Gokaram Prasad v. Shanti Devi — 1977 DIGILAW 444 (ALL)

JUDGMENT D.N. Jha, J.:- Gokaran Prasad has filed this petition under Article 226 of the Constitution praying for quashing of the orders dated 8.2.1977 and 12.11.76 passed by the District Judge, Lakhimpur, and the Prescribed Authority, Lakhimpur, respectively. 2. The petitioner is the sitting tenant of a shop at Lakhimpur on an yearly rent of Rs. 340/- of which Bhola Nath was the landlord and after his death opposite parties 1 to 9 became landlords. Bhola Nath had also been carrying on in an adjacent shop hosiery business. Opposite parties 1 to 9 submitted an application under section 21 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) for ejectment of the petitioner from the disputed shop. The Prescribed Authority after considering the Evidence of the witnesses and averments of the parties granted permission vide his order dated 12.11.1976. This is Annexure 4. The petitioner feeling aggrieved by the order went up in appeal but the same was dismissed by the District Judge, Lekhimpur, on 8.2.1977. This is Annexure 5. It may be mentioned that the Prescribed Authority had allowed two months time and a compensatory allowance of Rs. 700/- in lieu of allowing the application under section 21 of the Act. That order was maintained. It is in these circumstances that the petitioner has come up before this Court impugning the orders mentioned above. The petition has been contested on behalf of the opposite parties and a counter affidavit has also been filed and it is asserted that the entire matter is concluded by findings of fact recorded by the Prescribed Authority and the appellate court. The impugned orders do not call for in terference by this Court in view of the findings recorded by the courts below. 3. I have heard learned counsel for the parties. It is true that so far as the need of the parties is concerned the -courts below have considered the respective claim of the parties. Learned counsel for the petitioner argued that he had been carrying or business for last 24 years of hosiery and cloth in the disputed shop. 3. I have heard learned counsel for the parties. It is true that so far as the need of the parties is concerned the -courts below have considered the respective claim of the parties. Learned counsel for the petitioner argued that he had been carrying or business for last 24 years of hosiery and cloth in the disputed shop. He further contended that the opposite parties had two shops in Mohalla Bhuinphurwa Nath and Nine shops at the Railway gate at Lakhirnpur-Kheri thereby indicating that there were ample shops owned by the landlords and it was not necessary to eject the petitioner from the disputed shop specially in view of the fact that he had been carrying on his business for the last 24 years. He placed reliance on rule 16 in order to substantiate his contention and while adjudging the likely hardship to the tenant from the grant of an application as against the likely hardship to the landlords from the refusal of the application the authorities have to take into consideration clauses (a) and (c) of sub-rule (2) of rule 16 before passing final orders. These clauses read as under : "(a) the greater the period since when the tenant opposite-party, or the original tenant whose heir the opposite party is, has been carrying on his business in that building, the less the justification for allowing the application (b) ......... (c) the greater the existing business of the landlord own, apart from the business proposed to be set up in the leased premises the less the justification for allowing the application, and even if an application is allowed in such a case, the prescribed authority may on the application of the tenant impose the condition where the landlord has available to him other accommodation (whether subject to the Act or not) which is not suitable for his own proposed business but may serve the purpose of the tenant, that the landlord shall let out that accommodation to the tenant on a fair rent to be fixed by the prescribed authority." Learned counsel for the petitioner in support of his contention has placed reliance on the case of Ram Prakash v. Shyam Narain Gupta, 1975 A.L.J. 326. Prem Prakash, J. Speaking for the Court observed : "Even When the landlord had established his need for additional accommodation he mast adduce evidence to show what hardship would be caused to him by the granting or refusal of the eviction and it would be for the court to determine whether the suffering of the tenant, in case an order was made for eviction, would be more than that of the landlord by its refusal." It was further observed that the order by the subordinate Authorities after giving due consideration to sub-clause (c) of rule 16(2) of the Rules framed under the Act has to be based upon an objective assessment of the manifold circumstances set out in sub-rule (2) of rule 16. 4. In reply learned counsel for the appellant has placed reliance on the case of G.C. Ghildayal v. District Judge, Allahabad, AIR 1975 Allahabad 309 in which K. N. Singh, J. considering the observations made in Ryote of Garbandho v. Zamindar of Pralakimedi, AIR 1943 P.C. 164 and Mysore State Electricity Board v. Bangalore W.C. and B. Mills, AIR 1963 Supreme Court 1128 with respect to the word 'having regard to' expressed the view that the same expression in rule 16(1) (a) to (g) pointed out that the guidelines mentioned therein should be considered by the Prescribed Authority. He further observed that 'it is noteworthy that the expression' shall have regard to' does not contemplate that the Prescribed Authority must address itself to All the factors enumerated in clauses (a) to (g) and the order would not be invalid on the ground that one of the considerations enumerated in clauses (a) to (g) was not expressly considered in evicting the tenant from the building in his tenancy.' 5. The next case relied upon by learned counsel for the opposite parties is Munna LaL v. The District Judge Mirzapur, 1977 (1) R.C.J. 468. In that case G. C. Matur, J. speaking for the Court observed :- "In substance, sub-rule (2) of Rule 16 lays down guidelines for the comparison of the needs of the landlord and the tenant, while considering on application for release under section 21(a) in respect of business premises. Clause (a) of this rule directs the prescribed Authority to have regard to the fact that the greater the period of the tenancy, the less would be justification for allowing lease of the premises. Clause (a) of this rule directs the prescribed Authority to have regard to the fact that the greater the period of the tenancy, the less would be justification for allowing lease of the premises. Clause (b) directs the Prescribed Authority to have regard to the fact that where the tenant has with him suitable accommodation, to which he can shift his business without substantial loss, there shall be greater justification for allowing release. These classes do not prohibit the Prescribed Authority from allowing the application for release, if the tenancy is of long standing or if no suitable accommodation is available to the tenant. All that these clauses require the Prescribed Authority to do is to have these factors in mind when comparing the needs of the landlord and the tenant." 6. I have given my anxious consideration to the decisions referred at the bar by learned counsel for the parties and I have no hesitation in observing that none of these decisions are at various with one another. The sum and substance- of these decisions is that the authority considering the application under section 21 (a) has to keep in mind while considering the likely hardship to the tenant by the grant of an application as against the likely hardship to the landlord from refusal, the various factors enumerated in sub-clauses (a) to (d) of rule 16(2) it may be mentioned that nowhere, puts a prohibition to allowing of the application and what actually is laid down are the various considerations which should be borne in mind while disposing of the application under section 21(a) submitted by the landlord, by merely indicating the decrees embibed within the phraseology it envisages less justification for allowing the application if greater the period of the tenant has been in the shop nor does such a phraseology used in sub-clause (c) envisage refusal of the application of the landlord. What is actually contemplated is that the Court has to weigh the matter not in any golden scales but in the light of the factors enumerated and the evidence adduced by the parties. The evidence has to be considered in the light of criteria provided by the Legislature. The paramount rule, thus, would flow from the nature of evidence adduced by the parties. The evidence has to be considered in the light of criteria provided by the Legislature. The paramount rule, thus, would flow from the nature of evidence adduced by the parties. In the instant case I am constrained to observe that from the statement of Ram Gopal attached to the writ petition as Annexure 3 it is clear that the petitioner only tried to demolish the case of partition as set out in the evidence. Secondly, it was suggested that the shop was not needed. Thirdly, he wanted to get the shop vacated only and fourthly that since the civil suit had been filed by the petitioner, to wreak vengeance the present application had been filed. The suggestion that the landlord had other shops was also made and it was stated that all the other shops which were at the Railway Gate and other shops in Mohalla Bhuinpurwa nath were occupied by other tenants. Learned counsel for the opposite parties contended that the petitioner filed to mention the names of all the tenants occupying the respective shops as only six names had been mentioned. In my opinion, from such a line of cross examination it cannot be concluded that any of the shops owned by the landlords was vacant. The petitioner has not brought on record his own statement to show that factors were established by him and how did he justify the sufferance in case he is evicted from the premises. In the absence of any other relevant material on the record it is very difficult for this Court to record any contrary finding to the one recorded by the subordinate tribunals. I have carefully gone through the orders passed by the Prescribed Authority and the District Judge and I have no hesitation in observing that the long tenure of tenancy of the petitioner had been kept in mind while allowing the application. 7. Learned counsel invited my attention to the issues framed in the case and pointed out that the framing of the issues was indicative of the fact that the learned subordinate tribunals had only taken into account one side show and that was the genuine need of the petitioner as, no relevant issue had been framed with respect to likely hardship to be caused to the petitioner, who was the tenant, if the application was allowed. It is, no doubt, true that the issues have been clusily framed. But it appears that the prescribed authority while disposing of issue no. 2. which was framed with respect to the genuine need of the petitioner, thought that the question of likely hardship was no interwoven With this issue that on this assumption he proceeded to dispose of the issue bearing in mind the long tenure of tenancy of the petitioner in the disputed shop. The relevant consideration as enumerated by the Prescribed Authority was that, after the death of Bhola Nath his sons had grown up and one of the sons, namely, Ram Gopal Sheikhar, has started a separate business and that business had to be started in the residential house since no shop was available. It was also realised that the situation of the house at such a place from where, it was not possible to carry on the sale of the manufactured goods. It was in this light and with a feeling that hardship would be caused to the petitioner, who was tenant for the last 24 years, that the prescribed Authority proceeded to pass the order allowing the application by recording a finding that the shop indispute was needed by the applicant to start his own business. The petitioner miserably failed to show that any of the shops owned by the opposite parties was vacant so as to compel the authorities to pass the necessary orders in accordance with the second part of sub-clause (c) of clause(2) of rule 16. It cannot be said that prescribed Authority or the appellate authority had lost sight of the fact that, hardship would be caused to the petitioner if he is directed to vacate the shop, But considering the totality of circumstances both the authorities reached the conclusion that hardship would be caused by disallowing the application of opposite parties requiring the premises for their personal need. The matter, therefore, in my opinion, stands concluded by rank findings of fact recorded by the subordinate authorities who had the occasion to look into the entire evidence led by the parties. The matter, therefore, in my opinion, stands concluded by rank findings of fact recorded by the subordinate authorities who had the occasion to look into the entire evidence led by the parties. That being so, I do not think that any purpose would be served to send back the case to the appellate authority for any further consideration as in my opinion the relevant guide lines did exist in the mind of the authorities and they had made an objective assessment while disposing of the dispute that had been brought before them by the parties. I do not think, in the circumstances, that it would be proper to interfere with the decisions of the subordinate tribunals in exercise of discretionary jurisdiction vested in this Court under Article 226 of the Constitution. 8. Learned counsel for the petitioner lastly argued that great hardship would be caused to the petitioner in case he has to shift immediately because it is not easy to find out accommodation in the city of Lakhimpur-Kheri. I do not know actually about the situation prevailing in Lakhimpur-Kheri as nothing has been stated in the petition. However, looking to the general condition prevailing in the districts of Uttar Pradesh I can well imagine the hardship that would be perpetrated if the order is immediately put into execution. I, therefore, allow six months time to the petitioner to vacate the premises. This concession has been granted as grace and on the hope and expectation that it will not be abused by the petitioner. On the expiry of six months the petitioner will hand over possession to the opposite parties and the period shall commence to run from the date of this order. The rent of the premises shall also be regularly paid by the petitioner to the opposite parties. 9. In view of the observations made above the writ petition fails and is accordingly dismissed. However, this order, as observed above, will permit the petitioner to be in occupation of the premises for a period of six months only where after he shall hand over possession of the premises to the opposite parties. In the circumstances of the case I make no order as to costs.