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Saturday, October 1, 2016

the landlord is the sole judge to decide as to how much space is needed for him/her to start or expand any of his/her activity.= the appellant's need for additional space for the expansion of clinic activities for her daughter cannot be said to be unjust or unreasonable in any manner. It is for the reasons that, firstly, the suit shop No.6 is adjacent to Shop No. 7 and secondly, the need for expansion of clinic could be accomplished effectively only with the use of two shops, which are adjacent to each other. It is a well settled principle laid down by this Court in rent matters that the landlord is the sole judge to decide as to how much space is needed for him/her to start or expand any of his/her activity. This principle was overlooked by the High Court while deciding the issue of need. That apart, the High Court should have also seen that the two courts below have recorded a finding that the respondent was having his own shops in the same area where he could shift his existing business activity without suffering any comparative hardship.- In view of foregoing discussion, we are unable to agree with the reasoning and the conclusion arrived at by the High Court. The impugned judgment is, therefore, not legally sustainable and is accordingly set aside. As a result, the order dated 04.03.1999 of Prescribed Authority in U.P.U.B. No. 13/1994 and order dated 24.08.2011 of the Additional District Judge, Aligarh in U.P.U.B. Appeal No. 7/99 are restored. The respondent is, however, granted three months’ time to vacate the suit shop from the date of this order subject to furnishing of the usual undertaking in this Court to vacate the suit premises within 3 months and further, the respondent would in addition to the directions given by the Prescribed Authority also deposit all arrears of rent till date at the same rate at which he had been paying monthly rent to the appellant (if there are arrears) and would also deposit three months’ rent in advance by way of damages for use and occupation as permitted by this Court. Let the undertaking, arrears of rent, damages for three months and compliance of direction to deposit damages by Prescribed Authority and the cost awarded by this Court be deposited within one month from the date of this order.

                                                                  REPORTABLE
                            IN THE SUPREME COURT OF INDIA

                             CIVIL APPELLATE JURISDICTION

                            CIVIL APPEAL No.  9727  OF 2016
                      (ARISING OUT OF SLP (C) No. 16643/2012)
Gulshera Khanam                   …….Appellant(s)


                             VERSUS


Aftab Ahmad                       ……Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    Leave granted.
2)    This appeal is filed  against  the  final  judgment  and  order  dated
17.01.2012 passed by the High Court of Judicature  at   Allahabad  in  Civil
Misc. Writ Petition No. 65612 of 2011  whereby the High  Court  allowed  the
writ petition filed by the respondent-tenant and set aside the  order  dated
04.03.1999 of the Prescribed Authority in U.P.U.B. Case No. 13 of  1994  and
order  dated  24.08.2011  of  the  Additional  District  Judge,  Aligarh  in
U.P.U.B. Appeal No. 07 of 1999.
3)    Facts of the case need mention, in  brief,  infra  to  appreciate  the
controversy involved in the appeal.
4)    The appellant is the landlady of the shop being Shop  No.  6  situated
on the Dodhpur Road, Aligarh, Building No. 4/569B.  The  respondent  is  the
tenant in Shop No. 6 and doing  business  of  selling  Footwear  (shoes  and
sandals) in the name of Khan Brothers on a monthly rent of Rs.100/-.
5)    There are in all 7 shops  in  the  building  in  which  suit  shop  in
situated. Except Shop No.7, all are occupied by different tenants. Shop  No.
7 is in occupation of the appellant wherein her daughter Dr. Naheed  Parveen
is doing medical practice.  Initially,  Shop  No.  7  was  occupied  by  the
husband of the appellant, Dr. Ahsan Ahmed, who was practicing  medicines  in
the said shop and after his death, the said shop remained closed  for  about
two-three years and after that her  daughter  started  practicing  medicines
there.
6)    According to the appellant, Shop No. 7 is about 16.9 ft.  x10  ft.  in
area and is inadequate for running clinic.
7)    On 11.02.1994, the appellant personally requested  the  respondent  to
vacate Shop No. 6 but he did not vacate. Therefore, the appellant  filed  an
application  under  Section  21(1)(a)  of  Uttar  Pradesh  Urban   Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972  (hereinafter  referred
to as “the Act”) in the  Court  of  the  Prescribed  Authority/Civil  Judge,
Senior Division, Aligarh being U.P.U.B. Case No. 13 of 1994 seeking  release
of Shop No. 6 in her favour for her bona fide requirement and  genuine  need
in comparison to the need  of  the  respondent.  It  was  alleged  that  the
appellant’s daughter, who is a doctor and  running  her  private  clinic  in
Shop No. 7 is finding it difficult and inconvenient to run  the  clinic  due
to space constraint in Shop No. 7 and it is for  this  reason  she  requires
adjacent Shop No. 6 so that both Shops, i.e., 6 and  7  could  be  used  for
running the clinic in a comfortable manner. It was  also  alleged  that  the
appellant’s one son has done his MBBS and is doing M.D. He too would do  his
practice in the shop in question. It was alleged  that  there  would  be  no
space constraint once both the Shops (6&7)  are  clubbed  together.  It  was
further alleged that the appellant has no other shop available  except  Shop
No. 6 which is most suitable for expansion of clinic being next to Shop  No.
7. It was also alleged that the respondent is having his own  shops  in  the
same area and hence even if he vacates the shop in question, there  will  be
no hardship to him.
8)    The respondent filed his written statement to the application  denying
the need of the appellant-landlady as bona fide or genuine. Parties  adduced
evidence.
9)    By order  dated  04.03.1999,  the  Prescribed  Authority  allowed  the
application and  directed  the  respondent-tenant  to  vacate  the  shop  in
question within 3 months of the date of the order and  to  give  the  vacant
possession to the appellant-landlady and also pay  by  way  of  damages  two
years’ rent amount within 30 days from the date of the order.  It  was  held
that the appellant’s need for using Shop No. 6 is bona fide and genuine  and
that it is required for expansion of clinic run by the appellant’s  daughter
in Shop No. 7 and her son. It was held  that  the  appellant  has  no  other
suitable shop in city where her daughter/son can run their  clinic.  It  was
also held that the respondent has other shops for running  his  business  in
the same locality and, therefore, there would be no hardship caused  to  the
respondent.
10)   Felt aggrieved by the  said  order,  the  respondent-tenant  filed  an
appeal being U.P.U.B. Appeal No. 7 of 1999  under  Section  22  of  the  Act
before the Additional District Judge, Aligarh. By  order  dated  02.02.2000,
the appellate court allowed  the  appeal  and  set  aside  the  order  dated
04.03.1999 on the ground that the Presiding Officer has no  jurisdiction  to
pass the order.
11)   Against the  said  judgment/order  dated  02.02.2000,  the  appellant-
landlady filed C.M.W.P. No. 10669 of 2000 before the High  Court.  The  High
Court by order dated 18.02.2011 allowed  the  petition  and  set  aside  the
order dated 02.02.2000 and remanded the matter to the  appellate  Court  for
deciding the same on merits in accordance with law.
12)   Thereafter by order dated 24.08.2011, the  appellate  court  dismissed
the appeal (U.P.U.B. Appeal No. 7 of  1999)  of  the  respondent-tenant  and
confirmed the order dated 04.03.1999 passed by the Prescribed Authority.
13)   Feeling aggrieved by  the  said  order,  the  respondent-tenant  filed
C.M.W.P. No. 65612 of 2011 before the High Court.
14)   By impugned judgment dated 17.01.2012,  the  High  Court  allowed  the
writ petition and set aside the order dated  04.03.1999  of  the  Prescribed
Authority  and  order  dated  24.08.2011  dismissing  the  appeal   of   the
respondent-tenant.  The  High  Court  held  that  firstly,  the  appellant’s
daughter- Dr. Naheed Parveen is not a member  of  family  as  defined  under
Section 3(g) of the Act because she is a married  daughter  whereas  Section
3(g)(iii) include only an “unmarried daughter”. Secondly, it was  held  that
for this reason, the appellant could not seek eviction for the need  of  her
married daughter; and lastly, it was held that the appellant’s need  is  not
bona fide.
15)   Against the said  judgment,  the  appellant-landlady  has  filed  this
appeal by way of special leave before this Court.
16)   Heard Mr. Salman Khurshid, learned Senior Counsel, for  the  appellant
and Mr. V.K. Garg, learned senior counsel, for the respondent.
17)   Mr. Salman Khurshid, learned  counsel  for  the  appellant  (landlady)
while assailing the legality and correctness of  the  impugned  judgment  of
the High Court urged three submissions.
18)     His first submission was that  the  High  Court  erred  in  allowing
respondent's writ petition by setting  aside  the  order  of  the  appellate
court and the Prescribed Authority  and  thereby  erred  in  dismissing  the
appellant's eviction petition filed under Section 21 of the Act.
19)   His second submission was that the High Court erred  in  holding  that
the married daughter of landlady does not fall within the definition  of  an
expression "Family" as defined  in  Section  3  (g)  of  the  Act.   Learned
counsel urged that the High Court failed to notice that  the  definition  of
"family" is an inclusive definition and includes therein "any female  having
a legal right  of  residence  in  the  building  (tenanted  accommodation)".
Learned counsel pointed out that since it was  an  admitted  fact  that  the
appellant's husband (Muslim  by  religion)  died  intestate  leaving  behind
daughter-Dr. Naheed Parveen as one of his heirs, she inherited an  undivided
but specific ownership right and interest in the suit building  as  provided
in Mahomedan Law of inheritance. Learned counsel  contended  that  the  word
"female"  used  in  the  definition  of  family  would,  therefore,  include
"daughter" regardless of the fact as  to  whether  she  is  married  or  not
provided she is able to show that she has an interest in the  suit  building
which, in turn,  entitles  her  to  claim  a  right  of  residence  in  such
building. It was urged that  the  daughter  of  the  appellant  did  inherit
interest in the suit building as  one  of  the  co-owners  which,  in  turn,
entitles her to claim a right of residence in the suit  building  by  virtue
of she being a female.
20)   His third submission was that when two courts below, i.e.,  Prescribed
Authority  and  the  first  appellate  court  after  appreciating  oral  and
documentary evidence, held that the appellant's need was  genuine  and  bona
fide and that she has no other suitable shop of her own in  the  city  where
her daughter could  shift  her  clinic  and  lastly,  since  the  respondent
(tenant) is having his more than one alternative suitable shop near  to  the
suit shop, the appellant is entitled  to  claim  the  respondent’s  eviction
from the suit shop,  the  High  Court  while  hearing  writ  petition  under
Article 227 of the Constitution of India had no jurisdiction  to  upset  the
concurrent findings of fact. It was urged  that  these  concurrent  findings
were binding on the High Court. Learned counsel further urged  that  it  was
more so because the findings were neither perverse to  the  extent  that  no
average judicial person could  ever  reach  to  such  conclusion  nor  these
findings were against any provisions of law and  not  against  pleadings  or
evidence.
21)   In reply, learned counsel for the respondent  (tenant)  supported  the
reasoning and the conclusion arrived at by the High  Court  and  urged  that
the impugned judgment does not suffer from any error.
22)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we find force in the submissions  urged  by  learned
counsel for the appellant.
23)   Two questions arises for consideration in this appeal, first,  whether
the High Court was justified in reversing the  concurrent  findings  of  the
two courts below and thereby was justified  in  dismissing  the  appellant's
eviction petition filed against the respondent under Section 21 of  the  Act
by holding that the  appellant's  need  set  up  in  the  petition  for  her
daughter was not bona  fide;  and  second,  whether  the  finding  that  the
appellant's married daughter does not fall within the meaning  of  the  word
"family" as defined under Section 3(g) of the Act and, therefore,  her  need
cannot be considered under Section 21 of the Act for  granting  eviction  of
the tenant is proper or not?
24)   Coming to the second  question  first,  in  our  opinion,  its  answer
depends upon the  proper  interpretation  of  the  definition  of  the  word
"family" as defined in Section 3(g) of the Act. It reads as under:
“3(g) “Family”, in relation to a landlord or tenant of  a  building,  means,
his or her-
(i)   spouse;
male lineal descendants;
such parents, grandparents and any  unmarried  or  widowed  or  divorced  or
judicially separated daughter or daughter of a male  lineal  descendant,  as
may have been normally residing with him or her,

and includes, in relation to a landlord, any female having a legal right  of
residence in that building;”

25)   Perusal of the afore-quoted definition would go to  show  that  family
in relation to landlord or tenant of a building  would  include  (1)  spouse
(2) male lineal descendants (3) such  parents,  grandparents,  unmarried  or
widowed or divorced or judicially separated daughter or daughter of  a  male
lineal  descendant  as  may  have  been  residing  with  the  landlord.  The
definition further says,  "Family” includes in  relation  to  landlord,  any
female having a legal right of residence in that building.
26)   The inclusive part of the definition, which is enacted  only  for  the
benefit of “female” in relation to the landlord, adds one more  category  of
person in addition to those specified in clauses (i) to (iii), namely,  “any
female having a legal right of residence in that building”.
27)    A fortiori, any female, if she is having a legal right  of  residence
in the building, is also included in the definition of “family” in  relation
to landlord regardless of the fact whether she is married or not.  In  other
words, in order to claim the benefit of expression "family", a  female  must
have a "legal right of residence" in the building. Such  female  would  then
be entitled to seek eviction of the tenant from such building for her need.
28)    Coming to the facts of this case, it  is  not  in  dispute  that  Dr.
Ahsan Ahmad was the original owner of the  building  in  question.  He  died
intestate and, therefore, on his death, the appellant,  two  sons  and  four
daughters inherited the estate left by Dr. Ahsan Ahmad, which  included  the
building, in question.
29)   Since Dr. Ahsan Ahmad was Mahomedan, his entire estate  including  the
building in question, devolved on the appellant (wife),  his  two  sons  and
four daughters as per the shares defined in Hanafi Law of  Inheritance.  The
shares of the heirs which are defined in the Table  in  Chapter  VII  titled
"Hanafi Law of Inheritance"  (at page 66-A of Mulla-Principles of  Mahomedan
Law-20th Edition) would show that daughter is also  entitled  to  claim  her
specific share in her father’s estate. The daughter’s share  is  defined  in
column Nos. 2, 3 and 4 at serial number 7, in the table. It reads as under:
|   (1)    |              (2)|        (3)   |        (4)    |
|Sharers   |Normal Share     |Conditions    |This column    |
|          |                 |under which   |sets out-      |
|          |                 |the normal    |(A) Shares of  |
|          |                 |share is      |Sharers Nos.   |
|          |                 |inherited     |3,4,5,8 and 12 |
|          |                 |              |as varied by   |
|          |                 |              |special        |
|          |                 |              |circumstances; |
|          |                 |              |(B) conditions |
|          |                 |              |under which    |
|          |                 |              |sharers Nos.   |
|          |                 |              |1,3,7,8,11 and |
|          |                 |              |12 succeed as  |
|          |                 |              |Residuaries    |
|          |       |         |              |               |
|          |Of one |Of two or|              |               |
|          |       |more     |              |               |
|          |       |collectiv|              |               |
|          |       |ely(b)   |              |               |
|7.        |1/2    |  2/3    |When no son   |[With the son  |
|Daughter  |       |         |              |she becomes a  |
|          |       |         |              |residuary: see |
|          |       |         |              |Tab. Of        |
|          |       |         |              |Res.,No.1]     |

30)   Dr. Naheed Parveen  being  the  daughter,  accordingly,  received  her
share and became co-owner of  the  building  along  with  other  co-sharers.
Being a co-owner, she got a legal right of  residence  in  the  building  as
provided under Section 3(g) of the Act.  In  this  way,  she  fulfilled  the
definition of “family” under Section 3 (g) of the Act.
31)   In the light of foregoing discussion, we are unable to agree with  the
reasoning of the High Court and  while  reversing  the  finding  answer  the
second  question  in  appellant's  favour  and  accordingly  hold  that  the
appellant was  entitled  to  claim  eviction  of  the  respondent  from  the
building in question for the need of her daughter Dr.   Naheed  Parveen  for
running her clinic as the daughter was having a legal right of residence  in
the building in question.
32)   This takes us to examine the first question as  to  whether  the  High
Court was justified in its  writ  jurisdiction  to  reverse  the  concurrent
findings of the two courts below and was, therefore,  justified  in  holding
that the appellant's (landlady) need for expansion  of  clinic  run  by  her
daughter was not bona fide.
33)   The Constitution Bench of this  Court  settled  the  law  relating  to
exercise of jurisdiction by the High Court while deciding revision  in  rent
matters under the Rent Control Act in Hindustan Petroleum  Corpn.  Ltd.  vs.
Dilbahar Singh, (2014) 9 SCC 78,  Justice  R.M.  Lodha,  the  learned  Chief
Justice  speaking for the Bench held in para 43 thus: (SCC pp. 101-102)

“43. We hold, as we must, that none of the above Rent Control Acts  entitles
the High Court to interfere with the findings of fact recorded by the  first
appellate court/first appellate authority because on reappreciation  of  the
evidence,  its  view  is  different  from  the  court/authority  below.  The
consideration  or  examination  of  the  evidence  by  the  High  Court   in
revisional jurisdiction under these  Acts  is  confined  to  find  out  that
finding of facts recorded by the court/authority below is according  to  law
and does not suffer from any error of law. A finding  of  fact  recorded  by
court/authority  below,  if  perverse  or  has  been  arrived   at   without
consideration of the material evidence  or  such  finding  is  based  on  no
evidence or misreading of the evidence or  is  grossly  erroneous  that,  if
allowed to stand, it would result in gross miscarriage of justice,  is  open
to correction because it is not treated as a finding according  to  law.  In
that event, the High Court in exercise of its revisional jurisdiction  under
the above Rent Control Acts shall be entitled  to  set  aside  the  impugned
order as being not legal or proper. The High Court is  entitled  to  satisfy
itself as to the correctness or legality or propriety  of  any  decision  or
order impugned before it as indicated above. However, to satisfy  itself  to
the regularity, correctness, legality or propriety of the impugned  decision
or the order, the High Court shall not exercise its power  as  an  appellate
power to reappreciate or reassess the evidence for  coming  to  a  different
finding on facts. Revisional power is not and cannot  be  equated  with  the
power of reconsideration of all questions  of  fact  as  a  court  of  first
appeal. Where the High Court is required to be satisfied that  the  decision
is according to law, it may examine whether the  order  impugned  before  it
suffers from procedural illegality or irregularity.”

34)   Coming now to the facts of this case, keeping in  view  the  principle
of law laid down in the aforementioned case and on perusal of the  order  of
the Prescribed Authority/Civil Judge and the first appellate court, we  find
that both the courts properly appreciated the facts and evidence adduced  by
the parties and on that basis  recorded  all  necessary  findings  (detailed
above) in favour of the appellant and granted  decree  of  eviction  against
the respondent. This the Prescribed  Authority/Civil  Judge  and  the  first
appellate court could do  in  their  respective  jurisdiction  and,  in  our
opinion, both the courts rightly did it in the facts of this case.
35)   Likewise, when we peruse the impugned judgment, we  find,  as  rightly
urged by the learned counsel for the appellant,   the  High  Court  did  not
keep in mind the aforesaid principle of law laid down  by  the  Constitution
Bench in Hindustan Petroleum Corpn. Ltd. (supra) so also the principle  laid
down by this Court in relation to exercise  of  jurisdiction  under  Article
227 of Constitution of India in the case of Surya Dev Rai  vs.  Ram  Chander
Rai & Ors., (2003) 6 SCC 675 while deciding the writ petition and  proceeded
to decide like the first appellate court. The High Court as  is  clear  from
the judgment probed all factual aspects of the  case,  appreciated  evidence
and then reversed the factual  findings  of  the  appellate  court  and  the
Prescribed Authority. This, in our view, was a jurisdictional  error,  which
the High Court committed while deciding the writ petition. In  other  words,
the High Court, in our view, should have confined its inquiry to examine  as
to whether any jurisdictional error was committed  by  the  first  appellate
court while deciding the first appeal. It was, however, not done.
36)   In our considered opinion, the question in relation to the  bona  fide
need of the appellant's daughter to expand the  activities  of  running  the
clinic was rightly held by the Prescribed Authority and the first  appellate
Court in appellant’s favour by holding the appellant’s need to be bona  fide
and genuine. We find no ground on which the High Court could have upset  the
concurrent finding on this question in its writ jurisdiction  under  Article
227, which is more or less akin  to  revisional  jurisdiction  of  the  High
Court. The High Court also failed to hold that finding  of  the  two  courts
were so  perverse to the extent that any judicial person  could  ever  reach
to such conclusion or that the findings were against any  provision  of  law
or were contrary to evidence adduced etc.
37)   The High Court, in our view, should have seen, as was rightly held  by
the two courts below, that the appellant's daughter  had  been  running  her
medical clinic in shop No. 7 for quite some  time.  This  fact  was  not  in
dispute. Though a feeble attempt was made by the respondent contending  that
after appellant's daughter's marriage, she has started living  in  Moradabad
and, therefore, her need to run the clinic and expand its  activity  is  not
bona fide but this plea did not find favour with  Prescribed  Authority  and
the first appellate Court and, in our view, this being  a  pure  finding  of
fact, was binding on the High Court in its writ jurisdiction.
38)   In our considered opinion, the appellant's need for  additional  space
for the expansion of clinic activities for her daughter cannot  be  said  to
be unjust or unreasonable in  any  manner.  It  is  for  the  reasons  that,
firstly, the suit shop No.6 is adjacent to Shop  No.  7  and  secondly,  the
need for expansion of clinic could be  accomplished  effectively  only  with
the use of two shops, which are  adjacent  to  each  other.  It  is  a  well
settled principle laid down by this Court in rent matters that the  landlord
is the sole judge to decide as to how much space is needed  for  him/her  to
start or expand any of his/her activity. This principle  was  overlooked  by
the High Court while deciding the issue of need. That apart, the High  Court
should have also seen that the two courts  below  have  recorded  a  finding
that the respondent was having his own shops  in  the  same  area  where  he
could  shift  his  existing  business   activity   without   suffering   any
comparative hardship.
39)   In the light of aforementioned factual findings of the  courts  below,
in our view, there was no justification on the part of  the  High  Court  to
have  probed  into  any  factual  issues  again  in  depth  by   undertaking
appreciation of evidence like a  first  appellate  court  and  reversed  the
findings.
40)   In view of foregoing discussion, we  are  unable  to  agree  with  the
reasoning and the conclusion arrived at by  the  High  Court.  The  impugned
judgment is, therefore, not  legally  sustainable  and  is  accordingly  set
aside. As a result, the order dated 04.03.1999 of  Prescribed  Authority  in
U.P.U.B. No. 13/1994 and order dated 24.08.2011 of the  Additional  District
Judge, Aligarh in U.P.U.B. Appeal No. 7/99  are  restored.   The  respondent
is, however, granted three months’ time to vacate the  suit  shop  from  the
date of this order subject to furnishing of the usual  undertaking  in  this
Court to  vacate  the  suit  premises  within  3  months  and  further,  the
respondent would in addition to  the  directions  given  by  the  Prescribed
Authority also deposit all arrears of rent till date at  the  same  rate  at
which he had been paying  monthly  rent  to  the  appellant  (if  there  are
arrears) and would also deposit three months’ rent  in  advance  by  way  of
damages for  use  and  occupation  as  permitted  by  this  Court.  Let  the
undertaking, arrears of rent, damages for three  months  and  compliance  of
direction to deposit damages by Prescribed Authority and  the  cost  awarded
by this Court be deposited within one month from the date of this order.
41)   The appeal is accordingly allowed with cost, which  is  quantified  at
Rs.10000/-, to be paid by the respondent to the appellant.

                     ………...................................J.
                                [J. CHELAMESWAR]


                  …...……..................................J.
                               [ABHAY MANOHAR SAPRE]     New Delhi;
September 27, 2016

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