned counsel for the respondent invited my attention towards two judgments of Hon'ble Supreme Court reported in AIR 2008 SC 3194 , A.K. Jain vs. Prem Kapoor; and, AIR 2002 SC 2256 , Joginder Pal vs. Naval Kishore Behal. 10. After hearing learned counsel for the parties, I have perused both the judgments impugned as well as writ petition filed by the petitioner. 11. It is true that plea of bona fide necessity for starting a coaching center-cum-computer class for the daughter-in-law was taken by the respondent landlord upon the ground of bona fide necessity. 10. After hearing learned counsel for the parties, I have perused both the judgments impugned as well as writ petition filed by the petitioner. 11. It is true that plea of bona fide necessity for starting a coaching center-cum-computer class for the daughter-in-law was taken by the respondent landlord upon the ground of bona fide necessity. The Rent Tribunal framed issue No.6 which reads as under : ^^6- vk;k vthZnkj dks viuh iq=o/kw Jherh vydk Mkaxh ds fy, ;qfä;qä ,oa ln~Hkkfod vko';drk gS\** While deciding the above issue learned Rent Tribunal gave finding in favour of the respondent landlord while holding that daughter-in-law is family member of the landlord and for opening the coaching center-cum-computer class the eviction certificate can be passed while treating bona fide necessity of the landlord. The said finding given by the Rent Tribunal is further upheld by the Appellate Rent Tribunal. 12. It is true that although learned counsel for the petitioner has tried to convince the Court that daughter-in-law is not included as member of family of the landlord, however, same question arose for consideration before the Hon'ble Supreme Court in the case of A.K. Jain vs. Prem Kapoor, reported in AIR 2008 SC 3194 . Hon'ble Supreme Court while relying upon the earlier judgment reported in AIR 2002 SC 2256 , Joginder Pal vs. Naval Kishore Behal, held that landlord's son, his wife and children are part of family. Para 16 of the said judgment is as follows : "16. We are unable to accept this submission because we see no application of the quoted provision to the facts of this case. Section 13(3)(a)(ii) will have application only in case the eviction is sought for the son's requirement independently and separately from the landlord. In this case, the son and his wife and children are part of the landlord's family and all of them are living together. The accommodation of the son, his wife and their children is part of the landlord's personal necessity. The case of the appellant clearly falls under Section 13(3)(a)(ii) that deals with the situation where the landlord requires the tenanted premises for his own occupation and it does not attract Section 13(3)(a)(ii) that deals with the requirements of the son of the landlord. In taking the view we are supported by the decision of this Court in Joginder Pal vs. Naval Kishore Behal, (2002) 5 SCC 397 . In taking the view we are supported by the decision of this Court in Joginder Pal vs. Naval Kishore Behal, (2002) 5 SCC 397 . In paragraph 33 of the decision it was held and observed as follows : "Our conclusions are crystallized as under : (i) The words "for his own use" as occurring in Section 13(3)(a)(ii) of the East Punjab Urban Rent Restriction Act, 1949 must receive a wide, liberal and useful meaning rather than a strict or narrow construction. (ii) The expression - landlord requires for "his own use", is not confined in its meaning to actual physical user by the landlord personally. The requirement not only of the landlord himself but also of the normal "emanations" of the landlord is included therein. all the cases and circumstances in which actual physical occupation or user by someone else, would amount to occupation or user by the landlord himself, cannot be exhaustively enumerated. It will depend on a variety of factors such as interrelationship and interdependence - economic or otherwise, between the landlord and such person in the background of social, socio-religious and local customs and obligations of the society or region to which they belong. (iii) The tests to be applied are : (i) whether the requirement pleaded and proved may properly be regarded as the landlord's own requirement; and, (ii) whether on the facts and in the circumstances of a given case, actual occupation and user by a person other than the landlord would be deemed by the landlord as "his own" occupation or user. The answer would, in its turn, depend on (i) the nature and degree of relationship and/or dependence between the landlord plead-ing the requirement as "his own" and the person who would actually use the premises; (ii) the circumstances in which the claim arises and is put forward; and (iii) the intrinsic tenability of the claim. The Court on being satisfied of the reasonability and genuineness of claim as distinguished from a mere ruse to get rid of the tenant, will uphold the landlord's claim. (iv) While casting its judicial verdict, the Court shall adopt a practical and meaningful approach guided by the realities of life. The Court on being satisfied of the reasonability and genuineness of claim as distinguished from a mere ruse to get rid of the tenant, will uphold the landlord's claim. (iv) While casting its judicial verdict, the Court shall adopt a practical and meaningful approach guided by the realities of life. (v) In the present case, the requirement of the landlord of the suit premises for user as office of his chartered accountant son is the requirement of landlord "for his own use" within the meaning of Section 13(3)(a)(ii)". 13. In the present case also, it is admitted position that all the family members including son and his wife are living with the landlord under his control. Therefore, the adjudication made by Hon'ble Supreme Court in the above case of A.K. Jain fully covers the controversy involved in this case. In this view of the matter, it cannot be said that finding given by both the Courts below is illegal or contrary to law; more so, it is in consonance with the adjudication made by the Hon'ble Supreme Court in the case of A.K. Jain (supra) with regard to bona fide necessity of the landlord on the ground that premises in question is required for opening coaching center-cum-computer class of his daughter-in-law. The term "for his own use" is not confined in its meaning to actual physical user of the landlord himself. The requirement not only of the landlord himself but also of the normal "emanations" of the landlord is included therein. 14. In this view of the matter, while following the judgment of Hon'ble Supreme Court in A.K. Jain's case (supra), it is held that the eviction on the ground of bona fide necessity of the premises in question for landlord's son and his wife and their children is covered within the bona fide reasonable necessity of the landlord because the terms "for his own use" is not confined in its meaning to its actual physical user by the landlord himself alone and requirement not only of the landlord himself but also of the normal "emana-tions" of the landlord is include therein. The definition of "family" is flexible which cannot be narrowed down for the purpose of bona fide necessity. As a result of the aforesaid discussion, this writ petition is dismissed.