Dismissed

Wqeel Ur Rehman Shamsi and 5 Others v. Zahida Khatoon and Another

Allahabad HC9 Dec 2021WRIA/16884/2021

Case brief

AI extract

What is this about?

Dismissing a tenant's writ petition challenging the eviction ordered by the lower appellate court, the court upheld the allowance of the landlord's release application, finding the landlord had a genuine requirement to settle her unemployed son in business and the tenant failed to seek alternative accommodation.

What did the court decide?

Writ petition dismissed; order dated 21.10.2021 of the lower appellate court allowing the release application stands upheld.

Wqeel Ur Rehman Shamsi and 5 Others Vs Zahida Khatoon… — Landlord and Tenant | Allahabad HC (2021)

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Reserved on 26.11.2021 Delivered on 09.12.2021

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Court No. - 4

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Case :- WRIT - A No. - 16884 of 2021 Petitioner :- Wqeel Ur Rehman Shamsi And 5 Others Respondent :- Zahida Khatoon And Another Counsel for Petitioner :- Syed Wajid Ali Counsel for Respondent :- Arpit Agarwal

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Hon'ble Rohit Ranjan Agarwal,J.

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1. Heard Sri Syed Wajid Ali, learned counsel for the petitioners and Sri Arpit Agarwal, learned counsel for the respondents.

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2. This is a tenant’s petition. An application for release of godown situated in Mohalla Feelkhana, District-Pilibhit was filed by the landlord-respondent under Section 21(1)(a) of the U.P. Urban Buildings (Regulations of Letting Rent and Eviction) Act, 1972 (herein after called as “Act No.13 of 1972) for releasing the godown in question in favour of the son of the applicant who was unemployed and wanted to start wholesale business of footwear from the godown in dispute. It was stated that the tenant-petitioner was in occupation of the godown for the last 20 years at monthly rate of Rs.300/- which was subsequently enhanced to Rs.800/- and the rent was paid till May, 2015. A notice was given on 10.07.2015 which was served upon tenant petitioner, but the accommodation in dispute was not vacated which let to the filing of the release application.

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3. The tenant-petitioner contested the release application and filed his written statement on 20.07.2017 admitting the fact that he was the tenant of the godown in question which was let out to him at a monthly rate of Rs.300/- and the present rate of rent is Rs.800/-.

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4. It was specifically averred that the livelihood of the family of the tenant was solely dependent from the income of the godown as he was carrying out business of wholesale mobil oil from the godown. It was further averred that the son of the landlord was carrying on business of mobil oil from the shop situated at Mohalla Pakriya near Bareilly Gate, Bareilly bus stand and there was no need of the godown in question. Further, the Act No.13 of 1972 was not applicable and lastly there were two godowns situated next to the disputed accommodation which was in possession of the landlord and thus, there was no requirement of the landlord of the godown in question.

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5. The landlord-respondent filed his replication categorically denying the factum that he was not carrying on any business nor he was having any shop as stated in the written statement. Further, the contents of written statement to the effect that landlord was having two more godowns in his house was categorically denied stating therein that it was in fact, a kitchen and latrine and not godown as stated by the tenant-defendant. The Prescribed Authority framed following points of determination on the release application:-

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“1- क्या पक्षकारों के मध्य मालि�क व किकरायेदार का सम्बन्ध है ?

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2- क्या प्रस्तुत वाद में अन्तर्नि किहत वाद सम्पतित पर अतिधकि यम सं० -13 स 1972 �ागू हीं होते हैं ?

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3- क्या यह पी०ए० वाद सदभावपूर्ण- एवं उति/त आवश्यकता के आधार पर प्रस्तुत किकया गया है?

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4- क्या इस वाद के स्वीकृत हो े से किवपक्षी को हो े वा�ी ककि4 ाई की तु� ा में वाद के अस्वीकृत हो े पर प्रार्थि8 ी को हो े वा�ी ककि4 ाई गुरुतर होगी ?”

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6. The Prescribed Authority found that the Act No.13 of 1972 was not applicable in the case as the burden was upon the landlord to prove the fact that the Act was applicable and he failed to prove the same. As far as the issue regarding the bonafide need of the landlord was concerned, the Prescribed Authority found that there was no bonafide need on the ground that the godown in question was a residential accommodation and it cannot be released for commercial purpose. Issue No.4 which was in regard to the comparative hardship, the Prescribed Authority found that as issue of bonafide need was decided against the landlord, it found that the comparative hardship was not in favour of the landlord and thus, rejected the release application under Section 21(1)(a) of the U.P. Act No.13 of 1972.

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7. Aggrieved by the order of the Prescribed Authority, landlord filed P.A. Appeal No.01 of 2018 (Smt. Zahida Khatoon and another Vs. Waqeel Ur Rehman Shamsi and others) before the Appellate Authority/District Judge, Pilibhit. The Appellate Authority framed the following points of determination:-

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“1). Whether the provisions of U.P. Act 13 of 72 does not apply on this property?

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II). Whether the applicant has bonafide need of disputed Godown and difficulty caused to the Applicant after rejection of application will be greater than the difficulty caused to the opponent by its acceptance?”

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8. The lower Appellate Court while deciding the issue as regards to the applicability of U.P. Act No.13 of 1972 recorded a finding that the Prescribed Authority did not consider the fact that tenant petitioner had filed a R.C.C. Suit No.24 of 2015 (Waqeel Ur Rehman Vs. Zahida Khatoon) before the Civil Judge (Junior Division), Pilibhit under Section 30 of U.P. Act No.13 of 1972 and the rent was being deposited in respect of the disputed godown by the tenant. The lower Appellate Court also found that the landlord had filed the certified copy of the first assessment of the disputed godown being Paper No.52-C and 53-C and held that the first assessment was made in the year 1980.

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9. Thus, the lower Appellate Court held that the U.P. Act No.13 of 1972 was applicable as the tenant cannot take two conflicting pleas, as on the one hand it was depositing the rent under Section 30 of U.P. Act No.13 of 1972 and on the other hand, it was disputing the applicability of the Act in the release application.

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10. As far as the second point of determination, the lower Appellate Court recorded a categorical finding that release application was moved in the year 2015 and no effort was made by the tenant for searching the alternative accommodation and only an application to

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the Rent Control Authorities was submitted by registered post on 10.01.2017. Thus, the tenant has not made any effort to search an alternative accommodation.

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11. As regards the bonafide need of the landlord, lower Appellate Court recorded finding that the two godowns mentioned by the tenant was in fact, the kitchen and latrine connected to the house and had been categorically denied in the replication which the Prescribed Authority had misread. The lower Appellate Court also found that there was a specific denial to the effect that son of landlord was not carrying on any business, but no finding was recorded by the Prescribed Authority to hold otherwise. The appeal was allowed by order dated 21.10.2021, hence the present appeal.

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12. Sri Syed Wajid Ali, learned counsel for tenant petitioners submitted that the Prescribed Authority had rightly rejected the release application of the landlord as the landlord had failed to prove that the Act No.13 of 1972 was applicable in the present case, as the burden was upon him. He next submitted that the Prescribed Authority had rightly found that the bonafide need of the landlord was not genuine as the landlord was having two more godowns attached to the house where the present godown in question is situated and the son of landlord was carrying out his business of mobil oil at a different place and this fact has been stated in Paragraph-18 of the written statement. He next urged that as the landlord was having alternative accommodation, the Prescribed Authority had rightly

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found that the comparative hardship of the tenant was more than the landlord and rejected the release application. Apart from this, no other points was canvassed by him. Reliance was placed upon the decision of Apex Court in the case of Dattatraya Laxman Kamble Vs. Abdul Rasul Moulali Kotkune & Anr. 1999 AIR (SC) 2226 . Relevant paras 7, 8 and 9 are extracted herein as under:-

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“7. Sections 15 and 15A are not applicable in this case and hence we are not bothered about their implications. The grounds mentioned in clause (g) is couched in a language to provide emphasis to the genuineness of the requirement of the landlord by using the words “reasonably and bona fide required by the landlord”. In fact both terms (reasonably and bona fide) are complimentary to each other in the context, for, any unreasonable requirement is not bona fide. Vice-versa can also be spelt that if the requirement has to be bona fide it must necessarily be reasonable also. But when the legislature employed the two terms together the message to be gathered is that the requirement must be really genuine from any reasonable standard. All the same, genuineness of the requirement is not to be tested on a par with dire need of a landlord because the latter is a much greater need.

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When a landlord says that he needs the building for his own occupation there is no doubt he has to prove it. But there is no warrant for presuming that his need is not bona fide. The statute enjoins that the court should be satisfied of his requirement. So the court would look into the broad aspects and if the court feels any doubt about the bona fide of the requirement it is for the landlord to clear such

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doubts. Even in a case where the tenant does not contest or dispute the claim of the landlord the court has to look into the claim independently albeit landlord’s burden gets lessened by such nondispute. In appropriate cases it is open to the court to presume that the landlord’s requirement is bona fide and put the contesting tenant to the burden to show how the requirement is not bona fide.

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In this case appellate court found that landlord’s requirement to occupy the building is to start in electric goods. The fact that landlord is a holder of diploma in Electrical Engineering was counted as a factor lending assurance that he would be genuinely contemplating such a business idea. Regarding the contention of the respondent tenant that landlord has not acquired practical experience in the business of electric goods the appellate court has observed that is is not necessary in every case that the landlord should establish previous experience for starting a new business.”

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13. Reliance has also been placed upon decision of Apex Court in case of G.C. Kapoor Vs. Nand Kumar Bhasin & Ors ., 2001 (8) SCC 329. Relevant Para-9 is extracted herein as under:-

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“ 9. It is settled position of law that bona fide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. In Dattatraya Laxman Kamble versus Abdul Rasul Moulali Kotkunde and Another [1999 (4) SCC 1], this Court while considering the bonafide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he has to prove it but there is no warrant for presuming that his need is not bonafide. It was also held that while deciding this question.

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Court would look into the broad aspects and if the Court feels any doubt about bondafide requirement, it is for the landlord to clear such doubt.”

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14. Opposing the writ petition, Sri Arpit Agarwal, learned counsel for the landlord submitted that it was a specific case of the landlord that accommodation in dispute is a godown. He further contended that the averment of paragraph 18 of the written statement was specifically denied in the replication filed by the landlord-respondent in Para-18, wherein it was stated that apart from the godown in question, the son of the landlord was not having any other godown or accommodation. He next submitted that Para-22 of the written statement was specifically denied in Para-22 of the replication, wherein it was stated that averment that the landlord was having two godowns in addition to the godown in dispute was not correct and in fact, it was not the two godowns, but a kitchen and latrine which was adjoining the godown in question. He next urged that Prescribed Authority had wrongly arrived at the finding and without considering the case of the landlord had rejected the release application. He then contended that the lower Appellate Court had considered the question of applicability of the Act in the present case as well as dealt with in extenso the bonafide need of the landlord and also recorded finding as to the comparative hardship of the landlord against the tenant. Reliance has been placed upon the decision of this Court in case of Rajendra Prasad Vs. Narendra Mittal and Ors., 2016 (8) ADJ 546 and in case of Dr. Ram Chandra Agrawal and another Vs.

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Bharat Press and others, 2010 (1) AWC 735 . Relevant Paras 13 and 20 are extracted herein as under:-

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“13. In fact after going through the judgment, I realize that the courts have taken small and extraneous matter into consideration and not considered broadly the principles laid down for coming to definite conclusion whether the accommodation is required bonafidely or not and also regarding the comparative hardship. I have also noticed that the appellate court though has halfheartedly come to a conclusion that the landlords are suffering hardship but since the finding on the bonafide need was recorded against the landlord, the appeal has also been dismissed. The courts have strenuously tried to negate the case of the landlord ignoring specific assertions on affidavit. The court has also disbelieved the assertion that partnership stands dissolved for want of the partnership deed on one hand while they have refused to accept the document in evidence.

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In the case of Mohd. Ayyub v. District Judge, Lucknow and Anr. 2007 (68) ALR 603, it was held that bonafide need and requirement of a premises for business purposes and augmentation of income for oneself and for the family cannot be negativated in any circumstances. The intention to establish son in his career and the requirement of the premises for the same purpose cannot be termed as malafide. Need of landlord to settle his son in independent business cannot be defeated on mere fact that the son was working in a tailoring shop. Every individual has a right to settle himself independently in business.”

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15. Reliance has also been placed upon the decision of Co-ordinate Bench of this Court in the case of Mohd. Aslam Vs. Ivth A.D.J. Barabanki and Ors., 2011 (4) ADJ 19 . Relevant Paras 20, 21, 22 are extracted herein as under:-

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“20. In Sarla Ahuja v. United India Insurance Co. Ltd. MANU/SC/0665/1998 : AIR 1999 SC 100, the Supreme Court observed:

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...When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by the Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavor as to how else the landlord could have adjusted himself.

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The Supreme Court in Ragavendra Kumar v. Firms Prem Machinery and Co. MANU/SC/0010/2000 : AIR 2000 SC 534, also observed:

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...It is settled proposition of law that the land lord is best judge of his requirement for residential or business purpose and

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he has got complete freedom in the matter....

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Further the findings given by appellate Court that the need of the Petitioner/landlord is not genuine, is also contrary to law and liable to be set aside as the tenant had not made any effort to search accommodation, since the date moving of application for release, so balance of comparative hardship will tilt against him as per law laid down in the case of Faiyaz Khan v. 2nd Additional District Judge, Jhansi and Ors. 2006 (24) LCD 929 in which it has been held is as under:

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Concept of comparative hardship cannot be stretched to the extent of depriving the landlord of his property even if landlord is in real and imminent need. Amin was having a clinic even though he asserted that he attended that only off and on. In any case tenant did not show that he made any efforts to search alternative accommodation after filling of the release application. As held by the Supreme Court in B.C. Bhutada v. G.R. Mundada MANU/SC/0022/2003 : AIR 2003 SC 2713, this by itself was sufficient to tilt the balance of hardship against the tenant.”

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16. I have heard learned counsel for the respective parties and perused the material on record.

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17. With the consent of learned counsel for the parties, the writ petition is being decided at the admission stage without calling for counter affidavit.

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18. It is an admitted case to both the parties that the godown in question is situated at Mohalla Feelkhana, District-Pilibhit was let out to the tenant petitioner at a monthly rent of Rs.300/-. The rent was enhanced to Rs.800/- and till May 2015, the tenant had deposited the same with landlord.

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19. The release application filed by the landlord for settling her son who wanted to start a wholesale business of footwear was contested by the tenantpetitioner on the ground that the Act No.13 of 1972 was not applicable in the present case and secondly, on the score that the landlord was not having a bonafide and genuine need and the comparative hardship of the tenant was greater.

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20. The Prescribed Authority had rejected the release application on the ground that the Act No.13 of 1972 was not applicable, as the landlord failed to discharge the burden to prove the applicability of the Act. The lower Appellate Court while reversing the finding recorded by the Prescribed Authority held that the tenant had filed R.C.C. Suit No.24 of 2015 before the Civil Judge (Junior Division), Pilibhit under Section 30 of the U.P. Act No.13 of 1972 which was already decided and in which the tenant was depositing the rent of the disputed godown. Further, a finding was recorded by the lower Appellate Court that certified copy of the first assessment of the disputed godown being Paper No.52C and 53-C were filed with proof that the godown in question was assessed in the year 1980 and the construction was prior to 26.04.1985, thus, the Act

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No.13 of 1972 was applicable. This Court finds that the finding recorded by the lower Appellate Court as to the applicability of Act No.13 of 1972 needs no interference as the tenant-petitioner has failed to assail the same and to prove otherwise. The Prescribed Authority omitted to consider this fact which was vital to the maintainability of the release application under Section 21(1)(a) of the Act.

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21. Now, coming to the bonafide and genuine need of the landlord, it is a specific case of the landlord that she wants to settle her son who is unemployed and wants to start the business of wholesale footwear from the godown in dispute, which has been vehemently opposed on the ground that landlord had alternative accommodation of two godowns next to the existing godown in question and her son was already carrying on business of mobil oil from a different place. The said fact was categorically denied in Paragraphs No.18 and 22 of the replication, wherein it was stated that it was not the two godowns and in fact, a kitchen and latrine which was next to the existing godown and except the present accommodation, no other accommodation was available with landlord nor her son was doing any business from the place mentioned in Para-18 of the written statement.

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22. The Prescribed Authority misread the pleadings of the parties and solely relying upon the written statement proceeded to hold that there was no bonafide need of the landlord and also held that

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comparative hardship, was of the tenant, and not the landlord and rejected the release application.

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23. The lower Appellate Court while reversing the finding considered the pleadings and the evidence filed by the parties and held that the two godowns alleged by the tenant was in fact, only kitchen and latrine attached with the existing godown in dispute and the landlord was not having any alternative accommodation.

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24. The lower Appellate Court also recorded categorical finding to the effect that it was only after filing the release application in the year 2015 that the tenant only sent an application to the Rent Control Authorities for allotting an alternative accommodation, but no effort was made by the tenant to search another accommodation. The finding recorded by the lower Appellate Court as regards to bonafide need of the landlord as well as the comparative hardship needs no interference by this Court.

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25. Reliance placed upon the decision of the Apex Court in case of Dattatraya Laxman Kamble (Supra), in fact does not help the tenant petitioner, the Apex Court had held that statute enjoins that Court should be satisfied of the requirement of landlord. The Court has to look into broad aspects and if it feels any doubt about the bonafide of the requirement, it is for the landlord to clear such doubt. In the present case, the landlord had specifically denied the factum that she was not having any other alternative accommodation except the godown in question.

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26. As far as reliance upon decision in the case of G.C. Kapoor (Supra) , Hon’ble Apex Court has relied upon the decision in the case of Dattatraya Laxman Kamble (Supra) .

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27. In Suresh Chandra Sharma Vs. Nand Kumar Kamal, 2013 (97) ALR 817 , Co-ordinate Bench of this Court held as under:-

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“21. Section 21 of Act 1972 confers a right on landlord to get a building, which is under occupation of a tenant, released on the ground specified therein and this includes bona fide requirement of building by himself or members of his family for whose benefit he held it. The right of landlord to judge his requirement and live according to his own wisdom and discretion cannot be controlled by third person, like tenant, or, even the Court. The purpose of the Court is to protect the tenant from unjustified eviction or abrupt increase of rent etc., but simultaneously, if the landlord has come with the case of his own personal need, it has to be judged disparately, fairly and independently, or that landlord, coming with a bona fide case, must be able to use his own premises for the purpose he has disclosed before the Court, if it is found bona fide and genuine. The issue of hardship between the two is an integral part of looking into the bona fide and genuity of personal need set up by landlord.”

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28. Once the lower Appellate Court has recorded a categorical finding that son of the landlord is unemployed and his need is bonafide and genuine for starting business, this Court feels that no interference is required. Learned counsel for the petitioner could not dispute this fact that additional pleas taken in the

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written statement were categorically denied by the landlord in the replication which was not considered by the Prescribed Authority while deciding the release application. The lower Appellate Court not only considered the written statement filed by the tenant, but also recorded a categorical finding that the averment made were not proved by placing any evidence either documentary or oral by the tenant.

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29. Thus, I find that no interference is required in the order dated 21.10.2021 passed in P.A. Appeal No.01 of 2018.

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30. Writ petition fails and is, hereby, dismissed.

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Order Date: - 09.12.2021

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SK Goswami

Wqeel Ur Rehman Shamsi and 5 Others v. Zahida Khatoon and Another

Case brief

What is this about?

What did the court decide?

Wqeel Ur Rehman Shamsi and 5 Others v. Zahida Khatoon and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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