By means of present writ petition, the petitioner has challenged the orders dated 27.03.1990 and 10.05.1995(Annexure nos. 5 & 7 to the writ petition) passed by respondent nos. 2 & 3 respectively.
Heard Sri J.P. Mathur, learned counsel for the petitioners, Yogesh Kesarwani, learned counsel for the contesting respondent no. 3.
Controversy involved in the present case relates to the House No. 43 situated at Shankarpuri Colony, Phool Bagh, P.S. Qaiserbagh, Lucknow, Late Sri Rahmat Ullah and Smt. Ummatunnisa (petitioner nos. 1 & 2) are owners/landlords and Respondent no. 1 i.e. Late Aziz Ahmad was tenant in the said House on monthly rent of Rs.18/- per month.
On 8th May, 1986, petitioner moved an application under Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972(hereinafter referred to Act no. 13 of 1972), P.A. Case no. 33 of 1986 registered before the respondent no. 2. In the release application inter alia it was pleaded by the landlord-petitioners that the House in question under the tenancy of the respondent no. 1 is a single storey House consisting two Rooms with other facilities. Further, it was pleaded in the release application that they are presently living in House no. 211 Shankarpuri Colony, Phool Bagh, P.S. Qaiserbagh, Lucknow alongwith their family, the detail of family members is as under :-
(I) Applicant no. 1 (II)Applicant no. 2. (III) Sri Inayat Ullah(son) aged 25 years. (IV) Smt. Ainul Nisan wife of Inayat Ullah (V) Ishrat Jahan(daughter) aged 18 years. (VI) M. Ikram Ullah(son) aged about 14 years (VII) M. Mushtafa(son) aged about 14 years (VIII) Hidayat Ullah (son of Inayat Ullah).
So, the accommodation in the said house (no. 211 Phool Bagh) which consists of only two rooms (8' X 10' each) and one store room, and small court yard which is too short for the requirements of the applicants and his family. The eldest son of the applicant is married and needs privacy which is not possible in this house. There is no place for the study of the children, who are studying in various classes. Also there is no space to receive and entertain guests who visit the applicant from time to time. The wife of the applicant no. 1(Applicant no. 2) is the patient of high blood pressure and fells ill frequently. The congested atmosphere of the house and the climbing of the stairs is bad for her health, as such the need of the applicants for release of the House in question is bonafide in comparison to the need of the tenant-respondent no. 1.
Tenant-respondent no. 1 filed written statement and the need as set up by the landlord-petitioners is denied and it is further submitted that the House in which the petitioner-landlord resides is a four storied building out of which three stories are duly built up having one room measuring 15X20 Sq. ft. on each and every storey with Angan on each storey. So, there are three big room in the building with three Angan with amenities like toilet, bathroom etc. and there is also a stair which goes to the third storey of the building and there is an open accommodation also which can be utilized by them and only one son of Ikramullah is studying so the landlords have sufficient accommodation with them. Hence, it is totally wrong that the applicants/landlords have two rooms only, they have concealed one room and 3 Angans, toilet on both stories and kitchen portions.
Further, the tenant/respondent has set up his need in paragraph 4 of the written statement stating therein that the applicant (tenant) has got two sons and a daughter. The daughter is of marriageable age and her marriage has been settled and she is likely to be married in near future. The names of the sons of the applicants are Inayatullah and Ikramullah.
After exchange of the affidavits between the parties, the prescribed authority issued a Commission (Advocate Commissioner) who submit his report on 25.04.1988 (Annexure no. 3 to the writ petition) to which landlord/petitioner filed his objection on 31st May, 1988 inter alia stating therein that the space as mentioned by the learned Commissioner in it's report available with him is totally incorrect and wrong and he has only two rooms in the house in which he is residing and there is no vacant space which can be utilized by him for the purpose of accommodation.
By means of judgment and order dated 27.03.1990, prescribed authority/respondent no. 2 rejected the petitioner's application for release.
Aggrieved by the order dated 27.03.1990, the landlord-petitioners filed Rent Appeal under Section 222 of the U.P. Act no. XIII of 1872(registered as appeal no. 56 of 1990), dismissed vide order dated 10.05.1995, while dismissing the appeal, the appellate authority/respondent no. 3 has given a finding to the effect that the tenant is a poor person doing the work of tailoring and earning Rs.600/- per month, although it is correct that the tenant-respondent no. 1 has not made any effort to search alternate accommodation and there is no evidence on record from which it is established that the tenant-respondent no. 1 has made any efforts in this regard. The appellate authority further held that taking into consideration the fact that, in case if the tenant-respondent no. is evicted from the house in question, he will suffer great hard-ship in comparison to the landlord, so the need of the landlord is not bonafide.
Aggrieved by the order dated 10.05.1995 passed by the appellate authority and the order dated 27.03.1990 passed by the prescribed authority, the present writ petition has been filed before this Court.
Sri J.P. Mathur, learned counsel for the petitioner while arguing the matter submits that the prescribed authority did not bother to discuss the bonafide need of the petitioners for the additional accommodation and the comparison made by the opposite party no. 3 believing the version of opposite party no. 1 is nothing but a mis-carriage of justice and ignorance of Rule 16 of the Rules framed under the U.P. Act No. XIII of 1972. Both the courts below ignored the evidence available on record and believed the version of opposite party no. 1 alone.
He further submits that the learned Commissioner's report was rebutted by the petitioner through affidavit, but petitioner's affidavit was not considered and the report of commissioner was relied upon and both the court's below have accepted the same. The preposition laid down by Hon'ble court in respect of searching suitable accommodation during the pendency of the application for release of House by the tenant has also not been considered by the courts below, thus, they have committed a manifest error of law.
Accordingly, Sri J.P. Mathur, learned counsel for the petitioners submits that the orders which are under challenge in the present case are arbitrary and contrary to the law and the same are liable to be set aside and present writ petition desrves to be allowed.
Sri Yogesh Kesherwani, Advocate on behalf of the tenant submits that the court below after taking into consideration the pleadings as advanced by the parties and material available on record had given a finding to the effect that the need of the petitioner-landlord is not genuine and bonafide in comparison to the tenant and on the basis of the same, the Prescribed Authority as well as the Appellate Authority passed the judgment against the petitioner.
He further submits that as both the courts below have given the concurrent finding in the present case in respect to the bonafide need of the landlord and have held that in case if the tenant is evicted from the house in question, he will suffer greater hard-ship in comparison to the landlord, so this Court while exercising the power under Article 226 of the Constitution of India cannot set aside the concurrent finding recorded by the court below. In support of his argument, he relies in the judgment of the Apex Court in the case of M/s India Pipe Fitting Company Vs. Fakruddin M.A. Baker and Another 1978 ARC 224 as under :-
"We are clearly of opinion that there was no justification for interference in this case with the conclusion of facts by the High Court under Article 227 of the Constitution we are also under to agree with the High Court that there was anything so grossly wrong and unjust or shocking the court's conscience that it was absolutely necessary in the interest of justice for the High Court to step in under Article 227 of the Constitution. Counsel for both sides took us through the reasonings given by the High Court as well as by the courts below and we are unable to hold that the High Court was at all correct in exercising its power under Article 227 of the Constitution to interfere with the decisions of the courts below. In our opinion the High Court arrogated to itself the powers of a court of appeal, which it did not possess under the law, and has exceeded its jurisdiction under Article 227 of the Constitution."
Sri Yogesh Kesherwani, learned counsel for the tenant on the basis of the same submits that in view of the above said facts, present writ petition is liable to be dismissed as the same lacks merits.
I have heard learned counsel for the parties and gone through the record.
So far as, the facts of the present case are concerned, it is not disputed between the parties that petitioner nos. 1 & 2 who are the landlord-owners of the premises in dispute and the same was rented to one Sri Aziz Ahmad and for the purpose of release of the premises in question, an application under Section 21(1)(a) of the U.P. Act No. XIII of 1972 was moved by the petitioners on 8th May, 1986 inter alia stating therein that their need for release of the premises in question to which the tenant-respondents had filed their objection and thereafter the impugned judgment dated 27.03.1990(Annexure no. 5 to the writ petition) and 10.05.1995(Annexure no. 7 to the writ petition) passed by respondent nos. 2 & 3 respectively.
During the pendency of the present writ petition, petitioner no. 1 Sri Rahmat Ullah and the tenant-Sri Aziz Ahmad had died. Accordingly, their heirs were substituted.
In order to decide the controversy which in involved in the present case, it is necessary to have a glance to the provisions as provided under Section 21(1)(a) of the U.P. Act no. XIII of 1972 as under :-
Proceedings for release of building under occupation of tenant :-
(1) The Prescribed Authority may, on an application of the landlord in that behalf order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely-
(a) that the building is bona fide required either in its existing form or after demolition and new construction 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 purposes or for purposes 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.
Thus, 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.
Further, the 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."
Further, 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."
From the perusal of the documents on record, it transpires that the family of the landlord at the time of release application moved, consisted of 8 members. In this regard the averments made in Paragraph 4 of the release application which is reproduced as under :-
(I) Applicant no. 1 (II)Applicant no. 2. (III) Sri Inayat Ullah(son) aged 25 years. (IV) Smt. Ainul Nisan wife of Inayat Ullah (V) Ishrat Jahan(daughter) aged 18 years. (VI) M. Ikram Ullah(son) aged about 14 years (VII) M. Mushtafa(son) aged about 14 years (VIII) Hidayat Ullah(son of Inayat Ullah).
In view of above said facts and taking into consideration, the findings recorded by the court below on the basis of the Commissioner's report that there are three rooms one open roof, one Veranda available to them in House no. 211 Phoolbagh where they are residing is sufficient to live therein is incorrect, contrary and unreasonable finding given by the court below while rejecting the petitioners' application for release as well as dismissed the appeal in the light of the facts stated hereinbelow that while dismissing the appeal, the appellate court has given a finding to the effect that the tenant who has a business of tailoring is earning Rs. 600/- per month. Accordingly, he is a poor person and he is no alternate accommodation to live.
A further finding of fact has also been given that the tenant has not searched for any alternate accommodation although it is responsibility of the tenant to search for accommodation and to make efforts for alternate accommodation and from the documents and evidence on record it transpires that no such efforts have been made. In spite of the said finding, the appellate court has held that the comparative hard-ship of the tenant is more in case he is evicted from the premises in question in comparison to the landlord and had rejected the appeal by order dated 10.05.1995.
Further, in the instant case, court below had 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 the present case 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 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 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 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."
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 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 but he is a poor man so his need is bonafide in comparison to the landlord-petitioner and the tenant will be in greater hardship if he is evicted from the premises in question, accordingly the appeal of the landlord was dismissed.
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 1986.
In view of the law as stated above, the judgment passed by the court below is contrary to law and perverse in nature cannot sustain.
Needless to mention that in the case of Avinash Chandra and others Vs. 6th Additional District Judge, Ghaziabad and others [2008 (1) ARC 812] it has been held as under :-
"Normally,when both the Courts below have rejected the release application of the landlord and the writ court finds the judgments erroneous, the matter is either remanded to the prescribed authority or permission to file fresh release application is granted to the landlord. However, in certain circumstances, particularly when no new enquiry into facts is to be made ultimate final relief may be granted to the landlord in writ petition itself, even though both the Courts below may have rejected the release application. I have discussed this aspect in detail in the authority reported in 2005(2) Mohd. Arif Vs. A.D.J. For the said proposition, I placed reliance upon AIR 2002 SC 200 :2001 (2) ARC 603 : 2001 SCFBRC 541 "G.C. Kapoor Vs. Nand Kumar Bhasin" wherein the Supreme Court out rightly allowed the release application of the landlord, which had been rejected by the Prescribed Authority and the order of the Prescribed Authority had been affirmed by A.D.J. In appeal and High Court in writ petition.
Prior to the said authority, I was either remanding or granting liberty to file fresh application to the landlords in the writ petitions filed by them against rejection of their release applications by both the Courts below. One of such judgments delivered by me was reversed by the Supreme Court which is reported in Ram Kumar Barnwal Vs. Ram Lakhan, 2007 AIR SCW 3250 :2007 SCFBRC 346 : 2007 (2) ARC 577."
The said view was further reiterated by this Court in the 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].
Accordingly, the submission made by the learned counsel for the respondents relying on the judgment passed by the Apex Court in the case of M/s India Pipe Fitting Company Vs. Fakruddin M.A. Baker and Another 1978 ARC 224 this court cannot set aside the finding of the facts as recorded by the court below, under Article 226 of the Constitution of India, is unsustainable, unreasonable and tenant-respondents cannot take benefit from the said plea.
For the foregoing reasons, writ petition filed by the petitioner is allowed. Impugned orders dated 27.03.1990 (Annexure no. 5 to the writ petition) and 10.05.1995(Annexure no. 7 to the writ petition) passed by respondent nos. 2 & 3 respectively are set aside.
No order as to costs.
Order Date :- 19/10/2010 krishna/*