Matter is taken in revised cause list.
None appeared on behalf of the respondents.
Heard Sri Mohd. Aslam Khan, learned counsel for the petitioner.
By means of present writ petition, petitioner has challenged the order dated 17.10.1996 passed by opposite party no.1/ District Judge, Gonda in Misc. Rent Appeal no. 1 of 1996 ( Shahid Khan alias Jugun Khan and another Vs. Abdul Hasan and others).
Controversy in the present case relates to a shop situate in the ground floor of the house in mohalla Rakabganj, Gonda city.On 4.12.1992, Sri Abdul Hasan and Sri Qamrul Hasan alongwith Mustafa Hasan, Sri Shamshul Hasan sons of Sri Murtaza Hasan, landlords/ owners of the shop moved an application under Section 21(1) (a) of the U.P. Urban Buildings( Regulation of Letting , Rent and Eviction) Act no. XIII of 1972 (hereinafter referred to as an 'Act') for release under the tenancy of Mohammad Saeed Khan , father of opposite parties no. 2 and 3 on the ground that they required the same for extension of class room for their school running in the name and style of 'Hasan Fatima School', imparting education from class KG to V, registered under Societies Registrations Act.
Accordingly , P.A. Case no. 15 of 1992 ( Abdul Hasan and others Vs. Sheed Khan and others) registered before the Prescribed Authority/ Civil Judge ( Senior Division), Gonda. Sri Sheed Khan and Raees Ahmad Khan, tenant filed their written statement inter alia denying the need of the landlord as set up in application for release . On the basis of pleadings, the prescribed authority had framed the following issues:-
(1)Whether the need of the petitioners is genuine and bona fide?
(2)Whether on comparison the need of the petitioners is preferable?
Thereafter by means of order dated 22.1.1996 the prescribed authority allowed the release application. Tenants filed Rent Appeal under Section 22 of the Act (Misc. Rent Appeal no. 1 of 1996), allowed by order dated 17.10.1996, order passed by prescribed authority set aside, the application for release moved by the landlord rejected. Hence the present writ petition has been filed.
During the pendency of writ petition Abdul Hasan died and in his place his legal heirs Smt. Anwar Fatma and Smr. Sara Ali Hasan has been substituted.
Mohd Aslam Khan learned counsel for the petitioner while challenging the impugned order dated 17.10.1996 passed by appellate authority submits that the same is contrary to the facts on record, passed on sole consideration that opposite parties no. 2 and 3/ tenants have no other alternative accommodation in the city of Gonda, ignoring the fact that they have not made any effort in searching alternate accommodation from the date of moving application for release, so the said finding given by appellate court is perverse in nature cannot sustain.
Learned counsel for the petitioner further submits that once it is admitted that they are running a school and for extension of classroom, release application moved so the finding given by the appellate court, school imparting education upto class V could very well be accommodated even in two rooms is perverse and contrary to record because neither the court nor the tenant can dictate the term that in what manner and circumstances school is to be managed by landlord. Accordingly , the order passed by the appellate court liable to be set aside.
As stated above , the matter is taken in revised cause list . None appeared on behalf of the respondents to press the matter.
So after hearing the learned counsel for the petitioner and going through the record it transpires that the appellate court had allowed the appeal of the tenants/ respondents on the following points which are summarized as under:-
(1) The school imparting education upto V class could very well be accommodated even in two rooms and it was only the strength of the taughts and teachers which could show that more accommodation then that was needed. So the need of the landlord to get the shop converted into class room is neither genuine nor bona fide.
(2) The tenants have no other alternate accommodation in the city to run their business of cycle and rickshaw repairs conveniently and the shop in question from which they are doing their business is the only source of livelihood so the need of tenants are more genuine and bona fide in comparison to the need of landlords.
(3) Landlord failed to prove that tenant had any alternative accommodation at their disposal form which they can run their business of cycle and rickshaw repairs conveniently and the shop is only source of livelihood. On the contrary, landlords had neither tried to prove the income which they were earning from the school nor had shown the requirement of the disputed shop for the purposes of the school to be genuine and bone fide. It is also not clear as to how the disputed shop could be a fit and proper accommodation simply assertion that same required for classrooms is not sufficient.
So far as the findings given by the appellate court while allowing appeal that it is not disputed by tenant that landlord is running a school imparting education from KG to V Class but they could accommodate the students even in two rooms available to them, as such the need of the shop in question under the tenancy to get the same by evicting tenant for their need to get extra class room is totally incorrect and wrong cannot sustain because it is settled proposition of law that the land lord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter tenant cannot dictate to the landlord how he should adjust without getting possession of the tenanted premises.
In Sarla Ahuja Vs. United India Insurance Co. Ltd. AIR 1999 SC 100, the Supreme Court observed :
".........When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by the Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises . While deciding the question of bone fides of the requirement of the landlord it is quite unnecessary to make an endeavor as to how else the landlord could have adjusted himself"
The Supreme Court in Ragavendra Kumar Vs. Firms Prem Machinery and Co., AIR 2000 SC 534 also observed:
"........It is settled proposition of law that the land lord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter."
Next findings given by appellate court while setting aside order passed by the prescribed authority that there is nothing on record to show the tenants had any alternative accommodation to run the business of cycle and rickshaw repairs conveniently, is also unsustainable keeping in view that if the release application is moved under Section 21(1) (a) of the Act, allowed , no doubt the tenant will suffer if he evicted from the shop but it cannot be a ground not to evict him from the shop in question, the same is also no intention of the legislature as per Rule 16(1) (b) of the Rules.
The findings given by the appellate court that the tenants have no other alternative accommodation from which they can operate their business of cycle and rickshaw repairs only source of their livelihood if evicted will suffer loss shift the balance of convenience in favour of the tenant as petitioners/landlords had neither tried to prove their income which they were earning from the school nor had shown the requirement of the disputed shop for the purpose of school to be genuine and bona fide, also is incorrect and wrong findings. As from the material on record it is not disputed that the petitioners/ landlords are running a school in the name and style of Hasan Fatima School imparting education upto class V and the strength of students studying therein are increasing day by day then the need of the petitioners/ landlord will be bona fide and genuine to get the shop in question evicted the house an extra classroom coupled with the fact that the tenant has not made any effort to search out the accommodation since the date of moving of application for release so the need of the tenant could not be considered and compared with the need of the landlord, findings given by appellate court in this regard are perverse, contrary to record, liable to be set aside because if the the tenant has not made any effort to search accommodation during pendency of application for release under Section 21(1) (a) of the Act, balance of hardship will tilt against him as per law laid down in the case of Faiyaz Khan Vs. 2nd Additional District Judge, Jhansi and others, 2006 (24) LCD 929 which is as under:-
" Concept of comparative hardship cannot be stretched to the extent of depriving the landlord of his property even if landlord is in real and imminent need. Amin was having a clinic even though he asserted that he attended that only off and on . In any case tenant did not show that he made any efforts to search alternative accommodation after filling of the release application . As held by the Supreme Court in B.C. Bhutada V. G.R. Mundada, AIR 2003 SC 2713, this by itself was sufficient to tilt the balance of hardship against the tenant ."
Same view again reiterated by this Court in the case of Harish Bhatia Vs. Johra Begum, 2008 (2) Allahabad Rent Cases,30 .
In the case of Rani Devi Jain Vs. Badloo and another , 2008 (3) ARC 351 this Court has held that when the release application has been rejected by the court below and High Court in writ jurisdiction finds the judgment to be erroneous in law, it is not always necessary to remand the matter. Ultimate relief can be granted to the landlady in the writ petition itself vide AIR 2002 SC200: 2001(2) ARC 603:2001 SCFBRC 541, G.C. Kapoor V. N.K. Bhasin and Ram Kumar Barnwal V. Ram Lakhan, 2007 AIR SCW 3250:2007 SCFBRC 346: 2007(2)ARC577. In the first authority release application rejected by the prescribed authority , Appellate Court and High Court was finally allowed by the Supreme Court. In the second authority a judgment of the High Court was reversed through which writ petition of the landlord directed against concurrent judgment against him was dismissed by observing that fresh release application could be filed by the landlord. Supreme Court held that High Court should have finally decided the matter and remanded the case to the High Court for the said purpose.
Accordingly the writ petition is allowed . The order passed by the appellate court in Misc. Rent Appeal no. 1 of 1996 ( Shahid Khan and another Vs. Abdul Hasan and others) is set aside, order dated 22.1.1996 passed by the prescribed authority / Civil Judge(Senior Division) Gonda restored. Tenants-respondents are granted six months time i.e. up-till 31st August, 2011 to vacate the shop , shall give peaceful possession to the landlord provided that within one month from today tenant file an undertaking before the prescribed authority that on or before the expiry of aforesaid period of six months i.e. till 31st August, 2011 they will willingly vacate and handover the possession of the shop in dispute to the landlords.
For the aforesaid period i.e. till 31st August, 2011 which has been granted to the tenants to vacate , they are required to pay rent/damages for the use of occupation on or before 7th of each month failing which the petitioner will be at liberty to take appropriate steps for eviction of shop in dispute.
With the above observations, the writ petition is allowed.
No order as to costs.
Order Date :- 24.2.2011 dk/