MOHD. AYUB & ANR.V/s.MUKESH CHAND CIVIL APPEAL NO. 4495 OF 2006(5 January 2012)

REPORTABLE


IN THE SUPREME COURT OF INDIA


CIVIL APPELLATE JURISDICTION


CIVIL APPEAL NO. 4495 OF 2006




MOHD. AYUB & ANR. ... APPELLANTS


Versus


MUKESH CHAND ... RESPONDENT




JUDGMENT




(SMT.) RANJANA PRAKASH DESAI, J.




1. This 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.




2. The 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


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that they bona fide required the premises occupied by the


respondent to start business for their sons.




3. According 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


3



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 the respondent.




4. In 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 passed.




5. The 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


4



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.




6. While 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


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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.




7. Shri 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 2
, Ganga Devi v. District Judge, Nainital &


Or
s. 3





1 (1999) 8 SCC 1

2 (2003) 3 SCC 101

3 (2008) 7 SCC 770


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8. Shri 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.




9. There 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


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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.




10. Section 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.




11. Rule 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


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consideration are: (a) length of tenancy of the tenant; (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 government service.




12. 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


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Ku
mar 4
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 5
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


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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.




13. In 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 children. The other three are of a


marriageable age. In all there are thirteen members in the


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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


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circumstances of the case ought not to have weighed with


the courts below.


14. We 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


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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.




15. It 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.




16. In 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.


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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.





17. In 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


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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 today.




18. The appeal is disposed of in the aforesaid terms.





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

(AFTAB ALAM)




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

(RANJANA PRAKASH DESAI)


NEW DELHI,

JANUARY 05, 2012