Jwala Prasad And 3 Ors. vs Hari Prasad Gupta
2019 Latest Caselaw 686 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 24                                                                             [A.F.R.]
 

 
Case :- RENT CONTROL No. - 169 of 2007
 

 
Petitioner :- Jwala Prasad And 3 Ors.
 
Respondent :- Hari Prasad Gupta
 
Counsel for Petitioner :- Ajay Pratap Singh,M.E.Khan
 
Counsel for Respondent :- Amit Kr.Singh Bhadauria,Anoop Kumar Upadhyaya
 

 
Hon'ble Irshad Ali,J.

1. Heard Sri Ajay Pratap Singh, learned counsel for the petitioners and Sri Amit Singh Bhadauria, learned counsel for the respondent.

2. The petitioners before this Court are tenants in the shop in dispute on the rent of Rs.25/- since 1976. The respondent/ landlord moved an application under Section 21(1)(a) of U.P. Act No.13 of 1972 on the bona fide requirement to run the business as the sons have no any other source of livelihood. The application was moved in the year 1984. The prescribed authority after hearing the parties and on perusal of material on record, passed an order on 25.7.2006 in case No.15 of 1984 (Hari Prasad Gupta v. Nanhu Dhobi), allowed the application with the direction to vacate the shop and hand over the possession within two months. The petitioners/tenants, feeling aggrieved by the order passed by the prescribed authority, filed an appeal No.36 of 2006 before the District Judge, Balrampur which has also been dismissed affirming the order passed by the prescribed authority on 25.7.2006.

3. Assailing both the orders, the petitioners have preferred this petition before this Court and his submission is that he has placed three submissions (i) Civil Judge, Junior Division, Balrampur was not authorized to act as prescribed authority by the District Judge; (ii) as per the provisions contained under Rule 16 (2), the question of comparative hardship has not been considered in consonance with the provisions referred hereinabove; and (iii) the landlord has three other shops wherein he can run his business for his sons, thus the comparative hardship was in favour of the petitioners/tenants.

4. In support of his submissions, learned counsel for the petitioners relied upon the judgment of the Hon'ble Supreme Court in the case of Bishan Chand v. V Addl. District Judge, Bulandshahr and another reported in Allahabad Rent Cases, 1982 page 440.

5. On the other hand, Sri Amit Singh Bhadauria, learned counsel for the respondent submitted that the prescribed authority and the appellate authority have committed no error in passing the orders and by recording finding on the point of comparative hardship and bona fide requirement, have passed the orders which are under challenge in this writ petition. He further submitted that both the orders impugned are just and valid order and do not suffer from any infirmity and illegality. He next submitted that both the Courts below by adopting reasonable and balanced approach, have interpreted the Rent Control Legislation and by recording cogent reasons and findings on the point, came to the conclusion that requirements of members of the family on whom the landlord is dependent have been considered and thereafter, findings have return in regard to the bona fide requirement and comparative hardship in favour of the landlord. Thus, no ground has been made out for interference in the orders passed by both the Courts below.

6. In support of his submissions, he placed reliance upon the following two judgments :

 
	(i) Joginder Pal v. Naval Kishore Behal, (2002) 5 SCC 397
 
	(ii) Mohd. Zafar Khan and ors. v. District Judge, Hardoi and 	       others,2011 SCC Online All 792: (2011) 86 ALR 668
 
7.	Having heard the rival contentions of learned counsel for the parties, I perused the impugned orders and the law reports relied upon by the learned counsel for the parties.
 
8.	While considering the first submission advanced on behalf of the petitioners, on a pointed query made to the learned counsel that what is the material to establish that the District Judge has not empowered to the Civil Judge to act as prescribed authority under the provisions of Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, learned counsel for the petitioners is not able to place any material to substantiate his submission advanced on the point. Therefore, this Court found that the submission advanced by the learned counsel for the petitioner has no force and it is well established that the Civil Judge, Junior Division was empowered to act as prescribed authority, therefore on the said count, the impugned order does not vitiate in law. 							In regard to compliance of Section 16(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, I examined the order passed by the prescribed authority as well as order passed by the appellate authority. On perusal of the aforesaid two orders, it is evident that in consonance with the provisions of Rule 16(2) of the Rules of 1972, the prescribed authority and appellate authority examined the material and have recorded finding of fact on the point of comparative hardship and bona fide requirement.
 
9.	Upon reading of the findings, it is well established that the provisions contained under Rule 16 (2) was taken care of and thereafter, the prescribed authority allowed the application of the landlord filed under Section 21(1)(a) of the Act No.13 of 1972.
 

10. In the case of Bishan Chand (supra), the fact of the case was that the landlord moved an application under Section 21(1)(a) of the Act No.13 of 1972 on the ground that due to non-continuance of studies, necessity arose for setting them in a business, therefore, the shop was needed which was in occupation of the tenant. After considering the facts and circumstances of aforesaid case, the Hon'ble Supreme Court while considering the matter on the point that the tenant is doing business in the share in question since the year 1954 and the fact that the matter has not been taken into account by the lower courts below in the impugned judgments, recorded that the judgment suffers from patent error of law.

11. In the present case, the lower appellate court has considered by framing issue no.2 and thereafter, by recording cogent reasons, has held that the comparative hardship of the landlord is more than that of the tenant. Therefore, the ratio of the judgment placed by the learned counsel for the petitioner is not applicable to the present facts and circumstances of the case.

11. In the case Joginder Pal (supra), the Hon'ble Supreme Court, while dealing with the issue of similar nature, has held in paragraphs 31, 32 ad 33 which are being quoted below:

"31. In providing key to the meaning of any word or expression the context in which it is set has significance. Colour and content emanating from context may permit sense being preferred to mere meaning depending on what is sought to be achieved and what is sought to be prevented by the legislative scheme surrounding the expression. Requirement of landlord for his own use, is an expression capable of attributing an intention to the legislature that what was intended to be fulfilled is such requirement as would persuade the landlord to have the premises vacated by the tenant, to forego the rental income, and to put the premises to such use as the landlord would deem to be his own use and in the given facts and circumstances of a case the Court too would hold it to be so in contradistinction with a mere ruse to evict the tenant. The legislature intending to protect the tenant also intends to lift the protection when it is the requirement of landlord to put the accommodation to such use as he intends, away from leasing it out.

32. We have already noticed that the purpose of the Act is to restrict increase of rent and the eviction of tenants in urban areas. Still the Legislature has taken care to provide grounds for eviction, one of them being the requirement of the landlord. We have to strike a balance between the need of protecting the tenants from unjustified evictions and the need for eviction when ground for eviction is one such as the requirement of the landlord. If we do not meaningfully construe the concept of requirement the provision may suffer from the risk of being branded as unreasonable, arbitrary or as placing uncalled for and unreasonable restrictions on the right of the owner to hold and use his property. We cannot place a construction on the expression 'for his own use' in such a way as to deny the landlord a right to evict his tenant when he needs the accommodation for his own son to settle himself well in his life. We have to give colour and content to the expression and provide the skin of a living thought to the skeleton of the words which the Legislature has not itself chosen to define. The Indian society, its customs and requirements and the context where the provision is set in the legislation are the guides leading to acceptance of the meaning which we have chosen to assign to the words 'for his own use' in Section 13(3)(a)(ii) of the Act.

33. Our conclusions are crystalised as under:

(i) the words 'for his own use' as occurring in Section 13(3)(a)(ii) of the East Punjab Urban Rent Restriction Act, 1949 must receive a wide, liberal and useful meaning rather than a strict or narrow construction.

(ii) The expression __ landlord requires for 'his own use', is not confined in its meaning to actual physical user by the landlord personally. The requirement not only of the landlord himself but also of the normal 'emanations' of the landlord is included therein. All the cases and circumstances in which actual physical occupation or user by someone else, would amount to occupation or user by the landlord himself, cannot be exhaustively enumerated. It will depend on a variety of factors such as inter-relationship and inter-dependence __ economic or otherwise, between the landlord and such person in the background of social, socio-religious and local customs and obligations of the society or region to which they belong.

(iii) The tests to be applied are : (i) whether the requirement pleaded and proved may properly be regarded as the landlord's own requirement? and, (ii) Whether on the facts and in the circumstances of a given case actual occupation and user by a person other than the landlord would be deemed by the landlord as 'his own' occupation or user? The answer would, in its turn, depend on (i) the nature and degree of relationship and/or dependence between the landlord pleading the requirement as 'his own' and the person who would actually use the premises; (ii) the circumstances in which the claim arises and is put forward, and (iii) the intrinsic tenability of the claim. The Court on being satisfied of the reasonability and genuineness of claim, as distinguished from a mere ruse to get rid of the tenant, will uphold the landlord's claim.

(iv) While casting its judicial verdict, the Court shall adopt a practical and meaningful approach guided by the realities of life.

(v) In the present case, the requirement of landlord of the suit premises for user as office of his chartered accountant son is the requirement of landlord 'for his own use' within the meaning of Section 13(3)(a)(ii)."

Thereafter, four months' time was allowed to the tenant to vacate the premises subject to his clearing all the arrears and filing the usual undertaking in the executing court to deliver vacant and peaceful possession over the suit premises of the landlord.

12. Likewise, in the case of Mohd. Zafar Khan (supra), while considering the provisions of Rule 16(2) of the Rules, 1972, this Court while considering the several judgments of the Supreme Court as well as by the Hon'ble Supreme Court, has held in paragraphs 102 and 103 as under:

"102. Thus, in the instant case on the basis of material on record, it is established that the tenant did not make any effort to search an alternative accommodation immediately, the filing of the release application and even thereafter, so the said facts are sufficient to tilt the balance of comparative hardship against the tenant as held by the Apex Court in the case of Bhutada v. G.R. Mundada 2003 Supreme Court 2713; 2005 (2) ARC 899, the said authority has been followed by this Court in Salim Khan v. Ivth Additional District Judge, Jhanshi, 2006 (1) ARC 588 wherein it is held as under:-

"in respect of comparative hardship, tenant did not show what efforts they made to search alternative accommodation after filing of release application. This case sufficient to tilt the balance of hardship against them vide Bhutada v. G.R. Mundada 2003 Supreme Court 2713; 2005(2) ARC 899. Moreover, rent of Rs.6/- per month which the tenants are paying is virtually as well as actually no rent. By paying such insignificant rent they must have saved a lot of money. Money saved is money earned. They must, therefore, be in a position to take another house on good rent. Further, they did not file any allotment applicaton for allotment of another house. Under Rule 10(3) of the Rules framed under the Act, a tenant, against whom release application has been filed, is entitled to apply for allotment of another house immediately. Naturally such person is to be given preference in the matter of allotment. Respondents did not file any such allotment application. Thus, the question of comparative hardship has also to be decided against the tenants."

103. The said view has been further reiterated by this Court in the following cases:

(1) Jai Raj Agarwal v. Bhola Nath Kapoor, 2005 (3) ARC 417.

(2) Rulemuddin v. Abdul Nadeem, 2007 (2) ARC 62.

(3) Mohabbey Ali v. Taj Bahadur, 2009 (2) ARC 715.

(4) Raj Kumar v. Lal Khan, 2009 (2) ARC 740.

(5) Ashis Sonar v. Prescribed Authority 2009 (3) ARC 269."

13. Considering the above-extracted portion of the judgment, this Court is of the opinion that the ratio of the judgments referred hereinabove on the point is fully applicable to the present facts and circumstances of the case.

14. Upon overall consideration, this Court holds that on perusal of material document available on the record, it is clearly established that the tenant/ petitioner failed to prove that he has made sincere efforts to search for alternative accommodation since the date of moving of release application by landlord/ respondent. Coupled with the fact in the present era in every city several commercial complex/ shops are built and soft loans are also provided by banks to aspirants and in case if petitioner/ tenant has made an effort in this regard then he might have get a shop to run his business.

15. In view of the above, I do not find any illegality or irregularity in the judgments and orders passed by the prescribed authority and by the appellate authority.

16. For the forgoing reasons, the writ petition lacks merit and is dismissed.

17. No order as to costs.

 
Order Date :- 7.3.2019
 
GK Sinha                                                                              [Irshad Ali, J.]