MOHD. AYUB & ANR.versusMUKESH CHAND

                          (2012] 1 S.C.R. 12


A                         MOHD. AYUB & ANR.
                                   v.
                            MUKESH CHAND
                  (Ci1,1il Appeal No. 4495 of 2006)
                         JANUARY 05, 2012
B
     [AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]

        Uttar Pradesh Urban Buildings (Regulation of Letting,
  Rent and Eviction) Act, 1972: s.21 - Eviction application -
C Bonafide need - Case of landlord that he required suit
  premises for his unemployed sons for running business and
  for his married son for residence ar.d that landlord's family
  comprised of 13 members and needed space as they were
  living in congestion in three rooms - Prescribed Authority
D dismissed the eviction application on the ground that the
  landlord and his family were financially sound and other
  properties were available to them whereas except the tenanted
  premises, the tenant did not have any place for residence and
  business and if evicted tenant would experience more
E difficulty - First appellate authority upheld the said order - High
  court partly allowed the appeal of landlord holding that the
  requirement of landlord was bonafide, however without going
  into aspect of comparative hardship it directed that only one
  room out of four rooms be handed over to the landlord - On
F appeal, held: There was nothing to suggest that the landlord's
  business was more flourishing than the business which he
  proposed to start in the tenanted premises - All his sons were
  educated but unemployed - They wanted to start business in
  the tenanted premises - In all, there were thirteen members
G in the landlord's family and they were living in three rooms
  and one verandah with great difficulty - As against that the
  tenant's family consisted of four persons and there were four
  rooms in his possession - The courts below were swayed by
  the fact that the financial position of the landlord was better
H                                  12
          MOHD. AYUB & ANR. v. MUKESH CHAND                 13


     than the tenant and erroneously observed that the landlord A
     could buy another building and start business - Perverse
     findings of the courts below on the aspect of comparative
     hardship set aside - The hardship landlord would suffer by not
     occupying their own premises would be far greater than the
     hardship the tenant would suffer by having to move out to B
     another place - The impugned order is set aside to the extent
     it permits the tenant to retain possession of three rooms out
     of four rooms in his occupation - Tenant granted six months
     time to vacate the premises in question - U.P. Urban
     Buildings (Regulation of Letting, Rent and Eviction) Rules, C
     1972 - r.16(2) - Rent control and eviction .
..         The landlord-appellants case was that they
     purchased the suit premises in which the respondent
     was the tenant under the previous owner. The
     respondent continued tj remain in occupation of the two D
     shops facing the road and the two rooms situated at the
     rear of the said shops @ Rs.35 per month. The appellants
     filed suit for eviction under Section 21 of the Uttar
     Pradesh Urban Buildings (Regulation of Letting, Rent and
     Eviction) Act, 1972 on the ground of bonafide E
     requirement. The case of appellants was that the first
     appellant was carrying on business in three small stalls
     situated in a shop of the cantonment council whose rent
     kept on increasing. His three sons aged 23, 28 and 19
     years were unemployed. Two sons wanted to start F
     general merchant business in one shop and the third son
     wanted to start wholesale egg business in the other shop.
     The appellants' family consisted of 13 members. One son
     was married having three children and the two other sons
     were of a marriageable age. The married son wanted to G
     live in the room behind the shop. The appellants' family
     was living in three rooms and a verandah with great
     difficulty. The defence of the respondent-tenant was that
     he was conducting photography business from the said
     shops for many years; that he was enjoying goodwill in H
    14       SUPREME COURT REPORTS            (2012] 1 S.C.R.


A the area; and that appellants were financially well off as
  compared to him and owned other properties and that
  greater hardship would be caused to the respondent if
  the decree of eviction was passed.

B       The Prescribed Authority dismissed the eviction
    application on the ground that the appellants were
    financially sound and other properties were available to
    them whereas except the suit shops the respondent did
    not have any place for residence and business and, if
    evicted from the shops in his occupation, he would
c   experience more difficulty.
                                                                o,.;
       The first appellate Court dismissed the appeal of the
  landlord. The High Court held that the landlord cannot be
  dictated by the tenant what business his sons should do
D and the observations made by the courts below to that
  effect and the findings reached by the courts below on
  bona fide requirement of the landlord were perverse;
  however, without going into the aspect of comparative
  hardship, it directed that only one room out of the four
E rooms should be handed over to the appellants. The
  instant appeal was filed challenging the order of the High
  Court.
         Disposing of the appeal, the Court
F      HELD: 1.1. The respondent had not assailed the High
  Court's finding that the appellants' requirement was bona
  fide. However, the High Court erroneously held that
  greater comparative hardship would be caused to the
  respondent if decree of eviction is passed was correct so
G far as two rooms occupied by him for residence and one
  room in which he was running a shop was concerned.
  The High Court observed that no hardship would be
  caused to the respondent if one room was directed to be
  handed over to the appellants because it was used as a
H
     MOHD. AYUB & ANR. v. MUKESH CHAND                   15

passage by the respondent. Surprisingly, the High Court        A
did not give any reasons why only partial relief was being
granted to the appellants. In fact, it did not discuss the
issue of comparative hardship at all. Section 21 (1 )(a) of
the U.P. Act provides for eviction of a tenant on the
ground of bona fide requirement of the landlord. The           B
fourth proviso thereof states that the Prescribed Authority
shall 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      C
may be prescribed. Rule 16(2) of U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Rules, 1972
states the factors which Prescribed Authority has to
consider while dealing with an application for release
under clause (a) of sub-section (1) of Section 21 of the
U.P. Act. Rule 16 (2) refers to building let out for purpose   D
of any business and the facts which have to be taken into
consideration are: (a) length of tenancy of the tenant; (b)
availability of suitable accommodation for tenant; (c)
whether the landlords existing business is more
flourishing than that which is proposed to be set up by        E
him in the leased premises and (d) need of self-
employment of a son or married or unmarried or widowed
or divorced or judicially separated daughter or daughter
or a male lineal descendant of the landlord who has
completed his or her technical education and who is not        F
employed in government service. [Paras 9-11] [21-A-H; 22-
A]
    Raghunath G. Panha/e (Dead) by Lrs. v. Chaganlal
Sundarji & Co. (1999) 8 SCC 1 : 1999(3) Suppl. SCR 629;        G
Bhimanagouda Basanagouda Patil v. Mohd. Gudusaheb
(2003) 3 sec 101 - relied on.
    1.2. The first appellant carried on his business from
three small stalls of a shop of the Cantonment Council
whose rent kept on increasing. There was nothing on            H
    16      SUPREME COURT REPORTS             (2012] 1 S.C.R.


A record to suggest that the appellants' present business
  was more flourishing than the business which they
  proposed to start in the leased premises. All the three
  sons of the appellants were educated but unemployed.
  They wanted to start business in the premises in
B occupation of the respondent. One of them was married
  and had three children. The other three were of a
  marriageable age. In all, there were thirteen members in
  the appellants' family and they were living in three rooms
  and one verandah with great difficulty. As against that the
C respondent's family consisted of four persons and there
  were four rooms in his possession. It was observed by
  the courts below that the appellants owned other
  premises. However, details of those premises were not
  on record. The High Court rightly noted that this bald
  assertion was based on conjectures. It is well settled the
D 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
E hold that the appellants' case that his sons. wanted to
  start the general merchant business was a pretence
  because they were dealing in eggs and it was not
  uncommon for a Muslim family to do the business of non-
  vegetarian food. It is for the landlord to decide which
F business he wants to do. The Court cannot advise him.
  Similarly, length of tenancy of the respondent in the
  circumstances of the case ought not to have weighed
  with the courts below. [Para 13] [23-B-H; 24-A]

G       Ganga Devi v. District Judge,· Nainital & Ors. (2008) 7
    SCC 770:2008 (8) SCR 538; Bhagwan Das v. Jiley Kumar
    (1991) suppl. (2)SCC 300; Rishi Kumar Govil v. Maqsoodan
    (2007) 4 SCC 465: 2007(4) SCR 483 - relied on.

         1.3. The courts below were swayed by the fact that
H
      MOHD. AYUB & ANR. v. MUKESH CHAND                  17

the financial position of the appellants was better than the A
respondent. The ':>istrict Court erroneously observed that
the appellants can buy another building and start
business. It also observed that the appellants had
purchased the building to make profit. There was nothing
on record to show that during the pendency of this B
litigation the respondent made any genuine efforts to find
out any alternative accommodation. The perverse
findings of the courts below on the aspect of comparative
hardship must be set aside. The High Court rightly found
the need of the appellants to be bona fide. It however, fell c
into an error in directing the respondent to handover only
one room to the appellants. The hardship appellants
would suffer by not occupying their own premises would
be far grater than the hardship the respondent would
suffer by having to move out to another place. No doubt, D
whenever the tenant is asked to move out of the premises
some hardship is inherent. The respondent is in
occupation of the premises for a long time. But in the
facts of this case that circumstance cannot be the sole
determinative factor. That hardship can be mitigated by E
granting him longer period to move out of the premises
in his occupation so that in the meantime he can make
alternative arrangement. The impugned order is set aside
to the extent it permits the respondent to retain
possessio'n of three rooms out of four rooms in his
occupation. The respondent is directed to handover F
possession of all the rooms in his occupation to the
appellants. He is granted six months time to vacate the
premises in question on the condition that he files usual
undertaking before the Registr}t of this Court within eight
weeks from today. [Paras 14-17) [24-8-G-H; 25-A-E]           G
                    Case Law Reference:
    1999 (3) Suppl. SCR 629 referred to         Para 7
    (2003) 3 sec 101           referred to      Para 7        H
                                                                        •




    18       SUPREME COURT REPORTS                 [2012] 1 S.C.R.

A        2008 (8) SCR 538              referred to        Para 7
         (1991) suppl. (2) sec 300 referred to            Para 12
         2007 (4) SCR 483              referred to        Para 12
B       CIVIL APPELLATE JURISDICTION: Civil Appeal No.
    4495 of 2006.

        From the Judgment & Order dated 12.9.2005 of the High
    Court of Uttaranchal at Naintial Writ Petition No. 296 of 2004.
c       Vijay Hansaria, Sneha Kalila, Nagendra Singh (for Vishwa
    Pal Singh) for the Appellants.

        Achal Chabbra, Rajesh Sharma, Nitin Kumar (for Shalu
    Sharma) for the Respondent.
D
         The Judgment of the Court was delivered by
       (SMT.) RANJANA PRAKASH DESAI, J. 1. This appeal,
  by grant of special leave, is directed against the judgment and
  order dated 12.9.2005 passed by the High Court of Uttaranchal
E at Nainital partly allowing the Writ Petition No. 296 of 2004 filed
  by the appellants.

       2. The appellants/landlords filed an application under
  Section 21 of the Uttar Pradesh Urban Buildings (Regulation
F of Letting, Rent and Eviction) Act, 1972 (for short, 'the U.P Act')
  for eviction of the respondent/tenant on the ground that they
  bona fide required the premises occupied by the respondent
  to start business for their sons.
G      3. According to the appellants when the house in question
  was purchased by them the respondent was occupying two
  shops facing the road and two rooms situate at the rear of the
  said shops as a tenant of the previous lanrllord at the rent of
  Rs.35/- per month. These rooms are situated on the ground
H floor of the said building. The respondent continued to occupy
      MOHD. AYUB & ANR. v. MUKESH CHAND                          19
         [RANJANA PRAKASH DESAI, J.]
the said rooms as tenant at the same rent. It is the case of the       A
appellants that the first appellant is carrying on business in three
small stalls situated in a shop of the Cantonment Council, the
rent of which keeps increasing. The three sons of the appellants
aged 23, 28 and 19 years are unemployed. Two sons want to
start general merchant business in one shop and the third son          B
wants to start wholesale egg business in the other shop. The
appellants' family consists of 13 members. Their one son is
married and has three children and the two other sons are of a
marriageable age. The married son wants to live in the room
behind the shop. Presently, the appellants' family is living in        c
three rooms and a verandah with great difficulty. On these
grounds the appellants filed the application for release of the
rooms in occupation of the respondent.

      4. In response, the respondent inter alia contended that he
                                                                    0
is conducting photography business from the said shops for
many years; that he is enjoying goodwill in the area; that he will
find it difficult to get premises in the same area; that appellants
are financially well off as compared to him; that they own other
properties and that greater hardship would be caused to the E
respondent if the decree of eviction is passed than that would
be caused to the appellants if it is not passed.

     5. The Prescribed Authority dismissed the application
holding inter alia that the appellants are financially sound and
other properties were available to them whereas except the suit        F
shops the respondent does not have any place for residence
and business and hence, if he is evicted from the shops in his
occupation, he will experience more difficulty. The appeal
carried from the said judgment was dismissed by the District
Court holding inter alia that financial position of the appellants     G
is far better than that of the respondent. They could have
purchased a vacant bungalow and started business for their
sons. Learned District Judge held that the appellants have
purchased the building to make profit and then filed the
application for eviction. According to learned District Judge, the     H
    20         SUPREME COURT REPORTS             [2012] 1 S.C.R.


A respondent was doing business from the said shops for many
  years and it would be difficult for him to find a place for
  business. Hardship caused to the r~spondent would be more.

        6. WhUe disposing of the petition filed by the appellants
B the High Court rightly held that the landlord cannot be dictated
  by the tenant what business his sons should do and the
  observations made by the courts below to that effect and the
  findings reached by the courts below on bona fide requirement
  of the landlord are perverse. However, without going into the
c aspect of comparative hardship, the High Court directed that
  only one room out of the four rooms should be hand~d over to
  the appellants by the respondent as from the affidavit it appears
  that the respondent was using it as a passage. Being
  aggrieved by the said judgment, the appellants have
o approached this Court.
        7. Shri Vijay Hansaria, learned senior counsel, appearing
  for the appellants submitted that having come to the conclusion
  that the need of the appellants was genuine, the High Court
  erred m directing the respondent to only handover one room
E to the appellants. The High Court has wrongly granted only
  partial relief to the appellants without going into the aspect of
  comparative hardship. In support of his submissions, learned
  counsel relied on Raghunath G. Panhale (Deadl by Lrs. v.
  Chaganlal Sundarji & Co., 1 Bhimanagouda Basanagouda
F Patil v. Mohd. Gudusaheb2, Ganga Devi v. District Judge,
  Nainital & Ors3.
       8. Shri Achal Chabbra, learned counsel for the respondent
  on the other hand submitted that the High Court has balanced
G the interest of both sides and hence no interference is
  necessary with the impugned judgment.

    1.   (1999J a sec 1.
    2.   (2003) 3 sec 101.
H   3.   (2008) 1 sec 110
       MOHD. AYUB & ANR. v. MUKESH CHAND                        21
          [RANJANA PRAKASH DESAI, J.]
     9. There is no challenge to the High Court's finding that        A
the appellants' requirement is bona fide. The respondent has
not assailed the High Court's order. We concur with the High
Court on this point. However, the High Court erroneously held
that the view expressed by the courts below that greater
comparative hardship would be caused to the respondent if             s
decree of eviction is passed is correct so far as two rooms
occupied by him for residence and one room in which he is
running a shop is concerned. The High Cot..• t observed that no
hardship will be caused to the respondent if one room is
directed to be handed over to the appellants because it was           c
used as a passage by the respondent. Surprisingly, the High
Court has not given any reasons why only partial relief was being
granted to the appellants. In fact, it has not discussed the issue
of comparative hardship at all. Since this issue is of utmost
relevance and the application of the appellants is of the year        o
1998, we proceed to deal with it.
      10. Section 21 (1) {a) of the U.P. Act provides for eviction
,of a tenant on the ground of bona fide requirement of the
landlord. The fourth proviso thereof states that the Prescribed       E
Authority shall 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.
      11. Rule 16 (2) of U.P. Urban Buildings {Regulation of F
Letting, Rent and Eviction) Rules, 1972 { for short, 'the said
Rules') states which facts the Prescribed Authority has to
consider while dealing with an application for release under
clause {a) of sub-section (1) of Section 21 of the U.P. Act. Rule
16 (2) refers to building let out for purpose of any business and G
the facts which have to be taken into consideration are: {a)
length of tenancy of the tenant; {b) availability of suitable
accommodation for tenant; {c) whether the landlords existing
business is more flourishing than thatwhich is proposed to be
set up by him in the leased premises and {d) need of self- H
     22         SUPREME COURT REPORTS              [2012) 1 S.C.R


 A employment of a son or married or unmarried or widowed or
   divorced or judicially separated daughter or daughter or a male
   lineal descendant of the landlord who has completed his or her
   technical education and who is not employed in government
   service.
 B
         12. In Ganga Devi this Court held that comparative
   hardship indisputably is a relevant factor for determining the
   question as to whether the requirement of the landlord is bona
   fide or not within the meaning of the provisions of the U.P. Act
 C and the said Rules and it is essentially a question of fact. This
   Court observed that Rule 16 provides for some factors which
   are required to be taken into consideration. This Court clarified
   that the court would not determine the question only on the basis
   of sympathy or sentiment. This Court referred to its judgment
   in Bhagwan Das v. Ji/ey Kumar' where it is observed that the
 D outweighing circumstance in favour of the landlord was that two
   of her sons after completing their education were unemployed
   and wanted to carry on business for self-employment. This
   Court further observed that there was an additional
   circumstance that the tenant had not brought on record any
 E material to indicate that at any time during the pendency of this
   long drawn out litigation he had made any attempt to seek an
   alternative accommodation and was unable to get it. This Court
   also referred to its judgment in Rishi Kumar Govil v.
   Maqsoodan 5 where it has particularly taken note of the fact that
 F the landlady had no other shop where she can establish her son
   who is married and unemployed and there was nothing on
   record to indicate that the business of the father was .huge or
   flourishing. This Court clarified that the length of the period of
   tenancy as provided under clause (a) of sub-rule (2) of Rule 16
·G of the said Rules is only one of the factors to be taken into
    account in context with other facts and circumstances of the
    case and cannot be a sole criterion or deciding factor to order
     4.   (1991) supp. (2) sec 300.
  H 5. c2007) 4 sec 465.
       MOHD. AYUB & ANR. v. MUKESH CHAND                       23
          [RANJANA PRAKASH DESAI, J.]
 or not the eviction. This Court held that in the circumstances of   A
 the case the balance tilted in favour of the unemployed son of
 the landlatly whose need is certainly bona fide. After quoting
 the above judgment in Ganga Devi this Court gave six months
 time to the landlady to handover the premises to the landlord
 in the interest of justice.                                         B

        13. In our opinion, Ganga Devi applies on all fours to the
  present case. The first appellant carries on his business from
  three small stalls of a shop of the Cantonment Council whose
   rent keeps on increasing. There is nothing on record to suggest C
  that the appellants' present business is more flourishing than
  the business which they propose to start in the leased premises.
  All the three sons of the appellants are educated but
  unemployed. They want to start business in the premises in
  occupation of the respondent. One of them is married and has
                                                                     0
  three children. The other three are of a marriageable age. In
  all there are thirteen members in the appellants' family and they
· are living in three rooms and one verandah with great difficulty.
  As against that the respondent's family consists of four persons
  and there are four rooms in his possession. It is observed by E
  the courts below that the appellants own other premises.
  However, details of those premises are not on record. The High
  Court has rightly noted that this bald assertion is based on
  conjectures. It is well settled the landlord's requirement need
  not be a dire necessity. The court cannot direct the landlord to F
 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 G
 eggs and it is not uncommon for a Muslim family to do the
  business of non-vegetarian food. It is for the landlord to decide
  which business he wants to do. The Court cannot advise him.
  Similarly, length of tenancy of the respondent in the
                                                                     H
    24       SUPREME COURT REPORTS                  [2012] 1 S.C.R.


A circumstances of the case ought not to have weighed with the
  courts below.

          14. We also find that the courts below were swayed by the
    fact that the financial position of the appellants was better than
B   the respondent. The District Court has erroneously gone on to
    observe that the appellants can buy another building and start
    business. It has also observed that the appellants had
    purchased the building to make profit. In this connection we may
    usefully refer to the judgment of this Court in Bhimanagouda
c   Basanagouda Patil where the District Judge_ decided the issue
    of comparative hardship in favour of the tenant solely on the
    basis of affluence of the parties. This Court observed that if this
    is the correct approach then an affluent landlord can never get
    possession of his premises even if he proves all his bona fide
D   requirements. This Court further observed that the fact that a
    person has the capacity to purchase the property cannot be the
    sole ground against him while deciding the question of
    comparative hardship. If the purchase is pursuant to a genuine
    need of the landlord the said purchase has to be given due
E   weightage unless, of course, the purchase is actuated by
    collateral consideration. This Court rejected the High Court's
    finding that the landlord had secured the premises apparently
    in a game of speculation. Somewhat similar observations are
    made in this case by the District Court which in our opihion are
F   totally unsubstantiated.

       15. 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. We specifically asked learned counsel for the
G respondent to point out any evidel)ce to establish that the
  respondent made any such genuine efforts. He was unable to
  answer this query satisfactorily.
      16. In the ultimate analysis, we are of the view that the
H perverse findings of the courts below on the aspect of
        MOHD. AYUB & ANR. v. MUKESH CHAND                      25
           [RANJANA PRAKASH DESAI, J.]
comparative hardship must be set aside. The High Court has A
rightly found the need of the appellants to be bona fide. It has
however, fallen into an error in directing the respondent to
handover orily one room to the appellants. In our opinion, the
hardship appellants would suffer by not occupying their own
premises would be far grater than the hardship the respondent B
would suffer by having to move out to another place. We are
mindful of the fact that whenever the tenant is asked to move
out of the premises some hardship is inherent. We have noted
that the respondent is in occupation of the premises for a long
time. But in our opinion, in the facts of this case that C
circumstance cannot be the sole determinative factor. That
hardship can be mitigated by granting him longer period to
move out of the premises in his occupation so that in the
meantime he can make alternative arrangement.
                                                                    D
     17. In the view that we have taken, the appeal succeecfs.
The impugned order is set aside to the extent it permits the
respondent to retain possession of three rooms out of four
rooms in his occupation. The respondent is directed to
handover possession of all the rooms in his occupation to the E
appellants. He is granted six months time to vacate the
premises in question on the condition that he files usual
undertaking before the Registry of this Court within eight weeks
from today.
       18. The appeal is disposed of in the aforesaid terms.        F

D.G.                                      Appeal disposed of.