Ram Babu v. Addl. Dist. Judge, Agra — 1979 DIGILAW 1126 (ALL)

ORDER S. D. Agrawala, J. - This is a petition under Art. 226 of the Constitution of India arising out of the proceedings for release under S. 21 of the U. P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972, U. P. Act XU of 1972 (hereinafter referred to as the Act). 2. The petitioners are the landlords. Respondents Nos. 3 to 7 are the tenants of the property in dispute. The property in dispute is house No. li known as Haveli Sheesh Mahal situate at Mohalla Attawala, Firozabad Originally the application was moved by Smt. Kishan Devi, widow of Lala Pyan Lal and Ram Babu. During the pendency of the proceedings Smt. Kishan Devi died. In the application it was alleged that the landlords-applicants were residing in a portion of house No. 52 situate in Mohalla Attawala, Firozabad and that the said portion of the house is insufficient for their use and as such they needed the said portion of the house for their residence. 3. The prescribed authority, Firozabad by his order dated 8th Sept., 1976 held that the need of the petitioner-landlords was bona fide and genuine and as such allowed the application. Aggrieved the tenants filed an appeal under S. 22 of the Act which came up tor hearing before the Additional District Judge, Agra who by his judgment dated 12th May, 1977 allowed the appeal and set aside the order dated 8th Sept., 1976 and dismissed the application under S. 21 of the Act. Aggrieved the petitioners landlords have challenged the order of the Additional District Judge, Agra dated 12th May, 1977 by means of the present petition in this Court. 4. Sri S. P. Gupta, Senior Advocate appearing on behalf of the petitioners has raised two contentions before me. His first contention is that the finding that the need of the petitioners-landlords, was not bona fide and genuine, is vitiated in law as it is based on a consideration of accommodation which was not in existence at all. He has further urged that the Appellate Court while considering the bona fide need has not considered the number of the members of the family of the petitioners, the actual accommodation available for residence and had recorded the findings merely on surmises and conjectures. He has further urged that the Appellate Court while considering the bona fide need has not considered the number of the members of the family of the petitioners, the actual accommodation available for residence and had recorded the findings merely on surmises and conjectures. The second submission of the learned counsel is that the finding in regard to comparative hardship is vitiated in law as the case of the petitioners-landlords has not been considered at all in this connection, 5. Shri. G. P. Bhargava, Senior Advocate appearing on behalf of the tenants-respondents has supported the judgment of the Appellate Court and has urged that the finding that the petitioners did not have bona fide need of the property in dispute is a finding of fact which cannot be interfered with under Art. 226 of the Constitution of India. He has relied upon Muni Lal v. Prescribed Authority, AIR 1978 SC 29 , Babhutmal v. Laxmi Bai, AIR 1975 SC 1297 , Smt. Durga Devi v. District and Sessions Judge, 1976 (UP) RCC 208, Deep Chand Verma v. District Judge, Dehradun, 1978 All Rent Cas 5 and Ram Dayal v. VIth Addl. Dist. Judge, 1979 All Rent Cas 42. 6. Before considering the submissions made by the learned counsel it is necessary to examine the extent of the jurisdiction of the High Court under Art. 226 of the Constitution of India in regard to the findings recorded by the Appellate Court in regard to the bona fide need. 7. It is well settled that the finding in regard to the bona fide need is a finding of fact. The principle laid down in the cases cited by the learned counsel for the respondents are well settled. The above cases would fully apply to a case where the findings have been recorded by a Court on the basis of the relevant consideration and on the material on record. If, however, a finding of fact is based on irrelevant consideration, or material which is not in existence at all, then in my opinion, it would not be a finding of fact binding on the High Court under Art. 226 of the Constitution of India. If, however, a finding of fact is based on irrelevant consideration, or material which is not in existence at all, then in my opinion, it would not be a finding of fact binding on the High Court under Art. 226 of the Constitution of India. In case the submission made by the learned counsel for the petitioner is correct, that the Appellate Court has considered the accommodation available with the landlord which in fact is not in existence at all, then it is open to the High Court to set aside the said finding with a direction that the matter be considered afresh on the basis of accommodation available with the landlord. In Baldwin & Francis v. Patents Appeal Tribunal, (1959) 2 All ER 433, Lord Denning speaking for the House of Lords, opined as follows: "There are many cases in the books which show that if a Tribunal bases its decision on extraneous considerations which it ought not to have taken into account, or fails to take into account a vital consideration which it ought to have taken into account, then its decision may be quashed on certiorari and a mandamus be issued for it to hear the case afresh." 8. In my opinion, this principle of law would apply while exercising the jurisdiction under Art. 226 of the Constitution of India. 9. The landlords filed an application under Section 21 of the Act on the allegations that they are living in a portion of house No. 52, Mohalla Attawala, Firozabad. It was alleged in the application that the ground floor of the house No. 52, Mohalla Agttawala, Firozabad was used for commercial purposes from the very beginning and that the members of the family of the landlords are residing only in two rooms, one verandah, and a kothri on the first floor and that the said accommodation was quite insufficient for the requirement of the landlords. It was further stated that there were members of the family of the landlords and accommodation in their occupation was wholly insufficient. In paragraph 8 of the written statement filed by the tenants-respondents, it was stated that there was an underground (floor) of the said house No. 52, Mohalla Attawala, Firozabad and that underground and ground floor had been converted into big godowns which have been let out to different tenants. In paragraph 8 of the written statement filed by the tenants-respondents, it was stated that there was an underground (floor) of the said house No. 52, Mohalla Attawala, Firozabad and that underground and ground floor had been converted into big godowns which have been let out to different tenants. The only other accommodation alleged to be available with the landlords was stated to be the first floor accommodation and the second floor accommodation. In effect it was admitted by the respondents also that besides underground room, there were three storeys in the said house No. 52, the ground floor with the tenants and the first and second floors with the landlords. The appellate court has based its judgment on the basis of a map, paper No. 23/15-A which was an annexure to the partition deed amongst various co-sharers of which Ram Babu, one of the petitioners-land-lords was co-sharer. This map has been attached as Annexure 6' to the writ petition. In Annexure 6 also only three storeys have been shown, i. e. underground, first floor and the second floor. The first floor shown in Annexure 6 is, in fact, the ground floor and the second floor shown in Annexure 6 is the first floor. The Draftsman preparing the map has created a confusion in not shewing the ground floor at all. It appears that he treated the ground floor as the first floor and the first floor as the second floor. 10. During the course of arguments in order to clarify as to whether house No. 52 consisted three storeys or four storeys, I permitted the respondents to file a supplementary counter affidavit and the petitioners to file a supplementary rejoinder affidavit. They were filed before me on 10th October, 1979. From the perusal of the supplementary counter affidavit as well as the supplementary rejoinder affidavit, it is now amply clear that, in fact, there are only three storeys in House No. 52. The appellate court was got confused because of the map annexure 6 mentioned above. The position, therefore, is that a portion of the first storey, namely, underground, is in occupation of the tenants and a portion of the second storey, namely, first floor, is in occupation (sic) of the third storey, namely, first floor is the only accommodation in possession of the landlords for residential purposes. The position, therefore, is that a portion of the first storey, namely, underground, is in occupation of the tenants and a portion of the second storey, namely, first floor, is in occupation (sic) of the third storey, namely, first floor is the only accommodation in possession of the landlords for residential purposes. The appellate court has considered the need of the landlords taking into consideration the fact that the landlords have in their occupation for residential purposes the accommodation in the first floor as well as in the second floor of the house No. 52, whereas, in fact, there is no accommodation available with the land-lords in the second floor. The appellate court, has therefore, taken into consideration accommodation in the second floor which is not in existence at all. It is, therefore, clear that there is no accommodation at all in existence on the second floor which has been considered by the appellate court while examining the bona fide need of the landlord. Since the appellate court has considered the question of bona fide need keeping in view the accommodation which was not in existence at all, the findings recorded by the appellate court is in my opinion vitiated in law as it is based wholly on irrelevant and extraneous considerations. In the circumstances, the submission made by the learned counsel for the petitioners is well founded. 11. The further submission made in this regard by the learned counsel for the petitioners has also substance. The appellate court has not considered the extent of the accommodation available, their size and availability, qua, the members of the family of the landlords. The map Annexure `6' does not indicate as to which portion was being used as a kitchen or as bath-room and latrine etc. It is necessary for the court to determine the actual available accommodation for living purposes and it is only then that the court can properly consider the bona fide need of the landlord. 12. In regard to the second submission, I find that it is correct that, the appellate court has not considered the hardship of the landlords at all while considering the comparative hardships as required by the fourth proviso to Section 21 of the Act. The question of considering the proviso only arises when the court first comes to the conclusion that the need of the landlord is bona fide and genuine. The question of considering the proviso only arises when the court first comes to the conclusion that the need of the landlord is bona fide and genuine. The question of hardship is a consequential finding. Since the finding in regard to the bona fide need is vitiated in law, the consequential finding is also to be set aside, as this finding has been arrived at keeping in view the fact that the petitioners-landlords do not have bona fide need of the property in dispute. 13. In the result, I allow the petition, quash the order of the Additional District Judge, Agra dated 12-5-1977 and remand the case for decision afresh in accordance with law in the light of the observations made by me above. In the circumstances of the case, Parties are directed to bear their own coats.