Mohammad Azam And Others vs District Judge Barabanki And ...
2013 Latest Caselaw 2516 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R.
 
Court No. - 14
 
Case :- RENT CONTROL No. - 5 of 2013
 
Petitioner :- Mohammad Azam And Others
 
Respondent :- District Judge Barabanki And Others
 
Petitioner Counsel :- Akhter Abbas,Syed Ahsan Abbas
 
Respondent Counsel :- Manish Kumar,Ravindra Pratap Singh.
 

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

By means of instant writ petition the petitioner has sought for a writ in the nature of certiorari to quash order dated 26.05.2012, passed by learned Prescribed Authority/Additional Civil Judge (S.D.) Court No.23, Barabanki, by which P.A. Case No.2 of 2008 was decided and disputed premises was directed to be released in favour of the landords; and judgment and order dated 6.12.2012, passed by learned District Judge, Barabanki in Rent Appeal No.2 of 2012 which has been dismissed and the findings arrived at by the learned Prescribed Authority has been affirmed.

Admitted facts between the parties are that the petitioners' father was tenant of the disputed premises, of which Abdul Jameel was the landlord. During pendency of the case the tenant died and learned Prescribed Authority substituted the heirs who are petitioners before this Court. During the course of appeal, landlord also died and his heirs were also substituted in the Appellate Court.

The deceased/landlord moved application on 12.02.2008 for eviction of the deceased/tenant on the ground that the disputed premises is required for his sons who are unemployed and are sitting idle. The landlord has three sons. The eldest one is a good tailor but is missing since 2002 due to unemployment and his whereabouts are not known. The second son knows sewing work, the third son knows work of air conditioner and firdge who is not working properly and sitting idle for want of availability of shop; the tenant is dealing with handloom business in the disputed shop though there are other shops in their possession in the same city; they are exporters and rich persons and are in position to obtain another shop in the city easily; the landlord is not in position to obtain a shop in the city easily; the tenant has a shop in Akhtar Plaza Market and another shop in the market constructed in front of City Police Outpost; he has a big house in Mohalla Peer Batawan where he is carrying business of handloom adhat (whole seller); besides tenant has a jewelery shop in Village Safdarganj. The shop in question is part of a construction which is in dilapidated condition and the shop adjoining to the disputed shop has fallen down; the landlord cannot raise construction as repairing is not possible in his house.

The said application was contested by the petitioners' father inter alia on the grounds that he has no other shop in the city; he is carrying on the business of handloom cloth which cannot be carried out from any other place except Satti Bazar and he is not in position to obtain another shop in this market. Replication was filed by the landlord. The tenant amended his written statement in appeal that no alternative shop is available and if it is, at all, available, then due to non-suitability the business of the appellant will finish. Both the parties led evidence in support of their cases. Learned Prescribed Authority found that the landlord requires the disputed shop bona fidely and his comparative hardship shall be bigger than that of tenant. Feeling aggrieved with the order passed by the learned Prescribed Authority, an appeal was preferred by the tenant, who died during pendency of the appeal and his heirs have been substituted who are petitioners before this Court.

Heard learned counsel for the parties at length and perused the records.

It was argued by learned counsel for the petitioners that due to death of both the parties during pendency of the proceedings, personal requirements of legal representatives of the deceased must be established to have been continuing and existing. Reliance was placed upon the law laid down by the Hon'ble Apex Court in the case of Kedar Nath Agrawal (Dead) and another v. Dhanraji Devi (Dead) by LRs. and another [2004 (57) ALR 419], in which it was held:-

"We must now refer to Hasmat Rai. As already noted, notice was issued by this Court on October 29, 1999 in view of the decision of this Court in Hasmat Rai. In the said decision, three Judge Bench of this Court held that when eviction was sought on the ground of personal requirement of landlord, such requirement must continue to exist till the final determination of the case. Following the ratio laid down in Pasupuleti Venkateswarlu, Desai J. stated; "It is now convertible that where possession is sought for personal requirement, it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but also subsist till the final decree or order for eviction is made. If in the meantime events have crept up which would show that the requirement of the landlord is wholly satisfied then in that case his action must fail and in such a situation it is not incorrect to say that such decree or order for eviction is passed against the tenant, he cannot invite the Court to take into consideration the subsequent events."

The argument raised by the learned counsel for the petitioners is correct in view of the law as settled by the Hon'ble Apex Court as stated above. The Hon'ble Apex Court in  an earlier decision in the case of Gaya Prasad Vs. Praddep Srivastava (AIR 2001 SC 803) which is extracted below:-

"We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. During 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period.

We cannot forget that while considering the bona fides of the need of the landlord the crucial date is the date of petition. In Remesh Kumar vs. Kesho Ram [1992 Suppl. (2) SCC 623] a two-Judge Bench of this Court (M.N. Venkatachalia, J., as he then was, and N.M. Kasliwal, J.) pointed out that the normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced and the only exception is that the court is not precluded from moulding the reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations. What the learned Chief Justice observed therein is this:

"The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a cautious cognizance of the subsequent changes of fact and law to mould the relief."

It is thus becomes clear that subsequent events have to be considered. It is noteworthy that the application under Section 21 of U.P. Act No.13 of 1972 was moved by the deceased/landlord on 12.02.2008 on the ground of personal need of his sons who are unemployed.  Now after the death of landlord requirement of the then landlord has neither came to an end nor has decreased or diminished. It is proved that one of the sons of deceased landlord knows tailoring and the other son has got expertize in the mechanism of the air conditioner and fridge. Obviously, both these sons cannot be accommodated in one shop and they require separate shops for running their business. It is the settled legal position of law that the landlord is the best judge of his requirements for residential or business purpose and he has got complete freedom in the matter. This is what has been held by the Hon'ble Apex Court in the case of Prativa Devi (Smt.) v. T.V. Krishnan, 1996 (5) SCC 353 and Ragavendra Kumar v. Firm Prem Machinery & Co. 2000 (1) SCC 679. These authorities have been relied upon by the Hon'ble Apex Court in Yadvendra Arya & Anr. v. Mukesh Kumar Gupta, AIR 2008 (SC) 773.

In Rishi Kumar Govil v. Maqsoodan and others, (2007) 4 SCC 465, the Hon'ble Apex Court has relied upon the law laid down by it in Ragavendra Kumar's case (supra) and Prativa Devi's case (supra) and has held as under:-

"In Ragavendra Kumar vs. Firm Prem Machinery and Co. (AIR 2000 SC 534) it was held that it is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter. In Gaya Prasad vs. Pradeep Srivastava (AIR 2001 SC 803) it was held that the need of the landlord is to be seen on the date of application for release. In Prativa Devi (Smt.) vs. T.V. Krishnan (1996) 5 SCC 353) it was held that the landlord is the best Judge of his requirement and Courts have no concern to dictate the landlord as to how and in what manner he should live. The bona fide personal need is a question of fact and should not be normally interfered with."

In the case in hand, I find that even though the period of tenancy of the petitioners is, no doubt, long but availability of other places to them where they can very well shift their business, neutralises the fact of length of tenancy in accommodation in dispute. It is abundantly clear that the present landlords have no other place where they can establish themselves, who are unemployed. The learned Prescribed Authority as well as learned Appellate Court has made detailed discussions that the petitioners have alternative accommodation available at their disposal.

Having regard to the well reasoned concurrent findings and reasonings recorded by the learned Prescribed Authority and the learned Appellate Court, I find that the impugned judgments warrant no interference, in as much, as no illegality, infirmity or error of jurisdiction could be shown before this Court by the petitioners and, as such, I find no merits in this writ petition.

Before parting with the discussions, I make it clear that the petitioners have pleaded "goodwill" in the disputes shop in running their business of selling handloom items. Though, it was neither pleaded nor argued before this Court, yet, I chose to enter into this question, as it finds place in the pleading before the learned Prescribed Authority only. Goodwill is the benevolence, reputation, popularity and valuable personal relationship with customers of a business or trade with a marketable money value. Goodwill relate to person, place, situation etc. Goodwill in relation to food items has no bearing with place of business. It relate to the taste of the items prepared by a particular businessman which are bound to be sold wherever he opens a shop and at howsoever places he may shift his business. The said goodwill travels along with the name of the trade. Goodwill relate to a place of business according to items to be sold in that shop e.g. goodwill of the medical store may vary from the places near to hospitals, nursing homes etc. and not to the quality of medicines being sold by the particular medical store. In that event, goodwill shall have to be considered by the Courts relating to place of business. In the same fashion goodwill may be defined and considered by the Courts, wherever it is relevant, in the context of place, person or commodity.

The expression goodwill has not been defined in any Act. Hon'ble Supreme Court had an occasion to consider in detail the meaning to be given to the expression aforesaid. In Ms. S.C. Combatta & Co. Private Limited v. Commissioner of Excess Profits Tax, Bombay, AIR 1961 S.C. 1010, the definition of the word 'goodwill' in Earl Jowitt's Dictionary of English Law was relied upon by the Supreme Court, which is as follows:

"The goodwill of a business is the benefit which arises from its having been carried on for some time in a particular house, or by a particular person or firm or from the use of a particular trade mark or trade name."

and thereafter it was held by the Hon'ble Supreme Court-

"It will thus be seen that the goodwill of a business depends upon a variety of circumstances or a combination of them. The Location, the service, the standing of the business, the honesty of those who run it, and the lack of competition and many other factors go individually or together to make up the goodwill, though locality always plays a considerable part. Shift the locality, and the goodwill may be lost. At the same time, locality is not everything. The power to attract customer depends on one or more of the other factors as well. In the case of a theatre or restaurant, what is catered, how the service is run and what the competition is, contribute also to the goodwill."

In the Shorter Oxford English Dictionary Volume I, IIIrd Edition, the goodwill has been defined as follows:

"The privilege granted by the seller of a business to the purchaser, of trade as his recognized successor, the possession of a ready formed connection of customers, considered as a separate element in the saleable value of a business."

This Court in the case of Tribhuvan Nath Mehrotra v. District Judge, Allahabad and Ors. (1988) 14 ALR 352, has held as under:-

"Looking to this definition and as well as the law laid down by the Hon'ble Supreme Court, it cannot, possibly be said that by sale of the goodwill, any interest in the property is sought to be transferred. No person can by a mere transfer of goodwill, become a tenant of the property when the property is governed by the provisions of the Rent Control Laws. If this be permitted, then it is very easy for a person carrying on business in a particular property to sell his business name in the shape of a goodwill and hand over the property to another person so that the other person becomes the tenant of the property. This cannot be done as under the Rent Control Laws, it is necessary for the purchaser to obtain an allotment of the property and then only he is entitled to stay in the property as a tenant."

In the case, in hand, I find that the petitioners shall not lose their goodwill by shifting their shops in any other locality of the city. From that aspect of the matter landlords shall suffer more hardship than the tenants because they have no other place. Though, not relevant, yet, I may mention here that it does not lie in the mouth of the tenants to dictate the landlords to start business at a particular shop chosen, pointed out or made available by the tenant. The settled legal position is that it is the choice of the landlords in a justifiable manner is to dominate because landlord is the best judge of his requirements and he has got complete freedom in that matter.

On the totality of circumstances and evidence on the record I find that the learned Prescribed Authority as well as learned Appellate Court have rightly allowed the release application and the subsequent events i.e. death of original landlord and death of original tenant, the case of the landlord has been strengthened and not weekened.

It was also argued by learned counsel for the petitioners that the landlords have got another shop vacated through application under Section 21 of U.P. Act No.13 of 1972 in which the appeal was preferred by the tenant and during the course of appeal he entered into a compromise with the landlord and vacated the shop. Merely getting the possession of one shop shall not suffice requirements of landlord who have to indulge themselves in different business. Admittedly, the present opposite party nos.4 to 6 are unemployed. They have to look after their widow mother who is opposite party no.3 and unmarried sisters who are opposite party nos.7 to 9. It is no where meant that purpose of enacting U.P. Act No.13 of 1972 is to be let the landlord starve at the sweet will of tenants, thinking in this fashin would be violative of Article 14 of the Constitution of India.

On the basis of discussions as made above, I find that the Courts below, after taking into consideration, the material on record, have correctly recorded findings relating to bona fide need and comparative hardship in favour of the landlords in a judicial manner, the impugned orders require no interference in exercise of writ jurisdiction.

With these observations, writ petition is dismissed.

Order Date :- 22.5.2013

Ram.