KAMLA AHUJA Vs. JAGDISH CHANDRA

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution of India arising out of proceedings under Section 21 of the U. P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act 1972, U. P. Act XIII of 1972, hereinafter referred to as the Act. The property in dispute is the first floor of house No. 277 situate in Bakri Mohalla, Lal Kurti Bazar, Meerut Cantt. The petitioner Smt. Kamla Ahuja is the landlady of the said house. Opposite party No. 1 Jagdish Chandra is a tenant of the first floor at the rate of Rs. 80/- per mensem. The petitioner filed an application for release under Section 21 of the Act on the ground that the first floor accom modation in dispute is bona fide required by her. Her case was that her family consists of her husband, mother-in-law, two sons, two daughter-in-laws and since the accommodation in her occupation was insufficient she required the accommodation in dispute for her use and occupation. One of the reasons submitted by the petitioner was that since the two sons were married, she wanted to make separate arrangements for their living to avoid any quarrel between the two brothers. When the application for release was made, none of the sons were infect married but admittedly during the pendency of the application for release before the prescribed authority as well as the appellate authority both the sons got married and the eldest son was also blessed with a daughter on the 1st of September. 1977. In view of this change during the pendency of the application, amendment applications were moved bringing to the notice of the Court these subsequent events. The application was contested by the opposite party No. 1 alleging that the need of the petitioner was not bona fide. The sons of the petitioner and mother-in-law do not live with her in Meerut and the accommodation in occupation of the petitioner was sufficient and as such no additional accom modation was required. The prescribed authority dismissed the application on 2sth March, 1979 holding that the need of the opposite party No. 1 was greater than that of the petitioner. Against the order dated 28th March 1979 an appeal was filed by the petitioner under Section 22 of the Act. The appellate Court dismissed the appeal on 18th August, 1979. Against the said judgment dated 18th August, 1979 the present petition has been filed by the petitioner. I have heard Sri S. S. Bhatnagar on behalf of the petitioner and Sri A. K. Yog on behalf of the opposite parties. Learned counsel have very ably argued the matter and placed before me fairly all the various aspects of the case. Learned counsel for the petitioner has urged that the finding recorded by the appellate Court to the effect that the need of the petitioner is not bona: fide is a finding vitiated by an error of law as the Courts below have not properly understood the scope and effect of the expression bona fide required. Section 21 sub-clause (a) of the Act permits a landlord to move an application for release on the ground that the building is bona fide required by him for occupation by himself or by any member of his family. It has therefore, to be examined what is the scope of the expression 'bona fide required' used in sub- clause (a) of the Act. The word 'bona fide' means genuinely, sincerely i. e. in good faith in contradistinction to mala fide. The word 'required' signifies that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must show the burden being upon him that he genuinely requires the accommodation. This is the meaning given by the Supreme Court in P. E. Desai v. C. M. Patel A. I. R. 1974 S. C, 1059. In Mst. Bega Begum v. Abdul Ahmad Khan A. I. R. 1979 S. C. 272, the Supreme Court again had occasion to consider the scope of the expression 'reasonable requirement' as used in the Jammu and Kashmir Houses and Shops Rent Control Act, 1966. It laid down the following principle. "moreover Section 11 (1) (b)of the Act uses the words 'reasonable requirement' which undoubtedly postulate that there must be an element of need as opposed to mere desire of wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire as the High Court has done in this case. It seems to us that the connotation of the term 'need' or 'requirement' should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction, such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This appear to us to be the general scheme of all the Rent Control Acts, prevalent in other States in the country. This Court has considered the import of the word 'requirement' and pointed out that it merely connotes that there should be an element of need. " In the case of Dr. Sita Ram Gandhi v. District Judge Meerut 1978 (2) All-India Rent Control Journal 326, M. P. Saxena, J, had also occasion to interpret the above expression. He observed as follows:- 'the scope of the words 'bona fide needed or required' has again been considered by a Full Bench, of this Court in Chandra Kumar Sahu. District Judge Varanasi. They had been construed to mean 'genuinely or in good faith, and convey an idea of absence of any intent to deceive. It will not be bona fide requirement of the landlord if release is sought for ulterior purpose of fanciful whim". The present Act in the interests of general public regulates letting and places restriction on the right of the landlord to evict the tenants but it does not lay down that he should take only that much of accommodation as the Court considers sufficient. The Court has to consider whether there is an element of need and it is bona fide. This aspect has not to be examined with the eye of a surgeon who operates after scrutinising every minute detail. It has to be examined broadly and reasonably considering the social status and other social requirements of the landlord and in the light of the social condi tions prevalent in the country. The question has to be considered in a broader perspective. In Narbada Bai v. Kamla Bai 1972 M. P. L. J. Notes 15 it was observed by H. R. Krishnan, J, '. . . . . . . . . . . . . . . The Court is not a rationing authority for house accom modation under the Act. The law only calls on it to see whether the owner wanting for personal purpose is really requiring the accommoda tion for that purpose or is trying to play trick and has already planned to dispose of accommodation in some other manner. " These observations were reiterated again by the Madhya Pradesh High Court in Kamal Kishore v. Narayan Das (1972 R. C. J. 346 ). I respectfully agree with the same. It may be that the member of the family of the landlord may be very few but yet according to their status it may be necessary for them to have a larger accommodation to live comfortably but this by itself will not deny them a right to move an application for release. Similarly as in the present case the appellate Court has thrown aside the petitioner's application on the ground that the concept of the petitioner to settle her two sons, who have now got married, separately is a concept wholly irrelevant. In my opinion, it cannot be said so in a changing society where the structure of a joint Hindu family is now cracking. It cannot be said that the landlady's idea to get her sons settled separately is an idea wholly whimsical and without any basis of foundation. In the instant case as has been found by the prescribed authority as well as the appellate Court that the landlady is in occupation of one kitchen, latrine, bathroom, one drawing room, one dining room one store room, one big room for sitting and sleeping of the family members of the appel lant, and one small room on the outer side for entertaining the strangers. The resultant effect is that if the drawing and dining room are excluded there are only two rooms left according to both the Courts below viz one big room and the other small outer room. The Court was therefore, required to consider whether in the presence of this accommodation the requirement was bona fide or not. A general non- acceptance of the case of the petitioner was not sufficient consideration of the case. Even on the facts found by the appellate Court the daughter-in-law of the landlady was teaching in Meerut and therefore was staying with the family. The landlady along with her husband are admittedly also staying in the said accommodation. It has been found that the mother-in-law of the landlady is also staying in the)said accommodation. A young daughter-in-law cannot be expected to Jive in the same room where the father-in-law and the mother-in-law reside. Similarly the old mother and the landlady and her husband cannot possibly be expected to live together. These were all relevant considerations. The Courts below should have applied their mind on this question in the proper perspective and thereafter determine as to whether considering the accom modation available the requirement set up by the petitioner was bona fide or not. The judgment of the lower appellate Court initially was based on the ground that the mother-in-law was not a member of the family of the peti tioner and as such in an application under Section 21 (1) (a) of the Act her need has not to be considered. However, passing remarks at the end of the judgment have been made that the case of the mother-in-law was also being considered. In Smt. Rani Chaturvedi v. Shiv Narain and others 1979 All. R. C. 479. I have taken a veiw that even though a person may not come in the definition of the word 'family' defined under the Act but if the said relation is staying with the landlord permanently, the need of the landlord will be there to accommodate that person and therefore, while considering the need of the landlady in the instant case the need of the mother-in-law of the landlady had also to be considered. In my opinion, the entire case required reconsideration in the proper perspective. Learned counsel for the opposite parties has relied on Babhutmal v. Laxmi Bai A. I. R. 1975 S. C. 1297. In the case of Babhutmal (supra) the Supreme Court has only held that the High Court cannot reappraise the evidence on record for the purpose of deciding whether any error of fact was committed by the district Court and correcting such error of facts, as in view of the Supreme Court that was the jurisdiction of the appellate Court. The principle laid down in this case, however, would not apply to the facts of the present case. lam not setting aside the finding on the basis of reappraisal of evidence but I am re manding the matter for reconsideration of the case in the proper perspective. In P. B. Desai (supra) it has been held by the Supreme Court that if the District Judge applies a wrong test on a misconstruction of the word 'requires' and records any finding, the finding would be vitiated by an error of law and the High Court has power to interfere. In view of the decision of P. B. Desai (supra) the case is a fit one for interference under Article 226 of the Constitution of India. In the result, the petition is allowed, the order of the appellate Court dated 18th August, 1979 is quashed. The matter is remanded to the appellate Court with a direction to readmit the appeal to its original number and decide it afresh in the light of the observation made by me above in accor dance with law. Parties are directed to bear their own costs. .