Sh. D. Chand v. IV Addl. District Judge Nainital — 1978 DIGILAW 409 (ALL)

JUDGMENT K.C. Agrawal, J.:- Premises No. 36, Malli Tal, Naini Tal, which is also known as Bara Bazar, belongs to Mahesh Prasad Chaurasia, respondent No 3. The said shop was let out to the petitioner in the year 1965. The petitioner was running the business of ready-made garments. An application was filed by the respondent no. 3 under section 21 of U. P. Act No. XIII of 1972 for the release of the said premises on 10-11-1975 on the ground that the said respondent had passed B. A. Examination in 1973 and since then he was unemployed. The respondent No. 3 alleged that as he did not have any accommodation available at Nainital, he was doing the business of supplying betal nuts temporarily. He also claimed that the shop in dispute, which had been let out to the petitioner, was mostly found closed as the petitioner had a flourishing business in Delhi and be was carrying on the business at Delhi with his family members. The petitioner's business at Delhi was alleged to be on a large scale. 2. The application was resisted by the petitioner, and the allegations made by the respondent no. 3 were denied. The petitioner alleged that the need of the respondent no. 3 was not bona fide, and that the shop was intended to be obtained by him only for the purposes of letting out the same as higher rent. It was also alleged that the respondent no. 3 was doing the business at Nainital, and that it was incorrect that he had totally shifted to Delhi. 3. Both the parties adduced evidence in support of their respective cases. The prescribed Authority held that the need on the respondent no. 3 was not genuine and rejected the application filed by him. In appeal preferred by respondent no. 3 to the District Judge, the findings given by the prescribed Authority were reversed. The learned Additional District Judge held that the petitioner was living in Delhi and was carrying on the business there. He did not require the disputed premises for himself. The appellate court also held that the shop in dispute was found closed. The court below also examined the need of the respondent No. 3 and held that he was out of employment and that he needed the shop for starting a business therein. He did not require the disputed premises for himself. The appellate court also held that the shop in dispute was found closed. The court below also examined the need of the respondent No. 3 and held that he was out of employment and that he needed the shop for starting a business therein. In the opinion of the court below, the respondent No. 3 was likely to suffer greater hardship by the refusal of the application than the tenant by the grant of the application. Feeling aggrieved, the petitioner has come to this court by means of the present writ petition. 4. Sri R. N. Bhalla, counsel for the petitioner, contended that as the business which the petitioner was doing in Nainital was seasonal in nature, the learned Additional District Judge committed an error in allowing the application filed by the respondent No. 3 on the finding that the shop used to remain closed for some months in a year. He submitted that Nainital is a Hill Station and that the business is generally done by the shopkeepers like the petitioner and others during the summer. It may be true that the business at a hill station is generally done between the months of April and June and thereafter in September and October each year, but the difficulty which comes in the way of-the petitioner is the finding given by the learned Additional District Judge to the effect that the petitioner was mostly living in Delhi and he was carrying on business with his father and brother in Delhi. The learned Additional District Judge also found that the petitioner was not interested in the business at Naini Tal. These findings given by the learned Additional District Judge indicate that the petitioner did not require the shop for himself. 5. Learned counsel for the petitioner next challenged the finding of the learned Additional District Judge with respect to the requirement of the premises by respondent No. 3. He contended that the said respondent was having the income of Rs. 10,000/- per year and that he did not require the premises in dispute for doing any business. This aspect was emphasised on behalf of the petitioner before the learned Additional District Judge as well. He contended that the said respondent was having the income of Rs. 10,000/- per year and that he did not require the premises in dispute for doing any business. This aspect was emphasised on behalf of the petitioner before the learned Additional District Judge as well. He held that the allegation of the petitioner about the yearly income of respondent No. 3 was based on conjectures as there was no evidence to prove the same. 6. Dealing with the question of the need of the respondent No. 3, the learned Additional District Judge also found that the respondent No. 3 was out of employment since 1973, when he completed his education. Since he had no space to do business he was seen selling toys as a hawker in the market. It is lamentable state of affairs that the respondent No. 3, who is a graduate, could not establish himself for want of space and as the petitioner himself is not doing the business in Nainital and had a flourishing business in Delhi, the court below was fully justified in holding that the need of the respondent No. 3 was bona fide and that the said respondent would have suffered greater hardship had the application filed by him for release of the accommodation been rejected. As a matter of fact, the findings about the need of the premises by a landlord as well as of greater hardship are questions of fact, and as the findings on these matters are to be given by the authorities on the appreciation of the evidence on record, it is not open to this court to correct an error of fact. Its jurisdiction being supervisory in nature, is limited to seeing that the subordinate courts act within the jurisdiction conferred on them. It can interfere only when there is an error of law apparent on the face of the record. No such error could be pointed out by the learned counsel for the petitioner. The error hinted at was only that the evidence given by the petitioner was not properly appreciated by the court below. Firstly, I have not accepted that argument. Secondly, even if the learned counsel may be presumed to be correct, that would not entitle me to interfere in the present writ proceedings under Article 226 of the Constitution of India. 7. Firstly, I have not accepted that argument. Secondly, even if the learned counsel may be presumed to be correct, that would not entitle me to interfere in the present writ proceedings under Article 226 of the Constitution of India. 7. After having decided all the points against the petitioner, the writ petition has to be dismissed. But, on the facts and in the circumstances of the present case, it appears appropriate to grant seven months' time to the petitioner to vacate the premises in dispute, provided he pays to the respondent No. 3 or deposits in court the entire rent and damages for use and occupation upto 1978 within a period of two months from today. The petitioner would, of course, be entitled to adjustment of the amounts which he might have deposited. After seven months the petitioner would hand over the possession of the shop to the respondent No, 3. D. Chand, the petitioner, is present in person. He gives an undertaking to give vacant possession of the shop to the respondent No. 3 after the expiry of the aforesaid period. 8. Subject to the above, the writ petition is dismissed with costs. The stay order is discharged.