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                                                         REPORTABLE

                IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

                  CIVIL APPEAL NO.             OF 2008                  (Arising out of SLP (C) No.20681 of 2006)

Ganga Devi                                              ... Appellant

                                 Versus

Distt. Judge, Nainital & ors.                           ... Respondents

                           JUDGMENT

S.B. Sinha, J.

1.    Leave granted.

2.    This appeal is directed against a judgment and order dated 20.11.2006

passed by the High Court of Uttranchal at Nainital in Writ Petition No. 581

of 2005 affirming the judgment and order dated 4.6.2005 passed by the

District Judge, Nainital allowing an appeal from a judgment and order dated

22.11.2004 whereby and whereunder an application for release filed by the

respondent on the ground of his bona fide requirement was dismissed.

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3.    Respondents 1 and 2 are the joint owners of a shop situated in H..No.

110 Durga Cottage Annexy Safak Suffock Hall Compound, Tallital,

Nainital.

     Khyali Ram, the husband of the appellant, was a tenant therein. He

died leaving behind the appellant (his wife) and two daughters Smt. Hema

Tiwari and Smt. Deepa Joshi. They are married. They have no concern

with the shop in question.

     Respondent No. 3 was in military service. He retired from army. He

was living at Nainital with his wife and children. He draws a sum of

Rs.2,000/- (Rupees Two thousand only) by way of pension. He, therefore,

wanted to start his business in the said shop.

     An application for release of the shop was filed before the prescribed

authority being Chief Judicial Magistrate, Nainital in terms of Section 21(1)

(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act,

1972. The said application was dismissed, inter alia, on the premise that

applicants on a shop other than the shop in question holding:

            "However, as regards need of N.A. No. 1 for the said              shop, she has no other means of her livelihood except the              shop in question and it is also clear that the N.A. No.1 is              an old lady of 50-50 years of age because of which she              was unable to carry business elsewhere. In such a case,              therefore, in relation to the applicants N.A. No.1 has              intense and bonafide need of the shop in question and in

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            case the shop in question is released in favour of the              applicants undoubtedly the N.A. No.1 having no means              of livelihood would face too much hardship, when              applicant No. 2 is a retired man and is living on pension              and he is still young and he has a shop adjoining the              shop in question and he can carry his business elsewhere.              In such a case therefore, in relation to applicants the              N.A. No.1 has intense and genuine need of the shop in              question and the relative hardship is very much in favour              of the non applicants No. 1 and against the applicants."

4.    The Appellate Authority, however, reversed the said order holding

that respondent No.3 was in bona fide need of the said shop for the purposes

of carrying out an independent business.

     As regards comparative hardship, it was opined that Rule 16 of the

Rules framed in terms of Section 41 of the Act 13 of 1972 would not be a

ground for refusing to allow a release application. The writ petition filed by

the appellant thereagainst as indicated hereinbefore has been dismissed by

the High Court by reason of the impugned judgment.

5.    The High Court, we may at the outset notice, has committed an error

in holding that the findings of both the prescribed authority as also the

Appellate Authority were concurrent; in fact the Appellate Authority

reversed the findings of the prescribed authority.

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6.    Mr. R.P. Gupta, learned counsel appearing on behalf of the appellant

would submit :

     i)      The High Court and the courts below have failed to take into

             consideration the scope and purport of the 4th proviso appended

             to Section 21(1)(a) of the Act vis-‘-vis Rule 16 of the Rules.

     ii)     While considering the question of comparative hardship, the

             appellate court as also the High Court should have made an

             attempt to balance the requirements of both the landlord and

             tenant by directing division of the tenanted premises into two,

             which measures 30 ft. x 20 ft.

     (iii)   The fact that the husband of the petitioner was the tenant in the

             shop in question for a long time, viz., for more than 50 years, is

             itself a pointer to show that Rule 16 of the Rules would be

             applicable.

7.    Mr. Sanjay Parikh, learned counsel appearing on behalf of the

respondents on the other hand supported the impugned judgment.

8.    Section 21(1)(a) of the Act reads as under:-

             "21. Proceedings for release of building under               occupation of tenant.- (1) The prescribed authority               may, on an application of the landlord in that behalf,               order the eviction of a tenant from the building under

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           tenancy or any specified part thereof if it is satisfied that             any of the following grounds exists namely--             (a) that the building is bona fide required either in its             existing form or after demolition and new construction             by the landlord for occupation by himself or any member             of his family, or any person for whose benefit it is held             by him, either for residential purposes or for purposes of             any profession, trade or calling, or where the landlord is             the trustee of a public charitable trust, for the objects of             the trust;"

     The fourth proviso appended thereto reads as under:

           "Provided also that the prescribed authority shall, except             in cases provided for in the Explanation, 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."

     Section 41 of the Act 13 of 1972 provides for the rule making power.

Pursuant thereto or in furtherance thereof Rules have been framed by the

State of U.P. known as U.P. Urban Buildings (Regulation of Letting, Rent

and Eviction) Rules, 1972 (for short, "the Rules").

     Rule 16(2) of the Rules reads as under:

           "16. Application for release on the ground of             personal requirement -             (1)...........................

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            (2) While considering an application for release under              clause (a) of Sub-section (1) of Section 21in respect of a              building let out for purposes of any business, the              Prescribed Authority shall also have regard to such facts              as the following:- (a)   the greater the period since when the tenant opposite party, or       the original tenant whose heir the opposite party is, has been       carrying on his business in that building, the less the       justification for allowing the application; (b)   Where the tenant has available with him suitable       accommodation to which he can shift his business without       substantial loss there shall be greater justification for allowing       the application. (c)   the greater the existing business of the landlord’s own, apart       from the business proposed to be set up in the leased premises,       the less the justification for allowing the application, and even       if an application is allowed in such a case, the prescribed       authority may on the application of the tenant impose the       condition where the landlord has available with him other       accommodation (whether subject to the Act or not) which is not       suitable for his own proposed business but may serve the       purpose of the tenant, that the landlord shall let out that       accommodation to the tenant on a fair rent to be fixed by the       prescribed authority; (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.    Application of the aforementioned provisions to the fact of this case

is in question.

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     Bona fide requirement of the shop premises has been found in favour

of respondent No.3 - Sunil Kumar. It now almost stands admitted that Shri

Anil Kumar resides and runs a business at Almora. It is also beyond any

doubt that Shri Sunil Kumar resides at Nainital. The fact that he is a retired

person is not in dispute. He receives a sum of Rs. 2,000/- by way of pension

has also not been disputed. The Appellate Authority has found existence of

bona fide requirement on the part of the said Shri Sunil Kumar as indicated

hereinbefore. The contention of the appellant No.1 is that she is a 76 years

old lady and that she has to run the said business as of necessity. The core

question is whether the Appellate Authority was wholly wrong in arriving at

the said finding so as to warrant interference by the Writ Court.

10.   Before the Prescribed Authority, no plea was taken by the appellants

that another shop was available to the respondent No.3. The Prescribed

Authority, on the basis of a purported statement made by the sister of the

respondent Nos. 2 and 3, arrived at a purported finding that ground-floor of

one building, commonly known as, "Durga Cottage" is available.            The

Appellate Authority, however, upon consideration of the entire materials on

record arrived at a different conclusion opining that the respondent No. 3

has been living with his wife and children independently and having regard

to the fact that admittedly he has been receiving a petty sum of Rs.2,000/-

by way of pension wherewith it was not possible to maintain a family of 4-5

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members, he must augment his source of income. It was also found that one

of his sons had been studying in Nainital. No evidence was brought on

record to show that he has any property other than the one where the shop in

question is situated. Respondent No. 3 was found to have been residing in a

portion of first floor of the property and the disputed shop was situated in

the ground-floor and on the said premise it was held that it was not possible

to ask him to open a shop at the first-floor by giving up his residential

accommodation.

11.   It is not the case of the appellant that the ‘Durga Cottage" is situated

at any other place or it is another property where the respondent No. 3 has a

share and whereat, he can start running a shop. The aforementioned finding

of the Appellate Authority was not challenged before the High Court. An

error committed by the Prescribed Authority as regards availability of an

alternative accommodation to the respondent No.3 was corrected by the

Appellate Authority and, thus, in the event, the appellant intended to

question the correctness thereof, a specific ground in the writ petition

should have been taken. Even it does not appear from the special leave

petition that such a ground has been raised even before us. In the absence of

any ground, thus, having been taken either before the High Court or before

us that the aforementioned finding of the Appellant Authority must be held

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to be containing an error of record, and thus, we are of the opinion that the

said finding of fact should not be interfered with.

     We may now consider the submission of Mr. Gupta, learned counsel

for the appellant, that the size of the shop being 13 ft. x 20 ft. can be divided

into two shops so as to accommodate both the 1st appellant as also the 3rd

respondent.    It appears that there exists a dispute in regard thereto.

Respondents in their affidavit categorically stated :

             "That it may also be pointed out that the present               Respondent filed an application for release of the               disputed accommodation situated at Nainital which is a               small shop measuring 8 feet x 10 feet and is not capable               of being partitioned."

12.   The said averments have been traversed in paragraph 8 of the

rejoinder in the following terms:

              "That the contents of para 3 of counter affidavit of               respondents are wrong and denied and the respective               contents of petition are reiterated."

13.   We are, however, not oblivious of the fact that with the said rejoinder

a sketch map has been annexed to show that it measured 13 ft. x 20 ft. We

are, however, of the opinion that such disputed questions of fact cannot be

gone into by this Court for the first time.

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     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 said Act and the

Rules. It is essentially a question of fact. Such a question of fact, however,

is to be determined on the touchstone of the statutory provisions as

contained in Section 21(1)(a) and Rules 16(2)(c) of the Rules.

14.   Rule 16 provides for some factors which are required to be taken into

consideration for the purpose of determining the comparative hardship.

Respondent No. 3 in this case does not have any business. If he has no

business, the question of application of the factors as envisaged in the first

part of clause (c) of Sub-Rule (2) of Rule 16 will not arise. On the findings

of the Appellate Authority, no accommodation is available with him. The

question of thus any premises being let out in favour of 1st appellant also

does not arise.

15.   There is also nothing on record to show that for the last so many years

the appellant had made any effort to find out a tenanted premises for herself

so that she can continue with her business. No such material at least has

been brought on record.     Any subsequent event as regards thereto has

neither been pleaded nor proved.

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     The provisions of the statutory rules must be interpreted so as to give

effect to the object and purport of the Act. It cannot be applied in a vacuum,

as the statute requires comparison of the hardship of both the tenant as also

the landlord. It is, therefore, not a case where Rule 16 has any application.

16.   The court would not determine a question only on the basis of

sympathy or sentiment. Stricto sensu equity as such may not have any role

to play.

17.   In Bhagwan Das vs. Jiley Kaur reported in [1991 Supp. (2) SCC

300], this Court distinguishing the earlier decision of this Court in Bishan

Chand vs. Vth Addl. District Judge, Bulandshahr [(1982) 1 SCC 626]

stated the law in the following terms:

             "It was also pointed out in this case that the provisions              of Rule 16(2) of the Act (sic for Rules) had not been              considered at all. In our opinion, the said decision is              clearly distinguishable. Firstly, the instant case was one              where there was an outweighing circumstance in favour              of the landlord namely that two of her sons after              completing their education were unemployed and wanted              to carry on business for self-employment. Secondly, as              already seen above, it was not a case where the              provisions of Rule 16(2) can be said to have been              ignored by the District Judge. Thirdly, it was a case              where there was even this additional circumstance that              the appellant had brought no material on record to              indicate that at any time during the pendency of this long              drawn out litigation he made any attempt to seek an              alternative accommodation and was unable to get it."

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     The ‘thirdly’ referred to therein applies to the fact of this case.

     Yet again in Rishi Kumar Govil vs. Maqsoodan & ors. [(2007) 4

SCC 465] (wherein one of us Panta,J. was a Member), this Court quoted

from the decision from Sushila vs. IInd ADJ [(2003) 2 SCC 28], wherein it

was stated:

              "11. In the case in hand we find that even though the               period of tenancy of the respondent is no doubt long but               availability of another shop to him where he can very               well shift his business as found by the prescribed               authority, neutralizes the factor of length of tenancy in               the accommodation in dispute. We further find that the               landlady has no other shop where she can establish her               son who is married and unemployed. There is nothing               on the record to indicate that the business of the father of               Prem Prakash is so huge or that it is a very flourishing               business so as to attract application of clause (c) of Rule               16(2). As observed earlier it is clear that the length of               the period of tenancy as provided under clause (a) of               sub-rule (2) of Rule 16 of the Rules, 1972 is only one of               the actors to be taken into account in context with other               facts and circumstances of the case. It cannot be a sole               criterion or deciding factor to order or not the eviction of               the tenant. Considering the facts in the light of Rule 16               pressed into service on behalf of the respondent, we find               that according to the guidelines provided therein balance               tilts in favour of the unemployed son of the landlady               whose need is certainly bona fide and has also been so               accepted by the respondent before us."

     We may notice that recently in Satyawati Sharma (Dead) by LRs. Vs.

Union of India (UOI) and Anr. reported in 2008 (6) SCALE 325. Section

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14(1)(e) of the Delhi Rent Control Act, 1958 was declared ultra vires stating

that with the passage of time a statute which was held to be valid may be

held to be invalid in the following terms:

            "It is trite to say that legislation which may be quite              reasonable and rationale at the time of its enactment may              with the lapse of time and/or due to change of              circumstances become arbitrary, unreasonable and              violative of the doctrine of equity and even if the validity              of such legislation may have been upheld at a given              point of time, the Court may, in subsequent litigation,              strike down the same if it is found that the rationale of              classification has become non-existent."

18.   Appellant No.1 is said to be 76 years old. Her daughters are married.

Learned counsel submits that she should be allowed at least five years’ time

to shift at a different place. We do not think that having regard to the fact

that the suit was filed in 2003, she should be given that much time.

19.   In the facts and circumstances of this case, we are of the opinion, that

six months’ time should be granted to the 1st respondent to vacate the

premises, which should serve the ends of justice. It is directed accordingly.

     Subject to the aforementioned directions, this appeal is dismissed. In

the facts and circumstances of this case, there shall be no order as to costs.

                                              .....................................J.

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                          [S.B. Sinha]

                   .....................................J.                             [Lokeshwar Singh Panta]

New Delhi; May 13, 2008