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. 3861 of 2001 (m/S) (Old No. 10243 of 1995) U.C. Chandna & another Vs. 2nd Additional District Judge, Dehradun, and others. Approved for reporting. __________________ Not approved for reporting Decided on 24.11.2004. Initial of Judge HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 3861 2001 (M/S) (Old No. 10243 of 1995) U.C. Chandna & another …… Petitioners Versus 2nd Additional District Judge, Dehradun & others ….... Respondents Dated: November 24, 2004 Hon’ble Rajesh Tandon J. Head the learned counsel for the parties. By the present writ petition the petitioner has prayed for a writ of certiorari quashing the order dated 15.3.1995 passed by the respondent no.1, annexure 13 to the writ petition. Factual aspect of the case: Briefly stated the facts giving rise to the present writ petition are that the petitioners are the owners of the property bearing No. 22 Rampur Mandi Road, Dehradun, One Sri Kishan Singh is the tenant in one of the shop. Respondents no.2, 3 and 4 are the heirs of Kishan Singh. A release application under section 21 (1)(a) of U.P. Act No. 13 of 1972 was moved by the petitioners for release of the shop in question on the ground that the shop is required for his son who is studying in M. B.B.S. and further that the petitioners will establish a maternity cum nursing home for their daughter namely Dr. Sujata Chandna. The petitioners have further submitted the petitioner no.1 is a medicalpractitioner and has his clinic and dispensary at 24 Rampur Mandi Road, Dehradun, which is a rented building. In one shop petitioner is running chemist shop whereas in the other part petitioner has his clinic. The size of the shop is 25’ x 22’ and veranda is common. During the pendency of the application Sri Tarun Chandna son of the petitioners had passed M.B.B.S. degree. The release application against Sri Kishan Singh was dismissed in default and the appeal filed thereupon was also dismissed becaused by that time Kishan Singh died in July 1983. Only respondent no. 6 has filed written statement and case against other heirs of Kishan Singh proceeded ex parte. The trial Court has allowed the application vide judgment and order dated 10.12.1992. Being aggrieved the respondents no.5 and 6 have filed and appeal before the District Judge and the 2nd Additional District Judge vide judgment and order dated 15.3.1995 has allowed the appeal against which the present writ petition has been filed. About Bona fide need of the landlord: The landlord has submitted the following averments with regard to his bona fide need. The relevant paragraphs of release application are quoted below: 5. That the applicant no.l is a medical practitioner and he has his clinic and dispensary including the retail chemist shop at 24, Rampur Mandi Road, Dehradun. 7. That the second son of the applicant is studying in medical and will also require accommodation for his profession. Later on by way of amendment paragraph 7A was added which reads as under: 7.A That during the pendency of the case Sri Tarun Chandna second son of the applicant has passed the M.B.B.S. final examination and has become qualified to practice as doctor. The requirement for the said son of the applicant for the purpose of establishing clinic is imminent. 9. That the applicants want to establish a maternity cum nursing home for the said daughter of the applicants named Dr. Sujata Chandna. Regarding the requirement of the tenants the petitioner have stated in their application to the following effect: 12. That all the O.P.s nos. 1, 2 and 3 are not carrying out any business in the said accommodation and they in fact do not require the said accommodation. 12.A. That the O.P. No.5 claims that late Kishan Singh died leaving a will bequeathing the tenancy rights to her. She further claims that she had become a partner with the late Sri Kishan Singh during his life time as such she had become a tenant thereof. The applicants have never recognized the said O.P. No. 5 as a tenant. The tenancy cannot be legally bequeathed by a will. The late Kishan Singh to the O.P. No.5 Further the late Kishan Singh as a tenant in the said shop in his individual capacity. The alleged partnership the existence of which is denied by the applicants never became tenant in this shop in question. The O.P. No.4 is not a legal juristic person. It was only a same and style in which late Kishan Singh. was carrying on his business. The O.P.s 4 and 5 have been impleaded as per orders of the learned court. They have no right to use the said shop as a tenant nor they are the tenants in the said shop. Their claim for the shop in question cannot be legally considered. In support of his case the petitioner applicant has deposed in his affidavit as under: 9. That it is reiterated that I and my family members want to establish a maternity cum nursing home for my said daughter, Dr. Sujata Chandna, her husband who is also a medical practitioner and my younger son Shri Tarun Chandna who will soon be entitled to start medical practice. Contrary contentions in para 9 of the objections of O.P. 5 are wrong and denied. The prescribed authority has given the following findings on the point of bona fide need of the landlord. ;gkW ,slk dksbZ lk{; ugh gS fd ftlesa Mk0 r#.k pknuk dks dgh ij O;ofLFkr gksuk ik;k tk;A ;fn og vius firk Mk0 ;w0lh0 pknuk ds lkFk dk;Z dj Hkh jgk gS rks mDr O;oLFkk vYidkyhu gS bl vk/kkj ij mlds LorU= :I ls vLirky [kksyus ds mnns’; dks lnHkkoh ekuk tk;sxkA blds lkFk gh ekuuh; mPp U;k;kyp; us pUn izdk’k izfr djrkj flag o vU; ,0 vkj0lh0 78 i`"B 270 ds n`"VkUr esa Hkh ;g fopkj fd;k gS fd ;fn dksbZ Hkou Lokeh vius Mk0 iq= ds Dyhfud ds fy, fdjk;snkj o v/;klu dh nqdku pkgrk gS vkSj mlods ikl vU;’ dksbZ mi;ksxh LFkku ugh gS rks mldh vko’;drk lnHkkoh gksxhA izfrif{kuh ds fo)ku vf/koDrk us rdZ esa ;g dgk fd izfFkZx.k us izkFkZuk i= o lk{; esa dgh ij Mk0 v#.k pkanuk dgh ij Mk0 lqtkrk pknuk vkSj dgh ij nkekn fxjh’k pUn Mkx dks O;ofLFkr djus ds lanHkZ esa iz’uxr nqdku ds fy, viuh lnHkkoh vko’;drk dk izdj.k j[kk gSA ;gkW ;g mYys[k djuk vuko’;d u gksxk fd izFkhZx.k dk izdj.k 'kq# ls gh gS fd og izlwfr x`g ,oa vLirky iz’uxr lEifRr esa [kksyuk pkgrs gSaA mDr izfr"Bku ,slk gS fd ftlesa iq#"k o L=h nksuk MdrVjksa dh vko’;drk ioMrh gS bl n'kk esa mijksDr rhuks dks ijLij fojks/kh gS vkSj ugh bl vk/kkj ij ;g dgk tk ldrk gS fd izkFkhZx.k dh vko’;drk lnHkkoh ugh gSA The appellate Court has reversed the judgment of the prescribed authority on the following grounds: Thus according to the opposite parties an alternative and sufficient accommodation was available to the applicants in which they can establish their second son Dr. Taqrun Chandana. However, as far as the need of their married daughter Dr. Sujata Chanadna was concerned, it could not be considered firstly because she was not a member of his family and secondly she or her husband were not living in Dehradun but at Saharanpur.*************************************** In view of the may aforesaid discussion, I am of the view that the need of the applicants is neither bona fide nor genuine, therefore, there is no need to consider the factor of comparative hardship. The release application under section 21(i)(a) of U.P. Act NO. 13 of 1972 is liable to be dismissed with costs. The counsel for the petitioner has stated that the testamentary heirs of the tenant are not included within the definition of tenant. In 1981 ARC 32 N.A. Gehani vs. Mahabir Prasad and others, in which it has been held that the word “heirs” as used in section 3(a) of Act No. 13 of 1972 would not include testamentary heirs. This word has been used in a restricted and limited sense in the context. Further in the case Jaspal Singh vs. Addl. District Judge, Bulandshahr and others ARC 1985 (I) 1, the apex Court has held as under: 8. This leads us to the next contention that the appellant is a tenant within the meaning of Section 3 (a) of Act 13 of 1972: “3. In this Act, unless the context otherwise requires- The appellate Court has reversed the judgment of the prescribed authority on the following grounds: Thus according to the opposite parties an alternative and sufficient accommodation was available to the applicants in which they can establish their second son Dr. Taqrun Chandana. However, as far as the need of their married daughter Dr. Sujata Chanadna was concerned, it could not be considered firstly because she was not a member of his family and secondly she or her husband were not living in Dehradun but at Saharanpur.*************************************** In view of the my aforesaid discussion, I am of the view that the need of the applicants is neither bona fide nor genuine, therefore, there is no need to consider the factor of comparative hardship. The release application under section 21(i)(a) of U.P. Act NO. 13 of 1972 is liable to be dismissed with costs. The counsel for the petitioner has stated that the testamentary heirs of the tenant are not included within the definition of tenant. In 1981 ARC 32 N.A. Gehani vs. Mahabir Prasad and others, in which it has been held that the word “heirs” as used in section 3(a) of Act No. 13 of 1972 would not include testamentary heirs. This word has been used in a restricted and limited sense in the context. Further in the case Jaspal Singh vs. Addl. District Judge, Bulandshahr and others ARC 1985 (I) 1, the apex Court has held as under: 8. This leads us to the next contention that the appellant is a tenant within the meaning of Section 3 (a) of Act 13 of 1972: “3. In this Act, unless the context otherwise requires- (a) ‘tenant’, in relation to a building, means a person by whom its rent is payable, and on the tenant’s death- (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the case of a non-residential building, his heirs; The appellant would be a tenant within the meaning of Section 3(a) only when he is an heir. The appellant is not a son but only a nephew of Naubat Singh. Allahabad High Court in 2000 (1) ARC 386 Ishwar Chand vs. ADM (Civil Supply) R.C. & E.C. Kanpur Nagar and 2000 (1) ARC 474 Rais Ahmad Siddiqui vs. Officer Authorised and another has also held that tenancy rights cannot be transferred by a will. Similar view has been taken in 1979 ARC 251 Ratan Lal vs. ADJ, Bulandshahr and others, 1982 ARC 708, Abhinandan Prasad Jain vs. District Judge, Saharanpur and 1980 ARC 519 Devendra Kumar vs. 3rd ADJ, Meerut by holding that the tenant has not right to transfer the rented property by way of gift or by way of will. In the case of Gaya Prasad Vs. Pradeep Srivastava reported in 2001 SCFBRC 128 the Apex Court observed as under: “2. This case present a sample scenario of the tormenting plight of an average litigant, who approaches the Court with all expectations of getting relief for his urgent need. But the snail paced litigation creeping through all the tires of the judicial hierarchical forums would have frustrated all his expectations, though others could admire the tenacity with which her persisted with the cause. Twenty-three years ago, the litigant in this case wanted accommodation for his son, who then became a medical graduate, to start a clinic so that from the stage of a fledging in the profession of medicine he could fly higher up. His father who owns the building moved for eviction of the tenant from the building for the said purpose. Although he won the battle at all tiers the urgently needed eviction is till now eluding him as a mirage. …………. 15. The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep thought he line for long hears from the start to the ultimate termini, is a malady afflicting the system. During this long interval many events are bound to take place which might happen in relation to the parties as well as the subject-matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatters the confidence of the litigant, despite the impairment already caused. ……… 18. We wish to add, as an epilogue, that this case can provide a catalytic agent for the High Court to evolve some concrete scheme for winching to the fore similar long pending matters, lying in torpidity at the bottom of the crammed list of pending cases in the High Courts after passing the initial orders, keeping the operative part of the decree of abeyance. It is worth considering whether a cell can be set up in each of such High Court where the piles of backlog are a stirring problem to pick out such cases to be brought to the notice of the Chief Justice of the High Court concerned so that he could take appropriate steps in the matter.” In G.C. Kapoor Vs. Nand Kumar Bhasin and others reported in 2001 Supreme Court and Full Bench Rent Cases 541, the apex Court held as under: “Clause (a) sub-section (1) of Section 21 of the Act inter alia provides that the Prescribed Authority may, on an application of the landlord; order eviction of a tenant from the building under tenancy on the grounds mentioned in the said sub-section. Clause (a) is relevant for our purpose which inter alia provides that an application for eviction can be field by the landlord if the building is bona fide required by the landlord for occupation by himself or by any member of the family or by any person for whose benefit the premises is held by him, either for residential purposes or for purposes of any profession, trade or calling. Section 41 of the Act empowers the State Government to make rules to carry out the purposes of the Act. Exercising powers under the said provision, Government have framed a set of rules viz. The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules 1972. Rule 16 is the relevant rule for release of a premises on the ground of personal requirement. Sub Rule (2) lays down that while considering an application for release under clause (a) of sub-section (1) of Section 21 in respect of building let out for the purposes of any business, the prescribed Authority shall also have due regard to the facts stated in the clauses in the sub-rule. We are concerned with clause (d) which runs as follows:- “(d) where a son or unmarried or widowed or divorced or judicially separated daughter of a male lineal descendant of the landlord has, after the building was originally let out, completed his or her technical education and is not employed in Government service, and wants to engage in self-employment, his or her need shall be given due consideration.” 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 Dattarya Laxman Kamble Vs. Abdul Rasul Moulali Kotkunde and another, 1999 (4) SCC 1: 1999 SCFBRC 292, 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. In the case Mst. Bega Begum and others vs. Abdul Ahad Khan, AIR 1979 SC 272 It has been observed by Hon’ble Supreme Court that the whole object of the Act is to provide for the control of rents and evictions, for the leasing of buildings etc. It has been observed that onus of proof of this is certainly on the landlord. The Apex Court has observed that both the sides must adduce all relevant evidence before the Court. While deciding aforesaid case their Lordships have relied upon a case M/S Central Tobacco Co. Vs. Chandra Prakash (1996 NSC 88) to the following effect: “In our opinion both sides must adduce all relevant evidence before the court; the landlord must show that other reasonable accommodation was not available to him and the tenant must also adduce evidence to that effect. It is only after sifting such evidence that the Court must form its conclusion on consideration of all the circumstances of the case as to whether grater hardship would be caused by passing the decree than by refusing to pass it.” 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 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 the 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 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 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 Jogendra pal vs. Naval Kishore Behla, 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 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 Mahes 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