Mohd. Farooq @ Mohd. Farookh vs Mohd. Saleem
2019 Latest Caselaw 2554 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 19
 

 
Case :- WRIT - A No. - 60788 of 2013
 

 
Petitioner :- Mohd. Farooq @ Mohd. Farookh
 
Respondent :- Mohd. Saleem
 
Counsel for Petitioner :- Shamim Ahmad,Deba Siddiqui,M.A. Qudeer, M.A.Qadeer
 
Counsel for Respondent :- Adil Jamal, Gulrez Khan
 

 
Hon'ble Manoj Kumar Gupta,J.

The instant petition is directed against the judgement dated 6.9.2013 passed by the Appellate Court in Rent Control Appeal No.64 of 2009. The Appellate Court has allowed the appeal filed by the respondent-tenant under Section 22 of the U.P. Act No.13 of 1972 (for short the Act') and has set aside the order dated 30.4.2009 by which the Prescribed Authority had allowed the release application filed by the petitioner-landlord under Section 21(1) of the Act.

The facts necessary for disposal of the instant petition are as follows :-

The release application was filed by the petitioner-landlord (for short 'the landlord') under Section 21(1)(a) and (b) of the Act for release of a shop on the ground floor of Building No.212, Mohalla Garhi Sarai, Shahganj, Allahabad in the tenancy of the respondent-tenant (for short 'the tenant'). It is stated in the release application that a partition has been effected between him and his brother Mohd. Harun and the eastern part of the building has fallen to the share of his brother Mohd. Harun and western portion to his share. His brother Mohd. Harun had re-constructed his portion so that at present there are three shops and a stair-case on ground floor and a residential portion over it in which he has started living with his family which comprises two sons and two daughters. The western part, which fell to the share of the applicant is in bad shape and could collapse any time. His family comprises of two sons, the elder one aged 35 years is married, while the other son aged 27 years is still to be married. He also has five daughters out of whom two are married. His sons, due to lack of proper education, are not employed any where. The applicant is an aged person and has limited source of income. He is unable to marry his daughters because of paucity of funds. His sons want to establish themselves in business. One other shop on the ground floor of the portion coming to his share was in the tenancy of one Mohd. Sharif. It has been released in his favour by order of the Prescribed Authority dated 2.5.2001 in PA Case No. 2 of 2001. The other shop is in possession of the respondent-tenant. After the respondent-tenant vacates the shop, he will demolish the entire western portion of the building and would raise new constructions to suit the need of his family. It would comprise of shops on the ground floor and a residential building on the first floor.

The release application was contested by the tenant by filing written statement contending that there is no legal partition between the petitioner and his brother and only on basis of some oral partition, the petitioner is claiming that the western portion of the building had fallen to his share. The disputed shop lies in the main market of the City. The need of the petitioner is not bonafide as he belongs to a zamindar family. He owns large chunk of land in village Jalalpur Goshi. His both sons are engaged in zamindari work. He only wants to evict the old tenants. He intends to construct a multistoried market complex and sell the same. The assertion in the release application that the adjoining shop was got vacated from its previous tenant was denied for want of knowledge. It is also asserted that the building is in perfectly sound condition and does not require demolition and new construction.

The Prescribed Authority finding the need of the landlord to be genuine and bonafide allowed the release application. The contention of the tenant that the landlord owns huge land in village and his sons are engaged in agriculture and that they would not use the disputed shop themselves but after constructing a market complex they would let out the same, was repelled. The comparative hardship was also held in favour of the landlord.

The tenant, being aggrieved by the release order, filed Rent Appeal No.64 of 2009, which has been allowed by impugned judgement dated 6.9.2013.

The Appellate Court, while allowing the appeal has recorded the following findings :-

(a) The petitioner has not led any evidence to make out a case under Section 21(1) (b). Consequently, the release application was rightly not allowed under Section 21(1)(b) of the Act.

(b) Although the tenant had denied the family partition but since the other co-sharer of the building, the brother of the petitioner namely, Mohd. Harun in his affidavit admitted the family partition, therefore it has to be accepted.

(c) The landlord had obtained possession of a shop in same building in tenancy of Mohd. Sharif but his sons have not started any business from the said shop so far. It goes to prove that the need set up in the release application is not very compelling or pressing. The intention of the petitioner-tenant is to demolish the building after obtaining its possession and construct a market complex and thereby earn huge profits.

(d) The need of the petitioner-landlord could not be negated on the ground that he owns agricultural land in the village.

(e) The respondent is an old tenant. He and his sons have no other source of livelihood nor place to do business, therefore, the comparative hardship lies in his favour.

Sri Ravi Kiran Jain, learned senior counsel assisted by Ms. Deba Siddiqui urged that the findings of the appellate court that release application could not be allowed under Section 21(1)(b) is based on misreading of the assertions made in the release application, as according to him, release was not sought under clause (b). He further submitted that the release application against Mohd. Sharif, tenant of the adjoining shop, was filed jointly by the petitioner and his brother when partition had not taken place. The release application was allowed by the Prescribed Authority by order dated 7.8.2001 but its possession could be obtained only in December 2007. In this regard reliance has been placed on paragraph 4 of the writ petition. He submitted that immediately after three months of obtaining possession of the said shop, the present release application was filed. By that time, there had been considerable change in circumstances. The building had been rendered unhabitable and unfit for use because of its precarious condition. The partition had also been effected between the brothers. His brother Mohd. Harun had already re-constructed the eastern part of the building and has started living therein. The petitioner also felt the need of demolishing his portion, which is already in bad shape and construct a new building in its place, with shops for his sons on the ground floor, and residential building on the first floor, to meet the residential need of the family. The Appellate Court erred in not considering the said aspect and in wrongly interfering with the findings of the Prescribed Authority solely on the ground that business has not been started so far from the shop got released from Mohd. Sharif.

Per contra, Sri Gulrez Khan, learned counsel for the respondent-tenant submitted that the partition set up by the petitioner has not been proved. He has invited the attention of the Court towards an affidavit filed by his brother Mohd. Harun, in which the date of partition is mentioned as July 2000 while release application filed in the year 2001 against tenant Mohd. Sharif did not disclose any such fact. He further submitted that the alleged need of the landlord for demolishing the building has rightly been repelled as the landlord could not prove that the building is in dilapidated condition. He submitted that the release application was filed by the landlord under clause (a) and (b) of sub-section (1) of Section 21 and the contention to the contrary is against the record. It is also urged that the finding of bonafide need recorded by the Prescribed Authority is wholly cryptic and has been rightly set aside by the Appellate Court.

I have considered the submission of learned counsel for the parties and perused the pleadings and other material on record.

Section 21(1) of the Act reads as follows :-

"21. Proceeding 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 from 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 its existing form 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;

(b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction."

Under clause (a), eviction of a tenant is ordered from the building under his tenancy or any substantial part thereof, if the same is bonafide required either in existing form and after demolition and new construction by the landlord for occupation by himself or any member of his family. Whereas, under clause (b), it is released if it is in dilapidated condition and is required for purpose of demolition and new construction. Thus, there is basic difference in the ingredients of clause (a) and clause (b). It is the personal need of the landlord or members of his family to occupy the building or any part thereof for his residence or for any profession, trade or calling that the building is released in his favour under clause (a). However, under clause (b), the release is not on ground of personal need of the landlord to occupy the building himself or by any member of his family. The need is of demolishing the building and constructing a new one in its place because it is in dilapidated condition. In such a case, the Prescribed Authority has to satisfy itself of the requirement laid down under Rule 17 which are as follows :-

(i) that the building requires demolition;

(ii) that a proper estimate of expenditure over the proposed demolition and new construction has been prepared;

 
	(iii)	that a plan has been duly prepared and conforms to the 		bye-laws or regulations of the local authority or other 		statutory authority under any law in that behalf for the 		time being in force; and 
 
	(iv)	that the landlord has the financial capacity for the  			proposed demolition and new construction. 
 

 
	Since building is not released under clause (a) for the personal need of the landlord, the newly constructed building has to be offered for letting out to the tenant as per requirements of Section 24 of the Act. On the other hand, where building is released under clause (a), the landlord after reconstruction of the building has to occupy it himself or through members of his family for whose need it was got released. 
 

A perusal of the release application as a whole would reveal that it was essentially under clause (a) of sub-section (1) of Section 21. The assertion in the release application that need of the landlord and his family could be fulfilled after demolition and new construction, as the building is in dilapidated condition, would not bring it within the purview of clause (b). It would continue to be an application under clause (a) seeking release of the premises on personal need of the sons for doing business and to meet the residential requirements of the family. The mention of clause (b) in the title was a mere mislabelling. Even otherwise, there is no bar under law to file a joint application under both the clauses and/or give up claim under one or the other provision. It is not in dispute that even when evidence was led, the landlord did not bring on record any evidence to fulfill the requirement of Rule 17, evincing a clear intent that building is required for personal need under clause (a). Even the tenant was aware of the case so pleaded in the release application as he disputed the alleged bonafide need of the petitioner apart from stating that the building is not in dilapidated condition. In fact, the Appellate Court rightly observed that the application could not be considered under Section 21(1)(b).

The fact that there had been a partition between the petitioner and his brother under which western portion of the building fell to the share of the petitioner has been accepted even by the Appellate Court. Therefore, nothing much turns upon the fact that the brother of the landlord in his affidavit mentioned the date of family partition as July 2000 while the release application was jointly filed by the petitioner and his brother against the tenant Mohd. Sharif in the year 2001. The factum of filing of release application against the tenant Mohd. Sharif is duly disclosed in paragraph 7 of the release application. It is also specifically asserted therein that possession of the said shop has been obtained by the landlord. In paragraph 4 of the writ petition, it is specifically asserted that the release order obtained against tenant Mohd. Sharif could not be executed for a long time as he created obstruction in the same by filing objections. Ultimately, Dakhal Parwana was issued on 1.12.2007 and in pursuance thereof, possession was delivered. The release application giving rise to the instant proceedings was filed on 11.3.2008, barely three months after obtaining possession from the tenant Mohd. Sharif. In the release application, it is stated in so many words that the western portion of building is not in fit condition for being used as such. It is stated that in order to meet the need of the sons of the landlord as well as residential need of the family, the landlord would demolish the existing building and construct a new one in its place with shops on the ground floor and residential portion on the first floor. The family of the landlord comprises of himself, two sons, one of whom is married, apart from three unmarried daughters. The tenant except for taking a plea that the landlord owns huge agricultural land and his sons are gainfully employed in agriculture could not point out to any business being carried on by them. It is now well settled that the landlord is free to decide the manner in which he would fulfill his need. The tenant cannot dictate terms to the landlord as regards the manner in which the need has to be fulfilled. It is also well settled that each son of the landlord has right to settle himself in independent business. In the release application, although it is specifically asserted that the petitioner had obtained possession of shop in the tenancy of Mohd. Sharif and would use the whole building after re-construction, the tenant only feigned ignorance to the same for want of knowledge. He has not taken any plea that the said shop was being kept locked with any malafide intention.

Once the case of the landlord was that the need of his sons to settle themselves in business and his own need for residence could only be fulfilled after getting possession of the remaining shop in possession of the respondent-tenant, thereby enabling demolition of the building and its re-construction, it was not open to the Appellate Court to cast doubt over the same. In this regard, it is apposite to refer to certain precedents on the point :-

In Pratibha Devi Vs. T.V. Krishnan, 1996 (5) SCC 353, the Supreme Court held that the landlord is the best judge of his requirement and the courts have no concern to dictate to the landlord as to how and in what manner he should live. Again in Raghvendra Kumar Vs. Prem Machinery and Co., 2000 (1) SCC 679, the Supreme Court has held that it is the choice of the landlord to choose place for his business which is most suitable for him. The courts cannot compel him to do business from a place not of his choice.

In Sarla Ahuja Vs. United India Insurance Company Ltd., (1998) 8 SCC 119, the Supreme Court has held that while deciding the question of bonafide need of the landlord, it is not for the court to find out as to how else he can adjust himself without getting possession of the tenanted premises. The relevant observations are as follows:-

"The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."

Indisputably, the shop of which possession has been obtained from tenant Mohd. Sharif is still in possession of the landlord. It has not been let out to any one. The landlord, as per the case set up in the release application, would demolish the entire portion and would construct new shops to fulfill the business need of his two sons. The residential need of the family would be met by constructing a residential building on the first floor. The same is not possible unless the possession of other shop with respondent-tenant is obtained. As noted above, the possession of shop got released from tenant Mohd. Sharif could be obtained only three months before filing of the instant release application. As such, no adverse inference can be drawn against the landlord for not using the shop got released from Mohd. Sharif, in the meantime. The Appellate Court has entered into the arena of surmises and conjunctures by inferring that the landlord appears to be interested in building a market complex to earn money and his need does not seem to be very pressing. Such an approach is wholly illegal and against the settled legal principles noted above and thus could not be sustained.

Counsel for the respondent submitted that there is no clear cut finding by the Prescribed Authority regarding bonafide need of the landlord. As noted above, the factum relating to the sons of landlord being unemployed has remained virtually unrebutted, as the tenant has not even pleaded any where that his sons are gainfully employed in any business except for taking a plea that they are having huge agricultural property. As such, the Prescribed Authority had rightly held that the need of the sons of the landlord is bonafide. The contention that there is no clear cut finding recorded by the Prescribed Authority relating to bonafide need of the sons of the landlord, does not have any force and is rejected.

The same mistake has been repeated by the Appellate Court in interfering with the finding of the Prescribed Authority on the issue of comparative hardship. The mere fact that tenancy is old or that the tenant has no alternative place to do business is in itself not sufficient to hold that the tenant will suffer greater hardship. It has to be weighed against the need of the landlord, whose both sons are unemployed and without any source of livelihood. It is not the obligation of the landlord to provide alternative accommodation to the tenant. The proceedings have remained pending for almost ten years now and there is no evidence that the tenant made any effort to search out alternative accommodation. That apart, the Prescribed Authority has also awarded two years rent as compensation to the tenant as per the second proviso to Section 21(1).

Except the above, there is no other ground on which the Appellate Court has interfered with the order of the Prescribed Authority. Since this Court has not approved the reasonings given by the appellate court in allowing the appeal, the necessary corollary would be to uphold the findings of bonafide need and comparative hardship recorded by the Prescribed Authority.

After the judgement was dictated, counsel for the tenant placed reliance on a judgement of Supreme Court in Sanjay Kumar Jha vs. Prakash Chandra Chaudhary and others, 2019 (2) SCC 499, particularly paragraph 19 thereof, in contending that the Court should remand the matter to the Prescribed Authority instead of deciding the matter itself. Paragraph 19 of the said judgement reads thus :-

'19. In exercise of discretionary power of judicial review under Article 226 of the Constitution, the High Court might interfere with administrative matters only if the decision is violative of fundamental or basic principles of justice and fair play or suffers from any patent or flagrant error. It is true that the High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if the error breaches fundamental or basic principles of justice or fair play or if the error is patent and/or flagrant, but not otherwise. However, even in cases where the High Court finds an apparent factual error which goes to the root of the decision, the appropriate course of action would be to give the opportunity to the authority concerned to rectify the error. It is only in the rarest of cases, where the factual error is so obvious that it is rectifiable by the Court itself, that the Court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error."

In the instant case, as noted above, the error is not a factual one but arises from a wrong inference drawn from the undisputed facts on record. It undoubtedly goes to the root of the decision of the Appellate Court. The release application was filed in the year 2008 and had remained pending for more than ten years. There is already judgement of the Prescribed Authority upholding the need of the landlord and also recording finding of comparative hardship in his favour. In such circumstances, this Court is of the considered opinion that remanding the matter would unnecessarily infuse fresh life to the litigation. It has repeatedly been observed by the Supreme Court that when all facts and evidence are before the Court, efforts should be to decide the lis between the parties finally instead of remanding the same to the court below which not only results in wastage of time and money but also prolongs the agony of the parties. As such, this Court finds no force in the submission of learned counsel for the tenant that the matter should be remanded to the court below.

In consequence, and as a result of discussion made above, the order of the Appellate Court dated 6.9.2013 is quashed and the order passed by the Prescribed Authority dated 30.4.2009 is restored. The writ petition is allowed.

Order Date :- 5.4.2019

skv

(Manoj Kumar Gupta, J.)