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2024 DIGILAW 631 (ALL)

Radha Kishan Golani v. Savitri Devi

2024-02-28

ASHUTOSH SRIVASTAVA

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JUDGMENT Ashutosh Srivastava, J. Heard Shri. Saurabh Srivastava, learned counsel for the petitioner and Shri. Ashutosh Sharma, learned counsel for the respondents. 2. The instant writ petition, at the instance of the tenant, has been filed assailing the judgment and order dated 8.2.2023 passed by the Addl. District Judge, Court No. 1, Kanpur Nagar in Rent Appeal No. 66 of 2018 (Radha Kishan Golani v. Smt. Savitri Devi through her Lrs) whereby the appeal has been rejected as also the judgment and order of the Prescribed Authority/Addl. Civil Judge (Sr.Div.), Court No. 2, Kanpur Nagar in Rent Case No. 2 of 2013 whereby and whereunder the release application under Section 21 (1) (a) of the U.P. Act No. 13 of 1972 has been allowed. 3. The lis between the parties is with regard to a shop forming part of premises No. 111A/399, Ashok Nagar, Kanpur Nagar under the tenancy of the petitioner with monthly rent of Rs. 750/- per month. A release application under Section 21 (1) (a) of the U.P. Act No. 13 of 1972 was filed by the respondent/landlady Smt. Savirtri Devi setting up a need of the shop under the tenancy of the petitioner for her son Dinesh Kumar and his two adult sons Amit Kumar and Sumit Kumar for starting an electric repair shop. In the release application, it was stated that in the premises 111A/399 Ashok Nagar, four shops were existing. Two shops were in occupation of her two sons Jagdish Kumar and Girish Kumar. The third shop was under the tenancy of Prem Shanker Gupta and the 4th shop under the tenancy of the petitioner was required to be released for the need set up. The petitioner appeared in the proceedings and filed his written statement stating therein that there are five shops and not four shops as alleged in the release application, the petitioner is carrying on the business of repairing of electric equipment in the shop in question in the name and style of "Raghu Electronic" and the entire family is dependent upon the earnings from the shop in question, the landlady/respondent is in possession of three shops and the need set up is not bona fide. 4. 4. It has further been submitted by learned counsel for the petitioner that before the Prescribed Authority, the petitioner filed an affidavit that one of the tenants of the landlady/respondents, namely, K. K. Raj had vacated the shop under his tenancy and in the said shop, was in possession of the son Dinesh Kumar, who was carrying on business in the name and style of "Little Heart". In addition to the shop vacated by Shri. K. K. Raj, the other son, namely, Jagdish Prasad is in possession of another premises being House No.111A/385, Ashok Nagar, Kanpur purchased in the name of Neera Mishra, his wife vide sale deed dated 19.8.2009. Apart from the above, it was also stated that the landlady/respondent was possessed of another shop vacated by earlier sole tenant Kallu Prasad and that she had constructed another shop in the ground floor of the premises. It was also stated that the son of Dinesh Kumar Mishra, namely, Amit Kumar Mishra was employed with M/s Vishal Video & Appliances Pvt. Ltd. Authorized distributors for Gionee Mobile and is now working with M-Phone Electronics Pvt. Ltd., Noida and the younger son of Dinesh Kumar, namely, Sumit Kumar Mishra is working as Deputy Manager in M/s Intex Technology Ltd., Lucknow. The petitioner also brought on record the Panchshala for the period 1978-1987 and 1987-1992 to show that as many as six shops were shown at the ground floor. It is contended that the Prescribed Authority without giving its due consideration to the availability of alternative shops with the landlady/respondent and without properly adjudicating the bona fide need, with the preconceived notion proceeded to allow the release application vide its order dated 15.10.2018. 5. Aggrieved by the order of the Prescribed Authority dated 15.10.2018, the petitioner preferred an appeal under Section 22 of the Act being Rent Appeal No. 66 of 2018. The Appellate Authority under the impugned order dated 8.2.2022 has dismissed the rent appeal. 6. Shri. Saurabh Srivastava, learned counsel for the petitioner has assailed the orders of the Appellate Authority as also of the Prescribed Authority primarily on the following grounds:- a) Both the Authorities below failed to appreciate specific pleadings and evidence adduced by the petitioner with respect to availability of the alternate shop with the landlady/respondent to satisfy the need set up particularly, the factum of constructing a new shop (6th shop) in the premises in question. b) Both the Authorities below failed to appreciate that the composite need set up for Dinesh Kumar and his two sons Amit Kumar & Sumit Kumar stood satisfied on account of vacant possession of shop taken by Jagdish Prasad in House No. 111A/385, Ashok Nagar and vacating the shop in his possession in the premises No. 111A/399, Ashok Nagar. c) Both the Authorities below failed to address the specific pleading and evidence led with respect to Amit Kumar and Sumit Kumar sons of Dinesh Kumar regarding their being gainfully employed. d) The Appellate Authority illegally rejected the application of the petitioner under Order 41, Rule 27 CPC read with section 151 CPC to bring on record additional evidence that the landlady/respondent had let out one shop to M/s Leeva International for monthly rent of Rs. 5,000/- and further that during the pendency of the appeal that the landlady/respondent got vacated shop No. 3 from one tenant Rajendra Puri engaged in the business of Biryani selling and let out the same to one Girish Kumar Srivastava on monthly rent of Rs. 6,500/- per month erroneously on the ground that the matter related to an appeal filed under the provisions of the U.P. Act No. 13 of 1972 and not under CPC. 7. Laying emphasis on the above submissions, learned counsel for the petitioner submits that the bona fide need of the landlady/respondent as set up in the release application was liable to be considered taking into consideration the happening of the subsequent event of the landlady/respondent acquiring another shop and then letting it out on rent or that the son and the grandsons whose need had been set up were gainfully employed. Reliance has been placed upon the decisions of this Court reported in 2016 (2) ARC 274 (Oudhesh Narain (Dr.) v. Addl. District & Sessions Judge, Lucknow) and 2017 (1) ARC 477 (Abdul Waheed v. Smt. Nafisa Negum). It is thus submitted that the impugned orders are vitiated in law and the writ petition is liable to be allowed. 8. Per contra, Shri. Ashutosh Sharma, learned counsel for the respondent/landlords submits that the Authorities below have recorded findings of fact about the bona fide need and comparative hardship in favour of the landlord/respondents which finding are within the four corners of law and do not call for any interference. 9. 8. Per contra, Shri. Ashutosh Sharma, learned counsel for the respondent/landlords submits that the Authorities below have recorded findings of fact about the bona fide need and comparative hardship in favour of the landlord/respondents which finding are within the four corners of law and do not call for any interference. 9. I have heard the learned counsels for the parties and have perused the record. 10. From the submissions advanced by Shri. Saurabh Srivastava, learned counsel for the petitioner, it is borne out that the Authorities below i.e. both the Prescribed Authority as also the Appellate Authority did not consider the question of bona fide need in the correct perspective which has resulted in travesty of justice vitiating the judgment and orders passed. It was established on record that the landlady/respondent was possessed of sufficient accommodation to satisfy the need of her son Dinesh Kumar and her two grandsons Amit Kumar and Sumit Kumar. 11. This Court finds that the Prescribed Authority on the appreciation of the evidence led by the parties found that the landlady/respondent was possessed of four shops in the disputed property. Two shops were in the possession of sons Jagdish Kumar and Girish Kumar, who were carrying on business. The third shop was let out to Prem Shanker Gupta and the fourth shop was under the tenancy of the petitioner. The Prescribed Authority disbelieved the petitioner that the landlady was possessed of fifth shop. The landlady had disclosed in her evidence that during the pendency of the PA Case, a space 4 x 5 feet was carved out from the Verandah by raising a wall in which Ajay Kumar son of Kamlesh Kumar was carrying on Parchoon business. The space can hardly be said to be a shop. The Prescribed Authority being of the view that a landlord cannot be dictated as to how and in what manner to use the accommodation available with him and taking note of the fact that evidence for searching out alternate accommodation was filed at a much later stage, proceeded to allow the release application. The Appellate Authority has affirmed the finding recorded by the Prescribed Authority and has found the need of the landlord/respondent to be genuine and bona fide. The comparative hardship has also been found to be tilting in favour of the landlord/respondents. 12. The Appellate Authority has affirmed the finding recorded by the Prescribed Authority and has found the need of the landlord/respondent to be genuine and bona fide. The comparative hardship has also been found to be tilting in favour of the landlord/respondents. 12. Learned counsel for the petitioner submits that the learned Prescribed Authority did not advert to the averments made by the petitioner in his affidavit dated 5.9.2018 which was filed to appraise the Prescribed Authority that Dinesh Kumar for whom the need was set up, was carrying on the business of cosmetics and gift in the shop vacated by K.K. Raj and it was wrong to state that in the said shop, the son of the landlady/respondent, namely, Jagdish Mishra and his son Sanjeev Mishra are in occupation inasmuch as they have moved to reside in another house No. 111A/385, Ashok Nagar and a shop in the ground floor of the said house is available to Jagdish Mishra. Likewise, it is contended that the Authorities below did not consider the evidence led by the petitioner that the sons of Dinesh Kumar, namely, Amit Kumar and Sumit Kumar were gainfully employed and the annual assessment of the building for the year 1986-1992 which established the fact that the landlady was possessed of one vacant shop which could be utilized to satisfy the need and as such, the need set up in the release application cannot be said to be bona fide. 13. In order to test the argument of learned counsel for the petitioner, it would be apt to understand as to what is meant by the terms "bona fide". The Apex Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, reported in 1999 (6) SCC 222 held as under:- "13. ..., the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "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. Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "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 sense of felt need which is an outcome of a 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 armchair 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 bona fide. 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. Once the court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against." 14. Then, again in the case of B. C. Bhutada v. G. R. Mundada, reported in AIR 2003 (SC) 2713 , the Apex Court held that:- "Requirement implies an element of necessity. The necessity is a necessity without regard to the degree of which it may be." 15. A co-ordinate Bench of this Court in Writ-A No. 6728 of 2023 (Vijay Kumar Banswar v. Awadesh Kumar Jaisawal) while dealing with the question of bona fide need, relying upon the above two decisions of the Apex Court held the question of bona fides shall be satisfied if the landlord is able to show that they need the tenant's premises for carrying out their business and the same does not need to be to the extent where no alternative is left with them. This Court is in full agreement with the view taken. In the case at hand, the respondent/landlords have been able to show the need accordingly, and the Court finds no merit in the submission of learned counsel for the petitioner in this regard. 16. Now, coming to the submissions that no finding was recorded by the Authorities below regarding Amit Kumar and Sumit Kumar sons of Dinesh Kumar being gainfully employed. In the opinion of the Court, the provisions contained in Section 21 (1) (a) of the U.P. Act No. 13 of 1972 seeking the release of the premises under the tenancy of the tenant on the ground of bona fide requirement does not strictly require the landlord to be "unemployed" to maintain an action. All that the provision contemplates is that the requirement so pleaded by the landlord must be bona fide. This position under the law stands clarified by the Apex Court in its decision in the case of Harish Kumar (since deceased) through LRs. v. Pankaj Kumar Garg, reported in 2022 LiveLaw (SC) 239. In such circumstances, the non recording of any finding regarding the employment of the grandsons of the respondent/landlady in the opinion of the Court cannot be said to be fatal so as to non suit the landlady/respondents. 17. v. Pankaj Kumar Garg, reported in 2022 LiveLaw (SC) 239. In such circumstances, the non recording of any finding regarding the employment of the grandsons of the respondent/landlady in the opinion of the Court cannot be said to be fatal so as to non suit the landlady/respondents. 17. This Court having gone through the judgment and orders of the Authorities below, finds that findings of fact have been recorded by both Authorities on the question of bona fide need and comparative hardship which findings are based on proper appreciation of the materials on record and consideration of the correct law. The findings of fact recorded do not call for any interference by this Court in exercise of its powers under Article 226 of the Constitution of India particularly, in view of the settled position of law that it is for the landlord to decide how and in what manner, he should live and that he is the best judge of his essential requirements. He has to settle his own life in his own way and cannot be guided, controlled or restricted by any third person including the Court. 18. In view of above, the Court finds no merits in the writ petition. It is, accordingly, dismissed. 19. No order as to costs.