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CASE NO.:

Appeal (civil) 1394 of 1999

PETITIONER:

G. C. KAPOOR

Vs.

RESPONDENT:

NAND KUMAR BHASIN & ORS.

DATE OF JUDGMENT: 20/11/2001

BENCH:

Syed Shah Mohammmed Quadri & S..N. Phukan

JUDGMENT:

Phukan, J.

This appeal, by special leave, arises from the judgment of

the High Court of Allahabad, Lucknow Bench dated January 12, 1998

passed in Writ Petition No.02 (RC)/1998. By the impugned judgment

the High Court dismissed the writ petition filed by the landlord.

The suit premises was let out by the appellant to the

contesting respondent No.1 and at that time his son Rohit was a

minor. In the year 1992, Rohit obtained a post-graduate diploma in

computer science and thereafter the appellant filed an application

under clause (a) of sub-section (1) of Section 21 of the Uttar Pradesh

Urban Buildings (Regulation of Lettings, Rent and Eviction) Act, 1972

(for short the Act) for the eviction of the respondent from that suit

premises on the ground that it was required bonafide for starting a

computer consultancy centre as Rohit acquired necessary

qualification and was unemployed. It was contended that the

appellant has no other alternative accommodation. It was further

pleaded that other portion of the building, which was let out to M/s.

J.K. Industries would also be required for the above purpose, as the

total requirement of space for starting such a centre was 2000 sq. ft.

and an eviction petition was also filed against M/s. J.K. Industries. It

may be stated that said M/s. J.K. Industries has vacated that portion

of the building and is now available to the appellant.

The contesting respondent opposed the application inter

alia on the grounds that (1) neither the appellant nor his son has

sufficient resources to set up such a centre, (2) the suit premises is

neither suitable nor sufficient for the above purpose and (3) that it is

only a dream of the appellant to start the computer consultancy

centre. It was averred that respondent No.1 has got dealership of

tractors, motorcycles and scooters and the suit premises have all

along been used for the said business purpose. As the suit premises

eminently situated at the market place, the contesting respondent will

suffer irreparable loss and hardship in case of eviction.

Affidavits and counter affidavits were filed by the parties,

as required under the provision of the act and rules framed

thereunder. After due consideration the prescribed authority, by

order dated 19.3.1996, dismissed the application. The appeal filed by

the landlord was also dismissed by the XIIIth Additional District Judge

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by judgment dated September 11, 1997. As stated earlier, the writ

petition was also dismissed and that is how the parties are before us.

We have heard Mr. Kavin Gulati, learned counsel for the

appellant and Mr. Chandra Shekhar, learned counsel for the

respondents.

It may be stated that after the application for eviction was

filed on January 18, 1993, a proposal was sent by the appellant on

November 10, 1993 to the Bureau of Information, Technology and

Science (shortly BITS) for franchise to open the above centre which

was granted by BITS. However, this letter was subsequently

withdrawn by a letter dated 14th December, 1994.

Both the courts below rejected the eviction petition inter

alia on the following grounds:

(1) the appellant did not have capacity to generate a fund of Rs.10

Lakh for running the proposed centre which would be

necessary to set up the business;

(2) since BITS had refused to grant franchise to Rohit, the

bonafide need of the suit premises for running the business

was not established;

(3) no affidavit was filed by Rohit to show that he has technical

know-how or inclination to run the business; and

(4) since Rohit did not start business between 1992 and 1997 by

taking any other property on rent, it could not be said that he

did not need the suit premises to run the business.

Clause (a) of sub-section (1) of Section 21 of the Act inter

alia provides that the prescribed authority may, on an application of

the landlord, order eviction of a tenant from the building under

tenancy on the grounds mentioned in the said sub-section. Clause

(a) is relevant for our purpose which inter alia provides that an

application for eviction can be filed by the landlord if the building is

bonafide required by the landlord for occupation by himself or by any

member of the family or by any person for whose benefit the

premises is held by him, either for residential purposes or for

purposes of any profession, trade or calling. Section 41 of the Act

empowers the State Government to make rules to carry out the

purposes of the Act. Exercising powers under the said provision,

Government have framed a set of rules viz. the Uttar Pradesh Urban

Buildings (Regulation of Letting, Rent or Eviction) Rules, 1972. Rule

16 is the relevant rule for release of a premises on the ground of

personal requirement. Sub-rule (2) lays down that while considering

an application for release under clause (a) of sub-section (1) of

Section 21 in respect of building let out for purposes of any business,

the prescribed authority shall also have due regard to the facts stated

in the clauses in the sub-rule. We are concerned with clause (d)

which runs as follows:

(d). where a son or unmarried or widowed or

divorced or judicially separated daughter or

daughter of a male lineal descendant of the

landlord 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.

It is settled position of law that bonafide requirement

means that requirement must be honest and not tainted with any

oblique motive and is not a mere desire or wish. In Dattatraya

Laxman Kamble versus Abdul Rasul Moulali Kotkunde and

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Another [1999 (4) SCC 1], this Court while considering the bonafide

need of the landlord was of the view that when a landlord says that

he needs the building for his own occupation, he has to prove it but

there is no warrant for presuming that his need is not bonafide. It

was also held that while deciding this question, Court would look into

the broad aspects and if the Court feels any doubt about bonafide

requirement, it is for the landlord to clear such doubt.

In Raghunath G. Panhale (D) By Lrs. versus Chaganlal

Sundarji and Co. [1999 (8) SCC 1] this Court inter alia held that it

was not necessary for landlord to prove that he had money to invest

in the new business contemplated nor that he had experience of it. It

was a case for eviction on the ground of bonafide requirement of the

landlord for non-residential purpose, as he wanted to start a grocery

business in the suit premises to improve his livelihood.

Regarding financial capacity of the appellant, the courts

below have held that appellant did not have financial capacity. From

records we find that the appellant produced revenue records to show

his ownership over agricultural land in addition to the suit premises

and made a categorical statement that he would be able to raise fund

from financial institutions. Both the courts below with mathematical

precision considered this aspect while coming to the fact that he does

not have financial capacity. We are of the view that these are

irrelevant consideration as the question of having necessary fund to

start the business is not at all necessary in view of the law laid down

by this Court in the above decision namely Dattatraya Laxman

Kamble (supra). That apart, as the appellant has got immovable

property it would not be difficult for him to raise necessary fund and,

therefore we hold that the finding on this point of the courts below is

not sustainable.

Regarding second finding of the withdrawal of the letter

for franchise by BITS of the courts below, we find from the record that

there is a clear averment made by the appellant that his son wanted

to open a computer consultancy centre on his own and only to make

the business viable, he made an application for franchise after the

eviction suit was filed. Merely because the franchise was withdrawn

by BITS, it will be incorrect to come to the conclusion that the son of

the appellant would not be able to start the business when he has the

requisite qualification being a holder of post degree diploma in

computer science and has the capacity to arrange funds. It was not

the case of the appellant that his son would be able to start the

business only after obtaining franchise. It has also been urged on

behalf of the appellant that letter from BITS was produced before the

Court only to show the requirement of 2000 sq. ft. of space for the

purpose of running the business in question. We are, therefore, of the

opinion that the findings of the courts below are erroneous. Courts

below have taken adverse note, as Rohit did not file any affidavit to

show his technical know-how and inclination to run the business.

Such an affidavit is not necessary as regarding technical know-how, a

copy of the diploma of Rohit has been filed and his father has made a

categorical statement that his son would run the business in the suit

premises.

Another reasoning of the courts below is that as Rohit did

not start the business between the year 1992 and 1997 by taking any

property on rent, it could not be said that the appellant needed the

suit premises to run the business. There is a categorical averment by

the appellant that the business was to be started in the suit premises

and the appellant would not be able to take any other premises on

rent. Not starting the business in a rented premises during the

above-mentioned period, cannot be a ground to deny decree for

eviction of the suit premises. This Court in Gaya Prasad versus

Pradeep Srivastava [2001 (2) SCC 604] relying on early decisions of

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this Court held that the crucial date for deciding as to bonafide of

requirement of landlord is the date of his application for eviction. It

was a case of bonafide requirement of the premises in question for

starting a clinic by the son of the landlord. The litigation continued for

23 years and during that period the son of the landlord joined

Provincial Medical Service and was posted at different places. The

Court refused to take notice of the subsequent event holding that

crucial date was the date of filing of the eviction petition.

The courts below completely overlooked clause (d) of

sub-rule (2) of Rule 16 of the rules while deciding the eviction petition.

From the rule extracted earlier, the court has to ascertain whether the

son of the landlord has completed technical education and is not

employed in the government and wants to engage in self-

employment. All the criteria laid down in the said clause have been

proved and, therefore, appellant is entitled to get the decree for

eviction.

It is on record that the tenant has purchased the adjoining

property. He has stated in the written statement that he is a

prosperous businessman. From the report of the commissioner

appointed by the court we find that in the property purchased by the

tenant a mazanine floor has been constructed and that suit premises

is used only to store spare parts. The tenant has got other premises

wherefrom he is running his business. On the other hand the

appellant has no other premises except the suit premises to start the

proposed business of his son. We, therefore, hold that landlord

would suffer greater hardship if eviction is refused.

We find merit in the present appeal and accordingly it is

allowed by setting aside the impugned judgments of the courts below.

The eviction petition filed by the appellant is allowed and

a decree for eviction would follow. Cost on the parties.

..J.

[Syed Shah Mohammed Quadri]

..J.

[S.N. Phukan]

November 20, 2001