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1993 DIGILAW 25 (ALL)

Chottey Nath v. Special Judge/Additional District And Sessions Judge, Nainital

1993-01-11

S.P.SRIVASTAVA

body1993
Judgment S.P. Srivastava, J. 1. In a proceeding under section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (hereinafter referred to as 'Act') initiated by the respondent no. 3 praying for the release of the accommodation in dispute under the tenancy of the petitioner, the Prescribed Authority allowing the said application ordered for the eviction of the petitioner-tenant subject to the condition that the landlord pays to the tenant an amount equal to two years rent. This order of release was challenged by the petitioner without any success before the appellate authority which dismissed this appeal maintaining thereby the order of release. 2. The petitioner tenant has now approached this Honourable Court for redress seeking the quashing of the aforesaid orders. The facts shorn of details and relevant for the disposal of the writ petition of Chhotey Nath are that the accommodation In dispute is being utilised for business purposes by the petitioner and he carries on a small tea stall therein In the writ petition of Babu Ram, however, the accommodation in dispute is being utilised for a small business of General Merchandise. Landlord had moved three applications seeking release of three different adjacent accommodations situate in the same building which were in occupation of different tenants including the petitioner. The landlord wanted the release of the aforesaid three accommodations which were being utilised for business purposes. The accommodation in the occupation of the petitioner-tenant Chhotey Nath and one Raghunath which were adjacent were sought for satisfying the need of the landlord's son Sandeep who had to be settled in independent business and taking into consideration the nature of the business being established for him, the accommodation in the occupation of the present petitioner and Rughunath were required as the landlord intended to demolish the separating wall of these two accommodations whereby a larger accommodation was to become available to satisfy the need However, in the case of petitioner tenant Babu Ram the accommodation was required for establishing the landlord-respondent in his own independent business in General Merchandise. 3. The Prescribed Authority after carefully considering the facts and circumstances of the case and the materials and the evidence brought on record came to the conclusion that the building in question was bonafide required by the landlord as claimed and his need for the same was genuine and pressing. 3. The Prescribed Authority after carefully considering the facts and circumstances of the case and the materials and the evidence brought on record came to the conclusion that the building in question was bonafide required by the landlord as claimed and his need for the same was genuine and pressing. The Prescribed Authority further recorded a finding that the hardships likely to be suffered by the landlord by the rejection of the release application would be much greater as compared to the hardships likely to be suffered by the tenant in the event of the grant of the release sought for. In this connection, the Prescribed Authority took into account all the necessary factors including the fact that the tenant had failed to make any genuine attempt to get any alternative accommodation either through the agency of the rent control authority or through independent negotiations though several such accommodations were available which could be easily acquired. 3. Feeling aggrieved by the order granting release sought for, the petitioner-tenant challenged the same in an appeal filed by him which was disposed of by the appellate authority respondent no. 1 vide the judgment and order dated 22-5-92 where under the grant of release in favour of the landlord-respondent was upheld. During the pendency of the appeal the landlord had moved an application paper no.15-C on 21-8-91 asserting that even though the tenant was not likely to suffer any greater hardship in the event of the grant of the release of the shop in question and his business was of a very small nature which could be carried out very well even on a thela Just like other parsons vet to avoid any delay and considering the urgency for immediate release of the accommodation in dispute, the landlord was prepared to forego a part of his drawing-room and toilet and construct three shops in accordance with the building plan a copy of which was annexed with that application and was prepared to let out one of the shops to each of the tenants on a rent fixed by the court. The prayer made in the application was that the appeal may be decided at once considering the offer contained in the said application. 4. The prayer made in the application was that the appeal may be decided at once considering the offer contained in the said application. 4. After considering the evidence and the material on record the appellate authority endorsed the findings recorded by the Prescribed Authority on the question of the genuineness and the bonafides of the requirement of the landlord for the release of the accommodation in dispute. It was also held that the need for the release was pressing. However the appellate authority recorded a further finding on the question of comparative hardship in a peculiar way holding that the requirement of the shop in dispute so far as the tenant was concerned was also correct and genuine. A perusal of the judgment passed by the appellate authority indicates that he appears to have held that hardship to both the landlord and the tenant would be the same. But taking into consideration the nature and scope of the business of the tenant and the situation and the extent of the alternative accommodation offered by the landlord for the shifting of the business of the tenant, the appellate authority did not find the case to be a fit one for interference in appeal provided the alternative accommodation offered was made available to the tenant at the rate of Rs. 50/- per month apart from taxes etc. The appellate authority recorded a clear finding to the effect that the tenant will not suffer greater hardship in case he was allowed to occupy the alternative accommodation offered by the landlord. Accordingly the appellate authority modified the order passed by the Prescribed Authority by directing that the alternative accommodation be made ready within a period of three months and should be let out to the tenant-appellant at the rate of Rs. 50/- per month apart from taxes and with the above direction the appeal was dismissed. 4. Being aggrieved the tenant-petitioner has now approached this Court seeking the quashing of both the orders referred to above. A have heard Sri R.G. Padia in support of the writ petition and Sri P.K. Singhal, learned counsel representing the landlord respondent. 5. 50/- per month apart from taxes and with the above direction the appeal was dismissed. 4. Being aggrieved the tenant-petitioner has now approached this Court seeking the quashing of both the orders referred to above. A have heard Sri R.G. Padia in support of the writ petition and Sri P.K. Singhal, learned counsel representing the landlord respondent. 5. It has been contended by the learned counsel for the petitioner that the Judgment passed by the appellate authority is not in accordance with law as it has only expressed agreement with the finding of the Prescribed Authority which is not sufficient and the appellate judgment does not reflect the application of mind to the facts and circumstances of the present case. According to the learned counsel for the petitioner, the appellate authority was required to give reasons why it found himself in agreement with the Prescribed Authority and ought to have; considered every piece of evidence led in defence. 6. The Judgment passed by the appellate authority is a judgment of affirmance. In the present case the Prescribed Authority had considered the entire material and evidence on record while recording its conclusions on the questions relating to the genuineness of the requirement for the release and had found it to be bonafide one. Similarly the finding on the question relating to the comparative hardship was also recorded after carefully considering the evidence and the materials on record the Apex Court in its decision in the case of Girijanandini Devi v. Birendra Narain Cboudhary, AIR 1967 SC 1124 , had pointed out that even where the appellate court did not enter upon a reappraisal of the evidence but it generally approved of the reasons adduced by the trial court in support of its conclusions that would ordinarily suffice. It was observed in that case that it is not the doty of the appellate court when it agrees with the view at the trial court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial court. This question had also come up for consideration before a Division Bench of this Court in the case of G.V. Massey v. E.C. Daniel, 1976 AWC 278 . This question had also come up for consideration before a Division Bench of this Court in the case of G.V. Massey v. E.C. Daniel, 1976 AWC 278 . In this case the Division Bench observed that in an order of affirmance that was required was that the order should be speaking order and it is not necessary to have elaborately dealt with every circumstance. It was further observed that there may be different ways of expressing the opinion or writing an order but so long as the purport is clear it would be a substantial compliance with the requirement of law. In the present case the appellate authority has considered the respective cases of the parties and the materials on the record and a perusal of the judgment indicates that he was alive to be a case where judgment passed by the appellate authority can be said to be lacking in refecting the use of application of mind. There appears to be a substantial compliance of the requirements of an order of affirmance as indicated in the Full Bench decision of this Court in the case of Haji Manzoor Ahmad v. State of U.P. 1968 ALJ 809. The contention raised by the learned counsel for the petitioner in this regard, is therefore not acceptable. The learned counsel for the petitioner next contended that the appellate authority has manifestly erred in taking into consideration the alternative accommodation offered by the landlord which could not be taken into account. In this connection the learned counsel for the petitioner has sought to place reliance upon the absence of any provision taking to rule 16(1)(f) in the guidelines contained in rule 16(2) of the Rules framed under U.P. Act No. 13 of 1972. The assertion of the learned counsel is that a perusal of rule 16(1) and 16(2) of the Rules indicate the policy where under while considering the requirements of perusal occupation for the purposes of residence by the landlord, the offer of alternative accommodation reasonable suitable for the needs of the tenant could be taken into account for considering the claim for release liberally but there was no such provision in respect of soon consideration for the requirements of business purpose. It may be noticed that rule 16 of the Rules only provide guidelines which have to be kept In mind while considering the requirements of personal occupation for the purposes of residence or for the purposes of any business. The guidelines given in rules 16(1) or 16(2) are not exhaustive but are merely enumerative. The absence of any guidelines in the provisions contained in rule 16(2) of the rules taking to the guideline contained in rule 16(1)(f) does not and cannot lead to an inference that an offer of an alternative accommodation made by the landlord even in respect of case falling in rule 16(2) of the rules could not be taken into account at all. In fact this Court in its decision in the case of Amarnath v IVth Additional District Judge, Agra. 1988 (2) ARC 419. clearly held that although rule 16(1)(f) is not applicable in the case of non-residential accommodation yet there was no bar while considering the question of comparative hardship in respect of a shop for considering the offer of the landlord to a tenant an alternative accommodation. I respectfully agree with the view taken in the aforesaid case and hold that there is no merit in the contention of the learned counsel for the petitioner and the appellate authority did not commit an error of law in taking into account alternative accommodation which, in the circumstances of the case was found sufficient to mitigate the hardship of the tenant but was not sufficient for satisfying the requirements of the landlord. 7. The learned counsel of the petitioner has next contended that the appellate authority had recorded a finding that the need for the accommodation was equibalanced and has asserted that in this view of the matter the release application deserved to be rejected. Reliance in this connection was sought to be placed on a decision of the Apex Court in the ease of Bishan Chand v. Additional District Judge. Bulandshahr, 1982 ARC 440, wherein it has been held that in case it is found that hardship to both the landlord and the tenant would be the same in that event in absence of any additional circumstance indicating that the preference could be shown to the landlord the ejectment order in his favour could not be made. 8. I have carefully considered the above submission. 8. I have carefully considered the above submission. The present case is not such a case where it could be said that there was no additional circumstance indicating that the preference could be shown to the landlord. The appellate authority itself has taken note of the fact that the alternative accommodation offered by the landlord had the effect of mitigating the hardship of the tenant and that the said accommodation could not satisfy the requirement of the landlord The Prescribed Authority as well as the appellate authority have also noticed that the tenant had led no satisfactory evidence indicating that he had made any genuine effort to acquire or obtain any alternative accommodation though such accommodations were in fact available. In the cases where there is inaction on the part of the tenant in searching for an alternative accommodation by seeking allotment or otherwise inspite of coming to know that the building in his tenancy in genuinely required by the landlord for satisfying his bonafide need the question of relative hardships, envisaged under the IVth proviso to section 21 of the Act deserves to be considered liberally in favour of the landlord especially when the bonafide need for the grant of release sought for is established. The inaction of tenant to make attempt to find out an alternative accommodation during the pendency of the release/ejectment proceedings would certainly be a factor against the tenant's case for greater hardship. The tenant has to establish that if he is evicted he will suffer greater hardship as compared to the landlord and must lead clear evidence to show that inspite of the best efforts he was unable to get another alternative suitable accommodation in the absence whereof scale of relative hardships may be tilted in favour of the landlord as the inconvenience, loss or trouble resulting by the denial of the order of release in favour of the landlord will far outweigh the prejudice or the inconvenience which may likely be caused to the tenants. This Court in its decision in the case of Dr. This Court in its decision in the case of Dr. Munna Lal v. IV Additional District Judge, Etah, 1984 (1) ARC 378, had clarified that the fact that nothing is brought on record indicating that the tenant had made any effort during some accommodation allotted in his fovour or otherwise or that he had failed In his attempt is a relevant circumstance while considering the question relating to comparative hardships, I am of the clear opinion that such an inaction on the part of the tenant constitutes an additional circumstance which entitles the landlord to have a preference shown to him while striking the just balance between genuine need of the landlord on the one hand and the likely inconvenience or trouble of the tenant on the other. In the circumstances of the case the petitioner cannot derive any advantage out of the observations made in the case of Bishan Chand (supra). In view of my conclusions indicated hereinbefore, there is no error much less manifest error of law which may justify any interference in the exercise of jurisdiction envisaged under Article 226 of the Constitution of India. 9. The writ petitions are devoid of merits and are accordingly dismissed. 10. There shall, however, be no order as to costs. Petition dismissed.