1. Heard Sri Mohd. Arif Khan Senior Advocate assisted by Mohd. Adil Khan on behalf of the petitioner and Sri Bireshwar Nath, learned counsel for the respondents.
2. Controversy involved in the present case relates to a shop in mohalla Purana Bazar, Qasba Rudauli, district Barabanki and which petitioners are landlord, opposite party no.2 Haji Ehsanul Haq is a tenant @ Rs. 10/- per month.
3. On 10.3.1981, petitioner moved an application under Section 21(1)(a) of the U.P. Urban Buildings ( Regulation of Letting , Rent and Eviction ) Act ( hereinafter referred to as an 'Act') for release of the shop in question . In para 4, need as set up by the petitioners is to the effect that the shop in question is required for the purpose of doing business of selling readymade garments by petitioner no.4 Mohd. Uzair.
4. Further in para-8 of the release application, it is stated that the tenant has one shop at purana bazar mohalla Khwaza Hall district Barabanki and one shop in Mohalla Katra district Barabanki from where the tenant alongwith his two sons are doing business so the need of applicant no.4 to start the business from the shop in question is bonafide and genuine be released in his favour.
5. On 21.9.1981 a written statement ( Annexure no.2) filed on behalf of the tenant in para 8 it is not disputed by him that he is tenant of shop as mentioned in the release application but it is submitted that the shop situated at Mohalla Katra Qasba Rudauli district Barabanki the son of tenant, Mohd Sahid is doing horsary business and he has six other sons , who are unemployed,eligible to do work but due to non-availability of space/ shop they could not do any business. Accordingly, his need is more genuine and bonafide in comparison to the need of landlord/ applicant.
6. On 3.11.1981 a replication filed on behalf of the applicant/landlord ( annexure no.3 to the writ petition) in which it has been stated that the shop in question is required for business purpose for applicant no.2 Mohd. Ahmad, applicant no.4 Mohd. Uzair and applicant no. 5 Smt. Akhtari Begum to which additional written statement filed by the tenant on 1.1.1983 ( Annexure no.4 to the writ petition).
7. Thereafter , the Prescribed Authority by means of judgment and order dated 15.3.1986 ( Annexure no.5 to the writ petition), allowed release application holding therein that the need of the landlord is more genuine and bona fide in comparison to the tenant and also directed the landlord to pay two years rent as compensation to the tenant.
8. Aggrieved by the same, tenant filed rent appeal on 25.5.1988 ( Rent Appeal No.2 of 1986) , allowed vide order dated 31.10.1991 (Annexre no.6 to the writ petition), hence the present writ petition has been filed.
9. During the pendency of the writ petition , petitioner no .1 Mohd. Aslam as well as petitioner no.5 Smt. Akhtari Begum has died . Accordingly, their legal heirs are substituted. Further the original tenant Hazi Ehsanul Haq/ opposite party no.2 also died and his legal heirs have been substituted .
10. Sri M.A. Khan learned counsel for the petitioner while challenging the impugned order passed by appellate court submits that same is contrary to law and the facts of the case as the shop in question under the tenancy of the respondent is required in order to establish the business of petitioner no. 4 Mohammad Uzair as per need as set up in the release application . However, ignoring the said material fact and on the basis of additional facts as stated in replication dated 3.11.1988 for the need of applicant nos. 2,4 and 5, appellate court allowed appeal, so the said action is totally incorrect and contrary to law.
11. He further submits that the tenants have got sufficient accommodation in his hand to earn his livelihood coupled with the fact that he had not denied in written statement that he has two shops in his possession in the same city from which he alongwith his two sons is doing business but stated that his six other sons are unemployed so his need is more genuine and bonafide cannot be a ground to reject the petitioners' release application by appellate court that the need of the tenant is more genuine and bona fide in comparison to the need of landlord.
12. Sri M.A. Khan further submits that on the basis of record it is clearly established that the prescribed authority had given a finding that the tenant has not made any effort in searching alternate accommodation from the date of moving application for release, the same has not been set aside by appellate court even then appeal is allowed so the said action is illegal cannot sustain, present writ petition be allowed.
13. Sri Bireshwar Nath , learned counsel for the respondents submits that in the instant case appellate court after taking into consideration the fact and circumstances of the case, on the basis of the material on record, came to the conclusion that the need of the landlord/ applicants are neither genuine nor bonafide in comparison to the need of the tenant rightly allowed appeal, set aside the order passed by the prescribed authority allowing release application, so this Court while exercising the power of judicial review under Article 226 of the Constitution of India cannot set aside the findings of fact recorded by appellate authority.
14. He further submits that the observations which are given by appellate court while allowing the rent appeal of the tenant that although it is correct that the tenant had not made any effort in searching any alternate shop so his need be taken not to have been established but this consideration does not seem to be forceful because first of all the question of consideration of the need of the tenant would arise only when it is found that need of the landlord is bonafide and genuine but the landlord has failed in proving their bonafide and genuine, so the findings given by appellate court is perfectly valid and in accordance with law as laid down by Hon'ble the Apex Court in the case of Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada, AIR 2003 SC 2713. Accordingly the present petition is liable to be dismissed.
15. I have heard the learned counsel for the parties and gone through the record.
16. So far as the factual matrix is concerned, it is not disputed by the parties that initially release application moved by the petitioners/ landlord inter alia stating therein that shop under the tenancy of Haji Ehsanul Haq (now deceased) required for establishing readymade garments business of petitioner no.4 Mohammad Uzair. Further , tenant had two shops in the same city from which he alongwith two sons doing business, but the plea taken by the tenant in his defence that he has six other unemployed sons and due to lack of space/ shop they could not start any business cannot be a ground to reject the genuine and bonafide need of landlord/ applicant no.4 by appellate court when on the basis of same by order dated 15.3.1986 the prescribed authority allowed and awarded release application two years rent as compensation in view of the Rule 16 of Rules framed under Act no.13 of 1972.
17. Further while allowing appeal filed by the tenant/respondents, vide order dated 31.10.1991 a findings given are as under:-
(a) the petitioner no. 1 Mohammad Aslam and petitioner no. 3 Mohammad Zubair are engaged in a business so they do not5 need the shop.
(b) That the need of petitioner no. 5 is concerned, she is pardanaseen lady and never engaged herself in any business , aged about 65 years at the time of moving of release application so it is unbelievable that a pardanaseen lady of advance age ,can never run any shop, will only invest money and would not sit in the shop and will keep an eye while remaining inside her house on the business to be run in the shop in question beside the said fact husband of the respondent no.5 is already engaged in the business of purchasing and selling magazines and periodicals etc. so the need of the opposite party no.5 to get shop in question release is not genuine nor bona fide.
(c ) As regard petitioner no.2 it is stated that he is engaged in business of cultivation at Gorakhpur.
(d) So far as the need of opposite party no.4 Mohd Uzair is concerned, appellate court has given a finding on the basis of record that he passed highschool examination in the year 1969. Thereafter he left his studies and not made any effort to search any job and from the statement given by him he has not so far decided as to which business he intends to do so and not only this it is also stated he has not learnt the art of conducting any business and if in order to start a business at his behest , release application should have been filed in the year 1969 when he passed highschool but the same has been moved in the year 1981 which goes to show that his need is not genuine and bona fide in comparison to the need of tenant. The findings has also been given by the appellate court that rule 16(2) (a) made under U.P. Act no.13 of 1972 provides clearly the guidelines in ijectment case to the longer the period of tenancy the lesser is the chance to eject the tenant.
(g) Although, there is no evidence on record that the tenant had made effort to search for any alternative shop and so his need be taken not to have been established. But this contention6 does not seem to be forceful because first of all the question of consideration of the need of the tenant would arise only only when it is found that the need of the respondents is bonafide and genuine whereas in present case in view of my observations made above it is clear that the respondents have failed in proving their bona fide and genuine need.
18. Accordingly, so far as the findings given by appellate court in respect to need of petitioner no. 2 and 5 are concerned, their need is not genuine and bona fide in comparison to the need of tenant. In this regard it is to be kept in mind originally in the release application need which is set up as for petitioner no.4 Mohammad Uzair who is unemployed and wants to start readymade garments from the shop under the tenancy of respondent no.2. In addition to above said fact in replication, need of opposite party no.2 and 5 are also mentioned.
19. Keeping in view the said fact and finding recorded by appellate authority while rejecting release application that he has passed highschool examination in the year 1969 thereafter he left his studies not made any effort to search any job and from the statement given by him he has not so far decided as to which business he intends to do so, also not learnt art of conducting any business so at his behest release application moved in the year 1981 is not maintainable as his need is not genuine and bona fide in comparison to the need of tenant is totally incorrect, wrong and perverse findings because it is settled proposition of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter tenant cannot dictate to the landlord how he should adjust without getting possession of the tenanted premises and the same cannot be rejected on the ground of delay so the findings given by appellate court in this regard is liable to be set aside in view of the law as stated herein in below.
20. In Sarla Ahuja v. United India Insurance Co. Ltd. AIR 1999 SC 100, the Supreme Court observed :.......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 is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by the Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises . While deciding the question of bone fides of the requirement of the landlord it is quite unnecessary to make an endeavor as to how else the landlord could have adjusted himself
21. The Supreme Court in Ragavendra Kumar v. Firms Prem Machinery and Co., AIR 2000 SC 534 also observed:......It is settled proposition of law that the land lord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter.
22. Further the findings given by appellate court that the need of the petitioner/ landlord is not genuine, is also contrary to law and liable to be set aside as the tenant had not made any effort to search accommodation, since the date moving of application for release, so balance of comparative hardship will tilt against him as per law laid down in the case of Faiyaz Khan v. 2 nd Additional District Judge, Jhansi and others, 2006 (24) LCD 929 in which it has been held is as under:-
Concept of comparative hardship cannot be stretched to the extent of depriving the landlord of his property even if landlord is in real and imminent need. Amin was having a clinic even though he asserted that he attended that only off and on . In any case tenant did not show that he made any efforts to search alternative accommodation after filling of the release application . As held by the Supreme Court in B.C. Bhutada V. G.R. Mundada, AIR 2003 SC 2713, this by itself was sufficient to tilt the balance of hardship against the tenant .
23. Same view again reiterated by this Court in the case of Harish Bhatia v. Johra Begum, 2008 (2) Allahabad Rent Cases,30 .
24. Moreover, landlord cannot be denied to get possession of his own shop for starting business for his livelihood as well as his family which is otherwise genuine and bonafide borne out from the record should get the possession of shop to start his own business from the tenant, who cannot be allowed to retain the same when he do not made any effort to search out any alternative shop. In the present era when admittedly in every city the commercial complexs are built in which tenant can get shop if he made a genuine effort to do so in order to establish his business coupled with the fact that landlord cannot be compelled to deny the fruit of his own property for his personal use. In view of these facts, findings given by appellate court on the point in issue and arguments made by Sri Beereshwar Nath learned counsel for the respondent have got no force ,rejected One of the argument advanced by the learned counsel for respondents that this Court while exercising the power of judicial reviews under Article 226 of the Constitution of India cannot set aside the findings of fact recorded by appellate court, is also unsustainable arguments, as findings given by appellate court in the instant case while allowing appeal is contrary to facts and perverse in nature so the same can be set aside by this Court while exercising the power of judicial review under Article 226 of the Constitution as held by this Court in the case of In the case of Rani Devi Jain v. Badloo and another , 2008 (3) ARC 351 as under:-
when the release application has been rejected by the court below and High Court in writ jurisdiction finds the judgment to be erroneous in law, it is not always necessary to remand the matter. Ultimate relief can be granted to the landlady in the writ petition itself vide AIR 2002 SC200: 2001(2) ARC 603:2001 SCFBRC 541, G.C. Kapoor V. N.K. Bhasin and Ram Kumar Barnwal V. Ram Lakhan, 2007 AIR SCW 3250:2007 SCFBRC 346: 2007(2)ARC577. In the first authority release application rejected by the prescribed authority , Appellate Court and High Court was finally allowed by the Supreme Court. In the second authority a9 judgment of the High Court was reversed through which writ petition of the landlord directed against concurrent judgment against him was dismissed by observing that fresh release application could be filed by the landlord. Supreme Court held that High Court should have finally decided the matter and remanded the case to the High Court for the said purpose.
25. Accordingly, order dated 31.10.1991 passed by appellate court in Rent Appeal no. 2 of 1996 ( Hazi Ehsanul Haq and others v. Mohd Aslam and others ) is set aside, order dated 15.3.1986 passed by the prescribed authority, Barabanki is restored. Release application is allowed with a direction that tenants/ respondents are entitled for two years rent as compensation awarded by the prescribed authority.
26. With above observations, the writ petition is allowed. No order as to costs.