Arya & Anr Vs. Mukesh Kumar Gupta  Insc 1192 (28 November 2007)
Arijit Pasayat & Lokeshwar Singh Panta
APPEAL NO. 5483 OF 2007 (Arising out of SLP (C)No. 19545 of 2006) Dr. ARIJIT
Challenge in this appeal is to the order passed by a learned Single Judge of
the Uttranchal High Court allowing the writ petition filed by the respondent.
Said respondent undisputedly is the landlord of the premises which were let out
to the present appellants.
application under Section 21(1)(a) of U.P. (Urban Building (Regulation of
Letting, Rent and Eviction) Act, 1972, (Act No.13 of 1972) (hereinafter
referred to as the 'Act') was filed by the respondent against the appellants
praying for the release of the Shop situated at Mohalla Bazar Ganj (Park Road),
Kashipur, District Udham Singh Nagar, which was under tenancy on the ground
that the respondent has passed High School Certificate Examination 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.
was, further, stated by the landlord 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 respondent also. It was
also stated that he also does 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 he has already been married in 1994 and 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.
written statement was filed by the present appellants in which it was stated
that the landlord can be accommodated in the business of the father.
affidavit was filed by the respondent 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 was specifically
stated that all other shops are rented accommodation and the tenants are
occupying the same.
prescribed authority, Kashipur District Udham Singh Nagar allowed the
application of the respondent directing the appellants to vacate the shop
within a period of 30 days.
Being aggrieved the appellants preferred an appeal which was allowed by the
appellate authority. The respondent filed Writ Petition under Article 227 of
the Constitution of India, 1950 (in short the 'Constitution'). The High Court
as noted above allowed the writ petition of the respondent and directed the
appellants to vacate the premises.
support of the appeal, it was contented by learned counsel for the appellants
that the parameters relating to bonafide needs and comparative hardship have
not been considered in the proper perspective.
Learned counsel for the respondent on the other hand supported the judgment of
the High Court stating that the High Court has kept in view the factual
scenario and applied the appropriate and applicable principles and, therefore,
no interference is called for.
far as the basic need concept is concerned in Akhileshwar Kumar and Others v. Mustaqim
and Others [AIR 2003 SC 532] it was inter alia held as follows:
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.
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
the High Court has overlooked 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.
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.
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.
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 felt need of one of them."
Ragavendra Kumar v. Firm Prem Machinery & Co. [2000(1) SCC 679] it was held
as follows :
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, [(1996)5 SCC 353]. 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
Joginder Pal v. Naval Kishore Behal [(2002(5) SCC 397) it was held as follows:
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
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 than 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.
xxx The need for reasonable interpretation of rent control legislations was
emphasized by this Court in Bega. Begum v. Abdul Ahad Khan (1979 AIR SC 273).
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 (1980) 1 SCC 290) 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 Gupta (1999) 6 SCC 222) 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.
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.
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.
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.
xxx In providing key to the meaning of any word or expression the context in
which it is set has significance. Color 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
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.
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.
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)."
Again in G.C. Kapoor v. Nand Kumar Bhasin (AIR 2002 SC 200) it was noted as
is 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 v. Abdul Rasul Moulali Kotkunde and Anr.
(1999 (4)SCC1) 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 Courts feels any doubt about
bonafide requirement, it is for the landlord to clear such doubt.
Raghunath G. Panhale G. Panhale (D) By Lrs. v. Chaganlal Sundarji and Co.
(1999(8)SCC1)his 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.
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."
Mst. Begam Begum & Ors. V. Abdul Ahad Khan (d) by Lrs & Ors. (1979(1)
SCC 273) this court had occasion to deal in detail with the comparative
hardship's aspect as follows:
Section 11(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 or 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 nor its language so unduly stretched or strained as to make it
impossible or extremely difficult for one 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 State 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.
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 likely to get any
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 for eviction.
on careful comparison and assessment of the relative advantage and
disadvantages of the landlord and the tenant it seems to us that the scale is
titled in favour of the plaintiff. The inconvenience, loss and trouble
resulting from denial of a decree for eviction in favour of the plaintiffs far outweight
the eviction from that point of view."
is to be noted that learned counsel for the appellants submitted that the
matter should have been remanded to the authorities for further consideration.
Such a practice has been deprecated by this court in a large number of cases.
[See: R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and Anr.
(2003 (8) SCC 752)].
Considering the factual background in the light of the principles as stated
above, the inevitable conclusion is that this appeal is without merit.
Considering the fact that the appellants are carrying on the business in the
premises, time is granted to them to vacate the premises in question by the end
of June, 2008 subject to filing the usual undertaking with the prescribed
authority within a period of four weeks from today.
Appeal is dismissed but without any order as to costs.