RAJJAN LAL Vs. SECOND ADDL DISTRICT JUDGE KANPUR

JUDGEMENT

(1.) THESE are two landlord's writ petition under Article 226 of the Constitution arising out of the two similar appellate judgments of the District Judge in proceedings under Section 21 Act No XIII of 1972. The landlord owns a three storied house in Karachi Khana, Kanpur. The findings are that he is residing on the part of the first floor and second floor. He runs a pharmaciste shop in rented premises in Ram Narain Bazar. His son Amrit Lal Gupta has passed his M. B., B. S. and has an employment in Nagar Mahapalika Dispensary. He is also allowed private practice and uses the father's shop as his clinic. Another son who could not study works on the pharmacist shop of the father. The opposite-parties are two tenants on the ground-floor in Karachi Khana house using the portions in their tenancy for business purposes one for running a timber business and the other for cycle rickshaw plying, repairing etc. business. There was two other tenants one on part of the first floor and another having a small room on the ground floor. The landlord moved an application under Section 21 against all the four tenants claiming the first-floor portion for his residential require ment and the ground-floor portion for shifting his pharmacist shop from the rented premises and setting up a nursing home with X-ray facilities for his doctor son. The application with regard to the two other tenants now stands allowed and the matter is no longer in controversy. As regards the two respondents in these two petitions the Prescribed Authority held that the landlord's requirement for the premises was not bona fide and that tenants would suffer greater comparative hardship if evicted. In landlord's appeals, the District Judge has confirmed the finding about absence of bona fide requirement but has gone on to hold that on the question of comparative hardship if that stage were to be reached the decision would be in favour of the landlord. In the result he dismissed the appeals. In these writ petitions the findings of the District Judge on the question of bona fide requirement had been attacked as illegal and vitiated as based on irrelevant considerations and in particular requirements of Rule 17 (II) and (IV). Having heard the learned counsel for the parties, I find substance in this contention. In his Judgment the District Judge has discussed the provisions of the Act and Rules and has reached the conclusion that the principles and factors laid down in Rule 17 are principles of justice, equity and good conscience which should guide the Prescribed Authority and the appellate Court even in those cases under Section 21 (1) (a) in which the landlord requires the building for his use after demolition and new construction. Apart from the fact that repair and renovation and fitting as a nursing home and polyclinic is not a case of demolition or new construction the view of the District Judge is clearly erroneous. There can be no dispute with the proposition that for assessing the bona fide requirement of the landlord or the comparative hardship of the parties the principles enumerated in Rule 16 are only enumerative and not exhutive and according to the facts various other considerations may be relevant. Thus in a case where the landlord requires the building for his own occupation after demolition and reconstruc tion or after repairs renovation and refitting even the question whether he has the financial capacity to make the required changes may be relevant. But that is not to say that all the principles and factors of Rule 17 apply. Rule 17 lays down four mandatory conditions which ought to be fulfilled by an applicant under Section 21(l)(b). Two of these are of purely artificial and technical requirements which have little and remote essential connection with the genuineness of the purpose, need or financial resources for effecting the changes. THESE are: M) a proper estimate of expenditure over the proposed demolition and new construction, (2) a duly prepared plan conforming to the by-laws and the regulations for the time being in force. The third principle that the building requiring demolition will apply only where the building is so dilapidated that it is in social interest to demolish or reconstruct it. Only the remaining namely that the landlord has financial capacity to reconstruct or restore as per alleged necessity may be taken to be applicable even to a case under Section 21(1) (a) for assessing the bona fide of the landlord. But even here there is a vital distinction while Rule 17 makes it obligatory for the landlord to prove these factors in case of application under Section 21 (1) (b) there is no such requirement where the application happens to be under Section 21 (1) (a). The result is that in cases under Section 21 (1) (b) the landlord has to affirmatively prove each of these four points before he can succeed while in an application under Section 21 (1) (a) this is not so and ordinarily he need prove cost of reconstruction or changes and adequacy of his financial resources for the same only if the matter is put in issue. This is so because ordinarily this is merely an incidental question. The primary question is whether the landiord requires the premises after reconstruction or changes for his own bona fide use as alleged by him. An assertion to this effect ordinarily and in the absence of special facts implies an assertion of financial capacity to do so and unless the tenant contests such capacity, there would be no obligation on the part of the landlord to adduce specific evidence about the cost to be incurred and his resources in that behalf. Therefore, incorporation of the requirements of Rule 17 in a case under Section 21 (1) (a) is bound to result in placing an illegal and unnecessary burden on the landlord applicant and this is what has happened in the present case. The District Judge has recorded the finding that the landlord had not led any evidence to show the estimate of expenditure over the renovation of the premises for setting up a nursing home nor has he proved that he has the financial capacity to do so. But in these proceedings tenants had not in their reply or evidence before the Prescribed Authority raised any question about the landlord's financial capacity to convert the premises into a nursing home for which he had filed a sanctioned plan. The landlord therefore, was not bound to lead any evidence on these points. In this situation, the District Judge's finding that his failure to establish these points affected his bona fide require ment is illegal and unsustainable. It was urged on behalf of the respondents that in the "exercise of juridiction under Article 226 the Court should not disturb the finding on the question of bona fide requirement as it was a finding of fact as held in Munni Lal v. Prescribed Authority (A.I.R. 1978 S.C. 29). It is however settled law that if a finding is based on irrelevant considerations, it becomes a case of error apparent on the face of the record and the finding can be struck down while exercising power under Article 226 of the Constitution. The learned counsel for the respondents then tried to support the judgment of the District Judge on the ground that other factors noted in his judgment are by themselves sufficient to sustain a finding of absence of bona fide requirement. THESE factors are said to be: (1) the pharmacist shop for the younger son could be set up in the Kothari vacated on the ground-floor, (2) the doctor son was already working and it was only when the tenants pointed this out that the appellant came up with the theory that he intended to resign,(3) the son had himself not filed any affidavit that he was intending to resign his Nagar Mahapalika job and (4) the son was already using his father's shop in Ram Narain Bazar for his clinic and private practice. It was also urged that in fact these factors are the main grounds for the finding that "the appellant has laudable ambition, desire or aspiration to see his son and himself home owner by him, his grown up son in an independent pharmacist shop situate in his very residence. But he has not been able to satisfy that his preparednes, means and resources for achieving his ambition, desire or aspiration.'' It was also contended that the above finding properly analysed consists of two parts: (1) that the landlord's claim does not go beyond stage of ambition, desire and aspiration not reaching the point of requirement,(2) that he has also failed to show the means and resources for this ambition. It was emphasised that bona fide requirement should be something more than mere desire, ambition or aspiration Mattu Lal v. Radhey Lal (1975 R.C.J. (S.C) 86) followed in Nand Kishor v. District Judge, Mathura(1979(1) A.I.R.C.J. 330). The argument is that even if the second part of the finding is vitiated the first part is severable and sufficient to sustain the order of the appellate authority. I am afraid it is not possible to split the recorded finding in this manner and uphold the result on the basis of one part. Under law the authority is required to record a finding about the landlord's bona fide requirements the accommodation on the whole evidence in the case and the District Judge's finding should as far as possible be read as such. All the more so when it has nowhere been specifically found by the aspiration, has not reached the stage of requirement. In such circumstances to infer this from the mere fact of the District Judge's use of the word "ambition, desire or aspiration" would be incorrect. The whole trend of the judgment is that the question of means and resources bears on the plea of bona fide requirement. It is not possible to say that even without these irrelevant considerations of lack of proof of resources the finding would have been the same because it is not possible to assess the weight this point played in the final finding and, therefore, the whole finding has to be struck down. The stage for recording finding of comparative hardship comes only after finding of bona fide requirement has been recorded and therefore, this part of the finding of the District Judge also needs to be quashed. In the result both the petitions are allowed. The orders of the learned Additional District Judge, dated 14-9-1977 are quashed and the Additional District Judge (or any other officer to whom the District Judge may assign these cases) is directed to decide the appeal afresh according to law in the light of the observations made in this order. In the light of this order, parties are left to bear their own costs.