advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Monday, September 1, 2014

Rent control case - Eviction case - Landlord - tenant - BONA FIDE OCCUPATION for son - trial court allowed the petition - High court reversed the same - Apex court held that we find that the High Court has given too much emphasis to the affidavit filed by the witness Vijay Pratap Singh that the appellant attempted to sell disputed shop to him. It is relevant to mention here that the said fact was denied by the appellant. In our opinion, merely for the reason that some witness has stated that the landlord attempted to sell the property his statement cannot be said to be reliable, as has been believed by the High Court or the Appellate Court, unless such fact is supported with documentary proof. There appears no document on record to support the bald statement of the witness Vijay Kumar Singh to dislodge the case of bonafide requirement of the shop claimed by the appellant for his son who was unemployed. Another fact relied by the High Court pertains to the fact that elder son of the appellant was running a business as a tenant in a shop opposite to the disputed shop. Had it been found that the son for whom the landlord needed the shop had already got his own shop, it could have been said that the need for the landlord is not genuine, but in the present case if one of the sons was running his business that too in a rented accommodation, it cannot be said that the need of the landlord was not bonafide. The sons of the appellant are not supposed to starve on street till the shop is actually vacated for them = CIVIL APPEAL NOs.7796-7797 of 2014 (Arising out of S.L.P(c) Nos.34694-34695 of 2013) KRISHNA KUMAR RASTOGI ….APPELLANT VERSUS SUMITRA DEVI ….RESPONDENT = 2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41837

   Rent control case - Eviction case - Landlord - tenant - BONA FIDE OCCUPATION for son - trial court allowed the petition - High court reversed the same - Apex court held that  we  find
that the High Court has given too much emphasis to the  affidavit  filed  by the witness  Vijay  Pratap  Singh  that  the  appellant  attempted  to  sell disputed shop to him.  It is relevant to mention here  that  the  said  fact was denied by the appellant. In our opinion, merely  for  the  reason  that some witness has stated that the landlord attempted  to  sell  the  property his statement cannot be said to be reliable, as has  been  believed  by  the High Court or the Appellate  Court,  unless  such  fact  is  supported  with documentary proof. There appears no document on record to support the  bald statement of the witness Vijay Kumar Singh to dislodge the case of  bonafide requirement of the shop claimed  by  the  appellant  for  his  son  who  was unemployed.   Another fact relied by the High Court pertains to  the  fact  that elder son of the appellant was running a business as  a  tenant  in  a  shop opposite to the disputed shop.  Had it been found that the son for whom  the landlord needed the shop had already got his own shop, it  could  have  been said that the need for the landlord is not genuine, but in the present  case if one  of  the  sons  was  running  his  business that  too  in  a  rented accommodation, it cannot be said that the  need  of  the  landlord  was  not bonafide.  The sons of the appellant are not supposed to  starve  on  street till the shop is actually vacated for them =

 In Mohd. Ayub and Another vs Mukesh Chand (2012)  2  SCC  155,  while
interpreting the above provisions of law, this Court has  observed  in  para
15 as under:
“ 15. It is well settled the landlord’s  requirement  need  not  be  a  dire
necessity.  The  court  cannot  direct  the  landlord  to  do  a  particular
business or imagine that  he  could  profitably  do  a  particular  business
rather than the business he proposes to start.  It was wrong on the part  of
the District Court to hold that the appellants’ case that  their  sons  want
to start the general merchant  business  is  a  pretence  because  they  are
dealing in eggs ……………Similarly,  length of tenancy of the respondent in  the
circumstances of the case ought not to have weighed with the courts  below.”


12.   In para 17 of the case  of  Ayub  Khan  (supra),  this  Court  further
observed:

 “17. It is also important to note that there is nothing on record  to  show
that during the pendency of this litigation the respondent made any  genuine
efforts to find out any alternative accommodation”.


13.   In Rishi Kumar Govil vs. Maqsoodan and Ors (2007) 4 SCC  465,  on  the
plea and evidence relating to bona fide need  of  landlord,  this  Court  in
para 19 observed as under:

“19. In Ragavendra Kumar v. Firm Prem Machinery & Co. (2000)  1  SCC  679  :
AIR 2000 SC 534,  it was held that it is  the  choice  of  the  landlord  to
choose the place for the business which is most suitable for  him.   He  has
complete freedom in the  matter.   In  Gaya  Prasad  v.  Pradeep  Srivastava
(2001) 2 SCC 604: AIR 2001 SC  803,  it  was  held  that  the  need  of  the
landlord is to be seen on the date of application for release.   In  Prativa
Devi vs T.V. Krishnan (1996) 5 SCC 353 it was held that the landlord is  the
best judge of his requirement and courts have  no  concern  to  dictate  the
landlord as to how and in what manner he should live.”

14.    In the present case, on going through the papers on  record  we  find
that the High Court has given too much emphasis to the  affidavit  filed  by
the witness  Vijay  Pratap  Singh  that  the  appellant  attempted  to  sell
disputed shop to him.  It is relevant to mention here  that  the  said  fact
was denied by the appellant.  In our opinion, merely  for  the  reason  that
some witness has stated that the landlord attempted  to  sell  the  property
his statement cannot be said to be reliable, as has  been  believed  by  the
High Court or the Appellate  Court,  unless  such  fact  is  supported  with
documentary proof.  There appears no document on record to support the  bald
statement of the witness Vijay Kumar Singh to dislodge the case of  bonafide
requirement of the shop claimed  by  the  appellant  for  his  son  who  was
unemployed.
  15.     Another fact relied by the High Court pertains to  the  fact  that
elder son of the appellant was running a business as  a  tenant  in  a  shop
opposite to the disputed shop.  Had it been found that the son for whom  the
landlord needed the shop had already got his own shop, it  could  have  been
said that the need for the landlord is not genuine, but in the present  case
if one  of  the  sons  was  running  his  business  that  too  in  a  rented
accommodation, it cannot be said that the  need  of  the  landlord  was  not
bonafide.  The sons of the appellant are not supposed to  starve  on  street
till the shop is actually vacated for them.
16.      For the reasons as discussed above, we are of  the view  that   the
High Court has erred  in law in dismissing  the petition of  the  appellant.
 We further  find  that the Appellate Court  has   allowed   the  appeal  of
the tenant against the weight of the evidence  on  record.   We  concur  the
view taken by the trial court /Prescribed Authority. Accordingly,  we  allow
these  appeals  and set aside the orders  challenged   before  us.  However,
considering the facts  and   circumstances   of  the  case,   we  allow  the
respondent / tenant  to vacate the   premises   by    31st  December,
2014   whereafter   the landlord/appellant shall be at liberty to get executed the order dated  21st
September, 1999  passed  by  the   Prescribed  Authority/Addl.  Civil  Judge
(S.D),    Nagina.      However,   there   is   no   order   as   to   costs.
    

2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41837

   
                                      REPORTABLE



            IN THE SUPREME COURT OF INDIA

                    CIVIL APPELLATE JURISDICTION


                   CIVIL  APPEAL  NOs.7796-7797  of  2014
            (Arising out of S.L.P(c) Nos.34694-34695 of 2013)



         KRISHNA KUMAR RASTOGI          ….APPELLANT


                             VERSUS

       SUMITRA DEVI                      ….RESPONDENT




                             J U D G M E N T



      PRAFULLA C. PANT, J.


 1.         Leave granted.

2.         These appeals are directed against the judgment and  order  dated
12th October, 2006 passed by the High Court of judicature  at  Allahabad  in
Civil Misc. Writ Petition No.34997 of 2000 whereby the writ  petition  filed
by the landlord has been dismissed, and the order dated 13th February,  2012
passed  on  Review  Application  No.225618  of  2006,   whereby   the   said
application has also been rejected.

3.     Brief facts of the case are that  the  present  appellant  (landlord)
filed  an  application  under  Section  21(1)(a)  of   Uttar  Pradesh  Urban
Buildings (Regulation of Letting, Rent and Eviction) Act, 1972  (hereinafter
referred as U.P. Act No.13 of 1972)  against  the  respondent  Sumitra  Devi
(tenant)  for release of the shop in question  situated  in  Shivaji  Market
(Chhota  Bazar),  Shyohara,   District   Bijnor,   before   the   Prescribed
Authority/Addl. Civil Judge(Senior Division),  Nagina.   It  is  pleaded  on
behalf of the appellant that the respondent was tenant of the appellant   in
the shop on rent @ Rs.125/- per month.  The appellant further  pleaded  that
he needed the shop in question to  establish  his  son  Amit  Kumar  in  the
business by opening a General Merchant Shop in it.  It is  also  alleged  by
the appellant that vide notice dated 11th March, 1985, the  appellant  asked
the respondent to vacate the premises  occupied  by  her  as  the  same  was
required by the landlord/appellant as above, and since  the  respondent  did
not vacate the shop, the application for release of the shop  was  moved  by
the appellant before the  Prescribed  Authority/Addl.  Civil  Judge  (S.D.),
Nagina.


 4.        The respondent/tenant contested the application  for  release  of
the accommodation and  denied  the  allegations  contained  in  it.   It  is
pleaded by her that she has three sons and four  daughters  apart  from  her
husband in the family, and her hardship is more than that of the  appellant.
 It is further stated by her that the need of the appellant is not  genuine.
 It is further stated by her that  the  respondent  through  her  son  sells
shoes in the shop, and does not use the shop as store,  as  alleged  by  the
appellant.   It  is  also  alleged  that  the   appellant   actually   wants
enhancement of rent, and the answering respondent is ready to  pay  Rs.300/-
per month instead of Rs.125/- per month as rent.  It is also pointed out  by
the respondent in her pleading that earlier suit No. 198  of  1980  (Krishna
Kumar vs. Sumitra Devi) was instituted by the appellant for vacation of  the
shop, and when he failed in it, the present proceeding has been drawn.


5.     By way of amendment on 11th August, 1995 respondent further took  the
plea that during the pendency of the proceedings,  Jayanti  Prasad,  brother
of the appellant  had filed  proceedings  No.6  of  1987  against  Chaturpal
Gupta – husband of the respondent on personal ground of necessity  and  said
application has been allowed against which the appeal is  pending.   Lastly,
it is pleaded by the respondent that the respondent has attempted to  search
another shop but the same was not available near the disputed shop.

6.    In reply to the amended plea of the respondent, the appellant  pleaded
that even if the application of his brother Jayanti Prasad  is  allowed,  it
does not fulfill the necessity of the appellant and his son for the shop  in
question.  It is also pleaded by the appellant that actually husband of  the
respondent is running the business in another shop  of  shoes  belonging  to
one of his relatives.


 7.       The affidavits were exchanged and  after  recording  evidence  and
hearing the parties,  the Prescribed Authority  accepted  the  case  of  the
appellant/landlord and allowed the application for release of  shop  in  his
favour vide order dated  21st  September,  1999  against  which  the  tenant
(present respondent) Sumitra Devi filed Rent Control Appeal No.  9  of  1999
before Additional District Judge, Bijnor, and said  Authority after  hearing
the parties vide its order dated 23rd April, 2000  allowed  the  appeal  and
set  aside  the  order  passed  by  the  Prescribed  Authority/Addl.   Civil
Judge(S.D), Nagina.  Aggrieved by the said order  dated  23rd  April,  2000,
the appellant filed Civil Misc. Writ Petition No. 34997 of 2000  before  the
High Court of judicature at Allahabad, and  said  petition,   after  hearing
the parties, was dismissed.  Hence these appeals are before us.


8.     We have heard learned counsel for the parties  and  considered  their
submissions.


9.      Before further discussion, we think it just and proper to quote  the
relevant provisions of law under which the release application was moved:


“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, –


that the building is bona fide required  either  in  its  existing  form  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;


 that the building is  in  a  dilapidated  condition  and  is  required  for
purposes of demolition and new construction:



Provided that where the building was in the occupation  of  a  tenant  since
before its purchase by the landlord, such  purchase  being  made  after  the
commencement of this  Act,  no  application  shall  be  entertained  on  the
grounds, mentioned in clause  (a),  unless  a  period  of  three  years  has
elapsed since the date of such purchase and the landlord has given a  notice
in that  behalf  to  the  tenant  not  less  than  six  months  before  such
application, and such notice may be given even before the expiration of  the
aforesaid period of three years:


Provided further that if  any  application  under  clause  (a)  is  made  in
respect of [ any building let out exclusively for non-residential  purposes]
(subs by U.P. Act 28 of 1976 (w.e.f.5.7.1976)  )  the  prescribed  authority
while making the order of eviction shall,  after  considering  all  relevant
facts of the case, award against the landlord to the tenant [an  amount  not
exceeding two years’ rent ] (subs by U.P. Act 28 of 1976 (w.e.f.5.7.1976)  )
as compensation and may, subject to rules, impose such other  conditions  as
it thinks fit:


            xx   xx          xx   xx


Provided also that the prescribed authority shall, except in cases  provided
for in the Explanation, take into account the likely hardship to the  tenant
from the grant of the application as against  the  likely  hardship  to  the
landlord from the refusal of the application  and  for  that  purpose  shall
have regard to such factors as may be prescribed]     Ins. by  U.P.  Act  28
of 1976 and shall be deemed always to have been inserted.


Explanation – In the case of a residential building:-

Where the tenant or  any  member  of  his  family  [who  has  been  normally
residing with or is wholly dependant on him]  has  built  or  has  otherwise
acquired  in  a  vacant  state  or  has  got  vacated  after  acquisition  a
residential building in the same city, municipality, notified area  or  town
area, no objection by the tenant against  an  application  under  this  sub-
section shall be entertained;

xx    xx         xx    xx


(4)     An order under [sub-section(I) or sub-section(I-A)  or  sub  section
(2)], may be made notwithstanding that the tenancy has not been determined:

Provided that no such order shall be made in the case of a  tenancy  created
for a fixed term by a registered lease before the expiry of such term.

  On an order being made under [sub-section(I), or sub-section(I-A)  or  sub
section (2)], the building or part or appurtenant land, as the case may  be,
shall stand released in favour of the landlord:

Provided that on the occurrence of any of  the  circumstances  mentioned  in
Section 24, any building or part thereof (but not  appurtenant  land  alone)
released as above, shall, without prejudice to  the  provisions  of  Section
24, be deemed to become  again  subject  to  allotment  in  accordance  with
Chapter III.

 On the expiration of a period of thirty days  from  an  order  under  [sub-
section(I) or sub-section(I-A) or sub  section  (2)],  the  tenancy  of  the
tenant shall stand determined in its entirety or, as the  case  may  be,  in
respect of any part of appurtenant land released in favour of the  landlord,
and in the latter case, the rent payable for the remainder of  the  building
under tenancy shall be such as may be agreed upon between  the  parties  and
in the absence of such agreement as may be determined under Section 8.”

10.  Sub-Rule (2) of Rule 16 of Uttar Pradesh  Urban  Buildings  (Regulation
of Letting, Rent and Eviction) Rules, 1972 framed under U.P. Act 13 of  1972
reads as under:

“16.  Application  for  release  on  the  ground  of  personal   requirement
[Sections 21(1)(a) and 34(8)]. –

            xx   xx    xx


(2)    While considering an application for release under clause (a) of sub-
section(1) of Section 21 in respect of a building let out  for  purposes  of
any business, the prescribed authority shall also have regard to such  facts
as the following:-

 The greater the period  since  when  the  tenant  opposite  party,  or  the
original tenant whose heir the opposite party is, has been carrying  on  his
business in that building, the  less  the  justification  for  allowing  the
application;

 where the tenant has available with him suitable accommodation to which  he
can shift his business without  substantial  loss  there  shall  be  greater
justification for allowing the application;



 the greater the existing business of the landlord’s  own,  apart  from  the
business proposed to be  set  up  in  the  leased  premises,  the  less  the
justification for allowing the application, and even if  an  application  is
allowed in such a case, the prescribed authority may on the  application  of
the tenant impose the condition where the landlord has  available  with  him
other accommodation (whether subject  to  the  Act  or  not)  which  is  not
suitable for his own proposed business but may  serve  the  purpose  of  the
tenant, that the landlord shall let out that accommodation to the tenant  on
a fair rent to be fixed by the prescribed authority;


(d)  where  a  son  or  unmarried  or  widowed  or  divorced  or  judicially
separated daughter or daughter of a male lineal descendant of  the  landlord
has, after the building  was  originally  let  out,  completed  his  or  her
technical education and is not employed in Government service, and wants  to
engage  in  self-employment,  his  or  her   need   shall   be   given   due
consideration.”

11.    In Mohd. Ayub and Another vs Mukesh Chand (2012)  2  SCC  155,  while
interpreting the above provisions of law, this Court has  observed  in  para
15 as under:
“ 15. It is well settled the landlord’s  requirement  need  not  be  a  dire
necessity.  The  court  cannot  direct  the  landlord  to  do  a  particular
business or imagine that  he  could  profitably  do  a  particular  business
rather than the business he proposes to start.  It was wrong on the part  of
the District Court to hold that the appellants’ case that  their  sons  want
to start the general merchant  business  is  a  pretence  because  they  are
dealing in eggs ……………Similarly,  length of tenancy of the respondent in  the
circumstances of the case ought not to have weighed with the courts  below.”


12.   In para 17 of the case  of  Ayub  Khan  (supra),  this  Court  further
observed:

 “17. It is also important to note that there is nothing on record  to  show
that during the pendency of this litigation the respondent made any  genuine
efforts to find out any alternative accommodation”.


13.   In Rishi Kumar Govil vs. Maqsoodan and Ors (2007) 4 SCC  465,  on  the
plea and evidence relating to bona fide need  of  landlord,  this  Court  in
para 19 observed as under:

“19. In Ragavendra Kumar v. Firm Prem Machinery & Co. (2000)  1  SCC  679  :
AIR 2000 SC 534,  it was held that it is  the  choice  of  the  landlord  to
choose the place for the business which is most suitable for  him.   He  has
complete freedom in the  matter.   In  Gaya  Prasad  v.  Pradeep  Srivastava
(2001) 2 SCC 604: AIR 2001 SC  803,  it  was  held  that  the  need  of  the
landlord is to be seen on the date of application for release.   In  Prativa
Devi vs T.V. Krishnan (1996) 5 SCC 353 it was held that the landlord is  the
best judge of his requirement and courts have  no  concern  to  dictate  the
landlord as to how and in what manner he should live.”

14.    In the present case, on going through the papers on  record  we  find
that the High Court has given too much emphasis to the  affidavit  filed  by
the witness  Vijay  Pratap  Singh  that  the  appellant  attempted  to  sell
disputed shop to him.  It is relevant to mention here  that  the  said  fact
was denied by the appellant.  In our opinion, merely  for  the  reason  that
some witness has stated that the landlord attempted  to  sell  the  property
his statement cannot be said to be reliable, as has  been  believed  by  the
High Court or the Appellate  Court,  unless  such  fact  is  supported  with
documentary proof.  There appears no document on record to support the  bald
statement of the witness Vijay Kumar Singh to dislodge the case of  bonafide
requirement of the shop claimed  by  the  appellant  for  his  son  who  was
unemployed.
  15.     Another fact relied by the High Court pertains to  the  fact  that
elder son of the appellant was running a business as  a  tenant  in  a  shop
opposite to the disputed shop.  Had it been found that the son for whom  the
landlord needed the shop had already got his own shop, it  could  have  been
said that the need for the landlord is not genuine, but in the present  case
if one  of  the  sons  was  running  his  business  that  too  in  a  rented
accommodation, it cannot be said that the  need  of  the  landlord  was  not
bonafide.  The sons of the appellant are not supposed to  starve  on  street
till the shop is actually vacated for them.
16.      For the reasons as discussed above, we are of  the view  that   the
High Court has erred  in law in dismissing  the petition of  the  appellant.
 We further  find  that the Appellate Court  has   allowed   the  appeal  of
the tenant against the weight of the evidence  on  record.   We  concur  the
view taken by the trial court /Prescribed Authority. Accordingly,  we  allow
these  appeals  and set aside the orders  challenged   before  us.  However,
considering the facts  and   circumstances   of  the  case,   we  allow  the
respondent / tenant  to vacate the   premises   by    31st  December,
2014   whereafter   the landlord/appellant shall be at liberty to get executed the order dated  21st
September, 1999  passed  by  the   Prescribed  Authority/Addl.  Civil  Judge
(S.D),    Nagina.      However,   there   is   no   order   as   to   costs.


                             ………..………………,,,,,………….……J.
                             (SUDHANSU JYOTI MUKHOPADHAYA)



                       …………………………………………..J
                       (PRAFULLA  C. PANT)
New Delhi
August   20, 2014

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.