HIGH COURT OF UTTARAKHAND, NAINITAL Writ Petition No. 5541 of 2001 (M/S) Satya Prakash Kurketi S/o late Shri Vishnu Dutt Kukreti ……… Petitioner Versus Additional District Judge Dehradun & others ……… Respondents Dated:- 07th July, 2010 Hon’ble Tarun Agarwala, J. Heard Mr. K. N. Joshi, the learned counsel for the petitioner and Mr. B. P. Nautiyal, the learned counsel for the respondent tenant. 2. A release application was filed by the landlord petitioner on 19th August, 1996 under Section 21 (1)(a) of U.P. Act No.13 of 1972 (hereinafter referred to as Act) for the release of the accommodation on the ground for setting up a business for the youngest son. The landlord contended that he had three sons and that the shop in question was required to settle his youngest son, who was unemployed for the last two years. The landlord submitted that the requirement was bonafide and that even on a comparative hardship, if his son was not settled, it will cause more hardship to him instead of the tenant, who can look for another shop. 3. The tenant opposed the application alleging that there was no bonafide need and that the landlord had concealed material facts with regard to the number of accommodation which he has in his possession. The tenant contended that the son of the landlord was not unemployed and in fact was gainfully employed and that the landlord has in his possession vacant shops in Ajabpur Danda, which can be easily utilized for setting up the business for his son. Further, there were a number of shops adjacent to the tenant’s shop which could also be utilized by the landlord and one such shop, which was vacant, was let out 2 unauthorisedly without any allotment order to one Puran Chand Bhatt and, therefore, the need for the release of the shop on the ground of setting up the business for his son does not appear to be a genuine. 4. Parties filed various affidavits and documents in support of their contention. One such affidavit filed was of Puran Chand Bhatt, the alleged tenant of a shop in Dhrampur, which was adjacent to the shop of the tenant opposite party. In the affidavit, the tenant Puran Chand Bhatt has explained that he was a tenant of the petitioner since 1985 and that he was doing his business from the shop since then and that the shop was never let out to him in the year 1996. It further transpires that the prescribed authority made a personal inspection and submitted a report and found that the petitioner had six shops and that five shops had already been let out, including the shop which was let out to the tenant opposite party. It was also reported that one shop was in the use and occupation of the elder son of the petitioner landlord. 5. The prescribed authority, after considering the evidence that was brought on record on the basis of the affidavits filed by the parties, came to the conclusion that the need of the landlord for setting up a business for his son was genuine and bonafide and that the landlord requires the shop in question so that he could settle his youngest son, who had remained unemployed in these years. On comparative hardship, the prescribed authority found that the landlord would suffer more than that of the tenant, consequently, allowed the release application directing the tenant to handover the vacant possession to the landlord. 6. The tenant opposite party, being aggrieved, has filed an appeal which was allowed by an order dated 16th July, 2001. The lower appellate court found that the need of the landlord was not genuine nor bonafide on the ground that the landlord has not been able to disclose 3 the requisite fund that would be required to set up the business for his son and that the fund shown by the landlord was not sufficient to start a business for his son. The appellate court further found that the prescribed authority in his inspection report did not indicate while inspecting the shops that one of the shop was required for the personal need of the landlord's son. The appellate court also found that the petitioner has vacant shops in Ajabpur Danda which are in possession of the landlord, which could easily be used for setting up the business of the landlord's son and consequently, there was no need for the tenant to vacate the shop nor was there any necessity to allow the application and release the shop in question. On the strength of these findings, the lower appellate court allowed the appeal and set aside the order of the prescribed authority. The landlord petitioner, being aggrieved by the said order, has filed the present writ petition. 7. The learned counsel for the petitioner submitted that the lower appellate court committed a manifest error in holding that the need of the petitioner landlord was not bonafide on the short ground that the petitioner could not indicate the funds for setting up the business for his son. The learned counsel for the petitioner submitted that the lower appellate court misconstrued the requirement of the bonafide need as contemplated under Section 21 (1)(a) of the Act and the finding recorded was liable to be vitiated, being an error of the law. The learned counsel submitted that the vacant shops in Ajabpur Danda was located in the village and is far away from the main area, which could not be utilized for setting up the business of his son and, in any case, the tenant has no choice in the matter since it is the prerogative of the landlord to choose any shop of which he is the owner to be released for his personal need or for his son and, in this regard, the tenant cannot object that another shop is or was vacant which could be utilized by the landlord. 4 8. On the other hand, the learned counsel for the respondent submitted that the bonafide need indicated by the landlord was not genuine and this fact could easily be culled out from the fact that one of the shops in Dhrampur adjacent to the tenant's shop was vacant in the year 1996, which was let out unauthorizedly without an allotment order to Puran Chand Bhatt. The release application was filed in the year 1996, after letting out the shop to Puran Chand Bhatt. It was submitted by the learned counsel for the respondent tenant that if there was a genuine need of the landlord to set up the business for his son, the shop would not have been let out to the aforesaid person Puran Chandra Bhatt and would have been used for setting up the business of his son. In the light of the aforesaid submissions, the learned counsel for the respondent tenant submitted that there was no bonafide need coupled with the fact that landlord had no sufficient funds to start the business for his son. Consequently, the appellate court was justified in coming to the conclusion that there was no genuine bonafide need of the petitioner and that the application of the petitioner was rightly rejected by the lower appellate court . The learned counsel submitted that the findings arrived at was based on appreciation of facts and, such findings, being based on facts, no interference was required in a writ jurisdiction. 9. In support of their submissions, the learned counsel for the parties has placed reliance on several decisions, which will be referred hereinafter. 10. Having given my thoughtful consideration in the matter and having heard the learned counsel for the parties at some length, the Court finds that the approach adopted by the lower appellate court was not in consonance with the provision of Section 21(1)(a) read with Rule 16 of the Rules. The bonafide requirement is based on an element of need and the genuineness of the application of the landlord for the release of the shop has to be decided on this element of need. The 5 requirement is not to be considered on the basis of a desire or on presumptions. In the present case, the Court finds that the lower appellate court has non suited the applicant holding that there was no need bonafide requirement since the landlord was unable to provide the requisite funds for starting the business. In my opinion, this finding is perverse and based on presumptions and does not touch the element of need. The fact that the petitioner may have the requisite funds at his disposal at that stage when the application was being filed is irrelevant to decide the bonafide need and the requirement of the shop for the landlord or for his son. In G. C. Kapoor Vs. Nand Kumar Bhasin & others 2001 Supreme Court & Full Bench Rent Cases 541, the Supreme Court held that the question of having the requisite financial capacity are irrelevant consideration on the question of bonafide need. The Supreme Court held:- “11. Regarding financial capacity of the appellant, the Courts below have held that appellant did not have financial capacity. From records, we find that the appellant had produced revenue records to show his ownership over agricultural land in addition to the suit premises and made a categorical statement that he would be able to raise fund from financial institutions. Both the Courts below with mathematical precision considered this aspect while coming to the fact that he does not have financial capacity. We are of the view that these are irrelevant consideration as the question of having necessary fund to start the business is not at all necessary in view of the law laid down by this Court in the above decision namely Dattatraya Laxman Kamble Vs. Abdul Rasul Moulali Kotkunde & another 1994 (4) SCC 1. That apart, as the appellant has got immovable property, it would not be difficult for him to raise necessary fund and therefore, we hold that the finding on this point of the Courts below is not sustainable.” 6 11. Similarly, in Raghunath G. Panhale (D) by Lrs. Vs. Chaganlal Sundarji & Co. 1999 (8) SCC 1, the Supreme Court held that it was not necessary for the landlord to prove that he has the money to invest in a new business. Relying upon the aforesaid judgment, the Allahabad High Court in Ram Sevak Vs. Special Judge, E.C. Act, Jhansi and others, 2006 (2) Allahabad Rent Cases 418 held that it is not necessary for the landlord to prove that he has sufficient means to start the proposed business. Similar view was reiterated in Raj Kumar Vs. Addditional District Judge, Gorakhpur and others 2005 (3) Allahabad Rent Cases 666. Consequently, the Court finds that the lower appellate court misdirected itself in holding that the landlord had no bonafide need since he could not prove that he had sufficient funds to start a new business for his son. 12. While dealing on the same subject, the lower appellate court observed that the prescribed authority in his inspection report did not indicate the personal need of the shop in question while inspecting the shops of the petitioner landlord. In my opinion, the prescribed authority was only required to make a physical inspection of the shops and was not required to give his views on the question as to whether the said shop or anyone of the shops was sufficient for the purpose of starting the business of the landlord. Such views could not be indicated in the inspection report and such findings can only be given upon an appreciation of the evidence after hearing the matter. Consequently, the Court is constrained to observe that this finding given by the lower appellate court is per se misconceived. 13. The lower appellate court further gave a finding that the petitioner landlord had two shops in Ajabpur Danda, which is in possession of the petitioner and that the petitioner’s son can use it to start the business and therefore, there was no need to unsettle the tenant opposite party. In my opinion, the approach adopted by the court below 7 cannot be sustained. The tenant cannot say that the landlord should start his business in a particular shop. In the opinion of the Court, the landlord has got every liberty in choosing his tenant in seeking the release of the shop. The Supreme Court in R. Kumar Vs. Firm Prem Machinery & Co. AIR 2000 SC 534 held that it is the prerogative of the landlord to choose a particular shop for release on the ground of personal need and requirement and that the tenant cannot compel the landlord to get another shop released which the landlord does not like. In the light of the aforesaid, this Court is of the opinion that the directions of the court below that the petitioner could choose a particular shop in Ajabpur Danda for settling his son is patently erroneous. 14. At this stage, the learned counsel for the respondent tenant vehemently contended that there was no genuine need of the petitioner for the release of the shop in as much as the petitioner had let out a vacant shop to Puran Chand Bhatt in the year 1996 after letting out the shop. The release application was filed in the year 1996 and if the landlord had a genuine need, he would not have let out the shop unauthorizely without any allotment order to Puran Chand Bhatt. The learned counsel for the respondent tenant submitted that in view of this fact, it is clear, that the release application was not genuine, but, was filed for ulterior purpose so that it could fetch a higher rent. In support of his submission, the learned counsel placed reliance upon a decision of the Division Bench of the Allahabad High Court in Geep Industrial Syndicate Ltd., Allahabad Vs. The Rent Control & Eviction Officer, Allahabad and Others reported in 1982 Allahabad Rent Cases 585, in which it was held that the possession given to a person unauthorizely cannot be recognized in the eye of law and such letting out would be treated as a vacancy before the authorities even though such letting out is binding interse between the parties. Further reliance was made on a decision of the Supreme Court in Phiroze Bamanji 8 Desai Vs. Chandrakant M. Patel & others AIR 1974 S.C. 1059. In my opinion, the submission of learned counsel for the respondent tenant is bereft of merit. In the first instance, the Court finds from a perusal of the order of the prescribed authority that he had considered this aspect of the matter and found that it cannot be said that the shop was let out to Puran Chand Bhatt in the year 1996. The prescribed authority further concluded that even assuming the said shop was let out in the year 1996, it does not mean that the petitioner landlord did not have the bonafide need since the son had filed an affidavit explaining his stand that initially he was looking for a job and when he was unable to get a job, the need to set up a business started formulating and, accordingly, the release application was filed. This contention of the petitioner was found to be genuine and accordingly the prescribed authority held that the need was bonafide. In my opinion, the submission of the learned counsel for the petitioner that the shop was lying vacant in 1996 and was let out to Puran Chand Bhatt in the year 1996 prior to the filing of the release application is not borne out from any material evidence on record. 15. At this juncture, the Court finds that no affidavit was filed before the court below to indicate that the tenant had made a vigorous search for an alternate accommodation, which he could not find. On that score, in view of Rules 16 of the Rules of 1972, the comparative hardship gets diluted more against the tenant and the balance tilts heavily in favour of the landlord. Further, if the allegation of the tenant that Puran Chand Bhatt is an unauthorized occupant, a release application could have been instituted by the tenant opposite party before the authority under Section 16 of the Act. The Supreme Court in B.C. Bhutada Vs. G.R. Mundada AIR 2003 SC 2713 held that if the tenant did not bring on record that he made any effort to search an alternate accommodation after filing of the release application, it was 9 itself sufficient to tilt the balance of comparative hardship against the tenant. 16. In the light of the aforesaid, the court finds that the findings arrived at by the lower appellate court is perverse and cannot be sustained. The findings given by the lower appellate court is vitiated by an error of law. Consequently, the impugned order passed by the appellate court cannot be sustained and is quashed. The writ petition is allowed. (Tarun Agarwala, J.) Dated 07.07.2010 LSR