G.C.KAPOORversusNAND KUMAR BHASIN AND ORS.

A                              G.C.KAPOOR
                                    v.
                        NAND KUMAR BHASIN AND ORS.

                                NOVEMBER 20, 2001

B        [SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.]

          Rent Control and Eviction :

            Uttar Pradesh Urban Buildings (Regulation of letting, Rent and Evic-
    tion) Act, 1972/Uttar Pradesh Urban Buildings Regulation of letting Rent and
c   Eviction Rules, 1972--Sec.21(I)(a) Rule 16(2)(d)-Eviction of tenant-Suit
    premises let out when son of landlord was a minor-Subsequently landlord's
    son obtained post-graduate diploma in computer science-Application
    for eviction filed on the ground ofbona fide requirement for starting a computer
    consultancy centre-Dismissed by Courts below inter alia on the ground that
D   landlord had no financial capacity to start the business and no affidavit was
    filed to show technical know-how-Justification of-Held, since the landlord's
    son has completed technical education and is not employed in Government and
    wants to engage in self-employment, criteria specified in Rule 16(2){d) are
    satified-Financial capacity to stan business is not relevant consideration for
    eviction-Since the tenant was having alternative premises to run his business
E
    and landlord having no other premises except the suit premises, landlord would
    suffer greater hardship if eviction is rejected-Landlord entitled to eviction
    decree.

          The suit premises was let out by appellant to respondent No. 1 at the
F   time when his son 'R' was a minor. Subsequently 'R' obtained a post-
    graduate diploma in computer science. Appellant-landlord filed an evic-
                                                                                       •
    tion application under section 2l(l)(a) of the Uttar Pradesh Urban Build·
    ings (Regulation of Letting, Rent and Eviction) Act, 1972, on the ground
    that the suit premises was required bona fide for starting a computer

G
    consultancy centre by 'R'.After filing the eviction petition appellant sent a
    proposal to the Bureau oflnformation, Technology and Science (BITS) for            -
    grant of franchise to open a computer consultancy centre. The franchise
    was initially granted but was subsequently withdrawn. The eviction peti·
    tion was dismissed by th• prescribed authority interalia on the ground that
    appellant did not have the financial capacity to start the business and no
H   affidavit was filed to show that 'R' had technical knowledge to start the
                                          282
                  G.C. KAPOOR v. NAND KUMAR BHASIN                       283
business. Appellant unsuccessfully filed appeals before the Additional Distict   A
Jduge and High Court. Hence the present appeal by appellant-landlord.

      Allowing the appeal, the Court

       HELD : 1. The courts below were not justified in dismissing the
eviction petition of the appellant-lanlord. Appellant is entitled to decree      B
for eviction under Section 2l(l)(a) of the Uttar Pradesh Urban Buildings
(Regulation of Lettings, Rent and Eviction) Act, 1972. (285-A; 289-B-C]

     2.1. Bonafide requirement means that requirement must be honest
and not tainted with any oblique motive and is not a mere desire or wish.
                                                                  [287-A]        c
      Dattatraya Lc.xman Kamble v. Abdul Rasul Moulali Kotkunde and Anr.,
(1999] 4 SCC 1 and Raghunath G. Panhale (D) by Lrs. v. Chaganlal Sundarji
and Co., [1999] 8 SCC 1, relied on.

       2.2. The courts below completely overlooked Rule 16(2)(d) of the          D
Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction)
Rules, 1972 while deciding the eviction petition. The said rnle provides
that 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        E
said clause have been proved in the instant case and, therefore, appellant
is entitled to get the decree for eviction. (288-F-G]

       2.3. The courts below erred in holding that appellant did not have
financial capacity to start the business. Both the courts below with math-
ematical precision considered this aspect while coming to the conclusion         F
that he does not have financial capacity. These are irrelevant considera-
tions as the question of having necessary funds to start the business is not
at all necessary. That apart. as the appellant has got immovable property
it would not he difficult for him to raise necessary funds. (287-D-F]
                                                                                 G
      Dattatraya La.xman Kamble v. Abdul Rasul Moulali Kotkunde and
Anr., [1999] 4 SCC 1, relied on.

      2.4. Merely because the franchise was withdrawn by BITS, it will be
incorrect to come :o the conclusion that the son of the appellant would not
be able to start the business when he has the requisite qualification being a    H
    284                  SUPREME COURT REPORTS                [2001] SUPP. 5 S.C.R.
A   holder of post degree diploma in computer science and has the capacity to
    arrange funds. Courts below have taken adverse note, as 'R' did not file any
    affidavit to show his technical know-how and inclination to run the busi-
    ness. Such an affidavit is not necessary as regarding technical know-how, a
    copy of the diploma of 'R' has been filed and his father has made
    a categorical statement that his son would run the business in the suit
B
    premises. [287-H; 288-A·B]

           2.5. Not starting the business in a rented premises cannot be a
    ground to deny decree for eviction of the suit premises. There is a categori-
    cal averment by the appellant that the business was to be started in the suit
c   premises and the appellant would not be able to take any other premises on
    rent. [288-D]

            Gaya Prasad v. Pradeep Srivastava, [2001] 2 SCC 604, relied on.

           3. It is on record that the tenant has purchased the adjoining prop-
    erty wherefrom he is running his business and the suit premises is used
D
    only to store spare parts. On the other hand the landlord has no other
    premises except the suit premises to start the proposed business of his son.
    Thus, in the instant case, landlord would suffer greater hardship if eviction
    is refused. [288-H; 289-A]

E           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1394 of 1999.

          From the Judgment and Order dated 12.1.98 of the Allahabad High Court
    in C.W.P. No. 2(R) of 1998.

            Kavin Gulati, Medhanshu Tripathi and Ms. Nandini Gore for the Appel-
    !ant.
F
            Chandra Shekher and S. K. Verma for the Respondents.

            The Judgment of the Court was delivered by

          PHUKAN, J. This appeal, by special leave, arises from the judgment of
G   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. I and at that time his son Rohit was a minor. In the year 1992, Rohit
H   obtained a post-graduate diploma in compuier science and tl:ereafter the appellant
           G.C. KAPOOR v. NAND KUMAR BHASIN [PHUKAN, J.]                     285
filed an application under clause (a) of sub-section (1) of Section 21 of the        A
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
                                                                                     B
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.                                                          c
       The contesting respondent opposed the application inter alia on the
grounds that (I) 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. I has got            D
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      E
under the provision of the act and rules framed thereunder. After due consid-
eration the prescribed authority, by order dated 19.3.1996, dismissed the ap-
plication. The appeal filed by the landlord was also dismissed by the XIIlth
Additional District Judge by judgment dated September 11, 1997. As stated
earlier, the writ petition was also dismissed and that is how the parties are
before us'.                                                                          F

     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          G
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:                                                                   H
    286                  SUPREME COURT REPORTS                [2001] SUPP. 5 S.C.R.
A            (I)   the appellant did not have capacity to generate a fund of Rs.IO
                   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 bonqfide
                   need of the suit premises for running the business was not
B                  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
c                  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 (I) of Section 21 of the Act inter alia provides
    that the prescribed authority may, on an application of the landlord, order
D   eviction of a tenant from the building under tenancy on the grounds men-
    tioned 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,
E   !fade 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 and Eviction) Rules, 1972. Rule 16 is
    the relevant rule for release of a premises on the ground of personal require-
F   ment. Sub-rule (2) lays down that while considering an application for release
    under clause (a) of sub-section (I) 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:
G            "(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 buildiqg 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
H            due consideration."
            G.C. KAPOOR v. NAND KUMAR BHASIN [PHUKAN, J.]                     287
       It is settled position of law that bona.fide requirement means that require-   A
ment must be honest and not tainted with any oblique motive and is not a mere
desire or wish. In Dattatraya Laxmari Kamble v. Abdul Rasul Moulali Kotkunde
and Anr, [1999] 4 SCC l, this Court While· considering the bom!fide 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
                                                                                      B
'presuming that his need is not bona.fide'. 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. v. Chaganlal Sundarji and Co.,
[1999] 8 SCC I this Court inter alia held that it was not necessary for landlord      c
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 e.viction 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 liveli.hood.

       Regarding financial capacity of the appellant, the courts below have held      D
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
                                                                                      E
that he does not have financial capacity. We are of the view that these are
irrelevant consideration as the q'uestion 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     F
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 avcrment
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        G
for franchise after the eviction st•it 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      H
    288                  SUPREME COURT REPORTS                 [2001] SUPP. 5 S.C.R.
A   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 busines~ 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-
B
    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 ca!~gorical statement that his son would run the
    business in the suit premises.

c          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
D   abpve-mentioned period, cannot be a ground to deny decree for eviction of the
    suit premises. This Court in Caya Prasad v. Pradeep Srivastava [2001] 2 SCC
    604 relying on early decisions of 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 bonqfide requirement of the premises in question
E   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.

F          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 ex-
    tracted 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
G
    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
H   property purchased by the tenant a mezzanine floor has been consttucted and
               G.C. KAPOOR v. NAND KUMAR BHASIN [PHUKAN, J.]                  289
    that suit premises is used only to store spare parts. The tenant has got other    A
    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       B
    setting aside the impugned judgments of the courts below.
1
           The eviction petition filed by the appellant is allowed and a decree for
    eviction would follow. Cost on the parties.

    S.V.K.                                                       Appeal allowed.      C