RESERVED IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL. WRIT PETITION NO. 154 OF 2003 (M/S) Niranjan Singh Wasu ………………… Petitioner. Vs. The District Judge, Dehradun and others ………………… Respondents. ……… October 15 ,2004 Sri P.M.N.Singh, Senior Advocate, learned counsel for the petitioner. Standing Counsel for the State Sri B.P. Nautiyal, learned counsel for the respondent no.3. Hon'ble Rajesh Tandon, J. By the present writ petition, the petitioner has prayed for quashing of the order passed by the Court below while allowing the application under section 21(1)(a) of the U. P. Act No.13 of 1972. Factual Aspects of the Case: Briefly stated the respondent no.3 has filed an application for the release of the premises i.e. house no. 45/50, Jhinda Bazar,Dehradun, of which the petitioner is a tenant at the rate of Rs. 21/- per month. According to the case of the landlord, he is an Advocate having obtained the licence from the Bar Council of U.P. on 18.03.1998. He is practicing as a lawyer in civil and criminal side in the Courts at Dehradun. The respondent no.3 has stated in his application that he is living which his mother at the first floor of the disputed building having two bed rooms (9.5 ft. X 8 ft. each), one drawing room(19.5 ft X 8ft.), one store (9 ft. X 8 ft.), one kitchen, one toilet and balcony, being used by him and his family members for residential purposes. The landlord has also stated in hi application that he is likely to get married and he has no place to settle himself for the purposes of Advocate's Chambers and as such the premises is required for the use and occupation for the livelihood of the petitioner. The petitioner has filed his objections. In reply to the application filed by the respondent no.3, it was stated therein that there are two shops – one is in possession of the petitioner and other is in possession of Sri Vinod Kumar as a tenant. The third shop is in possession of Bundu who is in unauthorized occupation of the premises. The petitioner has stated that the said shop is sufficient for Advocates Chamber. Both the parties have filed their affidavits in support of their cases. On behalf of the respondent no.3, the affidavits of self, S.K.Puri, Anoop Rautela, Arun Rawat, Sunil Verma, B.K.Tandon, Shailendra Rajan, Badri Prasad Kothari and Anil Kumar Sharma were filed. On behalf of the petitioner apart from the affidavit of self, the affidavits of Niranjan Sihgh, Nand Singh Ratan, Bipin Kumar, Ranjit Singh, Surjit Singh, Rajesh Kumar, Harbansh Lal, Beenu, Ashok Kumar, Om Prakash, Niranjan Singh, and Pancham Singh were filed. The assessment for the year 1973-1978, 1979 to 1984, 1984 to 1989, 1989 to 1994 and1994 to 1999 were also filed. On behalf of the respondent no.3 rebuttal affidavits were also filed,namely, Sri Deepak Khanna, Smt. Kamlesh Tandon, Zishan Ullah, S.K.Puri, Anil Kumar, Shankutla Devi, V.K.Tandon, Arun Rawat, Anoop Gairola, Sunil Verma, Badri Prasad, Shailendra Rajan, P.K.Sinha, and Smt. Shashi Khanna. Regarding Bona fide Need: So far as bona fide need of the respondent no.3 is concerned, the application under section 21(1)(a) was filed to the effect that at present there is no place for starting the Chamber of the respondent no3. First floor is fully occupied by the respondent no.3 for residential purposes. Paragraph 2,3 and 5 of the application are quoted below: "The applicant is an advocate by profession having obtained the licence from Bar Council of U.P. on 18.03.1998. Applicant is practicing as lawyer in Civil/Criminal side in the Courts of Dehradun and has purchased large number of law books and journals. Besides many senior Advocates have gifted their law books to the applicant. At present the applicant is having about one thousand books and journals. The applicant is living with his mother on the first floor of the disputed building having two bed rooms (9.5 ft. X 8 ft.each), one drawing room (19.5 ft. X 8 ft.), one store (9ft. X 8 ft.), one kitchen, toilet and balcony being used for his and his family residential accommodation. Applicant and his mother's guests also come and stay in the accommodation off and on. That at present applicant has no place for his chamber/office and library and uses his senior advocate's chamber/office and library for his practice. The applicant has kept all his books and journals in the chamber/office and library of his senior due to inadequacy of accommodation. Applicant meets his client in his senior's chambers/office and library as he has no office of his own." In reply to the aforesaid paragraphs, it has been stated in paragraphs 4 and 6 as under: **fueqfDr izkFkZuk i= dh pj.k la0 3 dk ys[k vlR; vLohdkj gSA izkFkh izFke ry ij vdsyk fuokl djrk gSA mlds lEcU/k mldh eka ls dVq gSA mldh eka vius ek;ds esa jgrh gSA izkFkhZ dk rykd gks pqdk gSA mlusa nwljk fookg ugha djuk gSA izFke ry ij vR;f/kd LFkku gS fd tgka mlds ikl dk;kZy; gsrq Hkh LFkku gS fd tks mlls igys mlds nknk o firk dk Fkk fd tks nsgjknwu ds vR;Ur izfl/n eqa'kh Fks rFkk muds ikl fHkUu fHkUu O;fDr ijke'kZ ds fy;s vkrs Fks fd ftlds fy;s mUgksus ,d dejs dks ijke'kZ :e ds :i esa cuk;k gqvk FkkA izkFkhZ dks ;g dk;kZy; okyk LFkku miyC/k gSA ;g lHkh rF; izkFkhZ us fNik;s gSA izkFkhZ LoPN gkFkksa ls U;k;ky; ds le{k ugha vk;k gSA nkSjku okn izkFkhZ us lEifRr ds izFke ry ij fLFkr ijke'kZ d{k fd ftls mlds nknk mi;ksx iz;ksx djrs Fks] dks viuk dk;kZy; cuk fy;k gS rFkk blls mldh rFkk dfFkr vko';drk iwjh gks x;h gS rFkk vc mls vfrfjDr LFkku dh vko';drk ugha gSA fueqfDr izkFkZuk i= dh pj.k la0 5 dk ys[k vlR; o vLohdkj gSA izFke ry ij izkFkhZ ds ikl i;kZIr LFkku gSaA izkFkhZ vdsyk fuokl djrk gSA mldh ekrk vius ek;ds es fuokl djrh gSA izkFkhZ vHkh Lo;a twfu;j vf/koDrk gS rFkk dk;Z lh[kus ds fy;s Jh euksthr flUgk ,MoksdsV ds dk;kZy; esa cSBrk gSA ;g dguk vlR; gS fd LFkkukHkko ds dkj.k izkFkhZ us viuh dkuwuh fdrkcsa vius lhfu;j vf/koDrk ds dk;kZy; esa j[kh gSA ;g dguk Hkh vlR; gS fd LFkkukHkko ds dkj.k izkFkhZ vius O;ogkjhx.k ls vius lhfu;j vf/koDrk ds dk;kZy; esa gh feyrk gSA ;s lkjh dgkuh cukoVh gS o blls bUdkjh gSA** In fact, it has been admitted by the petitioner that the Chamber is being used on the first floor. On behalf of the respondent no.3 Sri R.K.Sinha has deposed as under: "That the deponent was enrolled as an Advocate in 1942 and continues to be a member of Dehradun Bar. That Late Sh. Kundan Lal Khanna and his son late Sh. Mohan Lal Khanna were Munshis of deponent. That Late Sh. Kundan Lal Khanna and his son did not have any office or Chambers or consultation room at their residence, 45/50 Jhanda Bazar,Dehradun. Late Kundan Lal Khanna and his son Late Mohan Lal Khanna used to attend in deponent's Chamber at 7 Subhash Road, Dehradun regularly." In replication, the respondent no.3 has stated as under: "In reply to para 2 of the objection, it is admitted that the applicant owns a double storey building where in the ground floor there are three shops in occupation of the tenants. On the first floor applicant resides with his mother. All the shops on the ground floor are in occupation of the tenant. It is wrong that Sh. Vinod Kumar is paying very high rent. Tenant Bundu is a tenant since long and definitely before 1976. In any case applicant cannot evict him as he is protected tenant. O.P. can not dictate to the applicant as to which property he should get released. The applicant has no knowledge if the O.P. has moved an application for getting the shop under occupation of Bundu allotted to him. O.P. has not made it clear as to what cooperation O.P. expects from the applicant to get the shop allotted." Thus the respondent no.3 has no place for running his Chamber. It is well settled that the landlord can choose any tenant and it is not open for the petitioner to dictate as to whom the landlord is required to evict in view of the judgment of the Apex Court in the case of Smt Sarla Ahuja Vs. United India Insurance Co. Ltd. AIR 1999 SC page no. 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 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 endeavor as to how else the landlord could have adjusted himself." The District Judge has recorded the finding to the following effect: "It has been submitted that in case the landlord needs any shop for his library and Chamber, then he must have chosen the shop either of Vinod Kumar or of Bundu for release as the shop of Bundu adjoins to the stair-case, but in this regard, it has been submitted on behalf of the landlord that the landlord is the best Judge of his requirement for residential or business purposes and has also got complete freedom in the matter and has relied upon 2000 A.L.R. S.C. page 458. He has also submitted that it is not the business of the tenant to direct the landlord to make a choice of a particular shop, but it is the choice of the landlord as to against whom, he shall file the release application." "In my opinion, the facts of the aforesaid case are different to the present case, as in the above noted case, the portion was vacant, as is not in this case. The tenant has moved an application for allotment of the sop under possession of Bundu alleging that the same is vacant, but in the enquiry it has been held that Bundu is a tenant for more than 35 years before application of the Rent Control Act. So, the tenant has not filed any direct law in this regard. The application moved against Bundu after enquiry has been decided. The tenant has moved another application to revive the same. So, it cannot be expected that the same will be available to the landlord in near future or will be available or not, as the Enquiry Officer has found that the same is under tenancy for more than 35 years." The respondent no.3 has stated that he requires the premises for establishment of his Chamber. This fact has been admitted by the petitioner in reply that he has started in the first floor. It is also settled that the landlord cannot be allowed to sit idle and for want of the accommodation in view of the judgment of the Apex Court in the case of Smt. Ramkubai since deceased by L.Rs. and others Vs. Hajarimal Dhokalchand Chandak and others reported in AIR 1999 SC 3089, wherein the Apex Court has held as below: " Therefore, we do not think that taking up contractor work, in the meanwhile will militate against his carry on business of Kirana which is his family business, which was carried on by his father and is being carried on by his brother independently. The facts that the landlady during her lifetime was a partner in the firm carrying on Kirana business and her elder son is carrying on Kirana business do not disentitle Bhikchand to establish his own business.. We are not impressed by the other reasoning and conclusion of the Appellate Court which are confirmed by the High Court. In our view, none of the reasons leads to the inference that Bhikchand cannot be denied to the landlady to recovery to recover the suit premises for personal requirement of Bhikchand to establish Kirana business independently. The only other aspect which is required to be noticed is requirement of sub section (2) of section 13 of the Act. It enjoins the Court not to pass decree for eviction under clause (g) of sub section (1) if, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, it is satisfied that greater hardship would be caused by passing the decree than by refusing to pass it and if the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court has to pass the decree in respect of such part only…………………….. We are satisfied that the present appellants have established bona fide requirement to recover the possession of the suit premises from the respondents." 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." In the case of Bega Begum 1979 A.I.R. SC page 272 the Apex Court has observed that 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 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 connotation of the term '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 out 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 titled in favour of the plaintiff. The inconvenience, loss and trouble resulting from denial of a decree for eviction in favour of the plaintiffs far outweigh 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 & others, 1979 (UP) RCC 599, at page 601, it was held:- " It would suffice to mention that a person is said to need a premises 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 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, 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 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 a 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 that 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 accommodation was 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 this provision was not obligatory. 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 accommodation, as already indicated hereinbefore, constitutes an additional factor which may outweight the hardship, if any,