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. WPMS No. 231 of 2004 Shri Rati Ram Vs Additional District Judge & others Approved for reporting Not approved for reporting Date of decision 8.5.2006 Initial of Judge IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO. 231 (MS) OF 2004 Shri Ratti Ram, S/o Shri Moti Ram, R/o 24/45, Old Dalanwala, Dehradun. ............Petitioner. Versus 1. Additional District Judge/Fast Track Court-4, Dehradun. 2. prescribed Authority, Civil Judge, Sr. Div./F.T.C.-1, Dehradun. 3. Shri Kailash Dogra, S/o Shri Milkhi Ram, R/o 24/45, Old Dalanwala, Dehradun. .........Respondents. Dated: 08.05.2006 Hon’ble Rajesh Tandon, J. Heard Sri Ramji Srivastava, Advocate for the petitioner, learned Standing Counsel for the respondents no. 1 and 2. and Sri Sharad Sharma, Advocate for the respondent no.3. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 24.03.2004 passed in RCA No. 50/2003 Sh. Rati Ram Vs. Sh. Kailash Dogra and order dated 24.03.2002 passed by the Prescribed Authority in P.A. No. 25/2002 , Sh. Kailash Dogra Vs. Sh. Rati Ram and dismiss the release application i.e. P.A. Case No. 25/2002. FACTUAL MATRIX OF THE CASE Briefly stated, the dispute relates to the property no. 24/45, Old Dalanwala, Dehradun, where the petitioner is a tenant and respondent no. 3 is the owner of the property. Release application has been filed under Section 21 (1) (a) of the Act No. XIII of 1972 stating therein that the respondent no. 3 is the owner of the premises and the petitioner is month to month tenant on a rent of Rs. 210 per month. According to the case of the landlord/respondent no.3, he purchased property described in Schedule-A for his personal use and occupation. His family consists of his wife Vijay Laxmi and his minor son Master Shubham aged about 2 years. Landlord in his release app0lication has stated that he is living along with his family in Schedule –A property minus Schedule ‘B’ accommodation i.e. one room with common Varandah in part. Landlord has submitted that the property mentioned in Schedule-B is in possession of the petitioner and the rest part is in possession of the landlord. The description of the property is as under:- “SCHEDULE ‘A’ Portion of property bearing No. 24/45, Old Dalanwala Dehradun, consisting of 2 rooms, varandah, kitchen, bath- room and Angan bounded and butted as under:- North : Property of Rakesh Mohan. South : Property of Sri Inder Pal now ion occupation of Sri Bhopal Singh Rawat. East : Property of Sri Milkhi Ram. West: Property of Sri V.D. Sharma. “SCHEDULE ‘B’ Portion of Schedule ‘A’ property consisting of 1 room, 1 tin-shed kitchen, 1 tin shed bath-room and common varandah bounded and butted as under:- North: Property of Sri Rakesh Mohan. South : Property of Sri Inder Pal now in occupation of Sri Bhopal Singh. East: Portion of Schedule ‘A’ property in occupation of the petitioner. West: Property of Sri V.D. Sharma.” The Prescribed Authority has allowed the release application. On appeal, the same was dismissed. Both the courts below have recorded the concurrent findings regarding bonafide need as well as hardship to the landlord. Prescribed Authority has recorded the findings to the following effect:- “exj izkFkhZ }kjk 'kiFki= 49d ds lkFk esa fodz;i= dh izfr izLrqr dh x;h ftlesa mlds }kjk 24@45 vksYM Mkyuokyk nsgjknwu dh lEifRr dz; dh x;h Fkh rFkk fodz;i= ds lkFk layXud uD’ks esa izkFkhZ }kjk dz; dh x;h lEiRrh esa nks dejsa] cjkenk] jlksbZ] 'kkSpky;] o vkaxu fn[kk;k x;k gSA izkFkhZ ds dFkukuqlkj mDr nksuksa dejksa esa ls ,d dejk] l;qDr cjkenk] jlksbZ o ckFk:e foi{kh ds dCts esa gSa rFkk ,d dejk la;qDr cjkenk izkFkhZ ds dCts esa gS rFkk izkFkhZ }kjk la;qDr cjkens esa vLFkkbZ :i ls jlksbZ cukbZ gqbZ gS rFkk foi{kh ds dCts esa ,d dejk e; vU; lqfo/kkvksa ds gSA exj pawfd bu lkf{k;ksa }kjk vius 'kiFki= esa bl ckr dk mYys[k ugha fd;k x;k gS fd izkFkhZ ds ikl bl le; ;g dejk cjkenk o vkaxu ds vykok vU; dksbZ lEifRr Hkh gS blfy, ;g ckr fl) gks tkrh gS fd izkFkhZ ds ikl 24?45 vksYM Mkyuokyk esa ek= ,d dejk vkSj ,d la;qDr cjkenk ftlesa mlds }kjk vLFkkbZ jlksbZ cuk j[kh gS o ,d vkaxu gS rFkk izkFkhZ ds ifjokj esa og Lo;a mldh iRuh o ,d cPpk gS blfy, ifjokj ds lkFk ,d dejs esa xqtkjk djuk izkFkhZ ds fy, lEHko ugha gS rFkk esjh jk; esa mls de ls de nks dejs] ,d jlksbZ] ySVjhu o ckFk:e dh vko’;drk gS blfy, izkFkhZ dks foi{kh dh fdjk;snkjhokyh lEifRr ftlesa ,d dejk cjkenk o jlksbZ dh lnHkkoh vko’;drk gSA" BONAFIDE NEED OF THE LANDLORD Respondent no. 3 in paragraph 7 of his affidavit has stated that accommodation is insufficient. Paragraph 7 is quoted below:- “7. That as the accommodation in occupation of the petitioner is insufficient keeping in view his need, the petitioner requires the said property for his bonafide use and occupation. A portion of the common varandah in occupation of the petitioner is used as a make shift kitchen and bath- room. He requires the said property to meet his need.” Landlord has submitted that he is facing great difficulty in fulfilling his requirement, as he got only one room and the common varandah when in point of fact, the petitioner has no need of the accommodation as he hass also a residential accommodation in the name of his wife Smt. Chooti Devi being Premises No. EWS-243, M.D.D.A. Colony on Chandar Road, Dehradun. Along with the application, the respondent no. 3 has also filed his own affidavit stating therein his personal requirement for the premises in dispute. In the written statement filed by Sri Rati Ram in paragraph 23, it has been stated that the he is available with him following accommodation:- 1. Two big rooms each measuring 14’X16’ 2. one room measuring about 12’X12’, 3. one kitchen measuring 8’X6’m 5. bathroom measuring about 6’X6’, 6. Latrine measuring about 3’X3’ 7. Three big verandahs” Further in paragraph 51 it has been stated as under:- “51. That the contents of para 2 of the said affidavit No. 3 are wrong and are denied. It incorrect to say that Shrti Rati Ram is occupying the property which is situated just opposite to the property in which Shri Vikas Kumar is residing. It is entirely incorrect to say that Shri Rati Ram is occupying any property. Since Shri Rati Ram is not occupying any said property opposite 23 Old Dalanwala, Dehradun. Hence extent of accommodation cannot be taken into consideration for deciding the present petition. It is further incorrect to say that Shri Rati Ram obtained any water connection. So far as boundary wall and boundaries of the property wall is concerned these have been wrongly stated by Shri Vikash Kumar. The property alleged to be occupied by Shri Rati Ram is false and concocted story. Rest of the contents are incorrect and not admitted. Shri Vikas Kumar is put to strict proof thereof. So far as the property mentioned in para 2 of the said affidavit No. 3 is concerned the same belongs to Smt. Sodani Devi wife of Shri Sumera. This property was purchased by the Sale Deed Dated 28.3.2000 and the boundaries of the property has also been wrongly shown. Since the property belongs to the sister-in- law of the deponent and hence the deponent occasionally visits the property. There is no residential accommodation available in the said property. The said property has been mentioned by the petitioner with the sole purpose of mislead the Court and to mis-represent regarding the availability of residential accommodation with the deponent.” As will appear from schedule ‘A’ the landlord is residing in a 2 room accommodation and the other room being part of varandah, the same cannot be sufficient for the requirement of the landlord, his wife and one child. The aforesaid fact has been extracted from the affidavit of the landlord, Vipul Kumar (Paper No. 18d), affidavit of Surendra Prasad Tiwari. In the case of Smt. Sarla Ahuja Vs. united India Insurance Co. Ltd. AIR 1999 SC page no. 103, it has been observed as under:- “ When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bonafide. When other conditions of the clause are satisfied and when the landlord shows a prima facts case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bonafide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafide of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.” As will appear from the aforesaid case law that the landlord is the sole judge of his own need, so far as the comparative need is concerned, both the courts below have recorded a finding. The same is finding of Fact. In Jogendra Pal v. Naval Kishore Behal (2002) 5 SCC 397, it has been observed as under:- “8. The need for reasonable interpretation of rent control legislations was emphasized by this Court in Bega Begum v. Abdul Ahad Khan (1979) 1 SCC 273. Speaking in the context of reasonable requirement of landlord as a ground for eviction the Court guarded against any artificial extension entailing stretching or straining of language so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. The Court warned that 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. In Kewal Sing V. Lajwanti (1980) 1 SCC 290 this Court has observed, while the rent control legislation has given a number of facilities to the tenants, it should not be construed so as to destroy the limited relief which it seeks to give to the landlord also. For instance, one of the grouinds for eviction which is contained in almost all the personal necessity. The eocncept of bona fide necessity should be meaningfully construed so as to make the relief granted to the landlor real and practical. Recently in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 the Court has held that the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. 9. The rent control legislations are heavily loaded in favouir of the tenants treating them as weaker sections of the society requiring legislative protection against exploitation and unscrupulous devices of greedly landlords. The legislative intent has to be respected by the courts whle interpreting the laws. But it is being uncharitalbe to legislatures if they are attributed with an intention that they lean only in favouir of the tenants and while being fair to the tenants, go to the extent of being unfair to the landlords. The legislature is fair to the tenants to the landlords-both. The courts have to adopt a reasonable and balanced approach while interpreting rent control legislations starting with an assumption that an equal treatment has been meted out to both the sections of the society. In spite of the overall balance tilting in favour of the tenants, while interpreting such of the provisions as take care of the interest of the landlord the court should not hesitate in leaning in favour of the landlords. Such provisions are engrafted in rent control legislations to take care of those situations where the landlords too are weak and feeble and feel humble.” In Mst. Bega Begum V/s Abdul Ahamd Khan 1979 A.I.R. SC page 272, it has been held:- “The connotation of the term of the term ‘requirement should not be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for the landlord to get an order of release. Such a course defeat the very purpose of the Act, which affords the facility of eviction of the tenant to the landlord on certain specified grounds contemplated under section 21 of the Act. The provisions contained in the Act strike a just balance between the genuine need of the landlord on the one hand and the great inconvenience and troubles of the tenants on the other. Since section 21 of the Act is meant for the benefit of the landlord, therefore, it must be so construed as to advance the object behind the said provision. The tenant has to establish that if he is evicted he will suffer greater hardship as compared to the landlord and must lead clear evidence to show that in spite of the best efforts he was unable to get another alternative suitable accommodation in the absence whereof the scale of relative hardship may be titled in favour of the landlord as the inconvenience, loss or trouble resulting from a denial of the order of release in favour of the landlord will for out weight the prejudice or the inconvenience which may likely be caused to the tenants.” Following the decision of Bega Begum (supra), in the case of Joginder Pal vs. Naval Kishor Behal, 2002 Sc & FB, Rent Cases, 388, the apex Court has held as under:- 5. In Malpe Vishwanath Acharya and Ors. V. State of Maharashtra and Anr. (1998) 2 SCC 1) this Court emphasized the need of social legislations like the Rent Control Act striking a balance between rival interests so as to be just to law. “The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society”. While the shortage of accommodation makes it necessary to protect the tenants to save them from exploitation but at the same time the need to protect tenant is coupled with an obligation to ensure that the tenants are not conferred with a benefit disproportionately larger than the one needed. Socially progressive legislation must have a holistic perception and not a shortsighted parochial approach. Power to legislate socially progressive legislation is coupled with a responsibility to avoid arbitrariness and unreasonability. A legislation impregnated with tendency to give undue preference to one section, at the cost of constraints by placing shackles on the other section, not only intails miscarriage of justice but may also in constitutional invalidity. 8. The need for reasonable interpretation of rent control legislations was emphasized by this Court in Bega Begum v. Abdul Ahad Khan 1979 A.I.R. Sc page 272. Speaking in the context of reasonable requirement of landlord as a ground for eviction, the Court guarded against any artificial extension entailing stretching or straining of language so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. The Court warned that 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. In Kewal Singh v. Lajwanti this Court has observed, while the rent control legislation has given a number of facilities to the tenants, it should not be construed so as to destroy the limited relief which it seeks to give to the landlord also. For instance, one of the grounds for eviction which is contained in almost all the Rent Control Acts in the country is question of landlord’s bona fide personal necessity. The concept of bona fide necessity should be meaningfully construed so as to make the relief granted to the landlord real and practical. Recently in Shiv Sarup Gupta v. Dr Mahesh Chand Gupta8 the Court has held that the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. 9. The rent control legislations are heavily loaded in favour of the tenants treating them as weaker sections of the society requiring legislative protection against exploitation and unscrupulous devices of greedy landlords. The legislative intent has to be respected by the courts while interpreting the laws. But it is being uncharitable to legislatures if they are attributed with an intention that they lean only in favour of the tenants and while being fair to the tenants, go to the extent of being unfair to the landlords. The legislature is fair to the tenants and to the landlords – both. The courts have to adopt a reasonable and balanced approach while interpreting rent control legislations starting with an assumption that an equal treatment has been meted out to both the sections of the society. In spite of the overall balance tilting in favour of the tenants, while interpreting such of the provisions as take care of the interest of the landlord the court should not hesitate in leaning in favour of the landlords. Such provisions are engrafted in rent control legislations to take care of those situations where the landlords too are weak and feeble and feel humble. 30. In providing key to the meaning of any word or expression the context in which it is set has significance. Colour and content emanating from context may permit sense being preferred to mere meaning depending on what is sought to be achieved and what is sought to be prevented by the legislative scheme surrounding the expression. Requirement of landlord for his own use, is an expression capable for attributing an intention to the legislature that what was intended to be fulfilled is such requirement as would persuade the landlord to have the premises vacated by the tenant, to forego the rental income, and to put the premises to such use as the landlord would deem to be his own use and in the given facts and circumstances of a case the Court too would hold it to be so in contradistinction with a mere ruse to evict the tenant. The legislature intending to protect the tenant also intends to lift the protection when it is the requirement of landlord to put the accommodation to suc use as he intends, away from leasing it out. 31. If we do not meaningly construe the concept of requirement the provision may suffer from the risk of being branded as unreasonable, arbitrary or as placing uncalled for and unreasonable restrictions on the right of the owner to hold and use his property. We cannot place a construction on the expression ‘for his own use’ in such a way as to deny the landlord a right to evict his tenant when he needs the accommodation for his own son to settle himself well in his life. We have to give colour and content to the expression and provide the skin of a living thought to the skeleton of the words, which the Legislature has not itself chosen to define. The Indian society, its customs and requirements and the context where the provision is set in the legislation are the guides leading to acceptance of the meaning which we have chosen to assign to the words ‘for his own use’ in Section 13(3)(a)(ii) of the Act. The landlord has established that two sons namely Anil Kumar and Kamal Kumar are grown up, one is married, but both are completely unemployed and thus the requirement for residence as well for raising the business, both the courts below have come to the conclusion that the premises is required for the sons. While recording the finding with the regard to comparative hardship, it has come on the record that the landlord has no alternative accommodation, whereas, the tenant has got three room accommodation to accommodate the family members, therefore, the premises has rightly been released in favour of the landlord and the comparative hardship being a relative factor. The hardship also lies in favour of the respondents. In view of the above, I do not find any illegality in the order passed by the two courts below while deciding the need in favour of the landlord. COMPARATIVE HARDSHIP It has come on the record that the landlord, his wife and the children are living in one room, whereas the tenant has not made any effort to search another accommodation during the pendency of the eviction and as such so far as comparative hardship is concerned, the same lies in favour of the landlord. In the case of Prem Prakash Gupta and others Vs. Second Additional District Judge, Allahabad and others – Allahabad Rent Cases 1993 (1) page 77, it has been held that no doubt true that the tenant will have to be ousted from a house, if a decree of eviction has been passed, yet such an event by itself will not be a valid ground for refusing a decree for eviction. The observation in the case of Prem Prakash Gupta (Supra) is quoted as below:-- “As observed by this Court in its decision in the case of Rajeshwari Prasad Vs. Fateh Bahadur Chaturvedi and others reported in 1984 (1) A.R.C. 387, the bona fide need is the foundation of application for eviction of a tenant without which it cannot be allowed. Hardship is relative word. In our society with divergence of economic prosperity no single test can be laid down for it. In some cases, drawing room, guest room, consultation room may be necessary. In other a pretext only. What may be valid and relevant consideration in relation to one land landlord and his tenant may not be relevant for the other.” In Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada 2003 SCFBRC 166 the Apex Court observed as under:- “In piper Vs. Harvey, 1958 (1) All. E.R. 454, the issue as to comparative hardship arose for the consideration of Court of Appeals under the Rent Act, 1957. Lord Denning 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 on him to prove) the case is 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 incompetent 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.” Both the courts below have recorded a finding of fact regarding the requirement of the landlord as well as the findings being finding if fact, no interference under Article 226 of the Constitution of India. Both the courts below have come to the conclusion that the landlord is residing in a one room accommodation and as such the family is not able to live properly due to the paucity of the accommodation. Both the courts below have recorded a finding that the landlord requires the accommodation and the requirement of the landlord need no interference under Article 226 of the Constitution