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. 4646/2001 (M/S) (Old No. 11743/1995) Smt. Neema Begum & others Vs 3rd Addl. District Judge Dehradun & others. Approved for reporting ___________________ Not Approved for Reporting Date of decision 23.8.2004. Initial of Judge HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 4646 of 2001 (MS) (Old No. 11743/1995) Smt. Neema Begum & others ………. Petitioners Versus 3rd Addl. District Judge, Dehraun & others ………. Respondents Sri Vinai Kumar, Advocate for the petitioners Sri Anil Dabral, Advocate for the respondent no.3. Dated: 23.8.2004 Hon. Rajesh Tandon J. Heard the learned counsel for the parties. By the present writ petition the petitioner has challenged the order dated 15.12.1992 passed by the Prescribed Authority and order dated 27.4.1995 passed by the 3rd Addl. District Judge, Dehradun. Factual Aspects of the Case: Briefly stated the facts giving rise to the present writ petition are that the petitioners are the tenants of the accommodations house no. 7, Naya Nagar, Dehradun. The respondent no.3 purchased the property in suit in November 1962. The respondent no.3 has filed the application for release on the ground that Sri Manzoor Ahmed was allotted a portion of the first floor of house no.7, Naya Nagar, Dehadun. Sri Manzoor Ahmed one of the joint tenents of the said property died a few years ago at Dehradun and the petitioners are claiming to be his legal representatives and heirs. Sri Abdul Kadir, the elder brother of the respondent no. 3purchased 2/3rd share of the house bearing No.7 Naya Nagar Dehradun in court auction in original suit No. 287 of 1951 and Execution Case No. 12 of 1959, Ram Kishan vs. Mohammad Ahmed of the Court of Munsif, Dehradun. Later on he purchased the remaining 1/3rd share from the competent authority, Evacaues Property, Moradabad Zone, Meerut on 13.11.1962. There was a partition between the brothers on 24th February 1979 and the partition Deed is registered in Book No.1, Vol. 1561 at Sl. No. 2311 on pages 59 to 67 on 21st March 1979 in the office of the Sub Registrar, Dehradun. As per the said partition deed the said property has fallen to the share of the petitioner. Thus the petitioners have become tenants of the respondent no.3 by operation of law. The petitioners have a flourishing business. They had property on Chakrauta Road, which they sold to the proprietors of M/S Krishna Palace, Picture Hall, Dehradun. The petitioners can easily find out the accommodation if they so wish. Whereas the landlord has no other property except the said property. The petitioners have filed written statement and denied the averments made in the release application. They have stated that Sri Haji Abdul Qadeer had filed an application against the opposite parties in the year 1976 under section 21 of the U.P. Act No. XIII of 1972, which was rejected by the prescribed authority. The respondent no.3 is not the landlord and owner of the disputed property but Haji Abdul Qadeer has shown himself as owner and landlord of the disputed property. After rejection of the application Hazi Abdul Qadeer had filed an appeal in the Court of District Judge, Dehradun which was also rejected. Hazi Abdul Qadeer is the landlord of the property in dispute and he purchased the same in the year 1962 in an auction. The respondent no. 3, his family along with his brother Haji Abdul Qadeer along with his family have been residing in a huge building. The respondent have also given description of the accommodation in possession of the petitioners. The respondents have further stated that Haji Abdul Qadeer has been allotted accommodation 6 Nayanagar, Dehradun. Bona fide need: The respondent no.3 has filed a release application on the ground that the number of family members in the house of respondent no.3 are 13. The house in question was solely purchased by Sri Abdul Qadeer in auction. The prescribed Authority vide order dated 28.2.1977 has rejected the application. The appal was also dismissed in 1977. Later on another application for release was filed on behalf of the brother of respondent no.3 Sri Haji Abdul Qadeer on the ground of personal need which was dismissed vide order dated 28.2.1977. The appeal filed against the order was also dismissed by the District Judge vide order dated 19.12.1977. Thereafter the family was divided and a registered partition has taken place in the family. In pursuance of the family partition the present released application was filed in the year 1984. The landlord has filed the affidavit in support of the released application. The applicant has mentioned in the release application as under: “That the petitioner is employed in O.N.G.C. as Chargement, and he is posted in the Central Workshop, Kaulagarh, Dehradun. His family consists of himself, his wife and seven children. The names are given here under: a) Petitioner b) Smt. Zubaida Begum (Wife) c) Km. Shabana Parveen- aged 13 years daughter d) Master Mohd. Taraeq –10 years –son e) Master Mohd. Sajid- 8 years- son f) Master Mohd. Majid-6 years- son g) Master Mohd. Aajim- 4 years- son h) Km. Shahita Parveen-2 years- daughter) i) Master Mohd. Kasim-6 months-son Along with his affidavit 74-ka the petitioner has submitted affidavits of Maksud Ahamad, Makbul Ahamad, Smt. Neema Begum, Saiyad Mohd. Khalid, Altaf Ahamad, Manjur Ahamad and copy of Goshwara dated 13.9.89. On behalf of respondent no.3 has filed copy of partition deed dated 23.2.79, notice dated 6.7.81, postal receipts, photo copy of ration card, copy of sale deed dated 17.11.61 and 13.11.62. He has also filed affidavit of Hazi Abdul, certified copy of the assessment of Nagar Palika for the year 1984-89 and postal receipts. The Prescribed Authority, Dehradun has allowed the release application on 15.12.1992 and has recorded the findings on the bona fide need to the following effect: tgkW rd izkFkhZ }kjk okLrfod vkSj rhoz vko”;drk dk iz”u gsS izkFkhZ us viuh isVh”ku esa Lo;a viuh ifRu rFkk lkr cPps ftudh mez isVh”ku nk;j djrs le; dze”k% nks o’kZ ls ysdj 13 o’kZ rd Fkh] crkbZ gSA nl lky ds varjky ds ckn vc nu cPpksa dh mezsa 12&13 lky ls ysdj 23&24 lky rd dh gks xbZ gksxhA izkFkhZ us viuh ;kfpdk esa ;g ckr Li’V :Ik ls mYys[k fd;k gS fd izkFkhZ o mlds ifjokj ds yksx vius HkkbZ vCnqy dkfnj ds lkFk muds fgLls esa jg jgsa gS vkSj mudh n;k ij fuHkZj nsa rFkk izkFkhZ o muds ifjokj ds lnL;ksa dh xqtj ,d dejs esa ugha gks ldrhA blh ckr dks izkFkhZ us vius “kiFki=ksa esa Hkh ftudk mYys[k Åij fd;k tk pqdk gS esa Hkh fd;k gSA foi{kh }kjk ;g ckr dgh dh xbZ fd izkFkhZ o muds HkkbZ vCnqy dknhj ds ikl cgqr txh gS vkSj muds ikl ,d Hkou ds vfrfjDr dbZ Hkouksa esa LFkku gSA ftudk mYys[k fd;k tk pqdk gS vr%mUgsa fooknhr laifRr dh vko”;drk ugh gSA ;g Hkh dgk x;k gS fd izkFkhZ ,d /kuoku O;fDr gSA tgkW rd foi{khx.k ds bl dFku dk iz”u gS mUgksusa vius izfrokn i= esa vkSj u vius i{k esa nkf[ky fd;s x;s “kiFki=ksa ;g ckr dgh gS fd izkFkhZ d ikl fookfnr laifRr ds vfrfjDr mDr Hkou esa vkSj fdruk LFkku gSA vCnqy dkfnj ds ikl miyC/k LFkku dks izkFkhZ }kjk izLrqr bl ;kfpdk esa ugh ns[kk tk ldrkA foi{khx.k dk ;g dFku Hkh gS fd izkFkhZ us vks0,u0th0lh0 dkykSuh esa ,d Hkou izkIr dj fy;k gS vkSj vc mudk ifjokj lq[kiwodZ jg jgk gS A blds tckc esa izkFkhZ }kjk ;g ckr Lohdkj dh xbZ gS fd tc mlds ifjokj dh xqtj clj vCnqy dkfnj ds lkFk vlEHko gks xbZ rks mlus vius foHkkx ls fdjk;s ij ,d Hkou fy;kA fo}ku vf/koDrk vihykFkhZ us ;g rdZ izLrqr fd;k fd tc izkFkhZ ds ikl jgus ds fy;s Hkou miyC/k gS rks mldh vko”;drk dks ,slh fLFkfr us lnHkkoh ugh ekuk tk ldrk esa fo}ku vf/koDrk ds bl rdZ esa dksbZ cy ugh ikrk D;ksfd Hkou Lokeh dk fdjk;snkj esa miyC/k Hkou Loa; esa bl ckr dk ?kksrd gS fd mls vius futh Hkou dh jgus gsrw vo”;drk gSA nkSjku rdZ izkFkhZ @ izR;kFkhZ ds fo}ku vf/koDrk us ;g ckr crkbZ fd izkFkhZ dk LFkkukUrj.k vklke esa gks x;k gSA vkSj mls feyk gqvk Hkou mls fjDr djuk iMk gS A bl ckr ls vihykFkhZ ds fo}ku vf/koDrk us esus le{k baudkj ugh fd;kA ,slh fLFkfr esa vij U;k;ky; }kjk izkFkZkh dh vko”;drk dks okLrfod vkSj rhoz vko”;drk ekuus esa dkbZ Hkwy ugha dh xbZ gSA The petitioners have filed an appeal against the aforesaid order which was dismissed vide order dated 27.4.1995. Feeling aggrieved the present writ petition has been preferred by the petitioners appellants. Both the courts below have given concurrent findings on the point of bona fide need of the landlord. The landlord was ousted from his residential house and he is residing in the accommodation given by his employer. Thus the need of the landlord is bona fide. 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 of suffer hardship and that cannot be a ground for refusing the release application. The observation of the Apex Court are quoted below: Paragraph 13-“ 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 make 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 terms ‘need’ or ‘requirement’ should not be artificially extended to its language so unduly stretched or strained so as to make 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 for 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 Jogendra Pal vs. Naval Kishore Behal, 2002 SC & FB, Rent Cases, 388 the Apex Court has held as under: 8. The need for reasonable interpretation of rent control legislations was emphasized by this Court in Bega Begum v. Abdul Ahad Khan6. 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 afford 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 the 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. 10. Both the learned counsel for the parties submitted that so far as the expression “his own use” as occurring in Section 13(3)(a)(ii)(a) is concerned, no occasion has hitherto before arisen enabling this Court making an authoritative interpretation and pronouncement. The nearest available decision is Bega Begum6 which has been referred to by the High Court in its impugned judgment and was relied on by Shri Sudhir Chandra, the learned Senior Counsel for the respondent landlord. Section 11(1)(h) of the J&K Houses and Shops Rent Control Act, 1966 provides for the tenant being evicted if the landlord requires the house for “his own occupation”. The Court held that the provision is meant for the benefit of the landlord and therefore it must be so construed as to advance the object of the Act. The words “own occupation” contemplate the actual possession of the landlord whether for his own residence or for his business. Furthermore, the provision is wide enough to include the necessity of not only the landlord but also of the persons who are living with his as members of the same family. The words “own occupation” cannot be so narrowly interpreted as to indicate actual physical possession of the landlord personally and nothing more than that. 16. A Division Bench of the Patna High Court has opined in Bidhubhushan Sen. V. Commr.16 that the expression “his own occupation” as occurring in sub-section (3)(a) of Section 11 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1947 does not mean only the occupation of the landlord himself but includes the occupation of other persons who live with the landlord and are economically dependent on him. The requirement of nephew, whose maintenance was the responsibility of the landlord was held to be covered by the expression “his own occupation” of the landlord. 17. In Puspa Lata Debi v. Dinesh Chandra Das17 P.B. Mukharji, J. (as His Lordship then was) observed that the expression “for his own occupation” in Section 11(1)(f) of the W.B. Premises Rent Control (Temporary Provisions) Act, 1948 does not necessarily mean of the particular individual alone but must be wide interpreted to include the family and dependants. The context of social order, the habits and ideas of living and the religious and socio-religious customs of the community to which the individual concerned belongs are relevant determining factors.” In Bahar Ahmad vs. Additional District and Sessions Judge V Fast Track Court, Dehradun and others {2003 (2) ARC 596, after relying upon the judgment of the Apex Court in Para 21, 22, 23, 24 and 25, it has been held as under: “In Smt. Prativa Devi vs. T.V. Krishnan, 1987 SCFBRC 242, it ahs been held by the Apex court that since the landlord has no legal right to occupy any of the shops, the finding of the Appellate Court, therefore, cannot be interfered. The finding of the Apex Court are given below: In considering the availability of alternative accommodation, the Court has to consider not merely whether such accommodation is available but also whether the landlord has a legal right to such accommodation. The appellant had established her bona fide personal requirement of the demised premises under section 14(1) (e) of the Act and her claim could not be disallowed merely on the ground that she was staying as a guest with a family friend by force of circumstances.” Similar view has been taken in the case of Smt. Sarla Ahuja vs. United India Insurance Co. Ltd; AIR 1999 SC 103. It has been held by the Apex Court 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 a bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. 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 bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.” In the case of Sardar Pritam Singh Vs. Sardar Prakash Singh reported in A.R.C. 1999 (2) page 338, Bench of Allahabad High Court observed as under: “ 18. Learned counsel for the petitioner then referred to the decision reported in 1996 (1) AWC 409. View taken in the decision reported in 1990 AWC 1508 has been reaffirmed and it is observed that tenant cannot dictate landlord as to how he would live and the need of the landlord must be commensurate with his status- keeping in mind his need both qualitatively and quantitatively.” “20. In case reported in 1999 (1) ARC 188, it has been observed in paragraphs 9, 10, 14, 18, and 19 that there should be no interference if exercise of power is legal and no reasonable man will arrived at a different conclusion. In these decisions referred to above, this Court took the view that ‘finding of fact’ recorded after appraisal of evidence are no amenable and cannot be assailed. In the case reported in 1997 (2) ARC 498, learned Single Judge in paragraph 7 and 10 of the judgment observed that effect of subsequent event have to be taken into account and find out whether children had grow up and need of the landlord has become more pressing. The said observations are against stand taken on behalf of the respondent no.1.” “21. The two courts below recorded findings of fact completely ignoring imminent need of the landlord’s family as if his family’s need was statistic. No prudent man under normal circumstances could take a view, as has been done by the Courts below. Courts below ought to have taken into account the fact that family is to grow and within short span of time family members were bound to increase in all probabilities. Again children were to grow requiring additional accommodations. Further boy and girl, be brother and sister, could be forced to share one room and separate accommodation for their studies was required. The two Courts below erred in not appreciating the evidence on record in correct perspective. The findings recorded by the two Courts below are no findings of fact in the eye of law as they have been recorded by ignoring admitted facts, material and relevant circumstances, namely, family of the landlord was bound to increase. Findings recorded in ignorance of plea of the landlord on this score vitiated in law and cannot be sustained and liable to be quashed in writ jurisdiction. In support reference may be made to the case reported in (1994) 4 SCC 1.” In the case of Dwarkaprasad Vs. Niranjan reported in 2003 SCFBRC 351 the Apex Court has held as under: “A latest decision of this Court in Joginder Pal Vs. Naval Kishore Behal reported in 2002(5) SCC 397: 2002 SCFBRC 388, to which one of us (R.C.Lahoti,J.) was a party takes the same view. In fact, this judgment contains a detailed resume of the entire case law on this point and holds that the expression for “his own use” occurring in Section 13(3) (a)(ii) (a) of the East Punjab Urban Rent Restriction Act, 1949 has to be liberally construed and should be given a wide and useful meaning rather than a strict and narrow construction. The requirement of a member of family of the landlord who is dependent on the landlord for purposes of residence or for economic consideration can be considered as a requirement of the landlord.” So far as the partition is concerned it has been held in 1982 (1) ARC 526, that any accommodation which has come under partition deed , the tenant has no right to challenge said partition deed. It has been held as under: “It is a well settled cardinal under that no tenant can be allowed to question the title of a landlord. If after the alleged partition, a tenant has attroned to a particular rest while co- owner as his sole landlord, I apprehended that it will not be open to such a tenant to question the title of such a landlord on the ground that the transaction whereby his landlord became to sole owner of the property was a mala fide one and not a genuine one.” Both the courts below having considered the requirements of the landlord, I find no infirmity in the order passed by the Courts below. Comparative Hardship: Proviso to section 21 (1)(a) of Act No. XIII of 12972 provides as under: “Provided also that the prescribed authority, shall, except in cases provided for in Explanation, take into