LexGANGA DEVI versus DISTT. JUDGE, NAINITAL AND ORS.
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[2008] 8 S.C.R. 538 A GANGA DEVI -+-- " v. DISTT. JUDGE, NAINITAL AND ORS. (Civil Appeal No. 3541 Of 2008) B MAY 13, 2008 [S.S. SINHA AND LOKESHWAR SINGH PANTA, JJ.] )I;;. UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972- s.21(1)(a)- UP Urban Buildings (Regu- c lation of Letting, Rent and Eviction) Rules, 1972 - r.16(2) - Release Qf shop under occupation of tenant - On. ground of personal requirement - Held: Comparative hardship is a rel- evant factor for determining the question as to whether the re- quirement of th.e landlord is bona fide or not - It is essentially a D question of fact- Such a question of fact, however, is to be de- termined on the touchstone of the statutory provisions as con- )- .. fained in s.21 (.1 )(a) of the Act and r.16(2)(c) of the Rules - On facts, Respondent-landlord did not have any business - Hence, question of application of the factors as envisaged in the first E part of clause (c) of Sub-Rule. (2) of r.16 did not arise - On the findings of the Appellate Authority, no alternate accommoda- lion was available with him - Hence the question of any such premises being let out in favour of Appellant does not arise - There is a/so nothing on record to show that for the .last so many F years, Appellant had made any effort to find out a tenanted pre- mises for herself so that she can continue with her business - ). • Six months time granted to Appellant to vacate the premises. The husband of Appellant was a tenant in the shop in question. He died leaving behind Appellant and two G daughters. The daughters are married and have no con- cern with the shop in question. Respondent-landlord had retired from the Army and was living with his wife and -t. children. He was drawing a sum of Rs.2,000/- by way of pension and wanted to start his business in the said shop. H 538 GANGA DEVI v. DISTT JUDGE, NAINITAL 539 AND ORS. -~ He filed an application for release of the shop on ground A of bona fide requirement before the prescribed authority being Chief Judicial Magistrate, Nainital in terms of Sec- tion 21 (1) (a) of U.P. Urban Buildings (Regulation of Let- ting, Rent and Eviction) Act, 1972. The application was dismissed, inter a/ia, on the premise that Respondent paid B a shop other than the shop in question. The Appellate #Ji Authority, however, reversed the said order holding that Respondent was in bona fide need of the said shop for the purposes of carrying out an independent business. As regards comparative hardship, it was held that Rule c 16 of the Rules framed in terms of s.41 of the Act of 1972 would not be a ground for refusing to allow a release ap- plication. The writ petition filed by Appellant thereagainst was dismissed by the High Court. .. ~. In appeal to this Court it was contended that the High D Court failed to ta~e'into consideration the scope and pl!r- port of the 4th proviso appended to s.21 (1 )(a) of the Act vis-a-vis r.16 of the Rules; that while considering the ques- tion of comparative hardship, the Appellate Court as also the High Court should have made an attempt to balance E the requirements of both the landlord and tenant by di- recting division of the tenanted premises into two, and that the fact that the husband of the Appellant was the ...._ tenant in the shop in question for a long time, viz., for more • than 50 years, is itself a pointer to show that r.16 of the F Rules would be applicable. The contention of the Appel- lant is that she is a 76 years old lady and that she has to run business from the shop in question as of necessity. Dismissing the appeal, the Court HELD:1.1. Before the Prescribed Authority, no plea G *t was taken by the appellants that another shop was avail- able to the Respondent. The Prescribed Authority, on the basis of a purported statement made by the sister of the Respondent, arrived at a purported finding that ground- H 540 SUPREME COURT REPORTS [2008) 8 S.C.R. A floor of one building, known as, "Durga Cottage" is avail- able. The Appellate Authority, however, upon consider- ation of the entire materials on record arrived at a differ- ent conclusion opining that Respondent has been living with his wife and children independently and having re- B gard to the fact that admittedly he has been receiving a petty sum of Rs.2,000/- by way of pension wherewith it was not possible to maintain a family of 4-5 members, he must augment his source of inco
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