KRISHNA KUMAR RASTOGIversusSUMITRA DEVI

                    [2014] 9 S.C.R. 423


                KRISHNA KUMAR RASTOGI                             A
                              v..
                       SUMITRA DEVI
           (Civil Appeal Nos.7796-7797 of 2014)
                     AUGUST 20, 2014
                                                                  B
      [SUDHANSU JYOTI MUKHOPADHAYA AND
             PRAFULLA C. PANT, JJ.]

    Rent Control and eviction:
                                                                  c
     Uttar Pradesh Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 - s. 21(1)(a) - Bonafide need -
Application uls. 21(1)(a) by landlord seeking release of shop
on the ground of personal need - Allowed by Prescribed
Authority - Set aside by the appellate court and High Court       0
- Qn appeal, held: On facts, High Court erred in law in
dismissing the petition of the landlord - High Court gave too
much emphasis to the affidavit filed by a witness that the
appellant attempted to sell disputed shop to him - Such
statement cannot be relied upon unless supported with             E
documentary proof - Furthermore, the High Court relied on
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, the need for the landlord
could have been said to be not genuine, but merely for the        F
reason that one of the sons. was running his business in a
rented accommodation, the need of the landlord could not be
doubted - Order of the High COJ.Jrt as also appellate court set
aside, and that of the Prescribed Authority is upheld.
                                                                  G
    The appellant landlord filed an application under
Section 21 (1 )(a) of Uttar Pradesh Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972
against the respondent-tenant for release of the shop on
                          423                                     H
    424        SUPREME COURT REPORTS [2014] 9 S.C.R.


A the ground that he needed the said shop to establish his
  son. The appellant had sent a notice to the respondent
  to vacate the premises occupied by her but the
  respondent did not vacate the shop. The Prescribed
  Authority allowed the application for release of shop in
B his favour. The tenant filed an appeal and the same was
  allowed. The appellant filed Writ Petition before the High
  Court which was dismissed. Hence, the instant appeals.

          Allowing the appeals, the Court

C      HELD: 1.1. In the instant case, on going through the
  papers on record the High Court gave too much
  emphasis to the affidavit filed by the witness that the
  appellant attempted to sell disputed shop to him. The said
  fact was denied by the appellant. Merely for the reason
D that some witness 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
E record to support the bald statement of a witness to
  dislodge the case of bonafide requirement of the shop
  claimed by the appellant for his son who was
  unemployed. [Para 14] [433-C-E]

      1.2. The High Court relied on another fact that elder
F 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
G the instant 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. [Para 15]
H [433-F-G]
    KRISHNA KUMAR RASTOGI v. SUMITRA DEVI                425


     1.3. The High Court erred in law in dismissing the        A
petition of the appellant. The appellate court allowed the
appeal of the tenant against the weight of the evidence
on record. The view taken by the trial court/Prescribed
Authority is-upheld. The orders challenged are set aside.
However, considering the facts and circumstances of the        B
case, the respondent/tenant is allowed to vaciate the
premises by 31st December, 2014 whereafter the
landlord/appellant would be at liberty to get executed the
order passed by the Prescribed Authority/Addi. Civil
Judge. [Para 16) [434-A-C]            ·                        c
     Mohd. Ayub and Another vs Mukesh Chand 2012 (1)
SC~    12:(2012) 2 SCC 155; · Rishi Kumar Go vii vs.
Maqsoodan and Ors 2007 (4) SCR 483:(2007) 4 SCC 465 -
referred to.
                                                               D
                    Case Law Reference :
   2012 (1) SCR 12           Referred to       Para 11
   2007 (4) SCR 483          Referred to       Para 13
                                                               E
    CIVIL APPELLATE JURISDICTION : Civil Appeal
Nos.7796-7797 of 2014.

     From the Judgment and Order dated 12.10.2006 in
CMWP No. 34997/2000 and final order dated 13.02.2012 in
CMRA No. 225618/2006, of the High Court of Judicature at       F
Allahabad.

    Vikas Singh, Nandan K. Jha, Ram Ekbal Roy, Deepeika
Kalia, Kapish Seth, Rameshwar Prasad Goyal for the
Appellant.                                                     G

    RD. Upadhyay, Girdhar G. Upadhyay, J.P. Tripathi for the
Respondent.

    The Judgment of the Court was delivered by
                                                               H
    426        SUPREME COURT REPORTS [2014] 9 S.C.R.


A         PRAFULLA C. PANT, J. 1.1. 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 l'y1isc. Writ Petition No.34997
B of 2oop whereby the writ petttion 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
C (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
D Bazar), Shyohara, District Bijnor, before the Prescribed
  Authority/Addi. 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
E 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,
F and since therespondent did not vacate the shop, the
  application for release of the shop was moved by ·the appellant
  before the Prescribed Authority/Addi. Civil Judge (S.D.),
  Nagina.

       4. The respondent/tenant contested the application for
G release of the accommodation and denied the allegations
  contained in it. It is pleaded by her that stie has three sons and
  four daughters apart from her tiusband 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
H stated by her that the respondent through her son sells shoes
    KRISHNA KUMAR RASTOGI v. SUMITRA DEVI                     427
             [PRAFULLA C. PANT, J.]
in the shop, and does not use the shop as store, as aUeged by         A
the appellant. It is also alleged that the appellant actually wants
enhancement of rent, and the answering resp9ndent 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 Kur:nar vs. Sumitra Devi)       B
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       C
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               D
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   E
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             F
evidence and hearing the parties, the Prescribed Authority
accepted the case of the app.ellantilandlord 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           G
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
Pfescribed Authority/Addi. ·civil Judge(S.D), Nagina. Aggrieved
by the said.order dated 23rd April, 2000, the appellant filed Civil   H
    428          SUPREME COURT REPORTS [2014] 9 S.C.R.


A   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.
8
         9. Before further discussion, we think it just and proper to
    quote the relevant provisions of law under which the release
    application was moved:

c         "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
0         following grounds exists, namely, -

           (a)   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
E                for whose benefit it is held by him, either for
                 residential purposes or for purposes of any
                 profe$.Sion, trade or calling, or where the landlord
                 is the trustee of a public charitable trust, for the
                 objects of the trust;
F
           (b)   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
G                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 perioi::t of three years has elapsed
H                since the date of such purchase and the landlord
KRISHNA KUMAR RASTOGI v. SUMITRA DEVI                   429
         [PRAFULLA C. PANT, J.]
      has given a notice in that behalf to the tenant not       A
      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     8
      (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   C
      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:
                                                                D
      )()(   )()(       )()(             )()(


      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       E;:
      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
                                                                F
      been inserted.

      Explanation - In the case of a residential building:-

      (i) Where the tenant or any l)'lember of his family
      [who has been normally residing with or is wholly         G
      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
                                                                H
    430         SUPREME COURT REPORTS [2014] 9 S.C.R.


A               objection by the tenant against an application under
                this sub-section shall be entertained;

                xx   xx       xxxx
          (4)   An order under [sub-section(!) or sub-section(l-A) or
B               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
c               registered lease before the expiry of such term.

                (5) On an order being made under [sub-section(!),
                or sub-section(l-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:
D
                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
E               to ttie provisions of Section 24, be deemed to
                become again subj~ct to allotment in accordance
                with Chapter Ill.

                (6) On the expiration of a period of thirty days from
                an order under [sub- section(!) or sub-section(l-A)
F
                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
G               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."

H         10. Sub-Rule (2) of Rule 16 of Uttar Pradesh
    KRISHNA KUMAR RASTOGI v. SUMITRA DEVI                       431
             [PRAFULLA C. PANT, J.]
  UrbanBuildings (Regulation of Letting, Rent and Eviction)             A
· Rules,1972 framed under U.P. Act 13of1972 reads as under:

     "16. Application for release on the ground of
     personat.requirement [Sections 21 (1 )(a) and 34(8)]. -

     xx    xx                      xx                                   B

     (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          c
     as the following:-

            (a) 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
                                                                        0
            in that building, the less the justification for allowing
            the application;

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

            (c) 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          F
            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 qondition where the landlord has
            available with him other accommodation (whether             G
            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;
                                                                        H
    432         SUPREME COURT REPORTS [2014] 9 S.C.R.


A                (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
B                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)
c   2 sec 155, while interpreting the above provisions oflaw, 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
D         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,
E         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:
F
          "1 i 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".
G
         13. In Rishi Kumar Govil vs. Maqsoodan and Ors (2007)
    4· sec 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 &
H         Co. (2000) 1 SCC 679 : AIR ·2000 SC 534, it was held
    KRISHNA KUMAR RASTOGI v. SUMITRA DEVI                    433
             [PRAFULLA C. PANT, J.]
    .that it is the choice of the landlord to choose the place for   A
     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      B
     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
                                                                     c
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          D
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         E
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      F
fact that elder son o~ 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 land!ord is not genuine, but in the present case if one of   G
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           H
    434          SUPREME COURT REPORTS [2014] 9 S.C.R.


A view that the High Court has errE::d 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
B set aside the orders challenged before us. However,
  considering the facts and circumstances of the case, we allow
  the respondent I 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
c passed by the Prescribed Authority/Addi. Civil Judge (S.D),
  Nagina. However, there is no order as to costs.
    Nidhi Jain                                        Appeals allowed.