IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of case Writ Petition No. 247 of 2002 (M/S) Date of decision: 23rd August, 2006 A.F.R. (Approved for Reporting) _______________________________ Not Approved for Reporting Date Initials of Judge Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 247 of 2002 (M/S) Mukesh Kumar Gupta, S/o Mithilesh Kumar Gupta, R/o Mohalla Garg (Near Post Office), Kashipur, District Udham Singh Nagar. … Petitioner Vs 1. IInd Additional District Judge, Udham Singh Nagar. 2. Yadvendra Arya S/o Late Rajendra Pal Arya, R/o Mohalla Amlikha Kashipur, District Udham Singh Nagar. 3. Raghvendra Arya S/o Late Rajendra Pal Arya, R/o Mohalla Amilikha Kashipur, District Udham Singh Nagar. …. Respondents Sri V.K. Bist, Senior Advocate assisted by Ms. Seema Sirohi and Mr. M.C. Bansal, Advocate for the petitioner. Sri Jagdish Prasad, Advocate for respondents Nos. 2 & 3. Date: 23rd August, 2006 Hon’ble Rajesh Tandon, J. Heard Sri V.K. Bist, Senior Advocate assisted by Ms. Seema Sirohi, Advocate for the petitioner and Sri Jagdish Prasad, Advocate for respondents Nos. 2 & 3. 2. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the impugned order dated 10.12.2001 passed by respondent No. 1 (Appellate Authority) in R.C.A. No. 12 of 2000 (Annexure No. 8 to the writ petition). Factual Matrix of the Case 3. Briefly stated, an application under Section 21(1)(a) of U.P. Act No. 13 of 1972 was filed by the petitioner against respondents Nos. 2 & 3 praying for the release of the Shop situated at Mohalla Bazar Ganj (Park Road,) Kashipur, District Udham Singh Nagar, which is under the tenancy of respondents Nos. 2 & 3, on the ground that the petitioner has passed high school and is unemployed and he has no independent business to earn his livelihood and, therefore, he wants to do the business of Electrical Goods, T.V., V.C.R., Music System, Cooking Range etc. in the said Shop. 4. It was, further, stated by the petitioner in his release application that his father Sri Mithilesh Kumar Gupta is doing the independent business in the name of Mithilesh Kumar and Brothers of which his father is the sole owner and there is no possibility of employing any other person, as the shop in possession of his father is not so elaborate so as to accommodate the petitioner also. It is also stated that the petitioner also do not want to join the business along with his father, as he wants to do the independent business. It has further been stated in the release application that the petitioner has already been married in 1994 and he is separate from his father and as such, the shop in dispute is required for his own use and occupation for settling himself in the independent business. 5. A written statement has been filed by the respondents, in which in para 3 it has been stated that the landlord can be accommodated in the business of the father. 6. An affidavit has been filed by the petitioner Mukesh Kumar, who has deposed that he wants to run the independent business and he cannot settle himself along with his father. So far as the availability of the other shops are concerned, it has been specifically stated that all other shops are rented accommodation and the tenants are occupying the same. Relevant paras 7, 8 & 9 of the said affidavit are quoted below: “7. ;g fd bl izdkj eSa 'kiFkdrkZ drbZ [kkyh gWwa vkSj fcuk O;kikj ds gWwa vkSj eSa viukk LorU= bySDVªsfud xqMl tSls Vsyhohtu] oh0lh0vkj0] E;wftd flLVe] dqfdx jsUt vkfn dk O;kikj djuk pkgrk gWwa rkfd eSa vius futh thou dks LFkkfir dj ldwWa vkSj vius lkekftd nkf;Roksa dks fuHkk ldWwa vkSj viuh bPNkuqlkj vius c<+rs gq, ifjokj dk ikyu&iks"k.k dj ldwWa ftlds fy, eq>s fookfnr nqdku dh rqjUr] l[r o lnHkkouk iw.kZ vko’;drk gSA 8- ;g fd eSa 'kiFkdrkZ gjfxt Hkh cM+k iwWathifr O;olk;h ugha gWaw uk esjs ikl dksbZ O;kikj gS esjs fgLls esa dqy X;kjg nqdkukr vk;h gSa ftlesa ls ikWp nqdkusa Q’khZ eafty cuh gSa ftlesa iqjkus fdjk;snkj Jh n;kyflag] Jh tSHkXoku] Jh dkuflag] Jh dsoy d`".k vkckn gSa rFkk ,d nqdku foi{kh ij gS rFkk mijh eafty ij pkj nqdkusa gSa tks Hkh fdjk;s ij mBh gq;h gSa vkSj bUgha lc nqdkukr ls izkIr gksus okys fdjk;s ds vfrfjDr 'kiFkdrkZ o esjs ifjokj dh vk; dk vU; dksbZ lk/ku ugh gS vkSj fdjk;s ls eq>s o"kZ 1991&92 esa 38670-00 :Ik;s dh vk; Fkh izek.k Lo:Ik QksVksdkih vk;dj QSlyk layXu gS rFkk orZeku esa 43276-00 ¼RkSrkyhl gtkj nks lSk fN;Rrj :i;s½ lkykuk dh vk; gSA blds vfrfjDr 'kiFkdrkZ dh vU; dksbZ nqdku ugha gSA rFkk bl vk; esa nqdkuksa ij Hkh [kpZ djuk iM+rk gSA 9- ;g fd mijh eafty ij cuh nqdkusa 'kiFkdrkZ ds O;kikj ds fy, mi;qDr ugha gS uk ogkWa 'kiFkdrkZ dk O;kikj py ldrk gS mu nqdkuksa ds vkxs djhc pkj QqV dk NTtk gS vkSj nqdkusa nch gqbZ gSaA dk’khiqj esa bl izdkj ds O;kikj dh dksbZ nqdku ;k 'kks:e nqeaftys ij ugha gS uk py ldrk gS cfYd Q’khZ eafty ij gh py ldrk gS ftlds fy;s 'kiFkdrkZ dks fookfnr nqdku dh vko’drk gSA** 7. The father of the petitioner has also filed an affidavit stating that he is doing his business independently and that his son Mukesh Kumar has no interest in his business. Relevant para 7 of the said affidavit is quoted below: **7- ;g fd 'kiFkdrkZ ds O;kikj esa izkFkhZ eqds’k dqekj dh uk rks vko’;drk gS vkSj uk mls yxkus dh xqatkbl gS vkSj uk eqds’k dqekkj dh bl O;kikj esa dksbZ :fp gS vkSj uk og blesa yxuk gh pkgrk gSA gkWa [kkyh gksus ds dkj.k dHkh dHkh nqdku ij vk tkrk gS vkSj lh[kus ds fy, [kkrs vkfn dj nsrk gS mldh fnlEcj 1994 esa 'kknh gks x;h gS vkSj og Qjojh 1995 ls viuh iRuh lfgr vyx jgrk gS] mlus vyx jk’kudkMZ Hkh cuok fy;k gS vkSj mldk o mldh iRuh dk jguk] [kkuk vkfn lc 'kiFkdrkZ ls vyx gSA** 8. The Prescribed Authority vide order dated 24.08.2000 has allowed the petitioner’s release application and released the accommodation in dispute in favour of the petitioner. The relevant portions of the findings recorded by the Prescribed Authority are quoted below: **mijksDr foospuk ds vk/kkj ij eSa bl fu"d"kZ ij igqWaprk gWswa fd vkosnd fdlh O;olk; esa yxk gqvk ugha gS vkosnd dh 11 nqdkus gSa ftlesa fookfnr nqdku Hkh 'kkfey gS lHkh fdjk;s ij mBh gSaA fdjk;s dh vk; ds vykok mlds ikl vU; dksbZ vk; dk lk/ku ugha gS tks vkosnd }kjk nkf[ky 'kiFki= o vk;dj fooj.k ls Li’V gS o’kZ 1991&92 esa vkosnd dh vk; 38670&@ :Ik;k Fkh tks vk;dj fooj.kh dh Nk;k izfr 'kiFk i= 24Xk ds layXu ls Li’V gS vxys foRr o’kZ esa 43276 gS bl vk; esa ls mls bu nqdkuksa dk j[k j[kko Hkh djuk gksrk gS vkosnd viuh vk; c<+kus ds fy, LorU= O;olk; djuk pkgrk gS izFke ry dh nqdku vkosnd ds O;olk; gsrq mi;qDr ugha gS fookfnr nqdku Hkwry dh gS tks vkosnd ds O;olk; gsrq mi;qDr gS vkosnu dks viuh vk; c<+kus ds fy, LorU= O;olk; djus gqrq fookfnr nqdku dh lnHkkoh lPph vkSj okLrfod vko’;drk gSA** 9. So far as the comparative hardship is concerned, the same has also been decided in favour of the landlord. 10. Aggrieved by the said order of the Prescribed Authority, the respondents went in appeal. The appellate court vide judgment dated 10.12.2001 has allowed the appeal. Relevant finding recorded by the appellate court is quoted below: **i=koyh eas miyC/k 'kiFk i= o izfr'kiFk i= ds voyksdu ls ;g LiL’V gS fd vkosnd vkSj mlds ifjokj ds O;fDr;ksa ds ikl fookfnr nqdku ds vfrfjDr vU; dbZ nqdkuas gSa vkSj nqdkusa nSkjku eqdnek fjDr Hkh gqbZ Fkh ftls muds }kjk fdjk;s ij mBk fy;k x;kA fookfnr nqdku ds ikl t; Hkxoku dh fdjk;snkjh okyh nqdku 10 lky ls fjDr gS] vkosnd bl nqdku esa viuk O;olk; dj ldrk gSA esjh jk; esa fo}ku voj U;k;ky; dk ;g fu.kZ; fd vkosnd dks fookfnr nqdku dh lnHkkoukiw.kZ vko’;drk gS] i=koyh esa miyC/k lk{; ds vuq:I ugh gSA esjh jk; esa vkosnd fookfnr nqdku dh lnHkkoukiw.kZ vko’;drk dks lkfcr djus esa vlQy jgk gSA Wwfd vkosnd lnHkkoukiw.kZ vko ;drk dks lkfcr djus esa lQy ugha jgk gS] rqyukRed dfBukbZ ij fopkj fd;k tkuk vko ;d ugha FkkA ;fn bl ij fopkj fd;k tk; rks vkosnd vkSj mldk ifjokj /kuh ifjokj gS vkSj vkosnd vkSj mlds ifjokj ds ikl dk khiqj esa vU; dbZ nqdkuas gSa vkSj O;kikj gqrq QeZ gS tcfd foi{kh ds thou ;kiu gqrq fookfnr nqdku ds vfrfjDr vkthfodk dk dksbZ vU; lk/ku ugh gSA ;fn fookfnr nqdku foi{kh ls fjDr djk yh xbZ rks foi{kh o mlds ifjokj dks lM+d ij vkuk iM+sxkA bl izdkj rqyukRed dfVukbZ Hkh foi{kh ds i{k eas gSA** 11. Aggrieved by the said order of the appellate court, the petitioner (landlord) has preferred this writ petition. 12. A counter affidavit as well as supplementary counter affidavit have been filed, wherein it has been sated that there are various shops available with the landlord. It has been averred in the counter affidavit that Mukesh Kumar conducts the entire business of his father Mithilesh Kumar, but there is no evidence to support the same and moreover, every adult member of the family is entitled for his independent business. So far as the shop of Jai Bhagwan is concerned, it has not come on record that the same is available with the landlord. Therefore, the findings of the appellate court cannot be said to be justified. 13. The learned counsel for the respondents has referred the judgments in the cases of Mazboolunnisa Vs. Mohd. Saleha Quaraishi reported in ALR 1999 (35) 331; T. Sivasubramaniam and others Vs. Kashinath Pujari and others reported in ALR 1999 (37) 752; Pratap Rai Tanwani and another Vs. Uttam Chand and another reported in (2004) 8 SCC 490; Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada reported in (2003) 2 SCC 320; Santosh Kumar Sharma Vs. Vith Additional District Judge, Saharanpur and others reported in 2006(1) ARC 397; and Kedar Nath Agrawal (dead) and another Vs. Dhanraji Devi (dead) by Lrd. and another reported in (2004) 8 SCC 76. 14. All the above-mentioned judgments do not support the case of the respondents (tenants) inasmuch as none of the shops have been shown to be available with the landlord and as such, the landlord is entitled for the release of the accommodation in his favour. Moreover, the respondents have not made any efforts to search out any alternative accommodation in terms of the observations made in the aforesaid Supreme Court judgments. Bonafide Need 15. So far as the Bonafide Need is concerned, it has been held that landlord is not best judge of his requirement. The petitioner (Landlord) has stated in his affidavit that he wants to run the independent business and he cannot settle himself along with his father. So far as the availability of the other shops are concerned, it has been specifically stated that all other shops are rented accommodation and the tenants are occupying the same. 16. In the case of Akhileshwar Kumar and others Vs. Mustaqim and others reported in AIR 2003 SC 532, the Apex Court has held in paras 3 & 4 as under: “3. In our opinion, the approach adopted by the High Court cannot be countenanced and has occasioned a failure of justice. Overwhelming evidence is available to show that the plaintiff No. 1 is sitting idle, without any adequate commercial activity available to him so as to gainfully employ him. The plaintiff No. 1 and his father both have deposed to this fact. Simply because the plaintiff No. 1 is provisionally assisting his father in their family business, it does not mean that he should never start his own independent business. What the High Court has over-looked is the evidence to the effect, relied on by the trial Court too, that the husband of plaintiff No. 4, i.e. son-in-law of Ram Chandra Sao, was assisting the latter in his business and there was little left to be done by the three sons. 4. So is the case with the availability of alternative accommodation, as opined by the High Court. There is a shop in respect of which a suit for eviction was filed to satisfy the need of plaintiff No. 2. The suit was compromised and the shop was got vacated. The shop is meant for the business of plaintiff No. 2. There is yet another shop constructed by the father of the plaintiffs which is situated over a septic tank but the same is almost inaccessible inasmuch as there is a deep ditch in front of the shop and that is why it is lying vacant and unutilized. Once it has been proved by a landlord that the suit accommodation is required bona fide by him for his own purpose and such satisfaction withstands the test of objective assessment by the Court of facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. The Court cannot thrust upon its own choice on the needy. Of course, the choice has to be exercised reasonably and not whimsically. The alternative accommodation which have prevailed with the High Court are either not available to the plaintiff No. 1 or not suitable in all respects as the suit accommodation is. The approach of the High Court that an accommodation got vacated to satisfy the need of plaintiff No. 2, who too is an educated unemployed, should be diverted or can be considered as relevant alternative accommodation to satisfy the requirement of plaintiff No. 1 another educated unemployed brother, cannot be countenanced. So also considering a shop situated over a septic tank and inaccessible on account of a ditch in front of the shop and hence lying vacant cannot be considered a suitable alternative to the suit shop which is situated in a marketing complex, is easily accessible and has been purchased by the plaintiffs to satisfy the left need of one of them.” 17. In the Case of Ragavendra Kumar v. Firm Prem Machinery & Co. (2000) 1 Supreme Court Cases 67, it has been held:- “It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. [See-Prativa Devi (Smt.) v. T.V. Krishnan] In the case in hand the plaintiff landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted. 18. Following the decision of Bega Begum (supra), in the case of Joginder Pal vs. Naval Kishore 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 that 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 entails 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 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. 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 such 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. 32. (v) In the present case, the requirement of landlord of the suit premises for user as office of his chartered accountant son is the requirement of landlord ‘for his own use’ within the meaning of Section 13(3)(a)(ii).” 19. 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”……………. 20. The Apex Court in G.C. Kapoor v. Nand Kumar Bhasin, 2001 (2) Allahabad Rent Cases Page No. 603 has relied upon the judgment of Datta Laxman as well as Raghunath Pale and has come to the conclusion as under:- “9. It is settled position of law that bona fide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. In Dattaraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde and Another, [1999 (4) SCC 1], this Court while considering the bona fide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he has to prove it but there is no warrant for ‘presuming that his need is not bona fide’. It was also held that while deciding this question, court would look into the broad aspects and if the Court feels any doubt about bona fide requirement, it is for the landlord to clear such doubt. 10. In Raghunath G. Panhale (D) By. LRs. V. Chaganlal Sundarji and Co. [1999(8) SCC 1] this Court inter alia held that it was not necessary for landlord to prove that he had money to invest in the new business contemplated not that he had experience of it. It was a case for eviction on the ground of bona fide requirement of the landlord for non-residential purpose, as he wanted to start a grocery business in the suit premises to improve his livelihood.” 21. In the case of Gaya Prasad V. Pradeep Shrivastava reported in AIR 2001 SC 803, the Apex Court has observed in para 15 as under: “15. The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many many events are bound to take place which might happen in relation to the parties as