MOHD. AYUB & Anr. v. MUKESH CHAND

The landlord-appellants case was that they purchased the suit premises in which the respondent was the tenant under the previous owner. The respondent continued tj remain in occupation of the two D shops facing the road and the two rooms situated at the rear of the said shops @ Rs.35 per month. The appellants filed suit for eviction under Section 21 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 on the ground of bonafide E requirement. The case of appellants was that the first appellant was carrying on business in three small stalls situated in a shop of the cantonment council whose rent kept on increasing. His three sons aged 23, 28 and 19 years were unemployed. Two sons wanted to start F general merchant business in one shop and the third son wanted to start wholesale egg business in the other shop. The appellants' family consisted of 13 members. One son was married having three children and the two other sons were of a marriageable age. The married son wanted to G live in the room behind the shop. The appellants' family was living in three rooms and a verandah with great difficulty. The defence of the respondent-tenant was that he was conducting photography business from the said shops for many years; that he was enjoying goodwill in H 14 SUPREME COURT REPORTS (2012] 1 S.C.R. A the area; and that appellants were financially well off as compared to him and owned other properties and that greater hardship would be caused to the respondent if the decree of eviction was passed. B The Prescribed Authority dismissed the eviction application on the ground that the appellants were financially sound and other properties were available to them whereas except the suit shops the respondent did not have any place for residence and business and, if c evicted from the shops in his occupation, he would experience more difficulty. o,.; The first appellate Court dismissed the appeal of the landlord. The High Court held that the landlord cannot be dictated by the tenant what business his sons should do D and the observations made by the courts below to that effect and the findings reached by the courts below on bona fide requirement of the landlord were perverse; however, without going into the aspect of comparative hardship, it directed that only one room out of the four E rooms should be handed over to the appellants. The instant appeal was filed challenging the order of the High Court. Disposing of the appeal, the Court F HELD: 1.1. The respondent had not assailed the High Court's finding that the appellants' requirement was bona fide. However, the High Court erroneously held that greater comparative hardship would be caused to the respondent if decree of eviction is passed was correct so G far as two rooms occupied by him for residence and one room in which he was running a shop was concerned. The High Court observed that no hardship would be caused to the respondent if one room was directed to be handed over to the appellants because it was used as a H MOHD. AYUB & ANR. v. MUKESH CHAND 15 passage by the respondent. Surprisingly, the High Court A did not give any reasons why only partial relief was being granted to the appellants. In fact, it did not discuss the issue of comparative hardship at all. Section 21 (1 )(a) of the U.P. Act provides for eviction of a tenant on the ground of bona fide requirement of the landlord. The B fourth proviso thereof states that the Prescribed Authority shall take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as C may be prescribed. Rule 16(2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 states the factors which Prescribed Authority has to consider while dealing with an application for release under clause (a) of sub-section (1) of Section 21 of the U.P. Act. Rule 16 (2) refers to building let out for purpose D of any business and the facts which have to be taken into consideration are: (a) length of tenancy of the tenant; (b) availability of suitable accommodation for tenant; (c) whether the landlords existing business is more flourishing than that which is proposed to be set up by E him in the leased premises and (d) need of self employment of a son or married or unmarried or widowed or divorced or judicially separated daughter or daughter or a male lineal descendant of the landlord who has completed his or her technical education and who is not F employed in government service. [Paras 9-11] [21-A-H; 22- A] Raghunath G. Panha/e (Dead) by Lrs. v. Chaganlal Sundarji & Co. (1999) 8 SCC 1 : 1999(3) Suppl. SCR 629; G Bhimanagouda Basanagouda Patil v. Mohd. Gudusaheb (2003) 3 sec 101 - relied on.

1.2. The first appellant carried on his business from three small stalls of a shop of the Cantonment Council whose rent kept on increasing. There was nothing on H 16 SUPREME COURT REPORTS (2012] 1 S.C.R. A record to suggest that the appellants' present business was more flourishing than the business which they proposed to start in the leased premises. All the three sons of the appellants were educated but unemployed. They wanted to start business in the premises in B occupation of the respondent. One of them was married and had three children. The other three were of a marriageable age. In all, there were thirteen members in the appellants' family and they were living in three rooms and one verandah with great difficulty. As against that the C respondent's family consisted of four persons and there were four rooms in his possession. It was observed by the courts below that the appellants owned other premises. However, details of those premises were not on record. The High Court rightly noted that this bald assertion was based on conjectures. It is well settled the D landlord's requirement need not be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. It was wrong on the part of the District Court to E hold that the appellants' case that his sons. wanted to start the general merchant business was a pretence because they were dealing in eggs and it was not uncommon for a Muslim family to do the business of non vegetarian food. It is for the landlord to decide which F business he wants to do. The Court cannot advise him. Similarly, length of tenancy of the respondent in the circumstances of the case ought not to have weighed with the courts below. [Para 13] [23-B-H; 24-A]