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2006 Supreme(All) 346
[2006(4) ADJ 269 (All)
ALLAHABAD HIGH COURT
BEFORE : S.U. KHAN, J.
FAIYAZ KHAN ......Petitioner
Versus
IInd ADDITIONAL DISTRICT JUDGE, JHANSI AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 14181 of 1989, decided on 6th February, 2006)
IMPORTANT POINT
Not permissible for the Courts to super imposed the imaginary hardship on bona fide need in such a manner that it engulfed the bona fide need totally.
Headnote:(A) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972—Section 21—U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972—Rule 15(2)—Release of accommodation—Application for—Dismissed—Appeal—Dismissal of—Legality—Bonafide need of landlord—Concurrent finding—Release application by one of the co-owners maintainable—Goodwill of tenant—Can be compensated by awarding compensation not exceeding two years' rent in view of Section 21(1) Proviso Second of the Act. [Paras 3 to 6]
(B) Rent law—Good will—Not much relevant for doctors. [Para 7]
(C) Rent law—Comparative hardship—Concept of—Cannot be stretched to the extent of depriving the landlord of his property even if landlord is in real and imminent need. [Para 8]
(D) Rent law—Comparative hardship—Landlord a man of very limited financial means—Desired to settle his son who had passed only Class VIII and was plying tempo—Tenant was doctor who could very well arrange another accommodation—Highly inadequate rent—Tenant must have saved lot of money—Money saved is money earned—25 years passed since filing of release application—Courts below superimposed the imaginary hardship on bonafide need in such a manner that it engulfed the bonafide need totally—Findings of two Courts below that balance of hardship lay in favour of the tenant is utterly erroneous in law—Release application allowed—Tenant granted six months time to vacate the premises. [Constitution of India, Article 226—U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, Section 21]. [Paras 9 to 17]
Hon’ble S.U. Khan, J.—This is landlord’s writ petition arising out of eviction/release proceedings initiated by Faiyaz Khan original landlord petitioner since deceased and survived by legal representatives against Dr. Aziz who died during pendency of the proceedings before prescribed authority and was substituted by respondent Nos. 3 to 13 in the form of case No. 102 of 1980. It was filed on the ground of bonafide need under Section 21 of U.P. Act No. 13 of 1972 before prescribed authority.
2. Release application was initially allowed on 29.1.1982 finding the need of the landlord to be bonafide and deciding the question of comparative hardship also in favour of the landlord. However the said judgment was set-aside in part in appeal and the matter was remanded to the prescribed authority to decide the question of comparative hardship again. After remand prescribed authority/ Additional Civil Judge, Jhansi dismissed the release application on 31.10.1985, however in the said judgment also bonafide need of the landlord was found to be fully established. Release application was dismissed on two grounds; firstly it was held that Dr. Amin one of the substituted legal representatives of original tenant Dr. Aziz had inherited not only the tenancy but the practice of his father and in case he was ejected he would the patients of his father. The other ground taken by the prescribed authority for rejecting the release application was that the tenancy was continuing since the time of father of the applicant Faiyaz Khan and as his father had left behind other sons also (i.e. brothers of Faiyaz Khan) hence release application was not maintainable as the other landlords had not signed the same in accordance with Rule 15(2) of the rules framed under the Act. This question is no more res integra. A Full Bench authority of this court in Gopal Das v. A.D.J. 1987 (1) ARC 281 has held that even one of the landlords can file release application under Section 21 of the Act. Against the judgment and order dated 31.10.1985, landlord petitioner Faiyaz Khan filed R.C. Appeal No. 71 of 1985. IInd Additional District Judge, Jhansi dismissed the appeal through judgment and order dated 22.4.1989, hence this writ petition.
3. Appellate court also examined the question of bonafide need thoroughly and recorded independent finding to the effect that need of the landlord Faiyaz Khan to settle his son Sarfaraz Khan in business was quite bonafide (now Sarfaraz Khan is one of the petitioners substituted after the death of original petitioner Faiyaz Khan). All the courts at every stage held that Sarfaraz Khan was not doing any regular job and mere fact that he had a tempo did not satisfy his need. If for want of proper accommodation to start business landlord or any of his family members engages himself in temporary and casual jobs, it does not satisfy or substantially mitigate the need (vide Ramkubai v. H.D.Chandak, AIR 1999 SC 3089.
4. In respect of maintainability of release application by one of the co-owners, appellate court even though discussed the above authority of Gopal Das still it held that the release application was not maintainable. The finding is just contrary to the aforesaid authority of Gopal Das hence it is set-aside.
5. Appellate Court also agreed with the trial court that balance of hardship lay in favour of the tenant particularly Dr. Amin as in case of eviction he would be deprived of patients of his father. It was further held that his father had established a goodwill, which was inherited by his son Dr. Amin.
6. In respect of goodwill tenant can be compensated by awarding compensation not exceeding two years rent as provided under second proviso to Section 21(1) of the Act.
7. Goodwill is not much relevant for doctors. Patient comes to doctor on the basis of his ability and competency. In any case about a year or two had already passed since the time of death of original tenant when prescribed authority decided the release application. Du
