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CASE NO.: Appeal (civil)  5483 of 2007

PETITIONER: Yadvendra Arya & Anr

RESPONDENT: Mukesh Kumar Gupta

DATE OF JUDGMENT: 28/11/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.        5483 OF 2007 (Arising out of SLP (C)No. 19545 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

                                                             2.      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.

3.      An 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. 4.      It 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.

5.      A 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.

6.      An affidavit was filed by the respondent who has

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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.

7.      The 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.  8.      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.

9.      In 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.

10.     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.

11.     So 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: "In 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.  Simply 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 independent business.  What 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. 4. So 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

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choosing of the accommodation which would  be reasonable to satisfy such requirement has  to be left to the subjective choice of the needy.  The 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.  The 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."

12.     In Ragavendra Kumar v. Firm Prem Machinery & Co.  [2000(1) SCC 679] it was held as follows :

"It 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 faulted."

13.     In Joginder Pal v. Naval Kishore Behal [(2002(5) SCC  397) it was held as follows: "In 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 society".  While 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

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shackles on the other section, not only entails  miscarriage of justice but may also in  constitutional invalidity.

               xxx             xxx                     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.

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

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legislations to take care of those situations  where the landlords too are weak and feeble  and feel humble.

xxx                     xxx                     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 the expression.  Requirement 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.

xx                              xxx             xxx

32.     If 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.

33(1)In 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)."

14.     Again in G.C. Kapoor v. Nand Kumar Bhasin (AIR 2002  SC 200) it was noted as follows:

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"It 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.  10. In 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.  It was 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."  

15.     In 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: "Moreover 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.

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  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

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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.

Thus, 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."

16.     It 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)].

17.     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.

18.     Appeal is dismissed but without any order as to costs.