Ram Autar S/O Ganga Ram & Ors. vs Additional District Judge, Court ...
2013 Latest Caselaw 4678 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?AFR
 
RESERVED
 
Court No. - 14
 

 
Case :- RENT CONTROL No. - 135 of 2010
 

 
Petitioner :- Ram Autar S/O Ganga Ram & Ors.
 
Respondent :- Additional District Judge, Court No.9, Faizabad & Ors.
 
Counsel for Petitioner :- Nishant Srivastava,Aftab Alam
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saeed-Uz-Zaman Siddiqi,J.

By means of this writ petition, the petitioners have prayed for writ in the nature of certiorari quashing the order dated 05.07.2010 passed by Additional District Judge, Court No. 9, Faizabad in Misc. Case No. 01 of 2003 and judgment and order dated 05.12.2002 passed by Prescribed Authority/Civil Judge (Junior Division), Faizabad by which the petitioners' release application was rejected. 

I have heard learned counsel for the petitioners as none appeared on behalf of the opposite parties.

Brief facts of the case are that the petitioners have filed release application under Section 21 (i) of U.P.Act No. 13 of 1972 for release of their house No. 114 B, Mohalla- Sadar Bazar, Pargana- Haveli Awadh, Tehsil- Sadan, District- Faizabad.  Admittedly, the deceased opposite party was tenant in it, who has died during the pendency of the writ petition as opposite party No. 3 and his heirs have been substituted who did not appear in spite of service.

The landlords moved application for release on the ground of personal requirement which was rejected on the ground that both the applicants were employed in armed forces and are posted at their respective place of posting and they shall not have to live permanently in Faizabad City in the near future.  Due to this fact, the learned Prescribed Authority rejected the application for release and did not consider the question of comparative hardship.

The landlord preferred Miscellaneous Appeal No. 01/2003 (P.A) which has also been dismissed.  The learned Appellate court has observed that the tenant Bache Lal has died who was a patient of Laprosy and due to his death he has no personal requirement of the accommodation in question but the learned Appellate court held that his widow is living in the disputed house along with her children and, as such, it cannot be said that the tenant last his requirement to occupy the disputed premises.

The learned Appellate court did not consider the case of the parties on merits and disposed of the appeal in a cursory manner.  He has not at all discussed the bona fide requirement of the building in question by its landlord.  Learned Prescribed Authority has held that since the landlords are employee in the Indian Army, the applicant no. 1 was posted in Dogra Regiment Centre and applicant No. 2 was posted in Air Force at Pune.  Both the applicants have pleaded that during vacations they have to come along with their families  to live in their Home City.  Moreover, there is a family of applicants and they have no other house in Faizabad city except the disputed premises.  The learned Prescribed Authority did not consider the need of the applicants  in a pragmatic manner.  The two applicants who were landlords of the disputed premises have right to visit their home town.  Their need  to the disputed premises cannot be denied  by mere posting outside the home town. Learned Prescribed Authority has not discussed or reached to the conclusions as to when each applicant could attain the age of superannuation and rejected the personal requirement on the ground of assessment as "near future'.  It is not the requirement of law that the landlords have to permanently live in the disputed premises.

In Mohd. Ayub and Anr. vs. Mukesh Chand [(2012) 2 SCC 155],  in which it has been held, as under:-

"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 circumstances of the case ought not to have weighed with the courts below."

Hon'ble Apex Court has also relied upon its earlier decision and has held that the courts below should not have been swayed by the fact that the landlords are the government servants and are posted outside District Faizabad.  The financial position or the status of the landlords can deny them the fruits to enjoy their own building.  If the impugned approach, as observed by both the Courts below, is found to be correct, an affluent landlord can never get possession of his premises even, if he proves all  his bona fide requirements. 

It is also important to note that there is nothing on record to show that, during the pendency of this litigation, the opposite parties made any genuine efforts to find out any accommodation.  In the ultimate analysis, I am of the view that the perverse findings of the courts below, in aspect of the bona fide requirement and comparative hardship must be set aside.

As observed by the Hon'ble Apex Court in the abovementioned case, I am mindful of the fact that when the tenant is asked to move out of the premises, some hardship is inherent and if such hardship is to be taken into consideration then no release applicant can ever be allowed.  The occupation by the tenant of the building for a long time cannot be a determinative factor.  While concluding, I rely upon the law laid down by the Hon'ble  Apex Court in Ram Kumar Barnwal vs. Ram Lakhan [2007(5) SCC 660], in which it has been held as under:-

"The High Court, as noted supra, held that even if it is found that the findings of the courts below are erroneous in law the matter has remanded to the Prescribed Authority as the release application was filed quarter of century ago, and bona fide need, and comparative hardship change by the passage of time. The writ petition was dismissed granting liberty to the appellant to file fresh release application.

It is settled position in law that subsequent events can be taken note of. The High Court, even though referred to the relevance of the subsequent events erroneously came to the conclusion that even if the judgment and order passed by the courts below are erroneous in law, the matter will have to be remanded to the Prescribed Authority. There is no such requirement in law. In fact, after noticing that the release application was filed about quarter of century back, it is really unfortunate that the High Court instead of deciding the matter dismissed the writ petition granting liberty to file fresh release application. In other words, instead of shortening litigation the High Court's order would mean unnecessary prolongation of litigation."

It has also been held in  Ragavendra Kumar vs. Firm Prem Machinery and Co. [2000(1) SCR 77] that, "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.K 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."

In Malpe Vishwanath Acharya and Ors. vs. State of Maharashtra and Anr. [(1998) 2 SCC 1], in which the Hon'ble Apex Court has held, as under:-

"Insofar as social legislation, like the rent control act is concerned, the law must strike a balance between rival interests and it should try to be just to all. The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society. When there is shortage of accommodation it is desirable, nay, necessary that some protection should be given to the tenants in order to ensure that they are no exploited. At the same item such a law has to be revised periodically so as to ensure that a disproportionately larger benefit them the one which was intended is not given to the tenants. It is not as if the government does not take remedial measures to try and offset the effects of inflation. In order to provide fair wage to the salaried employees the government provides for payment of dearness and other allowances from time to time."

I have taken cognizance of  the landmark judgment of the Hon'ble Apex Court in Bega Begum vs. Abdul Ahad Khan [(1979) 1 SCC ], in which is has been held, as under:-

"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 the 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 States 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 Kewal Singh vs. Smt. Lajwanti [(1980) 1 SCC 290], the Hon'ble Apex Court has held as under;-

"Before discussing the relevant provisions of the Act it may be necessary to observe that the Rent Control Act is a piece of social legislation and is meant mainly to protect the tenants from frivolous evictions. At the same time in order to do justice to the landlords and to avoid placing such restrictions on their right to evict the tenant as to destroy their legal right to property certain salutary provisions have been made by the legislature which give relief to the landlord. In the absence of such a legislation a landlord has a common law right to evict the tenant other in the determination of the tenancy by efflux of time or for default in payment of rent or other grounds after giving notice under the Transfer of Property Act. This broad right has been curtailed by The Rent Control Legislation with a view to give protection to the tenants having regard to their genuine and dire needs. 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 bonafide personal necessity. The concept of bonafide necessity should be meaningfully construed so as to make the relief granted to the landlord real and practical. "

In view of the discussions as made above, the landlord has got success in proving his bona fide requirement and there is no need to remand back this matter afresh which will ultimately delay the disposal of the case and lingering out unnecessarily. 

In result, the writ petition is allowed.  Both the orders passed by learned Prescribed Authority as well as the learned Appellate Court are set aside and the release application is allowed, which stands released in favour of the landlord-petitioners.  The learned Prescribed Authority shall proceed on to execute the release order in terms of the release order contained in sub-section 6 of Section 21 of U.P. Act No. 13 of 1972.

Order Date :- 29.7.2013/Nitesh