Standard FORMAT FOR MEMORIAL FOR MOOT COURT COMPETITION
TABLE OF CONTENTS
1. INDEX OF AUTHOURITIES…………………………………........... .2
a. List of Statutes……………………………………………...2
b. List of Abbreviations………………………………………2
c. Books and Commentaries…………………...……….……2
d. Dictionaries Referred…………………………..……...….2
e. Electronic Medium................................................................3
f. Table of Cases…………………………………….……......3
2. STATEMENT OF FACTS…………………………………………......5
3. STATEMENT OF JURISDICTION….................................................6
4. STATEMENT OF ISSUES……………….……………………….........7
5 SUMMARY OF ARGUMENTS.............................................................8
6. ARGUMENTS ADVANCED........................................................…......9
7. PRAYER……………………………………………………………......17
INDEX OF AUTHORITIES
v LIST OF STATUTES/RULES
· The Constitution of India, 1950.
· U.P. Urban Buildings (Regulations of letting, Rent and Eviction) 1972.
v LIST OF ABBREVIATIONS
· S.C.C Supreme Court Cases
· U.O.I Union of India
· Sec. Section
· A.I.R All India Report
· SC Supreme Court
· V. Versus
· Vol. Volume
· Ed. Edition
· J.T Judgement Today
· E.S.C Education and service case
v BOOKS AND COMMENTARIES:-
· Durga Das Basu, “Constitution of India “ed..2008
· J.N.Pandey “constitution of India.”44th ed 2007
· U.P police manual and commentaries
· I.P.Massey, “Administrative Law”, 7th Ed., 2008,
v DICTIONARIES REFERRED
· P.Ramanatha Aiyar, “Concise Law Dictionary”, Wadhwa Nagpur
· Elizabeth A. Martine & Jonathan (editors.), “Dictionary of Law”, 6th ed, Oxford publication.
v ELECTRONIC MEDIUM
· http://www.judis.nic.in(visited on)
· http://www.indlaw.com(visited on)
· http://www.google.com(visited on)
· http://www.manupatra.com(visited on)
v LIST OF CASES
SUMMARY OF FACTS
v FACTUAL BACKGROUND
v PROCEDURAL BACKGROUND
STATEMENT OF JURISDICTION
The present writ petition has been filed by the petitioner invoking the writ jurisdiction of this Hon’ble Court under Article 226 of the Constitution[1]. Through this writ jurisdiction she seeks the writ of certiorari.
STATEMENT OF ISSUES
1. WHETHER THE NEED OF THE LANDLORD WAS BONAFIDE.
2. WHETHER IN THE PRESENT CASE THE SUBSEQUENT DEVELOPMENTS CAN BE TAKEN INTO CONSIDERATION.
3. WHERTHER THE PRINCIPLE OF COMPARATIVE HARDSHIP WAS IN FAVOUR OF LANDLORD OR THE TENANT.
SUMMARY OF ARGUMENTS
1. WHETHER THE NEED OF THE LANDLORD WAS BONAFIDE.
2. WHETHER IN THE PRESENT CASE THE SUBSEQUENT DEVELOPMENTS CAN BE TAKEN INTO CONSIDERATION.
3. WHERTHER THE PRINCIPLE OF OMPARATIVE HARDSHIP WAS IN FAVOUR OF LANDLORD OR THE TENANT.
ARGUMENTS ADVANCED
1. WHETHER THE NEED OF THE LANDLORD WAS BONAFIDE.
1) That it is respectfully submitted before this Hon’ble Court that the need of the petitioner to get the possession of the ground floor of the rented premises has been consistently bona fide since the filing of the release application before the prescribed authority in 1988.
2) That it may be a very relevant consideration for the Hon’ble Court in the light of the applicability of S.21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)Act, 1972[2] in the instant case that the petitioner has a bona fide requirement of the rented premises for herself and the members of his family for residential purpose and one of the sons also require the premises for running a shop. One of the grounds for eviction contemplated by all the rent control legislations which otherwise generally lean heavily in favour of the tenants, is the bona fide need of the landlord to have his own premises, residential or non-residential, for his own use or his own occupation. The landlady has been living on the first floor which consisted of three rooms a kitchen and a bathroom. Looking at the size of the family, availability of ground floor in which the family may live is a requirement which is natural and consistent with the sense of decency, not to talk of comfort n convenience. There is nothing unreasonable in the family of seven in needing rooms.
3) Further in the case of Bega Begum v. Abdul Ahad Khan[3] it was held that the word ‘reasonable requirement’ in the subsection undoubtedly postulates that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not as to make even a genuine need as nothing but a desire. This view was also reiterated in Gulabbai Begum v. Nalin Narsi Vohra[4].Reverting back to the case at hand it has been established by the facts that after the death of the petitioner’s husband in 1985 the problem of accommodation of the petitioner-landlady’s family in the first floor had increased. The bona fide need of the tenant got further enhanced when all the children of the petitioner got married in 1997 and the two sons gave birth to two children thereby increasing the size of the family. Thus it is humbly submitted that the need of the petitioner has continued to be bona fide and genuine.
4) That in the case of Shiv Sarup Gupta v. Mahesh Chand Gupta[5] the court in a detailed judgement, dealing with this aspect analysed the concept of bona fide requirement and said that the requirement in the sense of felt need which is an outcome of sincere, honest desire, in contradiction with a mere presence or pretext to evict a tenant refers to a state of mind prevailing with the landlord. The need as pleaded and proved by the landlord is undoubtedly natural, sincere and honest and hence a bona fide need. There is no material available to doubt the genuineness of such need. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself tightly into lesser premises protecting the tenants.
5) That the Respondent No 2, vide order dated 19.8.2007 allowed the appeal of the tenant on the grounds that the bona fide need of the landlady was not genuine as she herself sold off the appurtenant land. It is argued on behalf of the petitioner that the need and requirement of the rented premises was bona fide as the petitioner and his family were facing a lot of hardship and a bona fide need has only enhanced by that time. The petitioner-landlady was in instant need of money for personal reasons and for paying off the debts incurred during the marriage as a result of which she sold off the appurtenant land. In the case of Bega Begum[6]it was held that the connotation of the term ‘need’ or the word ‘requirement’ should not be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for a landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act, which offered the facility of eviction of the tenant to the landlord.
6) Therefore in the light of the precedent laid down by the Hon'ble Supreme court, this Hon'ble Court should take into account the bona fide need of the rented premises by the petitioner-landlady.
2. WHETHER IN THE PRESENT CASE THE SUBSEQUENT DEVELOPMENTS CAN BE TAKEN INTO CONSIDERATION.
1) That it is humbly submitted before the Hon’ble Court in the light of the S. 21(1)(a) of the U.P. Urban Buildings Regulation of (Letting, Rent and Eviction) Act, 1972 the subsequent developments after the filing of the release application in the instant case should be taken into account considering the impact that these developments will leave on the rights of the petitioner.
2) That in the case of Sheshambal (dead) through L.Rs v. Chelur Corporation Chelur Building and Ors [7] it was held that the subsequent development can be noticed by the court when such developments have an impact on the right of a party to the release prayed for. In the instant case during the pendency of the case all the three children of the landlady were married. As a result the size of the family increased as the two daughter-in-laws came in the house. The two sons gave birth to two children each. Her daughter and son-in-law also used to visit them and hence the tenanted premises may be urgently released in their favour. The premises are required for residential purposes and one of the sons also requires it for running a shop to augment the income of the family[8]. Thus on this point the petitioner seeks to submit before this Hon’ble Court that the subsequent developments in the instant case was such that they do have an impact on the rights of the petitioner-landlady. The bonafide need of the petitioner has only enhanced since the filing of the release application and now there is a greater need of the tenanted premises than what was before.
3) That we cannot forget that while considering the bonafides of the need of the landlord, undoubtedly, the crucial date is the date of petition. In Ramesh Kumar v. Kesho Ram[9], a two Judge Bench of the Court pointed out that the normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced and the only exception is that the Court is not precluded from moulding the reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations. What the learned Chief Justice observed therin is this:-
“The normal rule is that in any litigation the rights & obligation of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the Court is not precluded from taking a ‘cautious cognizance’ of the subsequent changes of fact and law to mould the relief”.
4) That the next three judge Bench of the Court which approved and followed the above decision in Hasmat Rai vs. Raghunath Prasad[10]has taken care to emphasis that the subsequent event should have “wholly satisfied” the requirement of the party who petitioned for eviction on the ground of personal requirement. The relevant passage is extracted below:
Therefore, it is now incontrovertible that where possession is sought for personal requirement it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. If in the meantime events have cropped up which would show that the landlords requirement is wholly satisfied then in that case his action must fail and in such a situation it is incorrect to say that as decree or order for eviction is passed against the tenant he cannot invite the court to take into consideration subsequent events.
5) In Pratap Rai Tanwani Vs. Uttam Chand[11], the Hon’ble Supreme Court held that subsequent developments can be taken into consideration to afford relief to the parties, provided only when such developments had a material impact on those rights and obligations. It is a stark reality tat the longer is the life of the litigation the more would be the number of developments sprouting up during pendency. It is considerately submitted before this Hon’ble Court that what the petitioner –landlady has highlighted as subsequent event falls within the realm of certainty, which is necessary to be established to show that the need has been eclipsed.
3. WHERTHER THE PRINCIPLE OF OMPARATIVE HARDSHIP WAS IN FAVOUR OF LANDLORD OR THE TENANT.
1) That it is humbly submitted before this Hon’ble Court that on the question of comparative hardship resulting from the decree of eviction or its refusal, the petitioner is suffering a greater amount of hardship as compared to the respondent no 1. Since the death of the petitioner’s husband in 1985 the problem of accommodation of the petitioner’s family in the 1st Floor has increased.
2) That in adding effect to this the respondent tenants also stopped paying the rent which compelled the petitioner to file the said release application. The need of the premises further enhanced when all the children of the petitioner got married in 1997 and in order to pay the debts in the marriage she had to sell the land appurtenant to the building. Her daughter and son-in-law also used to visit them and hence the tenanted premise was urgently needed. As compared to this the Respondent no 1-tenants occupying the ground floor of the impugned building consisting of 3 rooms, a kitchen and 2 bathrooms are facing lesser amount of hardship. Further stated that at present the Respondent no 1-tenant’s daughters have also been married and they have left the home and that the tenant’s son Prateeek is working at another cityand only comes for 15 days in a year.
3) That it was held in the case of Chandra Kumar Sah and Anr. V the District Judge and Ors[12]. That-
i) In Considering the bonafide need of the landlord the comparative need of the tenant is not relevant and,
ii) The provision and principle of an alternative accommodation to the tenant is redundant. It can only be applied as a matter of grace.
Hence, it is humbly submitted before this Hon’ble Court that considering the decision of the above case the comparative need of the tenant is not relevant at all. And the fact that the tenant does not have any alternative accommodation is superfluous.
4) That in the case of Om Prakash Gupta v. District Judge and Ors.[13] it was held that that comparative hardship of tenant cannot be taken into consideration in the event it is not established that an authenticate effort was made by tenant for searching an alternative accommodation. It is submitted before this Hon’ble court that in the present case nothing has been brought on record in support of this contention, therefore, as the need of landlord is bona fide, it could not be refused mechanically. The Supreme Court in B.C. Butada v. G.R. Mundada[14], has held that after filing of release application it is utmost essential for the tenant to make efforts either to purchase or take on rent other accommodation otherwise question of hardship may be decided against the tenant. In the instant case Respondent no1-tenants have taken no real steps to try and find other accommodation or no real step to buy a house.
5) That the paucity of funds with the tenants alone cannot be a ground to refuse landlord to use his own accommodation when it is required so badly. House was purchased and constructed for beneficial use of landlord, previously children were minors, he did not require the disputed accommodation for an independent use, it was let out but once tenants are inducted, they are not inducted for their entire life.
6) That further in Jagdish Tiwari v. Smt. Asha Devi Mishra[15], it has been held that landlord's requirement cannot be refused only on ground that the tenant would be facing difficulty.
7) That it is most humbly submitted before this Hon’ble court there is no equity in favour of the respondents for continuing to stay in rented premises of the impugned building. On careful comparison of the comparative hardship of the petitioner/landlady and the respondent/tenant it is clear that the scale is tilted in favour of the petitioner/landlady. The inconvenience, loss and troubles resulting from a denial of a decree for eviction in favour of the petitioner far outweigh the prejudice or the inconvenience which may be caused to the respondent.
PRAYER
Wherefore it is, in light of the issues raised, arguments advanced and authorities cited, humbly prayed before the Hon’ble Court that it may be graciously pleased to:
1.
FOR THIS THE PETITIONER SHALL EVER PRAY.
Respectfully submitted on behalf of the
PETITIONER -
[1] 226. Power of High Courts to issue certain writs.—(1) Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without—
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.
[2] S.21-Proceedings for release of buildings under occupation of tenant:-
(1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part hereof if it is satisfied that any of the following grounds exist namely-
(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him either for residential purposes or for purposes of any profession, trade or calling or where the landlord is a trustee of public charitable trust, for the object of the trust.
[3] (1979) 1 SCC 273.
[4] (1991) 3 SCC 483.
[5] (1999) 6 SCC 222. See also Atma S. Berar v. Muktiar Singh, (2003) 2 SCC 3, Ram Das v. Ishwar Chander (1988) 3 SCC 131.
[6] opcit. p.
[7] (2010) 3 SCC 470
[8] Refer to Statement of Facts p.
[9] 1992 Supp (2) Scc 623
[10] 1981 (3) SCC 103, See also Pasupuleti Venkateswarlu vs. Motor and General Traders, 1975 (1) SCC 770.
[11] 2004 (8) SCC 490. See also Gaya Prasad v. Pradeep Srivastav, (2001) 2 SCC 604.
[12] AIR 1976 Alld 328 FB.
[13] (2010) 1 AWC 521.
[14] AIR 2003 SC 2713 : 2005 (2) ARC 899
[15] 2005 All CJ 1250; 2005 (2) AWC 1029
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