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2015 DIGILAW 4166 (ALL)

Balram Das v. Prakash Chand Dhingra

2015-12-23

SUNITA AGARWAL

body2015
JUDGMENT Sunita Agarwal, J. – Heard Shri Manish Goyal, learned counsel for the petitioners and Shri Ajay Kumar Singh, learned Advocate for the respondent. 2. This writ petition is directed against the judgment and order dated 7.5.2011 passed by the lower appellate court in Rent Appeal No. 202 of 2008 (Prakash Chandra Dhingra v. Balram Das and Another), whereby the release application filed by the landlord has been rejected. The tenement as described in the release application in occupation of the respondent consists of one big hall, latrine & bathroom in Premises No. D-37/111, Baradeo, Varanasi in which the respondent's predecessor were inducted on 1.10.1970. In the written statement, the description of tenement is admitted with the further assertion by the respondent that the tenant is in occupation of the entire first floor consisting of one hall, two rooms and a latrine & bathroom. 3. The averment in the release application is that at the second floor, one Cinema Hall, Cafe and restaurant are being run by the petitioners. For running of Spice Cafe, there exist staff of 14 employees and 27 employees are working in the Cinema Hall. The accommodation in tenancy of the respondent is required for using it as a retiring rooms/refreshment area for the staff of the Cinema Hall and Cafe who work in shifts. The tenement is kept locked by the respondent and is being used as a godown and in fact the respondent is not doing any business in the same. The respondent contested the release application with the plea that the need set up by the landlord is illusory inasmuch as the retiring room facility has not been provided to the staff of any of such business establishment in the nearby locality or in the entire City. 4. It is further stated in paragraph 19' of the written statement that the son of opposite party is doing his business of electrical goods in the accommodation in question which is the only source of livelihood for him. 5. In the affidavit filed by the tenant, it is further reiterated that the younger son of the tenant namely Sharad is carrying on business of electrical goods from the accommodation in question and as such it is baseless to allege that the said accommodation is not being used by the opposite party for godown and is kept locked. 6. 5. In the affidavit filed by the tenant, it is further reiterated that the younger son of the tenant namely Sharad is carrying on business of electrical goods from the accommodation in question and as such it is baseless to allege that the said accommodation is not being used by the opposite party for godown and is kept locked. 6. The release application was allowed by the Prescribed Authority with the finding that the need set up by the landlord is for commercial purpose and the decision to provide additional facilities to the employees depends upon the wisdom of the employer. The contention of the respondent that the employees do not come within the definition of "family" and therefore, their need could not be looked into, was repelled by the Court below. It was held that the accommodation in question is needed by the landlord for his own business purpose. There was no dispute with regard to the number of employees working in the establishment and further that the tenanted accommodation is adjacent to the business place i.e. Spice Cafe and the Cinema Hall. In case, the landlord requires an accommodation for providing facilities to his employees working in his business establishment that would be treated as the need for the business purpose of employer. This cannot be termed as a mere desire or illusory. 7. The appellate court on the other hand recorded that Cinema Hall and Cafe were constructed by the landlord in the year 2005 at the second floor whereas in the basement of the same premises namely building no. D-37/37,37-A, 111, 164 which exists at the south of the building in question i.e. premises no. 37/111, there is parking. This apart shops at the ground floor and the office at the first floor were constructed and were given on rent. In case, the landlord required some more accommodation for the staff of Cinema Hall, Cafe and restaurant, he could have made provision for the same while raising massive constructions in the year 2005. In fact, the need set up in the release application is creation of own mind the landlord and cannot be said to be a genuine need for the space in the tenement in question which is adjacent to his business establishment. In fact, the need set up in the release application is creation of own mind the landlord and cannot be said to be a genuine need for the space in the tenement in question which is adjacent to his business establishment. In any case, the need set up in the release application is not a genuine need and more so cannot be termed as 'pressing need' from any angle. 8. On the comparative hardship, it was found that as the need set up is a mere desire of the landlord and therefore, the tenant would suffer greater hardship than the landlord though he may not have made any effort to search an alternative accommodation during the pendency of release. 9. Challenging these findings, submission of learned counsel for the petitioners is that the release application has been rejected by the appellate authority on irrelevant grounds. In any case, there was no question of looking to the 'pressing need' of the landlord. Only question which was required to be looked into by the appellate court below was as to whether the landlord bona fide and genuinely required the tenement for the need set up in the release application. Merely because the Cafe and the Cinema Hall were constructed and started in the year 2005. After one year of construction, the need set up to provide additional facility to the employees working therein cannot be said to be malafide. 10. Admittedly, the building in question is adjacent to the building having business establishment of the landlord. The requirement is to provide an area to relax to the employees working therein in different shifts. In a large establishment like Cinema Hall and Cafe where approximately 40 employees are working, there is need for refreshment area for the staff, i.e. at least one hall and a latrine & bathroom is very much needed. Providing such facilities to the employees would definitely help in smooth running of the business establishment. After one year of opening the establishment, the landlord found that this place is very much required so that the staff can rest in between two shifts of working. Such a requirement cannot be said to be mere creation of mind of the landlord as termed by the appellate court below. Providing facilities to the employees is always a matter of concern of the employer and the decision is based upon his own wisdom. Such a requirement cannot be said to be mere creation of mind of the landlord as termed by the appellate court below. Providing facilities to the employees is always a matter of concern of the employer and the decision is based upon his own wisdom. The Court cannot guide to the owner of a business establishment to run it in a particular manner. Moreover, the finding that the need set up by the landlord should be a 'pressing need' is wholly illegal. 11. On the comparative hardship, submission of learned counsel for the petitioner is that as per own admission of the respondent tenant, he is not using tenement for his business. Admittedly, his younger son Sharad is using the accommodation in question for his business of electrical goods. 12. Learned counsel for the petitioner has invited attention of the Court to the affidavit dated 30.5.2008 filed by the petitioner with the categorical assertion that the landlord's son Sharad is running his shop in an adjacent building namely building no. D-37/110 in which he is carrying on his business of electrical goods. 13. This fact is admitted by the tenant in his affidavit/reply dated 31st July, 2008. The assertion made therein are that the son of the opposite party/tenant has a small accommodation of 8ft. X8ft.' in the premises no. 37/110, Baradeo, Varanasi where he is carrying on business of electrical goods and the accommodation in question is being used for storage of these electrical goods of the shop of the tenant's son. 14. For kind convenience, paragraph 9' of the affidavit dated 31st July, 2008 of the respondent tenant is reproduced as under: - "9. That it is baseless to allege that the son of the opposite party does not carry any business from the accommodation in the question. It is submitted that beside the accommodation in question which is on the first floor, the son of the opposite party has a small tenant accommodation of 8 feet X 8 feet' in premises no. D 37/110 Baradeo, Varanasi from where he carries business of electrical goods and earns bread and butter for his family and that is the only source of income for him. The said tenanted accommodation in premises no. D 37/110 has opening on two sides and as much there is very small space available for business. D 37/110 Baradeo, Varanasi from where he carries business of electrical goods and earns bread and butter for his family and that is the only source of income for him. The said tenanted accommodation in premises no. D 37/110 has opening on two sides and as much there is very small space available for business. The customers who visit the shop to purchase the electrical goods are taken to the accommodation in question for sorting out electrical goods required by them." 15. Learned counsel for the respondent on the other hand submits that the landlord is an affluent person. He had other accommodation and had concealed this fact in the release application, this would dis-entitle him to get the tenement released. Moreover, the need as set up in the release application is not covered under Section 21 (1)(a) which clearly states that the building, if bona fide required by the landlord for occupation by himself or any member of his family either for residential purpose or for business purpose can be released. As the tenanted accommodation is neither required for the need of the landlord or any member of his family, it cannot be released. 16. Having considered the submission of the learned counsel for the parties and perused the record. The first question would be as to whether the need is bona fide and genuine or not. 17. The tenant has not been able to dispute the number of staff of the business establishment of the landlord and further he has not averred that there exist an alternative place in the building in question or in the adjacent building where the business establishment exists for the need set up in the release application. In absence of any such averment, it cannot be said that the landlord does not require the accommodation in question genuinely. 18. In any case, the findings recorded by the lower appellate court that the need should be a 'pressing need' is arbitrary and whimsical. 19. The word 'bona fide' or 'genuine' cannot be stretched to the word 'pressing'. The Courts from time and again have recognised the need to augment the income of the landlord or for expansion for his business purpose as genuine and bona fide. 20. 19. The word 'bona fide' or 'genuine' cannot be stretched to the word 'pressing'. The Courts from time and again have recognised the need to augment the income of the landlord or for expansion for his business purpose as genuine and bona fide. 20. In the Case of Misri Lal v. Special Judge (Additional District Judge), Gorakhpur and others, Allahabad Rent Cases 1988 (2) 430, it has been held that the phrase "for occupation by himself" cannot be construed very narrowly so as to confine it to the landlord and landlord only. It may include landlord's servant and some other person or persons who look after him and take care and whose company and assistance is required though he may not be a member of his family defined in the Act. 21. Further in the cases of Raghunath G. Panhale (Dead) by Lrs. v. Chaganlal Sundarji and Co., 1999 (8) SCC 1 and Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde and Another, 1999 (4) SCC 1 , it is held that the word "bona fide" and "reasonable use" to define the need of the landlord must be weighed using the reasonable standards to see that the requirement is genuine and not tainted by any oblique motive. In Bega Begum and others v. Abdul Ahad Khan (dead) By L.R.s and others, 1979 (1) SCC 273 , it is held that the reasonable requirement postulates an element of "need" as opposed to a mere "desire" or "wish". 22. Applying these principles to the facts of the present case, it is found that the tenant has not been able to bring anything before the Court to suggest that the landlord's requirement is dishonest or he has filed the release application with an oblique motive. From each angles, the need set up by the landlord to provide facility to the employees working in his business establishment is indeed a case of reasonable need for business purpose and cannot be diluted as only a mere desire. 23. In any case, there is no requirement for establishing a 'pressing need' for the purpose of release. 24. Reliance placed by the learned counsel for the respondent in a compilation of judgments of this Court and the Apex Court is basically on the point that the bona fide requirement means need being genuine and not an intention to deceive. 23. In any case, there is no requirement for establishing a 'pressing need' for the purpose of release. 24. Reliance placed by the learned counsel for the respondent in a compilation of judgments of this Court and the Apex Court is basically on the point that the bona fide requirement means need being genuine and not an intention to deceive. As there is no quarrel to the legal propositions relied upon by the learned counsel for the respondent, this Court finds that there is no need to burden on this judgment with the discussions on the judgments relied upon by the learned counsel for the respondent in the compilation. 25. However, it is well settled that the first question which is to be looked into in a case of release is the personal need of the landlord. It is also well settled that the Court or the tenant for that matter cannot guide the landlord to use a particular portion of the building for a particular purpose. The need set up by the landlord in the release is that he requires the accommodation in question for the staff of his business establishment. The need for staff is definitely the need of the employer i.e. the landlord and in the circumstances of the present case it is found that the landlord requires the accommodation in question for the need of his business i.e. for commercial purpose. 26. From a bare look of the pleadings of both the parties, admittedly, the tenant himself is not using the accommodation in question. He is not carrying on any business in the same. The accommodation in question was given on rent to the grand father of the respondent and the tenancy has been devolved upon him in view of Section 3(a)(2) of the U.P. Act No. 13 of 1972. Section 3(a) defines the 'tenant' as a person by whom the rent is payable in relation to a building. Clause (a)(2) of Section 3 further provides that upon tenant's death, his heirs would be tenant. Thus, it can be safely concluded that during the lifetime of the tenant, his heirs in relation to a non-residential building cannot be said to be 'tenant' within the meaning of Section 3(a) of the Act. They can at best only be the members of the 'family' of the tenant within the meaning of Section 3(g) of the Act. Thus, it can be safely concluded that during the lifetime of the tenant, his heirs in relation to a non-residential building cannot be said to be 'tenant' within the meaning of Section 3(a) of the Act. They can at best only be the members of the 'family' of the tenant within the meaning of Section 3(g) of the Act. As such the occupation of the tenant's son over the accommodation in question cannot be said to be the occupation of the tenant. Moreover, it is admitted by the tenant that his son is occupying an alternative place i.e. a shop in the nearby building i.e. house no. D-37/110 wherein he is carrying on his business. 27. In view thereof, it is held that the accommodation in question is not being used by the tenant for his own business purpose and in view of the fact that his son is already running his business in a nearby shop, the tenant would not suffer any hardship in the case of release. 28. In the light of the above discussion, in the totality of the facts and circumstances of the case, this Court finds that the findings recorded by the appellate court below in allowing the appeal filed by the respondent are perverse. 29. The judgment and order dated 7.5.2011 passed by the Additional District Judge, Court No. 3, Varanasi in Rent Appeal No. 202 of 2008 is hereby quashed. 30. The findings recorded by the Prescribed Authority are upheld. 31. The release application is allowed. 32. The respondent is hereby directed to vacate the accommodation in question within the time given by the Prescribed Authority. 33. All other conditions of the order of the Prescribed Authority dated 3.12.2008 are also affirmed. 34. The writ petition is allowed. Petition allowed.