JUDGMENT Dilip Gupta, J.
1. The landlord has sought the quashing of the judgment dated 22nd November, 2005 by which the Appeal filed by the tenant under Section 22 of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as the "Act") has been allowed and the order dated 11th October, 2000 passed by the Prescribed Authority for eviction of the tenant from the premises in dispute has been set aside.
2. The landlord filed an application under Section 21(1)(a) of the Act for eviction of the tenant from shop No. 75 situated in Gusainpura Chowk Jhansi on the ground that the building was bona fide required by the landlord. It was inter alia stated that the applicant was the owner and landlord of the shop which had been taken on rent by the husband of opposite party No. 1 Smt. Bharti Devi for doing cloth business but after his death his son is doing business of selling milk from the shop; that the applicant had completed 34 years of age and had obtained a Diploma in Electronics from Government Polytechnic Jhansi, but could not succeed in getting a job; that the applicant was unemployed and there was no hope of getting any service as he had become overage; that the applicant does not have any source of income and wanted to establish Television business from the disputed shop; that the opposite parties did not need the shop at all since they have in their possession other shops from where they were doing business.
3. A written statement was filed by the opposite parties. It was stated that the need of the applicant was not bona fide. It was also asserted that the contention of the applicant that he was unemployed and had no source of income was incorrect; that the shop in dispute was taken on rent in the year 1981 by Ramesh Chandra, husband of opposite party No. 1 Smt. Bharti Devi, for doing cloth business which business is being carried out even after the death of Ramesh Chandra on 10th March, 1995; that the opposite parties do not have any other shop except the disputed shop; that the applicant was not unemployed but was doing business of readymade garments from shop No. 76 which was adjacent to the disputed shop.
4. The Prescribed Authority allowed the application by the order dated 11th October, 2000 and the opposite parties were directed to vacate the tenanted shop within a period of two months. Compensation equivalent to two years rent was, however, awarded to the tenant. In order to determine whether the shop was bona fide required by the applicant, the Prescribed Authority examined the objection raised by the tenant that the applicant was doing business from the adjacent shop No. 76 and in this connection the report submitted by the Amin along with the map was considered by the Prescribed Authority. The report mentions that the premises was infact a gallery measuring 3 feet 2 inches in width and 18 feet in depth and it also contains a staircase for going to the first floor. The report further mentions that the said gallery contains five show-windows without glasses and these show windows which have 5 inches depth have been fixed in the wall. The report also mentions that tube-lights have also been fitted in the gallery and there are hooks and hangers also and a small counter which also displays a rate list. The Prescribed Authority, therefore, concluded that the applicant was doing a small business of selling readymade garments from the said gallery and the applicant was not totally unemployed as was stated by him in the application. The Prescribed Authority then proceeded to examine whether the need of the applicant was genuine and bona fide even if he was doing the aforesaid business from the gallery. It noticed that the applicant was holder of Diploma in Electronics and that the applicant required the shop for setting up business of television. The gallery from where the applicant was doing the business of readymade garments was just 3 feet 2 inches wide and it also contained a staircase for going to the first floor. It, therefore, found that this place was not suitable for doing the business of Television. The Prescribed Authority also observed that because of the absence of any shop for carrying out the business of selling Television, the applicant had engaged himself in selling readymade garments from the gallery and, therefore, it cannot be said that he did not bona fide require the disputed shop. Thus, the need of the applicant was found to be genuine and bona fide. The Prescribed Authority then examined whether the applicant was likely to suffer greater hardship in the event the release application was rejected. The Prescribed Authority found that the applicant who was a Diploma holder in Electronics had no other place to establish the Television business and the existing gallery was not suitable for doing this business. The Prescribed Authority also examined the contention of the applicant that the tenant had available many other shops from where he could carry his the business. It, however, found that the business was carried out by other members of the family and there was no vacant shop available from where the tenant could carry his business. However, the Prescribed Authority found out that the financial position of the tenant was very good and his family had many shops from where they were doing their business. Thus, on the one hand the applicant had only a small gallery from where he was doing the small business of selling readymade garments and his financial status was not so good to enable him to obtain another shop from where he could establish his business of selling television but on the other hand the tenant had the financial status to obtain another shop for doing his business. The Prescribed Authority further observed that the application was pending since 1997 but no efforts had been made by the tenant to look for an alternative accommodation. Taking into consideration all these factors, the Prescribed Authority recorded a finding that the landlord was likely to suffer greater hardship in the event the release application was rejected.
5. The tenant filed an Appeal under Section 22 of the Act for setting aside the aforesaid order of the Prescribed Authority. It was contended on behalf of the tenant that the Prescribed Authority had carved out a new case for the applicant by holding that the gallery was not suitable for the purposes of selling Television because this was not the case set up by the applicant in the application filed under Section 21(1)(a) of the Act. The Appellate Court accepted the aforesaid contention of the tenant since it found that the case that had been set up by the applicant in the release application was that he was unemployed and needed the disputed shop to run the Television business and it was not the case set up by him that he was doing the business of readymade garments from the gallery and this place was not suitable for him for starting the Television business which he wanted to start since he was a Diploma holder in Electronics. The Appellate Court also rejected the contention advanced by the landlord that in fact he was not doing business of selling readymade garments from the gallery. It, therefore, held that the disputed shop was not bona fide required by the applicant. The Appeal was allowed and the application filed by the landlord was rejected.
6. Learned Counsel for the petitioner submitted that the Appellate Court committed an illegality in allowing the Appeal as the disputed shop was bona fide required by the applicant for establishing the Television business and the finding to the contrary recorded by the Appellate Court that the shop was not bona fide required since he was already doing business of selling readymade garments from the gallery was liable to be set aside.
7. Sri Ravi Kiran Jain learned Senior Counsel for the respondent-tenant, however, submitted that there was no infirmity in the impugned order as it was not the case taken up by the landlord in the release application that though he was doing business of selling readymade garments from the adjacent shop but still he bona fide required the disputed shop for doing the business of Television which business he could not do from the shop in his possession.
8. It has, therefore, to be determined whether the need of the applicant to obtain the disputed shop was bona fide.
9. However, before adverting to the facts of this case it would be necessary to refer to the decision of the Supreme Court in Siddalingamma and Anr. v. Mamtha Shenoy wherein it has been observed that some sympathy has to be shown to the landlord when an application is moved for eviction on ground of bona fide requirements:
Rent Control Legislation generally leans in favour of tenant, it is only the provision for seeking eviction of the tenant on the ground of bona fide requirement of landlord for his own occupation or use of the tenanted accommodation which treats the landlord with some sympathy. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta this Court has held that a bona fide requirement must be an outcome of a sincere, honest desire in contra-distinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts, by placing himself in the place of the landlord is, whether in the given facts proved by material on record 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 concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life....
10. It is in the light of the aforesaid provisions that the facts of this case have to be examined.
11. It is not in dispute that the applicant-landlord had obtained a Diploma in Electronics Engineering from the U.P. Board of Technical Education, Jhansi in the year 1985. In the application he stated that he wanted to set up the business of Television since he was a specialist in this field. The Appellate Court has held that the applicant did not bona fide require the disputed shop since he had not taken any case in the application filed by him that the existing place from where he was doing his business was not suitable for Television business.
12. The Prescribed Authority, after carefully analyzing the inspection report and the map submitted by the Amin, had recorded a categorical finding of fact that it was just not possible to establish the business of Television from the gallery in possession of the landlord. This inspection was carried out on the basis of the application moved by the tenant. The inspection report indicates that a staircase is situated in this gallery and that the only way to go to the first floor is by taking the staircase situated in this gallery. The width of the gallery is only 3 feet 2 inches and its depth is 18 feet. The width of the staircase is 2 feet 9 inches and, therefore, only about 5 inches width would be left from where the staircase starts. The report also indicates that there is two feet space beneath the staircase. Thus, in effect the measurements of the gallery would only be 3 feet 2 inches x 16 feet. It is from this space that the landlord is doing his business of selling readymade garments and this area has also to be utilized by the persons going to the first floor from the staircase. The case set up by the tenant is that the business relating to Television can be established from this gallery. This contention cannot be accepted as there can be no doubt that business relating to Television cannot just be set up from the space available in the gallery and that too when some portion of this has also be used for the purposes of taking the staircase to go to the first floor. It is for this reason that the Prescribed Authority had recorded a clear finding that business relating to Television cannot be carried out from the gallery in possession of the landlord. The Appellate Court has reversed this finding only on the plea that the landlord in the application filed under Section 21(1)(a) of the Act had not mentioned this fact. The Appellate Court should have considered whether it was possible to carry on any business relating to Television from the existing accommodation available with the landlord when the Prescribed Authority had recorded this finding and the report of the Amin and the map was available on the record. It is, therefore, a case where the applicant who is a Diploma holder in Electronics and a specialist in Television is being compelled to carry on a temporary business of selling readymade garments from the small gallery which also contains the staircase for going to the first floor, merely because he does not have available with him a shop for carrying out the said business. The report submitted by the Amin also gives the dimensions of the disputed shop. The western width of the shop is 13 feet while the eastern width of the shop is about 15 feet 6 inches and the depth is about 40 feet.
13. This Court in Shrimati Shakuntala Devi Rathod v. Smt. Raj Kumari and Ors. 2008 (2) ADJ 189 while considering whether any business can be done in a gallery measuring 3 feet observed as follows:
As far as the small shops situated in the gallery of 3-4 feet towards south and west of the shop in dispute are concerned, the tenant himself refused the offer of the landlady in respect of these shops. No proper business may be run from a shop situate in 2.5-3 feet wide gallery. Availability of less suitable accommodation is no ground to reject the release application for more suitable accommodation vide C. Persad (dead through L.Rs.) and Ors. v. U.K. Verma and Ors. .
14. This apart, the Supreme Court has held that it is for the landlord to choose the place where he wants to do business or reside. In this connection reference may be made to Sarla Ahuja v. United Insurance Co. wherein 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 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 bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.
15. The Supreme Court in Ragavendra Kumar v. Firm Prem Machinary and Co. also observed:
...It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter....
16. The Supreme Court in Akhileshwar Kumar and Ors. v. Mustaqim and Ors. observed that once it has been proved by a landlord that the suit accommodation is required bona fide by him then choosing of the accommodation which cannot be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. In this connection it observed as follows:
So is the case with the availability of alternative accommodation, as opined by the High Court. There is a shop in respect of which a suit for eviction was filed to satisfy the need of plaintiff No. 2. The suit was compromised and the shop was got vacated. The shop is meant for the business of plaintiff No. 2. There is yet another shop constructed by the father of the plaintiffs which is situated over a septic tank but the same is almost inaccessible inasmuch as there is a deep ditch in front of the shop and that is why it is lying vacant and unutilized. Once it has been proved by a landlord that the suit accommodation is required bona fide by him for his own purpose and such satisfaction withstands the test of objective assessment by the Court of facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. The Court cannot thrust upon its own choice on the needy. Of course, the choice has to be exercised reasonably and not whimsically. The alternative accommodation which have prevailed with the High Court are either not available to the plaintiff No. 1 or not suitable in all respects as the suit accommodation is. The approach of the High Court that an accommodation got vacated to satisfy the need of plaintiff No. 2, who too is an educated unemployed should be diverted or can be considered as relevant alternative accommodation to satisfy the requirement of plaintiff No. 1, another educated unemployed brother, cannot be countenanced. So also considering a shop situated over a septic tank and inaccessible on account of a ditch in front of the shop and hence lying vacant cannot be considered a suitable alternative to the suit shop which is situated in a marketing complex, is easily accessible and has been purchased by the plaintiffs to satisfy the felt need of one of them.
17. In Dhannalal v. Kalawatibai and Ors. , the Supreme Court observed:
...Another alternative accommodation pointed out by the tenant is the one situated on the first floor of the building. It has come in the evidence that the second floor of the building is used for residence of the landlords while the first floor is used partly as a godown and partly for stitching the clothes which are sold as readymade garments in the shop of respondent No. 3. To amount to an alternate non-residential accommodation so as to defeat the requirement of the landlord for the suit premises, it should be reasonably suitable non-residential accommodation. It should be suitable in all respects as the suit accommodation is. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta this Court has held that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. The availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. The bona fides of the need of the landlord for the premises or additional premises have to be determined by the Court by applying objective standards and once the Court is satisfied of such bona fides then in the matter of choosing out of more accommodations than one available to the landlord, his subjective choice shall be respected by the Court. For the business, which the respondents No. 2 and 3 propose to start or continue respectively, an accommodation situated on the first floor cannot be said to be an alternative suitable accommodation in comparison with the shops situated on the ground floor. A shop on the first floor cannot attract the same number of customers and earn the same business as a shop situated on the ground floor would do.
18. Thus, the Appellate Court committed an illegality in reversing the finding arrived at by the Prescribed Authority regarding the bona fide need of the landlord for release of the shop in order to establish his Television business.
19. The Prescribed Authority had recorded a categorical finding that the landlord would suffer greater hardship in the event the release application was rejected. It found that not only the tenant had not made any effort to get an alternative shop during the pendency of the application but the tenant was also financially well placed and could find an alternative accommodation for carrying out his business.
20. This Court in Faiyaz Khan v. 2nd Additional District Judge, Jhansi and Ors. 2006 (24) LCD 929, observed that 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. It was observed:
Concept of comparative hardship can not be stretched to the extent of depriving the landlord of his property even if landlord is in real and imminent need. It has been brought on record that in adjoining town Dr. 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 filing of the release application. As held by the Supreme Court in B.C. Bhutada v. G.R. Mundada , this by itself was sufficient to tilt the balance of hardship against the tenant.
21. The Supreme Court in B.C. Bhutada v. G.R. Mundada also observed that if the tenant did not show that he had made any effort to search an alternative accommodation after filing of the release application then this would itself be sufficient to tilt the balance of hardship against the tenant.
22. There is, therefore, no infirmity in the finding recorded by the Prescribed Authority regarding comparative hardship.
23. Thus, for all the reasons stated above, the writ petition succeeds and is allowed. The judgment dated 22nd November, 2005 passed by the Appellate Court is set aside and the order passed by the Prescribed Authority is restored. There shall be no order as to costs.
24. After the judgment was delivered, learned Counsel for the respondent-tenant states that four months' time may be given to the respondents to vacate the disputed premises.
The respondents shall not be ejected from the premises in dispute for a period of four months from today provided the respondents gives the following undertaking before the Court below within three weeks from today.
1. That the respondents shall pay damages at the rate of Rs. 1500/- per month beginning from March, 2008 up to the date he hands-over the possession of the shop to the landlord.
2. That the respondents shall not induct any other person in the shop.
3. That the respondents shall handover peaceful possession of the shop to the landlord on or before the expiry of four months.
25. It is made clear that in the event the respondents fails to give the undertaking within the aforesaid period or fails to comply with any of the terms of the undertaking, then in that case, it will be open to the landlord to get the decree executed.