Allowed

Ramautar v. Hari Bhushan Tyagi and Another

Allahabad HC26 Apr 2018WRIA/10660/2018

Case brief

AI extract

What is this about?

Writ petition filed by a tenant to quash release orders allowing his eviction. The High Court set aside lower court orders that relied on unproven oral claims of an agreement between parties, noting the landlord failed to adduce evidence for alternative accommodation or agreement.

What did the court decide?

The impugned orders of the Prescribed Authority and the Appellate Authority were quashed and the writ petition was allowed.

Ramautar Vs Hari Bhushan Tyagi and Another — Landlord and Tenant | Allahabad HC (2018)

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W-A No. 10660 of 2018: Ramautar Vs. Hari Bhushan Tyagi and another.

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Court No. - 26

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Case :- WRIT - A No. - 10660 of 2018

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Petitioner :- Ramautar Respondent :- Hari Bhushan Tyagi And Another Counsel for Petitioner :- Ashish Kumar Singh,Ashish Agrawal Counsel for Respondent :- Raj Kumar Kesari

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Hon'ble Mrs. Sangeeta Chandra,J.

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(Oral)

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This petition has been filed by petitioner-tenant under Article 226 of the Constitution of India praying for a writ in the nature of Certiorari for quashing the impugned judgment and order dated 22.08.2017 passed by the Prescribed Authority/1st Civil Judge (Junior Division), Hapur in P.A. Case No. 3 of 2012 and the impugned judgment and order dated 21.02.2018 passed by the Additional District Judge, Hapur in Rent Control Appeal No. 7 of 2017 (Ramautar Versus Hari Bhushan Tyagi) and for consequential reliefs.

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Learned counsel for petitioners, Shri Ashish Agrawal, has submitted that the petitioner is tenant of a shop No. 508 situated in Rajendra Nagar, Railway Road, Hapur for about 40 years. This shop measures 14 square yards. Since 1976 he has been paying Rs.125/per month as rent without any fail. The respondent-landlord had filed a Release Application under Section 21(1) (a) of the U.P. Act No. 13 of 1972 setting up his personal need for establishment of an office to carry out his business of plying buses and other tourist vehicles. In the said Release Application it was mentioned that the adjoining shop Nos. 507 to 511 in the same building are not available in vacant state as they are under different tenancies.

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This Release Application was filed on 12.10.2012. The petitioner-tenant filed a detailed written statement wherein he

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W-A No. 10660 of 2018: Ramautar Vs. Hari Bhushan Tyagi and another.

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specifically stated in paragraph - 37 that shop No. 512 is available on the ground floor for the respondent-landlord from where he can carry on his business of running buses and tourist vehicles. After examination of witnesses, the matter was at the stage of arguments; only then, the petitioner came to know that shop No. 511 had also been vacated by the erstwhile tenant and the landlord had demolished the intervening wall of shop Nos. 511 and 512 and has merged both the shops into one creating a space of about 350 square feet. The petitioner filed an Amendment Application to amend the written statement being Paper No. 25 Ga on 03.02.2015 bringing on record the subsequent developments and availability of alternative accommodation to the respondent-landlord on the ground floor.

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The Prescribed Authority rejected the Application No. 25 Ga by saying that it shall be open for the petitioner to bring new and additional facts on record by means of filing an affidavit. The order of rejection of Application Paper No. 25 Ga dated 09.04.2015 was challenged by the petitioner by filing Writ Petition No. 31900 of 2015 (Ramautar Vs. hari Bhushan Tyagi). Initially, this Court had stayed the operation of the order dated 09.04.2015 on 27.05.2015. Later on, the writ petition was dismissed on 04.07.2017 by an observation that it shall be open for the petitioner to bring additional facts on record of the proceedings before the Prescribed Authority by way of an affidavit.

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The petitioner filed his affidavit on 03.08.2017 in which correct facts relating to the Shop Nos. 511 and 512 were stated in paragraph - 10 thereof and also the fact that during the pendency of the Release Application the landlord had advertised the said shop in Amar Ujala on 24.11.2013 and had let it out to one M/s. S.K. Apparel who were running a showroom by name of "Cotton Club" of the ready-made garments. Evidence regarding NOC/Affidavit given by the landlord to

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W-A No. 10660 of 2018: Ramautar Vs. Hari Bhushan Tyagi and another.

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the Electricity Department for issuance of three kilowatts commercial electricity connection in favour of M/s. S.K. Apparel was also filed to show that on the ground floor itself shop No. 511 was available and it was merged with the already vacant shop No. 512 and a new commercial space of about 350 square feet was created, which was rented.

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The other evidence regarding the vacation of first floor and second floor of building in question was also submitted but that evidence is not very relevant at this stage because it is settled principle of law that tenant cannot dictate to the landlord terms with regard to the availability of space on the first floor or the second floor or third floor of a building when the landlord is admittedly an old person and wishes to do his business from the ground floor. This Court is also not interfering in the observations made by the learned Court below with regard to the availability of the space on the first floor or second floor or third floor of the house in question.

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After the affidavit was filed along with true copies of various documents relating to Lease Deed with Shri Vipul Kala, owner of M/s. S.K. Apparel running "Cotton Club", the Prescribed Authority allowed the Release Application by making observation therein that with regard to the bonafide need of the landlord who is an old person and who wishes to run an office on the ground floor for his Travel Agency, there can be no dispute. The Prescribed Authority however ignored the material evidence placed by the petitioner-tenant that the shop Nos. 511 and 512 were vacated during the pendency of the Release Application on the ground that the petitioner made no effort to bring this to the notice of the Prescribed Authority at the time of such vacation. This conduct shall be treated as "Maun Sahmati" of the petitioner tenant to the transaction of the respondent-landlord of letting out of Shop Nos. 511 and 512 in favour of Mr. Vipul Kala by Lease

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W-A No. 10660 of 2018: Ramautar Vs. Hari Bhushan Tyagi and another.

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Agreement dated 12.08.2014.

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The respondent-landlord had admitted in his evidence the availability of shop Nos. 511 and 512 and of the reconstruction and merging of the said two shops into one big commercial space but had stated that the petitioner had agreed to vacate the shop in question by accepting Pagadi of Rs. 10 Lakhs and therefore, the respondentlandlord had let out the shop Nos. 511 and 512 to Vipul Kala in the expectation of shop No. 508 being vacated by the tenant - petitioner in near future. No material evidence was produced before the Prescribed Authority to substantiate this claim made by the respondent-landlord.

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The Prescribed Authority without any material evidence on record with regard to this oral statement of the respondent-landlord believed the same to be true and therefore, went on to decide the issue of bonafide need in favour of the respondent-landlord.

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The learned counsel for the petitioner-tenant has relied upon the the judgment in Kedar Nath Agrawal (Dead) Versus Dhanraji Devi (Dead) by LRS. 2004 (2) ARC 764 wherein the Hon'ble Supreme Court has observed in paragraph - 14 thus:-

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" In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point, and it is this : The basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding cannot be considered at all. It is the power and duty of the court to consider changed circumstances. A

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W-A No. 10660 of 2018: Ramautar Vs. Hari Bhushan Tyagi and another.

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court of law may taken into account subsequent events inter alia in the following circumstances.

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(I) The relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or

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(II) It is necessary to take notice of subsequent events in order to shorten litigation; or

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(III) It is necessary to do so in order to do complete justice between the parties, [re: Shikharchand Jain vs. Digamber Jain praband karini Sabha and Ors., (1974) 1 SCC 675: (1974) 3 SCR 101] let us consider relevant case law in this regard."

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It has been submitted by Shri Ashish Kumar Singh that after the filing of Release Application by the respondent-landlord, the subsequent developments and availability of alternative accommodation to the respondent-landlord were tried to be brought to the notice of the learned Trial Court i.e. Prescribed Authority by the petitioner-tenant, they were ignored only on the ground that affidavit was filed with delay only in 2017. The Prescribed Authority failed to consider that a writ petition was filed by the petitioner-tenant. It also relied on the oral submission made by the landlord that the landlord was in the process of entering into an agreement with the petitionertenant to get the shop vacated on giving of Pagadi/ premium/advance to him.

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The learned counsel for the petitioner-tenant has also placed reliance upon the judgment rendered by this Court in M/s. Kanhaiya Mal Kasturi Lal and another Versus Harihar Prasad, 2013 (1) ADJ 66 wherein this Court has observed that availability of alternative accommodation to the landlord during the pendency of the Release Application to do the very business he was proposing to do from the shop in question can certainly be looked into and the failure of the

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W-A No. 10660 of 2018: Ramautar Vs. Hari Bhushan Tyagi and another.

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landlord to take this alternative accommodation which was already available for running his business would amount to an admission that landlord was not in bonafide need of the tenanted premises. This Court in paragraphs - 13, 14, 15 and 16 has observed thus:-

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" 13. It cannot be doubted that the landlord has privilege to determine as to how and in what manner he shall live, arrange his affairs and do his business etc. He has to settle his life in his own way. It cannot be guided, controlled or restricted by any third person including court also. A tenant or the court cannot direct the landlord how and in what manner he should live or arrange his affairs. There is no law which can restrict a landlord from beneficial enjoyment of his own property.

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14. In Prativa Devi (Supra), the Apex Court said that the landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord as to how and in what manner he should live or to prescribe for him a residential standard of his own. Therein the High Court had considered the age of landlord and doubted her need on the ground that in such advanced age, she would be requiring somebody to take care and therefore should live with other family members instead of alone. The Apex Court observed that High Court is rather solicitous about the age of the appellant and thinks that because of her age she needs to be looked after. That is a lookout of landlord and not of High Court. Apex Court disapproved the approach of High Court and observed:

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"We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property."

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W-A No. 10660 of 2018: Ramautar Vs. Hari Bhushan Tyagi and another.

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15. Similarly, in R. C. Tamrakar Vs. Nidi Lekha AIR 2001 SC 3806 the Court in para 10 and 11 said:

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"10. Law is well settled that it is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. In deciding the question of the bonafide requirement, it is unnecessary to make an endeavor as to how else landlord could have adjusted himself.

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11. Though the son of the landlady is a doctor and has constructed his own house, the landlady wants to stay in the suit premises. It is not the case of the tenant that landlady has any other suitable accommodation. Therefore, the High Court rightly set aside the finding of the First Appellate Court holding that landlady could not be compelled to reside with her son as her case was that she wanted to stay by herself in the suit premises because of her health condition and the climatic condition of that place suit her."

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16. When a landlord seeks eviction of a tenant on account of his personal need, the genuity and bona fide of the claim set up by the landlord has to be seen as prescribed in statute. A landlord cannot take advantage of lack of bargaining power of tenant by indulging in the oppressive activities of putting in and out tenant for the sole objective of getting an exorbitant amount of rent. It is this conduct of landlords which has been attempted to be subserved by the Legislature in enacting Rent statutes throughout the country including the State of U.P. Whether it is the Act of 1947 or the present statute, i.e., the Act 1972, the basic objective for enacting the two statutes is same. Therefore, a balance has to strike between the rights and privilege of landlord as also statutory protection available to tenant against any possible oppressive and exploitative attitude of a landlord. It is, in this context, Section

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W-A No. 10660 of 2018: Ramautar Vs. Hari Bhushan Tyagi and another.

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21 while conferring a right upon the landlord to seek eviction of a tenant from any accommodation and hand over to him on the ground of personal need, has put a restriction that before doing so, the competent authority, i.e., the Prescribed Authority itself must be satisfied that the alleged need of landlord is genuine and bona fide."

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This Court has relied upon several judgments of the Supreme Court where the Hon'ble Supreme Court has permitted for taking cognizance of subsequent events in rent control matters.

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The learned counsel for the petitioner-tenant has also placed reliance upon another judgment by a Coordinate Bench in Dr. Mohd. Naqi Versus IVth Additional District Judge, Gorakhpur reported in 2006 (1) ARC 579 wherein the Court took cognizance of the fact that the landlord during the pendency of the writ petition had reconstructed the house and in the reconstructed portion some shops were also constructed by them, which were let out to other tenants. This Court observed that need of the landlord which existed at the time when Release Application was filed stood satisfied due to the availability of new shops to him for running his business.

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The learned counsel for the petitioner has pointed out various paragraphs of the order passed by the Prescribed Authority where he has referred to an admission made by the respondent-landlord of availability of shop Nos. 511 and 512 and of his letting out the same to M/s. S.K. Apparel. These shops were adjacent to the shop No. 508 and were situated on the ground floor. The Prescribed Authority, however, has only placed reliance upon the oral submissions of the respondent-landlord that he was in the middle of negotiation and an agreement was about to be reached with regard to vacation of shop No. 508 by the petitioner-tenant as aforesaid. However, no evidence with regard to such submission was ever placed by the respondent-

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W-A No. 10660 of 2018: Ramautar Vs. Hari Bhushan Tyagi and another.

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landlord before the Prescribed Authority.

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With regard to the comparative hardship, the Prescribed Authority has made certain observations that the petitioner-tenant did not make any effort to search out alternative accommodation for the past 40 years and was retaining the shop at Rs. 125/- per month. The Prescribed Authority failed to notice that the Release Application was filed only in 2012 and thereafter, the petitioner-tenant had made several efforts which he mentioned in his affidavit and also in his oral evidence with regard to searching for a shop suitable for carrying on his business. The Prescribed Authority has observed that in so far as comparative hardship is concerned, it is settled law that the tenant cannot continue in the shop at a meagre rent and should now search for a new accommodation for running his business.

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It is the settled position in law that the finding of comparative hardship usually goes against the tenant only because he has not made any attempt to search out an alternative accommodation during the pendency of litigation. However, the finding of comparative hardship cannot go against the petitioner-tenant only by saying that he was in possession of the shop for the past 40 years and he did not make any effort to search out an alternative accommodation.

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With regard to the order passed by the Appellate Authority the counsel for petitioner has submitted that the findings of the Prescribed Authority have been confirmed only on the basis of the observations that it may be true that the landlord and tenant may have initially tried to reach an agreement with regard to the vacation of the shop No. 508 and therefore, the shop Nos. 511 and 512 after being vacated during the pendency of the Release Application, were let out by the respondent-landlord to another tenant on higher rent. In fact, no evidence was led before the Appellat Authority also by the respondent-landlord and the observations with regard to such oral

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W-A No. 10660 of 2018: Ramautar Vs. Hari Bhushan Tyagi and another.

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agreement being made are based on conjectures and surmises.

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On the other hand, the learned counsel for the respondentlandlord has read out several passages of the learned Prescribed Authority's order with regard to the bonafide need being established by the respondent-landlord. He has read out paragraph - 29 more specifically wherein observation has been made that the petitionertenant has been continuing as tenant @ Rs.125/- per month since 1976. That the shop in question was with him for the past 40 years and the petitioner-tenant did not make any effort to search for alternative accommodation in the past 40 years and the observation that to let the tenant remain in the shop in question for 40 years would amount to making the tenant landlord of the shop in question. The words used by the Prescribed Authority are being quoted herein below:-

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^^40 lky rd nqdku fdjk;snkj ds ikl jgus dk rkRi;Z mls nqdku dk yxHkx Lokeh cuk nsus tSlk gSA**

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The learned counsel for the respondent-landlord has also read out paragraphs - 35, 41, 47 and 48 of the order passed by the Prescribed Authority which refer to the admission made by the respondent-landlord that shop Nos. 511 and 512 became available during the pendency of the Release Application but he converted them into one shop and rented them out to a new tenant only because an oral agreement was reached between the parties that shop No. 508 shall be vacated by the petitioner-tenant on payment of premium of Rs.10 Lakhs. Later on, the tenant resiled from such agreement and demanded Rs.15 Lakhs instead.

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The learned counsel for respondent-landlord has pointed out the reliance placed upon several judgments of the Supreme Court and of this Court relied upon by the Prescribed Authority with regard to the

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W-A No. 10660 of 2018: Ramautar Vs. Hari Bhushan Tyagi and another.

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settled position in law that the tenant cannot dictate terms to the landlord regarding the alternative accommodation to be utilized by him for satisfaction of his bonafide need. Some of the judgments have been referred to by the Prescribed Authority and others have been cited before this Court.

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In Gulshera Khanam Versus Aftab Ahmad; 2016 (9) SCC 414, the learned counsel for the respondent-landlord has read out paragraphs - 33, 34, 36 and 37 with regard to the prerogative of the landlord to decide as to how he would fulfil his need and also to the settled position in law that concurrent findings of the Courts below should not be easily interfered with as they are pure finding of fact and were binding on the High Court in writ jurisdiction.

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The learned counsel for respondent-landlord has also placed reliance Bhupendra Singh Bawa Versus Asha Devi; 2016 (10) SCC 209 and has read out paragraphs No. 12 and 13 of the said judgement which are as follows:-

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" 12. In light of the above, the Additional Rent Controller and the High Court rightly concluded that no alternative premises were lying vacant for running business of the respondent's son. The High Court rightly relied on the ratio of Anil Bajaj v. Vinod Ahuja: (2014) 15 SCC 610 to hold that it is perfectly open to the landlord to choose a more suitable premises for carrying on the business by her son and that the respondent cannot be dictated by the appellant as to which shop her son should start the business from.

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13. The concurrent findings recorded by the courts below are based on evidence and materials on record, we do not find any infirmity warranting interference with the impugned judgment."

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The learned counsel for respondent-landlord has also placed reliance upon a judgment by a Coordinate Bench of this Court in Suresh Chand Sharma Versus Nand Kumar Kamal; 2013 (3) ADJ

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W-A No. 10660 of 2018: Ramautar Vs. Hari Bhushan Tyagi and another.

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484 and has placed reliance upon paragraphs - 21 to 31 and has read out paragraph - 21 and 22 specifically.

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Having heard the learned counsel for the parties and having gone through the orders impugned, this Court is of the opinion that there is no dispute regarding the settled position in law with regard to the observations of the Hon'ble Supreme Court and of this Court that the landlord is the best judge of his requirement and he is entitled to live according to his own wisdom and discretion and no third person like the tenant or even the Court can dictate the terms to him as to how he uses his own premises for the purposes of satisfying of his bonafide need. However, the learned counsel for the respondentlandlord has failed to point out from the orders passed by the Prescribed Authority and by the Appellate Authority any evidence documentary or otherwise with regard to the oral agreement between the parties for coming to this conclusion that the landlord and tenant had reached an oral agreement, both the Prescribed Authority and the Appellate Authority have resorted to only conjectures and surmises.

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In this regard there is no finding of fact based on any relevant evidence. Therefore, the said finding is perverse and cannot be allowed to stand to establish the bonafide need of the landlord. The impugned orders are liable to be set aside on this ground alone. They are hence set aside.

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The writ petition is allowed.

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Order Date :- 26.4.2018 LBY

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Ramautar v. Hari Bhushan Tyagi and Another

Case brief

What is this about?

What did the court decide?

Ramautar v. Hari Bhushan Tyagi and Another

Case brief

What is this about?

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