Dev Darshan Sud, J.
1. This is the landlord's revision against the judgment of the learned Appellate Authority rejecting the appeal of the petitioner-landlady seeking eviction of the respondent-tenant from the demised premises.
2. The petitioner instituted eviction proceedings against the respondent on the allegation that the premises were required bona fide for use and occupation by her and her family consisting of her son, daughter-in-law, and two minor grand-children. It was pleaded that she was owner of the suit premises known as Kuldip Niwas, Chhota Shimla. The respondent was in occupation of one room, one kitchen-cum-bath room in the ground floor of the building. In her sworn testimony as PW-1, she proved that her family consisted of herself, her son who was serving in the Indian Army, his wife and two minor children studying in school at Shimla. PW-2 Smt. Vinay Sharma, daughter-in-law of the landlady corroborated the case of the petitioner on all material particulars. She testified that her husband was a Captain in the Army and was serving in a field area. At the relevant time, her son was 5-1/2 years old and a minor daughter aged two years. Both the landlady and her daughter-in-law have stated that the premises were required bona fide for their occupation and the children are being educated in Shimla where they intend to stay.
3. The tenant/respondent Shri K.D. Sharma appeared as RW-3. He admitted his tenancy but resisted the eviction by pleading that there is another three storeyed building which adjoins the demised building owned by the landlady which is available for her occupation. The requirement of the landlady was a mere wish and desire and motivated and not a bona fide need as stipulated by law.
4. The learned trial Court, on a conspectus of the evidence, concluded that the landlady-petitioner did not require premises bona fide for her accommodation. Basing his conclusions on an appraisal of evidence and by following the decision in M.M. Qasim v. Manohar Lal : [1981]3SCR367 , held that the requirement pleaded did not satisfy the statutory requirement of bona fide use and occupation and may have been motivated by the whim of the landlady. He did not believe the statement of PW-2 Smt. Vijay Sharma that the basement is not suitable for her occupation as it has developed dampness etc. He also holds that the grand-children of the landlady who are studying in Shimla do not require separate rooms for any purpose. He becomes speculative when he considers the evidence of PW-2 who states that the rank of her husband entitles him to an orderly who according to the learned authority will be provided a room by the Army authorities. Strangely enough, he observes 'But in my opinion when her husband is posted out of the Urban Area of Shimla he is not entitled for said orderly. If he is posted at Shimla then no doubt he will get an orderly but the said orderly in my opinion will get also the separate Government accommodation.' What is the basis for coming to this conclusion is unclear. How he arrives at these conclusions, remains clouded in the realm of doubt. Needless to say, the statutory duty of the Rent Controller was to have ascertained the bona fide need of the landlady and not to have dictated the same through his reasoning. How he concludes that children do not require separate room for study etc. is again 'unclear. Evidence of PW-2 Vinay Sharma that the basement remains damp being unrebutted, is doubted by him. The basis for reaching this firm conclusion again are conjectural.
5. The learned appellate authority has gone a step further. Aside from the fact that reference has been made to a number of judgments of the Supreme Court, nothing is clear as to the basis on which he forms an opinion that the appreciation of evidence and the conclusions arrived at therefrom by the Rent Controller are in order and the factual matrix for the applicability of the precedents of the Hon'ble Supreme Court. In addition, he places reliance on a judgment of this Court in Laiq Ram v. Vijay Agganval , to hold that mere occasional visits by a married daughter or mother-in-law of the landlady are not sufficient grounds for eviction. The learned appellate Authority goes on to observe that if the basement was damp, there was no need to have the same vacated. He also adds that the adjacent 'building' of the demised premises belongs to the landlady and therefore, would be sufficient for her need in future without considering the fact that it was only an incomplete RCC structure which was not habitable.
6. I have heard the learned Counsel for the parties and have gone through the record.
7. Learned Counsel appearing for the petitioner submits that the learned Courts below have travelled beyond the mandate of the Act and undertaken an exercise of evaluating suitability of accommodation on grounds which are not permitted by the Statute. He submits that the observations made by the Courts below to non-suit the petitioner are not supported by evidence even by inference. Learned Counsel submits that the additional building referred to by both the Courts below is not constructed is an incomplete RCC structure and there is nothing on record to show that it is habitable now or in the near future. He submits that this structure cannot be considered as being an alternate accommodation available to the landlord or as having been vacated by her without reasonable cause. Learned Counsel appearing for the respondent has supported the findings arrived at by both the Courts below and submits that not only have they rightly concluded that the demised premises are not required bona fide by the landlady but she has been unable to establish that the need exists on the day when the order has been obtained.
8. In Meenal Eknath Kshirsagar (Mrs.) v. Traders and Agencies and Anr. : AIR1997SC59 , the Supreme Court held:.As pointed out by this Court it is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the Courts to dictate to him to continue to occupy such premises....
9. Similarly in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta : [1999]3SCR1260 , interpreting the term 'bona fide requirement', the Court held:
13. Chambers 20th Century Dictionary defines bona fide to mean 'in good faith : genuine'. The word 'genuine' means 'natural : not spurious: real: pure : sincere'. In Law Dictionary, Mozley and Whitley define bona fide to mean 'good faith, without fraud or deceit'. Thus the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bona fide' is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, 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 or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself-whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bona fides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or too conservative or pedantic must be guarded against.
Two other decisions need be considered.
10. In Raghunath G. Panhale (dead) by Lrs. v. Changanlal Sunderji and Co. 1999 (2) RLR 542, it was held:
6. 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) (1933 SLT 21) (Nevile v. Hordy) (90 LJ Ch. 158). 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 presenti or within reasonable proximity in the future. The use of the word 'bona fide' is an additional requirement under Section 13(1)(g) and it means that the requirement must also be honest and not be tainted with oblique motive.
7. The above principles have been laid down in various decisions of this Court and we shall refer to a few of them which are relevant to the issue before us. It was stated in Bega Begum and Ors. v. Abdul Ahad Khan and Ors. : [1979]2SCR1 that the reasonable requirement postulates an element of 'need' as opposed to a mere 'desire or wish'. It was also pointed out that if it was indeed a case of a reasonable need, the same could not be diluted by characterizing it as only a mere desire. It was stated:
The distinction between desire and need should doubtless be kept in mind but not as to make even a genuine need as nothing but a desire.It was also held that the language of the provision cannot be unduly stretched or strained as to make it impossible or extremely difficult for the landlord to get possession. If more limitations are imposed upon the landlord holding property, it would expose itself to the vice of unconstitutionality. Yudhishtir v. Ashok Kumar : [1987]1SCR516 . The construction of the relevant statutory provision must strike a just balance between the right of the landlord and the right of the tenant. In Bega Begum's case the landlords adduced evidence to show that they wanted to augment their present income by starting hotel business. This was treated as a genuine need and it was held that it could not be equated with a mere desire. This Court observed that the Act does not completely overlook the interest of the landlord'. In Mattulal v. Radhelal : [1975]1SCR127 , a like principle was laid down stating that the test was not subjective but an objective one and that the Court was to judge whether the need of the landlord was reasonable and bona fide. This Court held that the Additional District Judge in that case was wrong in thinking that the landlord who wanted to start iron and steel business, had to produce proof of preparations for starting his new business, such as making arrangements for capital investment, approaching the Iron and Steel Controller for the required permits etc. This Court held that the above circumstances were 'wholly irrelevant' and observed:It is difficult to imagine how the respondent could be expected to make preparations for starting the new business unless there was reasonable prospect of his being able to obtain possession of the Lohia Bazar Shop in the near future.
11. In Kailash Chand and Anr. v. Dharam Dass 2005 (2) RLR 129, the Hon'ble Supreme Court was dealing with Section 14 (3)(a)(i) of the H.P. Urban Rent Control Act, 1987 which reads:
(3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:
(a) in the case of a residential building, if--
(i) he requires it for his own occupation:
Provided that he is not occupying another residential building owned by him in the urban area concerned:
Provided further that he has not vacated such a building without sufficient cause within five years of the filing of the application, in the said urban area....The Court held:
17. In short, availability of another residential building of his own in the same urban area would disentitle the landlord from seeking eviction of the tenant on the ground of his requirement for his own occupation if he is in occupation of such another building or has vacated such another building within five years. On a plain reading, the availability of another building by reference to the first proviso disentitles the landlord from seeking eviction if the building satisfies these tests : (i) it is another building; (ii) it is residential in nature; (iii) it is in occupation of landlord; (iv) it is owned by him; and (v) it is situated in the same urban area in which another building in occupation of the tenant is situated. The building referred to in the second proviso, availability whereof disentitles the landlord to seek eviction is not in occupation of the landlord. In all other manner it has to be building satisfying the tests as above, and in addition, it must be a building vacated by landlord within five years of the date of filing of the application and that too without sufficient cause. The applicability of any of the two provisos would not be attracted if the landlord is occupying or has vacated another residential building which is rented or is not owned by the landlord.
18. What is the scope of the first Proviso? Whether the occupation by landlord of any other residential accommodation of whatever nature, in abstract and without consideration of any other relevant factor would be enough to attract the applicability of the first Proviso and to deny the landlord his right to seek an order of eviction against the tenant? In our opinion, the first Proviso is not to be read in isolation. It has to be read along with the principal provision to which it is appended. The ground for eviction in the case of a residential building is 'he requires it for his own occupation'. If the pleadings and the evidence adduced by the landlord do not make out a case of requirement, there would be no question of the tenant being directed to put the landlord in possession. Even on the requirement having been proved, the landlord would be denied the order for possession from the tenant because of his being in occupation of 'another residential building owned by him in the same urban area'. The occupation of another residential building, to act in denial of the landlord's right to evict the tenant to satisfy his requirement, must have correlation with the requirement of the landlord. To illustrate, another residential building in occupation of the landlord may be crumbling, or may be in dilapidated condition or may consist of very little residential space, say one small room alone, which it would be misnomer to call availability of a residential building in occupation of the landlord by any stretch of imagination. The legislature could not have intended such an absurd and unreasonable consequence to follow. In our opinion, the first Proviso would come into play only if the landlord is occupying another residential building of his own in the same urban area and such building is considered by the Court as reasonably enough and suitable to satisfy the proven requirement of the landlord. Hence, the first Proviso would not apply in the case before us. It is impractical and unreasonable to hold that the accommodation which is already fully occupied and actually in use of appellant No. 2, though technically in occupation of both the landlords can satisfy the requirement of appellant No. 1 and his family as well. Rightly the tenant has not urged the plea that the landlord being in occupation of other parts of the building excluding the portion in occupation of the tenant would attract applicability of the first proviso so as to disentitle the landlord from seeking his eviction on the ground of requirement of appellant No. 1 who is actually living in a rented house.
12. Considered in the light of these principles, it becomes difficult to hold that the landlady had projected a mere wish or desire to evict the tenant. Learned Rent Controller had no basis for concluding that the grand-children of the landlady and her daughter-in-law who were staying with her did not require the additional accommodation from which eviction was sought. His findings are conjectural and not based on appreciation of evidence. He ignores the unrebutted statement of PW-1 Urmil Sharma and PW-2 Smt. Veena Sharma that the basement of the building is unfit for their use and occupation as there is no cross ventilation, it remains dark and damp and is being used only for dumping luggage/goods etc. of the family. They have stated that it is unfit for human habitation. The learned Rent Controller ignores the fact that her daughter-in-law alongwith her two children also reside with her and her son is posted in the Army who visits them every now and then. This evidence is ignored and there is no basis or warrant for his conclusion that when he (the son) visits Shimla, he will be entitled to official accommodation for himself and for an orderly. These findings are nothing but conjectural based on speculative reasoning. The learned appellate authority has gone a step further by not considering the oral evidence of the petitioner and her witnesses which proves the bona fide need of the landlady. Learned Rent Controller was also clearly wrong in speculating that there was no dampness in the basement of the building which PW-2 said was unfit for their occupation. Merely because this premises was previously tenanted did not mean that they are good for the landlady's occupation. This . purported finding which was affirmed by the appellate authority is without any basis whatsoever. On the other aspect of the matter regarding the fact that the landlady had another building which could be occupied by her and would satisfy her requirement, all that need be said is that there is no evidence on record to show that there exists such building and whether it was fit for occupation or left half constructed. The speculative nature of the findings is writ large in the judgment as it is not based on evidence.
The appellate authority has undertaken an exercise where the main statutory determination has been ignored and findings are purportedly based on principles laid down by the Supreme Court without in any manner determining the factual matrix of this case to determine as to whether the requirement of the petitioner is bona fide, whether the grounds urged by the tenant are such which would disentitle the petitioner for the relief claimed and whether the principles/precedent cited are applicable. No effort or attempt has been made by him to consider the evidence of the petitioner. Reference made to the evidence of PW-2 has been discarded only on the ground that Army Officers are provided accommodation for their use and occupation when they are posted at family stations. It was not the domain of the appellate authority to have directed as to how the family of the petitioner-landlady should live. His observation that the basement should not have been got vacated from the tenant because it was not habitable is no ground for denying relief to the petitioner. The learned Courts below should have been aware that the basement could be used for the purposes other than residential. Reliance on the evidence of RW-3 to the effect that another residential building has been raised is not at all supported by the material on record. For reaching this conclusion, reappraisal of evidence is not required but ex facie sifting through the material on record establishes the bona fide requirement of the landlord. There is no indication as to whether a completed building ready for habitation exists. Rather, the evidence is that an incomplete RCC structure exists. How this would become habitable is beyond comprehension. The learned Courts below have ignored the principles of law settled by the Hon'ble Supreme Court in Kailash Chand's case supra. On the question of bona fide requirement, all that need be said is that the law on the point is well settled and the judgments referred to above clearly establish the principles of law. Merely saying that the landlord only desires to occupy the premises and the requirement is not bona fide is not sufficient judicial determination of the controversy.
13. Learned Counsel appearing for the respondents has referred 'to two judgments namely Prabha Arora and Anr. v. Brij Mohini Anand and Ors. 2007 (2) RCR 600 and Sri Kempaiah v. Lingaiah and Ors. 2001(2) RLR 612, holding that bona fide requirement must subsist when the final decree or order is passed and that mere wish or desire on the part of the landlord to have the premises would not amount to bona fide requirement. The principle of law is well settled by a number of judgments of the Supreme Court. However, as held by me, the evidence on record does not establish the contention urged by learned Counsel appearing for the respondent-landlord. Rather, it reveals the conjectural manner in which conclusions have been arrived at.
14. These principles have already been considered by the Supreme Court in the other judgments referred to above. I do not find that the evidence on record is consistent with the conclusions drawn by the two Courts below. In these circumstances, this petition is allowed. The judgment of the appellate authority is quashed and set aside. A decree of eviction is passed in favour of the petitioner and against the respondent.