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Krishna Kumar Maheshwari v. Asha Gupta

Urban Building Regulation of Letting, Rent and Eviction) Act, 1972 (U.P.) – Section 21 – “bona fide need” – Interpretation of – Proceedings for release of building under occupation of tenant – Whether the need of the landlord for settling her son is bona fide ?

In the present case, the respondent-landlord has clearly established that shop in question is needed by her son to start on-line trading and share business and the need of the landlord is ‘bona fide’ and genuine. It is further evident from the bare reading of written statement of the tenant- petitioner that specifically he has not disputed the need of the landlord to establish her son in the shop in dispute and in view of the above set of facts, as per the interpretation of word “bona fide need” as given by the Apex Court and also by this Court, the need of the landlord is genuine and ‘bona fide’ as held by the courts below.

Urban Building Regulation of Letting, Rent and Eviction) Act, 1972 (U.P.) – Section 21 –Whether the question of comparative hardship in regard to the disputed shop favours the landlord or the tenant? – Since the specific findings has been recorded by the appellate court that the tenant-petitioner has unnecessarily held up the shop in question and therefore, the ground of comparative hardship is also in favour of the landlord and she will suffer irreparably if the shop is not released in her favour.


COURT COPY

IN THE HIGH COURT OF ALLAHABAD
Hon’ble Rajiv Joshi, J.
WRIT – A No. – 2277 of 2021; 11.8.2021
Krishna Kumar Maheshwari v. Asha Gupta

Counsel for Petitioner :- Ayush Khanna Counsel for Respondent :- Satya Dheer Singh Jadaun,Arvind Srivastava,Shreya Gupta

O R D E R

Heard Sri Atul Dayal, learned Senior Advocate assisted by Sri Ayush Khanna, learned counsel for the petitioner and Ms. Shreya Gupta, learned counsel for the respondents.

Aggrieved by the judgment and order dated 4.3.2020 passed by the Additional District Judge Court No.22 Kanpur Nagar dismissing the Rent Appeal No. 96 of 2011 and affirming the order of the Prescribed Authority, Kanpur Nagar dated 31.5.2011 passed in P.A. Case No. 6 of 2010 (Smt . Asha Gutpa Vs. Krishna Kumar Maheshwari), the tenant-petitioner has preferred the present petition under Article 226 of the Constitution.

FACTS

Briefly stated the relevant facts as reflected from the record are that the shop in question at premises no. 53/7 (new no. 53/19) Nayaganj, Kanpur, is under the tenancy of the tenant-petitioner on rent of Rs. 1000 per month. The premises in question is old one and is covered by the provisions of U.P. Urban Building Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the ‘Act’). The respondent-landlord filed an application on 11.6.2010, before the prescribed authority under Section 21 (1) of the Act setting-up the need of her son namely, Arpit Gupta, for doing on-line trading/share business from the tenement in question. The case was registered as P.A. Case No. 6 of 2010. It is stated in the release application that the husband of the landlady was running his business in a rented shop at premises no. 51/46 Nayaganj, Kanpur, who was being harassed by his landlord and besides it, her three sons namely Arpit Gupta, Arjit Gupta and Anubhav Gupta, were also in need of the disputed shop, more particularly, her son -Arpit Gupta was having the need for running the shop for on-line trading/share business and therefore, need of the landlord with regard to disputed tenement is bona fide and genuine. It is further stated that in the application the tenant-petitioner has unnecessarily held up the disputed shop and is not doing any business in the same.

The tenant-petitioner filed a written-statement disputing the need of the landlord by stating that the husband of the landlord-respondent was doing business from shop no. 51/46 along with his youngest son Anubhav Gupta at a very large scale in the name and style of M/s Anubhav Enterprises. Arpit Gupta, is also doing on-line share/trading business from Birhana Road, Kanpur, and Arjit Gupta, was residing with his inlaws at Hatiya and was also doing business. It is further stated by tenant-petitioner that the entire premises up to 4rth Floor was commercialized, the landlord- respondent had let out two shops on the ground floor after vacating the same by the tenant and as such they had the vacated shop in their possession, and the said shop could be used for establishing her son namely Arpit Gupta.

Parties in support of their respective cases exchanged the affidavits.

After hearing the parties and on the basis of the materials available on record, the prescribed authority vide its order dated 31.5.2011 allowed the release application of the landlord and directed the tenant-petitioner to vacate the tenement within three months.

Aggrieved by the order of the prescribed authority, the tenant-petitioner filed an appeal under Section 22 of the Act, registered as Rent Appeal No. 96 of 2011. During the pendency of the appeal before the appellate authority, the tenant-petitioner filed an application for additional evidence under Order 41 Rule 27 C.P.C. bringing on record the report of the Advocate Commissioner dated 10.9.2018 of Injunction Suit No. 1838 of 2018 and also filed another application for additional evidence bringing on record. GST R-No. 9 of financial year 2017-18 to prove that he is carrying business in the name and style of M/s Krishna Kumar & Company from the tenement in question.

The appellant authority vide judgment and order dated 4.3.2020, dismissed the appeal filed by the tenant-petitioner and affirmed the judgment and order dated 31.5.2011, passed by the prescribed authority.

Both the aforesaid orders passed by the authorities below are impugned in the present writ petition.

PETITIONER’S SUBMISSION

Sri Atul Dayal, learned Senior Advocate submits that the finding recorded by both the authorities are perverse in as much as the respondent-landlord has sufficient accommodation to establish her son- Arpit Gupta, and further the husband of landlord was running business from a shop bearing no. 57/48 at Nayaganj, Kanpur and the proceedings against the petitioner were collusive. He further submits that the entire premises is commercial and there are repeated lettings by the landlord.

RESPONDENT’S SUBMISSION

Per contra Ms. Shreya Gupta, learned counsel for the landlord submits that the tenant-petitioner has not disputed the need of landlord for establishing her son Arpit Gupta in the tenanted accommodation in question and the matter is being contested by the tenant only on the ground of availability of alternate shops. According to the learned counsel, as a matter of fact, the tenant-petitioner himself has stated that the offered shop is not suitable for business, from which it stands proved that the said shop is also not suitable for her son to carry on his business. She further submits that both the courts below have concurrently held that the need of the landlord for establishing her son Arpit Gupta is genuine, pressing and bona fide which cannot be interfered under Article 226 of the Constitution of India.

Ms. Shreya Gupta , next submits that the alternate shops were offered to the tenant-petitioner on the third floor of the building in question but the said offer has been refused by the tenant-petitioner and therefore, there is no scope for interference by this Court in the writ jurisdiction. She further submits that the appellate authority returned the finding of fact, that the tenement in question is not being used by the tenantpetitioner for carrying on his business and both the courts below has rightly recorded the findings that respondent-landlord was not in possession of any alternate accommodation. She further submits that the release application was pending since 2010 but during this long period, no efforts were made by the tenant-petitioner to search for alternate accommodation and therefore comparative hardship is also in favour of the respondent-landlord.

I have considered the rival submissions so raised by the learned counsel for the parties and perused the record.

Points for Determination

On the basis of pleadings by the respective parties, the following points arise for consideration by this Court in the present petition:

(1) Whether the need of the landlord for settling her son is bona fide and pressing as per the provisions of Section 21 (1) of the Act?

(2) Whether the question of comparative hardship in regard to the disputed shop favours the landlord or the tenant?

(3) Whether the finding recorded by both the authorities have any scope for judicial review?

Point No.1

The first and foremost question which is to be adjudicated in the present case as to whether the shop in question is bona fide need of landlord as per the provisions under Section 21(1) of U.P. Act no.13 of 1972. For this purpose, it is necessary to have a glance to the provisions under Section 21(1)(a) of the U.P. Act no. XIII of 1972, which read as under:-

Section 21(1)(a) of U.P. Act no. XIII of 1972

“21: Proceedings for release of building under occupation of tenant- (1)The Prescribed Authority may on an application of the landlord in that behalf order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists , namely- (a) that the building is bona fide required either in its existing from or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade, or calling or where the landlord is the trustee of a public charitable trust , for the objects of the trust;”

At this stage, it becomes necessary to consider as to what is the meaning of the word “bona fide need”, while adjudicating and deciding the application for release, moved under Section 21(1)(a) of the U.P. Act No. XIII of 1972.

The word ‘bona fide’ has been interpreted by His Lordship of the Hon’ble Supreme Court in the case of Shiv Sarup Gupta V. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 : 1999 SCFBRC 330, and it has been held :-

“The term bona fide or genuinely refers to a state or mind. Requirement is not mere desire. The degree of intensity contemplated by “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 absence of felt need which is an outcome of sincere,honest desire, in contradistinction with a mere pretense 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 the 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.”

This Court also in the case of Pramod Kumar Vs. VI Additional District Judge, Bijnor and others, 2000(1) ARC 185, has defined ‘bona fide need’ on the basis of decisions of the Hon’ble Supreme Court rendered in Muttu Lal Vs. Radhey Lal, AIR 1974 SC 1596 and Bega Begum Vs. Abdul Ahad Khan, AIR 1979 SC 272 : 1986 SCFBRC 346, as under :-

“The word ‘bona fide’ means genuinely and sincerely i.e. in good faith in contradiction to mala fide. The requirement of an accommodation is not bona fide if it is sought for ulterior purpose but once it is established that the landlord requires the accommodation for the purpose which he alleges there is of ulterior motive to evict the tenant that requirement should be bona fide”

In the same manner the word ‘bona fide’ has been interpreted in the case of Jagdish Chandra Vs. District 8 Judge, Kanpur Nagar and others 2008 2 ARC 756 and 2009 (2) ARC 802 Hariom Vs. Additional District Judge and others. 

Further, the Apex Court in the case of Sarla Ahuja. Vs. United India Insurance Company Ltd.,(1996) 5 SCC 353, held as under :-

“The rent controller should not proceed on the assumption that the landlord’s requirement is not bona fide. When the landlord shows a prima facie case a presumption that the requirement of the landlord is bona fide is liable to be drawn. It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlords, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.” Accordingly, The word ‘bona fide need’ should receive useful meaning rather struck off and should attach a practical meaning granted by realistic of life.

In the present case, the respondent-landlord has clearly established that shop in question is needed by her son to start on-line trading and share business and the need of the landlord is ‘bona fide’ and genuine. It is further evident from the bare reading of written statement of the tenant- petitioner that specifically he has not disputed the need of the landlord to establish her son in the shop in dispute and in view of the above set of facts, as per the interpretation of word “bona fide need” as given by the Apex Court and also by this Court, the need of the landlord is genuine and ‘bona fide’ as held by the courts below.

POINT NO.2

Now coming to the question of comparative hardship of the tenant and landlord, it reflects from the record that no effort has been made by the tenant in order to search any other accommodation. Even the appellate authority has returned the finding of fact to the effect that the tenement in question is not being used by the petitioner-tenant for carrying on his business.

The finding so returned by the appellate authority is as under: –

“पतावली म े पतयथी की ओर से सूची 84 ग से अिभलेख कागज संखया 85 ग/1 व85 ग/2 कािमरशयल टैकस िवभाग उतर पदेश का पपत दािखल है। िजसके अवलोकन से सपष हो रहा है िक अपीलाथी दारा पशनगत भवन सखं या 53/19 मे जो मेससर कृ षण कु मार एणड कमपनी नाम से वयवसाय कर रहा था िदनॉक 20.06.2017 को अपना वयवसाय बनद कर िदया है। कागज संखया -85 ग/5 व 85 ग/6 अिससमेनट वषर 2016-17 िजसकी समािप िदनॉक 30.04.16 ह,ै किमरशयल टैकस िवभाग उतर पदेश मे मेससर कृ षण कु मार एणड कमपनी की ओर से दािखल पपत जो य०ू पी० बटै रलस 2007 के िनयम 44(1) मे जो िववरण भेजा गया है उसमे वैट गुडस तथा नाम वैट गुडस के कालम मे शूनय दिशरत हो रहा ह।ै इसी पकार कागज संखया 85/7, 85 ग/8 अिससमेनट वषर 2016-17 समािप िदनॉक 31 मई 2016, एवं अिससमेनट वषर 2016-17, एवं कागज संखया 85 ग/9 85 ग/10 अिससमेनट वषर 2016-17 वषर समािप 30 जून 2016 तथा 85 ग/11, 85 ग/12 अिससमेनट वषर 2016-17 समाप िदनॉक 31.07.16 एवं 85 ग/13, 85 ग/14 अिससमेनट वषर 16-17 समािप िदनॉक 31.08.16, 85 ग/15 व 85 ग/16 समािप िदनॉक 30.09.16, 85 ग/17 एवं 85 ग/18 समािप िदनॉक 31.10.2016, 85 ग/19 व 85 ग/20 समाप िदनॉक 30.11.16 इसी पकार 85 ग/21 व 85 ग/22 व 85 ग/23, 85 ग/24 तथा 85 ग/25, 85 ग/26 िजसकी समािप िदनॉक कमशः 31.12.16, 31.01.17 एवं 28.02.2017 है मे भी िकसी भी पकार की वयवसाियक वसतुओं का कम िवकय का िववरण नही ह।ै उपोरक सभी म े वैट गुडस व नान वैट गडु स कय िवकय के कालम मे शनू य दिशरत है िजससे सपष है िक पशनगत िकरायेदारी वाली दकु ान मे मेससर कृ षण कु मार एणड कमपनी दारा कोई वयवसाय नही चलाया जा रहा है और िदनॉक 20.06.17 को वयवसाय समाप कर िलया गया ह।ै “

The appellate court has rightly concluded that the respondent-landlord was not in possession of any alternate accommodation, the tenement in question is situated in four storeyed building and as such only ground floor is commercial and rest of the floor are purely residential.

Out of five shops situated on the ground floor of the building, two shops were originally in the tenancy of Rajesh Gupta and one Bhatia respectively, were extremely small admeasuring roughly 2×6 and 2×4 ft. respectively. The shops in the possession of Rajesh Gupta got vacated on 1.12.1999 and was let out to Mangal Chand Gupta in 1999 itself. The other shops in tenancy of Bhatia got vacated in the year 1993 and was let out in the same to one Om Prakash Kesarwani.

Hence both the authorities has rightly concluded that these shops are neither available nor sufficient for satisfying the need of landlord. The shop in question on the ground floor which is ought to be released for fulfilling the need of the landlord by filing present release application. The shop situated in the ground floor which tenancy of Nirmal Surti was sought to be released for fulfilling the need of the son of the landlord Arjit Gupta by filing release application no. 5 of 2010, however, the said application was rejected by the prescribed authority on 12.08.2011 and was confirmed by the appellate authority vide judgment dated 28.08.2018.

The fifth shop on the floor was in the tenancy of one Lala Ram Chandra, the respondent land filed Release Application No.7 of 2010 under Section 21 (1) (A) of the Act for setting up the need of another son Anubhav Gupta. The said release application was also rejected by the prescribed authority but allowed by the appellate authority and said shop ultimatly came into possession of the landlord in the year 2017, since when it is being used by her son Anubhav and husband of the landlord to carry on two separate business from the same shop on account of lack of sufficient commercial accommodation.

On the basis of above facts, both the authorities returned the categorical and concurrent findings of fact to the effect that the rest of the floors of the building were being used either as an advocate’s office or Aadat, which was not for commercial purposes. This fact is additionally born out from the description of tenement situated in the third floor as given in the release application filed against tenant Nandlal.

The findings of the court below that none of the above accommodation got vacated except one in the tenancy of Lala Ram Chandra, the release of shop in tenancy of Lal Ram Chandra is also of no consequence in as much as same got released for fulfilling the need of Anubhav Gupta, another son of the landlord who is now using it to carry on his business therefrom and therefore, both the authorities have rightly concluded that alleged alternate accommodation were either insufficient or not available to the landlord for carrying on his business and that tenement in question is bonfidely required by her son namely Arpit Gupta.

Since the specific findings has been recorded by the appellate court that the tenant-petitioner has unnecessarily held up the shop in question and therefore, the ground of comparative hardship is also in favour of the landlord and she will suffer irreparably if the shop is not released in her favour.

POINT NO.3

Now coming to the question of scope for interference with the concurrent findings recorded by the authorities below, it may be stated at the very outset that in supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority.

This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.

In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 the Court said:

“Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere.”

A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 :

“This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors”.

In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38 the Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227/226 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice.

It is well settled that power under Article 227/226 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers’ Union & Anr.,(1999) 2 SCC 143).

Power under Article 226/227 of the Constitution is not in the nature of power of appellate authority enabling reappreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521).

In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82, the Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.

In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers’ Union (2000) 4 SCC 245, the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere.

In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432, Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction.

In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244, Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227.

Upon analysis of the aforesaid decisions, in the opinion of this Court, there being no perversity or irrationality in the findings recorded by the authorities below, there appears to be no scope for judicial review in the facts and circumstances of the present case.

CONCLUSION

As a result of aforesaid discussion, this Court is of the considered view that no good ground exists warranting interference with the orders impugned in exercise of the writ jurisdiction.

The writ petition accordingly lacks merit and, is dismissed.

No order as to costs.

After the judgment has been delivered, learned counsel for the petitioner-tenant made a prayer that some time may be granted to the tenant to vacate the disputed shop.

Learned counsel for the respondent-landlord has no objection in case the reasonable time is granted to the tenant-petitioner by this Court. He further states that tenant should have paid the damages at the rate of Rs. 10,000/- (Ten Thousands) per month.

Under these circumstances, the tenant is, accordingly, granted time up to 31st December,2021 to hand over the peaceful possession of the disputed shop to the respondent-landlady subject to the tenant for giving an undertaking within two weeks from today before the prescribed authority to the following effect: 1. The tenant shall hand over the peaceful possession of the shop to the landlady on or before 31st December, 2021.

2. The tenant shall pay the damages at the rate of Rs. 10,000/- per month.

3. The tenant shall not induct any other person in the shop.

It is made clear that if the tenant fails to give the undertaking withing aforesaid period or fails to comply with any of the undertaking, it will open to the landlady to get the order enforced.

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