HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) Chapter VIII Rule 32 (2)(b) Description of the case. W.P. No. 317 (M/S) of 2003 Ashwarya Lal Vs Satya Prasad Approved for reporting ___________________ Not Approved for Reporting Date of decision 27.9.2004 Initial of Judge Reserved IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 317 (M/S) of 2003 Ashwarya Lal …………………. Petitioner Versus Satya Prasad …………………. Respondent. ……… Hon. Rajesh Tandon J. By the present writ petition, the petitioner has prayed for quashing of the order dated 23.12.2002 and decree dated 24.12. 2002 passed by the Prescribed Authority as well as the order passed by the appellate Authority dated 25.3.2003 and decree dated 02.04.2003 contained in Annexure 3 to 6 of the writ petition. Factual Background of the case. Briefly stated the application was filed under section 21 of the U.P.Act No. 13 of 1972 stating therein that the landlord respondent is the owner of the property situate at Rudraprayag near Bus Station on Badrinath and Rishikesh Road. The shops have been shown from the letters a, b, c, d and both the shops are adjoining to each other. The shop in dispute was let out by the father of the landlord to Hansraj, the father of Sri Ashcharya Lal at the rate of Rs. 100/- per month. The shops situate on the first floor whereas the houses are situate below the shops The rooms, which are below the shops are being used for residential purposes of the landlord. The petitioner has denied the averments made in the application and in para 6 of the written statement it has been stated that the son of the landlord has got a licence for running the grain dealer business and the same in being done from his house itself. He has stated that the second son Naresh Prasad has got a shop at main Bazaar in the name of ‘Nautial Pan Bhandar’ and two other sons are students. Both the parties have filed their affidavits. On behalf of the landlord paper no. 3 Ka/3 (affidavit) and paper no.21 Ka- the affidavit of Sachchidanand and the documents were filed viz. paper no. 11 Ga. (certificate of the Executive Officer Nagar Panchayat, Rudraprayag), 12 Ga. (report of the Patwari), 13 Ka (power of attorney), 19/2, (copy of F.D.R.), 19/3 copy of S.B. A/c No. 01190007279, etc. The Prescribed Authority allowed the application of the landlord under section 21 of the Act on 23.12.2002. Against which, tenant has filed appeal before the District Judge, who dismissed the same on 25.3.2003. Bona fide need of the Landlord In paragraph 5 of the application the landlord has stated that the shops were constructed 75 years ago and the same is in dilapidated condition and since the landlord himself is residing below the shops there remains a tension in the mind of the landlord that it can fall at any moment. It reads as under: “fd ;g nqdku oknh ds firk L0 e?kokuan }kjk 75 o’kZ iwoZ cukbZ xbZ FkkhAnqdku feVVh vkSj iRFkj dh cukbZ xbZ FkhA vkSj orZeku esa nqdku fd fZLFkfr vR;ar th.kZ”kh.kZ gks pqdh gSA vkSj nqdku] edku fdlh Hkh le; VwV dj fxj ldrh gSA nqdku@edku dh nhokj ij dbZ txg njkj iMh gS vkSj nqdku dk u;s fljs ls cuk;s tkuk vR;ar vko”;d gSA ;fn nqdku u;s fljs ls cukbZ tk;sa rks og dHkh Hkh fxj ldrh gS vkSj oknh dks ifjokj Hkh nqdku ds uhps jgrk gSA ftlls tku o eky dk [krjk cuk gqvk gSA ” In para 6 of the application, it has been stated that the landlord has got four sons and none of them are employed and the shop is required for his elder son and the shop will be constructed after demolition after the tenant vacates it. It reads as under: “fd oknh ds pkj iq= gS vkSj oknh dk viuk Lo;a dksbZ O;olk; ;k ukSdjh ugh gSA mldk lcls cMk yMdk 26 o’kZ dk gS] vkSj iMk fy[kk gS] ysfdu mldk dksbZ jkstxkj ugh gS fcuk fdlh jkstxkj ds og cMk ijs”kku gS] oknh dks vius ifjokj dh vk; ds fy;s vius cMs yMds dks dksbZ O;olk; o nqdku djus ds fy;s ,aoe nkckk] nqdku dks u;s fljs ls cuus ds mijkar Loa; dh vko”;drk ¼ bona fide need½ gS rkfd og nqdku ij dqN dek lds vkSj ifjokj dh jksth jksVh dh O;oLFkk gks ldsaA ” On behalf of the petitioner, affidavit of Sachhidanand was filed. During the pendency of the case, the landlord has filed the affidavit showing the requirement of two brothers who were studying at the time of filing of the application and also the fact that with regard to the dilapidated condition of the building due to landslide. Paragraph 8, 9 and 12 of the affidavit are quoted below: “fd pwWafd “kiFkdrkZ dk mDr edku yxHkx 35 o’kZ iqjkuk cuk gqvk gS vkSj vc thoZ”kh.kZ gkyr esa gSA ftldks u;s fljs ls cuk;k tkuk vR;ar vko”;d gS A blds vykok o’kZ 1991&92 esa vk;s fouk”kdkjh HkwdEi ds dkj.k o igkMh /kjkry ij edku fufeZr gksus ds dkj.k Hkh mDr edku vR;ar th.kZ”kh.kZ gks pqdk gSA ftldh u;s fljs ls uo&fufeZr djk;k tkuk vkok”;d gSA foi{kh ls iz”uxr nqdku dks [kkyhdjk;k tkuk vR;ar vko”;d gS rkfd th.kZ”kh.kZ edku dk iqu%fuek.kZ djk;k tk;sa rFkk “kiFkdrkZ o mlds ifjokj ds tkueky o jgus ds LFkku dks lqjf{kr cuk;k tk ldsA fd “kiFkdrkZ ds pkj iq= gS A “kiFkdrkZ dk Lo;a dk viuk dksbZ O;olk; ugh gSA vkSj u gh og dksbZ ukSdjh djrk gSA og lk/ku lEiUu O;fDr ugh gSA mldk cMk yMdk Hkh i<k fy[kk gS mlds fy;s dksbZ jkstxkj ugh gSA nwljk yMdk Hkh csjkstxkj gSA blds vfrfjDr mlds nks iq= gS tks fd orZeku le; esa csjkstxkj gks dj ijs”kku gSA “kiFkdrkZ Lo;a viuh voLFkk rFkk nqdku gkus ds ckotwn ijs”kku gS D;ksfd “kiFkdrkZ ds iq= csjkstxkj gSA “kiFkdrkZ }kjkokn o’kZ 1999 esa lafLFkr fd;k x;k FkkA ml le; mlds nks iq= gkbZLdwy baVj esa i<rs Fks tks fd vc csjkstxkj gS bl izdkj “kiFkdrkZ ds pkjksa iq= csjkstxkj gS “kiFkdrkZ dks iz”uxr nqdku dh lnHkkoh vko”;drk gS rkfd og vius thrs th vius iq=ksa dks [kkrk&dekrk NksM ldsa A fd “kiFkdrkZ mDr edku fuekZ.k gsrq iz;kljr gS ,oa ,Q0 Mh0 o djUV&,dkmUV esa ls yksu ysdj edku fuek.kZ pkgrk gS ,oa vius iq=kksfd jkstxkj ij lqO;ofLFkr ns[kuk pkgrk gSA foi{kh@”kiFkdrkZ dh lk[k ckor es vU;= Hkh nqdku izkIr dj ldrk Fkk A rqyukRed n`f’V ls “kiFkdrkZ dks mDrnqdku dh vR;f/kd vko”;drk gSA” I have perused the record and the affidavit filed by the parties. The landlord has clearly stated that four children are completely unemployed. Prescribed Authority after taking into consideration the requirement of the landlord has allowed the application of the landlord. During the pendency of the appeal the Appellate Court itself has inspected the place and the report is quoted below: “vk”p;Z ykyz ds ikl tks nqdku gS A ml ij fVu”ksM yxk gqvk gSA xRrk txg &txg VwVk gSA dkMZ cksMZ ds vkxs fVu”ksM yxk gqvk gSA nqdku esa tujy LVksj dk lkeku gSA nqdku dh mRrj fn”kk esa ydMh ds r[rksa dk ikVhZ”ku yxk gqvk gSA ,aoe if”pe fn”kk esa ydMh ds r[rksa esa ikVhZ”ku yxk gqvk gS ,oa if”pe fn”kk esa fnoky ds Åij dk fgLlk VwVk gqvk gS A fVu “ksM yxk gqvk gSAnqdku ds uhps LVksj gSA nqdku dh Åij tkus ds fy;s lh<h ugha gSA vanj xksnke gS nqdku ds vUnj dh fLFkfr ]nqdku ds Åij fVu “ksM yxk gqvk gS vkSj nqdku ds Åij r[rs yxs gq;s gSA nf{k.k okyh fn”kk esa Hkh VwVk QwV gS A vUnj xksnke ds uhps edku ekfyd us viuk jguk crk;kA ftlds tkus dk jkLrk cxy ls gSA igys nksuksa nqdkus ,d gh Fkh fctyh dk ehVj o dusD”ku tgka yxk gqvk gSA ogka ij Hkh nhoky VwVh QwVh gSa bl fjiksVZ ls Li’V gksrk gSA fd nqdkuksa ds uhps tks xksnke gSa mlesa uhps dejk gS mlesa edku ekfyd jgrk gSA if”pe oky nhoky VwVh gqbZ gS iwoZ okyh nhoky VwVh gqbZ gSA vk'p;Z yky ds nqdku xksnke dh uhps dejk gS A ftl jesa”k pUnz dh naqdku ds uhps Hkh ,d dejk gSA ftldh fLFkfr larks’ktud ugh gSa nksuks dejksa dh ejEer dh vko”;drk gS Ablds vykok edku ekfyd ds ikl ,d dejk gSA ftlesa mldh ekrk jgrh gS A ,d dejk xsLV ds fy;s gSA tks fd u;k gSA xksnke ds uhps okyh nqdkuksa ds ckgj nhokys Hkh VwVh QwVh gqbZ gSA jk”ku dh nqdku edku ekfyd ds ikl gSA ftlesa lfPpnkuan nqdku djrk gSA edku ekfyd viuh fdjk;snkjh okyh nqdkusa ds jkLrk cukuk pkgrk gSA mijksDr fjiksVZ ls Li’V gksrk gS fd ftl dejs esa edku ekfyd jgrk gSA vkSj tks nqdkuksa ds uhpsa gS mldh fLFkfr th.kZ”kh.kZ gSA nhokyksa dh fLFkfr Hkh larks’ktud ugh gSa mldks Hkh fxjkdj fuek.kZ djkuk vko”;d gSA /kkjk 21 ¼1½ ¼d½ m0iz0 “kgjh Hkou fdjk;sa ij nsusa] fdjk;sa rFkk csn[kyh fofue; vf/kfu;e 1972] ds vUrxZr izkFkhZ dks ;g vf/kdkj gS fd og viuh nqdkuksa dks th.kZ”kh.kZ gksus ij mldks fxjkdj vius ifjokj ds lnL;ksa ds fy;s mudh vo”;drkuqlkj [kkyh djk ldrk gSA” From the inspector report, it is evident that the landlord has no place to accommodate his son in the independent business and further the shop is in dilapidated condition. The law on the subject of the personal requirement has been sufficiently explained by the Apex Court as well as by the various High Courts from time to time. Relevant Case Law on Bona fide need: In the case of Bega Begum 1979 A.I.R. SC page 272 the Apex Court has observed in case of eviction in every case the tenant has to suffer hardship and that cannot be a ground for refusing the release application. The observation of the Apex Court are quoted below: Paragraph 12- “Moreover, section 11(1) (h) of the Act uses the words reasonable requirement which undoubtedly postulate that there must be an element of need as opposed to a mere desire of wish. The distinction between desire and need should doubtless be kept in mind but not so as to made even the genuine need as nothing but a desire as the High Court has done in this case. It seems to us that the connotation of the term ‘need’ or ‘requirement’ should not be artificially extended to its language so unduly stretched or strained so as to made it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act, which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts, prevalent in other States in the country. This Court has considered the import of the word ‘requirement’ and pointed out that it merely connotes that there should be an element of need.” Paragraph – 19 “ In this connection our attention was drawn to the evidence led by the defendants that the main source of their income is the hotel business carried on by them in the premises and if they are thrown out they are to likely to get any alternative accommodation. The High Court has accepted the case of the defendants on this point, but does not appear to have considered the natural consequences, which flow from a comparative assessment of the advantages and disadvantages of the landlord and the tenant if a decree for eviction follows. 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 was fully in contemplation of the legislature when section 11(1)(H) of the act was introduced in the Act. This by itself would not be valid ground for refusing the plaintiffs a decree for eviction. Paragraph 26 “ Thus, on a careful comparison and assessment of the relative advantage and disadvantages of the landlord and the tenant it seems to us that the scale is tilted in favour of the plaintiff. The inconvenience, loss and trouble resulting from denial of a decree for eviction in favour of the plaintiffs far outweight the prejudice or the inconvenience which will be caused to the defendants. The High Court has unfortunately to weighed the eviction from that point of view.” Paragraph 28. “ For the reason given above, the appeal is allowed. The judgment and decree of the High Court are set aside, and a decree for ejectment of the defendants from the house in dispute is hereby passed against the defendants. In the peculiar circumstances of this case, there will be no order as to costs.” Following the decision of Bega Begum, in the case of N.S.Dutta Vs. VIIth Additional District Judge, Allahabad, 1984 ARC (1) page 113, it has been held as below: “ The expression “bona fide required” appearing in the context of Section 21 (1) (a) has received judicial interpretation in various pronouncements. The assessment has to be objective depending upon the facts and circumstances of the case. The word “required” it was pointed out in Mattu Lal Vs. Radhey Lal A.I.R. 1974 SC 1596, signifies that mere desire on the part of the landlord is not enough, but there should be an element of need and the landlord must show that he genuinely required non-residential accommodation for purposes of starting or continuing his own business( See also Ajit Prasad Vs. IVth Addl. District Judge, Meerut, 1979 ARC 73). The need of the landlord does not, however,, have to be shown as absolute. In Smt. Gindori Devi Vs. IInd Addl. District Judge and others, 1979 (UP) RCC 599, at page 601, it was held:- “ It would suffice to mention that a person is said to need a premise bona fide if he requires it honestly. Similarly, the word “required” has also been interpreted in several cases, and the connotation of the said word shows that the landlord must need the premises. In order to succeed in such an application, it is not necessary that the landlord must be on the streets. The connotation of the word “need” or “requirement” should not be unnecessarily or artificially extended so as to give it a meaning that a landlord cannot get a premises released unless his requirement is absolute. No doubt, the question of need of a landlord is to be decided objectively and its decision should not be based on the ipse dixit of the landlord, but that does not mean that he must stand on extreme need before he could succeed.” In Jayant Kumar Vs. Prescribed Authority and others, 1979 (UP) RCC 132 it was reiterated that:- ‘ It is, however, not necessary that the landlord must stand in absolute need of the property. The requirement of law is that the need of a landlord must be honest and in good faith. It is not correct that a landlord cannot succeed unless he is found in an extreme need.”……………. “ The proviso to section 21(1) as also the Explanation to section 11 (1)(h) of the other Act ( quoted above) require as mandatory regrd being had to the advantage or disadvantages on either side in the event of the application being allowed or otherwise. “ To put this, in other words, therefore, there is no difference in substance due to the provision in our Act being designated as a ‘proviso’ instead of an ‘explanation’. The provision is in ‘ pari materia’ and that has also been the consistent view of this Court (See : Sanwal Das Banka Vs. IIIrd Additional District Judge, Faziabad 1982(1) ARC 24; Radhey Shyam Vs. Ivth Addl. District Judge, Bulandshahr 1980 ARC 594. In M/s Central Tobacco Co. Vs. Chandra prakash an unreported decision of the Supreme Court of 1969, which has been followed in Bega Begum (supra) and again in Phiroze Bamanji Desai Vs. Chandrakant N.Patel, (1974) 1 SCC 661, it was held that each party must adduce evidence to show that hardship could be caused to him by the granting or refusal of the decree and that the tenant must also adduce evidence to the effect that other reasonable accommodation was not available to him. The view taken in Bega Begum (supra) has been followed in Kewal Singh Vs. Lajwanti, (1980) 1 SCC 290. The Court is entitled also to take into account the fact that the tenant has neither alleged, nor proved to have made effort to have an alternative accommodation. Nur Ilahi Vs. IIIrd Addl. District Judge, Saharanpur and others, 1983 (1) ARC 412; Sanwal Das Banka, 1982 (1) ARC 24 (supra). Moreover, the non-availability of alternative accommodation to the tenant is in itself not the adequate ground to reject the landlord’s application vide Kamal Khan Vs. IIIrd Addl. District Judge, Bareilly and others, 1982 (1) ARC 783. In Suraj Prasad Sharma Vs. IInd Additional District Judge, Mirzapur and others (1983) Addl. CJ. 432; 1983 (1) ARC 427, brother M.N.Shukla, J observed:- “ It is common place fact that invariably when an application under section 21 of the Act is allowed, the tenant has to quit and this involves discomfort but it this alone were sufficient to non-suit the landlord, no application for release could ever be allowed. Judging comparative hardship’ is a matter of deeper import and it would be a lopsided other which dismisses a landlord’s application for release merely with the plaintiffs dinous observation that the tenant would be ‘thrown on the street” The physical dispossession of the tenant is the necessary concommitment of every release application of the landlord which is allowed. However, well founded the application may be an element of inconvenience or discomfort is inherent in the very process of vacating an accommodation. A release application cannot be thrown out merely with the bald observation that the tenant would suffer greater hardship.” In Radhey Shyam Vs. IVth Additional District Judge, Bulandshahr and others, 1980 ARC 594 (supra) the appellate court held that the landlord should himself take one of the shops pointed out by him on rent as the landlord’s son had to start a business so that he could make the beginning anywhere without any prejudice, the tenants had a goodwill in respect of the shop in dispute having been carrying on business therein for nearly forty years. Learned Singh Judge considered as weighing the scales for too much against a landlords and it was observed that “ if the view taken by the District Judge is accepted, the landlord intending to start a business can never expect to get his shop. For his claim could always be defeated by a sitting tenant on the short ground that the landlord has to make a start while the tenant has already bee in the business for a longer time.” In Tej Kumar Vs. Additional District and Sessions Judge, Hardwar and others - 1994 ARC 117, following the aforesaid two decisions (Bega Begum and others Vs. A.A.Khan and others (1979 (1) SCC 275) and N.S.Dutta Vs. VIIth Additional District Judge, Allahabad 1984 ARC (1) page 113), it has been held as under: “ The inaction of the tenant to search for an alternative accommodation, as already indicated hereinbefore, constitute an additional factor which may outweight the hardship, if any, likely to be suffered by the tenant in the event of the grant of the release application in case where the bona fide requirement for the release stands conclusively established.” In Tej Kumar Vs. Addl. District Judge, Hardwar (supra) following observations have also been made: “There could be no manner of doubt that the release contemplated under section 21 (1)(a) of the Act can be granted for setting in a new venture of the unengaged member of a family. There is nothing in the Act or policy underlying it, which may lead to any inference contrary to it. In the present case, the bonafide need of the disputed shop was the need to settle Pradeep Kumar in an independent business. The need to set up a son in an independent business has always been recognized as bonafide and genuine. Even if some members of the family are engaged in the business that cannot be an impediment for the grant of release of the accommodation for enabling the unemployed or unengaged member of the family to start business of his own or for augmenting income as each adult member of the family is entitled to work for his own independent existence and is further entitled to chose a vocation suiting his individual aptitude, education and qualification. Further there could be no manner of doubt that such release can also be granted to provide a source to augment the income of a family member so trhat he may lead a descent life and cater to the need of his growing family.”…………………….. This Court in its decision in the case of N.S.Datta and others Vs. VIIth Additional District Judge, Allahabad and others, reported in 1984 (1) ARC 113, had observed that the proviso in question requires a mandatory regard being had to the advantages or disadvantages either in the event of the application for release being allowed or otherwise but each party was required to adduce evidence to show that hardship could be caused to him by grant or refusal of the release of the building under tenancy and that the tenant must also adduce evidence to the effect that other reasonable accommodationwas not available to him. It was further observed that the Court is entitled also to take into account the fact that the tenant has neither alleged nor proved to have made effort to have an alternative accommodation and that non- availability of alternative accommodation to the tenant is not in itself an adequate ground to reject the landlord’s application for release. In its decision in the case of Dr. Munni Lal Vs. IVth Additional District Judge, Etah and others reported in 1984(1)A.R.C. 378, this Court has clarified that the fact that nothing is brought on record indicating that the tenant had made any effort during the period of the pendency of the release application for getting some accommodation allotted in his favour or otherwise or that he had failed in his attempt is a relevant circumstances while considering the question relating to comparative hardship. Taking into consideration the scheme of the Act, I am of the firm opinion that such an inaction on the part of the tenant constitutes an additional circumstance which entitles the landlord to have a preference shown to him while striking the just balance between the genuine need of the landlord on the one hand and the likely inconvenience or trouble of the tenant on the other. It may further be borne in mind that the use of the phrase “having regard to” as envisaged under the fourth proviso to section 21 of the Act would clearly show that his provision was not obligation. The factors mentioned in Rule 16 of the Rules, should, however, have to be kept in mind while deciding the release application. No single factor can be held to be conclusive. As observed in its decision in the case of Mohd. Muslim Vs. District Judge Varanasi and others, reported in 1978 ARC 328, it is the cumulative effect of all that has to be seen. The inaction of the tenant to search for an alternative accommodatin, as already indicated hereinbefore, constitutes an additional factor which may outweight the hardship, if any, likely to be suffered by the tenant in the event of the grant of the release application in case where the bona fide requirement of the release stands conclusively established. Considering the facts and circumstances of this case, the findings recorded by the Appellate Authority on the question relating to the bona fide need and relative hardship which findings are based on appraisal of evidence and the