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Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, `the U.P Act’) for eviction of the respondent/tenant on the ground =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. 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 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. 17. In the view that we have taken, the appeal succeeds. 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

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4495 OF 2006

 
MOHD. AYUB & ANR. … APPELLANTS
Versus
MUKESH CHAND … RESPONDENT

 
JUDGMENT

 
(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 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
of Letting, Rent and Eviction) Act, 1972 (for short, `the U.P
Act’) for eviction of the respondent/tenant on the ground
2

 

that they bona fide required the premises occupied by the
respondent to start business for their sons.

 
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 landlord at the
rent of Rs.35/- per month. These rooms are situated on the
ground floor of the said building. The respondent continued
to occupy the said rooms as tenant at the same rent. It is
the case of the 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 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
3

 

room behind the shop. Presently, the appellants’ family is
living in 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 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 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 shops the respondent does not have any place for
residence and business and hence, if he is evicted from the
4

 

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 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 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
respondent would be more.

 
6. While disposing of the petition filed by the appellants
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 aspect of comparative hardship, the High
5

 

Court directed that only one room out of the four rooms
should be handed 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 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 in directing the respondent to only
handover one room 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 (Dead) by Lrs. v. C
haganlal Sundarji & Co. 1
,
Bhimanagouda Basanagouda Patil v. Mohd.
G
udusaheb 2
, Ganga Devi v. District Judge, Nainital &
Or
s. 3

 
1 (1999) 8 SCC 1

2 (2003) 3 SCC 101

3 (2008) 7 SCC 770
6

 

8. Shri Achal Chabbra, learned counsel for the respondent
on the other hand submitted that the High Court has
balanced the interest of both sides and hence no
interference is necessary with the impugned judgment.

 
9. There is no challenge to the High Court’s finding that
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 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
Court 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 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
7

 

comparative hardship at all. Since this issue is of utmost
relevance and the application of the appellants is of the year
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 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
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 the facts which have to be taken into
8

 

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 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 employed in government service.

 
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 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. Jiley
9

 

Ku
mar 4
where it is observed that the 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
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. M
aqsoodan 5
where it has particularly taken note
of the fact that 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 of the said Rules is only one of
the factors to be taken into account in context with other

 

4 (1991) supp. (2) SCC 300

5 (2007) 4 SCC 465
10

 

facts and circumstances of the case and cannot be a sole
criterion or deciding factor to order or not the eviction. This
Court held that in the circumstances of the case the balance
tilted in favour of the unemployed son of the landlady 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.

 
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 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 three children. The other three are of a
marriageable age. In all there are thirteen members in the
11

 

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 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 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 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
12

 

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 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 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
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
13

 

genuine need of the landlord the said purchase has to be
given due 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 opinion are 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 respondent to point out any evidence 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
perverse findings of the courts below on the aspect of
comparative hardship must be set aside. The High Court
has rightly found the need of the appellants to be bona fide.
14

 

It has however, fallen into an error in directing the
respondent to handover only 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 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 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.

 

 

17. In the view that we have taken, the appeal succeeds.
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
15

 

handover 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 Registry of this Court within eight
weeks from today.

 
18. The appeal is disposed of in the aforesaid terms.

 

 

……………………………………………..J.

(AFTAB ALAM)

 
……………………………………………..J.

(RANJANA PRAKASH DESAI)
NEW DELHI,

JANUARY 05, 2012

 

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