Mohd. Ayub & Anr vs Mukesh Chand

MOHD. AYUB & ANR. ... APPELLANTS

Versus

MUKESH CHAND ... RESPONDENT

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. This appeal, by grant of special leave, is directed

against the judgment and order dated 12.9.2005 passed by

the High Court of Uttaranchal at Nainital partly allowing the

Writ Petition No. 296 of 2004 filed by the appellants.

2. The appellants/landlords filed an application under

Section 21 of the Uttar Pradesh Urban Buildings (Regulation

of Letting, Rent and Eviction) Act, 1972 (for short, `the U.P

Act') for eviction of the respondent/tenant on the ground

2

that they bona fide required the premises occupied by the

respondent to start business for their sons.

3. According to the appellants when the house in question

was purchased by them the respondent was occupying two

shops facing the road and two rooms situate at the rear of

the said shops as a tenant of the previous landlord at the

rent of Rs.35/- per month. These rooms are situated on the

ground floor of the said building. The respondent continued

to occupy the said rooms as tenant at the same rent. It is

the case of the appellants that the first appellant is carrying

on business in three small stalls situated in a shop of the

Cantonment Council, the rent of which keeps increasing.

The three sons of the appellants aged 23, 28 and 19 years

are unemployed. Two sons want to start general

merchant business in one shop and the third son wants to

start wholesale egg business in the other shop. The

appellants' family consists of 13 members. Their one son is

married and has three children and the two other sons are of

a marriageable age. The married son wants to live in the

3

room behind the shop. Presently, the appellants' family is

living in three rooms and a verandah with great difficulty.

On these grounds the appellants filed the application for

release of the rooms in occupation of the respondent.

4. In response, the respondent inter alia contended that

he is conducting photography business from the said shops

for many years; that he is enjoying goodwill in the area;

that he will find it difficult to get premises in the same area;

that appellants are financially well off as compared to him;

that they own other properties and that greater hardship

would be caused to the respondent if the decree of eviction

is passed than that would be caused to the appellants if it is

not passed.

5. The Prescribed Authority dismissed the application

holding inter alia that the appellants are financially sound

and other properties were available to them whereas except

the suit shops the respondent does not have any place for

residence and business and hence, if he is evicted from the

4

shops in his occupation, he will experience more difficulty.

The appeal carried from the said judgment was dismissed by

the District Court holding inter alia that financial position of

the appellants is far better than that of the respondent.

They could have purchased a vacant bungalow and started

business for their sons. Learned District Judge held that the

appellants have purchased the building to make profit and

then filed the application for eviction. According to learned

District Judge, the respondent was doing business from the

said shops for many years and it would be difficult for him to

find a place for business. Hardship caused to the

respondent would be more.

6. While disposing of the petition filed by the appellants

the High Court rightly held that the landlord cannot be

dictated by the tenant what business his sons should do and

the observations made by the courts below to that effect

and the findings reached by the courts below on bona fide

requirement of the landlord are perverse. However, without

going into the aspect of comparative hardship, the High

5

Court directed that only one room out of the four rooms

should be handed over to the appellants by the respondent

as from the affidavit it appears that the respondent was

using it as a passage. Being aggrieved by the said

judgment, the appellants have approached this Court.

7. Shri Vijay Hansaria, learned senior counsel, appearing

for the appellants submitted that having come to the

conclusion that the need of the appellants was genuine, the

High Court erred in directing the respondent to only

handover one room to the appellants. The High Court has

wrongly granted only partial relief to the appellants without

going into the aspect of comparative hardship. In support of

his submissions, learned counsel relied on Raghunath G.

Panhale (Dead) by Lrs. v. C haganlal Sundarji & Co. 1 ,

Bhimanagouda Basanagouda Patil v. Mohd.

G udusaheb 2 , Ganga Devi v. District Judge, Nainital &

Or s. 3

1 (1999) 8 SCC 1

2 (2003) 3 SCC 101

3 (2008) 7 SCC 770

6

8. Shri Achal Chabbra, learned counsel for the respondent

on the other hand submitted that the High Court has

balanced the interest of both sides and hence no

interference is necessary with the impugned judgment.

9. There is no challenge to the High Court's finding that

the appellants' requirement is bona fide. The respondent

has not assailed the High Court's order. We concur with the

High Court on this point. However, the High Court

erroneously held that the view expressed by the courts

below that greater comparative hardship would be caused to

the respondent if decree of eviction is passed is correct so

far as two rooms occupied by him for residence and one

room in which he is running a shop is concerned. The High

Court observed that no hardship will be caused to the

respondent if one room is directed to be handed over to the

appellants because it was used as a passage by the

respondent. Surprisingly, the High Court has not given any

reasons why only partial relief was being granted to the

appellants. In fact, it has not discussed the issue of

7

comparative hardship at all. Since this issue is of utmost

relevance and the application of the appellants is of the year

1998, we proceed to deal with it.

10. Section 21 (1) (a) of the U.P. Act provides for eviction

of a tenant on the ground of bona fide requirement of the

landlord. The fourth proviso thereof states that the

Prescribed Authority shall take into account the likely

hardship to the tenant from the grant of the application as

against the likely hardship to the landlord from the refusal of

the application and for that purpose shall have regard to

such factors as may be prescribed.

11. Rule 16 (2) of U.P. Urban Buildings (Regulation of

Letting, Rent and Eviction) Rules, 1972 ( for short, `the said

Rules') states which facts the Prescribed Authority has to

consider while dealing with an application for release under

clause (a) of sub-section (1) of Section 21 of the U.P. Act.

Rule 16 (2) refers to building let out for purpose of any

business and the facts which have to be taken into

8

consideration are: (a) length of tenancy of the tenant; (b)

availability of suitable accommodation for tenant; (c)

whether the landlords existing business is more flourishing

than that which is proposed to be set up by him in the

leased premises and (d) need of self-employment of a son

or married or unmarried or widowed or divorced or judicially

separated daughter or daughter or a male lineal descendant

of the landlord who has completed his or her technical

education and who is not employed in government service.

12. In Ganga Devi this Court held that comparative

hardship indisputably is a relevant factor for determining the

question as to whether the requirement of the landlord is

bona fide or not within the meaning of the provisions of the

U.P. Act and the said Rules and it is essentially a question

of fact. This Court observed that Rule 16 provides for some

factors which are required to be taken into consideration.

This Court clarified that the court would not determine the

question only on the basis of sympathy or sentiment. This

Court referred to its judgment in Bhagwan Das v. Jiley

9

Ku mar 4 where it is observed that the outweighing

circumstance in favour of the landlord was that two of her

sons after completing their education were unemployed and

wanted to carry on business for self-employment. This

Court further observed that there was an additional

circumstance that the tenant had not brought on record any

material to indicate that at any time during the pendency of

this long drawn out litigation he had made any attempt to

seek an alternative accommodation and was unable to get it.

This Court also referred to its judgment in Rishi Kumar

Govil v. M aqsoodan 5 where it has particularly taken note

of the fact that the landlady had no other shop where she

can establish her son who is married and unemployed and

there was nothing on record to indicate that the business of

the father was huge or flourishing. This Court clarified that

the length of the period of tenancy as provided under clause

(a) of sub-rule (2) of Rule 16 of the said Rules is only one of

the factors to be taken into account in context with other

4 (1991) supp. (2) SCC 300

5 (2007) 4 SCC 465

10

facts and circumstances of the case and cannot be a sole

criterion or deciding factor to order or not the eviction. This

Court held that in the circumstances of the case the balance

tilted in favour of the unemployed son of the landlady whose

need is certainly bona fide. After quoting the above

judgment in Ganga Devi this Court gave six months time to

the landlady to handover the premises to the landlord in the

interest of justice.

13. In our opinion, Ganga Devi applies on all fours to the

present case. The first appellant carries on his business

from three small stalls of a shop of the Cantonment Council

whose rent keeps on increasing. There is nothing on record

to suggest that the appellants' present business is more

flourishing than the business which they propose to start in

the leased premises. All the three sons of the appellants are

educated but unemployed. They want to start business in

the premises in occupation of the respondent. One of them

is married and has three children. The other three are of a

marriageable age. In all there are thirteen members in the

11

appellants' family and they are living in three rooms and one

verandah with great difficulty. As against that the

respondent's family consists of four persons and there are

four rooms in his possession. It is observed by the courts

below that the appellants own other premises. However,

details of those premises are not on record. The High Court

has rightly noted that this bald assertion is based on

conjectures. It is well settled the landlord's requirement

need not be a dire necessity. The court cannot direct the

landlord to do a particular business or imagine that he

could profitably do a particular business rather than the

business he proposes to start. It was wrong on the part of

the District Court to hold that the appellants' case that their

sons want to start the general merchant business is a

pretence because they are dealing in eggs and it is not

uncommon for a Muslim family to do the business of non-

vegetarian food. It is for the landlord to decide which

business he wants to do. The Court cannot advise him.

Similarly, length of tenancy of the respondent in the

12

circumstances of the case ought not to have weighed with

the courts below.

14. We also find that the courts below were swayed by the

fact that the financial position of the appellants was better

than the respondent. The District Court has erroneously

gone on to observe that the appellants can buy another

building and start business. It has also observed that the

appellants had purchased the building to make profit. In

this connection we may usefully refer to the judgment of this

Court in Bhimanagouda Basanagouda Patil where the

District Judge decided the issue of comparative hardship in

favour of the tenant solely on the basis of affluence of the

parties. This Court observed that if this is the correct

approach then an affluent landlord can never get possession

of his premises even if he proves all his bona fide

requirements. This Court further observed that the fact that

a person has the capacity to purchase the property cannot

be the sole ground against him while deciding the question

of comparative hardship. If the purchase is pursuant to a

13

genuine need of the landlord the said purchase has to be

given due weightage unless, of course, the purchase is

actuated by collateral consideration. This Court rejected the

High Court's finding that the landlord had secured the

premises apparently in a game of speculation. Somewhat

similar observations are made in this case by the District

Court which in our opinion are totally unsubstantiated.

15. It is also important to note that there is nothing on

record to show that during the pendency of this litigation the

respondent made any genuine efforts to find out any

alternative accommodation. We specifically asked learned

counsel for the respondent to point out any evidence to

establish that the respondent made any such genuine

efforts. He was unable to answer this query satisfactorily.

16. In the ultimate analysis, we are of the view that the

perverse findings of the courts below on the aspect of

comparative hardship must be set aside. The High Court

has rightly found the need of the appellants to be bona fide.

14 It has however, fallen into an error in directing the

respondent to handover only one room to the appellants. In

our opinion, the hardship appellants would suffer by not

occupying their own premises would be far grater than the

hardship the respondent would suffer by having to move out

to another place. We are mindful of the fact that whenever

the tenant is asked to move out of the premises some

hardship is inherent. We have noted that the respondent is

in occupation of the premises for a long time. But in our

opinion, in the facts of this case that circumstance cannot be

the sole determinative factor. That hardship can be

mitigated by granting him longer period to move out of the

premises in his occupation so that in the meantime he can

make alternative arrangement.

17. In the view that we have taken, the appeal succeeds.

The impugned order is set aside to the extent it permits the

respondent to retain possession of three rooms out of four

rooms in his occupation. The respondent is directed to

15

handover possession of all the rooms in his occupation to

the appellants. He is granted six months time to vacate the

premises in question on the condition that he files usual

undertaking before the Registry of this Court within eight

weeks from today.

18. The appeal is disposed of in the aforesaid terms.

.....................................................J.

(AFTAB ALAM)

.....................................................J.

(RANJANA PRAKASH DESAI)

NEW DELHI,

JANUARY 05, 2012