JUDGMENT J. C. Gupta, J.
1. This is tenant's petition.
2. An application under Section 21 (1) (a) of the U. P. Act No. XIII of 1972 (hereinafter referred to as the Act) was moved by the landlady-respondent No. 2 for the release of the shop in question, which is admittedly in the tenancy of the petitioner. The need shown therein was that the disputed shop is bona fide required by her husband and her youngest son Raj Kumar for establishing some business therein as both of them were unemployed, the husband having left the service at Delhi and the son having completed his studies. She has no other vacant shop with her, whereas the tenant being a big business concern could procure any other shop in the city of Meerut and could shift their business, in case the application was not allowed, the landlady would suffer greater hardship than the tenant.
3. The release application was contested by the tenant-petitioner on a number of grounds. It was denied that the husband and son of the landlady were unemployed." It was asserted that the husband of the landlady was still working in Delhi and in any case he was unable to do any business because of his old age and physical incapacity. As regards the youngest son, Raj Kumar, the petitioner's case was that he was a partner in M/s. Annu Finance and was thus already engaged in business.
M/s. Annu Finance is a family concern of the landlady and the family members were earning huge profits. It was further pleaded that if at all the husband and the son wished to set up a new business, they could do so in one of the rooms of their residential house. It was also alleged by the petitioner that the landlady did not require the shop in question but he merely wanted to sell the shop after getting it vacated. She herself had once offered It for sale to the petitioner in July, 1984 and it was also suggested that in case the petitioner was not Interested in the offer, it should increase the rent and when the tenant-petitioner expressed its inability to do either, the release application has been moved. The shop in question has been in the tenancy of the petitioner for the last about 34 years and the tenant has built up a goodwill. The landlady had with her three shops Including the disputed one and she sold out the other two shops which were adjacent to the disputed shop.
4. The Prescribed Authority by the order dated 15.12.1988 rejected the landlady's application holding that the alleged need of the landlady was neither genuine nor bona fide. The Prescribed Authority did not proceed to make a comparison of the hardship of the parties as the finding on the main Issue of bona fide need had been decided against the landlady.
5. Aggrieved by the order of the Prescribed Authority, the landlady filed appeal under Section 22 of the Act, which has been allowed by the Impugned order and Judgment dated 13.4.90 passed by respondent No. 1 and the release application of the landlady has been allowed.
6. Counsel for the parties were heard at length.
7. On the examination of record and the Judgment of the lower appellate court, I am unable to uphold the same for the reasons detailed below.
8. The first and foremost question for consideration in this writ petition is whether the finding of the lower appellate court reversing the finding of the Prescribed Authority on the Issue of bona fide need suffers from any manifest error of law? The landlady in her application came with a case that her husband Bhagwat Dayal Gupta was working as Packing Supervisor in a firm M/s. Mittal World Wide, New Delhi and prior to the filling of the release application, he left that Job and was unemployed. Her eldest son was carrying on business of finance in the name and style of M/s. Annu Finance. Second son Ashok Kumar was employed with M/s. Modi Rubber Ltd., Modipuram, Meerut while the third youngest son Raj Kumar after completing his education was still unemployed. The shop in question was, therefore, required for starting a new business therein by her husband and the youngest son Raj Kumar. The tenant-petitioner seriously disputed the alleged need of the landlady and asserted that as far as Raj Kumar, the youngest son was concerned, he was not unemployed as he was already engaged in business. As regards the husband of the landlady the case of the petitioner was that he was still employed in Delhi and in any case, he was not capable of doing any business because of his old age and physical Incapacity. The Prescribed Authority came to the conclusion that Raj Kumar was not unemployed. The landlady in her release application concealed the fact that the said Raj Kumar was working as a partner in M/s. Annu Finance. After when the said assertion was made by the petitioner, she had to admit in her affidavit that her son Raj Kumar was also a partner in M/s. Annu Finance though according to her, he was simply a sleeping partner but that stand of the landlady was not believed by the Prescribed Authority. As far as the alleged need of the husband of the landlady was concerned, the Prescribed Authority came to the conclusion that when he was to retire in the year 1987 then why the shop in question was offered for sale to the tenant if the same was genuinely required for setting up him in the business, has not been explained and this created a serious doubt in her claim. The Prescribed Authority came to the conclusion that the landlady failed to prove that her need for the shop in question was genuine and bona fide. A perusal of the Judgment of the lower appellate court would indicate that as regards the need of the youngest son of the landlady. It has almost agreed with the view taken by the Prescribed Authority as it also disbelieved the landlady's version that he was simply a sleeping partner in M/s. Annu Finance. It has been observed in the Judgment of the lower appellate court as under :
"In so far as the case of Raj Kuniar is concerned, it had been alleged in the application that he has studied upto Intermediate and was married on 14.2.1987, i.e., two months before making an application for release and was unemployed. The tenant-respondent has denied all the said assertions with regard to Raj Kumar and It has been contended in para 31 (vi) of the W. S, that he was an active partner and employed in the M/s. Annu Finance. Gmt. Kamal Devi has, however, contended in para 18 of her affidavit, paper No. 14-C that Raj Kumar was only a sleeping partner in the said finance business and is having only 17/100 share in the same. She has also contended that the said finance business was running in loss. It is not in dispute that insplte of objections, raised by the tenant-respondent, the appellant had not brought on record either original or Photostat copy of the partnership deed. It is also not in dispute that she had also not brought on record the Balance-Sheet of M/s. Annu Finance nor has anything been mentioned about its turnover, in other words, she has not brought on record the documents, relating to the M/s. Annu Finance allegedly either in her possession or in possession of Raj Kumar. It can be said that she has withheld the same and as such adverse Inference may be drawn against her for withholding or for non-production of the documents having material bearing on such an important aspect of the case. It would have to be held in the said circumstances that the said Finance business was not running in a loss. Although Raj Kumar in his rejoinder-affidavit has asserted that he was neither in the employment of the said finance business nor was looking after the affairs of the said firm. He has not specifically denied that he was earning any profit. Whether Raj Kumar was a sleeping partner or an active partner of the firm was not a question of much significance. Since he was a partner, he was entitled to the profit to the extent of share held by him. Had the aforesaid documents been brought on record, it would have been possible to know the real extent of the profit earned by Raj Kumar."
9. It is thus clear from the above portion of the judgment of the lower appellate court that at one place, it was held by the lower appellate court that finance business was not running in loss. However, at another place, the lower appellate court has held that the said business was not a very flourishing business. This observation of the lower appellate court is conjectural and not supported by any evidence nor it was the case of the landlady. The lower appellate court despite the finding that Raj Kumar was engaged in the finance business in M/s. Annu Finance and was earning profits, may be huge one, proceeded to allow the release application by setting up a new case for the landlady that Raj Kumar could start or set up a new business to augment his Income. It may be relevant to mention here that it was no body's case that the shop in question was required for Raj Kumar to augment his Income, in any view of the matter, in the absence of any finding as to what actual Income was being earned by Raj Kumar from M/s. Annu Finance, the shop in question could not be released merely on a hypothesis that Raj Kumar had a pressing necessity of occupying the shop in question for the purpose of starting a new business so as to supplement his Income and manage himself and his family members properly. The lower appellate court with regard to the need of the husband of the landlady has come to the conclusion that he resigned from the firm in which he was working sometime in December, 1985 and was still unemployed and, therefore, his need for the shop in question for setting up a new business was genuine. While recording this finding, the lower appellate court has not at all considered the petitioner's assertion that on account of his old age and physical in capacity Bhagwat Dayal Gupta, husband of the landlady, was unable to carry on any business. The application for release was moved in the year 1987 and by this time the landlady's husband must have further advanced in his age and even according to the landlady's own case, her husband left the Job at Delhi on account of 111 health, in the circumstances, it was necessary for the lower appellate court to have examined whether or not Bhagwat Dayal Gupta was physically and mentally sound to set up a new business in the shop in question.
10. It was also specific case of the tenant petitioner that the landlady was in no need of the shop in question for setting up any business for her husband or for her youngest son and for that matter, neither the nature of the business to be set up in the shop in question was disclosed in the application nor source of finance with the help of which the business was to be set up was revealed. According to the petitioner-tenant, the landlady merely wanted to sell the shop in question after getting the same vacated. It was also alleged that the landlady was having three shops earlier, two of which were already sold by her. The tenant specifically pleaded that soon before moving the release application, an offer was made by the landlady herself to the petitioner-tenant to purchase the shop in question for Rs. 50,000. This offer was made in writing through letter dated 16.7.1984 which was signed by the landlady and was addressed to the Regional Administrative Officer of the petitioner. A copy of the said letter has been annexed with the writ petition which reads as under :
"To The Regional Adm. Officer, Remington Rand of India Limited, Sunlight Insurance Building, Asaf All Road, New Delhi.
Dear Sir, Sub : Purchase of shop No. 177/Q at Bombay Bazar, Meerut.
This is with reference to our discussion on your last visit on the subject.
We are Interested to sell our above shop, which is occupied by your organization and would sell it for Rs. 50.000 (Rupees fifty thousand only).
This is for your Information.
Thanking you.
Yours faithfully, Sd/-
(MRS. KAMLA DEVI) Tanki Mohalla Dated: 16.7.1984 Sadar, Meerut Cantt."
11. This letter and the conduct of the landlady weighed heavily with the Prescribed Authority while examining the question of bona fide need. The explanation of the landlady with regard to the aforesaid offer was that at the time when the offer was made, she was in dire need of money but she did not sell the shop in question because she was not getting a reasonable price. The Prescribed Authority took the view that when the landlady knew it fully well that her husband was going to retire in near future and was to be settled in some business, the fact that still the shop in question was offered for sale to the petitioner-tenant would go to show that she was not in real need of the shop in question for setting up her husband in business. The lower appellate court has, however, reversed this finding of the Prescribed Authority on a ground which was not pleaded or taken by the landlady. Whether or not the explanation furnished by the landlady in respect of the offer made by her to sell the shop in question to the petitioner for Rs. 50,000 was satisfactory and believable, this question has not been gone into by the lower appellate court; Whether the landlady Infect needed money at that time and what were the circumstances which compelled her to make such an offer have not been considered at all by the lower appellate court. The aforesaid offer could not be lightly brushed aside in the circumstances of the present case while considering the question of bona fide need of the landlady specifically in view of the fact that the landlady had admittedly sold two other shops earlier in the years 1974 and 1979. On this ground also, the order of the lower appellate court cannot be upheld.
12. The words "bona fide required" appearing in Section 21 (1) (a) of Act are of significance and there must be an element of need as opposed to mere desire or wish, The distinction between "desire" and "need" are also to be kept in mind while considering the release application made under Section 21 (1) (a) of the Act. The Intention of the Legislature behind enacting Sections 20 and 21 was to provide protection to the tenants against their fraudulent eviction from their accommodation in tenancy and occupation. The landlord no longer possesses the right to evict a tenant at his own will. Under Section 20 (1), a bar has been created for filing suit for ejectment against a tenant and no suit for ejectment can be filed excepting on the grounds which are mentioned in clauses (a) to (g) of sub-section (2) of Section 20. Thus, excepting these clauses, a landlord is required to seek eviction of the tenant by applying for the release of the tenanted premises under the provisions of Section 21 of the Act. Even under this provision, the landlord does not have any unfettered right to get the tenant evicted, in order to succeed, he has not only to establish that the disputed premises is bona fide required by him for occupation by himself or any member of his family but also that he would suffer much greater hardship than the tenant in the event of his claim for the occupation of the building being not allowed. Such a protection which covers a tenant could not be lightly removed merely on the whims of the landlord. A tenant cannot be ordered to be evicted on the mere tpse dixit of a landlord. Under the present Act, a tenant does enjoy certain privileges and he cannot be thrown on street at the mercy of the landlord as that would frustrate the very Intention of the Statute. The question of bona fide need in an application under Section 21 (1) (a) is of prime Importance and while examining the said question, the Courts have to evaluate the evidence in its right perspective, in the present case, 1 feel that the lower appellate court has not weighed the evidence in a legal manner and has acted on surmises and conjectures while reversing the finding of the Prescribed Authority on the question of bona fide need.
13. In the release proceedings, the Courts are also duty bound to consider the likely hardship of the tenant in the grant of the application as against likely hardship to the landlord from the refusal of the application. Rules have been framed as guidelines for considering the said question.
14. In the present case, the finding of the lower appellate court recorded on the question of comparative hardship also suffers from manifest error of law Inasmuch as the lower appellate court has not considered the question as to whether the shifting of business of the tenant petitioner in any of the alleged newly constructed shops would be without any substantial loss, in this connection, a reference may be had to Section 16 (2) (b) which says that where the tenant has available with him suitable accommodation to which he can shift his business without substantial loss, there shall be greater Justification for allowing the application. Therefore, for applying this rule. It is not only necessary that the tenant has available with him suitable accommodation but also that he can shift his business in that alternative accommodation without substantial loss. It would thus follow that even where there may be some other shops in which the tenant could shift his business but if the shifting of business causes substantial loss to the tenant, no benefit can be availed of by the landlord on the basis of this sub-rule, in the present case, it was the specific case of the tenant-petitioner that the shops pointed out by the landlady were not suitable to the petitioner's business which is being carried on in the disputed shop. It was also pleaded that the petitioner is an old tenant and is carrying on business of typewriters at a high magnitude and has earned a good will, in the background of these facts, it was Incumbent upon the lower appellate court to have gone into the question whether or not the tenant-petitioner would not suffer any substantial loss in his business if he is compelled to shift his business in some other shop. It is true that the mere fact that a tenant is likely to suffer a loss in his business by shifting his business at some other place, by Itself would not be sufficient to discard the need of the landlord which has been otherwise found to be bona fide and genuine. It is also well-established that mere length of occupation of premises by a tenant cannot be the sole ground to reject the landlord's claim of personal requirement. While weighing the hardship of the parties, the Courts are bound to take all these factors into consideration as well as the goodwill earned by the tenant and record a finding as to which of the parties was likely to suffer a greater hardship than the other. I find that in the present case the lower appellate court has not examined the question of comparative hardship in accordance with law and for this reason also, the order of the lower appellate court cannot be upheld.
15. For the reasons stated above, the writ petition is allowed. The order of the lower appellate court dated 13.4.1990 is set aside and the case is sent back to the appellate court for a fresh decision in the appeal according to law and in the light of the observations made in the body of this Judgment. Since the case has become very old, the lower appellate court is directed to restore the appeal to its original number and decide the same expeditiously, preferably within a period of three months from the date of production of a certified copy of this order. Costs on parties.