Heard Sri Mohd. Arif Khan, learned senior counsel assisted by Mohd. Adil Khan, learned counsel for petitioner, Sri Aftab Alam, learned counsel for respondent/landlord and perused the record.
Facts in brief of the present case are that Sri Mohd. Sohail-landlord moved an application under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U.P. Act No. 13 of 1972 (hereinafter referred to as the 'Act') for release of the premises under the tenancy of the petitioner/Mohd. Iliyas which is portion of house No. 165/1, Maulviganj, Hata Khan Faquir Mohammad, P.S. Aminabad, District Lucknow comprises of one room in the ground floor on a monthly rent of Rs. 250/-.
Need as set up by the landlord in his release application under Section 21(1)(a) of the Act is that he wants to set up an independent business for his son from the shop under the tenancy of the petitioner. On behalf of tenant a written statement has been filed through his wife as at the relevant time he was in Saudi Arabia and from the shop in question electric repair work was carried on under the supervision of his wife with the help of other electricians.
By an order dated 06.10.2014, the prescribed authority allowed the PA Case No. 40 of 1997, challenged by the petitioner by filing an appeal under Section 22 of the Act 13 of 1973, allowed by order dated 20.07.2005.
Order 20.07.2005, passed by appellate authority was challenged by landlord/Mohd. Sohail by filing Writ Petition No. 132 (R/C) of 2005, allowed by order 04.08.2006, relevant portion quoted as under:-
"16. Thus, the entire approach of opposite party No. 1 in allowing the appeal preferred by opposite party No. 2 is manifestly erroneous and cannot be allowed to be sustained. The opposite party No. 1 fell in grave error in not considering the need of the landlord on the date when the application under section 21(1)(a) of the Act, was made. It further committed an error in not considering the question of comparative hardship in its right perspective. It failed to appreciated likely hardship which may occasion to the landlord from the refusal of the application as against likely hardship to the tenant from the grant of the application when at the relevant time opposite party No. 2 was not in India and was himself not doing any business activity in the shop in question. While considering the question of comparative hardship the opposite party No. 1 also did not have regard to the factors to be taken into account as enumerated under Rule 16 of the rules framed under the Act.
17. In the circumstances, the writ petition succeeds and is allowed with costs. The judgment and order passed by the Appellate Court is here by set aside. Opposite party No. 1 is directed to restore the appeal and decided afresh the question of need of the landlord as well as comparative hardship in the light of the observations made hereinabove keeping in mind principles laid down by the Apex Court as well as by this Court referred to hereinabove."
Accordingly, the matter has come up for consideration before the appellate authority and the rent appeal of tenant was dismissed on 19.11.2008.
Mohd. Arif Khan, learned Senior counsel for petitioner while challenging the impugned order submits that in the present case during the pendency of litigation, two shops have fallen vacant which have come to the possession of the landlord. In this regard, he has placed reliance on paragraph No. 10 of the writ petition, accordingly, he submits that one of the shop which has been fallen vacant was earlier occupied by Sri Dularey Mirza and other by Ghasitey Jamadar, so keeping in view the said facts there is no bona fide need of the landlord in order to estabhlish the said facts, a prayer has been made on behalf of the petitioner for issuance of the commission but the same has been rejected by the court below, so the action on the part of court below rejecting the petitioner's application for issuance of the commission is contrary to the provisions as provided under Section 34 (1)(f) of the Act.
Another argument advanced by learned counsel for petitioner that when the two shops that have been fallen vacant and the landlord got the possession of the same then the petitioner has given an offer to him to give one of the shop to him in order to carry out business which he is carrying from the shop in question, In support of his argument, he has placed reliance on Rule 16(1) (f) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as the Rules).
Lastly it has been argued by Sri Mohd. Arif Khan, learned senior counsel for petitioner that in the present case both the courts below failed to compare the bona fide need and comparative hardship between landlord and tenant, if the said exercise is done then the only conclusion which will come out is that the need of the tenant is genuine in comparison to the landlord to run his business in order to earn livelihood. So, the impugned orders passed by prescribed authority as well as appellate court, liable to be set aside.
Sri Aftab Alam, learned counsel appearing on behalf of landlord while defending the impugned judgments submits that in the present case, the application moved by the tenant under Section 34 of the Act for issue of the commission has been rejected by the appellate authority by an order dated 05.09.2008. In this regard, it is further submitted by landlord that keeping in view the provisions as provided under Sub-Section (f) of Section 34 of the Act that it is a sole domain and progrative of the authority concerned to issue a commission and tenant in no manner can compel a court to issue commission. As such, the argument raised by learned counsel for petitioner-tenant that as the court below has not considered the petitioner's case for issue of commission is contrary to the facts on record as well as the law, liable to be rejected.
Learned counsel for landlord further while rebutting the argument as raised by learned counsel for petitioner-tenant in regard to the fact that the shop which has come to the possession of the landlord during the pendency of the litigation to be given by way of offer in order to run business is contrary to the provisions as provided under Rule 16(1)(f) of the Rules, submits that in the present case as the petitioner-tenant has not made any search for alternate accommodation during the pendency of the litigation, so as per the settled position of law as laid down by Hon'ble the Apex Court in the case of B.C. Bhutada Vs.G.R. Mundada, AIR 2003 SC 2713, the comparative need of the tenant cannot be considered, writ petition is liable to be dismissed.
I have heard learned counsel for parties and gone through the record.
So far as the argument advanced by learned counsel for petitioner that while assailing the impugned order that the courts below have not considered the request of the petitioner for issue of commission as per the provisions as provided under Sub-Section (c) of Section 34 of the Act in order to assess the need between the parties has got no force because as far as the provision 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 a matter 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.
It is not mandatory on the part of the Court to issue commission. When an application is moved for the said purpose. The local inspection or commission by court is made only in those cases where on the evidence led by the parties, Court is not able to arrive at a just conclusion either way or where the court feels that there is some ambiguity in the evidence which can be clarified by making local inspection or commission. Local inspection or issue a commission by the court cannot be claimed as as matter of right by any party. Such inspections 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).
And to go for local inspection or issue of commission for the proper disposal of the controversy pending is a sole progrative of the Court to decide whether to move the same or not.
As it is a sole domain of the Court to issue a commission or not and the local inspection or commission can not be claimed as a matter of right by a party. Even otherwise in the present case, the appellate authority rejected the petitioner application for issue of the commission and the reasoning given therein is perfectly valid rather as per the law as laid down by this Court (See. Avinash Chandra Tewari Vs. A.D.J. Court No. 3, Unnao & others, 2010 (2) ARC 84, Radha Rani Mehrotra (Smt.) aAnd 5 others Vs. Learned prescribed Authority/Civil Judge, S.D. and 2 others, 2010 (2) ARC 23, Radhey Shayam and others Vs. Additional District Judge, Lucknow and others 2010 (2) ARC 95) Further, in the instant case, both the courts below on the basis of material on record have given a concurrent finding of fact that the need of the landlord/respondent No. 2 is more genuine and pressing on order to establish the business of his son. Accordingly, the argument advanced by Mohd. Arif Khan, learned senior counsel for petitioner that the need of the landlord is not a reasonable one as during the pendency of the litigation in question, two shops, namely one in occupation of Dularey Mirza and one in occupation of Ghasitey Jamadar have fallen vacant and came to the possession of the landlord has also got no force because while deciding the matter in controversy initially, the prescribed authority has framed the following points of determination:
(a) whether need of the applicant in question is bona fide and pressing
(b) whether the opposite party will suffer hardship if he is evicted from rented house.
The prescribed authority after hearing learned counsel for parties and after analyzing oral and documentary evidence on record decided point No. 1 in affirmative in favour of the landlord and point No. 2 in negative against the tenant-petitioner, on the basis of finding recorded on these two points, came to the conclusion that the application under Section 21(1)(a) of Act No. 13 of 1972 deserves to be allowed.
And the appellate court while passing the judgment dated 19.11.2008 thereby dismissing the appeal under Section 22 of U.P. Act 13 of the Act, 1972 had given a finding that all the three sons of the landlord are running business from one single shop in House No. 163/242, Chik Mandi, Molviganj, Lucknow. In this house one residential portion was vacated by one Ghasitey Jamadar about 23-24 years back, which is situated in 4 feet lane and and is being used for godown purposes. In 165/1, Maulviganj, Hata Khan Faquir Mohammad, P.S. Aminabad, District Lucknow is still a tenant and he has not vacated any portion. In this regard Mohd. Rehan has also filed an affidavit C-35 which supported the case of the petitioner.
In addition to abovesaid facts, the appellate court while considering the need between the parties has given a finding to the effect that "from the evidence on record it is evident that there is no vacation commercial accommodation available in the building of the applicant/landlord and besides that commercial purposes, residential accommodation cannot be considered as for alternative accommodation."
Thus, taking into consideration the abovesaid facts as well as the fact that the word ' reasonable requirement' as interpreted by the Hon'ble Apex Court in the case of Mst. Bega Begum and others Vs. Abdul Ahad Khan and others , (1979) 1 SCC 275 that the words ' reasonable requirement' undoubtedly postulates that there must be an element of need as opposed to mere desire or wish. The distinction between 'desire' and 'need' should be kept in mind but not so as to make the genuine need as a mere desire.
The Hon'ble Apex Court in the case of Mst. Bega Begum and others V. Abdul Ahad Khand (Dead) (supra) has held that it is not doubt true that the tenant will have to be ousted from the house if a decree of eviction is passed but such an event would happen eventually whenever a decree for eviction is passed and merely because the tenant will be ousted from the premises where he was running his activity cannot be itself be considered to be a hardship and be availed ground for refusing the landlord a decree for eviction. So in the instant case as the tenant did not make any effort to search an alternative accommodation immediatel, the filing of the release application and even thereafter the said facts are sufficient to tilt the balance of comparative hardship against them as held by the Apex Court in the case of Bhutada V. G.R. Mundada 2003 Supreme Court 2713; 2005(2) ARC 899 , subsequently followed by this Court in the case of Salim Khan V. Ivth Additional District Judge, Jhanshi and others , 2006(1) ARC 588 wherein it is held as under:-
" 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."
The said view further reiterated by this Court in the following cases:-
(1) Jai Raj Agarwal Vs. Bhola Nath kapoor and others , 2005(3) ARC 417.
(2) Rulemuddin and others Vs. Abdul Nadeem ,2007(2) ARC 62.
(3) Mohabbey Ali Vs Taj Bahadur and other, 2009 (2) ARC 715.
(4) Raj Kumar Vs. Lal Khan, 2009 (2) ARC 740 (5) Ashis Sonar and other Vs. Prescribed Authority and others 2009 (3) ARC 269 ."
Thus, I do not find any illegality or infirmity in the finding given by prescribed authority as well as appellate authority held that the need of the landlord is bona fide and genuine.
So far as the argument advanced by learned counsel for petitioner that the landlord may be directed to handover the possession of shop which is which is him in the same premises and in alternative the petitioner will vacate and handover the shop in dispute in respect to which the release application is moved and in order to support his argument he has placed reliance on the provisions as provided under Rule 16(1)(f) of the Uttar Pradesh Urban Building (Regulation, Letting and Vacation) Rules, 1982, it has got no force because Rule 16(1) deals with the residential building while Rule 16(2) deals with the non-residential building and in the present case, the release application is being moved in respect to shop which is under the tenancy of the petitioner to be released in order to carry out the business of his son, so the petitioner cannot derive any benefit from the argument raised by him on the basis of provisions as provided under Rule 16(1)(f) of Rules 1972.
Further, as the crucial date for deciding the bona fide requirement of landlord is the date of his application for eviction. (See. Gaya Prasad Vs. Prdeep Shrivastava, AIR 2001 SC 803 and G.C. Kapoor Vs. Nand Kumar Bhasin and others, AIR 2002 SC 200) As well as the fact that tenant/petitioner has not made any efforts to search out the accommodation during the pendency of the case, so the argument advanced by Sri Mohd. Arif Khan, learned senior counsel for petitioner that petitioner has given offer that the shop which has been falled vacant during the pendency of the litigation may be given to him in lieu of the shop under tenancy has got no force.
For the foregoing reasons, the writ petition is dismissed.
However, looking into the fact that the petitioner is doing business from the shop in question, time is granted to him to vacate the shop in question and handover the possession of the same to the respondent No. 2/landlord on or before 31.08.2016 provided he pays rent and other charges each and every month as and when the same falls due to the landlord on or before 07th day of every month and give an undertaking before the prescribed authority/Civil Judge (Sr. Div.), Mohanlalganj, Lucknow within a period of two weeks from the date of receiving certified copy of this order.
Order Date :- 1.2.2016 Ravi/