Mohd. Ayub & Anr.
Versus Mukesh Chand
Jurisdiction Civil Appeal No. 4495 of 2006]
PRAKASH DESAI, J.
appeal, by grant of special leave, is directed against the judgment and order
dated 12.9.2005 passed by the High Court of Uttaranchal at Nainital partly
allowing the Writ Petition No. 296 of 2004 filed by the appellants.
appellants/landlords filed an application under Section 21 of the Uttar Pradesh
Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for
short, `the U.P Act') for eviction of the respondent/tenant on the ground that they
bona fide required the premises occupied by the respondent to start business
for their sons.
to the appellants when the house in question was purchased by them the
respondent was occupying two shops facing the road and two rooms situate at the
rear of the said shops as a tenant of the previous landlord at the rent of
Rs.35/- per month. These rooms are situated on the ground floor of the said
building. The respondent continued to occupy the said rooms as tenant at the
same rent. It is the case of the appellants that the first appellant is
carrying on business in three small stalls situated in a shop of the Cantonment
Council, the rent of which keeps increasing.
The three sons of the
appellants aged 23, 28 and 19 years are unemployed. Two sons want to start general
merchant business in one shop and the third son wants to start wholesale egg business
in the other shop. The appellants' family consists of 13 members. Their one son
is married and has three children and the two other sons are of a marriageable age.
The married son wants to live in the room behind the shop. Presently, the appellants'
family is living in three rooms and a verandah with great difficulty. On these grounds
the appellants filed the application for release of the rooms in occupation of
response, the respondent inter alia contended that he is conducting photography
business from the said shops for many years; that he is enjoying goodwill in the
area; that he will find it difficult to get premises in the same area; that
appellants are financially well off as compared to him; that they own other properties
and that greater hardship would be caused to the respondent if the decree of
eviction is passed than that would be caused to the appellants if it is not
Prescribed Authority dismissed the application holding inter alia that the appellants
are financially sound and other properties were available to them whereas
except the suit shops the respondent does not have any place for residence and
business and hence, if he is evicted from the shops in his occupation, he will experience
more difficulty. The appeal carried from the said judgment was dismissed by the
District Court holding inter alia that financial position of the appellants is far
better than that of the respondent.
They could have
purchased a vacant bungalow and started business for their sons. Learned
District Judge held that the appellants have purchased the building to make profit
and then filed the application for eviction. According to learned District
Judge, the respondent was doing business from the said shops for many years and
it would be difficult for him to find a place for business. Hardship caused to the
respondent would be more.
disposing of the petition filed by the appellants the High Court rightly held that
the landlord cannot be dictated by the tenant what business his sons should do
and the observations made by the courts below to that effect and the findings
reached by the courts below on bona fide requirement of the landlord are
perverse. However, without going into the aspect of comparative hardship, the High
Court directed that only one room out of the four rooms should be handed over
to the appellants by the respondent as from the affidavit it appears that the respondent
was using it as a passage. Being aggrieved by the said judgment, the appellants
have approached this Court.
Vijay Hansaria, learned senior counsel, appearing for the appellants submitted that
having come to the conclusion that the need of the appellants was genuine, the High
Court erred in directing the respondent to only handover one room to the
appellants. The High Court has wrongly granted only partial relief to the
appellants without going into the aspect of comparative hardship.
In support of his submissions,
learned counsel relied on Raghunath G. Panhale (Dead) by Lrs. v. C haganlal
Sundarji & Co. 1 , Bhimanagouda Basanagouda Patil v. Mohd. G udusaheb , Ganga
Devi v. District Judge, Nainital & Or s. 3 1 (1999) 8 SCC 1 2 (2003) 3 SCC
101 3 (2008) 7 SCC 770
Achal Chabbra, learned counsel for the respondent on the other hand submitted that
the High Court has balanced the interest of both sides and hence no interference
is necessary with the impugned judgment.
is no challenge to the High Court's finding that the appellants' requirement is
bona fide. The respondent has not assailed the High Court's order. We concur
with the High Court on this point. However, the High Court erroneously held that
the view expressed by the courts below that greater comparative hardship would
be caused to the respondent if decree of eviction is passed is correct so far as
two rooms occupied by him for residence and one room in which he is running a
shop is concerned.
The High Court observed
that no hardship will be caused to the respondent if one room is directed to be
handed over to the appellants because it was used as a passage by the respondent.
Surprisingly, the High Court has not given any reasons why only partial relief was
being granted to the appellants. In fact, it has not discussed the issue of comparative
hardship at all. Since this issue is of utmost relevance and the application of
the appellants is of the year 1998, we proceed to deal with it.
21 (1) (a) of the U.P. Act provides for eviction of a tenant on the ground of bona
fide requirement of the landlord. The fourth proviso thereof states that the Prescribed
Authority shall take into account the likely hardship to the tenant from the
grant of the application as against the likely hardship to the landlord from
the refusal of the application and for that purpose shall have regard to such
factors as may be prescribed.
16 (2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)
Rules, 1972 ( for short, `the said Rules') states which facts the Prescribed Authority
has to consider while dealing with an application for release under clause (a)
of sub-section (1) of Section 21 of the U.P. Act. Rule 16 (2) refers to building
let out for purpose of any business and the facts which have to be taken into consideration
a. length of tenancy of the
b. availability of suitable
accommodation for tenant;
c. whether the landlords
existing business is more flourishing than that which is proposed to be set up by
him in the leased premises and
d. need of
self-employment of a son or married or unmarried or widowed or divorced or
judicially separated daughter or daughter or a male lineal descendant of the landlord
who has completed his or her technical education and who is not employed in
Ganga Devi this Court held that comparative hardship indisputably is a relevant
factor for determining the question as to whether the requirement of the landlord
is bona fide or not within the meaning of the provisions of the U.P. Act and
the said Rules and it is essentially a question of fact. This Court observed
that Rule 16 provides for some factors which are required to be taken into consideration.
This Court clarified that
the court would not determine the question only on the basis of sympathy or sentiment.
This Court referred to its judgment in Bhagwan Das v. Jiley Ku mar where it is observed
that the outweighing circumstance in favour of the landlord was that two of her
sons after completing their education were unemployed and wanted to carry on business
for self-employment. This Court further observed that there was an additional circumstance
that the tenant had not brought on record any material to indicate that at any
time during the pendency of this long drawn out litigation he had made any attempt
to seek an alternative accommodation and was unable to get it.
This Court also referred
to its judgment in Rishi Kumar Govil v. M aqsoodan where it has particularly
taken note of the fact that the landlady had no other shop where she can establish
her son who is married and unemployed and there was nothing on record to
indicate that the business of the father was huge or flourishing. This Court
clarified that the length of the period of tenancy as provided under clause (a)
of sub-rule (2) of Rule 16 of the said Rules is only one of the factors to be taken
into account in context with other 4 (1991) supp. (2) SCC 300 5 (2007) 4 SCC
465 facts and circumstances of the case and cannot be a sole criterion or
deciding factor to order or not the eviction.
This Court held that
in the circumstances of the case the balance tilted in favour of the unemployed
son of the landlady whose need is certainly bona fide. After quoting the above judgment
in Ganga Devi this Court gave six months time to the landlady to handover the
premises to the landlord in the interest of justice.
our opinion, Ganga Devi applies on all fours to the present case. The first appellant
carries on his business from three small stalls of a shop of the Cantonment
Council whose rent keeps on increasing. There is nothing on record to suggest that
the appellants' present business is more flourishing than the business which
they propose to start in the leased premises. All the three sons of the
appellants are educated but unemployed. They want to start business in the
premises in occupation of the respondent. One of them is married and has three
The other three are
of a marriageable age. In all there are thirteen members in the appellants'
family and they are living in three rooms and one verandah with great difficulty.
As against that the respondent's family consists of four persons and there are four
rooms in his possession. It is observed by the courts below that the appellants
own other premises. However, details of those premises are not on record. The
High Court has rightly noted that this bald assertion is based on conjectures. It
is well settled the landlord's requirement need not be a dire necessity.
The court cannot direct
the landlord to do a particular business or imagine that he could profitably do
a particular business rather than the business he proposes to start. It was
wrong on the part of the District Court to hold that the appellants' case that
their sons want to start the general merchant business is a pretence because they
are dealing in eggs and it is not uncommon for a Muslim family to do the business
of non- vegetarian food.
It is for the landlord
to decide which business he wants to do. The Court cannot advise him. Similarly,
length of tenancy of the respondent in the circumstances of the case ought not to
have weighed with the courts below.
also find that the courts below were swayed by the fact that the financial position
of the appellants was better than the respondent. The District Court has erroneously
gone on to observe that the appellants can buy another building and start business.
It has also observed that the appellants had purchased the building to make profit.
In this connection we may usefully refer to the judgment of this Court in Bhimanagouda
Basanagouda Patil where the District Judge decided the issue of comparative
hardship in favour of the tenant solely on the basis of affluence of the parties.
This Court observed that
if this is the correct approach then an affluent landlord can never get
possession of his premises even if he proves all his bona fide requirements. This
Court further observed that the fact that a person has the capacity to purchase
the property cannot be the sole ground against him while deciding the question of
comparative hardship. If the purchase is pursuant to a genuine need of the landlord
the said purchase has to be given due weightage unless, of course, the purchase
is actuated by collateral consideration.
This Court rejected
the High Court's finding that the landlord had secured the premises apparently in
a game of speculation. Somewhat similar observations are made in this case by the
District Court which in our opinion are totally unsubstantiated.
is also important to note that there is nothing on record to show that during
the pendency of this litigation the respondent made any genuine efforts to find
out any alternative accommodation. We specifically asked learned counsel for the
respondent to point out any evidence to establish that the respondent made any such
genuine efforts. He was unable to answer this query satisfactorily.
the ultimate analysis, we are of the view that the perverse findings of the courts
below on the aspect of comparative hardship must be set aside. The High Court has
rightly found the need of the appellants to be bona fide. 14 It has however, fallen
into an error in directing the respondent to handover only one room to the
appellants. In our opinion, the hardship appellants would suffer by not occupying
their own premises would be far grater than the hardship the respondent would
suffer by having to move out to another place.
We are mindful of the
fact that whenever the tenant is asked to move out of the premises some hardship
is inherent. We have noted that the respondent is in occupation of the premises
for a long time. But in our opinion, in the facts of this case that
circumstance cannot be the sole determinative factor. That hardship can be mitigated
by granting him longer period to move out of the premises in his occupation so
that in the meantime he can make alternative arrangement.
the view that we have taken, the appeal succeeds. The impugned order is set
aside to the extent it permits the respondent to retain possession of three
rooms out of four rooms in his occupation. The respondent is directed to handover
possession of all the rooms in his occupation to the appellants. He is granted
six months time to vacate the premises in question on the condition that he files
usual undertaking before the Registry of this Court within eight weeks from
appeal is disposed of in the aforesaid terms.
(RANJANA PRAKASH DESAI)