Pawan Kumar Jain vs Sushila Devi Jain 3 Others
2021 Latest Caselaw 3035 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED ON 28.08.2020
 
DELIVERED ON 26.02.2021
 
Court No. - 35
 

 
Case :- WRIT - A No. - 6684 of 2020
 

 
Petitioner :- Pawan Kumar Jain
 
Respondent :- Sushila Devi Jain 3 Others
 
Counsel for Petitioner :- Madhav Jain
 
Counsel for Respondent :- Jata Shankar Pandey
 

 
Hon'ble Salil Kumar Rai,J.

The counsel for the parties had been heard and also submitted their written arguments after hearing was concluded in the case. The written arguments submitted by the counsel are part of the record of the case. The respondents have not filed any counter affidavit and the counsel for the respondent suggested that the case be heard and decided without a counter affidavit and, therefore, the case was finally heard without calling for a counter affidavit from the respondents.

The present writ petition arises from proceedings instituted under Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 which shall hereinafter, in short, be referred as, ''Act, 1972'. The property in dispute in the present writ petition as well as in the proceedings before the courts below is Shop No. 6/56/1 in Belanganj, Chhatta Ward, District Agra and shall hereinafter, in short, be referred as, ''the Shop'. The shop is a part of property / building No. 6/56, Belanganj, Chhatta Ward, District Agra. The shop is on the ground floor. The respondents are admittedly the landlords of the shop and the petitioner is a tenant at the rate of Rs.29/- per month. The respondents - landlords filed an application under Section 21(1)(a) of the Act, 1972 for eviction of the tenant - petitioner from the shop on the ground that the shop was bona fide required by the landlords for business purposes. It was further stated in the application that the shop was in a dilapidated condition and was, therefore, required to be demolished and reconstructed. It was stated in the application that the applicant no. 1, i.e., the respondent no. 1 in the writ petition, is a law graduate and intends to start her legal practice in Agra on the first floor of the shop and as there was no access to the first floor of the shop, therefore, a stair case had to be constructed after demolishing the ground floor which was in the tenancy of the petitioner. The bona fide need pleaded by applicant nos. 2 to 4, i.e., respondent nos. 2 to 4 in the present petition, was that the said applicants were suffering loss in their business in Rajasthan because of a change in government policy regarding mining and thus wished to start a new business in Agra from the disputed shop which was situated on the main road. It was further stated in the application that the landlords - respondents did not have any other building from where they could do their business. It was alleged in the application that the disputed shop was not being used by the tenant but was being retained by him only to extract heavy premium from the landlords in lieu of vacating the shop. The landlords also pleaded comparative hardship in their favour on the ground that the tenant - petitioner was the owner of another building No. 6/12A wehre he could shift his business. On the said facts the landlords prayed that an order of eviction be passed against the tenant and the possession of the shop be restored to the landlords. On the aforesaid application, P.A. Case No. 65 of 2012 (Smt. Sushila Devi Jain vs. Sri Pawan Kumar Jain) was registered in the court of Prescribed Authority / Additional Civil Judge (Senior Division), Court No. 05, District Agra. The aforesaid court shall hereinafter in short be referred as, ''Prescribed Authority'.

The tenant - petitioner filed his written statement / objections to the application of the landlords - respondents denying the allegations made in the application. In his objections, the tenant - petitioner pleaded that he was operating his business styled as M/s Bulbul Footwear from the shop since 1984 and the shop was the only source of income for the petitioner and his family. It was further stated in the objections that the landlords were not residing in Agra but were permanently residing in Rajasthan since the last 30 years after having established their business in Rajasthan. It was alleged in the objections that the landlords were not suffering any loss in their business in Rajasthan and had a turn over of more than Rupees Twenty crores and the plea set up by the landlords in their application was only a pretence to evict the petitioner and the landlords had no intention to start any business in District Agra but wanted to sell the property to Sri Bhag Chandra Jain, the uncle of respondent nos. 2 to 4, who intends to construct a commercial complex after demolishing the disputed shop. It was further alleged by the tenant that two rooms on the upper floor were already in possession of the landlords which they got demolished by the Development Authority and the upper floor in the building was accessible by a stair case from the main road. The tenant also pleaded that his application under the Right to Information Act for the details of taxes deposited by the landlords had been refused by the concerned departments. It was also stated by the tenant that the shop was not in a dilapidated condition and, therefore, the application filed by the landlords was liable to be rejected.

The Prescribed Authority vide his judgment and order dated 18.3.2016 rejected the application under Section 21(1)(a) of the Act, 1972 dismissing the P.A. Case No. 65 of 2012. In his judgment, the Prescribed Authority recorded a finding that the tenant was using the shop for his business since long and the plea of the landlords that the tenant was the owner of Building No. 6/12A where he could shift his business was not accepted by the Prescribed Authority. The Prescribed Authority also rejected the plea of the landlords regarding the dilapidated condition of the disputed shop as in the opinion of the Prescribed Authority, the notice issued by the Municipal Corporation (Paper No. 10 - A filed by the landlords) showed that only the rooms on the first floor of the building were damaged and the notice does not prove that the shop was in a dilapidated condition. The Prescribed Authority after noting that the landlords did not even have a temporary residence in Agra and did not file any document, including tax records, to prove that they were suffering loss in their business in Rajasthan, held that the landlords could not prove that the building was bona fide required by them to start their business in Agra. It appears that during the arguments before the Prescribed Authority, the landlords had argued that they required the shop to augment their income by expanding their business which was rejected by the Prescribed Authority on the ground that the plea had not been raised in the application instituting the eviction case. While rejecting the plea raised on behalf of respondent no. 1, the Prescribed Authority took note of the fact that, even though, respondent no. 1 had done her graduation in law in 1968, there was no evidence indicating that she was enrolled with the Bar Council and she was already 70 years old and had no residential accommodation in Agra. The Prescribed Authority also took note of the fact that the tenant, in his objections and counter affidavit, had stated that the first and the second floor of the shop were accessible by an existing stair case starting from the main road but no rejoinder affidavit was filed by the landlords to rebut the aforesaid allegation and the respondents had not given any explanation for not using the rooms on the upper floor which was in their possession.

Aggrieved by the judgment and order dated 18.3.2016 passed by the Prescribed Authority, the respondents - landlords filed Misc. Rent Control Appeal No. 39 of 2016 which was heard by the Additional District & Sessions Judge - I, District Agra who shall hereinafter in short be referred as, ''Appellate Court'. The appellate court vide its judgment and order dated 14.2.2020 allowed the Appeal as well as P.A. Case No. 65 of 2012.

In its judgment and order dated 14.2.2020, the appellate court held that the notice issued by the Municipal Corporation, i.e., Paper No. 10-A showed even though that the whole building was in a dilapidated condition but only part of it was required to be demolished under the Municipal laws. The appellate court in support of its findings that the shop was in a dilapidated condition, also relied on the architect report, i.e., Paper Nos. A-11 / 1-18 (16-Ga / 22-39) filed by the landlords. In its judgment and order dated 14.2.2020, the appellate court also held that the tenant had an alternative accommodation, namely building No. 6/12A, where he could transfer his business. In its judgment, the appellate court also held that the court was not required to consider the comparative hardship of the tenant because, during the proceedings in the case, the tenant had not made any attempt to search for an alternative shop where he could shift his business. The appellate court further held that the landlords had the right to augment their income by expanding their business and the plea of the landlords cannot be rejected on the ground that it had not been raised in the application filed under Section 21(1)(a) and the failure of the landlords to file any document disclosing their income and accounts was not sufficient to reject their claim. The appellate court while considering the need of respondent no. 1 held that there was no age bar for starting legal practice and the need of respondent no. 1 cannot be denied on technical grounds. The appellate court took note of the fact that Agra was the home district of the landlords and the disputed shop was their ancestral property. The appellate court also held that as the shop was in a dilapidated condition, therefore, any constructions above the shop can be made only after demolishing the ground floor.

Aggrieved by the judgment of the appellate court, the petitioner - tenant has filed the present writ petition.

Challenging the judgment of the appellate court, the counsel for the petitioner has argued that the appellate court has not assigned any reason for reversing the findings recorded by the Prescribed Authority. It was further argued by the counsel for the petitioner that the report of the architect relied by the appellate court was not supported by any affidavit of the architect and, therefore, the said report was inadmissible in evidence. It was further argued by the counsel for the petitioner that the availability of a residential accommodation with the tenant - petitioner was not relevant to decide the plea of bona fide requirements of the landlords - respondents. It was argued by the counsel for the petitioner that no findings have been recorded by the appellate court regarding compliance of Rule 17 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred as, ''Rules, 1972) and no right of re-entry as provided in Section 24(2) of the Act, 1972 was offered to the petitioner because the application was filed under Section 21(1)(a) of the Act, 1972 and, therefore, the condition of the disputed shop was not relevant to decide the case. It was further argued that the respondents had failed to prove their bona fide need or that they were suffering loss in their business in Rajasthan. It was further argued that while considering the need set up for respondent no. 1, the appellate court failed to consider Section 33(A) of the Advocates Act which provides that only a person enrolled as an advocate under the Act was entitled to practice law. It was argued that the need of respondent no. 1 was for the first floor and not the ground floor of the building in which the shop existed and the first floor was accessible through a stair case from the main road. Lastly, it was argued that the plea of the landlords that they required the shop to augment their income by expanding their business was neither pleaded nor proved and the findings of the appellate court in favour of the landlords on the said plea are based on surmises and conjectures. It was argued that the appellate court had failed to notice that the need of the landlords has to be seen as existing on the date of the institution of proceedings and further, no opportunity was given to the petitioner - tenant to rebut the plea of the landlords regarding expansion of their business to augment their income. It was argued that for the aforesaid reasons, the judgment of the appellate court is contrary to law and is liable to be quashed. In support of his arguments, the counsel for the petitioner has relied on the judgments reported in AIR (2001) Supreme Court 965, 1998 (2) ARC 430, 2009 (2) ARC 325, AIR (1981) Supreme Court 1711, AIR (2002) Supreme Court 665, AIR (2003) Supreme Court 624 and AIR (2003) Supreme Court 630.

Rebutting the arguments of the counsel for the petitioner, the counsel for the respondents has supported the reasons given by the appellate court in support of its judgment and has argued that it was proved from the evidence on record that the shop was bona fide required by the landlords and it is well settled that the tenant cannot be allowed to dictate to the landlord his choice regarding the place of his business. It was argued that for the aforesaid reasons, the judgment of the appellate court is according to law and requires no interference by this Court under Article 226 of the Constitution of India. In support of his arguments, the counsel for the respondents has relied on the judgments reported in AIR (1999) Supreme Court 2507, AIR (2014) Supreme Court 3635 and 2016 (10) SCC 209.

I have considered the rival submissions of the counsel for the parties and also perused the records.

The proceedings for eviction of the tenant - petitioner was instituted by the landlords - respondents under Section 21(1)(a) of the Act, 1972. In their application, the landlords had pleaded that the shop was in a dilapidated condition. The notice issued by the Municipal Corporation, marked as Paper No. 10-A in the courts below, was produced as evidence to substantiate the plea. The notice has not been filed with the writ petition and the respondents have not filed any counter affidavit. The notice is not before this Court. The Prescribed Authority and the appellate court have drawn different conclusions on the aforesaid notice. In his judgment, the Prescribed Authority has recorded that notice does not indicate that the shop was in a dilapidated condition and only shows that the rooms on the upper floor were damaged and were required to be demolished under the Municipal laws. However, the appellate court records that the notice indicates that the whole building, including the disputed shop, was in a dilapidated condition but only a part of the building was required to be demolished. From the tenor of the judgments of the courts below, it appears that the dilapidated condition of the shop was pleaded by the landlords in support of their plea that the first floor of the building was required for respondent no. 1 - Smt. Sushila Devi Jain to start her legal practice and the first floor could not be accessed without a stair case for which the disputed shop was required to be demolished to make provision for a stair case leading to the first floor. In such circumstances, the condition of the shop would be relevant only if the bona fide need of respondent no. 1 as pleaded by the landlords stands proved.

At this stage, it is also relevant to note that the report of the architect relied upon by the appellate court in support of its finding that the shop was in a dilapidated condition was not supported by any affidavit of the architect. The said fact has been stated in Paragraph No. 41 of the writ petition and no counter affidavit has been filed rebutting the aforesaid allegation made in Paragraph No. 41. In view of the judgment of this Court in UCO Bank, Agra Gwalior Road vs. Bhagwati Prasad & Others 2009 (2) ARC 325, the said report was inadmissible in evidence and, therefore, the lower appellate court has erred in relying on the same. However, the report is relevant only to decide the condition of the disputed shop which, as noted earlier, is relevant only to consider the bona fide need of respondent no. 1 as set up before the courts below.

It is true, as argued by the counsel for the respondents, that it is the privilege of the landlord to choose the nature and place of his business and the tenant or the courts can neither advise nor dictate to the landlord as to how and in what manner he would do his business and the place which would be most suitable for his business. However, it is also to be remembered that the Act is a beneficial legislation protecting the rights of the tenants and the landlord does not have an unfettered right of re-entry on a property which is subject to rent control legislations. His right to re-enter on the property after evicting the tenant is restricted and can only be on the grounds and in the circumstances specified in the concerned rent control legislation. In properties governed by the Act, the landlord has the right to evict the tenant and re-enter the property in the circumstances specified under Section 20(2) and Section 21 of the Act, 1972. Section 21(1)(a) of the Act, 1972 provides that the Prescribed Authority can order the eviction of a tenant from a building under tenancy or any specified part thereof if it is satisfied 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. The important element in Section 21(1)(a) of the Act, 1972 is that the building should be bona fide required by the landlord for purposes specified in the provision. Bona fide requirement is more than a mere desire of the landlord. The phrase ''bona fide required' introduces an element of objectivity and it was held by the Supreme Court in Ram Dass vs. Ishwar Chander & Ors. AIR (1988) Supreme Court 1422 that the desire in order to become a requirement in law must have the objective element of a need. While considering the case of the landlord, the court has to take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down. It was observed by the Supreme Court that a mere desire which is the outcome of whim or fancy, is not taken note of by the rent control legislations. Bona fide need is an outcome of a sincere and 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. In this regard, it would be pertinent to refer to the observations of the Supreme Court in Paragraph Nos. 12 and 15 to 19 of Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta AIR (1999) Supreme Court 2507:-

"12. A perusal of Section 14 of the Act shows that the law has imposed restrictions on the recovery of possession of any premises by landlord from a tenant notwithstanding any law or contract to the contrary. However, an order for recovery of possession is permissible on one or more of the specified grounds. One such ground is the premises let for residential purposes being required bona fide by the landlord for occupation as residence for himself or for any member of his family dependent on him. What is a bona fide requirement is not defined in the Act. The words ''need' and ''require' both denote a certain degree of want with a thrust within demanding fulfilment. 'Need' or 'requirement' qualified by word 'bona fide' or 'genuine' preceding as an adjective - is an expression often used in Rent Control Laws. 'Bonafide or genuine need' of the landlord or that the landlord 'genuinely requires' or ''requires bona fide' an accommodation for occupation by or use for himself is an accepted ground for eviction and such expression is often employed by Rent Control legislation draftsman. The two expressions are interchangeable in practise and carry the same meaning.

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15. A few decided cases apposite to the point may be referred. A Division Bench of Madhya Bharat High Court in Motilal Vs. Badrilal, ILR 1954 Madhya Bharat 1 interpreted clause (g) of the Madhya Bharat Sthan Niyantran Vidhan Samvat, 2006 whereunder a landlord was entitled to eject a tenant if he "really needs a house for himself and he possesses no other accommodation belonging to him elsewhere". It was held that the landlord was made the sole arbiter of his own requirements but he must prove that he in fact wants and genuinely intended to occupy the premises. His claim would no doubt fail if the Court came to the conclusion that the evidence of "want" was unreliable and that the landlord did not genuinely intend to occupy the premises. As to alternative accommodation disentitling the landlord to the relief of possession it was held that it must be reasonably equivalent as regards suitability in respect to the accommodation he was claiming. This statement of law was cited with approval before a Full Bench of the High Court of Madhya Pradesh in Damodar Sharma Vs. Nandram Deviram, AIR 1960 Madh Pra 345. Pandey, J. recording the majority opinion emphasised the distinction between the expressions 'genuinely requires' and 'reasonably requires' and said:-

"It is wrong to say that "genuinely requires" is the same as "reasonably requires". There is a distinction between the two phrases. The former phrase refers to a state of mind; the latter to an objective standard. "Genuine requirement" would vary according to the idiosyncrasy of the individual and the time and circumstances in which he lives and thinks. Reasonable requirement belongs to the "knowledge of the law" and means reasonable not in the mind of the person requiring the accommodation but reasonable according to the actual facts. In my opinion, in this part of Sec. 4(g), the landlord is made the sole arbiter of his own requirements but he must prove that he, in fact, wants and genuinely intends to occupy the premises. His claim would no doubt fail if the Court came to the conclusion that the evidence of "want" was unreliable and that the landlord did not genuinely intend to occupy the premises."

16. As to impact of availability of another vacant accommodation with the landlord it was held in Damodar case (AIR 1960 Madh Pra 345) (FB) (supra) that it must satisfy the test of suitability for satisfying the need of the landlord.

17. The abovesaid Full Bench decision of the High Court of Madhya Pradesh was cited with approval before this Court in Sarvate T. B. Vs. Nemi Chand, 1965 Jab LJ 973 (SC).

18. In M. M. Quasim Vs. Manohar Lal Sharma, AIR 1981 SC 1113 this Court has held (vide para 18) that the landlord does not have an unfettered right to choose the premises but merely showing that the landlord has some other vacant premises in his possession may not be sufficient to negative the landlord's claim if the vacant premises were not suitable for the purpose for which he required the premises. This Court cautioned that the Court must understand and appreciate the relationship between the legal rules and necessities of life.

19. In Ram Dass Vs. Ishwar Chander, AIR 1988 SC 1422 this Court has held that:-

"the need of the landlord should be genuine and honest, conceived in good faith; and that, further, the Court must also consider it reasonable to gratify that need. Landlord's desire for possession, however honest it might otherwise be, has inevitably a subjective element in it and that, that desire to become a "requirement" in law must have the objective element of a "need". It must also be such that the Court considers it reasonable and, therefore, eligible to be gratified. In doing so, the Court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down"."

(emphasis added)

The aforesaid observations of the Supreme Court summarises the law relating to the plea of bona fide need / requirement set up by the landlord in an eviction petition filed under Section 21(1)(a) of the Act, 1972. It is evident from a reading of the aforesaid observations that the need pleaded by the landlord should be natural, real, sincere and honest and should not be merely a pretence or pretext to evict a tenant. Further, it would also be evident from a reading of the aforesaid observations that a mere statement or a pleading on the part of the landlord that he bona fide required the said building for a purpose specified in the pleading is not sufficient but the requirement has to be proved by the landlord by bringing sufficient evidence before the court. The said evidence and the circumstances brought before the court will be considered by the courts while deciding the case and the consideration has to be in a manner that the protection afforded by law to the tenant is not rendered merely illusory or whittled down. Further, the burden is on the landlord to establish his case affirmatively.

It is in light of the aforesaid observations, the present case is being considered.

In their application filed under Section 21(1)(a) of the Act, 1972, the landlords had sought the eviction of the tenant from the shop on the ground that the first floor of the shop was required for respondent no. 1 - Smt. Sushila Devi Jain who intended to start her law practice in Agra and there was no access to the first floor through a stair case and, therefore, the shop had to be demolished to make provision for a stair case. The said plea was contested by the petitioner - tenant stating that the first floor of the building was accessible through a stair case from the main road which still existed and in his written statement, the petitioner - tenant also denied that the respondent no. 1 intended to start her law practice in District Agra. The petitioner - tenant claimed that the said plea was merely a pretence to evict the petitioner - tenant from the shop. In his order dated 18.3.2016, the Prescribed Authority rejected the plea regarding respondent no. 1 on the ground that there was no evidence to show that the respondent no. 1 was enrolled as an advocate with any Bar Council. While rejecting the plea of bona fide need on behalf of respondent no. 1, the Prescribed Authority also relied on the affidavit filed by the petitioner which stated that the upper floor of the shop was accessible through a stair case and the landlords did not file any affidavit rebutting the said allegation. In its impugned judgment dated 14.2.2020, the appellate court accepted the need set up on behalf of respondent no. 1 holding that there was no age bar on any person for starting law practice. In its impugned judgment dated 14.2.2020, the appellate court has taken note of the fact that there was no evidence to show that the respondent no. 1 had been enrolled as an advocate with the Bar Council but held that the need of respondent no. 1 cannot be rejected on such technical ground. The reason given by the lower appellate court so far as the need of respondent no. 1 is concerned, cannot be accepted. Under Section 33 of the Advocates Act, only a law graduate enrolled under the Advocates Act is entitled to practice in any court or before any authority. Enrollment of respondent no. 1 was necessary to enable her to practice law before any court or authority. It is not the case of the respondents - landlords that the respondent no. 1 had filed any application in any Bar Council for enrollment. No such plea was raised even before this Court during the arguments in the writ petition. The enrollment of respondent no. 1 or any steps taken by her for being enrolled as an advocate during the proceedings in the case was necessary to show that the case set up on behalf of respondent no. 1 was sincere and honest and not a mere pretext to evict the tenant - petitioner from the disputed shop. Apart from the aforesaid, while dealing with the need of respondent no. 1, the Prescribed Authority also took note of the fact that the rooms on the upper floor of the building were not being used by the respondent no. 1 even though the said rooms were admittedly in possession of the landlords and, as stated in the affidavit filed by the tenant, were accessible by a stair case from the main road. In its impugned judgment dated 14.2.2020, the appellate court, while accepting the plea of the landlords has not considered the findings of the Prescribed Authority on accessibility of the upper floor and existence of the stair case. The documents and evidence referred by the Prescribed Authority were relevant materials and evidence which have not been considered by the appellate court. Apparently, the reasons given by the Prescribed Authority for rejecting the case set up by the landlords on behalf of respondent no. 1 have also not been met by the appellate court while reversing the order of the Prescribed Authority. In Santosh Hazari vs. Purushottam Tiwari AIR (2001) Supreme Court 965, it was held that "while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it." Thus, the findings of the appellate court accepting the need of respondent no. 1 is vitiated due to non-consideration of relevant materials and is liable to be rejected.

As the judgment of the appellate court accepting the need set up by the landlords on behalf of respondent no. 1 is being rejected, any finding on the condition of the shop, i.e., whether the shop was in a dilapidated condition, is not relevant.

So far as the need of the other respondents is concerned, it was pleaded by the landlords that the respondents were suffering loss in their business in Rajasthan and, therefore, wanted to start their business in Agra for which they required the shop. It was pleaded by the landlords that because of changes in government policy relating to mining in Rajasthan, the respondents wanted to start their business from Agra. The judgments of the courts below do not show that any evidence was filed by the respondents indicating any change in government policy in Rajasthan regarding mining which could adversely affect their business or any document was filed to indicate that the respondents were suffering loss or facing difficulty in their business. The landlords did not file either their income tax returns or any other document to show loss in their business. The Prescribed Authority took note of the aforesaid fact and rejected the plea of the landlords - respondents as not supported by any evidence. It appears from a reading of the judgment of the courts below that during the proceedings in the case, the landlords had, during the arguments, pleaded that the shop was required by them to augment their income by expanding their business. The said plea was not taken up in the eviction petition and, therefore, the Prescribed Authority rejected the plea. The appellate court has held that it was not necessary for the landlords to either raise the said plea in their application or give details of their income and every person has the right to augment his income and mere non-disclosure of the nature of the business does not establish that the need set up by the landlords was not bona fide. I am not expressing any opinion on the issue as to whether the plea raised by the landlords - respondents that the shop was needed to augment their business was required to be part of the application or pleadings as the said issue is not necessary to decide the present petition. It is sufficient to note that the Prescribed Authority had rejected the plea raised on behalf of respondent nos. 2, 3 and 4 because the respondents had not filed any evidence in support of their plea. The appellate court, while reversing the findings of the Prescribed Authority, has not referred to any evidence in support of its findings and has only stated the different legal propositions formulated in the different judgments of this Court and the Supreme Court. As noted earlier, the need set up by the respondents - landlords had to be sincere and honest and not a mere pretence or pretext to evict the tenant. The need has to be proved through admissible evidence and the evidence filed by the landlords and the tenant has to be considered by the concerned court in a manner so as to not whittle down the protection given to the tenant by rent control legislations and to assess whether the need pleaded by the landlord is not merely a pretence or pretext to evict the tenant but is sincere and honest. In view of the aforesaid, the findings recorded by the appellate court accepting the plea of the landlord - respondent nos. 2, 3 and 4 for the shop in question is without any evidence and cannot be sustained.

The appellate court while allowing the appeal has also considered the plea raised by the landlords that the tenant had an alternative accommodation where he could shift his business and did not make any effort to search for a new accommodation and, therefore, his hardship as a result of eviction cannot be considered. The comparative hardship of the tenant and the landlords is relevant only after the landlord is able to prove the alleged bona fide need set up by him. It is well settled that the landlord is first to prove and establish his bona fide need for the disputed accommodation. As the findings recorded by the appellate court in its judgment accepting the need pleaded by the landlords has been disapproved on the ground that the findings are vitiated due to non-consideration of relevant evidence and are also without any evidence and also because the appellate court has not met the reasons given by the Prescribed Authority, no opinion is required to be expressed on the issue of comparative hardship.

In view of the aforesaid, the judgment and order dated 14.2.2020 passed by the appellate court is contrary to law and is liable to be quashed and is, hereby, quashed.

The matter is remanded back to the appellate court to pass fresh orders in accordance with law in light of the observations made in the present judgment.

With the aforesaid directions, the writ petition is allowed.

Order Date :- 26.2.2021

Satyam