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2021 DIGILAW 1045 (ALL)

Vijay Kumar Saini v. Additional District Judge

2021-09-14

SIDDHARTH

body2021
JUDGMENT : 1. Heard learned counsel for the petitioner and Sri Manas Bhargava, learned counsel representing respondent nos. 3 to 6. 2. This writ petition has been filed praying for quashing of the judgment and order dated 09.03.2021 passed by the respondent no. 1, i.e., Additional District Judge, Kanpur Nagar in Rent Appeal No. 73 of 2013 (Shailendra Singh and Others Vs. Vijay Kumar Saini) and to affirm the order dated 14.08.2013 passed by the respondent no. 2 i.e., A.C.M.M./ Prescribed Authority, Kanpur Nagar. 3. The brief facts of the petition are that Shailendra Singh, husband, landlord-respondent no. 3 and father of landlord/respondent nos. 4, 5 and 6 filed an application against tenant-petitioner under Section 21(1)(a) of The U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as “Act 1972”) before Prescribed Authority praying for release of the tenanted portion shown in schedule B to the release application. It was stated in the release application that the tenanted portion of house no. B-6, Khapra Mohal, Chawni, Kanpur Nagar, is in occupation of the tenant-petitioner at the rent of Rs. 50 per month. The rented premises is too old and the provisions of U.P. Act No. 13 of 1972 apply thereto. The family of landlord consists of himself, his wife and three children. He has four rooms, two stores, one kitchen and a dilapidated room for residence and he needs one room and one store more for his wife; he needs one separate room each for his two daughters, Km. Ruchi Singh and Km. Suchi Singh, and for his son, Saurabh Singh; he also needs two rooms for dining room and drawing room. He has no other accommodation available in the city. The tenant-petitioner can get alternative accommodation allotted in his name. The need of the landlord is genuine and bonafide and comparative hardship is also in his favour. Hence, the application may be allowed. 4. The tenant-petitioner filed his objections to the release application stating that the landlord has failed to state how he became the owner of the property. In the absence of such an averment, the tenant-petitioner is unable to accept or reject the contents of paragraph 1 of the release application. The rent of the disputed accommodation was 25 rupees earlier and 50 rupees per month now. In the absence of such an averment, the tenant-petitioner is unable to accept or reject the contents of paragraph 1 of the release application. The rent of the disputed accommodation was 25 rupees earlier and 50 rupees per month now. The landlord has failed to state in which part of the house of the landlord the disputed tenanted portion is situated. The landlord has shown the age of his family members less than their actual age. He has nine rooms in his possession and a shop of general merchant in the ground floor is run by his son, Saurabh Singh. Five persons are living in nine rooms. Some rooms are let out to the tenants in every season who make “petha”. The marriage of the landlord's daughter have been settled and they will certainly go away from the house. Thereafter only three persons will remain in the house. The tenant-petitioner has only one room and a kitchen under tenancy. The daughters of the tenant-petitioner are marriageable but on account of economic constraints he is not able to marry them. He sells flowers in basket and does part time photography and earns Rs. 2,000/-to Rs 3,000/-. The landlord has agricultural land, house, shop and other means of livelihood. The tenant resides with his wife, two daughters and a son in the tenanted portion. The application has been filed only after the tenant-petitioner refused to pay rent of Rs. 500/-per month to the landlord and then he directed him to vacate the house in October, 2010. He is tenant of the premises in dispute since the time of his father. The tenanted portions vacated by Tulsi Ram, Rameshwar Gupta, Rajendra Prasad, Laxmi Chand and Ashok Kumar. Vijay Bahadur Singh are available with the landlord. He has obtained possession of the rented portions through court which were let out to Raj Kumar and Smt. Madhuri Gupta. The landlord has sufficient accommodation for the need of his family and need set up by him is not bonafide and genuine nor comparative hardship is in his favour. Hence, the release application deserves to be rejected. 5. The landlord filed his replication stating that he is the sole-owner of house in dispute. He claimed that only four rooms, two stores and a kitchen are available to him and his family. Hence, the release application deserves to be rejected. 5. The landlord filed his replication stating that he is the sole-owner of house in dispute. He claimed that only four rooms, two stores and a kitchen are available to him and his family. The marriage of his daughters have not been settled, they are still students and preparing for competitive examinations and need separate rooms for study. The godown situated behind the shop on the ground floor is commercial and used by the landlord. Apart from the family members of the landlord he has four sisters who come to his house on festivals and there is not enough space for their stay in the house. The landlord never pressurized the tenant to increase the rent. The financial position of the landlord is not good. Rajendra Prasad Mishra, Tulsi Ram Mishra, etc., vacated the tenant portion in 1987. Two rooms and a garage have been let out to Khandelwal. There was no tenant of the petitioner, named, Laxmi Chand Mishra and Ashok Kumar. 6. The tenant filed his additional objection stating that the portion vacated by Smt. Madhuri Gupta has not been disclosed by the landlord in his release application. He has received the possession of one room, terrace, latrine and bathroom. 7. The parties let their evidence before the prescribed authority. The prescribed authority framed the first issued regarding the relationship of landlord and tenant between the parties and found that the same exists between them. Regarding the second issue of bonafide need, the prescribed authority found that the landlord has not come before the court with clean hands. He did not disclosed the tenanted premises vacated by Smt. Madhuri Gupta and possessed by the landlord on 30.11.2011. In the aforesaid released premises the landlord got a room constructed for his son. One room vacated by Raj Kumar came in the possession of the landlord on 13.05.2002 which was not disclosed in the release application. The prescribed authority further found that the landlord has four rooms, two stores, one kitchen, latrine and bathroom available and if one room and one kothri vacated by Smt. Madhuri Gupta and Raj Kumar is added, the need of landlord is satisfied. Regarding the issue of comparative hardship, prescribed authority found that the tenant has made multiple allotment applications and is living with his family for many years in the disputed premises. Regarding the issue of comparative hardship, prescribed authority found that the tenant has made multiple allotment applications and is living with his family for many years in the disputed premises. If he is evicted from property in dispute, he will suffer more hardship vis-a-vis the landlord-respondents. Finally, the release application was dismissed by the judgment and order dated 14.09.2013. 8. The landlord-respondent nos. 3 to 6, preferred a Rent Appeal No. 73 of 2013 before the District Judge, Kanpur Nagar who has allowed the appeal and set aside the judgment and order dated 14.08.2013 passed by prescribed authority by his judgment and order dated 09.03.2021. 9. The Appellate Court while considering the bonafide need of the land lord found that the portions of the property released in favour of the landlord-respondents by different tenants were commercial in nature and therefore, the prescribed authority committed error in rejecting the release application which was filed for release of residential accommodation in favour of the landlord. Regarding comparative hardship the Appellate Court found that the tenant has simply filed some applications for allotment before the Rent Control and Eviction Officer but has not seriously pursued them. Therefore, the Appellate Court allowed the appeal and set aside the order of the prescribed authority and the accommodation in dispute was directed to be released in favour of the landlord. 10. Learned counsel for the petitioner has submitted that there was no evidence regarding ownership of respondent nos. 3 to 6 or their predecessor. After the death of original landlord, Shailendra Singh, need of the family was decreased and only four members were left in his family for whom the accommodation was sufficient. The order of the Appellate Court is not justified, the comparative hardship is in favour of the tenant-petitioner and not in the favour of the landlord-respondent nos. 3 to 6 as held by the Appellate Court. 11. Counsel for the landlord-respondent nos. 3 to 6 has stated that need of the landlord has rightly been considered by the Appellate Court. After considering the material on record it rightly found that the prescribed authority has clubbed the commercial portion with the residential portion in possession of the landlord and rejected the release application of the landlord illegally. 12. Counsel for the landlord-respondent nos. 3 to 6 has stated that need of the landlord has rightly been considered by the Appellate Court. After considering the material on record it rightly found that the prescribed authority has clubbed the commercial portion with the residential portion in possession of the landlord and rejected the release application of the landlord illegally. 12. After hearing the counsel for the parties, this court finds that Section 21(1)(a) of U.P. Act No. XIII of 1972 formulates mandatory condition for moving an application for release of the building under the tenancy of tenant by the landlord that there must be 'bonafide need'. The word 'bonafide need' was received wide useful meaning rather than narrow construction and court should adopt practical meaning guided by the realistic requirement of life. 13. The word "bonafide" has been interpreted by his Lordship of the Hon'ble Supreme Court in the case Shiv Sarup Gupta V. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 : 1999 SCFBRC 330, has held :- "The term bonafide or genuinely refers to a state or mind. Requirement is not mere desire. The degree of intensity contemplated by "required bona fide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the absence of felt need which is an outcome of sincere,honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The judge of facts should place himself in the arm chair of the landlord and then ask the question to himself-whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bonafide. The judge of facts should place himself in the arm chair of the landlord and then ask the question to himself-whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord." 14. This Court in the case of Pramod Kumar Vs. VI Additional District Judge, Bijnor and others, 2000(1) ARC 185, has defined 'bona fide need' on the basis of decisions of the Hon'ble Supreme Court rendered in Muttu Lal Vs. Radhey Lal, AIR 1974 SC 1596 and Bega Begum Vs. Abdul Ahad Khan, AIR 1979 SC 272 : 1986 SCFBRC 346, as under :- "The word 'bona fide' means genuinely and sincerely i.e. in good faith in contradiction to mala fide. The requirement of an accommodation is not bona fide if it is sought for ulterior purpose but once it is established that the landlord requires the accommodation for the purpose which he alleges there is of ulterior motive to evict the tenant that requirement should be bona fide". 15. In the same manner the word "bonafide" has been interpreted in the case of Jagdish Chandra Vs. District Judge, Kanpur Nagar and others 2008 2 ARC 756 and 2009 (2) ARC 802 Hariom Vs. Additional District Judge and others. 16. Apex Court in the case of Sarla Ahuja. Vs. United India Insurance Company Ltd., (1996) 5 SCC 353 , held as under :- "The rent controller should not proceed on the assumption that the landlord's requirement is not bona fide. When the landlord shows a prima facie case a presumption that the requirement of the landlord is bonafide is liable to be drawn. It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted premises. When the landlord shows a prima facie case a presumption that the requirement of the landlord is bonafide is liable to be drawn. It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlords, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself." 17. In the case of Gulab Bai Vs. Nalin Narsimonia,(1993) 3 SCC 483, the Hon'ble Supreme Court has held as under :- "The words 'reasonable requirement' undoubtedly postulate that there must be an element of need as appeared to more desire or wish. The Distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire." 18. This Court in the case of Smt. Tara Devi Vs. District Judge & Others, 1979 ARC 382, has held on the basis of the Hon'ble Supreme Court decision rendered in Muttu Lal Vs. Radhey Lal, AIR 1974 SC 1596 as under :- "It is for the Court to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and not a subjective one and merely because the landlord asserts that he wants the accommodation for his personal use would not be enough to establish that he requires it for his personal use." 19. In the present case, courts below have given categorical finding of fact that the tenant did not make any serious efforts to search an alternative accommodation immediately after filing of the release application and even during the pendency of appeal, so the said facts were sufficient to tilt the balance of the comparative hardship against the tenant, in view of the law as laid down by Hon'ble Supreme Court in the case of B.C. Bhutada V. G.R. Mundada, A.I.R. 2003 SC 2713 wherein it was held that bona fide requirement implies an element of necessity. The necessity is a necessity without regard to the degree to which it may be. For the purpose of comparing the hardship the degree of urgency or intensity of felt need assumed significance. 20. The necessity is a necessity without regard to the degree to which it may be. For the purpose of comparing the hardship the degree of urgency or intensity of felt need assumed significance. 20. In the above authority it has also been held in para 13, that tenant must show as to what efforts he made to purchase or take on rent other accommodation after filing of the release application which is quoted below:- " In Piper V. Harvey, 1958(1) All ER 454, the issue as to comparative hardship arose for the consideration of Court of appeals under the Rent Act, 1975. Lord Denning opined; "when I look at all the evidence in his case and see the strong case of hardship which the landlord put forward, and when I see that the tenant did not give any evidence of any attempts made by him to find other accommodation, to look for another house, either to but or to rent, it seems to me that there is only one reasonable conclusion to be arrived at, and that is that the tenant did not prove (and the burden is on him to prove) the case of greater hardship." Hudson, L.J. ,opined: " the tenant has not been able to say any thing more than the minimum which every tenant can say, namely, that he was in fact been in occupation of the bungalow, and that he has not at the moment any other place to go to . He has not , however, sought to prove any thing additional to that by way of hardship such as unsuccessful attempts to find other accommodation, or , indeed , to raise the question of his relative financial incompetence as compared with the landlord." On such state of the case, the Court answered the issue as to comparative hardship against the tenant and ordered his eviction." 21. In the case of Jagdish Chandra Vs. District Judge, Kanpur Nagar and others 2008 2 ARC 756 this Court after relying on the judgment given by the Apex Court in the case of Bega Begam and others Vs. Abdul Ahad Khan 1979 AIR SC 272 held as under : "In every case where an order of eviction is passed the tenant will come on the street. District Judge, Kanpur Nagar and others 2008 2 ARC 756 this Court after relying on the judgment given by the Apex Court in the case of Bega Begam and others Vs. Abdul Ahad Khan 1979 AIR SC 272 held as under : "In every case where an order of eviction is passed the tenant will come on the street. The fact that all tenants will come on street if eviction is ordered, is not at all relevant for consideration of a comparative hardship of the respective parties. It is for the tenant to find out alternative accommodation. In absence of any material to show that any attempt was made by the such tenant to find out alternative accommodation release application cannot be rejected on ground that such tenant would suffer greater hardship if the release application is allowed." 22. Under Rule 16 of the Rules framed under the Act, various parameters have been provided while considering the comparative hardship of the landlord qua the tenant. The Apex Court in the case of Ganga Devi Vs. District Judge, Nainital and others, 2008(2) ARC 584 while considering the said scheme provided in Rule 16 has held that :- "The Court would not determine a question only on the basis of sympathy or sentiment. Stricto sensu equity as such may not have any role to play." 23. In the instant case as stated above, the appellate court had held that the tenant has not made any serious efforts for search of alternative accommodation and it is settled proposition of law that the equity follows law and so does sympathy. If the factors mentioned in Rule 16 are considered, taking into consideration the facts of this case, no doubt it is an old tenancy but there is nothing to show that any real efforts were made by the tenant to find another accommodation, since the date of moving of release application. (See also Govind Narain Vs. 7th Additional District Judge, Allahabad and others [2008(1) ARC 526] and Rani Devi Jain Vs. Badloo and another[2008 (3) ARC 351]). So the argument as raised by learned counsel for petitioner that courts below have failed to compare the need between the parties has got no force and is rejected. 24. From the above consideration of authorities this court finds that the judgment of the prescribed authority was not in accordance with law. Badloo and another[2008 (3) ARC 351]). So the argument as raised by learned counsel for petitioner that courts below have failed to compare the need between the parties has got no force and is rejected. 24. From the above consideration of authorities this court finds that the judgment of the prescribed authority was not in accordance with law. When the bonafide need was set up for release of residential accommodation by the landlord the same could not have been held to be satisfied because of release of commercial accommodation in favour of the landlord. The shops cannot be used for residence of family members. The Appellate Court has clearly discussed the nature of accommodations released in terms of landlord-respondents and accommodation sought by the landlord to be released from the tenant for the residential use. 25. The argument of the counsel for the petitioner that the original landlord, Shailendra Singh, died and therefore the need of the tenants has diminished is not correct. Even if it is considered to be correct, the need of the landlords cannot be said to be satisfied only because of the death of the one member for whom no need was set up in the release application. Need was set up only for the other members of the family by the original landlord, Shailendra Singh. The Appellate Court has found that the original tenant died leaving behind three sons, including the tenant-petitioner. Two of them have constructed their own houses and the tenant-petitioner is employed in the business of selling of flowers. He take contracts for decoration of flowers in marriages and other functions and also does the work of photography. He is not a poor person. The Appellate Court has found that the tenant-petitioner has failed to make any sincere effort to get any alternative accommodation allotted on rent. He simply filed some applications before the Rent Control Eviction Officer and did not pursued the same. Therefore, it has rightly concluded that the comparative hardship of the landlord is more as compared to the tenant. No perversity could be pointed by the counsel for the petitioner in the findings of the Appellate Court. It does not requires any interference by this Court. 26. The writ petition is accordingly, dismissed. 27. Therefore, it has rightly concluded that the comparative hardship of the landlord is more as compared to the tenant. No perversity could be pointed by the counsel for the petitioner in the findings of the Appellate Court. It does not requires any interference by this Court. 26. The writ petition is accordingly, dismissed. 27. Since the tenant-petitioner is residing in the tenanted accommodation for a very long time, he is granted six months' time to vacate the same, subject to his furnishing an undertaking within two weeks before the prescribed authority that he will vacate and deliver vacant possession of the tenanted premises to the landlord-respondent nos. 4 to 6 on or before the expiry of six month's time from today. He will also give undertaking that he will deposit the arrears of rent, if any, at the rate of Rs. 50 per month by 7th day of every month and at the rate of Rs. 500/-per month for a period of six months by 7th day of every month. 28. In case of default of any of the above conditions by the tenant-petitioner, the landlord-respondents shall be free to execute the order of the courts below and the above protection of six months shall stand vacated automatically.