HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH (Reserved) Court No. - 18 Case :- RENT CONTROL No. - 61 of 2006 Petitioner :- Smt.Mala Devi Respondent :- Additional District Judge Lucknow And 2 Others Petitioner Counsel :- S.C.Shukla Respondent Counsel :- C.S.C.,Siddharth Dhaon Hon'ble Anil Kumar,J.
Heard Sri Sudhir Pandey, learned counsel for petitioner and Sri Siddharth Dhaon, learned counsel for respondents.
By means of present writ petition, petitioner challenged order dated 29.05.2006 passed by Additional District Judge, Lucknow in Rent Appeal No. 51 of 2005.
Facts in brief as submitted by learned counsel for petitioner are that controversy involved in present case relates to shop situated in House No. 512/102 at 7th Lane, Nishatganj, Police Station Mahanagar, Lucknow, petitioner (Smt. Mala Devi) is owner/landlady. She purchased the House in question by means of registered Sale deed dated 16.08.1993 from it's erstwhile owner and respondent no. 3/Mohd. Haneef is tenant of shop in the said House since 1975, after purchase, landlady moved an application for release the shop in question on 12th July, 2004 (Annexure no. 2 to the writ petition), under Section 21(1)(a) of U.P. Act no. XIII of 1972 (hereinafter referred as 'Act').
In the said application, need as set up by the landlady is that her income as well as income of her husband is not sufficient to meet out the livelihood of her family members as well as family members of her Dewar who are also dependent on them and in order to increase the same, she wants the shop in question.
In Paragraph 5 of release application, details of her family members mentioned are reproduced hereinbelow :-
1.Applicant herself
2.Sri Sher Singh husband of applicant doing service.
3.Km. Nidhi aged about years, daughter of marriageable age.
4.Km. Preeti aged about years, daughter of marriageable age. 5.Abhaya kumar aged about years, son, student of class B.A. Part III in Lucknow University, Lucknow. 6.Pradeep Kumar aged about 40 years, husband's real younger brother, jobless and dependent on applicant's family. 7.Smt. Uma Devi wife of Pradeep Kumar-house lady 8.Km. Deepika aged about 16 years daughter of Pradeep Kumar, student of Class X. 9.Ajaya Kumar aged about 15 years, son of Pradeep Kumar, Car Machenic but jobless for want of accommodation. 10.Km. Reenu daughter of Pradeep Kumar aged about 14 years 11.Aviral son of Pradeep Kumar aged about 11 years, student of Class VI. Accordingly, a P.A. Case No. 51 of 2004 (Smt. Mala Devi Vs. Mohd. Haneef) registered before the Prescribed Authority/Civil Judge, Senior Divison, Mohanlalganj, Lucknow.
On 16.12.2004, written statement filed on behalf of tenant/respondent no. 3 inter alia stating therein that in the shop in question, he is running a business in the name and style of 'Madras Hair Dresser' since 1975 and on the income, getting from the said business, he as well as his three sons are depend. Further, in the written statement in Paragraph 16, it is pleaded that in the building in which the shop in question is situated, there are four more shops, out of which two remain locked, if applicant/landlady intends to do any business then she can do it from those vacant shops. It has also been pleaded that petitioner already filed a SCC Suit (registered as SCC Suit No. 187 of 2003) pending in the court of Judge Small Causes, Lucknow for recovery of rent, damages and ejectment, but when she was not able to get success in the said matter, present case filed, so need of landlady is neither bonafide nor genuine, application for release of the shop in question moved under Section 21(1)(a) of U.P. Act No. XIII of 1972 only in order to evict the tenant/respondent no. 3 and get the higher rent of the shop in question.
Before the Prescribed Authority on behalf of petitioner/landlady, evidence through affidavits filed namely of her, Sri Girish Chandra Pant, and Dinesh Nath Goswami who are the resident of same. On the basis of said affidavits, it has been brought on record that there are only three shops under the ownership of landlady, not five shops as pleaded in the written statement.
On behalf of tenant/respondent no. 3, affidavits of Mohd. Haneef (tenant), as well as Dilawar Husain filed. On the basis of same, brought on record that landlady is owner of three shops, out of which one shop initially under the tenancy of Sri Ahmad Husain father of Dilwar Husain, possession of the same given to her on 14.01.2005 and petitioner started her business, hence there is no need for release the shop in question in favour of landlady/petitioner. The said fact also supported by an affidavit filed on behalf of Sri Dilawar Husain in support of case of tenant/respondent no. 3.
On the basis of pleadings and material evidence on record, the Prescribed Authority in order to adjudicate the dispute involved, framed following issues :-
1.क्या विपछी के प्रश्नगत किरायेदारी वाले भाग के सम्बन्ध में प्रार्थिनी की आवश्कता वास्तविक व सद्भावी है ?
2.निर्मुक्ति प्रार्थना पत्र के स्वीकृत होने या अस्वीकृत होने की स्थिति में किस पछ को अधिक तुलनात्मक कठिनाई होगी ?
Thereafter, Prescribed Authority, on the basis of material on record/evidence came to conclusion that need of landlady/applicant is bonafide and genuine in respect to shop in question in order to set up her business to meet out the livelihood of her family.
Prescribed authority also held that although brother-in-law(Dewar) of landlady/petitioner does not come within the definition of family as given under Section 3(g) of the Act but application under Section 21(1)(a) of U.P. Act no. XIII of 1972 moved by her to increase her income of her family as well as family of her brother-in-law(Dewar) who are also depend on her income, in these circumstances, even if Dewar does not come within the definition of family as given under Section 3(g) of the Act, inspite of the said fact, as his family is dependent on the income of landlady/petitioner, accordingly the facts of the present case to be taken into consideration, release application is maintainable.
Further, so far as the numbers of shop to which petitioner/landlady is owner, the Prescribed Authority not given any finding but held that shop initially under the tenancy of Sri Ahmad Husain father of Sri Dilawar Husain, during the pendency of the litigation given to the possession of petitioner, but the same is not sufficient to cater her need to do the business for which release application moved.
Prescribed Authority also given a finding that applicant/landlady done the course of beautician, keeping in view the said fact in order to increase the income of family, she need the shop in question under the tenancy of tenant/respondent no.3 from which he is running the hair cutting saloon which can be shifted to another place. Also recorded finding that after giving notice/moving application for release under Section 21(1)(a) of U.P. Act no. XIII of 1972 by petitioner/landlady, tenant/respondent no. 3 did not make any effort to search alternate accommodation, as such the need of petitioner/landlady is genuine and bonafide, so comparative hardship of tenant/respondent no. 3 cannot be considered in present case. Accordingly, by order dated 21.10.2005, application allowed, granted thirty days time to tenant to vacate the shop in question, and give peaceful possession to landlady/petitioner.
Aggrieved by the same, tenant/respondent no. 3 filed a Rent Appeal No. 51 of 2005 before appellate authority/Additional District Judge, Court no. 9, Lucknow. By order dated 29.05.2006 (Annexure no. 1 to the writ petition), appellate authority allowed appeal on the point summerized as under :-
(a) Brother-in-law (Dewar) of landlady does not come within the definition of Section 3(g) of the Act, so application for release moved by her is not maintainable, liable to be dismissed.
(b) Landlady is the owner of three shops in question and during the pendency of litigation, one shop already released in her favour, as such thereafter need of landlady is not genuine and bonafide, she can do the business of beautician from the shop already released in her favour (under the tenancy of Ahmad Husain/Dilawar Husain).
(c) If tenant is evicted from the shop in question then he will suffer greater hardship in comparison to landlady.
Hence, present writ petition filed by petitioner/landlady to challenge order dated 29.05.2006.
Sri Sudhir Pandey, learned counsel for petitioner while challenging impugned order dated 29.05.2006 submits that so far the finding given by the appellate authority while allowing the appeal filed by tenant/respondent no. 3 that brother-in-law (Dewar) does not come within the definition of family of landlady as given under Section 3(g) of the Act, is totally incorrect and wrong finding rather the same is contrary to the facts and perverse in nature.
In order to support of his argument, learned counsel for petitioner submits from the perusal of release application moved by petitioner/landlady, it is clear that in the said application Paragraph 5 it is categorically mentioned, the same moved to carry out livelihood of her family as well as family of Dewar depend on her in the better manner, so additional income required which can be meet from the shop in question, as such finding given by appellate authority that Dewar does not come within the definition of family as given under Section 3(g) of the Act accordingly release application moved by petitioner is not maintainable, is totally incorrect and wrong finding rather finding given by Prescribed Authority that release application moved in order to enhance the income of family of landlady/petitioner is perfectly valid. The said finding set aside by appellate authority without any reason and basis, said exercise is illegal, perverse in nature, liable to be set aside.
Sri Sudhir Pandey, learned counsel for petitioner further submits that during the pendency of litigation, husband of landlady retired from services after attaining the age of superannuation on 31.07.1979, so the need of shop in question is more genuine and bonafide in order to carry out livelihood of her family as well as family of Dewar, depend upon her.
It has also been argued by learned counsel for petitioner that there are only three shops in the House in question, owned by landlady/petitioner, out of which one shop which is subject matter in present case, second shop under the tenancy of some other person, and 3rd shop initially under the tenancy of Ahmad Husain/Dilawar Husain, thereafter given in her possession from which she is running the Beauty Parlor, but in order to running the same in better manner, she need two shops. As from one shop practical work will be performed and other shop will be used as waiting place for other costumer, necessary requirement to run beauty Parlor, accordingly finding given by appellate authority that after getting one shop in possession initially owned by Sri Ahmad Husain/Dilawar Husain, need of landlady to run the Beauty Parlor elapsed and need of tenant/respondent no. 3 is more genuine and bonafide are incorrect, wrong, liable to be set aside.
Sri Sudhir Pandey, learned counsel for petitioner has also argued that on the basis of material evidence on record a categorical finding of fact recorded by the Prescribed Authority that since the date of giving notice/moving release application, tenant/respondent no. 3 has not made any effort to search alternate accommodation in order to do business, as such his comparative hardship cannot be considered, balance of convenience will tilt against him in this regard finding given by Prescribed Authority has not been set aside by appellate authority rather no finding given in this regard, necessary requirement as per law. In support of his argument he placed reliance in the case of Dwarka Prasad and Niranjan and another [2003(51) ALR 264]. So, the judgment passed by appellate court is unsustainable.
Lastly, it has been submitted by Sri Sudhir Pandey that it is well settled proposition of law that landlord/landlady is the best judge of his/her requirement and the tenant as well as authorities under rent control Act cannot dictate term to landlord/landlady as to how and in what manner he/she should carry out business.
Learned counsel for petitioner in support of his case placed reliance the following judgments :-
1.Thakur Madan Mohanji Maharaj (Sri and another Vs. VIIth Additional District Judge, Mathura and others, 2002 (1) ARC, 47.
2.Mohd. Aslam Vs. Ivth A.D.J. Barabanki [2011 (29) LCD 782]
3.Udai Singh Bhanuvanshi Vs. Sri Kunj Behari [2002 (20) LCD 300]
4.Radhey Shyam Vs. Ivth Additional District Judge, Bulandshahr ,1980 ARC 594
5.Ramnarain Saxena Vs. IIIrd Additional District Judge, Etah and another 1985 (2) ARC 381
6.Smt. Savitri Devi Vs. 10th Additional District Judge, Moradabad and others [2006(24) LCD 843]
7.Dwarika Prasad and Niranjan and another [2003 (51) ALR 264]
8.Govind Narain Vs. 7th Additional District Judge, Allahabad and others [2008(1) ARC 526]
9.Rani Devi Jain Vs. Badloo and another [2008 (3) ARC 351] Accordingly, Sri Sudhir Pandey, learned counsel for petitioner submits that order passed by appellate court, being contrary to law, perverse in nature, liable to be set aside, writ petition be allowed.
Sri Siddharth Dhaon, learned counsel for tenant/respondent no. 3 in order to defend the judgment under challenge, argued that in the instant case application under Section 21(1)(a) of U.P. Act No. XIII of 1972 for release of the shop in question moved also in respect to need of Pradeep Kumar (brother-in-law) of landlady, so keeping in view of the definition of Section 3(g) of the Act, the appellate court rightly came to conclusion that same is not maintainable, as the brother-in-law (Dewar) does not come within the definition of family as given under Section 3(g) of the Act.
Sri Siddharth Dhaon, learned counsel for tenant/respondent no. 3 further submits that in present case the landlady has already filed a SCC Suit (registered as SCC Suit No. 187 of 2003) pending in the court of Judge Small Causes, Lucknow for recovery of rent, damages and ejectment. When she was not able to get any fruitful result in the said litigation, she moved an application under Section 21(1)(a) of U.P. Act No. XIII of 1972 for release of the shop in question, as such the need of landlady is not bonafide and genuine, only in order to evict the tenant from the shop in question, get higher rent, she filed the same, thus order passed by appellate court that need of petitioner is not bonafide, perfectly valid, as bonafide on the part of petitioner only desire and on the basis of same, release application cannot be allowed.
Learned counsel for tenant/respondent no. 3 further argued that there are three shops in the premises in question i.e. House No. 512/102 situated at 7th Lane, Nishatganj, Police Station Mahanagar, Lucknow owned by the petitioner out of which one shop is subject matter in dispute, another shop initially under the tenancy of one Sri Ahmad Husain father of Dilwar Husain possession of the same given to her on 14.01.2005. From the said shop landlady already started her business of Beauty Parlor. Further, 3rd shop is also under the possession of landlady from which she can expend her business of Beauty Parlor as argued by learned counsel for petitioner, hence to get the shop under the tenancy of tenant/respondent no. 3 by way of release is neither bonafide nor genuine on her part.
Sri Siddharth Dhaon, learned counsel for tenant further argued that in the instant case the appellate court given categorical finding of fact to the effect that need of landlady/petitioner is neither bonafide nor genuine on one hand and on other hand held that the need of respondent no. 3/tenant is more genuine in comparison to landlady, so the said finding of fact cannot be set aside by this Court while exercising the power of judicial review under Article 226 of the Constitution of India, present writ petition is liable to be dismissed. In order to support of his argument, he placed reliance on the following judgments :-
1.Basanti Bai (Smt.) Vs. Vith Additional District Judge, Kanpur and another [2004 (2) ARC 718]
2.Hari Mohan Kichlu Vs. VIIIth A.D.J. Muzaffarnagar and others [2004 (2) ARC 652]
3.Ram Nath Jetle Vs. Ist Additional District Judge, Meerut and another [2004(2) ARC 800]
4.Ram Kumar Barnwal Vs. Ram Lakhan (dead) (2007) 5 SCC 660
5.Abdul Gaffer Vs. H.S. Srinivasa Setty (dead) by Lrs. 2002(1) ARC, 129.
I have heard learned counsel for the parties and gone through the record.
Undisputed facts between the parties are that petitioner is landlady/owner of the shop in question situated in a House having Municipal No. 512/102, 7th Lane, Nishatganj, Police Station Mahanagar, Lucknow to which respondent no. 3 is tenant at the monthly rent of Rs. 100/-.
On 12.07.2004, an application for release of the shop in question moved on behalf of petitioner in order to get shop released in her favour on the ground she has done the course of Beautician and to run the Beauty Parlor, shop is needed to enhance the income of her family. In Paragraph 5 of release application details of family members given. From the perusal same, it is clear that family members are i.e. herself, her husband, daughters Nidhi and Preeti, son Abhaya Kumar, Pradeep Kumar (brother-in-law) and his family who are depend upon her income as well income of her husband and in order to increase the income of the family including the members of her brother-in-law, the shop in question is needed.
Further, the Prescribed Authority while dealing the said issue had given finding of fact to the effect quoted as under :-
"यहाँ यह कहना अधिक समीचीन होगा कि प्रार्थिनी ने अपना प्रार्थना पत्र परिवार के सदस्यों की संख्या के आधार पर आवासीय आवश्यकता के लिए नहीं दिया है अपितु अपने व्यावसायिक आवश्यकता हेतु दिया है अतएव यहाँ इस बिंदु पर विचार नहीं किया जाना है कि उसका देवर उसके परिवार कि श्रेणी में आता है अथवा नहीं परन्तु यह तथ्य स्वीकृत है कि प्रार्थिनी के साथ में उक्त भवन में निवास करने वाले सभी लोगों का खर्च प्रार्थिनी के पति उठाते हैं जिनकी एक सीमित आमदनी है I"
In view of the above said facts, the Prescribed Authority came to conclusion that there is no legal impediment on the part of landlady to move application for release in view of the definition of family as given under Section 3(g) of the Act and the same is maintainable, so allowed. However, the finding given by appellate authority that application moved by landlady for release of the shop in question in respect to the need of brother-in-law(Dewar) and his family memebrs who does not fall within the ambit of definition of Section 3(g) of the Act, is not maintainable, accordingly to my opinion contrary to the facts and circumstances of the case rather incorrect in view of the contents of release application moved by landlady, as from the perusal of same it is established that in addition to the need of her family members, application is also moved too, need and livelihood of the family members of her brother-in-law(Dewar) who are dependant on her income as well as on the income of her husband, as such the same is contrary to law, perverse in nature, liable to be set aside.
Further, the Prescribed Authority while allowing the release application has come to the conclusion that during the pendency of release application, one of the shop under the tenancy of Dilawar Husain given to landlady and taking into note the said development, the prescribed authority given a finding that in order to run her business of Beauty Parlor in proper and adequate manner, the shop in question is also needed by her, accordingly held that need of landlady is more genuine and bonafide. Moreover, the Prescribed Authority also given finding that since the date of giving notice/moving application for release by landlady, no effort has been made by tenant/respondent no. 3 to search alternate accommodation, accordingly release application allowed. So far as, the appellate authority is concerned, the said finding has not been reversed as well as the same was not even discussed on merit.
In view of the above said facts, the first and foremost, question to be decided in the present case is whether the need of the landlady-opposite party no. 3 as set up by her in the release application is bonafide/genuine or not.
In order to decide the said controversy involved in the present case, it is necessary to have a glance to the provisions under Section 21(1)(a) of the U.P. Act no. XIII of 1972. The relevant provision of the same is quoted hereinbelow:-
Section 21(1)(a) of U.P. Act no. XIII of 1972.
"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 form the building under 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 in its existing from 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;"
Point which is to be taken into consideration is what is the meaning of the word "bona fide need", while adjudicating and deciding, application for release, moved under Section 21(1)(a) of the U.P. Act No. XIII of 1972.
The word "bonafide" has been interpreted by his Lordship of the Hon'ble Supreme Court in the case Shiv Sarup Gupta V. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 : 1999 SCFBRC 330, has held :-
"The term bona fide or genuinely refers to a state or mind. Requirement is not mere desire. The degree of intensity contemplated by "required bona-fide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the absence of felt need which is an outcome of sincere,honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The judge of facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona-fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord."
This Court in the case of Pramod Kumar Vs. VI Additional District Judge, Bijnor and others, 2000(1) ARC 185, has defined 'bona fide need' on the basis of decisions of the Hon'ble Supreme Court rendered in Muttu Lal Vs. Radhey Lal, AIR 1974 SC 1596 and Bega Begum Vs. Abdul Ahad Khan, AIR 1979 SC 272 : 1986 SCFBRC 346, as under :-
"The word 'bona fide' means genuinely and sincerely i.e. in good faith in contradiction to mala-fide. The requirement of an accommodation is not bona fide if it is sought for ulterior purpose but once it is established that the landlord requires the accommodation for the purpose which he alleges there is of ulterior motive to evict the tenant that requirement should be bona fide"
In the same manner the word "bona fide" has been interpreted in the case of Jagdish Chandra Vs. District 8 Judge, Kanpur Nagar and others 2008 2 ARC 756 and 2009 (2) ARC 802 Hariom Vs. Additional District Judge and others.
Further, the Apex Court in the case of Sarla Ahuja. Vs. United India Insurance Company Ltd.,(1996) 5 SCC 353, held as under :-
"The rent controller should not proceed on the assumption that the landlord's requirement is not bona fide. When the landlord shows a prima facie case a presumption that the requirement of the landlord is bona fide is liable to be drawn. It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlords, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
Accordingly, The word "bonafide need" should receive useful meaning rather struck off and should attach a practical meaning granted by realistic of life.
In view of the above said facts, interpretation of the word 'bonafide need' as given by Apex Court by this Court as well as on the basis of law which is cited by learned counsel for petitioner, the need of landlady is more genuine and bonafide as held by the Prescribed Authority.
Further, the landlady is best judge to see in what manner she can run the business of Beauty Parlor and for the same what accommodation is required in order to give better facility to her client.
As stated above, the Prescribed Authority also recorded categorical finding that the tenant/respondent no. 3 since the date of giving notice/moving application for release, not made any efforts to search alternate accommodation, as such his comparative hardship cannot be considered, on the basis of which petitioner's application for release has been allowed by Prescribed Authority, said finding neither touched not set aside by the appellate authority in present case. Coupled with the fact in this regard, in Paragraph 12 of the writ petition categorical assertion has been made on behalf of landlady/petitioner that no effort has been made by the tenant/respondent no. 3 to search the alternate accommodation. The said fact also not denied by respondents/tenant in the counter affidavit filed on their behalf, accordingly judgment passed by appellate court is unsustainable on the point in question.
Needless to mention that it is well settled proposition of law that this Court while exercising the power of judicial review under Article 226 of the Constitution of India, cannot set aside the finding recorded by court below in view of the law which is stated hereinbelow:
In the case of Abdul Gaffer Vs. H.S. Srinivasa Setty (dead) by Lrs. 2002 (1) ARC 129, this Court held as under :-
"We have perused the record and find that the District Judge has recorded a categorical fact based on appreciation of evidence that the need of the landlord was neither bona fide nor genuine. On comparative hardship, learned District Judge found that the tenant would suffer greater hardship in the event of eviction from the premises. This, in our view, was a pure finding of fact, which was not permissible for the High Court that to interfere with. However, we are in agreement with the High Court that the bona fide need of the landlord could be tested in the light of subsequent events pleaded by the tenant, if found correct."
In the case of Thakur Madan Mohanji Maharaj (Sri) and another Vs. VII Additional District Judge, Mathura and others 2002(1)ARC 47, this Court held as under :-
"A reading of the aforesaid Section 22, with Section 10 of the Act reveals that the Appellate Authority has got the jurisdiction to go into the validity and correctness of the findings recorded by the prescribed authority. The Appellate Authority can reappraise the entire evidence and can set aside the findings recorded by the Prescribed Authority if they are found to be perverse, erroneous or contrary to the evidence on the record. The submission made by the learned counsel for the petitioners that the Appellate Authority has no jurisdiction to reverse the findings recorded by the Prescribed Authority, therefore, cannot be accepted. The Appellate Authority recorded the findings in the impugned order, on the questions of genuineness of need and hardship against the petitioners, which are based on the relevant evidence on record. I do not find any illegality of infirmity in the said findings recorded and the order passed by the Appellate Authority."
The said view further reiterated in the case of Basanti Bai(Smt.) Vs. Vith Additional District Judge, Kanpur and another [2004(2) ARC 718] and also in the case of Ram Nath Jetle Vs. Ist Additional District Judge, Meerut and another [2004(2) ARC 800].
Hon'ble the Apex Court in the case of Ashok Kumar and others Vs. Sita Ram (2001) SCC 478 held as under :-
"As noted earlier the High Court has faulted the Appellate Authority for not considering the question of comparative hardship. The Appellate Authority did not feel the necessity to go into that question since it had recorded the finding that grant of eviction as pleaded by the landlord was not acceptable. On a fair reading of the proviso to section 21(1)(a) it is clear that the legislative mandate is 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. This question can appropriately be considered by the Authority when he comes to the conclusion that the plea of bonafide requirement taken by the landlord is found to be acceptable. It is at that stage that the Authority should take into account the hardship likely to be caused to the tenant in allowing the petition for eviction as against the hardship likely to be caused to the landlord in the event of rejection of the prayer for eviction of the tenant. In case the Authority comes to the conclusion that the case of bona fide requirement pleaded by the landlord is not believable and acceptable the question of allowing the petition for eviction does not arise and so the necessity of making a comparison between the hardship in allowing the petition for eviction and disallowing the same does not arise."
Further, in the instant case, as per submission made by learned counsel for parties, it is not disputed that landlady is owner of three shops situated in the premises having Municipal No. 512/102, 7th Lane, Nishatganj, Police Station Mahanagar, Lucknow.
However, thereafter factual dispute arisen between the parties, as per the version of learned counsel for petitioner out of three shops, the shop one owned by Sri Ahmad Husain/Dilawar Husain given in possession of the landlady during the pendency of present writ petition from which she is running her business of Beauty Parlor, the second shop is the shop in question, third shop is under the tenancy of other tenant.
In contrary, Sri Siddharth Dhaon, learned counsel for tenant/respondent no. 3 submits that landlady/petitioner has got possession of two shops namely in her possession one owned by Sri Ahmad Husain/Dilawar Husain, and from the second other she is doing her business, so no need exists on the part of landlady/petitioner. Another shop which under the tenancy of some other tenant is in her possession and from the said shop she is running the business of Beauty Parlor in a proper manner, thus bonafide need on the part of landlady/petitioner to get the shop in question by evicting the tenant from it is not bonafide but a mere desire.
In view of the the above said facts, I am of the opinion that the said factual controversy cannot be decided by this Court under Article 226 of the Constitution of India as the same needs evidence on point in issue, accordingly should be remanded back to respondent no. 1/Additional District Judge, Room no. 9, Lucknow to decide the same in the light of the observation made hereinabove.
For the foregoing reasons, writ petition is allowed. Order dated 29.05.2006 passed by respondent no. 1/Additional District Judge, room no. 9, Lucknow/appellate authority in Rent Appeal No. 51 of 2005 is set aside. Matter is remanded back to him to decide the same in accordance with the observation made hereinabove positively say by 31st December, 2011.
With the above observation, writ petition is allowed.
Order Date :- 30 /05/2011 krishna/*