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       REPORTABLE

           IN THE SUPREME COURT OF INDIA

            CIVIL APPELLATE JURISDICTION

      CIVIL  APPEAL  NOs.7796-7797  of  2014 (Arising out of S.L.P(c) Nos.34694-34695 of 2013)  

  KRISHNA KUMAR RASTOGI ….APPELLANT

VERSUS

      SUMITRA DEVI        ….RESPONDENT

J U D G M E N T  

       PRAFULLA C. PANT, J.    

1.         Leave granted.

2.         These appeals are directed against the judgment and  

order dated 12th October, 2006 passed by the High Court of  

judicature at Allahabad in Civil Misc. Writ Petition No.34997  

of 2000 whereby the writ petition filed by the landlord has

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been dismissed,  and the order  dated 13th February,  2012  

passed on Review Application No.225618 of 2006, whereby  

the said application has also been rejected.

3.     Brief facts of the case are that the present appellant  

(landlord) filed an application under Section 21(1)(a) of  Uttar  

Pradesh Urban Buildings (Regulation of  Letting,  Rent  and  

Eviction) Act, 1972 (hereinafter referred as U.P. Act No.13 of  

1972)  against  the  respondent  Sumitra  Devi  (tenant)   for  

release of  the shop in  question situated in  Shivaji  Market  

(Chhota  Bazar),  Shyohara,  District  Bijnor,  before  the  

Prescribed  Authority/Addl.  Civil  Judge(Senior  Division),  

Nagina.   It  is  pleaded on behalf  of  the appellant  that  the  

respondent was tenant of the appellant  in the shop on rent  

@ Rs.125/- per month.  The appellant further pleaded that  

he needed the shop in question to establish his son Amit  

Kumar in the business by opening a General Merchant Shop  

in it.  It is also alleged by the appellant that vide notice dated  

11th March,  1985,  the  appellant  asked  the  respondent  to  

vacate  the  premises  occupied  by  her  as  the  same  was  

required by the landlord/appellant as above, and since the

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respondent  did  not  vacate  the  shop,  the  application  for  

release of the shop was moved by the appellant before the  

Prescribed Authority/Addl. Civil Judge (S.D.), Nagina.

4.        The respondent/tenant contested the application for  

release  of  the  accommodation  and denied the  allegations  

contained in it.  It is pleaded by her that she has three sons  

and four daughters apart from her husband in the family, and  

her hardship is more than that of the appellant.  It is further  

stated by her that the need of the appellant is not genuine.  It  

is further stated by her that the respondent through her son  

sells  shoes in the shop, and does not use the shop as store,  

as  alleged  by  the  appellant.   It  is  also  alleged  that  the  

appellant  actually  wants  enhancement  of  rent,  and  the  

answering respondent is ready to pay Rs.300/- per month  

instead of Rs.125/- per month as rent.  It is also pointed out  

by the respondent in her pleading that earlier suit No. 198 of  

1980 (Krishna Kumar vs. Sumitra Devi) was instituted by the  

appellant for vacation of the shop, and when he failed in it,  

the present proceeding has been drawn.

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5.     By way of amendment on 11th August, 1995 respondent  

further  took  the  plea  that  during  the  pendency  of  the  

proceedings, Jayanti Prasad, brother of the appellant  had  

filed proceedings No.6 of 1987 against Chaturpal Gupta –  

husband of the respondent on personal ground of necessity  

and  said  application  has  been  allowed  against  which  the  

appeal is pending.  Lastly, it is pleaded by the respondent  

that the respondent has attempted to search another shop  

but the same was not available near the disputed shop.

6.    In reply to the amended plea of the respondent, the  

appellant pleaded that even if the application of his brother  

Jayanti Prasad is allowed, it does not fulfill the necessity of  

the appellant and his son for the shop in question.  It is also  

pleaded  by  the  appellant  that  actually  husband  of  the  

respondent is running the business in another shop of shoes  

belonging to one of his relatives.

7.       The affidavits were exchanged and after recording  

evidence and hearing the parties,  the Prescribed Authority

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accepted the case of the appellant/landlord and allowed the  

application for release of shop in his favour vide order dated  

21st September,  1999  against  which  the  tenant  (present  

respondent) Sumitra Devi filed Rent Control Appeal No. 9 of  

1999  before  Additional  District  Judge,  Bijnor,  and  said  

Authority after hearing the parties vide its order dated 23 rd  

April,  2000  allowed  the  appeal  and  set  aside  the  order  

passed by the Prescribed Authority/Addl.  Civil  Judge(S.D),  

Nagina.  Aggrieved by the said order dated 23rd April, 2000,  

the appellant filed Civil Misc. Writ Petition No. 34997 of 2000  

before the High Court of judicature at Allahabad, and said  

petition,  after hearing the parties, was dismissed.  Hence  

these appeals are before us.

8.     We have heard learned counsel for the parties and  

considered their submissions.

9.      Before further discussion, we think it just and proper to  

quote the relevant provisions of law under which the release  

application was moved:

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“21.  Proceedings  for  release  of  building  under  occupation  of  tenant. –(1)  The  prescribed authority may, on an application of  the landlord in that behalf, order the eviction of  a tenant from the building under tenancy or any  specified part thereof if it is satisfied that any of  the following grounds exists, namely, –

(a) that the building is  bona fide required either in its  existing  form  or  after  demolition  and  new  construction  by  the  landlord  for  occupation  by  himself or any member of his family, or any person  for  whose  benefit  it  is  held  by  him,  either  for  residential  purposes  or  for  purposes  of  any  profession, trade or calling, or where the landlord is  the  trustee  of  a  public  charitable  trust,  for  the  objects of the trust;

(b)  that the building is in a dilapidated condition and is  required  for  purposes  of  demolition  and  new  construction:

Provided  that  where  the  building  was  in  the  occupation of a tenant since before its purchase  by the landlord, such purchase being made after  the  commencement  of  this  Act,  no  application  shall be entertained on the grounds, mentioned in  clause  (a),  unless  a  period  of  three  years  has  elapsed since the date of such purchase and the  landlord has given a notice in that  behalf  to the  tenant  not  less  than  six  months  before  such  application,  and such notice may be given even  before  the  expiration  of  the  aforesaid  period  of  three years:

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Provided  further  that  if  any  application  under  clause (a) is made in respect of [ any building let  out exclusively for non-residential  purposes] (subs  by  U.P.  Act  28  of  1976  (w.e.f.5.7.1976)  ) the  prescribed  authority while making the order of eviction shall,  after  considering  all  relevant  facts  of  the  case,  award  against  the  landlord  to  the  tenant  [an  amount not exceeding two years’ rent ] (subs by U.P.  Act 28 of 1976 (w.e.f.5.7.1976) ) as compensation and may,  subject to rules, impose such other conditions as it  thinks fit:

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Provided also that the prescribed authority shall,  except  in  cases provided for  in  the Explanation,  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]     Ins.  by U.P. Act 28 of 1976 and shall  be deemed always to have  been inserted.

Explanation – In the case of a residential building:-

(i) Where the tenant or any member of his family  [who has been normally residing with or is wholly  dependant  on  him]  has  built  or  has  otherwise  acquired in a vacant state or has got vacated after  acquisition a residential building in the same city,  municipality,  notified  area  or  town  area,  no  objection  by  the  tenant  against  an  application  under this sub-section shall be entertained;

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(4)     An order under [sub-section(I) or sub-section(I-A) or  sub section (2)], may be made notwithstanding that the  tenancy has not been determined:

Provided that no such order shall be made in the case of  a tenancy created for a fixed term by a registered lease  before the expiry of such term.

(5)  On an order being made under [sub-section(I), or sub- section(I-A) or sub section (2)],  the building or part or  appurtenant  land,  as  the  case  may  be,  shall  stand  released in favour of the landlord:

Provided  that  on  the  occurrence  of  any  of  the  circumstances mentioned in Section 24, any building or  part thereof (but not appurtenant land alone) released as  above,  shall,  without  prejudice  to  the  provisions  of  Section  24,  be  deemed  to  become  again  subject  to  allotment in accordance with Chapter III.

(6) On the expiration of  a  period of  thirty  days from an  order  under  [sub-section(I)  or  sub-section(I-A)  or  sub  section  (2)],  the  tenancy  of  the  tenant  shall  stand  determined in  its  entirety  or,  as  the  case  may be,  in  respect  of  any  part  of  appurtenant  land  released  in  favour of the landlord, and in the latter case, the rent  payable for the remainder of the building under tenancy  shall  be  such  as  may  be  agreed  upon  between  the  parties and in the absence of such agreement as may  be determined under Section 8.”

10.   Sub-Rule  (2)  of  Rule  16  of  Uttar  Pradesh  Urban  

Buildings (Regulation of Letting, Rent and Eviction) Rules,  

1972 framed under U.P. Act 13 of 1972 reads as under:

“16.  Application  for  release  on  the  ground  of  personal requirement  [Sections 21(1)(a) and 34(8)]. –

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(2)    While considering an application for release  under clause (a) of sub-section(1) of Section 21 in  respect  of  a  building  let  out  for  purposes  of  any  business,  the  prescribed  authority  shall  also  have  regard to such facts as the following:-

(a)  The  greater  the  period  since  when  the  tenant opposite party, or the original tenant whose  heir the opposite party is, has been carrying on  his  business  in  that  building,  the  less  the  justification for allowing the application;

(b)  where the tenant  has available with him  suitable accommodation to which he can shift his  business  without  substantial  loss  there  shall  be  greater justification for allowing the application;

(c)  the  greater  the  existing  business  of  the  landlord’s own, apart from the business proposed  to be set up in the leased premises, the less the  justification for allowing the application, and even if  an  application  is  allowed  in  such  a  case,  the  prescribed authority may on the application of the  tenant impose the condition where the landlord has  available with him other accommodation (whether  subject to the Act or not) which is not suitable for  his  own  proposed  business  but  may  serve  the  purpose of the tenant, that the landlord shall let out  that accommodation to the tenant on a fair rent to  be fixed by the prescribed authority;

(d)   where  a  son  or  unmarried  or  widowed  or  divorced  or  judicially  separated  daughter  or  daughter of a male lineal descendant of the landlord

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has,  after  the  building  was  originally  let  out,  completed his or her technical education and is not  employed  in  Government  service,  and  wants  to  engage in self-employment, his or her need shall be  given due consideration.”

11.     In  Mohd.  Ayub  and  Another vs  Mukesh  Chand  

(2012) 2 SCC 155, while interpreting the above provisions of  

law, this Court has observed in para 15 as under:

“  15.  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  ……………Similarly,  length of tenancy of the  respondent in the circumstances of the case  ought  not  to  have  weighed  with  the  courts  below.”    

12.   In para 17 of the case of Ayub Khan (supra), this Court  

further observed:

“17. 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”.

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13.   In Rishi Kumar Govil vs. Maqsoodan and Ors (2007)  

4 SCC 465, on the plea and evidence relating to bona fide  

need of landlord, this Court in para 19 observed as under:

“19.  In  Ragavendra  Kumar  v.  Firm  Prem  Machinery & Co. (2000) 1 SCC 679 : AIR  2000  SC  534,   it  was  held  that  it  is  the  choice of the landlord to choose the place  for the business which is most suitable for  him.   He  has  complete  freedom  in  the  matter.   In  Gaya  Prasad  v.  Pradeep  Srivastava (2001) 2 SCC 604: AIR 2001 SC  803,  it  was  held  that  the  need  of  the  landlord  is  to  be  seen  on  the  date  of  application for release.  In Prativa Devi vs  T.V. Krishnan (1996) 5 SCC 353 it was held  that  the  landlord  is  the  best  judge  of  his  requirement and courts have no concern to  dictate the landlord as to how and in what  manner he should live.”  

14.    In the present case, on going through the papers on  

record  we  find  that  the  High  Court  has  given  too  much  

emphasis to the affidavit  filed by the witness Vijay Pratap  

Singh that the appellant attempted to sell disputed shop to  

him.  It  is relevant to mention here that the said fact was  

denied  by  the  appellant.   In  our  opinion,  merely  for  the

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reason  that  some  witness  has  stated  that  the  landlord  

attempted to sell the property his statement cannot be said  

to be reliable, as has been believed by the High Court or the  

Appellate  Court,  unless  such  fact  is  supported  with  

documentary proof.  There appears no document on record  

to  support  the bald statement  of  the witness Vijay  Kumar  

Singh to dislodge the case of bonafide requirement of the  

shop  claimed  by  the  appellant  for  his  son  who  was  

unemployed.

 15.     Another fact relied by the High Court pertains to the  

fact that elder son of the appellant was running a business  

as a tenant in a shop opposite to the disputed shop.  Had it  

been found that the son for whom the landlord needed the  

shop had already got his own shop, it could have been said  

that  the  need  for  the  landlord  is  not  genuine,  but  in  the  

present case if  one of the sons was running his business  

that too in a rented accommodation, it cannot be said that  

the need of the landlord was not bonafide.  The sons of the  

appellant are not supposed to starve on street till the shop is  

actually vacated for them.

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16.      For the reasons as discussed above, we are of  the  

view  that  the High Court has erred  in law in dismissing  the  

petition of  the appellant.  We further  find  that the Appellate  

Court  has  allowed  the appeal of  the tenant against the  

weight of the evidence on record.  We concur the view taken  

by the trial court /Prescribed Authority. Accordingly, we allow  

these  appeals  and set aside the orders  challenged  before  

us. However, considering the facts and  circumstances  of  

the  case,   we  allow  the  respondent  /  tenant   to  vacate  

the   premises   by   31st December, 2014   whereafter   the  

landlord/appellant  shall  be  at  liberty  to  get  executed  the  

order dated 21st September, 1999 passed by the  Prescribed  

Authority/Addl. Civil Judge (S.D),  Nagina.    However, there  

is no order as to costs.                                              

                                                    ………..………………,,,,,………….……J.

                      (SUDHANSU JYOTI MUKHOPADHAYA)

…………………………………………..J (PRAFULLA  C. PANT)

New Delhi August   20, 2014