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2019 DIGILAW 1198 (ALL)

Anis Miyan v. Hikamat Ulla

2019-05-06

YOGENDRA KUMAR SRIVASTAVA

body2019
JUDGMENT : Yogendra Kumar Srivastava, J. Heard Sri Akhtar Ali, learned counsel for the petitioner and Sri Shubhranshu Pandey, learned counsel appearing for the respondent. 2. The present petition seeks to challenge the order dated 17.04.2010 passed by the Prescribed Authority/Small Causes Court, Bareilly in P.A Case No.06 of 2008 in proceedings under Section 21(1)(a) of the U.P. Act No.13 of 1972 whereby the release application filed by the respondent-landlord was allowed and also the order dated 15.03.2019 passed by the II-Additional District Judge, Bareilly in Rent Control Appeal No.13 of 2010 in terms of which the appeal filed by the petitioner-tenant has been rejected. 3. The records of the case indicate that the release application was filed by the respondent-landlord on the basis of the need set up for establishing his three sons in business who were said to be unemployed. The courts below upon considering the facts of the case and the evidence on record have returned concurrent findings of fact and have held the need set up by the respondent-landlord to be bona fide. 4. As regards the issue of comparative hardship, notice has been taken of the fact that the father of the petitioner-tenant had a number of shops available with him in which he could set up his business. Moreover, the courts below have also taken into consideration the fact that the petitioner-tenant has not placed on record any material evidence to demonstrate that after filing of the release application any efforts were made by him to search for an alternative accommodation. Accordingly, the issue with regard to comparative hardship, has been decided in favour of the respondent-landlord. 5. The release application was allowed with a direction to the tenant to handover possession of the shop in question within a period of one month, and also a direction to the landlord to refund the advance amount of Rs.40,000/- and also make payment of compensation to the tenant amounting to two years' rent. 6. The petitioner has not been able to demonstrate from the records of the case that the findings of fact recorded by the courts below with regard to bona fide need and comparative hardship are based upon non-appreciation of the evidence on record or otherwise perverse. 7. In the case of Ragavendra Kumar Vs. 6. The petitioner has not been able to demonstrate from the records of the case that the findings of fact recorded by the courts below with regard to bona fide need and comparative hardship are based upon non-appreciation of the evidence on record or otherwise perverse. 7. In the case of Ragavendra Kumar Vs. Firm Prem Machinery & Co., (2000) 1 SCC 679 it was reiterated that the landlord is the best judge of his requirement for residential or business purposes and has complete freedom in the matter. The observations made in the judgment are as follows:- "10......It is true that the plaintiff landlord in his evidence stated that there were a number of other shops and houses belonging to him but he made a categorical statement that his said houses and shops were not vacant and that the suit premises is suitable for his business purpose. It is a settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. (See Prativa Devi v. T.V. Krishnan, (1996) 5 SCC 353 ) In the case in hand the plaintiff landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted." 8. In the case of Prativa Devi (Smt.) Vs. T.V. Krishnan, (1996) 5 SCC 353 while considering the issue of bona fide need, it was held that the landlord is the best judge of his residential requirement and that he had complete freedom in that matter and it was no concern of the courts to dictate to the landlord as to how and in what manner he should live or to prescribe for him a residential standard. The observations made in the aforementioned judgment are as follows:- "2. The proven facts are that the appellant who is a widow, since the demise of her husband late Shiv Nath Mukherjee, has been staying as a guest with Shri N.C. Chatterjee who was a family friend of her late husband, at B-4/20, Safdarjang Enclave, New Delhi. There is nothing to show that she has any kind of right whatever to stay in the house of Shri Chatterjee. On the other hand, she is there merely by sufferance. There is nothing to show that she has any kind of right whatever to stay in the house of Shri Chatterjee. On the other hand, she is there merely by sufferance. The reason given by the High Court that the appellant is an old lady aged about 70 years and has no one to look after her and therefore she should continue to live with Shri Chatterjee, was hardly a ground sufficient for interference. The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. The High Court is rather solicitous about the age of the appellant and thinks that because of her age she needs to be looked after. Now, that is a lookout of the appellant and not of the High Court. We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property. We accordingly reverse the finding reached by the High Court and restore that of the Rent Controller that the appellant had established her bona fide requirement of the demised premises for her personal use and occupation, which finding was based on a proper appreciation of the evidence in the light of the surrounding circumstances. 3. The learned counsel for the appellant however relies on the following observations made by a learned Single Judge (T.P.S. Chawla, J.) supposed to be based on the decision of this Court in Phiroze Bamanji Desai v. Chandrakant N. Patel, (1974) 1 SCC 661 : (1974) 3 SCR 267 to the effect: "I think, the true test is whether, on an overall and reasonable view, it can be said that the landlord has suitable accommodation ''available for his use'. In deciding this question one should certainly have regard to the fact that the landlord has no legal right to the other accommodation, but that is only a factor and not the end of the matter." These observations proceed on a misunderstanding of the ratio of the decision of this Court in Phiroze Bamanji Desai case, (1974) 1 SCC 661 : (1974) 3 SCR 267 . The High Court was in error in laying down that the test is availability of alternative accommodation and not the legal right to such occupation in adjudging the bona fides of the claim of the landlord under Section 14(1)(e) of the Act. The decision of this Court in Phiroze Bamanji Desai case, (1974) 1 SCC 661 : (1974) 3 SCR 267 does not lay down any such proposition. On the contrary, this Court reversed the judgment of the Bombay High Court which proceeded upon that basis. In that case, the first floor was in occupation of the mother of the appellant as a tenant and the question was as to the availability of the Truth Bungalow which was given on leave and licence to one Dr Bharucha. The High Court came to the conclusion that the requirement of the appellant for the ground floor of the demised premises was not reasonable and bona fide since the appellant was in juridical possession of the Truth Bungalow. This Court in allowing the appeal observed: (SCC p. 668, para 8) "Now, it is true that when premises are given on leave and licence, the licensor continues, from a juridical point of view, to be in possession of the premises and the licensee is merely given occupation and therefore, strictly speaking the High Court was right in observing that the Truth Bungalow, which was given on leave and licence to Dr Bharucha, was in the possession of the appellant." The Court then pointed out: (SCC p. 668, para 8) "But for the purpose of determining whether the requirement of the appellant for the ground floor premises was reasonable and bona fide, what is necessary to be considered is not whether the appellant was juridically in possession of the Truth Bungalow, but whether the Truth Bungalow was available to the appellant for occupation so that he could not be said to need the ground floor premises. If the Truth Bungalow was in occupation of Dr Bharucha on leave and licence, it was obviously not available to the appellant for occupation and it could not be taken into account for negativing the need of the appellant for the ground floor premises." We accordingly overrule the decision of the Delhi High Court in Sat Pal v. Nand Kishore, 1983 ILR(Del) 73 as not laying down good law. 4. 4. In the premises, the judgment of the High Court disallowing the appellant's claim cannot be supported. In considering the availability of alternative accommodation, the Court has to consider not merely whether such accommodation is available but also whether the landlord has a legal right to such accommodation. The appellant had established her bona fide personal requirement of the demised premises under Section 14(1)(e) of the Act and her claim could not be disallowed merely on the ground that she was staying as a guest with a family friend by force of circumstances." 9. In the case of Sait Nagjee Purushottam & Co. Ltd. Vs. Vimalabai Prabhulal & Ors., (2005) 8 SCC 252 it was held that in a case of an eviction suit filed on the basis of bona fide requirement of the landlord it is always the prerogative of the landlord to decide for what purpose he requires the premises in question and that it cannot be a ground to say that the landlord is already having his business at another place, therefore, such need is not a genuine need. It was also held that it is not the tenant who can dictate terms to the landlord and advise what he should do and what he should not, and then it is always the privilege of the landlord to choose the nature and place of his business. The observations made therein are as follows:- "4. First of all we shall take up the question of bona fide need of the landlords. So far as the partition of the property and the present premises coming to the share of the landlords are concerned, there is no dispute that the portion of the building has come to the share of the landlords and they are the owners as a result of the partition of the family properties. But the question is whether the landlords who are the owners of the portion of the building have substantiated the allegation with regard to the bona fide need or not. We have gone through the findings of the trial court as well as that of the Appellate Authority and the High Court and after closely scrutinising the same, we do not think that the finding recorded by the appellate court and the High Court can be interfered with by this Court on the ground of being perverse or without any basis. The landlords have led evidence to show that one of their sons who had requisite qualification for starting a computer institute wants to establish the same at Calicut and others for extension of their business. The trial court as well as the first appellate court and the High Court examined the statements of PWs 2 and 3 and after considering their evidence, the appellate court reversed the finding of the trial court and held that the need of the respondent landlords to start a business at Calicut, is bona fide and genuine. It was held that it cannot be said that a person who is already having a business at one place cannot expand his business at any other place in the country. It is true that the landlords have their business spreading over Chennai and Hyderabad and if they wanted to expand their business at Calicut it cannot be said to be unnatural thereby denying the eviction of the tenant from the premises in question. It is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business. However, the trial court held in favour of the appellant tenant. But the appellate court as well as the High Court after scrutinising the evidence on record, reversed the finding of the trial court and held that the need of establishing the business at Calicut by the landlords cannot be said to be lacking in bona fides." 10. The authorities below have also taken note of the fact that despite the pendency of the release proceedings the tenant did not make any effort to search for an alternative accommodation. In this regard reference may be had to the judgment in the case of Badrinarayan Chunilal Bhutada Vs. The authorities below have also taken note of the fact that despite the pendency of the release proceedings the tenant did not make any effort to search for an alternative accommodation. In this regard reference may be had to the judgment in the case of Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada, (2003) AIR SC 2713 wherein it was held that in a case where the tenant did not make any effort to search for an alternative accommodation, the question of comparative hardship was to be decided against the tenant. 11. No other point was argued by the learned counsel for the petitioner. 12. The Prescribed Authority and the Appellate Authority having recorded concurrent findings of facts based upon appreciation of evidence, the scope of judicial review in exercise of writ jurisdiction under Article 226 in such a matter is extremely limited and such findings of fact recorded by statutory authorities unless they are demonstrated to be vitiated by manifest error of law or are shown to be patently perverse, are not to be interfered with. 13. In this regard reference may be had to the judgment in the case of Ashok Kumar & Ors. Vs. Sita Ram, (2001) 4 SCC 478 wherein in proceedings arising out of Section 21(1)(a) of the U.P. Act No.13 of 1972, the following observations were made with regard to the exercise of powers in writ jurisdiction under Article 226 of the Constitution of India. "17. The question that remains to be considered is whether the High Court in exercise of writ jurisdiction was justified in setting aside the order of the Appellate Authority. The order passed by the Appellate Authority did not suffer from any serious illegality, nor can it be said to have taken a view of the matter which no reasonable person was likely to take. In that view of the matter there was no justification for the High Court to interfere with the order in exercise of its writ jurisdiction . In a matter like the present case where orders passed by the Statutory Authority vested with power to act quasi-judicially is challenged before the High Court, the role of the Court is supervisory and corrective. In a matter like the present case where orders passed by the Statutory Authority vested with power to act quasi-judicially is challenged before the High Court, the role of the Court is supervisory and corrective. In exercise of such jurisdiction the High Court is not expected to interfere with the final order passed by the Statutory Authority unless the order suffers from manifest error and if it is allowed to stand it would amount to perpetuation of grave injustice. The Court should bear in mind that it is not acting as yet another Appellate Court in the matter. We are constrained to observe that in the present case the High Court has failed to keep the salutary principles in mind while deciding the case." 14. Counsel for the petitioner has not been able to point out any material error or illegality in the orders passed by the courts below. 15. In view of the facts of the case and the proposition of law as discussed above, there is no ground which may warrant interference with the orders which have been impugned in the present writ petition. 16. The petition is devoid of merits and is accordingly dismissed. 17. At this stage learned counsel for the petitioner makes a prayer that he may be granted some time to vacate the premises. 18. The counsel appearing for the respondents does not object to the prayer so made. 19. As agreed by the learned counsel for the parties, the petitioner is granted six months' time to vacate the demised premises subject to furnishing an undertaking before the Prescribed Authority within three weeks from today that he would vacate the demised premises on or before the expiry of six months from today and handover peaceful and vacant possession thereof to the landlord and would be liable for payment of the agreed rent/damages for six months. In case of default of the aforementioned condition, the protection granted shall stand withdrawn and it shall be open to the respondent-landlord to enforce the release order.