Heard Sri B.D. Madhyan, learned Senior Advocate assisted by Sri Om Prakash, Advocate on behalf of the petitioners, and Sri Ravi Kiran Jain, learned Senior Advocate assisted by Sri Vivek Saran, Advocate on behalf of respondents.
This is tenant writ petition. Application under Section 21 (1) (a) of the U.P. Act No. 13 of 1972 was filed by the land-lords of the premises in respect of five shops together being P.A. Case No. 3 of 2002. The shops are situate at Gadh Road, Meerut. According to the land-lords, they had obtained post graduate degree in medical sciences and they wanted to establish their independent clinic in the aforesaid shops for examination of patients and operation theatre etc. They would use these five shops together after necessary alteration. It was stated that except for the aforesaid five shops, the land lords did not have any alternative accommodation available with them for the purpose.
The application so filed by the land-lord was contested by the tenant petitioners and it was contended that the landlords were owners of large number of properties, they were infact carrying on their profession from two different shops, which were in their tenancy. They also had shops available with them in Yadu Hotel of which they were co-owners and even otherwise, they had open piece of land and residential houses, where such profession of Doctor could be legally carried on. It was stated that the tenants had been carrying on business from the shops in question for the last more than 30 years and it would be too harsh to ask the tenants to vacate the shops in question. Reference was also made to the engagement of the land-lords in the hospitals situate in Noida. Therefore, it is stated that need set up by the landlords was not bona fide.
The Prescribed Authority after considering the pleadings and evidence led by the parties recorded a finding that the landlords were Doctors by profession, they had obtained post graduate degree in medical sciences from respective medical colleges. They infact wanted to establish their own clinic in the shops in question, which were in the possession of the tenants. There was no other suitable accommodation to satisfy the bona fide need of the land lords. It was recorded that the residential houses and the open piece of land available to the land-lords was not suitable for the purpose for establishing the clinic. Lastly it was recorded that although some shops may have become available to the landlords at Yadu Hotel, but such shops were not suitable for establishing a clinic. After recording the aforesaid finding, the Prescribed Authority went on to hold that the tenants have failed to search any alternative accommodation during the pendency of the release proceedings, the issue of comparative hardship also lays in favour of the land lords. The application was therefore, granted vide order dated 21st April, 2005.
Not being satisfied with the order so passed by the Prescribed Authority, the tenants filed Misc. Appeal 100 of 2005. The appeal has been dismissed after affirming the finding recorded by the Prescribed Authority vide order dated 31st March, 2011. It is against these two orders that the present writ petition has been filed.
Challenging the aforesaid two orders, Sri B.D. Madhyan, learned Senior Advocate, assisted by Sri Om Prakash, Advocate on behalf of the petitioners vehementally contended that in the facts of the present case, need of the landlord was not bona fide, they were carrying on their profession as doctors from the two shops, which are said to have been let out to them by their mother and father-in-law respectively. Their family was joint and the said shops were sufficient to satisfy the need of land-lords. It was further stated that during the pendency of the proceedings, they have got possession of two shops, at Yadu Hotel which could be sufficient to establish the clinic, as per the need set up by the landlords. Reference was also made to the other accommodations, namely, residential house and open piece of land, which was available to the landlords for contending that they had suitable alternative space available with them for establishing their clinic. Lastly it was stated that the land-lords were actually engaged as Doctors in an Hospital at Noida and they did not intend to practice at Meerut, they only want to let out the shop at a higher rent at a subsequent stage. Lastly it was contended that even if need of the land lord was bona fide there has been complete non-consideration of Rule 16 (2) (c) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (herein after referred to as the 'Rules, 1972') in the facts of the present case, and therefore, the orders impugned cannot be legally sustained. The matter had to be remanded for examination of the aforesaid aspect of the matter afresh and for appropriate order being passed.
Sri Ravi Kiran Jain, learned Senior Advocate assisted by Sri Vivek Saran, Advocate on behalf of respondents contend that in the facts of the present case finding of bona fide need as recorded by both the authorities below is a pure finding of fact, which need not be interfered with by this Court under Article 226 of the Constitution of India. It is stated that the tenants cannot dictate terms to the landlords for opening their clinics at a place, which is not to the satisfaction of the land-lords or which is not as per the choice of the land-lords. The tenants cannot insist that the landlords must open their clinics at a different place i.e. in the accommodation pointed out by the tenant, namely, the residential house or the open piece of land or in a premises which was not the property of the tenant.
So far as the issue of comparative hardship is concerned, it has been contended that the tenants have failed to search any alternative accommodation, although the proceedings remained pending since 2002 i.e. for the last 9 years as on date. Therefore, they are not entitled to raise the plea of comparative hardship. It is explained that although one shop had become available to the landlords in Yadu Hotel, during the pendency of the aforesaid proceedings, and further orders had been passed by the trial court for eviction of two other persons, who were occupying the two shops at Yadu Hotel, but such subsequent two shops are not actually vacant as on date, as Revisions have been filed by the tenants of the aforesaid two shops before the Higher Court, wherein interim orders have been granted. It has been contended that family partition has taken place in between and Yadu Hotel has fallen in the share of other family members of the landlords, they have ceased to be landlords/owners of the shops situate in Yadu Hotel. Lastly he points out that shops which are in use of the landlords at present, are infact owned by their mother and father-in-law.
I have considered the submissions made by the learned counsel for the parties and have examined the records of the present writ petition.
The Hon'ble Supreme Court of India in the case of Rishi Kumar Govil vs. Maqsoodan & others reported in (2007) 4 SCC 465, has held that finding recorded on the issue of bona fide need is a finding of fact. Such finding need not be interfered with by the Writ Court under Article 226 of the Constitution of India, unless it is established that the same is perverse or based on no evidence. This Court, in the fact of the present case, finds that all aspects of the matter and the evidence on record has been considered by both the courts below for arriving at a conclusion that the need of the landlords was bona fide. There was no suitable accommodation available with the land-lords where they can establish their clinics after having obtained Post Graduate Degree in Medical Sciences. The findings of facts so recorded by both the courts below cannot be said to be perverse or based on no evidence, so as to warrant any interference under Article 226 of the Constitution of India. The finding recorded by both the courts below in respect of bona fide need of the landlords is affirmed.
This takes the Court to the issue of compliance of Rule 16 (2) (c) of Rules, 1972, which reads as follows:
"16. Application for release on the ground of personal requirement [Section 21 (1) (a) and 34 (8)].----(1)...................
(2) .............
(c) the greater the existing business of the landlords own, apart from the business proposed to be set up in the leased premises, the less the justification for allowing the application, and even if an application is allowed in such a case, the Prescribed Authority may on the application of the tenant impose the condition where the landlord has available with him other accommodation (whether subject to the Act or not) which is not suitable for his own proposed business but may serve the purpose of the tenant, that the landlord shall let out that accommodation to the tenant on a fair rent to be fixed by the Prescribed Authority;"
It has not been disputed that the landlords are running their clinics from two shops, which according to them have been let out by their mother and father-in-law respectively. Further it is not in dispute that during the pendency of the proceedings, one of the shops situate at Yadu Hotel infact had become available to the landlords in vacant state on a compromise arrived at between the parties concerned. Further in respect of two other shops at Yadu Hotel, an order was passed by the trial court for eviction, although in respect of subsequent two shops, the Court has been informed that tenants of the aforesaid two shops have initiated appellate/revisonal proceedings, wherein interim order has been granted in their favour.
From the written statement filed by the tenants, this Court further finds that it was the case of the tenants that the landlords had four shops available with them at Yadu Hotel, one of them is vacant, to which no replica was filed.
Before this Court a plea of family partition has been raised and reference has also been made to an application filed before the appellate court for pleading the family partition and that Yadu Hotel has fallen in the share of other family members, but there is absolutely no finding recorded in the order of revisional court about any family partition having taken place.
This Court further finds that the Prescribed Authority as well as the Revisional Authority have completely ignored the impact of Rule 16 (2) (c) of Rules, 1972 and the issue as to whether the shops available with the landlords, where they are at present carrying on their profession, and even otherwise, either covered by provisions of Act 13 of 1972 or not, could have been directed to be let out at the fair rent to the tenants has been lost sight of.
The order of the Prescribed Authority insofar as it directs release of the premises without considering as to whether the shops in possession of the landlord could be directed to be handed over to the tenants of the disputed premises or not as contemplated by Rule 16 (2) (c) of Rules, 1972 cannot be legally sustained.
It may also be recorded that disputed shops are practically of the same size, are are stated to have become available at Yadu Hotel as well as those under the tenancy of the landlords at present from where they are running their clinics.
This Court may clarify that even if it is found that the total number of shops, which may be available with the landlords be less than five, the Court can resort to the method of draw of toss amongst the tenants for the purpose of complying with Rule 16 (2) (c) of Rules, 1972.
In view of the aforesaid, the order of the Prescribed Authority as well as the order of the appellate authority insofar as it directs the eviction of the tenants from the shops in question without considering the impact of Rule 16 (2) (c) of Rules, 1972 cannot be legally sustained and that part of the order is hereby set aside. The matter is remanded to the Prescribed Authority to reconsider the impact of Rule 16 (2) (c) of Rules, 1972 qua the shops with the land-lords after affording opportunity of hearing to the parties concerned, by means of a reasoned speaking order, preferably within six months from the date a certified copy of this order is filed before the Prescribed Authority. It is made clear that the parties shall co-operate in proceedings and shall not seek any unnecessary adjournment.
The present writ petition is partly allowed.
(Arun Tandon, J.) Order Date :- 9.5.2011 Sushil/-