By means of this writ petition under Article 226 of the Constitution of India, the petitioner has sought for a writ in the nature of certiorari to quash judgment and order dated 19.10.2011 passed by Additional District Judge (Court No.1), Hardoi in Rent Appeal No.07 of 2006 and the judgment and order dated 25.11.2006 passed by the learned Prescribed Authority/Civil Judge (S.R.) Hardoi in Prescribed Authority case no.6 of 2001, contained in Annexure Nos.1 and 2 respectively to the writ petition.
Brief facts, relevant for the purposes of deciding this writ petition, are that the petitioner is admittedly tenant at the rate of Rs.200/- per month as rent in the shop in question at Cinema Road, Hardoi, of which the opposite party nos.3 and 4 are the landlords. The landlords moved application for release under Section 21 (1) (A) of U.P. Act No.14 of 1972 (hereinafter referred to as the "Act") for release on the ground that the applicant no.1 is the father and the applicant no.2 is the son who has completed his education and is unemployed and is of the age of 24 years; that he is going to be married soon; that the applicant no.1 is carrying on his shop and the applicant no.2 wants to establish his independent shop of general merchandise; that the applicants have got sufficient amount to establish the said business and he has got the statement prepared; that in the same vicinity shops in the vacant state are available but the tenant / petitioner did not pay any heed. Hence, notice dated 13.2.2001 was sent but the tenant did neither reply to the notice nor vacate the shop in question. Hence, application was moved.
In the written statement, petitioner pleaded that the applicant no.2 has unnecessarily been impleaded as party; that the landlords have filed Small Cause Case No.9 of 1989, which was decided in terms of compromise on 22.09.1999, in which the rent of the shop in question was raised from Rs.65/- per month to Rs.200/- per month; that the landlords are already carrying on the business of cloth merchant and are agriculturists too; that the landlords have a house in Mohalla Aliganj, District Lucknow, in a portion of which there is a Bank on lease and the remaining portion is vacant, where the landlords can open a shop; that the landlords are not in bonafide need of the disputed accommodation; that the shop in question is the only livelihood of the petitioner and he has in his family three major sons, two daughter in laws and one grand son, in addition to his wife; that the tenant shall suffer hardship in case of vacation of the shop in question as it is the only source of income of his family, where he is carrying on the business of tailoring for the last 37 years.
The learned Prescribed Authority proceeded with the case. Both the parties have lead evidence and after completion of hearing the release application was allowed. The petitioner preferred an appeal under Section 22 of the Act, which has also been dismissed on merits. Hence, the petitioner preferred this writ petition.
I have heard learned counsel for both the parties and have gone through the records.
The learned Trial Court has discussed the evidence in detail, considered the report of the Commissioner and affidavits filed by the parties and has correctly reached to the conclusion that the landlords / opposite party nos.3 and 4 bonafidely require the shop in question, for which they have got an estimate prepared. The landlords have Rs.55,000/- in cash. The discussions made and conclusions arrived at by the learned Prescribed Authority regarding bonafide requirement have not been challenged before this Court, during the course of arguments.
The next question relate to comparative hardship, which has also been not challenged before this Court seriously. Only two points were argued namely (1) that the learned Prescribed Authority as well as learned Appellate Authority have not considered partial release of the disputed accommodation and (2) availability of the alternative accommodation to the petitioner.
Though, the petitioner has not pleaded partial release, either in the written statement or during the course of arguments before the learned Prescribed Authority or before the learned Appellate Court, yet the Hon'ble Apex Court has held in Smt. Raj Rani Mehratra v. Iind Additional District Judge and others, reported in 1980 ARC Page 311 that while deciding the release the learned Prescribed Authority as well as this Court has to examine as to whether the landlord's need could have been satisfied by releasing only a part of the premises have not been gone into or considered by any of them. When the plea under the said rule was passed on behalf of the tenant in the High Court. The High Court rejected it on the sole ground that no such plea has been raised by the tenant in his written statement and as such it could not be considered. It is clear that under the relevant rule it is a duty of the court to take into account that aspect considering the requirements of personal occupation of the landlord and, therefore, this issue will have to be remanded to the High Court.
A serious consideration makes it clear that the learned Prescribed Authority has issued commission, whose report has not been filed by the petitioner but the learned Prescribed Authority has mentioned in the judgment that the tenant/petitioner has deposed in his affidavit that the size of the shop is 20 Feet X 11 Feet. During the course of arguments, learned counsel for the petitioner filed certified copy of the report of the commission along with site plan, which shows that the disputed shop is of 11 Feet width and is 23 Feet deep. A shop of width of 11 Feet cannot be partially released. Had the disputed shop been 23 Feet wide it could have been partially released. In case of partition of the disputed shop a width of 5.5 Feet would come in the share of the landlords and tenant equally which is of no use as it will turn the shape of a lane. In the 23 Feet length of the disputed shop, there are constructions on all the three sides, and this length of 23 Feet cannot be partitioned, as there will be no egress or ingress from the eastern portion of the disputed shop, as only western portion abuts the road.
As far as the question of availability of the alternative accommodation, the petitioner has failed to establish any serious attempts made by him, as is evident from the judgments of two courts below. The shops are available in the city of Hardoi. The petitioner could have got alternative accommodation. The Hon'ble Apex Court in the case of Siddalingama v. M. Shenoy AIR 2001 S.C. 2896 has held that Rent Control Act is basically meant for the benefit of tenant and provision of release on the ground of bonafide need is the only provision which treats the landlord with some sympathy.
The purpose of the Rent Control Act is not to protect the interest of the tenant, even at the cost of misery of the landlord. The only provision, relating to release to take some care of the tenants. The two Courts below have recorded a categorical finding, after appreciation of evidence of the parties, that the tenant / petitioner could have got alternative accommodation, if serious efforts would have been made by him. While dealing with similar situation the Hon'ble Apex Court in the case of Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada, AIR 2003 SC 2713 has held that the release is more appropriately within the domain of equitable or social justice. Section 13(2) obliges the Court, in spite of the finding as to reasonable and genuine requirement having been arrived at in favour of the landlord, to weigh in scales placing the hardship which would result to the landlord in case of denial of eviction in one balance pan and the hardship likely to be suffered by the tenant in case of his being evicted in the other and then find out judiciously which was the balance tilts. An empty truism cannot be hardship. It was also held that:-
"A mere wish or desire of the landlord to acquire possession over the tenancy premises cannot be said to be a bona fide and reasonable requirement. Requirement implies an element of necessity. The necessity is a necessity without regard to the degree of which it may be. For the purpose of Section 13(2) the degree of urgency or the intensity of felt-need assumes significance. It is a judicious process of finding out, as far as practicable, and then making a comparative measure of the two degree, which is involved in arriving at a finding on comparative hardship."
On the issue of comparative hardship, Lord Denning has opined:-
"When I look at all the evidence in this 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 buy 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 anything more than the minimum which every tenant can say, namely, that he has 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 anything 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."
Mst. Bega Begum and Ors. v. Abdul Ahad Khan (1979 AIR 272), is the leading case on the point, in which it was observed:-
".....it is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed but such an event would happen 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, by itself, be considered to be a hardship and be a valid ground for refusing the landlord a decree for eviction. In deciding the extent of the hardship, each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on plaintiffs to prove that lesser disadvantages will be suffered by the defendants and that they were remediable. The owner of the property cannot be denied eviction and compelled to live poorly merely to enable the tenants to carry on their flourishing business activity at the cost of the landlord. The fact that there is no other means for the landlord to augment his income except by getting the tenancy premises vacated compared against the conduct of the tenant who having obtained the premises for a fixed number of years has overstayed and enjoyed the premises for a long period of time are relevant factors not to deprive the landlord from the possession over the tenancy premises and recording a finding of no equity in favour of the tenants continuing in possession any further. If the tenants prove that they will not be able to get any accommodation anywhere in the city, that may be a relevant consideration. However, the tenant cannot insist on getting an alternative accommodation of a similar nature in the same locality because that will be asking for the impossible. What are to be weighed as relevant factors are the comparative inconvenience, loss, trouble and prejudice."
After repeated scrutiny of the judgments of the learned Prescribed Authority as well as learned Appellate Court, it is found that the release of the disputed premise has rightly been allowed by the learned Courts below and there is no legal infirmity in the discussions made and findings arrived at by the learned Prescribed Authority as well as learned Appellate Court.
Though, it was not argued either before the learned Prescribed Authority or before the learned First Appellate Court, yet I am mentioning that the petitioner is a tailor who is running a tailoring shop in the disputed premises. A tailor or persons like him viz. carpenter, electrician, halwai, baker etc. are known by their quality of work and not by the place where they carry on their business and, as such, there goodwill lies in their work and not to the place of work.
With these observation, writ petition is dismissed.
Order Date :- 13.09.2012.
Ram.