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The Allahabad High Court, while recently upholding the order of the Lower Appellate Court of allowing the release application filed by the landlord on the ground that the shop was required for constructing a clinic & using the same as the passage, has observed that requirement of additional space for expansion of business is bond fide & genuine. 

“Landlord has every right to expand his business and in case he requires additional space for it, the need cannot be said to be mala fide.”, Single Bench of Justice Vivek Kumar Birla noted. 

In the present matter, the landlord (‘respondent”) filed a release application for release of the shop on the ground that the shop was needed for his doctor sons for clinic and for using the same as the passage, which was required for connecting the landed property behind the shop on which the landlord wanted to construct the hospital. The same was contested by the tenant (“petitioner”) because the landlord already had a nursing home/hospital, and therefore, the shop in question was not required. Thus the Trial Court vide order dated 1.04.2019 allowed the release application in favor of the respondent because the need for release was bonafide. The petitioner filed an appeal challenging the order of the Trial Court, which was before the Appellate Court, which was also rejected on 09.11.2020 on the ground that the need of the landlord for the shop was genuine & bonafide. Thus, the petitioner filed the present petition challenging the impugned order dated 9.11.2020 passed by Respondent no. 1 (Lower Appellate Court). The impugned order dated 1.4.2019 was given by Respondent no. 2 (Trial Court).

The Bench placed reliance on the judgement of this Court in Surendra Singh v. Additional District Judge Court No 11, Muzaffarnagar & 4 others,2019 in which it was observed that, 

“Landlord is the best judge of his need and this Court can not interfere in concurrent findings of fact regarding bonafide need established before the Prescribed Authority and the appellate authority. This Court can interfere only when there is perversity in the findings recorded or when the courts below have acted without jurisdiction or far in excess of jurisdiction. A landlord has got a right to expand his business and in case, he requires additional space for it, the need cannot be said to be malafide. The tenant cannot dictate terms to the landlord as to how he should satisfy his needs. Landlord is the sole person who can make a decision as to which shop fulfils his needs and the needs of his family. The tenant or for that matter even the Court cannot guide the landlord as to which accommodation he should view to fulfil his need and which accommodation he shall not use.”

The Court also referred to the judgement of the Supreme Court in Sarla Ahuja v. United India Insurance Company Ltd (1998) 8 SCC 119:

".........When a landlord asserts that he requires his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlords as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite necessary to make an endeavour as to how else the landlord could have adjusted himself."

Thus the Bench while rejecting the petition directed the petitioner/tenant to file an undertaking before the Court containing the following: 

(1) The tenant-petitioner shall handover the peaceful possession of the shops in question to the landlord respondent on or before 30.6.2021. 

(2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within four weeks from the date of receipt of self-verified copy of this order; 

(3) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute; 

(4) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period; 

(5) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically. 

(6) In case the shop is not vacated as per the undertaking given by the tenant, he shall also be liable for contempt.

“In the present case, there are four doctors in the family of the landlord and if the need is being shown for establishing the hospital/nursing home or for expansion of professions, the same cannot be said to be mala fide in nature. Insofar as the comparative hardship is concerned, it is not in dispute that the tenant-petitioner has never made any effort to search out any shop during the pendency of litigation and that the landlord offered him a shop which he denied to accept the same, therefore, the issue of comparative hardship has also been correctly decided in favour of the landlord.”, the Bench observed. 

Case Title: Farukh @ Faruk Khan v. Appellate Authority /Additional District Judge & 2 Others 

Law Point/ Statute Involved : Article 226 of the Constitution of India, Section 21(1)(a) of U.P. Act 13 of 1972