Sharad Sahu vs Dr. Saurabh Saha And Anr.
2023 Latest Caselaw 6946 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED ON 08.09.2022
 
DELIVERED ON 03.03.2023
 
Court No. - 45
 

 
Case :- WRIT - A No. - 15284 of 2017
 

 
Petitioner :- Sharad Sahu
 
Respondent :- Dr. Saurabh Saha And Anr.
 
Counsel for Petitioner :- Anil Kumar Mehrotra,Sarijan Mehrotra
 
Counsel for Respondent :- Manas Bhargava
 
			With 
 
Case :- WRIT - A No. - 15287 of 2017
 

 
Petitioner :- Sharad Sahu
 
Respondent :- Dr. Saurabh Saha And Anr.
 
Counsel for Petitioner :- Anil Kumar Mehrotra,Sarijan Mehrotra
 
Counsel for Respondent :- Manas Bhargava
 
			With
 
Case :- WRIT - A No. - 17499 of 2017
 

 
Petitioner :- Bharat Sahu
 
Respondent :- Dr. Saurabh Saha And Anr.
 
Counsel for Petitioner :- Anil Kumar Mehrotra,Sarijan Mehrotra
 
Counsel for Respondent :- Manas Bhargava
 
			With 
 
Case :- WRIT - A No. - 17502 of 2017
 

 
Petitioner :- Bharat Sahu
 
Respondent :- Dr. Saurabh Saha And Anr.
 
Counsel for Petitioner :- Anil Kumar Mehrotra,Sarijan Mehrotra
 
Counsel for Respondent :- Manas Bhargava
 

 
Hon'ble Salil Kumar Rai,J.

The above-mentioned writ petitions were connected by different orders of this Court and have been heard together and are being decided by a common judgment.

The writ petitions have been filed by tenants and arise out of orders of release passed in proceedings under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as, ''Act, 1972'). The petitioner in Writ - A Nos. - 15284 of 2017 and 15287 of 2017 and the petitioner in Writ - A Nos. - 17499 of 2017 and 17502 of 2017 are brothers. The premises involved in the present petitions are shops and northern part of House No. 52/43-A at Nai Dal Mandi, Kanpur Nagar. There are roads approximately 30 ft. to 40 ft. wide on the east, west and northern side of the building. Parts of the building were also let out to three other tenants, namely, Ashok Kumar Gupta, Rajiv Gupta and Om Prakash Rathore. The dimensions of the shop let out to the petitioner in Writ - A Nos. - 15284 of 2017 and 15287 of 2017 are 9.6 ft. x 29 ft. and the dimensions of the shop let out to the petitioner in Writ - A Nos. - 17499 of 2017 and 17502 of 2017 is 7.9 ft. x 29.9 ft. The respondent nos. 1 and 2 are the co-owners and landlord / landlady of the demised premises and shall hereinafter be referred as landlords. Respondent no. 2 is the mother of respondent no. 1. The demised premises are on the ground floor of the house and it transpires from the records annexed with the petitions that the first floor is used by the respondents - landlords as their residence. It also transpires from the records that approximately 19.11 ft. x 39 ft. is in the possession of respondent no. 1 who is a doctor by profession and is used by him as his medical clinic as well as a garage.

The respondents - landlords filed applications under Section 21(1)(a) of the Act, 1972 seeking release of the shops in their favour. The need set-up by the respondent - landlord was that the premises were required to upgrade the medical clinic of respondent no. 1 with modern diagnostic facilities and to provide amenities to his patients and to open coaching classes to be run by the wife of respondent no. 1 as well as for respondent no. 2 who intends to start her independent business. It was stated in the application that because of lack of amenities to his patients and lack of diagnostic tools, the respondent no. 1 was forced to refer his patients to different hospitals. It was further stated in the application that the respondent no. 2, who is the mother of respondent no. 1, does not want to be dependent on her son and, therefore, needs space to open a shop from where she could start her independent business and have her independent earnings. It was further stated in the application that the wife of respondent no. 1 was an M.B.A. (Human Resource and Finance) and intends to open a coaching institute for which one room was required for her office while two rooms were required to start coaching classes. It was also stated in the application that the wife of respondent no. 1 has no space to park her vehicle as the vehicle of respondent no. 1 is parked in the garage available in the building and, therefore, parking space is also required for the wife of respondent no. 1. It was stated in the application that the tenants were quite prosperous and can purchase other properties to open their shops and can also get any other shop allotted where they can shift their business. On the aforesaid plea, the respondents - landlords pleaded for release of the demised premises and eviction of the petitioners from the same. It is relevant to note that identical applications setting up the same need, as set-up in the present cases, were also filed by the respondents for release of shops in the tenancy of the three other tenants referred earlier.

The petitioners - tenants filed their objections in which they admitted that the clinic of respondent no. 1 was being run in the building but denied the need set-up for respondent no. 1. It was stated by the tenants that the clinic of respondent no. 1 is not to be upgraded with the amenities as stated by respondent no. 1. In their objections, the tenants stated that respondent no. 1 was employed in the Medical College on contractual basis. The tenants also denied the need of respondent no. 2 as set-up in the release application and stated that the respondent no. 2 was an aged lady with many physical ailments and, therefore, would not be able to do any independent business as pleaded in the release application. The tenants also denied the need set-up for the wife of respondent no. 1 stating that no coaching institute of the wife of respondent no. 1 was registered with the relevant authorities. It was further stated in the objections that the landlords had another House No. 26/67, Kanpur Nagar which was merely 200 sq. yards from the demised premises and would fulfill the need of the landlords as pleaded in the release application. It was pleaded in the objections that the need set-up by the landlords was not bona fide and was only a pretext to get the shops vacated so that the same may be let out to other persons on a higher rent. It was also stated in the objections that the tenants had their business in the demised premises since the last almost 45 years and would suffer if their business was shifted from the demised premises. It was stated that the landlords had filed identical applications for eviction of Ashok Kumar Gupta, Rajiv Gupta and Om Prakash Rathore which showed that the need set-up by the landlords - respondents was not bona fide.

The landlords filed their replica denying the averments made in the objections and stated that they were not the sole owner of House No. 26/67 referred by the tenants and the building was a joint family property situated almost 2 Km. from the demised premises. It was further stated in the replica that the landlords had no right to park their vehicle in the aforesaid building. It was also stated in the replica that the tenants were owners of a large building comprising many shops and one of the shops in the building had been let out to Kannico Dry Cleaners and the tenants can easily shift their business in the aforesaid building.

The release application filed for release of the shop in possession of the petitioner in Writ - A Nos. - 15284 of 2017 and 15287 of 2017 was registered as Rent Case No. 25 of 2010 before the Prescribed Authority and the release application filed for release of the shop in possession of petitioner in Writ - A Nos. - 17499 of 2017 and 17502 of 2017 was registered as Rent Case No. 24 of 2010. While the release applications were pending before the Prescribed Authority, the tenants filed an application for appointment of Commissioner to report about the space available in House No. 52/43 as well as House No. 26/67 and as to whether, the available space were sufficient to satisfy the need set-up by the landlords. The Prescribed Authority rejected the aforesaid applications vide orders dated 29.5.2012. The said orders have also been challenged by the petitioners in the present writ petitions.

The Prescribed Authority vide his orders dated 27.2.2013 passed in Rent Case Nos. 24 of 2010 and 25 of 2010 partly allowed the release applications directing part-release of the demised premises. In his orders, the Prescribed Authority held that the landlords had not approached the court with clean hands as they had not disclosed the fact about House No. 26/67 and had not pleaded that the space available in the said house was not sufficient to satisfy their requirements. It was held by the Prescribed Authority that the demised premises by themselves would not satisfy the need of respondent no. 1. The Prescribed Authority after noting that the tenants were not the owner of the building referred in the replica filed by the respondents and the father and uncle of the tenants were the owners of the said building and after considering the provisions of Rule 16(2)(a), Rule 16(2)(c) and Rule 16(1)(d) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as, ''Rules, 1972') and the fact that identical applications were filed by the tenants for release of the shops under the tenancy of Ashok Kumar Gupta, Rajiv Gupta and Om Prakash Rathore as well as the fact that the landlord is already employed in medical college and that the petitioners in the present petitions were tenants in the demised premises for the last 45 years, partly released the demised premises. In its order, the Prescribed Authority directed that the shop in possession of the petitioner in Writ - A Nos. - 15284 of 2017 and 15287 of 2017 be divided in two parts and the eastern part of the premises measuring 7.9 ft. x 15 ft. be released in favour of the landlords while the western part shall be retained by the tenants. Similarly, in Rent Appeal No. 26 of 2013, the Prescribed Authority directed that the demised premises be divided in two parts each part measuring 8.9 ft. x 15 ft. and the eastern part be released in favour of the landlord - respondent. The orders were passed by the Prescribed Authority accepting the need set-up by the landlords for respondent no. 2 and the wife of respondent no. 1.

Against the orders passed by the Prescribed Authority, appeals under Section 22 of the Act, 1972 were filed by the tenants as well as the landlords. The appeals filed against the order passed in Rent Case No. 25 of 2010 were numbered as Rent Appeal No. 25 of 2013 and Rent Appeal No. 19 of 2014 while the appeals filed against the order of the Prescribed Authority in Rent Case No. 24 of 2010 were numbered as Rent Appeal No. 26 of 2013 and Rent Appeal No. 20 of 2014. Rent Appeal Nos. 26 of 2013 and 25 of 2013 were filed by the landlord while Rent Appeal No. 19 of 2014 and 20 of 2014 were filed by the tenants. The appeals were heard by the Additional District Judge, Court No.17, District Kanpur Nagar.

During the pendency of the aforesaid appeals, the release applications filed for release of the shops in the tenancy of Om Prakash Rathore and Rajiv Gupta were allowed by the Prescribed Authority and the said orders were affirmed in appeal filed under Section 22 of the Act, 1972 and were also affirmed by this Court vide its order dated 1.9.2015 passed in Writ - A No. 34219 of 2014. It has been stated that the special leave petition filed against the aforesaid orders was also rejected by the Supreme Court. The tenants filed applications in their rent appeals for amendment of their written statements so as to incorporate the aforesaid facts in the written statement. The applications were dismissed by the appellate court vide its order dated 14.3.2016. The said orders passed by the appellate court have also been challenged in the present petitions.

The appellate court accepted the need as set-up by the landlords - respondents for themselves and for the wife of respondent no. 1. The appellate court, after considering the dimensions of House No. 52/43, which included the shops let out to the petitioners and other tenants and also the portion in possession of the landlords, held that the landlords would require the whole building and the shops in possession of the petitioners would not be sufficient to fulfill the requirement of the landlords. The appellate court after holding that Rule 16(1)(d) of the Rules, 1972 did not apply on commercial buildings but only on residential buildings, set-aside the orders of the Prescribed Authority so far as the same related to part-release of the demised premises. While considering the comparative hardships of the parties, the appellate court held that House No. 52/43 was most appropriate for the respondents - landlords as they were residing on the first floor of the building. The appellate court also took note of the fact that the tenants had alternative accommodation where they could shift their business and during the pendency of the release applications, the tenants had not made any attempt to search for any alternative place to shift their business.

Considering all the aforesaid circumstances, the appellate court vide its orders dated 23.12.2016 allowed the appeals filed by the landlords and dismissed the appeals filed by the tenants and directed for release of the shops under the tenancy of the petitioners. Writ - A Nos. - 15284 of 2017 and 15287 of 2017 have been filed challenging the order passed by the appellate court in Rent Appeal No. 25 of 2013 and Rent Appeal No. 19 of 2014. Writ - A Nos. - 17499 of 2017 and 17502 of 2017 have been filed challenging the orders passed in Rent Appeal No. 26 of 2013 and Rent Appeal No. 20 of 2014.

At this stage, it may be noted that during the pendency of the present petitions before this Court, order was passed under the Act, 1972 for release of the shop in possession of Ashok Kumar Gupta which is between the shops of the petitioners and Rajiv Gupta. The said order was challenged before this Court in Writ - A No. 50036 of 2016 and this Court vide its order dated 30.11.2021 set-aside the order passed by the rent authorities and remanded back the matter to the Prescribed Authority to pass fresh orders after considering the relevant materials placed by the parties.

It was argued by the counsel for the petitioners that while passing the orders for release of the shops, the courts below have not considered Rule 16(2)(a) and Rule 16(2)(c) of the Rules, 1972 and the fact that the petitioners were tenants in the shops since the last almost 45 years. It was argued that while passing the orders of release, the courts below have also not considered the space available with the landlords in House No. 26/67 which was sufficient to satisfy the need of the landlords as set-up in their release applications. It was further argued that the need of the landlords as set-up in the release applications was satisfied by the orders passed by the rent authorities in relation to shops under the tenancy of Rajiv Gupta and Om Prakash Rathore and, in any case, the said fact had to be taken into consideration while deciding the rent appeals filed under Section 22 of the Act, 1972. It was argued that for the aforesaid reasons, the orders of the appellate court rejecting the amendment applications filed by the petitioners and the impugned orders passed in rent appeals are contrary to law. It was further argued that the opinion of the appellate court that Rule 16(1)(d) was not applicable on commercial buildings and was applicable only on residential buildings is contrary to law. It was argued that in any case, the appellate court has failed to consider that part-release of the shops under the tenancy of the petitioners would have satisfied the need set-up by the landlords. It was argued that for the aforesaid reasons, the impugned orders passed by the courts below are liable to be quashed. In support of his arguments, the counsel for the petitioners has relied on the judgments reported in Jalpa Prasad vs. Ashok Kumar & Ors. 2004 (3) ARC 242; L.M. Trivedi vs. IIIrd Additional District Judge, Allahabad & Ors. 1991 (1) ARC 65; Ramesh Chandra Kesharwani vs. Dwarika Prasad & Anr. 2002 (2) ARC 298; Ram Pal Singh (Deceased) & Ors. vs. Vivek Narayan & Anr. 2011 (2) ARC 575; Kedar Nath Agrawal (Dead) & Anr. vs. Dhanraji Devi (Dead) by Lrs. & Anr. 2004 (2) ARC 764 and Ram Kumar Barnwal vs. Ram Lakhan (dead) 2007 (5) SCC 660.

Rebutting the arguments of the counsel for the petitioners, the counsel for the respondents has argued that the findings of the appellate court regarding the bona fide need set-up by the respondents - landlords are findings of fact based on evidence on record and not liable to interference by this Court under Article 226 of the Constitution of India. It was argued that it was proved from the evidence on record that the tenants had an alternative accommodation where they could shift their business and, therefore, the fact that the petitioners were tenants in the shops since 45 years was not relevant to decide the comparative hardships between the parties. It was further argued that no attempt was made by the tenants - petitioners to find an alternative accommodation and in view of the aforesaid, the appellate court rightly held against the tenants - petitioners. It was argued that the Prescribed Authority had erred in law in releasing only part of the shops in as much as Rule 16(1)(d) of the Rules, 1972 is not applicable on commercial buildings. It was further argued that Rule 16(2)(c) of the Rules, 1972 was not applicable in the present case as the respondent no. 2 and the wife of respondent no. 1 had no business as such and the shops were also sought to start their business and coaching institutions and to upgrade the medical clinic of respondent no. 1. It was argued that in the aforesaid circumstances, there is no error in the orders of the courts below and the petitions are liable to be dismissed. In support of his arguments, the counsel for the respondents has relied on Bhagwan Das vs. Jiley Kaur 1991 (1) ARC 377; Mohd. Zafar Khan & Ors. vs. District Judge Hardoi & Ors. 2011 (6) ADJ 819; Sushila vs. IInd Addl. District Judge, Banda & Ors. 2003 (1) ARC 256; Vijay Kumar Saini vs. Additional District Judge & 5 Ors. 2021 (9) ADJ 477, Ashis Sonar & Ors. vs. Prescribed Authority & Ors. 2009 (3) ARC 269; Kaushal Kumar Gupta vs. Bishun Prasad & Ors. 2006 (1) ARC 73 and Sohan Lal Verma vs. District Judge, Meerut & Anr. 2019 (1) ARC 327.

I have considered the submissions of the counsel for the parties.

The landlords filed different release applications with the same pleadings for all the five shops under tenancy of different persons, including the petitioners. The five shops are in the same building. The bona fide need set-up in all the release applications was the same. The need as set-up by the landlords was that the tenanted shops were required by the landlords to upgrade the clinic of respondent no. 1 so as to provide modern diagnostic facilities and amenities to his patients and also to enable the wife of respondent no. 1 to open coaching classes and also for respondent no. 2 who wished to run her independent business and did not want to be financially dependent on her son. As noted earlier, the respondent no. 1 is the son of respondent no. 2. It is not disputed by the tenants that the respondent no. 1 is a doctor by profession and the wife of respondent no. 1 holds an M.B.A. degree in Finance and Human Resources. However, the tenants have challenged the case set-up by the landlords on the ground that the respondent no. 2 was an old lady with physical ailments, the medical clinic of the respondent no. 1 does not require any upgradation as pleaded by him and further, the landlords had an alternative accommodation in House No. 26/67 which can be used by them for the purpose stated in the present cases. The tenants had also pleaded that the landlords had not approached the court with clean hands in as much as availability of alternative accommodation and that respondent no. 1 was employed in medical college was not disclosed by the landlords in their applications. The tenants further pleaded comparative hardship in their favour on the basis of length of tenancy. The tenants also plead that the shops in tenancy of Om Prakash Rathore and Rajiv Gupta had been released by the courts below under Section 21 of the Act, 1972 and the said developments were to be considered while deciding the release applications as the shops vacated by the aforesaid tenants satisfied the need of the landlords.

It was observed by the Supreme Court in Sarla Ahuja vs. United India Insurance Company Ltd. 1998 (8) SCC 119 that 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 was not bona fide. It was observed that when other conditions of the statute(s) are satisfied and when the landlord shows a prima facie case, it was open to the Rent Controller to draw a presumption that the requirement of the landlord was bona fide. It was further observed by the Supreme Court that it was not for the tenant to dictate terms to the landlord as to how he should adjust himself without getting possession of the tenanted premises and while deciding the question of bona fides of the requirement of landlord, it was quite unnecessary to make an endeavour to find as to how else the landlord could have adjusted himself.

While interpreting the meaning of bona fide requirement of the landlord for any premises let out by him, the Supreme Court in Meenal Eknath Kshirsagar (Mrs) vs. Traders & Agencies and Anr. 1996 (5) SCC 344 approved the views of Bombay High Court in Rustomji Dinshaw Billimoria vs. Dosibai Rustomji Master AIR (1921) Bom 34 and the judgment of Calcutta High in Basant Lal Saha vs. P.C. Chakravarty AIR (1950) Cal 249. The observations of the Supreme Court in Paragraphs 15 and 16 of the aforesaid judgment are reproduced below : -

"15. The following decisions of the Bombay and Calcutta High Courts relied upon by the learned counsel for the appellant are also helpful in deciding the question of bona fide requirement of the landlord. In Rustomji Dinshaw Billimoria vs. Dosibai Rustomji Master the Bombay High Court has held that:

"Ordinarily speaking, an owner of premises, if he says he wishes to use them for his own purposes, is entitled to do so. What the Rent Act endeavors to provide for, is the case of a landlord who evicts the existing tenants in order that he may let them to another tenant at a higher rent, or exact a higher rent from the tenant on a threat of eviction. It seems to me that the question in this case whether the plaintiff was reasonably dissatisfied with the premises which he rented in Girgaon is irrelevant, because in any event the plaintiff was entitled to live in his own premises. He was not bound to continue in rented premises with all the uncertainties of that tenure."

16. The Calcutta High Court in Basant Lal Saha vs. P.C. Chakravarty has observed as under :

"Where a landlord seeks to eject a tenant on the ground of bona fide requirement within the meaning of Proviso (f) of Section 11(1) of the Rent Control Act, 1948, he has to satisfy three tests:

(i) That he ''requires' the premises;

(ii) That such requirement is for his ''own occupation'; and

(iii) That his requirement is ''bona fide'.

The word ''require' means more than mere wish or convenience or fancy of the landlord. The landlord must show some need or necessity.

But it does not mean an absolute need or an absolute requirement in the sense that the landlord will not have any accommodation of any description and that he must actually be on the street before he can demand his own house for his own occupation."

The High Court has also observed therein that while considering the question of bona fide requirement the nature and character of the landlord's temporary accommodation at the time when he is asking for a decree for possession, the insecurity or otherwise of the tenure that he might be holding at the time, the fact that he himself is under a notice to quit, the scope, size and character of his requirement are all relevant factors that the Court has to consider."

(emphasis added)

The observations of the Supreme Court referred above show that though a mere wish or convenience or fancy of the landlord cannot be termed as need but the need does not mean an absolute need in the sense that the landlord will not have any accommodation and must actually be on the street before he can demand his own house for his own occupation. Further, the requirement of bona fide need as stipulated under the different Rent Control Acts is only to prevent the landlord who wants to evict the existing tenants from letting it out to other tenants at a higher rent or exact a higher rent from the tenant on a threat of eviction.

It was further held by the Supreme Court in Prativa Devi vs. T.V. Krishnan 1996 (5) SCC 353 that the landlord was the best judge of his requirements and had complete freedom in the matter and further, it was not the concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. In Rishi Kumar Govil Vs. Maqsoodan & Ors. 2007 (4) SCC 465, the Supreme Court observed in Paragraph 19 that the bona fide personal need is a question of fact and should not be normally interfered with. In Ragavendra Kumar vs. Firm Prem Machinery & Co. 2000 (1) SCC 679, the Supreme Court held that bona fide requirement set-up by the landlord does not give rise to any substantial question of law and the issue has to be decided on appreciation of evidence.

It is on the parameters delineated in the different judgments of the Supreme Court that the legality of the judgment of the courts below has to be considered.

As noted earlier, it is not denied by the tenants - petitioners that the respondent no. 1 is a medical practitioner, the respondent no. 2 holds an M.B.A. degree and the respondent no. 3 is a widow. It is also evident from the facts on record that the clinic of respondent no. 1 is operative on the ground floor of the building and there is also a garage of the landlord in the building. The landlords have stated that space was required for the independent business of respondent no. 2 and three rooms were required by the wife of respondent no. 1 to run her coaching classes and also that space was required to upgrade the medical clinic of respondent no. 1. In the cases from which the present petitions arise, the Prescribed Authority partly released the shops holding that the area being released would be sufficient to satisfy the need of respondent no. 2 and the wife of respondent no. 1. The appellate court has held otherwise and has directed the release of the whole shops under the tenancy of the petitioners. The Prescribed Authority held that if the eastern part of the premises measuring 8.5 ft. x 15 ft. are released in favour of the landlords, the need of respondent no. 2 and the wife of respondent no. 1 would be satisfied. Apart from the fact that the orders of the Prescribed Authority directing part-release are contrary to the law laid down by the Supreme Court in the judgments referred above in as much as it is not for the courts to dictate any standard for the landlord while deciding his release application, it is also difficult to comprehend as to how the area that was released by the Prescribed Authority could be used by the wife of respondent no. 2 for running coaching classes which, according to the landlords, required three rooms - two rooms to run classes and one as office to be used by her. It is also difficult to comprehend as to how the area released by the Prescribed Authority would satisfy the need of respondent no. 2 who had sought the shops to start an independent business of her own. In case, the need of the landlords was bona fide, the entire premises had to be released. Every medical practitioner has the right to upgrade his clinic to provide better services to his patients. The wife of respondent no. 1 holds an M.B.A. degree and, therefore, her desire to run coaching classes can also not be held as not bona fide. Every member of the family of the landlord has the right to have his own independent business irrespective of his age. The mere fact that the respondent no.2 is an old lady aged about 70 years is immaterial to decide the need set-up regarding respondent no. 2.

The fact that the landlords in their applications had not disclosed that respondent no. 1 was employed on contractual basis as a doctor in medical college is not fatal to the release applications and is not sufficient to draw a conclusion that the landlords had not approached the courts with clean hands. The employment of respondent no. 1 did not prohibit private practice and, therefore, the said fact is not, in any manner, relevant to decide the need set-up by the landlords regarding respondent no. 1.

The other argument that was raised by the petitioners to challenge the bona fide need set-up by the respondents was that they had an alternative accommodation in the same city namely, House No. 26/67 which would satisfy the need of the landlords and, therefore, the tenanted premises were not required to be released in favour of the landlords. It is on record that the first floor of the building is used by the landlords for their residential purposes while the tenanted premises are on the ground floor. It is the case of the landlords that the alternative accommodation, i.e., House No. 26/67 was a joint family property and the landlords were not the sole owner of the said property. Considering the aforesaid facts, especially the fact that the respondents were using the first floor of the present building for residential purposes, the appellate court held that the tenanted premises were most suitable for the landlords for the need set-up by them. There is no illegality or any perversity in the aforesaid findings so as to occasion interference by this Court. It is relevant to note here that the Prescribed Authority while considering the availability of alternative accommodation held that the failure of the landlords to disclose the availability of alternative accommodation indicated that the landlords had not approached the court with clean hands. In view of the fact that the alternative accommodation pleaded by the tenants has not been found suitable by the appellate court and the appellate court has held that the present building is most suitable for the need set-up by the landlords, the landlords cannot be faulted for having not disclosed the availability of alleged alternative accommodation and the Prescribed Authority had clearly erred on that point.

The other argument that is to be considered is as to whether by the release of two other shops let out by the landlords during the pendency of the present cases, the requirement of the landlords stood satisfied and whether the said facts were to be taken into consideration while deciding the present release applications.

This Court in Jalpa Prasad (supra) while considering the law relating to subsequent developments regarding a release application filed under Section 21 of the Act, 1972, after considering the different judicial precedents on the issue summarized the principles as follows in Paragraphs 176 and 177 of its judgment. Paragraphs 176 and 177 of the judgment are reproduced below:-

"176. In Shahjahan alias Sharda Devi v. Fourth Additional District Judge, Etawah and others, 2003 (1) ARC 8: 2003 (50) ALR 246: 2003 All. L.J. 627, this Court noticed the above decisions of the Apex Court, and concluded as follows (paragraph 51 of the said ALR):

"51. Following principles, amongst others, emerge from the aforesaid judicial decisions:

(1) The crucial date for deciding as to bona fide requirement of the landlord is the date of filing of the release application for the ejectment of the tenant. Rights and obligations of the parties are to be determined as they were when the lis commenced.

(2) Every subsequent development taking place during the pendency of the litigation is not to be taken into account for judging the bona fide of the requirement pleaded by the landlord, otherwise, there would be no end to the litigation.

(3) Subsequent events may be considered in the following situation;

(a) Subsequent events are such on account of which the requirement of the landlord is wholly satisfied.

(b) Subsequent events are of such nature and of such a dimension that the need propounded by the landlord is completely eclipsed or overshadowed by such subsequent events.

(c) Subsequent events are such which can turn the balance in the case.

(d) Taking note of such subsequent events or changed circumstances would lead to early end of the litigation and would result in complete justice being done.

(e) On account of subsequent events, relief as originally claimed has become in-appropriate, or the same cannot be granted.

(4) In order that the subsequent events may be considered, the events should be brought to the notice of the Court promptly and in accordance with the rules of procedural law so as to ensure that the opposite party is not taken by surprise."

It will thus be seen that the crucial date for deciding as to the bonafide requirement of the landlord is the date of filing of the release application. However, subsequent events may be considered in certain circumstances indicated above provided such subsequent events are brought to the notice of the Court promptly and in accordance with the rules of procedural law so as to ensure that the opposite party is not taken by surprise.

177. The alleged subsequent event in the present case, as noted above, is the illness of the said Vinod Kumar, son of the petitioner. In my opinion, the said alleged subsequent event is not covered in any of the circumstances indicated above. The said alleged subsequent event is not such on account of which the requirement of the landlord (petitioner) is wholly satisfied, nor is the said alleged subsequent event of such nature and of such a dimension that the need propounded by the landlord is completely eclipsed or overshadowed, nor is the said alleged subsequent event such which can turn the balance of the case, nor is the said alleged subsequent event such that taking note of the same would lead to early end of the litigation and would result in complete justice being done, nor is the said alleged subsequent event such that the relief, as originally claimed, has become inappropriate, or the same cannot be granted."

(emphasis added)

Similarly, in Kedar Nath (supra), the Supreme Court in Paragraph 14 of the report observed as follows:-

"14. In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point, and it is this: The basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the Court to consider changed circumstances. A Court of law may take into account subsequent events inter alia in the following circumstances.

(i) The relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or

(ii) It is necessary to take notice of subsequent events in order to shorten litigation; or

(iii) It is necessary to do so in order to do complete justice between the parties.

(Re: Shikarchand Jain vs Digamber Jain Praband Karini Sabha and Others, (1974) 1 SCC 675 : (1974) 3 SCR 101)

Let us consider relevant case law in this regard."

(emphasis added)

Thus, subsequent events are relevant to decide the release application if by change of circumstance the relief becomes inappropriate because the need of the landlord either stands satisfied or is overshadowed by the subsequent developments.

The need set-up by the landlords for all the shops in the building was a composite need for the premises to be used by respondent nos. 1 and 2 and wife of respondent no. 1. Mere release of two or three shops under the tenancy of other tenants would not, by itself, overshadow the need pleaded by the landlords. The present premises have been released for respondent no. 2 and wife of respondent no. 1. The need of respondent no. 1 is still not satisfied by the release of premises in dispute in the present proceedings. The Prescribed Authority held that the need of the respondent no. 1 shall be considered in the release applications filed for other shops. In its judgment dated 23.12.2016, the appellate court has also held that the release of other shops in favour of the landlords does not completely satisfy the need as set-up by the landlords and the entire building was required to fulfill the need of the landlords. Apparently, the subsequent development pleaded by the tenants does not eclipse or overshadow the need set-up by the landlords and does not turn the balance in the case. The events do not come into any of the categories as referred by this Court in Jalpa Prasad (supra) and by the Supreme Court in Kedar Nath (supra).

The plea of the petitioners that the appellate court has not considered the subsequent developments because the amendment application filed by them bringing on record the said developments had been rejected, is not tenable. A reading of the judgment of the appellate court shows that after considering the plea of the tenants, the appellate court has recorded a specific finding that the need as set-up by the respondents - landlords would not be satisfied by release of two or three other shops which had been let out to other tenants. As the appellate court has considered the subsequent events, no purpose would be served in discussing the legality of the orders passed by the appellate court rejecting the amendment applications filed by the petitioners.

So far as the issue regarding comparative hardship is concerned, the tenants plead consideration of Rule 16(2)(a) and Rule 16(2)(c) of the Rules, 1972. In Sushila vs. IInd Additional District Judge, Banda & Ors. 2003 (2) SCC 28, it was held that Rule 16 of the Rules, 1972 merely prescribes certain factors which have to be taken into account while considering the application for eviction of a tenant on ground of bona fide need. It was observed in Paragraphs 10 and 11 of the aforesaid judgment as follows : -

"10. A bare perusal of Rules 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, makes it clear that the Rule only prescribes certain factors which have also to be taken into account while considering the application for eviction of a tenant on the ground of bona fide need. Sub-rule (2) of Rule 16 quoted earlier relates to the cases of eviction from an accommodation for business use. Clause (a) of Sub-rule (2) provides, greater the period of tenancy less the justification for allowing the application; whereas according to Clause (b) in case tenant has a suitable accommodation available to him to shift his business, greater the justification to allow the application. Availability of another suitable accommodation to the tenant, waters down the weight attached to the longer period of tenancy as a factor to be considered as provided under Clause (a) of Sub-rule (2) of Rule 16. Yet another factor which may in some cases be relevant under clause (c) is where the existing business of the landlord is quite huge and extensive leaving aside the proposed business to be set up, there would be lesser justification to allow the application. The idea behind clause (c) is apparent i.e. where the landlord runs a huge business eviction may not be resorted to for expansion or diversification of the business by uprooting a tenant having a small business for a very long period of time. In such a situation if eviction is ordered it is definitely bound to cause greater hardship to the tenant.

11. In the case in hand we find that even though the period of tenancy of the respondent is no doubt long but availability of another shop to him where he can very well shift his business as found by the Prescribed Authority, neutralises the factor of length of tenancy in the accommodation in dispute. We further find that the landlady has no other shop where she can establish her son who is married and unemployed. There is nothing on the record to indicate that the business of the father of Prem Parkash is so huge or that it is a very flourishing business so as to attract application of clause (c) of Rule 16(2). As observed earlier it is clear that the length of the period of tenancy as provided under clause (a) of sub-rule 2 of Rule 16 of the Rules, 1972 is only one of the factors to be taken into account in context with other facts and circumstances of the case. It cannot be a sole criterion or deciding factor to order or not the eviction of the tenant. Considering the facts in the light of Rule 16 pressed into service on behalf of the respondent, we find that according to the guidelines provided therein balance tilts in favour of the unemployed son of the landlady whose need is certainly bona fide and has also been so accepted by the respondent before us."

(emphasis added)

In Badrinarayan Chunilal Bhutada vs. Govindram Ramgopal Mundada 2003 (2) SCC 320, the Supreme Court held that the owner of the property cannot be denied eviction and compelled to live poorly merely to enable the tenants to carry on their flourishing business activity at the cost of the landlords. In its aforesaid judgment, the Supreme Court referred with approval to the observations of the Court of Appeal in Piper vs. Harvey 1958 (1) All ER 454 wherein the Court of Appeal held that if the tenant did not look for any alternative accommodation either to buy or to rent, the only reasonable conclusion could be that the tenant did not prove his case of greater hardship. The observations of the Supreme Court in Paragraphs 12 and 13 of the aforesaid judgment are reproduced below : -

"12. In Bega Begum v. Abdul Ahad Khan pari materia provision contained in Jammu and Kashmir Rent Act came up for the consideration of this Court. It was observed that it is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed but such an event would happen whenever a decree for eviction is passed and merely because the tenant will be ousted from the premises where he was running his activity cannot, by itself, be considered to be a hardship and be a valid ground for refusing the landlord a decree for eviction. In deciding the extent of the hardship, each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on plaintiffs to prove that lesser disadvantages will be suffered by the defendants and that they were remediable. The owner of the property cannot be denied eviction and compelled to live poorly merely to enable the tenants to carry on their flourishing business activity at the cost of the landlord. The fact that there is no other means for the landlord to augment his income except by getting the tenancy premises vacated compared against the conduct of the tenant who having obtained the premises for a fixed number of years has overstayed and enjoyed the premises for a long period of time are relevant factors not to deprive the landlord from the possession over the tenancy premises and recording a finding of no equity in favour of the tenants continuing in possession any further. If the tenants prove that they will not be able to get any accommodation anywhere in the city, that may be a relevant consideration. However, the tenant cannot insist on getting an alternative accommodation of a similar nature in the same locality because that will be asking for the impossible. What are to be weighed as relevant factors are the comparative inconvenience, loss, trouble and prejudice.

13. In Piper v. Harvey the issue as to comparative hardship arose for the consideration of Court of Appeal under the Rent Act, 1957. Lord Denning opined:

"When I look at all the evidence in this case and see the strong case of hardship which the landlord put forward, and when I see that the tenant did not give any evidence of any attempts made by him to find other accommodation, to look for another house, either to buy or to rent, it seems to me that there is only one reasonable conclusion to be arrived at, and this is that the tenant did not prove (and the burden is on him to prove) the case of greater hardship."

Hodson, L.J., opined:

"The tenant has not been able to say anything more than the minimum which every tenant can say, namely, that he has in fact been in occupation of the bungalow, and that he has not at the moment any other place to go to. He has not, however, sought to prove anything additional to that by way of hardship, such as unsuccessful attempts to find other accommodation, or, indeed, to raise the question of his relative financial incompetence as compared with the landlord."

On such state of the case, the Court answered the issue as to comparative hardship against the tenant and ordered his eviction."

(emphasis added)

The burden to prove that in case of release the tenant would suffer more hardship than the landlord is on the tenant and if the tenant does not produce any evidence to prove that during the pendency of the case, he had searched for alternative accommodation but could not get any, the said failure would tilt the balance against the tenant. In the present case, the appellate court has recorded a finding that there was no evidence to show that the petitioners searched for any alternative accommodation during the pendency of the present cases. Further, it is on record that there is a four storied building which, the landlords plead, belongs to the tenants and which, the tenants plead, belongs to their father and in which there are many shops and one of the shop has been rented out to Kannico Dry Cleaners. Assuming the plea of the tenants that the building belongs to their father and uncle and not to them is true, even then there is nothing on record that any portion or shop in the said building would not be available to the tenants, in case, they would be evicted from the present premises. There is nothing on record to show that the father of the tenants refused to let out any shop to them in the four storied building referred above.

The premises have been released for the need of respondent no. 2 and wife of respondent no. 1 who are not in any business at present. Thus, Rule 16(2)(c) is not applicable in the present case. The mere fact that the respondent no. 1 is an earning member in the family does not occasion invocation of Rule 16(2)(c). Further, there is nothing on record to show that the total earning of respondent no. 1 from his clinic and from his employment with the medical college is such so as to deny him eviction of a tenant whose parents, admittedly, own a four storied building.

In light of the findings of the appellate court that the entire premises are required by the landlords, no opinion is required to be expressed on the issue as to whether Rule 16(1)(d) is applicable om commercial buildings.

In view of the aforesaid, there is no illegality in the findings of the courts below on the issue of comparative hardship.

The findings of the appellate court on bona fide need of the landlords and comparative hardship are findings of facts based on material evidence and there is no perversity or any other illegality in the same to occasion interference under Article 226 of the Constitution of India.

For the aforesaid reasons, the writ petitions lack merit and are, hereby, dismissed.

Order Date :- 3.3.2023

Satyam