SUSHILAversusIIND ADDITIONAL DISTRICT JUDGE, BANDA AND ORS.

A                                    SUSHILA
                                         V.

         IIND ADDITIONAL DISTRICT JUDGE, BANDA AND ORS.

                              DECEMBER 17, 2002

B                  [R.C. LAHOTl AND BRIJESH KUMAR, JJ.]


         Rent Control & Eviction :

           UP. Urban Buildings (Regulation of letting, Rent and Eviction) Act,
C   19721 UP. Urban Buildings (Regulation of letting, Rent and Eviction) Rules,
    1972-Section 21(/)(a)!Rule 16(2)-Eviction-On the ground of Bonafide
    requirement-landlady requiring the premises for her married unemployed
    son for starting his business-Prescribed Authority passing eviction order
    while Appellate Court and High Court reversing the same-On appeal, Held,
D   even though period of tenancy is long, tenant is owning two shops whereas
    landlord has no alternate accommodation-Thus the need and requirement of
    landlady being bona fide and also comparative hardship being more to landlady
    eviction order restored.

          Appellant-landlady purchased a shop which was in occupation of
E   tenant-respondent. Even her husband purchased adjoining shop at the
    same time. That time their children were small. Few years later petitioner's
    son got married and also passed some electrical certificate course but
    remained unemployed. Appellant then filed eviction petition to get the shop
    vacated for her son to start his own business. She submitted that her
    relations with her husband were not cordial and also that she had no
F   ~lternative shop whereas respondent-tenant had two shops. Eviction
    petition was allowed. However, both Appellate Court and High Court
    reversed the eviction order. Hence this appeal by the landlady.

          Respondent-tenant accepted that the need of the petitioner was
G bonafide, however contended that there was more hardship to tenant than
    to the landlady.

          Allowing the appeal, the Court

          HELD: I.I The period of tenancy as provided under Rule 16(2)(a)
H                                       286
               SUSHILA v. IIND ADDITIONAL DISTRICT JUDGE                287
of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)          A
Rules, 1972 is only one of the factors to be taken into account in context
with other facts and circumstances of the case. It cannot be a sole criterion
or deciding factor to order or not the eviction of tenant. In the instant
case even though the period of tenancy of respondent is no doubt long but
availability of another shop to him where he can very well shift his business   B
as found by the Prescribed Authority, neutralizes the factor of length of
tenancy in the accommodation in dispute. Furthermore, the landlady has
no other shop where she can establish her son who is married and
unemployed whereas the respondent has two shops. Also there is nothing
on the record to indicate that the business of father of appellant's son is
so huge or that it is a very nourishing business so as to attract application   C
of Rule 16(2)(c). Considering the facts in the light of Rule 16, the balance
tilts in favour of the unemployed son of landlady whose need is certainly
bonajide and has also been so accepted by respondent-tenant. 1293-D-GI

      2. Prescribed Authority considered the factor that the appellant had
shown that her son had undergone a training course in household electrical D
wiring and had obtained a certificate from Industrial Training Institute
and he did not get any government job and wanted to be self-employed
by starting a shop of electrical goods and utensils but Appellate Court
expressed doubt about the certificate. The whole approach to the point
was misdirected. Be that as it may, it is made clear that even by excluding E
the factor of appellant's son being technically educated, otherwise as well
the need and requirement of the landlady is bona fide on considering the
same in the light of Rule 16 of the Rules and in the background of
comparative hardship which would be more to the landlady, in the event
of disallowing the application for eviction. Thus, the Appellate Court erred
in setting aside the order passed by trial Court allowing the application F
of petitioner-landlady and High Court also erred in dealing with the matter
mechanically. 1294-B-EI

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5124 of
1998.
                                                                                G
     From the Judgment and Order dated 30.4.1997 of the Allahabad
High Court in C.M.W.P. No. 1472 of 1985.

        Yogeshwar Prasad and Mrs. Rachna Gupta for the Appellant.

     Sudhir Chandra, Sidharth Bhatnagar, Achintya Dwivedi and Prashant          H
    288                     SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.

A   Kumar for the Respondents.

          The Judgment of the Court was delivered by

           BRIJESH KUMAR, J. The dispute in this appeal relates to a shop
    under the tenancy of the respondent - Baij Nath. The petitioner-landlady had
B   purchased the shop in question in the year 1977 from one Smt.Kanti Devi.
    It measures 2 x 5.3 meters. The petitioner moved a petition under Section 21
    (l)(a) of the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction)
    Act, 1972 (for short 'the Act') on the ground of bonafide need to settle her
    major and married son in life, who was to start the business of electrical
C   goods and utensils in the shop in question. The petition was contested
    unsuccessfully by the respondent-Baij Nath. The appeal preferred by the
    tenant-respondent was, however, allowed. The writ petition filed by the
    petitioner in the High Court was dismissed upholding the order of reversal
    passed in appeal, observing that under the writ jurisdiction. findings of fact
    cannot be disturbed unless they are manifestly unjust. Hence, this appeal
D   impugning the order of the High Court.

            The appellant-landlady, as noted earlier, had purchased the disputed
    shop in August, 1977, when her children were not grown up. Her eldest son
    Prem Prakash was later married and had also passed ~ome. electrical certificate
    course from I. T.I. Banda but he remained unemployed. It was thus necessary
E   to get the shop vacated for her sQn to start his own business in electrical
    goods and utensils. It may be mentioned here that there is another shop
    adjacent to the shop in question whiCh too was purchased at the same time
    i.e. in the year 1977 by her husband who is carrying on his work as Goldsmith
    and money lending business in that shop. She had also come forward with
F   a case that her relations with her husband have not been cordial but it has not
    been accepted by the courts below. The shop in question was initially in the
    tenancy of Mool Chand, father of the respondent Baij Nath who was carrying
    on kirana business in the said shop. After the death of Mool Chand, Baij Nath
    started the business in that shop. According to the respondent it was not
    correct that shop in question was needed by the landlady. It has also been his
G   case that at the time of the purchase of the shop in question petitioner knew
    that it was in occupation of the tenant. It was also alleged that husband of the
    appellant had purchased yet another shop in Chowk Bazar in. the name of his
    brother-in-law Khunni; it has however not been found proved by the Courts.

          According to the petitioner-landlady Baij Nath-the tenant has a shop in
H Gursahai Road as well as another shop in Chowk Bazar which was purchased
      SUSHILA v. IINO ADDITIONAL DISTRICT JUDGE [BRIJESH KUMAR, J.]         289
by him. In so far as the shop in Gursahai Road is concerned, according to the       A
respondent, prior to the death of his father Mool Chand he himself had beer.
running his shop in Gursahai Road but after the death of Mool Chand he
started his business in the shop in question and he established his son Rajendra
Kumar in the shop in Gursahai Road. In regard to the other shop, his case
is that it is a residential house and not a shop but it has not been accepted       B
by the Prescribed Authority. It has also been found that the said shop is quite
near to the shop in question. Considering all the facts and circumstances, the
trial Court allowed the petition with a finding that the landlady had bonafide
need which was more pressing as compared to that of the tenant and thus
ordered for his eviction.

       The appellate court, while allowing the appeal filed by the tenant-
                                                                                    c
respondent, held that the petitioner-landlady failed to prove that the shop was
needed by her bonafide for her son. On the question of comparative hardship
it has been held that in case the application is allowed the tenant wou Id suffer
greater hardship as he has been the tenant of the accommodation since a very
long time. The appellate court has upset the findings recorded by the trial         D
court which is though permissible but in doing so the whole approach of the
appellate court seems to be quite unjustified and legally unsustainable. At
one place the appellate court tried to doubt the certificate of Prem Prakash
having undergone electrical training course from the Industrial Training
Institute, Banda on the ground that his residence was shown as village Lukhtara     E
whereas the industrial training institute was in Banda. It is then observed at
another place that it had not been indicated as to what kind of job Prem
Prakash could get in the government with the certificate he possessed. Yet
another reason which strongly weighed with the appellate court was that as
to why it could not be possible for Prem Prakash to work with his father at
the latter's shop which is adjacent to the shop in question. Moreso, ifphoopha      F
(husband ,of the sister of father of Prem Prakash) could work with his father
then Prem Prakash could also work there.

      We find that Prem Prakash is a young man who is unemployed. He is
married and has children. There is every justification for him or for his
mother to settle him in life independently. He cannot be compelled to join his      G
father in his Goldsmith and money lending work in his small shop. In our
opinion, he is entitled to start business of his own choice and independently.
The appellate court took a view, as indicated above, which is palpably wrong
and wholly unacceptable.
                                                                                    H
    290                     SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.

A          The petitioner's case that Baij Nath has one shop in the house purchased
    by him in Chowk Bazar, the respondent had admitted only to the extent that
    he had purchased the house but denied existence of any shop. To prove the
    fact, it appears that the petitioner-appellant filed copy of the sale-deed. The
    appellate court observed "on the other hand it is clear on perusal of the sale-
B   deed that the sale-deed of only house was executed in favour of the opposite
    party". In this connection learned counsel for the petitioner has drawn our
    attention to the copy of the sale-deed which is on the record. The narration
    in the sale-deed is to the effect that the vendor had purchased the house as
    bounded in the sale-deed in Mohalla Chowk Bazar including the shop from
    one Duli Chand in 1937 and the aforesaid property was being transferred in
C   favour of Baij .Nath. It leaves no doubt that the sale-deed was in respect of
    the house as well as the shop. It is surprising to find that the appellate court
    came to the conclusion that the sale-deed was in respect of the house alone.
    This is a clear mis-reading of the document. Therefore, the conclusion drawn
    by the appellate court that the sale-deed was only in respect of the house
    without including a shop is also vitiated. It is thus clear that Baij Nath has
D   another shop at his disposal in Chowk Bazar.

           We may now, at the very outset, point out that learned counsel for the
    respondent has very fairly and rightly conceded that he would not dispute the
    bonafide need of the petitioner for the shop to establish her son Prem Prakash.
E   He has, however, submitted that the petition is liable to fail on consideration
    of comparative hardship of the tenant and the landlord, which shall be more
    to the tenant in the light of sub-rule (2) of Rule 16 of the U.P.Urban Buildings
    (Regulation of Letting, Rent and Eviction) Rules, 1972. The fourth proviso
    to Section 21 (I) of the Act relevant in that connection reads as under :

p           '~21. Proceedings for release of building under occupation of tenant.

            (I) 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 namely -
G           xxx                           xxx                         xxx

            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
H
                                                                                       .,
SUSHI LA v. IIND ADDITIONAL DISTRICT JUDGE [BRIJESH KUMAR, J.]        29 J
 that purpose shall have regard to such factors as may be prescribed."        A
Sub-Rule (2) of Rule 16 is quoted below :

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

 (I) xxx xxx                                                                  B

 (2) While considering an application for release under clause (a) of
 sub-section (I) 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 -
                                                                              c
  (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 in that building, the less the justification
      for allowing the application;

  (b) where the tenant has available with him suitable accommodation          D
      to which he can shift his business without substantial lo~s there
      shall be greater ju,stification for allowing the application;
  (c) the greater the existing business of the landlords 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     E
      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        F
      fair rent to be fixed by the prescribed authority;
 (d) where a son or unmarried or widowed or divorced or judicially
     separated daughter of a male lineal descendent of the landlord
     has, after the building was originally let out, completed his or
     her technical education and is not employed in Government G
     service, and wants to engage in self-employment, his or her need
     shall be given due consideration.
 (3)   xxx                    xxx"

Before considering the provisions contained in the above noted sub-           H
    292                     SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A rule, we may analyse the factual position. Both parties have large families.
  Father of the respondent Baij Nath had been running the kirana shop since
  long. The shop was purchased by the petitioner in the year 1977. Her husband
  had also purchased a sh~p at the same time which is adjacent to the shop in
  dispute. He is a goldsmith and also runs money lending business in his shop.
  Children of the petitioner have grown up in course of time and Prem Prakash
B meanwhile was married and has children. Prem Prakash is the eldest son. He
  is unemployed. He has two other brothers younger to him. So far Baij Nath
  is concerned, initially his father had been running his shop in the
  accommodation in dispute. Baij Nath was running his shop separately in
  Gursahai Road. Thus his business and shop were separate from his father
C Moot Chand. But on the death of Moot Chand he started his business in the
  shop in question and established his son in the shop which was being ruri by
  him in Gur~ahai Road. He also has a shop in Chowk Bazar which fact is well
  established by the sale-deed executed in his favour by his vendor. From the
  evidence on record it also transpires that there are other shops also around the
  area. Therefore, it cannot be said that he cannot run his shop in that area as
D found by the Prescribed Authority. As a matter of fact, in one of the rejoinder
  affidavits it is indicated that in some of the shops in Chowk Bazar he is also
  running a tailoring school. Be that as it may, the fact remains that at le.ast one
  shop other than one in the tenancy is available to the tenant which fact he
  initially tried to suppress. As a matter of fact, he himself was initially settled
E in his own separate business in another shop in Gursahai Road and had
  shifted to the shop in question on the death of his father handing over the
  other shop in Gursahai Road to his son for his proper settlement and
  employment. He could very well shift his son in the shop which was purchased
  by him in Chowk Bazar or ifhe wanted to shift from Gursahai Road he could
  himself have shifted to that shop. Presently, he has two shops; one for himself,
F the other for his son and at least one more in Chowk Bazar. So far as the
  petitioner is concerned, she has no other shop where she can establish her
  married son who is unemployed. In such circumstances, the't!nly fact that the
  shop in question is in possession of the tenant since long will have no material
  bearing in deciding the question of comparative hardship. To say that son of
G the petitioner-landlady may·remain unemployed but the shop in question
  must continue to remain in occupancy of the tenant to whom yet another
  shop is available in Chowk Bazar would not withstand the guidelines and
  tests laid down in sub-rule (2) of Rule 16 of the Rules of 1972.

          A bare perusal of Rule 16 of the U.P. Urban Buildings (Regulation of
H Letting, Rent and Eviction) Rules, 1972 , makes it clear that the rule only
      SUSHILA v. IINO ADDITIONAL DISTRICT JUDGE [BRIJESH KUMAR, J.]        293
 prescribes certain factors which have also to be taken into account while A
considering the application for eviction of a tenant on the ground of bonafide
need. Sub rule (2) of Rule 16 quoted earlier relates to the cases of eviction
 from an accommodation for business use. Clause (a) of sub rule (2) provides,
greater the period of tenancy less the justification for allowing the application;
whereas according to Clause (b) in case tenant has a suitable accommodation B
available to him to shift his business, greater the justification to allow the
application. Availability of another suitable accommodation to the tenant,
waters down the weight attached to the longer period of tenancy as a factor
to be considered as provided under Clause (a) of sub rule (2) of Rule 16. Yet
another factor which may in some cases be relevant under clause (c) is where
the existing business of the landlord is quite huge and extensive leaving aside C
the proposed business to be set up, there would be lesser justification to allow
the application. The idea behind sub clause (c) is apparent i.e. where the
landlord runs a huge business eviction may not be resorted to for expansion
or diversification of the business by uprooting a tenant having a small business
for a very long period of time. In such a situation if eviction is ordered it is
definitely bound to cause greater hardship to the tenant.                          D
       In the case in hand we find that even though the period of tenancy of
 the respondent is no doubt long but availability of another shop to him where
 he can very well shift his business as found by the Prescribed Authority,
neutralises the factor of length of tenancy in the accommodation in dispute. E
We further find that the landlady has no other shop' where she can establish
her son who is married and unemployed. There is nothing on the record to
indicate that the business of father of Prem Parkash is so huge or that it is
a very flourishing business so as to attract application of Clause (c] of Rule
 16(2). As observed earlier it is clear that length of period of tenancy as
provided under clause (a) of sub rule (2) of Rule 16 of the Rules, 1972 is F
only one of the factors to be taken into account in context with other facts
and circumstances of the case. It cannot be a sole criterion or deciding factor
to order or not the eviction of the tenant. Considering the facts in the light
of Rule 16 pressed' into service on behalf of the respondent, we find that
according to the guidelines provided therein balance tilts in favour of the G
unemployed son of the landlady whose need is certainly bonafide and has
also been so accepted by the respondent before us. It may be mentioned that
we are not taking into account of Clause (d) of sub rule (2) of Rule 16 of the
Rules; where yet another factor is to be borne in mind, in favour of releasing
the shop, if the person has some technical education to his credit but not
employed in any government service and wants to engage in self-employment. H
    294                      SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R.

A The Petitioner had shown that her son Prem Parkash had undergone a training
  course in household electrical wiring and had obtained a certificate from
  Industrial Training Institute, Banda. He did not get any government job and
  wanted to be self-employed by starting a shop of electrical goods and utensils.
  The Prescribed Authority considered this factor but we find that the appellate
B court expressed doubt on the fact that the certificate related to Prem Parkash
  being lead by the fact that his residence was shown as village Lukhtara,
  undisputedly that village also falls in the district of Banda. It was also observed
  by the appellate court that it could not be shown as to what government job
  Prem Parkash could get by virtue of the certificate he had obtained from
  Industrial Training Institute, Banda. The whole approach to the point was
C misdirected. Be that as it may, we make it clear that even by excluding the
  factor of Prem Parkash being technically educated, otherwise as well we find
  that the need and requirem~nt of the landlady is bonafide even after considering
  the same in the light of Rule 16 of the Rules and in the background of
  comparative hardship which we find would be more to the landlady, in the
  event of disallowing the application for eviction.
D
          In view of the above discussions we feel that the appellate court· was
    in error in setting aside the order passed by the trial court allowing the
    application of the petitioner-landlady and the High Court also erred in dealing
    with the matter mechanically.
E         In the result, the appeal is allowed with costs throughout. The judgments
    and orders passed by the High Court as well as the appellate court are set
    aside and the order passed by the Munsif (Prescribed Authority) Banda
    allowing petitioner's application for eviction of tenant-Baij Nath is restored.

F          The shop being in possession of the respondent no. 2 since long, we
    allow him four months' time to hand-over its vacant possession to the
    petitioner-landlady, on his clearing all the arrears of rent, if any, and on
    continuing to pay the same regularly and further on furnishing the usual
    undertaking to that effect in this court within a period of four weeks from
    today.
G
    N.J.                                                           Appeal allowed.