Heard Sri Alok Kumar Singh, learned counsel for the petitioners and Sri Kulkar Mishra holding brief of Sri R.K. Sharma, learned counsel for the respondent.
Controversy involved in the present case relates to the shop situated at Hasan Ali Crossing Mohalla Pared Zail Road, Sitapur.
In respect to which, an application under Section 21(1)(a) of the U.P. Urban Building Act, 1972 has been moved by the petitioners on the ground that they are the owner-landlord, shop in dispute come to their share by virtue of a private partition between them and one Sri Om Prakash.
It is also mentioned in the release application that the shop in question has been let out by their father to the tenants and after his death, the rent of the shop is exclusively taken by the applicants. Further, as they are doing their business from one of the shop situated in the same building jointly but due to the growing needs of their family, petitioner no. 2 want to establish his business separately to carry out livelihood of his family, in a better manner, so the shop in question is required by him.
In Paragraph 8 of the said release application, it is mentioned as under:-
"That the shop in question was let out by opposite party no. 1 who is now already doing his medical practice in the double story building at Greekganj Road Sitapur. He has no concern with the shop in question. He gave the shop in question to opposite party nos. 2 & 3 to carry on their business without any concern with opposite party no. 1. Previously the brother of opposite party no. 1 i.e. opposite party no. 2 who running a medical shop in the shop in question and afterward opposite party no. 3 started doing the same as opposite party no. 2, has shifted and taking another shop on rent at Jail Road Sitapur. Opposite party no. 3 is now doing manufacturing business of packing boxes etc. at Hardoi Road, Sitapur.
On the basis release application, a P.A. Case no. 28 of 1990(Sri Prakash and others Vs. Dr. B.D. Kapoor and others) was registered before the Second Additional Munsiff Judge, Sitapur, dismissed by order dated 02.05.1992.
Aggrieved by the same, the petitioners filed an appeal registered as Rent Appeal No. 12 of 1992(Sri Prakash and others Vs. Dr. B.D. Kapoor and others), dismissed vide order dated 21.08.1993 passed by the appellate authority/District Judge, Sitapur. Hence, the present writ petition has been filed.
Learned counsel for the petitioners while assailing the impugned orders which are under challenge in the present case, submits that the courts below without any reasonable justification or reasons rather contrary to the material on record, had not accepted the mutual partition entered between the applicants and one Sri Om Prakash by virtue of which the shop in question has come to their share.
It has been specifically pleaded that the shop in question is needed for jewellery business to be done separately by one of the petitioner keeping in view the growing need of the family of the applicant-petitioners, so their need is genuine, bonafide but the courts below in an unreasonable manner held that the need of the landlord is not genuine in comparison to the tenant, the said findings are contrary to the facts of the case.
Learned counsel for the petitioners further submits that the appellate court has also failed to consider that from one of the shop in question, the pharmacy business has been run by the tenants but they have no need of the same as one of them tenant Sri B.D. Kapoor was running his Clinic from another shop, and other tenants namely Babu Ram Kapoor etc. are doing separate business, so there is no justification or reasons on the part of the appellate courts to held that the need of the landlord is not genuine and bonafide in comparison to the need of the tenants, so the order passed by the appellate court as well as by Prescribed Authority are illegal and liable to be set aside.
Sri Kulkar Mishra holding brief of Sri R.K. Sharma, learned counsel for the respondent submits that in the instant case, the categorical finding of fact has been given by the two court below that the need of the tenants is more genuine and bonafide in comparison to the landlord-petitioner, so the said finding of fact cannot be disturbed at this stage under Article 226 of the Constitution of India, so the present petition is liable to be dismissed.
I have heard learned counsel for the parties and gone through the record.
During the pendency of appeal, Sri B.D. Kapoor has died and his place Sri Ravindra Mohan Kapoor has been substituted as his legal heir.
So far as, the factual backgrounds of the present case are concerned, it is not disputed between the parties that the release application under Section 21(1)(a) of the Act has been moved by the applicant inter alia stating therein that they need the shop in question under the tenancy of the respondents to do the jewellery business by petitioner no. 2(Shyam Prakash) dismissed vide order dated 02.05.1992, thereafter appeal filed also dismissed by order dated 21.08.1993.
Finding recorded by the appellate authority while dismissing appeal, the relevant portion of the same are quoted as under :-
(a) "Although opposite party no. 1 has his separate Clinic and the other two opposite parties have also got their business separately, but the disputed premises are being occupied and used by them for carrying on their pharmacy business. It is settled principle of law that older the period of tenancy, the lesser the justification for the release of the premises.
(b) The photographs on record show that the existing shop owned by the applicants nos. 1 & 2 is big shop and even on division it can catre the new of both the applicants. Merely because, as said in the petition, the applicant a want to shift the business of applicant no. 2, it cannot be said that there is bonafide and genuine need. It is settled principle of law that mere whim or desire cannot be equated as bonafide need. However, even if all the facts are taken to be in favour of the applicants, then also, as advertised in Vyas Bharti and as said in the written statements, there are a number of vacant shops for applicant no. 2. It is nowhere said that these vacant shops are not fit for jewellery business.
(c)To contrary, the opposite parties have pleaded that in those areas also, where the shops are vacant, there are a number of cloth and jewellery shops. In fact there is no need of the applicants, much less bonafide or genuine need."
Accordingly, the finding recorded by the court below in the impugned order that it is settled principle of law that older the period of tenancy, the lesser the justification for the release of the premises is totally incorrect and wrong finding because if the tenant did not make any effort to search an alternative accommodation immediately after filing of the release application, the said facts are sufficient to tilt the balance of the comparative hardship against the tenant and the need of the landlord is to be held to be bonafide. In this regard the Hon'ble Supreme Court in the case of B.C. Bhutada Vs. G.R. Mundada, A.I.R. 2003 SC 2713 has 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 case of Salim Khan V. IVth Additional District Judge, Jhansi and others , 2006(1) ARC 588 this Court has 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."
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 :1986 SCFBRC 346 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."
The said view has been further reiterated 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.
In view of the above said facts as in the instant case admittedly tenant/respondent did not make any effort to find out alternative accommodation after moving of the release application, the orders passed by the prescribed authority thereby rejecting the release application, and by appellate authority dismissing the appeal on the basis of the findings reproduced hereinabove that the need of the landlord/petitioner is less bonafide and genuine in comparison to the tenant-respondent is contrary to law, liable to be set aside.
Moreover, the finding recorded by two court below while dismissing the case of the petitioner-landlord that it is well settled principles of law that older the period of tenancy, the lesser the justification for the release of the premises is also unsustainable in view of the provision as provided under Rule 16 of Rules.
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 and the Apex Court in the case of Ganga Devi Vs. District Judge, Nainital and others, 2008(2) ARC 584 while considering 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."
Further, 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 any real efforts were made by the tenant to find another accommodation despite the fact that even the application for release has been moved in the year 1990, so the same is liable to be allowed.
One of the finding recorded by the courts below that other vacant shops are available to the applicants and they can do the business of jewellery from the said shop, so the need set up them for the release of the shop in question for doing the jewellery business is not bonafide and in case the release application is allowed, the tenant will suffer greater hardship because they have no premises to shift their business, is also incorrect in view of the facts stated hereinabove, coupled with the fact that it is well settled proposition of law that the landlord is the best judge of his requirement and the courts have no concern to dictate the landlord as to how and in what manner he should live and carry out his business from particular shop. [See:- case of 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 findings in question given by the courts below on the basis of which the release application has been dismissed, are unsustainable, liable to be set aside.
Further, the present writ petition has been filed in the year 1993 and thereafter the time was granted to the tenant-respondent to file counter affidavit but till date no counter affidavit has been filed, so keeping in view the said fact and as per the law as laid down by the Apex Court in the case of Naseem Bano Vs. State of U.P. and others AIR 1993 SCC 2592 and in the case of Choksi Tubes Pvt. Ltd. vs. Union of India 1997 (2) SCC 1997, when no counter affidavit has been filed inspite of the opportunity given to the respondents, then in that circumstances the ground taken in the writ petition are taken to be correct.
For the foregoing reasons, the order passed by appellate court is set aside. Matter is remanded back to the appellate authority to decide afresh within a period of four months from the date of receiving the certified copy of this order after hearing the learned counsel for the parties on merit in accordance with law.
With the above observation, writ petition is allowed.
Order Date :- 02.02.2011 krishna/*