G. C. Kapoor
Vs. Nand Kumar Bhasin & Ors  Insc 614 (20 November 2001)
Shah Mohammmed Quadri & S..N. Phukan Phukan, J.
appeal, by special leave, arises from the judgment of the High Court of Allahabad,
Lucknow Bench dated January
12, 1998 passed in
Writ Petition No.02 (RC)/1998. By the impugned judgment the High Court
dismissed the writ petition filed by the landlord.
suit premises was let out by the appellant to the contesting respondent No.1
and at that time his son Rohit was a minor. In the year 1992, Rohit obtained a
post-graduate diploma in computer science and thereafter the appellant filed an
application under clause (a) of sub-section (1) of Section 21 of the Uttar
Pradesh Urban Buildings (Regulation of Lettings, Rent and Eviction) Act, 1972
(for short the Act) for the eviction of the respondent from that suit premises
on the ground that it was required bonafide for starting a computer consultancy
centre as Rohit acquired necessary qualification and was unemployed. It was
contended that the appellant has no other alternative accommodation. It was
further pleaded that other portion of the building, which was let out to M/s. J.K.
Industries would also be required for the above purpose, as the total
requirement of space for starting such a centre was 2000 sq. ft. and an
eviction petition was also filed against M/s. J.K. Industries. It may be stated
that said M/s. J.K. Industries has vacated that portion of the building and is
now available to the appellant.
contesting respondent opposed the application inter alia on the grounds that
the appellant nor his son has sufficient resources to set up such a centre,
suit premises is neither suitable nor sufficient for the above purpose and
it is only a dream of the appellant to start the computer consultancy centre.
It was averred that respondent No.1 has got dealership of tractors, motorcycles
and scooters and the suit premises have all along been used for the said
business purpose. As the suit premises eminently situated at the market place,
the contesting respondent will suffer irreparable loss and hardship in case of
and counter affidavits were filed by the parties, as required under the
provision of the act and rules framed thereunder. After due consideration the
prescribed authority, by order dated 19.3.1996, dismissed the application. The
appeal filed by the landlord was also dismissed by the XIIIth Additional
District Judge by judgment dated September 11, 1997. As stated earlier, the writ petition was also dismissed
and that is how the parties are before us.
have heard Mr. Kavin Gulati, learned counsel for the appellant and Mr. Chandra Shekhar,
learned counsel for the respondents.
be stated that after the application for eviction was filed on January 18, 1993, a proposal was sent by the
appellant on November
10, 1993 to the Bureau
of Information, Technology and Science (shortly BITS) for franchise to open the
above centre which was granted by BITS. However, this letter was subsequently
withdrawn by a letter dated 14th December, 1994.
the courts below rejected the eviction petition inter alia on the following
appellant did not have capacity to generate a fund of Rs.10 Lakh for running
the proposed centre which would be necessary to set up the business;
BITS had refused to grant franchise to Rohit, the bonafide need of the suit
premises for running the business was not established;
affidavit was filed by Rohit to show that he has technical know-how or
inclination to run the business; and (4) since Rohit did not start business
between 1992 and 1997 by taking any other property on rent, it could not be
said that he did not need the suit premises to run the business.
(a) of 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 filed by the landlord if the building
is bonafide 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 or 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
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:
where a son or unmarried or widowed or divorced or judicially separated
daughter or 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.
settled position of law that bonafide requirement means that requirement must
be honest and not tainted with any oblique motive and is not a mere desire or
wish. In Dattatraya Laxman Kamble versus Abdul Rasul Moulali Kotkunde and
Another [1999 (4) SCC 1], this Court while considering the bonafide 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 bonafide. It was also held that while deciding
this question, Court would look into the broad aspects and if the Court feels
any doubt about bonafide requirement, it is for the landlord to clear such
G. Panhale (D) By Lrs. versus 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 nor that he had experience
of it. It was a case for eviction on the ground of bonafide requirement of the
landlord for non-residential purpose, as he wanted to start a grocery business
in the suit premises to improve his livelihood.
financial capacity of the appellant, the courts below have held that appellant
did not have financial capacity. From records we find that the appellant
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 (supra). 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.
second finding of the withdrawal of the letter for franchise by BITS of the
courts below, we find from the record that there is a clear averment made by
the appellant that his son wanted to open a computer consultancy centre on his
own and only to make the business viable, he made an application for franchise
after the eviction suit was filed. Merely because the franchise was withdrawn
by BITS, it will be incorrect to come to the conclusion that the son of the
appellant would not be able to start the business when he has the requisite
qualification being a holder of post degree diploma in computer science and has
the capacity to arrange funds. It was not the case of the appellant that his
son would be able to start the business only after obtaining franchise. It has
also been urged on behalf of the appellant that letter from BITS was produced
before the Court only to show the requirement of 2000 sq. ft. of space for the
purpose of running the business in question. We are, therefore, of the opinion
that the findings of the courts below are erroneous. Courts below have taken
adverse note, as Rohit did not file any affidavit to show his technical
know-how and inclination to run the business.
an affidavit is not necessary as regarding technical know-how, a copy of the
diploma of Rohit has been filed and his father has made a categorical statement
that his son would run the business in the suit premises.
reasoning of the courts below is that as Rohit did not start the business
between the year 1992 and 1997 by taking any property on rent, it could not be
said that the appellant needed the suit premises to run the business. There is
a categorical averment by the appellant that the business was to be started in
the suit premises and the appellant would not be able to take any other
premises on rent. Not starting the business in a rented premises during the
above-mentioned period, cannot be a ground to deny decree for eviction of the
suit premises. This Court in Gaya Prasad versus Pradeep Srivastava [2001 (2)
SCC 604] relying on early decisions of this Court held that the crucial date
for deciding as to bonafide of requirement of landlord is the date of his
application for eviction. It was a case of bonafide requirement of the premises
in question for starting a clinic by the son of the landlord. The litigation
continued for 23 years and during that period the son of the landlord joined
Provincial Medical Service and was posted at different places. The Court
refused to take notice of the subsequent event holding that crucial date was
the date of filing of the eviction petition.
courts below completely overlooked clause (d) of sub-rule (2) of Rule 16 of the
rules while deciding the eviction petition.
the rule extracted earlier, the court has to ascertain whether the son of the
landlord has completed technical education and is not employed in the
government and wants to engage in self- employment. All the criteria laid down
in the said clause have been proved and, therefore, appellant is entitled to
get the decree for eviction.
on record that the tenant has purchased the adjoining property. He has stated
in the written statement that he is a prosperous businessman. From the report
of the commissioner appointed by the court we find that in the property
purchased by the tenant a mazanine floor has been constructed and that suit
premises is used only to store spare parts. The tenant has got other premises
wherefrom he is running his business. On the other hand the appellant has no
other premises except the suit premises to start the proposed business of his
son. We, therefore, hold that landlord would suffer greater hardship if
eviction is refused.
find merit in the present appeal and accordingly it is allowed by setting aside
the impugned judgments of the courts below.
eviction petition filed by the appellant is allowed and a decree for eviction
would follow. Cost on the parties.
Shah Mohammed Quadri] ..J.