Gokul Prasad Yadav; Putti Lal Dwivedi v. XIIth Addl. District Judge Kanpur Nagar
1998-08-27
J.C.GUPTA
body1998
DigiLaw.ai
Judgment J.C. Gupta, J. 1. Both these petitions have been filed by tenants and they arise out of a common judgment of the Appellate Authority, whereby appeals filed by both the petitioners were dismissed and the order of the Prescribed Authority al lowing the release application of the landlord-respondent No. 3 was affirmed against both the petitioners. 2. The claim for disputed rented accommodation was made by the landlord on the basis that he is residing in a rented house and his eviction was threatened and he purchased the property in question by a registered sale-deed, dated 8-9-1988 for his personal requirement. Notices as contemplated under the first proviso were served upon the tenants. Undisputedly after the expiry of more than three-years, the release applications were moved. The claim was contested by both the tenants on several grounds. Some of the main defences being that the landlord has his ancestral house which has been concealed; that there was no threat of his eviction from the rented house; that the landlord has already come in occupation of a portion of the house in question which was in the tenancy of Munna Lai; and that the tenants would suffer greater hardship other than that of the landlord. The Prescribed Authority examined the evidence and answered both the relevant questions i.e. bonafide need and comparative hardship in favour of the landlord. The Appellate Authority also thoroughly examined the evidence and affirmed the findings of the Prescribed Authority. It is well established law that this Court while hearing a writ petition under Articles 226/227 of the Constitution of India does not Act as a Court of appeal. In rent control matters the power of this Court is only supervisory and of judicial review. No authority is needed for the proposition that a judicial review is not concerned with the correctness of the decision but only with the manner in which the decision was made. Minute errors here and there committed by the Court below in recording the concurrent findings of fact would not be sufficient to vitiate the orders. A menifest error has to be shown in order to seek intervention of this Court.
Minute errors here and there committed by the Court below in recording the concurrent findings of fact would not be sufficient to vitiate the orders. A menifest error has to be shown in order to seek intervention of this Court. The argument of the learned Counsel for the petitioners that in the release application the landlord concealed that he has an ancestral house and, therefore, his need for the accommodation in question should have been viewed with suspicion, cannot be accepted as it was clearly indicated in the evidence brought on record that the ancestral house No. 104/261, Sisamau, Kanpur was owned by Inder Narain Awasthi the grand-father of the landlord and after his death the father of the petitioner and his two uncles are holding the said property as co-sharers and it has also been brought on record and has been found as a fact by the Appellate Authority that the landlord's father resides with his step-mother and children in the said house and landlord's relations with them were not cordial and he always lived separate from his father and he was forced to take a house on rent. No space for his personal residence was therefore, available to the landlord in the ancestral house because of the same being occupied by landlord's father, step-mother, her children and his two uncles with their families. No reliable evidence was brought on record to disprove the above assertion of the landlord. The circumstance that the landlord was himself residing in a rented house supported his version that since it was not possible for him to live with his step-mother, he had to take another house on rent. 3. So far as availability of space which has come in occupation of the landlord after being vacate by another tenant Munna Lai is concerned, a clear finding of fact has been recorded by the Courts below that the said accommodation comprised of only one room and a Verandah, whereas the need of the landlord for four rooms was found to be necessary, As per the landlord's case the said accommodation was inhabitable but assuming this to be not correct, still it could not be said-that the need of the landlord for the accommodation in question stood satisfied with that space only. 4.
4. As regards the question of comparison of hardship, the Courts below have recorded a concurrent finding that the petitioner made no sincere and earnest efforts to obtain any other accommodation, though the instant release application remained pending since January, 1992. Learned Counsel for the petitioner contended that there was an affidavit of the tenant himself wherein he alleged that he made several attempts to find out other accommodations but could not succeed, but this affidavit has not been taken into consideration by the Courts below. A perusal of the said affidavit would however, show that it was not indicated therein what actual efforts had been made by the tenant in that direction. From a mere bold statement without there being any further details it could not be said that the tenant made real sincere efforts to obtain any other accommodation on rent or otherwise. On such vague allegations no reasonable person could have reached to the conclusion that the tenants made sincere efforts to find out any other alternative accommodation. 5. It was next argued by Sri Sanktha Rai, Senior Advocate that the applications under Section 21(l)(a) were legally not maintainable because no notice as contemplated under the first proviso to Section 21(1) of the Act is proved to have been served upon the petitioners. This aspect of the matter has been thoroughly examined by authorities below and a clear finding has been recorded that the requisite notices were duly served upon the petitioners and the release applications were undisputedly filed long after the expiry of period of six months from the date of service of notice. Learned Counsel for the petitioner, Putti Lai invited the attention of the Court on one of the grounds which were taken in the appeal filed before the Appellate Authority that the postal receipt under which the registered cover containing the notice was said to have been sent, did not contain the address and, therefore, it was not proved that the notice in question was sent at correct address. At the out set it may be pointed out that no such point appears to have been raised before the authorities below. In any view of the matter, neither the copy of postal receipt nor the notice have been filed or annexed in this writ petition.
At the out set it may be pointed out that no such point appears to have been raised before the authorities below. In any view of the matter, neither the copy of postal receipt nor the notice have been filed or annexed in this writ petition. IT was also not the case of any of the parties before the authorities below that the notices were not sent at the correct addresses of the tenants. Further it is of common knowledge that the addresses are never mentioned in postal receipts. Addresses are indicated only on the registered cover and when the undelivered cover is not received back by its sender, there is a presumption in law that the registered cover has been duly served on the addressee. In order to counter the assertion of the tenants that they did not receive any notice, the landlord filed the copy of the notice which was sent to him by the tenants in reply to the notices served upon them by the landlord. In their affidavits the tenants could not dare to state or place anything on record to shew that they never got sent any such reply through their Counsel. The authorities below have rightly placed reliance on this strong factor while recording a finding regarding service of notice upon the tenants. This finding also being recorded on appraisal of evidence is not open to interference by this Court. 6. Since this writ petition is concluded by findings of fact and the orders of the authorities below could not be shown to be suffering from any manifest error of law, this Court does not find any good ground to make intervention. For the reasons given above, both these writ petitions are dismissed in limine. 7. At this stage, a request has been made on behalf of both the tenants-petitioner that they be given a reasonable time to vacate the tenanted accommodation and for making their own alternative arrangements and they shall file undertakings as may be required to ensure that they vacate the premises in question before the expiry of period allowed by this Court. 8.
8. Considering the entire facts and circumstances, each of the petitioners is allowed six months' period to handover possession of the tenanted accommodation in his occupation to the landlord, subject to his filing an undertaking on affidavit before the Prescribed Authority, within three weeks from today to the effect that he shall vacate and handover possession to the landlord on or before 28-2-1999 without inducting any third person there in. For a period of three weeks from today, the execution of the impugned order shall remain stayed. In the event of the required undertaking being not filed within the aforesaid period of three weeks, the landlord shall be at liberty to get the orders of release enforced forthwith, according to law. A copy of this judgment be placed on the connected writ petition. 9. A certified copy of the above order shall be made available to the Counsel of the petitioners within three days, on payment of usual charges. Petition dismissed.