1. Heard Sri M.K. Gupta, learned counsel for petitioner, Sri Manish Kumar Nigam, learned counsel for respondents and perused the record.
2. Petitioner is a landlord of disputed shop situated at Generalganj, Opposite Nagar Palika, Mathura. The shop was let out to respondent-tenant on a monthly rent of Rs 250/- which included House Tax etc. and rent was increased to Rs. 450/- per month. The shop came in the share of petitioner-landlord as a result of family settlement/partition. An application was filed in February, 1993 by petitioner as well as his parents; Sri Nathhi Lal, father and Smt. Ganga Devi, mother seeking release of disputed shop on the ground of personal need under Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972"). It is said that applicant no. 3 (present petitioner) is major and married. He is running his business in a rented shop but is not doing well and intends to settle business in his own shop i.e. disputed one.
3. Application was contested by respondent-tenant and besides other it said that petitioner, Anil Kumar, is not completely unemployed but he is doing business of candles and wax in a shop near Banke Bihari Temple and cannot be said to be unemployed.
4. Application was allowed by Prescribed Authority vide judgment dated 16.8.1996 directing respondent-tenant to vacate shop in dispute whereagainst he filed Appeal No. 104 of 1996 which has been allowed by Appellate Court vide impugned judgment dated 17.4.2002. Hence landlord is before this Court.
5. So far as dispute of ownership and relationship of landlord and tenant is concerned, both the Courts below have recorded findings in favour of petitioner and same is not disputed before this Court. The only question up for consideration is whether findings recorded by Appellate Court reversing judgment of Trial Court on the question of bona fide and genuity of personal need and comparative hardship can be sustained in law and do not suffer any illegality or material illegality.
6. It is not in dispute that except the shop in dispute, petitioner landlord does not own any other shop. Appellate Court has reversed Trial Court's finding on the ground of personal need by observing that petitioner-landlord failed to demonstrate that he is totally unemployed inasmuch he was employed in a shop No. 62 owned by one Ram Kumar and also running a business in Shop No. 63, Jawahar Ganj, Mathura of which an food licence was issued in the name of petitioner and this clearly shows that he was employed. From the above facts, Appellate Court came to the conclusion that petitioner's claim of personal need is neither genuine nor bona fide.
7. In my view, approach of Appellate Court is patently erroneous and suffers a material illegality. The very first issue is, can a landlord as a matter of right come to the Court for release of an accommodation owned by him on the ground of personal need even if he is running his business from a tenanted shop and would he not be justified in stressing his claim on the ground that he is entitled to run his business from his own shop instead of continuing to do business from a rented shop. The answer obviously would lie in favour of landlord. Where landlord himself is continuing in a rented accommodation, this fact itself is relevant to prove genuity of need of accommodation owned by landlord. (See: Jogendra Singh Bajaj (Dr.) and others Vs. 4th Addl. District Judge, Saharanpur and another 2005 (1) ARC 394).
8. In the present case, the attempt to survive himself on the part of petitioner-landlord is evident from the fact that despite owing a shop, he himself got employed in a shop owned by somebody else. This shows desperate need and compulsion on the part of landlord to do something to sustain himself and his family. Then further he started some business, even if it has been disputed by petitioner, but as held by Appellate Court, is taken to be correct, by commencing a business in food items in Shop No. 63, Jawahar Ganj, Mathura, but there also he was not in a position to run the business validly and was challaned by Food Officials. This only demonstrate die hard pressing need of petitioner-landlord to engage himself in one or other business/occupation so as to earn something to sustain himself and his family. However, this fact cannot detract from basic issue that landlord is entitled to ask for release of a shop owned by him on the ground that he wants to run and commence his business from his own shop instead of doing something from a rented shop. No landlord can be compelled by anyone including Court to continue his business or to reside in a rented accommodation and simultaneously allow a tenant to occupy his building. This approach on the part of Appellate Court itself is wholly erroneous, illegal, and, in my view, suffers patent error of law. Hence, the appellate order cannot sustain.
9. So far as the comparative hardship is concerned, Appellate Court itself has noticed that respondent no. 1 is a renowned medical practitioner having an elegant residential building in Krishnapuri. He was not suffering from any financial scarcity and there was nothing to show that he made any attempt to find out any alternative accommodation. Even if he may not be able to run his Clinic from residential accommodation, it was always open to him to seek another accommodation to run his medical practice, but that by itself would not detract factum of hardship lying in favour of landlord who has no other accommodation except the disputed one wherein he can start his own business instead of continuing to do something from a tenanted accommodation. The financial condition and compulsion led to respondent-landlord to seek employment and start other business goes to show a serious hardship in favour of landlord than tenant and the Appellate Court, in my view, has completely misled itself by discussing issues in a manner wholly erroneous and illegal. The Appellate Court has proceeded on presumption as if it was liability of landlord to make all out efforts to find out an alternative accommodation to run his business even by continuing to find out rented accommodation but he ought not to have claimed release of his own accommodation from the tenant. This approach on the part of Appellate Court is patently illegal, erroneous and cannot sustain. It is not open to anybody including Court to compel a landlord to arrange his own affairs in a particular manner. He cannot be compelled to live in a particular manner either by tenant or any other agency. Even the Court of law must not dictate such terms to a landlord to live an a particular manner and adjust his needs accordingly.
10. In Prativa Devi Vs. T.V. Krishnan (1996) 5 SCC 353, the Apex Court said that 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. Therein the Court considered the age of landlord and doubted his need on the ground that in such advanced age, he would be requiring somebody to take care and therefore should live with other family members instead of alone. The Apex Court observed that High Court is rather solicitous about the age of the appellant and thinks that because of her age she needs to be looked after. That is a lookout of landlord and not of High Court. The Apex Court disapproved the approach of High Court and observed:
"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."
11. Similarly, in R. C. Tamrakar Vs. Nidi Lekha AIR 2001 SC 3806 the Court in para 10 and 11 said:
"10. Law is well settled 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 residential requirement. In deciding the question of the bonafide requirement, it is unnecessary to make an endeavor as to how else landlord could have adjusted himself.
11. Though the son of the landlady is a doctor and has constructed his own house, the landlady wants to stay in the suit premises. It is not the case of the tenant that landlady has any other suitable accommodation. Therefore, the High Court rightly set aside the finding of the First Appellate Court holding that landlady could not be compelled to reside with her son as her case was that she wanted to stay by herself in the suit premises because of her health condition and the climatic condition of that place suit her."
12. The above referred authorities though, were in the context of residential accommodation, but the principle that the landlord is the master of arranging his own affairs applies not only in respect to his residential accommodation but also to the manner and method etc. of earning his livelihood for maintaining himself and family. Obviously it cannot be controlled by requiring him to continue to do business in a rented shop while allowing his own shop to be occupied by a tenant. Such insistence on the part of Appellate Court is clearly erroneous, illegal and, in my view, has resulted in miscarriage of justice to the landlord concerned.
13. In view of above discussion, I have no hesitation in my mind to hold that impugned appellate order cannot be sustained and deserves to be quashed.
14. In the result, writ petition is allowed. Appellate judgment and order dated 17.4.2002 (Annexure 5 to writ petition) is hereby quashed and judgment and order dated 16.8.1996 (Annexure 4 to writ petition) passed by Prescribed Authority is hereby restored and confirmed.
15. However, learned counsel for respondent-tenant contended that since respondent-tenant is running a Medical Clinic in premises in question and, therefore, may be granted some time which request has not been opposed by Sri M.K. Gupta, learned counsel for petitioner.
16. It is, therefore, provided that respondent-tenant, if files an affidavit within one month from today before the Trial Court containing an undertaking that he shall vacate the premises in question and hand over its vacant possession to the landlord respondent within six months from today, no steps for eviction of respondent-tenant from the premises in question shall be taken.
17. However, in case of any default, the above indulgence granted by this Court shall automatically cease and it would be open to landlord to approach the concerned authority for eviction of respondent-tenant immediately thereafter in accordance with law.
18. It is also provided that in case the respondent-tenant after filing affidavit, as aforesaid, and enjoying deferment of vacation of premise in question fail to comply with any of the conditions, as aforesaid, he shall be liable to pay for such non compliance of pious undertaking given to the Court an exemplary costs of Rs. 50,000/- which shall also be recovered from him alongwith execution proceedings, if such necessity arises.
Dt. 20.12.2012 PS