Heard Sri Umesh Chandra, learned Senior counsel assisted by Sri S.M.S. Royekwar, learned counsel for petitioner Sri Kabir Ahmad and Sri Anurag Srivastava, learned counsel for respondents and perused the record.
Owner/landlord Girish Dhan, owner-landlord of building No. 19, Gautam Budh Marg, P.S. Quiserbagh, Lucknow, bounded as under:-
East - Latouche Road/Gauam Budh Marg, Lucknow West - Qaisergabh Sabzimandi North - Amature building known as Hamid Estate Building South - Rasta of Qaisergagh Sabzi Mandi On 20.11.2011, landlord moved an application under Section 21(1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction Rules, 1972 in respect to first floor of the building comprising of one hall, two rooms, latrin, bathroom, kitchen and angan (hereinafter referred to as premises in dispute) under the tenancy of the petitioner on a monthly rent of Rs. 295/- on the ground that the landlord and his family members are residing in House No. 116/108, Ghasyari Mandi, P.S. Qaiserbagh, Lucknow, the ground floor of the house is occupied by different tenant and on the first floor of the aforesaid house, landlord/respondent No. 3 and his family members are residing. The accommodation available in the said house with the applicant/landlord comprising two rooms, Pooja Ghar, Baithak, Two stores, kitchen, angan, latrin and bathroom and the family of the applicant is as follows:-
(i) Applicant who is a business man in the city of Lucknow
(ii) Wife of applicant. She is a house wife.
(iii) Sri Navin Dhan Das gupta son of applicant. He is doing business with the applicant.
(iv) Wife of Sri Navin Dhan Das Gupta. She is a housewife.
(v) Km. Ananya Gupta aged about 6 years daughter of Sri Navin Dhan Das Gupta. She is a student of Christ Church College, Lucknow
(vi) Km. Bhavya Gupta aged bout 4 years daughter of Sri Navin Dhan Das Gupta
(vii) Sri Nitin Dhan Das Gupta son of applicant. He is doing business with the applicant.
(viii) Wife of Sri Nitin Dhan Das Gupta.
So the premises under the tenancy of the petitioner is needed because the relationship between the wife of Sri Nitin Dhan Das Gupta is not cordial, due to this reason, the peace in the family of the applicant is disturbed. As such, the applicant/landlord decided to shift Sri Nitin Dhan Das Gupta and his wife from house 116/108, Ghaayari Mandi, P.S. Qaiserbagh, Lucknow to House No. 19 Gautam Budh Marg, P.S. Qaiserbagh, Lucknow i.e. in the premises in question. Sri Nitin Dhan Das Gupta and his wife are ready to reside in the premises in question, argued to vacate their present residential accommodation just to maintain peace in the family of the applicant. As such, the need of the applicant for the premises in question is genuine, bona fide and pressing one.
Accordingly, P.A. Case No. 80 of 2011 (Girish Dhan Das Gupta Vs. Sri Dharmendar Singh Sonkar) has been registered before prescribed authority/Fist Additional Judge Small Causes Court, Lucknow/respondent No. 2.
On 10.11.2012, petitioner, tenant filed his written statement to which applicant filed his replication on 07.08.2012. Prescribed authority/Fist Additional Judge Small Causes Court, Lucknow by order dated 19.11.2012 allowed the release application moved by the landlord under Section 21(1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction Rules, 1972.
Aggrieved by the same, petitioner filed a Rent Appeal No. 1300079/2012 (Dharment Singh Sonkar Vs. Girish Dhan Das Gupta), by order dated 18.12.2015, appellate authority, dismissed the appeal.
Sri Umesh Chandra, learned senior counsel for petitioner while challenging the impugned orders dated 18.12.2015 and 19.11.2012 passed by respondent Nos. 1 & 2 submits that the need of the tenant is more genuine and bona fide in comparison to need of the landlord. In order to elaborate the said argument, he has placed reliance on the 4th proviso to Section 21(1)(a) of the U.P. Act No. 13 of 1972 which on reproduction reads as under:-
"that the building is bona fide required either in its existing form or after demolition and new constr4uction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purpose or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust;"
Accordingly, it is submitted by learned senior counsel for petitioner that while comparing the need and comparative hardship between the landlord and tenant, a duty is casted upon the authorities/court below to issue a commission as per provisions as provided under Sub-Section (c) of Section 34 of the U.P. Act No. 13 of 1972 and in the present case, no such exercise has been done in spite of the request made on behalf of the petitioner-tenant rather the application for local inspection moved by the petitioner for commission was rejected, so the finding given by the courts below that need of the landlord/respondent No. 3 is more genuine and pressing is without any material on record rather courts below have failed to appreciate that the petitioner's comparative hardship is much more greater and serious than the landlord/respondent No. 3. In supoort of the said argument reliance has been placed on the judgment given by the court in the case of Iqbal Ahmad Vs. Ram Varan Gara & another 2009 (1) ARC 713 and Sardar Amargit Singh and anotehr Vs. Civil Judge (Jr. Div.), Sultanpur and another, 2009 (1) ARC 528 Next argument advanced by learned counsel for petitioner is that the case as set up by the landlord in his release application is false and concocted one that the relationship between his two daughters-in-law is not cordial which disturb peace of the family, so he need to shift one son and his wife to the premises in question after getting it release as such on basis and on the basis of the same, the release application cannot be allowed.
Lastly, it has been argued by Sri Umesh Chandra, learned senior counsel for petitioner that the landlord who is residing at Ghasiyari Mandi which is a better locality in all respects in comparison to the present premises situated at Qaiserbagh then there is no justification and reason on his part to get the premises to get release. So, the impugned order passed by the courts below being contrary to law, liable to be set side.
Sri Kabir Ahmad, learned counsel for landlord/respondent No. 3 submits that in the present case once the courts below have given a finding that the need of the landlord is bona fide and genuine as set up by the landlord, it is not necessary for the prescribed authority/appellate authority to have converted to the circumstances of the tenant. In support of his argument he has placed reliance on the judgment given by this Court in the case of Ramesh Chanra Joshi and others Vs. Daulat Singh and others, 1982 ARC 674, relevant portion quoted hereinbelow:-
"Para 8 - While dealing with the point no. 1 the appellate court has specifically considered the requirement of the landlords for a residential accommodation at Haldwani. In doing so, it has also considered the problem which the tenant shall be faced with in the event of being evicted. He has pointedly considered the availability with the tenant of some accommodation at Haldwani itself. It is pertinent to note here that for determining the genuineness of the needs set up by the landlord it was not necessary for the appellate court to have adverted to the circumstances of the tenant. The appellate court has, however, while dealing with that point specifically addressed itself to the convenience of inconvenience which would be caused to the parties upon the decision of the application one way or the other. This discussion can be attributed only the fact that the appellate court was aware that there has to be a comparison of relative hardship even as regards the residential accommodation. The fact that the considerations of the relative hardship finds place under point no. 1 in so far as the residential portion of the building is concerned and not under point no. 2 is of little consequence. The judgment has to be read as a whole. I am not satisfied that the appellate court has failed in its duty."
He further submits that courts below have given a concurrent finding of fact that since the date of moving the release application the tenant had not made any genuine effort to search out alternate accommodation, so as per Rule 10(3) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, so the need of the tenant cannot be compared with the need of the landlord which is genuine. In support of his argument, he has placed reliance on the judgment in the case Smt. Bibi Begum Vs. Dr. Awadhesh Narain and others, 2009 (27) LCD 222, in paragraph No. 4 held as under:-
"I have gone through the judgment rendered by the prescribed authority as well as appellate authority. The appellate authority has failed to see the relevant provisions of U.P. Act XIII of 1972 and the Rules made thereunder. Right from Apex Court to this Court, the law is settled that on submission of a release application, the tenant must look for alternative accommodation/ residential premises. Even as per the latest rent laws, the goodwill of a shop keeper or businessman would not play any dominant role because the goodwill is like fragrance, which can travel any where, like flower's scent and the customers will go to the new location. This Court has dealt with this issue in Writ Petition No. 21 of 1999 (R/C). Bata Shoe Company and another v. VIIth Additional District Judge, Faizabad and others, which, as per learned Counsel for the petitioner, has been decided by the Apex Court."
Sri Kabir Ahmad, learned counsel for landlord/respondent No. 3 while rebutting the contention as raised on behalf of the tenant that the petitioner has got better accommodation at Ghasiyari Mandi, so he getting the accommodation in question release is total incorrect and wrong as the landlord is the best judge of his requirement in order live in a particular premises. In support of his argument, reliance has been placed on the judgment given by the Apex Court in the case of Rishi Kumar Govil Vs. Maqsoodan and others, 2007 (2) ARC 1) .
Accordingly, he submits that the present writ petition lacks merit and is dismissed.
After hearing learned counsel for parties and going through the record, the undisputed position which emerged out that in the present case the petitioner who is tenant of the premises in question which is described hereinabove, is required by the landlord for settling his one son and his wife in order to maintain cordial relationship in the family and on the basis of the said fact a release application has been moved.
Keeping in view the said facts and the provisions of Section 34(1)(g) and the Rule 22(f) of the Rules are concerned, the commission may be issued by the court, if it is not able to arrive at a just conclusion or where the court feels that there is some ambiguity in the evidence of the parties, which can be clarified by making local inspection or inspection through commission.
Local inspection or issue a commission by the court cannot be claimed as of right by any party. Such inspection are made to appreciate the evidence already on record and Court is not expected to visit the site for collecting evidence. (See:- Randhir Singh Sheoran Vs. 6th Additional District Judge, 1997 (2) JCLR 860, Radhey Shyam Vs. A.D.J., Court No. 13, Lucknow and others, {2010 (2) A.D.J., 758} and Sonpal Vs. 4th Additional District Judge, Aligarh and others, 1992 2 ARC, 596).
Further to go for local inspection or issue of commission for the proper disposal of the controversy pending is a sole prerogative of the Court to decide whether to move the same or not.
Accordingly, it is a sole domain of the Court to issue a commission or not and the local inspection or commission cannot be claimed as a matter of right by a party. And in the instant matter neither there is any dispute in respect to location of the premises for which release application is moved nor there is any dispute in regard to availability of the accommodation with the landlord and tenant and their family members (See. Krishna Mohan Mahrotra Vs. Additional District Judge Court No. 3, Lakhimpur & others, 2014 (4) ALJ 773). So, the argument in question has no force, rejected.
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 vide useful meaning rather struck on narrow.... and court should adopted practical meaning breach guided by the realistic of life.
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 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."
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"
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.
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. 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."
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."
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."
Keeping in view the abovesaid facts as well as facts of the present case that in the instant matter release application has been moved by the landlord on the ground that he wants that his one son should live separately in the accommodation which is under the tenancy of the petitioner in order to maintain peace in the family, is a good ground for moving release application in view of the law as laid down by this Court in the case of Pyare Lal Vs. XIIth Additional District Judge, Allahabad and others, 1990 (1) ARC 157, in paragraph No. 8 held as under:-
"As regards the first submission of learned Counsel for the Petitioner that the Additional District Judge has not considered the evidence on record while recording the finding on the question of comparative hardship I find no merit in this submission. The family of the landlady consists of herself, her husband, one married son with a daughter in-law, one unmarried son and one unmarried daughter. The total accommodation in the tenanted house of the landlord i.e. house No. 336, Katra is three rooms which, under the circumstances, has been held to be totally insufficient to accommodate the family members of the landlady. Moreover, strained relations between the mother-in-law and daughter-in-law necessitating the need to provide a separate accommodation for the daughter-in-law in order to keep mental peace in the family has been held by this Court to be a sufficient need justifying the release of the independent accommodation for the daughter-in-law. Further it is undisputed that the Petitioner has already been evicted from the disputed premises in the year 1986 in pursuance of a decree of arrears of rent and ejectment and in the earlier writ petition No. 19976 of 1987, Savitri Devi v. IXth Addl. District Judge, Allahabad, the address of the Petitioner was given as l/l Katra Road, Madhav Kunj Allahabad City and while filing the counter affidavit the Petitioner appears to have not raised any objection to it. It is also contended by learned Counsel for the Respondent that the Petitioner in fact lives with his family members in house No. l/l Old Katra, Allahabad and is doing business of Kerosene oil and license to sell Kerosene oil has also been granted on his address 1/1 Old Katra Allahabad. Hence the Additional District Judge on consideration of evidence held that the Petitioner having been evicted as far back as 1986 had already arranged an accommodation. It is not in dispute that house No. 336 Old Katra in which the landlord is living as a tenant, has been purchased by Salig Ram who is trying to eject the landlady Savitri Devi Respondent No. 3 to this writ petition, in proceedings under Section 21(1)(a) of the Act. Thus after considering the evidence on record, and applying his mind to the same the Additional District Judge Respondent No. 1 in my opinion rightly held that in the circumstances of this case the landlady Respondent No. 3 Smt Savitri Devi would be put to greater hardship if her release application is not allowed. Thus the finding on the question of bonafide need and comparative hardship has been arrived at on consideration of the evidence on record and hence it cannot be interfered with under Article 226 of the Constitution. In the case of Baga Bagum v. Abdul Ahad Khan: AIR 1979 SC 272, the Supreme Court observed that it is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed but such an event would happen whenever a decree for eviction is passed and this by itself would not be a valid ground for refusing decree for eviction."
In the present case, courts below have given categorical finding of fact that the tenant did not make any effort 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.
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."
In the case of Salim Khan V. IVth Additional District Judge, Jhansi and others , 2006(1) ARC 588 has held the In respect of comparative hardship, tenant did not show what efforts they made to search alternative accommodation after filing of release application. This case sufficient to tilt the balance of hardship against them Vide Bhutada V. G.R. Mundada 2003 Supreme Court 2713; 2005(2) ARC 899. Moreover, rent of Rs. 6/- per month which the tenants are paying is virtually as well as actually no rent. By paying such insignificant rent they must have saved a lot of money. Money saved is money earned. They must, therefore, be in a position to take another house on good rent. Further, they did not file any allotment application for allotment of another house. Under Rule 10(3) of the Rules framed under the Act, a tenant, against whom release application has been filed, is entitled to apply for allotment of another house immediately. Naturally such person is to be given preference in the matter of allotment. Respondents did not file any such allotment application. Thus, the question of comparative hardship has also to be decided against the tenants. (See. also Raj Kumar Vs. Lal Khan, 2009 (2) ARC 740 and Ashis Sonar and other Vs. Prescribed Authority and others 2009 (3) ARC 269.) 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. 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."
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."
In the instant case as stated above, the appellate court had held that the tenant has not made any effort 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, rejected.
Next argument raised by learned counsel for petitioner that the landlord who is residing at Ghasiyari Mandi is a better locality in comparison to the premises which is under the tenancy of the petitioner-tenant, so the application is liable to be rejected has got no force because as per settled position of law, the landlord is the best judge to chose the place place where he wants to live (See. Rishi Kumar Govil Vs. Maqsoodan and others, 2007 (2) ARC 1, Raghvendra Kumar Vs. Firm Prem Machinery and Co., AIR 2000 SC 534 : SCFBRC 24),.
Lastly, in the instant matter, both the courts below have given a concurrent finding of fact that the need of the landlord is more genuine and bona fide, so the said finding of fact cannot be interfered while exercising the power of judicial review under Article 226 of the Constitution of India (See. Neeraj Rohtagi Vs. Smt. Uma Kejariwal, 2011 (1) ARC 350).
For the foregoing reasons, the writ petition lacks merit and is dismissed.
Order Date :- 12/Feb./2016 Ravi/