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Judgment
Lok Pal Singh, J
By means of present writ petition, moved under Article 227 of the Constitution of India, petitioner is seeking quashing of the impugned judgment and
order dated 04.02.2015 passed by learned District Judge, Dehradun in RCA No. 68 of 2014 Smt. Meenu Agarwal Vs. Sri Ashok Kuman Bansal,
whereby the appeal filed by respondent/landlord has been allowed and petitioner/ tenant has been directed to vacate and handover the shop under his
tenancy to the respondent/landlord.
Factual matrix of the case is that petitioner is tenant in property in question situated at 170 Paltan Bazar Road, Dehradun. Respondent purchased
the said property through registered sale deed on 19.07.1996, and issued notice to the petitioner on 12.09.2007 to vacate the shop in question within six
months. Respondent/ landlady has preferred release application (annexed with map), which was registered as PA Case No. 18 of 2008, stating therein
that on the ground floor of the property in question, some part shown in map, mentioned by letter EFGC is in the tenancy of the petitioner whereas
adjoining remaining part of the property in question is in the possession of her husband and son, where they are running their business, having 7ft. 9
inches width and she desires to demolish the property in question in order to construct a stair case so she may used the same for going to the first floor
of the disputed property. Some part of the first floor of the disputed property will be used as store/godown as husband of the respondent and son is
having a godown at first floor on Dispensary Road which is insufficient. It is also stated that stair case to approach the first floor from Moti Bazar is
not feasible. By showing her family need respondent preferred the release application.
Tenant/petitioner filed his written statement and opposed the release application, though admitted the fact that respondent is the owner/landlady of
the property in question, however, denied the other averments. It is stated that shop in question along with the adjoining shop were initially owned by
one Sri Sudarshan Kumar, petitioner and husband of the respondent were the tenants in the said property. Respondent purchased the said property
from Sri Sudarshan Kumar. It is the stated that respondent has no bonafide need of the property in question, as family members of the respondent are
having number of commercial properties for their business. It is further stated that respondent and her family members are in habit of purchasing old
tenanted properties and thereafter seek release of the same by posing fanciful desire and succeeded to get the property vacated. It is further stated
that area of the shops, shown in the map, is also incorrect. Respondent and her family members possess a larger area than shown in the map and
there is no need of additional stair case, however, one stair case already exists from the side of Moti Bazar to approach to the first floor and second
floor. It is further stated that first floor of the building was got released by the respondent/landlady for residential purpose and respondent/landlady
wants to use the same for commercial purpose, other than the purpose it was released.
Both the parties, in support of their case, submitted affidavit evidence as well as documentary evidence.
Learned Prescribed Authority after considering the submissions of the learned counsel for the parties, and evidence available on record has held
that husband and son of the landlady have sufficient space to cater their needs, as such respondent and his family members have no bonafide need of
the shop in question. The Prescribed Authority also considered the report submitted by Court Amin and after cross-examining him has held that one
stair case is already available to approach to the first floor and second floor from the back side of the shop and there is an opening in the lintel and
there is no need of the shop under tenancy of the petitioner. Learned prescribed authority also considered comparative hardship to the parties and
observed that husband and son of the respondent have sufficient commercial properties whereby the tenant has no alternative accommodation
available to shift his business. He is a man of limited resources, the shop in question is the only source of livelihood and he is running its small business
of selling umbrellas etc., in the shop for last 65 years and held that no comparative hardship would cause to the respondent/landlady in case release
application is rejected, and rejected the release application filed by the respondent/landlady.
Feeling aggrieved, respondent/landlady preferred Rent Control Appeal No. 68 of 2014 before the District Judge, Dehradun. The learned District
Judge, Dehradun vide impugned judgment and order dated 04.02.2015 allowed the appeal and directed the petitioner/tenant to handover the vacant
possession of the shop in question to the landlord within a period of two months. Hence, present petition.
Heard learned counsel for the parties.
Learned counsel for the petitioner would contend that first floor of the property in question got released by the respondent/landlady for residential
purpose, thus, the alleged need of the respondent to construct the staircase from the shop under tenancy for going to the first floor, so same may be
used as godown, is barred by provision of Section 21(1)(a)of U.P. Act No. 13 of 1972. It is further contended that the appellate court has recorded
perverse findings with regard to the number of commercial properties available with the respondent/landlady and erroneously held that the alternative
accommodation available will have no effect upon the instant release application.
Learned counsel for the respondent, on the other hand, would submit that the appellate court on proper and careful consideration of the evidence led
by the parties, passed a reasoned order of eviction against the petitioner/tenant.
The petitioner/tenant denied the bonafide requirement of the landlady and contends that need of the petitioner for the shop in question is greater
than that of the respondent/landlady. However, respondent landlady and her family members are wealthy people owning several residential and
commercial properties. It is further stated that landlady is in habit to purchase the old tenanted property and succeeded to get it released.
It is admitted to the respondent that her husband and son is doing business in shop number 170 Paltan Bazar, Dehradun which is 17 ft. in depth
having 7ft. 9 inches front, and in a small front part, adjoining to the shop of the appellant, tenant is in possession, as such, she required remaining
portion for expansion of the shop and also to construct a stair case to approach to the upper storey of the shop, which is in her possession and wants
to use some part of the first floor as godown.
A perusal of the judgment of the appellate court would show that the appellate court without reversing the findings, recorded by the Prescribed
Authority, has set up a new case for the landlady on flimsy grounds and observed that stair case to approach the property of the landlady is from the
back side of the shop, and nature of the business of the husband and son of the respondent is such that they frequently need for the goods kept in their
store and any godown at a distance cannot facilitate the business smoothly. The findings recorded by the appellate court are perverse as the stair case
on the back of the shop is being used by the landlady to approach the first and second floor but the appellate court has recorded flimsy findings.
The appellate court has further recorded the finding that the Prescribed Authority has wrongly applied the provisions contained in section 21(1) of
the U.P. Act No. 13 of 1972 but did not set aside the findings recorded by the Prescribed Authority that landlady could not prove her bonafide need to
the property in question whereof son and husband of the respondent are having sufficient commercial property, two godowns is being used by them.
Further, the appellate court has not considered the Amin report, his cross examination and pleadings of the petitioner. The appellate court without
having considered the fact that sufficient commercial accommodation and residential accommodation is available with landlady and without taking into
consideration the pleadings raised by the tenant that respondent/landlord is in habit to purchase the old tenanted property has simply held that need of
the landlady is bonafide and genuine. Further the appellate court recorded its finding on the comparative hardship and held that burden lies upon the
petitioner/tenant to some extent that if property in dispute is released he would suffer more hardship and held that comparative hardship does not lie in
the favour of the petitioner/tenant and it lies in favour of landlady/respondent.
The appellate court did not consider the evidence that the landlady and her family having a number of commercial properties and godowns with
them besides the shop adjoining to the property in dispute whereof tenant is having small shop i.e. 4 ft. x 7 ft.
Possession of the shop in question of the sons of the landlady and tenant is carved hereuner as per the plaint map.
A perusal of the dimension of the property in possession of the son of landlady and tenant would show that tenant is having small shop and son of
landlady is having big shop. The appellate court did not consider the principle of live and let live more particularly when husband of
landlady/respondent and petitioner were tenant prior to the purchase of the suit property by landlady.
A reference can be made to the judgment of Hon’ble Apex Court in the case of Raghunath G. Panhale vs. Chaganlal Sundarji reported in
(1999) 8SCC 1 wherein it has been held as under:-
“4. Now, it is well-settled that this Court under Article 136 will not ordinarily interfere with the findings of fact arrived at by the Courts below
except in rare situations. It was held in Variety Emporium v. V.R.M. Mohd. Ibrahim Naina which arose under a Rent Control statute, that though this
Court would not ordinarily interfere, this Court could go into the correctness of findings of fact where ""the concurrent decision of two or more courts
or tribunals is manifestly unjust"". This burden is no doubt to be discharged by the appellant. ""But once that burden is discharged, it is not only the right
but the duty of Supreme Court to remedy injustice"". (SCC Headnote). Similarly in Bega Begum and Ors. v. Abdul Ahad Khan , which also arose
under the Rent Control law, it was again held that where the ""High Court"" and the trial Court have made a legally wrong approach and have
committed substantial and patent error of law in interpreting the scope and ambit of the words ""reasonable requirement"" and ""own possession"" in the
section and ""have thus misapplied the law and overlooked some of the essential features of the evidence, the Supreme Court has to enter into the
merits of the case in order to prevent grave and substantial injustice"".
The word `reasonable', in our view, connotes that the requirement or need is not fanciful or unreasonable. It cannot be a mere desire. The Word
`requirement' coupled with the word reasonable means that it must be something more than a mere desire but need not certainly be a compelling or
absolute or dire necessity (Aitken v. Shaw, Nevile v. Hardy). A reasonable and bona fide requirement is something in between a mere desire or wish
on one hand and a compelling or dire or absolute necessity at the other end. It may be a need in praesenti or within reasonable proximity in the future.
The use of the word `bonafide' is an additional requirement under Section 13(l)(g) and it means that the requirement must also be honest and not be
tainted with any oblique motive.
This Court is of the view that respondent/ landlady and her family members have sufficient commercial properties to carry their business. Need of
the landlady is not bonafide and genuine rather it is a greed of the landlady to get the shop in question evicted from the poor tenant, who was the
tenant along with the husband of the landlady since long back. However, need of the petitioner/tenant is greater than that of the respondent/landlady,
as petitioner has no other means to augment his income except the property in dispute and will not be able to get an alternative accommodation of a
similar nature in the same locality despite his efforts to get alternative accommodation. He also approached to RC&EO Dehradun seeking allotment of
any vacant shop and he has been informed that no shop is available for allotment. The appellate court without considering entire evidence on record
has set up a new case for the respondent/landlady which was neither pleaded nor any evidence in this regard has been adduced and in arbitrary
manner allowed the appeal without setting aside the findings recorded by the Prescribed Authority and occasioned failure of justice with the
petitioner..
The impugned judgment and order dated 4. 02.2015 passed by the appellate court suffers from illegality, perversity and is liable to be set aside.
Same is set aside.
The writ petition is allowed. Release application filed by the respondent/landlady is hereby rejected.
In the facts and circumstances of the case, parties shall bear their own cost.