# BEGA BEGUM AND ORS v. ABDUL AHAD KHAN AND ORS

- **Citation:** [1979] 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1978-10-06
- **Case number:** Civil Appeal No. 2481 of 1978
- **Bench:** S. Murtaza Fazal Ali, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bega-begum-and-ors-v-abdul-ahad-khan-and-ors-7501
- **Pages:** 15

## Headnote

lammu nnd Kashmir Houses and Shops Rent Control Act, 1966, Section
11(h)-Meuning of the words '{reasonable requirement" and "own occupation"
in Section 11 ('1 )-Balance of convenience in cases of eviction, explatnedConstitutlDn of India, 1950, Art. 136, interference by Supreme Court with concurrent findings of Courts below.
The appeJJants-plaintiffs sought the eviction of the respondents-defendants
fro::n the suit premises which was leased to the latter for a period of ten years
only and for running a hotel, on the grounds (a) of personal :rnquirement to
run a hotel business themselves and (b) of the failure of the res pendents to
deliver possession after the expiry of the period of lease despite notices issued.
The Trial Court and t.1-e High Court in appeal having dismissed the suit, the appellants 9btaine.d special leave of this Court.
Allowing the appeal, the Court
EIELD : 1. The Jammu and Kashniir Houses and Shops Rent Control Act,
1966 is a piece of social legislation aimed at easing the problem of accommodation. protecting the tenants from evictions inspired by profit hunting motives
and providing certain safeguards for the tenants and saving them from great
expense, inconvenience and trouble.
But the Act does not completely overlook
the interest of the landlord and has under certain conditions granted a clear
right to the landlord to seek eviction on proof of the grounds mentioned in
section 11 of the Act.
Thus, the Act appears to have· struck a just balance
between the genuine need of the· landlord on the one hand and great inconvenience
and trouble which may be caused· to the tenants on the other. In the instant
.case, the defendants had taken the property on lease only for a period of 10
years and now they have been in prossession of the same for over 30 years.
If ihe plaintiffs found that their present business had become dull .and was not
yieJding s11fl1cil'nt income to maintain themselves, aild therefor:e, it \vas necessary
to occupy the house so as to run a hotel business, it cannot by any stretch of
imagination be said that the plaintiffs had merely a desire rather than a bonafide
need for cvicttng the tenants.
The findings of the High Court that the plain·
tiffs had not pro·:ed that they had a bonafide need for occupation of the building
in dispute is incorrect. [7E-H, SA]
2. Section 11 (h) of the Act uses the words 'rev.nnable requirement' 'vhich
undoubtedly postulate that there must be an element of need as opposed to a
mere desire o:· wish. The distinction between desirei and need should doubtless
be kept in r:iind but not so as to make even the genuine need ll'!l nothing but
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a desire as the High Court has done in this case. The connotation of the term
'need' or 'requirement' should not be artificially extended nor its language so
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unduly stretched or strained as to make it impossible or extremely difficult for the
landlord ·to get a de~ree for eviction. Such a course would defeat the very pur-
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SUPREME COURT REPORTS
[1979] 2 S.C.R.
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pose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This is the general scheme of all the Rent Control Acts, prevalent in other States in the country.
The word "requirement'~
merely connotes that there should be an element of need. In such cases the main
test should be \vhether it was necessary for the landlords to need the premises
for their own use or occupation. [8A-D, F]
8
In the instant case, the pl&intiffs had proved that the requirement for the
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house for starting a hotel business was both genuine and reasonable and even
imperative, bee.a.use the scanty income of the plaintiffs was not sufficiert to
maintain them or to afford them a decent or comfortable living. [9A-B]
Phiroze Ra1nanji Desai v. Chandrakant N. Patel and Ors [1974] 1 SCC 661;
applied.
B. Baliah v. Chandoor Lachaiah, A.LR. 1965 A.P. 435 (D.B.) approved.
3. The \\C.rds "own occupation" in S. 11 (h) cannot be so narrow

## Text

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I
BEGA BEGUM AND ORS.
v.
ABDUL AHAD KHAN AND ORS.
October 6, 1978
[S. MURTAZA FAZAL ALI AND P. N. SHINGHAL, JJ.J
lammu nnd Kashmir Houses and Shops Rent Control Act, 1966, Section
11(h)-Meuning of the words '{reasonable requirement" and "own occupation"
in Section 11 ('1 )-Balance of convenience in cases of eviction, explatnedConstitutlDn of India, 1950, Art. 136, interference by Supreme Court with concurrent findings of Courts below.
The appeJJants-plaintiffs sought the eviction of the respondents-defendants
fro::n the suit premises which was leased to the latter for a period of ten years
only and for running a hotel, on the grounds (a) of personal :rnquirement to
run a hotel business themselves and (b) of the failure of the res pendents to
deliver possession after the expiry of the period of lease despite notices issued.
The Trial Court and t.1-e High Court in appeal having dismissed the suit, the appellants 9btaine.d special leave of this Court.
Allowing the appeal, the Court
EIELD : 1. The Jammu and Kashniir Houses and Shops Rent Control Act,
1966 is a piece of social legislation aimed at easing the problem of accommodation. protecting the tenants from evictions inspired by profit hunting motives
and providing certain safeguards for the tenants and saving them from great
expense, inconvenience and trouble.
But the Act does not completely overlook
the interest of the landlord and has under certain conditions granted a clear
right to the landlord to seek eviction on proof of the grounds mentioned in
section 11 of the Act.
Thus, the Act appears to have· struck a just balance
between the genuine need of the· landlord on the one hand and great inconvenience
and trouble which may be caused· to the tenants on the other. In the instant
.case, the defendants had taken the property on lease only for a period of 10
years and now they have been in prossession of the same for over 30 years.
If ihe plaintiffs found that their present business had become dull .and was not
yieJding s11fl1cil'nt income to maintain themselves, aild therefor:e, it \vas necessary
to occupy the house so as to run a hotel business, it cannot by any stretch of
imagination be said that the plaintiffs had merely a desire rather than a bonafide
need for cvicttng the tenants.
The findings of the High Court that the plain·
tiffs had not pro·:ed that they had a bonafide need for occupation of the building
in dispute is incorrect. [7E-H, SA]
2. Section 11 (h) of the Act uses the words 'rev.nnable requirement' 'vhich
undoubtedly postulate that there must be an element of need as opposed to a
mere desire o:· wish. The distinction between desirei and need should doubtless
be kept in r:iind but not so as to make even the genuine need ll'!l nothing but
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a desire as the High Court has done in this case. The connotation of the term
'need' or 'requirement' should not be artificially extended nor its language so
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unduly stretched or strained as to make it impossible or extremely difficult for the
landlord ·to get a de~ree for eviction. Such a course would defeat the very pur-
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SUPREME COURT REPORTS
[1979] 2 S.C.R.
A
pose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This is the general scheme of all the Rent Control Acts, prevalent in other States in the country.
The word "requirement'~
merely connotes that there should be an element of need. In such cases the main
test should be \vhether it was necessary for the landlords to need the premises
for their own use or occupation. [8A-D, F]
8
In the instant case, the pl&intiffs had proved that the requirement for the
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house for starting a hotel business was both genuine and reasonable and even
imperative, bee.a.use the scanty income of the plaintiffs was not sufficiert to
maintain them or to afford them a decent or comfortable living. [9A-B]
Phiroze Ra1nanji Desai v. Chandrakant N. Patel and Ors [1974] 1 SCC 661;
applied.
B. Baliah v. Chandoor Lachaiah, A.LR. 1965 A.P. 435 (D.B.) approved.
3. The \\C.rds "own occupation" in S. 11 (h) cannot be so narrow~y htterpreted as to indicate actual physical possession of the landlord personally and
nothing sho1t of that. The provision in S. 11 (h) of the Act is meant for the
benefit of the landlord and, therefore, it must be so construed as to advance
the object of the Act.
The word 'occupation' does not exclude the possibility
of the landlord starting a business or running a hotel in the shop wbkh also
would amount to personal occupation by the landlord. The section contemplates
the actual possession of the landlord, whether for his own residence or for
his business.
It is manifest that even,. if the landlord is running a hotel in
the .i1ou~c, he i~ undoubtedly in possession or occupation of the house in the
Jeg&l sense cf the term.
Furthermore, the section is wide enough to include
the necessity of not only the ~andlord but also of the persons \Vho are living
with him as member~ of the same family. [9G-H, lOA and DJ
In the instant case there can be no n1anner of doubt that the house was
required for the personal residence or occupation of all the three plaintiffs who
ad1nittedly were the owners of the house.
The fact that the plaintiffs wanted
to occupy the property for running hotel would not take their case out of the
ambit of personal necessity and the occupation of a house may be required
by the owner for personal purposes.
I-Ie may choose to reside himself in the
house or run a business in the house or use it as a paying guest house and
derive income therefrom.
In aJI these cases even though the owner may not
physically reside in the house, the house in law would nevertheless be deemed
to be in actual oc9upation of the owners. llOA-CJ
4. (a) In deciding the aspect of balance of convenience of the parties in an
eviction suit each party has to prove its relative advantages or disadvantages
and the entire onus cannot be thrown on the plaintiffs to prove that lesser disaJv<inlagcs will be suiiered by the defendants and that they were remediable.
[!OH, I IA]
(b) It is no doubt true that the tenant will have to be ousted from the
house if a decree for eviction is passed, but such an event would happen whenever a decree for eviction is passed and was fully in contemplation of the legislature when section ll(l)(h) of the Act was introduced in the Act. This by
itself would not be a valid
ground for refusing the
plaintiffs a
decree for
eviction. [IOF-G]
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BEGA BEGUM v. A. A. KHAN (Fazal Ali, J.)
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Mis. Central 1obacco Co. v. Chandra Prakash, Civil Appeal No. 1175/69
A
[SC] dated 23-4-1969 and Phiroze Ran1anji Desai v. Chandrakant N. Patel and
Ors. [1974] I S.C.C. 661; referred to.
Kelley v. Goodwin, [1947] All E.R. P. 810; quoted with approval;
K. Parasuran1aiah v. Pokuri Lakshmamma, A.I.R. 1965 A.P. 120; approved.
( c) Being the owners of the house they cannot be denied eviction and be
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ccn1pclled to live below the poverty line merely to enable the respondents to
carry on their flourishing hotel business, at the cost of the appellants. This
sho\vs the great prejudice that
will be caused to ·the plaintiffs if their suit is
dismissed. The plaintiffs have already produced material before the court to
show that their income does not exceed more than Rs. 8000 to Rs. 9000/- per
year ~ the yearly income tax paid by them is Rs. 70 to Rs. 80 only. There
is no other means for them to augment their income except to get their own
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house vacated by the defendants so as to run a hotel business. [12H, 13A-B]
(d) On a careful comparison and assessment of the relative
advantages
and disadvantages of the landlord and the tenant, it is clear that the scale is
tilted in favour of the plaintiffs in the instant case~ The inconvenience, loss
and trouble resulting from denial of a decree for eviction in favour of the
plaintiffs far outweigh the prejudice or the
inconvenience
which
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caused to the defendants. The High
Court has
unfortunately not weighed
the evidence fron1 the point of view. [14H, 15A]
Observation :
Normally Supreme Court does not interfere with concurrent findings
of
facts but as the High Court as also the Trial Court have made a legally wrong
approach to thi:i; case and have committed a substantial and patent error of
law in interpreting the scope and ambit of the words "reasonable requirement"
and "ov"n possession" appearing in section ll(l)(h) of the Act and have thus
misapplied the law and overlooked some of the essential features of the evi·
dence. the merits of the case had to be looked into in order to prevent grave
and subst1nt.ial injustice being done to the appellant. ! 15B-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2481 of 1978.
Appeal by Special Leave from the Judgment and Order dated
10-10-67 of the Jammu and Kashmir High Court in Civil First Appeal
No. 18 of 1%6
·
Lal Narain Sinha, E. C. Ag'μrwala, M. M. L. Srivastava, R. Salish
aqd A ltaf Ahmed for the Appellant.
S. N. Andie)", B. P. Maheshwari and Suresh Sethi for the Respondent
The Judgment of the Court was delivered by
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F~AL ALI, J.-This is a plaintiffs' appeal by special leave against a· H
judgment dated 10th October, 1966 ofthe Jammu & Kashmir High Court
dismissing the plaintiff's suit.
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SUPREME COURT REPORTS
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The facts of the case lie within a very narrow compass and after
hearing counsel for the parties we propose to decide only one point, viz.,
the qnestion as to whether or not the plaintiffs were entitled to a decree
of ejectment against the defendants in respect of the house in question on
the ground of personal necessity, and, therefore, we shall narrate only
those facts which are germane for this purpose.
The property in suit was a four-storeyed building situated at Maisuma
Lal Chowk, Srinagar and belonged to one Peer Ali Mohammad,
the
ancestor of the plaintiffs.
This building was leased out to the defendants by a registered lease deed dated 1st December,, 1947 for a period
of 10 years.
Under the lease the lessor had provided some furniture
and crockery to the lessees.
Furthermore, it was clearly stipulated
that the building was leased out for the purpose of running a hotel by
the lessees, and for this purpose the lessees wern given the right to m1ke
suitable alterations in the same, but were prohibited from making any
alteration which may affect the durability or damage the building. On
the expiry of the period of the lease, the appellants demanded possession
of the building from the respondents and despite. certain notices given by
the a'ppellants the respondents failed to give possession of the building.
Hence the plaintiff's suit.
The plaintiffs had taken three main grounds in support of their contention for ejectmcnt of the defendants from the ;uit premises. In the
first place, the appellants alleged that they required the building in order
to extent! their business by running a hotel there themselves; secondly,
as the lease lmd expired by efflux of time, the respondents were
~egally bound to surrender possession.
Thirdly, it was averred by the
plaintiffs that the J ammu & Kashmir Houses and Shops Rent Control
Act, 1966 (hereinafter referred to as the Act) was wholly inapplicable
to the premises in dispute, because the yearly income of the defendants
far exceeded Rs. 20,000 and that running a hotel did not fall within the
ourview of section 2(3) of the Act.
The suit was resisted by
the
~espondents who took, inter alia, a number of objections to the grant
of the relief to the appellants.
In the first place, it was pleaded that the
income of the respondents being less than Rs. 20,000/- per year the
suit was clearly covered by the Act.
Secondly, it was averred that the
definition of the word 'house' in section 2( 3) of the Act was wide enough
to include a hotel.
It was next averred that the plaintiffs had no personal necessity and had filed the suit merely for the purpose of getting
a hieher rent.
Lastlv, it was contended that as the plaintiffs required
tlie house fer tunning a hotel, snch a purpose did not fall within the
ambit of section 11 (ih) of the Act which applied only to such a case
where the landlord required the house for his occupation and, at any
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BEGA BEGUM v. A. A. KHAN (Fazal Ali, J.)
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rate, having regard to the comparative advantages or disadvantages of
the landlord and the tenant, them was no equity on the side of the plaintiffs.
The case was tried by the City Judge, ,Srinagar who accepted the
case of the defendants (respondents) and dismissed the plaintiffs' suit.
The plaintiffs thereupon filed an appeal before the High Court of Jammu
B
& Kashmir which held that the plaintiffs had not proved their personal
plaintiffs like ~n application for leave to appeal to this Court and the
same having been refused, they obtained special leave of this Court and
he·:ice the apP'~al before us.
In support of !he appeal Mr. Lal Narayan Sinha, counsel fOT the Jppellants submitted three points.
In the first place, he contended that there was sufricient evidence to indicate that the income of the
defendants-resrondents was more than Rs. 20,000/- a year, and, therefore, the provisions of the Act were not applicable and as the lea•e bac'
expired due to efilux of time, the plaintiffs were entitled to a decree for
ejectment straightway.
Secondly, it was argued that the word 'house'
used in section 2(3) of the Act cannot include a hotel, and, th•erefore,
the Act was not applicable.
Lastly, it was submitted that the High
Court committed a grave error of law iu holding that the plaintiffs h.id
not been able to prove personal necessity,, although the High Court gave
a clear finding that the plaintiffs had undoubtedly proved that they l1mi
a strong desire to occupy the building for running a hotel.
It was argued that the finding of the High Court was not based on a discussion ~f
the evidence and circumstances of the case and the High Court has taken
an erroneous view of law on the nature of the need of the appellants «IS
also on the question of the comparative advantages or disadvantages of
the landlord and the tenant if a decree for eviction followed.
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After having heard counsel for the parties we are clearly of the opinion that the appeal must succeed on the third point raised by learned
counsel for the appellants, i.e., the question of personal necessity and
in this view of the matter we refrain from expressing any opinion on the
applicability of the Act to the suit premises as averred by the respondents.
Learned counsel for the appellants contended that there was
sufficient malerial before the Court to show that the plaintiffs did
not
merely have a desire to occupy the building, but they actually needed
tne s;11ne, and tf.eir need is both genuine and reasonable.
In this connecti-~r., refor.ce was placed on the evidence of the witnesses for the
plaintiffs which does not appear to have been considered by the High
Court. We find that the plaintiffs had clearly mentioned in their plaint
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SUPREME COURT REPORTS
[ 1979] 2 S.C.R.
that they required the house for the purpose of running the hotel business.
On behalf of the plaintiffs P.W. Mohd. Yusuf had made it
absolutely clear that they required the lease• property for their personal
need as they wanted to run the hotel themselves.
The witness had further explained that this was necessary, because the plaintiffs could not
maintain themselves from the income of .the leased property.
It is true
that the plaintiffs were doing a small business, but the witness had made
it clear that their income was very low so much so that they paid income
tax of only Rs. 70 to Rs. 80 /-·per aunum.
These facts have not been
dem0lished e1tr1er iu the cross-examination of the witness or in the evidenet of rebuttal given by the defendants.
The above evidence of the plaintiffs is corroborated by the
other
· witnesses examined by them.
P.W. Girdhari Lal has clearly stated
th:-.t the plaint;ffs want to extend their business and want to have the
hotel in their own possession to run the same. He has further stated that
the plaintiffs are ruuning their business on a small scale, and he categorically stated that he had personally observed that there is very little
work at the plaintiff's shop now a days. That is why they want to run a
hotel.
The witness is a neighbour of the plaintiffs' shop and was,
therefore, competent to depose to the facts mentioned above which
have not been shaken in cross-examination .
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P.W. Peer Ahmad Ullah has also stated that now a days peopl.e give
up other occupations and take up hotel busi."less because hotel business
is itself a profitable business.
The witness added that the plaintiff also
want to e"Xtend their business and start a hotel in this building.
P.W. Ghulam Nabi Dar also says that although the plaintiffs had a
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Boot shop they also want to run the hotel themselves, because their business has become dull.
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P.W. Ghulam Mohd. whose shop is in front of the shop of th~ plaintiffs states as follows :-
"The plaintiffs require the suit property for their own use,
as they have been telling me for the last two or four years.
Previously, the business at Boot shops was running well but
now it has become dull.
The plaintifl's intend to run the h<Yt~I
them..;elves .................... As for p!aintiffs I say that
they are in need of the hotel.
The plaintiffs require the• hotel
in order to extend their business".
Another neighbour of the plaintiffs P.W. Yash Paul states that the
plaintiffs say ti.at they will start a hotel in the suit property.
He fur-
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BEGA BEGUM v. A. A. KHAN (Fazal Ali, J.)
7
ther depo,es 1hat the1e is little work in the shop of the plaintiffs, and,
therefore, they want to start a hotel, P.W. Ghulam Mohd. who is
the
brother-in-law of P.W. Pir AL Mohd., father of the plaintiffs and w~s
looking after h~s children on the death of P.W. Pir Aii Mohd. has also
stated that the plaint;ffs want to start business in the shape of a hotel
in the hou;e and they ~.!so want to run the shop.
It is, therefore, proved
by the evidence discussed above ( 1) that the plaintiffs required the house
for their personal ner,essity in order to augment their income, (2) thJt
as their bcCJme from the Boot shop is very small and they are not able
to maintair. tlwmselves, so they want to run the hotel business in the
suit premises. The High Court has not at all discussed this part of the
evidence af the plaintiffs, but at the some time being impressed by th,,
fact that the need of the plaintiffs was genuine the High Court gave a
findinr tl at the plaintiffs had a strong desire to occupy the house and
nse it for c•m1mercial purposes.
Thereafter the High Court appears to
have lost itself in wilderness by entering into a hair splitting distinction
between d< sire and need.
Here the High Couct has misdirected itself.
If the pfai·1tifl'> had proved th~.t their necessity was both genuine
and
reasonable, that the present premises which belonged to them were required for augmenting their income as the income so far received by
them was not sufficient for them to make the two ends meet, there could
be no question of a mere desire, but it is a case of real requirement or
genuine need.
In fact the irresistible inference which could be drawn
from the facts is that tho~ plaintiffs had a pr~ssing necessity of occupying
the premises for the purposes of conducting hotel business so as to supplement their income and maintain themselves property.
The Act is
a piece of social legislation and aimed at easing the problem of accommodation, protecting the tenants from evictions inspired by profit hunting motivs and providing certain safeguards for the tenants and saving
them from great expense, inconvenience and trouble. But the Act does
not completely overlook the interest of the landlord and has under certam conditions granted a clear right to the landlord to seek eviction oii
proof of the grounds mentioned in section 11 of the Act. Thus, the Act
appears to have struck a just balance between the genuine need of the
landlord on the one hand and great inconvenience and trouble of the
tenant on the other. It was also not disputed that the defendants had
taken the property on lease
only for a
period of 10 years
and
now
they have
been
in
possession
of the same for
over 30 years. If the
plaintiffs
found
that
their
present
business
had
become
dull
and was
not
yielding
sufficient
income to maintain themselves and, therefore, it was necessary to
occupy !he house so as to run a hotel business, it cannot by any stretch
of imagination be said that the plaintiffs had merely a desire rather than
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[1979] 2 S.C.R.
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a bonafide need for evicting the tenanl's.
We therefore, disagree with
the finding of he High Court tha:t the plaintiffs had not proved that they
had a bonafide need for occupatio_n of the building ra dispute.
Moreover section 11 (h) of the Act uses the words 'reasonable-requirem 0nt' wh;ch undoubtedly postulate that th~1e must be an element
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of need as opposed to a mere desire or wish.
The distinction between
desire and need should doubtless be kept in mind but not so as to make
even tbe genuine need as nothing but a desire as the High Court has
done in this case. It seems to us that the connotation of the term 'need'
'lr 'reo.uhmcn~· should not be artificially extended p.or its lac:guage so
unduly stretched or strained as to make it impossible or extremely difliC
cult for one litndlord to get a decree for eviction. Such a course would
defeat the very purpose of the Act which affords the facility of eviction
of the tenant to the landlord on certain specified grounds. This appears
to us to be the general scheme of all the Rent Control Acts, prevalent
in other State in the country. This Court has considered the import of
the word requirement and pointed out that it merely connotes that
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there should be an element of need.
ln the case of Phiroze Ramanji Desai v. Chandrakant N.
Patel &
Ors.(') Justice Bhagwati speaking for the Court
observed
as
follows :-
"The District Judge did not misdirect himself in regard
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to the true meanmg d the word 'requires' in section 13 ( 1)
(g) and interpreted it correctly to mean that there must be
an ckmeni of neec\ bt'fore a landlord can be said to 'require'
premises for his own use :ind occupation.
It is not enough
that ihe landlord should merely desire to use and occupy
the premises.
What is necessary is that he should need them
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for his O\r11 use and occupation."
Thus, this Court has held that in such cases the main test ehould
be whether it was necessary for the landlords to need the premises for
their use or occupation.
In the case of B. Balaiah v. Chandoor Lachaiah(') a
Division
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Bench of the High Court observed as follows :-
"As long as Sl,.ch requirement is bona fide, the petitioner
can certainly clain1 for a tlirt:ction for eviction of the tenant".
It had become necessary for us to enter iTito the evidence led by the
plaintiffs, because the High Court has in a general way made a sweepEi
ing obvervation that al<hough the plaintiffs had a strong desire, they
(I) [1974] I S.C.C. 661
(2) A.I.R 1965 A.P
435.
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BEGA BEGUM v. A. A. KHAN (Fazal Ali, J.)
9
were not able to prove reasonable requirement and the High Court
came to this finding without at all considering the evidence of competent and important witnesses examined by the plaintiffs on this point
which has been discussed above.
For these reasons, therefore, we
are clearly of the opinion that in the instant case the plaintiffs
had
proved th~t the requirement for the house for starting a hotel business
was both genuine and reasonable and even imperati~, because the
scanty income of the plaintiffs was not sufficient to maintain them or
to afford them a decent or comfortable living.
This brings us to the next limb of the argument of the learned counsel for the respondents regarding the interpretation of section 11 ( 1) (h)
of the Act.
Section 11 (1 )(h) of the Act runs thus :-
"11 (l)(h) ............................ where the
house or shop is reasonably required by the landlord either
for purposes of building or re-building, or for his own occup11tion or for the occupation of any person for whose benefit
the house or shop is held;
Explanation : The Court in determining the reasonablenus of requirement for purposes of building or rebuilding
shall have regard to the comparative public benefit or disadvant~ge by extendmg or diminishing accommodation, and in
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determining reasonableness of requirement for occupation
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shall have regard to the comparative advantage or disadvantage of the landlord or the person for whose benefit the house
or !lhop is held and of the tenant".
It was submitted by Mr. Andley, learned counsel for the respondents
that the words used in section 11 (1) (h) are "that the house should
be required by the landlord for his own occupation or for the occupation of any person for whose benefit the house or shop is held."
It
was arguad that the words 'own occupation' clearly postulate that the
landlord must require it for his personal residence and not for starting
any business in the house.
We are, however, unable to agree with
this argwment.
The provision is meant for the benefit of the landlord
and, therefore, it must be so ccmstrued as to advance the object of the
Act.
The word 'occupation' does not exclude the possibility of the
landlord s:arting a business or running a hotel in the shop which also
would amount to personal occupation by the landlord.
In our opinion, the section contemplates the actual possession of the landlord,
whether for his own residence or for his business. It is manifest that
even if the landlord is running a hotel in the house, he is undoubtedly
in poSt!ession or occupation of the house in the legal sense of the terni.
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Furthermore. the section is wide enough to include the necessity
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not only the landlord but also of the persons who are living with him
as members of the same family.
In the instant case there can be no manner of doubt that the house
was required for the personal residence or occupation of all the three
plaintiffs who admittedly were the owners of the house.
The fact that
the plaintiffs wanted to occupy the property for running hotel would
not take their case out of the ambit of personal necessity as already
indicated above, occupation of a house may be required by the owner
for personal purposes.
He may choose to reside himself in the house
or run a business in the house or use it as a paying guest house and
derive income therefrom.
In all these cases even though the owner
may not phy;ically reside in the house, the house in Jaw would nevertheless b~ deemed to be in actual occupation of the owner.
Having regard, therefore, to the circumstances mentioned abov,e,
we are unable to subscribe to the view that the words 'own occupation'
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must be so narrowly interpreted so as to indicate actual physical
possession of the landlord personally and nothing short of that. We,
therefore, overrule the argument of the respondents on this point.
The last argument that was advanced before us by Mr. Andley for
the resp~nclents was tkt taking an overall picture of the, various asE
peels of the present case, it canllot be said that th~ balance of comparative advantages and disadvantages was in favour of the landlord. In
this connection, our attention was drawn to the evidence led by the
defendants that the main source of their income is the hotel business
carried on by them in the premises and if they are thrown out they are
not likely to get any alternative accommodation.
The High Court has
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accepted the case df the defendants on this point, but does not appear
to have considered th~ natural consequences which flow from a comparative assessment of the advantages and disadvantages of a landlord
and the tenant if a decree for eviction follows.
It is no doubt true
that the tenant will have to be ousted from the house i.f a decree for
eviction i; passed, but such an event would happen whenever a decree
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for eviction is passed and was fully in contemplation of the legislature
when secfon 11 (l)(h) of the Act was introduced in the Act.
This
by itself would not be a valid ground for refusing the plaintiffs a decree
for eviction.
Let us now probe hlto the extent of the hardship that may be caused
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to one party or the other, in case a decree for eviction is passed or is
refused.
It seems to us that in deciding this aspect of the matter each
party has to prow its relative advantages or disadvantages and the· entire
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BEGA BEGUM v. A. A. KHAN (Fazal Al!, J.)
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onus cannot be thrown on the plaintiffs to prove that lesser disadvanA
tages will be suffered by the defendants and that they were remediable.
This matter was considered by this Court in an unreported decision in
the case of MI s Central Tobacco Co. v. Chandra Prakash(') where
this Court observed as follows :-
"We do not find ourselves "'':e to accept the broad proposition tha: as soon ~s the Janc11ord establishes his need for
additional accommodation he is relieved of all further obligation under s. 21 sub-s. (4) and that once the landlord's need
is accepted by the court all iurther evidence must be adouceJ
by the teq~nt if he claims protection under the Act, Each
party must .adduce evidence to ;bow what hardship waul<l be
caused to him by the granting or refusal of the decree aud it
will be for the court to dcrennine whether the suffering of
the tenant, in case a d ccree was made, would be more than
that of the landlord by its refm.al.
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The whole object of the Act is to provide for the contrel
of rents and evictions, for the leasing of building~ etc. and
s. 21 specifically enumerates the grounds which alone will
entitle a landlord to evict his tenant. ......... The onu< of
proof of iilis is ccnain:y <'n the landlord.
We see no sufil ·
dent reason for holding that once that onus is discharged by
the landlord it shifts to the tenants making it obligatory on
him to show that greater hardship would be caused to him
by passing the decree than by refusing to pass it.
In our
opinion both sides must ad<luc~ all relevant evidence before
the court; the landlord must shew that other reasonable a~·
commodation was not availabie to him and thf tenant must
also adduce evidence to that effect.
It is only after shifting
such evidence tliat the coun must form its conclusion
on
consideration of all the circt1mstances of the case as to whether
greater hardship would be caused by passing the decree than
by refusjng to pass it".
This case was followed in Phiroze Ramanji De.ij~i v. Chandrakant
N. Pa~el & Ors (supra). In the case of Kelley v. Goodwin(')
Lynskey, J. observed as follows :-
"The next matter one has to consider is whether there
was evidence on which the county court judge could come
to the conclusion that there would be greater hardship in mak-
(1) C.A. 1175of1969 decided on 234-1969.
(2) [1947] I All E.R. 810
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SUPREME COURT JlEPORTS
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inl: the order than not making the order.
He has taken into
account, m relation to that question, first, the position of the
landlord, and, secondly, the position of the tenant
He has
taken into account the financial means of the tenant. It is
argued before us that he was wrong in doing that.
In my
view, he was quite entitled, in considering hardship, to have
regard to the financial means of the tenant in considering
whether he could obtain other accommodation because, by
reason of his means, he was in a position, not n1erely to rent,
but to buy a hoEse.
It seems to me also that, on this question cf hardship, the judge was entitled to take, into account
the fact that the tenant had taken no real steps to try and find
other accommodation or no real steps to buy a house".
To the same effect is the decision in the case of K. Parasuramaiah
v. Pokuri Lakshmamma(') where a Division Bench of the High Court
narrated the mode and circumstances in which the comparative advantages and disadvantages of the landlord and the tenant could be weighed. In this connection, the Court observed as follows :-
" l'hus the hardship of the tenant was first to be found out
in case eviction is to be directed.
That hardship then has
to be placed against the relative advantages which the landlord would stand to gain if an order of eviction is passed ....
. . . . . . What is however required is a careful consideratien
of all the relevant factor3 in weighing the relative hardship
whid' is likely to be caused to the tenant with the likely advantage of the landlord on the basis of the available materia:I
on reccrd .... , ......... The proviso however should not
be read as if it confers a practical immunity on the tenant
from being evicted.
That would destroy the very purpose
of Sec. 10 ( 3 )( c) .
Likewise the requirement of the landlord in accordance with that provision alone cannot be given
absolute value, because that would mean to underestimate
the value of tl1e proviso to that section.
Keeping in view
therefor~ the purpose of the provision and the necessity of
balancing the various factors each individual case has to be
decided in the light of the facts and circumstances of that
case''.
In view of onr findings it has been established that the landlords
have not only a genuine requirement to possess the house, but it
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necessary for them to do so in order to augment their income
and
maintain themselves properly.
Being the owners of the house they
(I) A.LR. 1965 A.P.220
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BEGA BEGUM v. A. A, KHAN (Fazal Ali, !.)
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cannot be denied eviction and be compelled to live below the poverty
line merely to enable the respondents to carry on their flourishing hotel
business, at the cost of the appellants.
This shows the great prejudice
that will be caused to the plaintiffs if their suit is dismissed. The plaintiffs have already produc,ed material before the court to show that their
income does not exceed more than Rs. 8000 to Rs. 90001- per year as
the yearly income tax paid by them is Rs. 70 to Rs. 80 only.
There 1s
no other moJns for them to augment their income except to get their
own house vacated by the defendants so as to run a hotel business.
It was vehemently contended by Mr. Andley that there is nothing to
show that the plaintiff Mohd. Yusuf or his mother had any experience
of running the hotel, and, therefore, it is fruitless to allow them to run
the hotel by evicting the respondents.
Mohd.
Yusuf is admittedly
doing shoe business, and has got sufficient experience of
business.
Nothing has bern brought on the record to show that he is incapable
of running a hotel in the premises.
The building belongs to him and
there is no reasc:in for us to think that he cannot establish a hotel business.
On the other hand the defendant< have been running the hotel for
the last 30 years and must have made sufficient profits. To begin
with, the defendants had taken the lease only for 10 years which now
by virtue of the st~tute has been extended to 30 years which is a sufficiently long period for which the plaintiffs have been deprived
the
possession of the house.
There is thus no equity in favour of the respondents for continuing in posses£ion any further.
It was then submitted by Mr. Andley, counsel for the respondents
that if the respondents are evicted they will be thrown out on the road;
that hotei is the O!lly source of their sustenance and they are not likely
to get any alternative accommodation on being e,victed.
If the defendants ffi!d proved that they will not be able to get any accommodation
any where in the rity where they could set up a hotel, this might have
been a weighty consideration, but the evidence of all the witnesses
examined by the defendants only shows that the defendants may not
get alternative accommodation in that very locality where the house in
dispute is situated.
There is no satisfactory evidence to prove that
even in other buoiness localities there is no possibility of the defendants
getting a house.
To insist on getting an alternative accommodation
of a similar nature in the same locality will be asking for the impossible.
The defendants are tenants and had taken the leas~ only for 10 years
but had overstay.,d for 20 years ar.d they cannot be allowed to dictate
to the landlord that they cannot be evicted unless they get a similar
accommodation in the very same locality.
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G. M. Khan the defendant himself has stated that if he is evicted
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from the house, he cannot get such a place any where.
Great stress
is laid tk1t he must get a house of the size of the house in dispute. It
was suggested to him that if one of the houses of the plaintiffs is given
to him that will be sufficient for him, to which he said that the said
house situated in Hari Singh High Street is not suitable because he cannot run his hotel business there.
The witness has further stated towards the end that th" delcndants cannot get any place for the purpose
of running a hotel in this Ilaqa (locality).
D.W.
Ghani Hajam also says that the defendants cannot get
any oth"r building for the, purpose of the hotel at this place like the one
under d'oputc.
Similarly, D. W.
Ghulam Mohd.
Khan, another
witness for the defrndants says that the defendants will not get such a
building in this Ilaqa for running a hotel.
D.W. Haji Noor Mohd.
also endorses the fact that if the defendants are ejected, it is difficult
for them to get such a building in this place.
D.W. Mohd, Ramzan
deposes that if the defendants are ejected from the building, they will
not get such a building in this locality for running a hotel.
To the
same effect is the evidence of D. W. Rasool Dar who says that it is
impossible for the defendants to get a house like the suit house
for
the purposes of running a hotel QI the site or nearabout where the suit
house is situated.
D. W. Ghulam Mohd. has made a similar statement in his deposition when he says that the defendants will not get
such a building nor is there any such building vacant in the locality.
It is true that there are some witnesses like D. W. Aslam Khan, Ghulam
Hassan, Mohd. Abdullah Pandey who has said that the defendants might
not get any other place for rnnning a hotel but the evidence is extremely
vague and nebulous.
D. W. Abdul Kabir however merely says Lhat
he had no knc>wledge that the de!eudants could get any other house.
Thus, what is established from the evidence of the defendants is
that if they are ejected, they might not get a house as big as the house
in dispute in the very locality where the disputed house is situa•ed.
There is no clear evidence in the first place to show that there is no
other business locality in the city at all or that if there is any other
business locality attempts were made by the defendants but they were
unable to get any house.
Furthermore, as indicated above, the plaintiff necessity is imperative and their requirement is undoubtedly reasonable, because the income which they are receiving including the rent of
the house which is in the region of Rs. 5000/- per year, is not sufficient to maintain them. Thus, on a careful comparison and assessment
of the relative advantages and disadvantages of the landlord and the
tenant it seems to us that the scale is tilted in favour of the plaintiffs.
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The inconvenience, loss and trouble resulting from denial of a
decree for eviction in favour of the plaintiffs far outweigh the prejudice or the incCY:J.venience which will be caused to the defendants.