REPORTABLE

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

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  

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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  

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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  

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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.  Chaganlal Sundarji & Co.  1  ,  

Bhimanagouda  Basanagouda  Patil v.  Mohd.  

Gudusaheb  2  ,    Ganga Devi v.  District Judge, Nainital &  

Ors.  3    

1 (1999) 8 SCC 1 2 (2003) 3 SCC 101 3 (2008) 7 SCC 770

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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  

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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  

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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  

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Kumar  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. Maqsoodan  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

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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  

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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  

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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  

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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.  

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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  

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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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