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2001 DIGILAW 677 (ALL)

Gurvinder Kaur v. Viiith Addl District Judge Kanpur

2001-07-11

J.C.GUPTA

body2001
JUDGMENT : - J.C. Gupta, J. The instant writ petition is by landlady seeking prayer for quashing the order dated 7-1-1985 passed by the Prescribed Authority, Kanpur, respondent No. 2 and the order dated 22-12-1994 passed by the then 8th Additional District Judge, Kanpur, respondent No. 1. 2. THE landlady Smt. Joginder Kaur since deceased, moved an application under Section 21 (l) (a) of U. P. Act No. XIII of 1972 (hereinafter referred to as the Act) for the release of premises No. 118/103 (6) shop No. 7/14, Bamba Road, Kaushalpuri, Kanpur against joint tenants respondent Nos. 3 and 4 alleging therein that the landlady was an aged lady and was being looked after and supported by Sri Satvir Singh, her daughter's son. THE premises in question was set out to respondents for a short period and she with a view to settle her grand-son Satvir Singh who was then under training of Chartered Accountancy required the premises for set ting up his office. It was further alleged that the respondents were affluent persons as such they would not suffer any hardship in case they were evicted. It was also asserted in the affidavit in support of the application that the landlady's son was separate from her and she did not have good relation with him, as such only Satvir Singh was helping and looking after her. It was also asserted that tenants had other accommodation with them and they would not suffer any hardship if they were asked to vacate the accommodation in question. The tenant respondents denied the averments made in the release application. 3. THE Prescribed Authority by the order dated 7-1-1985 rejected the release application observing that it was not established that the landlady was dependent upon Satvir Singh on the basis of statement given in SCC Suit No. 1/80 filed by the landlady for ejectment of respondents No. 3 and 4 on the ground of default. Aggrieved by the order of the Prescribed Authority, the landlady filed appeal under Section 22 of the Act and the same has also been dismissed by respondent No. 1 by the order dated 22-12-1994. It maybe relevant to mention here that during the pendency of appeal, landlady Joginder Kaur died and the petitioner Smt. Gurinder Kaur has been substituted in her place. 4. It maybe relevant to mention here that during the pendency of appeal, landlady Joginder Kaur died and the petitioner Smt. Gurinder Kaur has been substituted in her place. 4. THE Court has heard Sri P. N. Saxena for the petitioner and Sri Radhey Shyam for the contesting respondents No. 3 and 4. It was submitted by the petitioner's Counsel that while rejecting the release application, the lower Appellate Authority has erroneously held that since Satvir Singh was not covered by the definition of 'family' as envisaged under Section 3 (g) of the Act, the release application was not maintainable in respect of his need totally ignoring the fact that the release was not sought on the ground of Satvir Singh being a family member of the landlady but the same was sought on the ground that the landlady was totally de pendent upon Satvir Singh and as such she had a right to ask for the release of accommodation in question for setting up office for her grand-son Satvir Singh. This aspect of the matter was totally ignored by the lower appellate authority. It was further argued that the lower appellate authority has erroneously held that it was not proved from evidence that the landlady was de pendent upon Satvir Singh totally ignoring the evidence led by the landlady on the said issue. It was further argued that the lower appellate authority has observed that even the need of Satvir Singh extinguished as he has shifted to Punjab but while coming to the said conclusion the lower appellate authority based its finding on the affidavit of respondent Dr. Sachdeva ignoring the material fact that Satvir himself had filed affidavit denying the allegation of his having shifted to Punjab. There were other affidavits also to support the landlady's case that Satvir Singh was still living with the petitioner. In short the argument of the petitioner's Counsel has been that the finding of respondent No. 1 that Satvir Singh was not living with Smt. Joginder Kaur was based on non-consideration of evidence adduced by the petitioner and after the death of Smt. Joginder Kaur the petitioner has merely stepped into the shoes of Smt. Joginder Kaur and thus the need of Smt. Joginder Kaur would continue to exist, as such the findings of respondent No. 1 suffered with manifest error of law. It was also submitted that there was overwhelming evidence to the effect that the respondent Nos. 3 and 4 were running their clinic from premises No. 118/91, Kanpur and no reason has been given in support of the finding recorded contrary to landlady's assertion. Learned Counsel for the petitioner has also placed reliance on some decisions of this Court in support of his argument. 5. ON the other hand learned Counsel for the respondents argued before the Court that all the decisions relied upon by the learned Counsel for the petitioner had no relevance in view of the concurrent finding recorded by the Prescribed Authority as well as the lower appellate authority that Satvir Singh did not reside with Joginder Kaur nor she was dependent upon him. This concurrent finding of fact is not open to be interfered with in writ jurisdiction. 6. IT is well-settled that writ jurisdiction of this Court under Articles 226 and 227 of the Constitution in rent control matters is of supervisory nature only. While dealing with such matters in writ jurisdiction this Court does not sit as a Court of appeal while judging the findings of the competent authorities with regard to bonafide need of the landlord and comparative hardship of the parties. IT is not open for this Court to substitute its own finding of fact in place of findings recorded by the fact finding authorities after re-appraising the evidence. IT is clearly outside the ambit of judicial review. However, a finding of fact recorded by the Courts below may be interfered with when it is based on account of wrong application of principles of law relevant thereto or where relevant material has not been taken into consideration while recoding the said finding or the finding is otherwise arbitrary or perverse. As a result of various pronouncements of the Apex Court and the High Court, the parameters of judicial review arc now well-settled. In a given case where the Court is concerned with the findings of fact, it examines only the reasonableness of the findings. As a result of various pronouncements of the Apex Court and the High Court, the parameters of judicial review arc now well-settled. In a given case where the Court is concerned with the findings of fact, it examines only the reasonableness of the findings. If the finding is found to be rational and reasonable based on evidence in the sense that all the relevant material has been taken into ac count and no irrelevant or extraneous material has influenced the decision and the decision is one which any reasonable minded person acting on such evidence would come to, then judicial review stands exhausted even where the finding may not necessarily be of the liking of the writ Court. The decision under review is liable to be set aside if it is manifestly erroneous and arbitrary or that the finding of fact was wholly unjustified and perverse. In sup port of this legal principle one may refer to the decisions in Smt. Nirmala Tandon and others v. Xth Additional District Judge, Kanpur Nagar and others, 1996 (2) ARC 409 and Nathu Mal v. Kailash Chandra and others, 1996 (2) ARC 181. The Apex Court in the case of The Appropriate Authority and another v. Smt. Sudha Patil and others, JT 1998 (7) SC 571, has held that a finding/conclusion of an inferior Tribunal can be interfered with if the High Court comes to the conclusion that in arriving at the conclusion the Tribunal has failed to. consider some relevant material or has considered some extraneous and irrelevant material or that the finding is based on no evidence or the finding is such that no reasonable man can ever come to such a conclusion on the basis of which the finding has been arrived at. 7. consider some relevant material or has considered some extraneous and irrelevant material or that the finding is based on no evidence or the finding is such that no reasonable man can ever come to such a conclusion on the basis of which the finding has been arrived at. 7. IN the case of Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, (1986) 4 SCC 447 , it was held that the High Court should not ordinarily interfere with con current finding of fact but where the finding is perverse in law in the sense that no reasonable person properly instructed in law could have come to such a finding or there is misdirection in law or a view of fact has been taken in the teeth of preponderance of evidence or the finding is not based on any material evidence or it has resulted in manifest injustice, the High Court has power to interfere even in such matters. 8. IN the case of Ram Babu v. Special Judge (E. G. Act) Additional District Judge, Kanpur Nagar and others, 1998 (1) ARC 510, the concurrent finding recorded by Courts below on the question of bonafide need was interfered with on account of non-consideration of material evidence and the case was remanded to the lower appellate authority for deciding the issue of bonafide need afresh. In Smt. Ram Dev v. 8th Additional District Judge, Kanpur, 1999 (1) ARC 173, the finding of the lower appellate authority on the question of bonafide need was set aside on the ground that the said authority had proceeded on wrong assumption of legal position by excluding from consideration, requirement of mother-in-law of the landlady. It was further held in the said decision that even in the case of concurrent findings of fact, it is the duty of the High Court to examine the material and do justice between the parties and it will be a denial of justice if the Court acts on a computerized system of ad ministration of justice by just affixing a rubber stamp of approval on the concurrent decisions merely on the ground that they were based on findings of fact. It was further held that where the case of a party has been accepted without any objective test and careful assessment of evidence on the record intervention by this Court becomes necessary for doing justice between the parties. 9. It was further held that where the case of a party has been accepted without any objective test and careful assessment of evidence on the record intervention by this Court becomes necessary for doing justice between the parties. 9. IN view of the aforesaid decisions, it is clear that concurrent findings of fact are not to be interfered with ordinarily in writ jurisdiction but at the same time a rubber stamp of approval should not be put in a routine manner of computerised system of administration of justice. It is the duty of the Court to look into the evidence if the justice so requires and where material evidence has been totally ignored and the finding of fact is based upon consideration of evidence led by one party only, the Court has power to set aside the finding of fact recorded by the Court below. 10. IN an application made under Section 21 (l) (a) of the Act first and foremost question that arises for consideration is whether need of the landlord for the release of tenanted accommodation is bonafidely established? The tenanted accommodation can be released only if the same is required bona fide by the landlord for occupation by himself or any member of his family. While interpreting the expression "for occupation by himself' used in clause (a) of sub-section (1) of Section 21 of the Act it has been held by this Court that the said phrase cannot be construed narrowly to mean to that the landlord should live in isolation or by himself only; in other words the said expression within its ambit includes the personal requirement of a landlord. It may include landlord's servant some other person or persons, to look after him and take care and whose company and assistance was or had become necessary though technically they might not be members of his family as defined in the Act. Therefore, need of such others whose assistance was required to the landlord is to be considered the own need of the landlord. 11. IN Thakurdeen v. Smt. Hero Devi and others, 1984 ALJ 787, Hon'ble B. N. Sapru, J. observed as under: "a son is undoubtedly a member of the family of the landlady. The crucial words are "for occupation by himself or any member of his family". 11. IN Thakurdeen v. Smt. Hero Devi and others, 1984 ALJ 787, Hon'ble B. N. Sapru, J. observed as under: "a son is undoubtedly a member of the family of the landlady. The crucial words are "for occupation by himself or any member of his family". The word 'occupation' in the context in which it is placed in Section 21 (l) (a), means occupation by the landlord or the members of his family along with those persons who would normally reside with him. It does not mean that a landlord or a member of the family of a landlord, must need the accommodation for his occupation alone in the sense that he cannot bring with him any other person who would normally live with him. " 12. SIMILARLY Hon'ble S. D. Agarwal, J. in the case of Rani Chaturvedi and others v. Dr. Shiv Narain Das and others, 1980 Alld. Civil Journal 110, and Smt. Kamla Ahuja v. VIth Additional District, Judge, Meerut and others, 1981 ARC 371, took the view that under Section 21 (l) (a) of the Act, the landlord can apply for the release of a building under occupation of the tenant, for occupation by himself or any member of his family. In case the application is made for occupation for any member of his family, then alone the member of his 'family' will be only such person who comes with the definition of 'family' as provided by Section 3 (g) of the Act. How ever, where the landlord requires the building for occupation by himself then the question of applicability of the definition of the word 'family' as used in Section 3 (g) does not arise. In such matters the Court has to examine the own need of the landlord and in such a case the fact that the relations of the landlord are permanently residing with him would be relevant consideration for the Court while examining the need of the landlord. In such matters the Court has to examine the own need of the landlord and in such a case the fact that the relations of the landlord are permanently residing with him would be relevant consideration for the Court while examining the need of the landlord. Similar view was expressed by Hon'ble S. R. Singh, J. in Chandrapal Singh Prihar v. 5th Additional District Judge, Kanpur and others, 1992 ACJ 1128, that a landlord may require a building or part thereof not only to meet his personal physical requirement of a comfortable and dignified living be fitting his status but he may also legitimately require the building or part there of for personal occupation in order to meet his moral, social and philanthropic needs, requirements, duties and obligation. Moral and social factors are relevant besides the factor enumerated in Rule 16 of the Rules for the purpose of Section 21 (l) (a) of the Act in considering the requirements of personal occupation for purposes of residence by the landlord or any member of his family. Social rules and moral principles governing human conduct are irrevocably linked with progress in life. The Legislature therefore must not have intended to exclude such requirements for personal occupation for the purview of Section21 (l) (a) of the Act. 13. IN the case of Keshav Narain Sharma v. 1st Additional District Judge, Lucknow and others, 1981 ARC 627, the need of close relatives of a bachelor landlord like nephew, nephew's wife and children living with him for his company and comfort, were held to be part of landlord' personal need although such relatives were not members of 'family' within the meaning of Section 3 (g) of the Act. 14. A Division Bench of this Court in the case of Jang Bahadur Saxena v. Vlllth Additional District Judge, Kanpur and others, 1986 (1) ARC 15, also took similar view. In the present case while answering the question of bona fide need of the landlady, the lower appellate Court rejected her claim on the ground that Satvir Singh does not come within the definition of 'family' as given in Section 3 (g) of the Act. In the present case while answering the question of bona fide need of the landlady, the lower appellate Court rejected her claim on the ground that Satvir Singh does not come within the definition of 'family' as given in Section 3 (g) of the Act. In my opinion the lower appellate Court has proceeded on a wrong assumption of law totally ignoring the fact that the landlady had not sought release of the accommodation in question on the ground of Satvir Singh being her family member within the meaning of 'family' as defined under the Act. The release was sought on the ground that the landlady was totally dependent on Satvir Singh. It would further be found that the finding of the lower appellate authority that it was not proved from the evidence that the landlady was dependent upon Satvir Singh is perverse in as much as the same is based upon some statement recorded during the proceeding of SCC Suit No. 1 of 1980 which statement had no relevance so far as the question of bona fide need was concerned. The conclusion of the lower appellate authority that Satvir Singh has permanently shifted to Punjab suffers from a manifest error of law as the said conclusion is based upon consideration of affidavit of respondent Dr. Sachdeva alone and the lower appellate authority totally failed to notice that Satvir Singh had himself filed his own affidavit denying the said allegation of the tenant of his having shifted to Punjab. Learned Additional District Judge, respondent No. 1 has also failed to consider the affidavit of Joginder Kaur wherein all facts and circumstance regarding the statement given in SCC Suit No. 1 of 1980 were disclosed. Satvir Singh in his affidavit whose copy has been filed as An-nexure-2 to the writ petition has also stated that he was staying with Joginder Kaur and was looking after her and that he has no other place in Kanpur either to live or to set up his office of Chartered Accountancy. Similarly the landlady's assertion that the respondents were carrying on business (clinic) in another premises has been rejected by the lower appellate authority on consideration of evidence led by the respondents alone without at all taking into consideration the affidavits filed on behalf of the landlady as well as the photographs filed on her behalf of the landlady. Similarly the landlady's assertion that the respondents were carrying on business (clinic) in another premises has been rejected by the lower appellate authority on consideration of evidence led by the respondents alone without at all taking into consideration the affidavits filed on behalf of the landlady as well as the photographs filed on her behalf of the landlady. The findings of the lower appellate authority are thus not sustainable as the case of respondents has been accepted upon consideration of evidence and material placed from their side without at all taking into account relevant material placed from the side of the landlady. 15. AFTER examining the record this Court is, therefore, of the view that the judgment of the lower appellate Court is not sustainable as the same has proceeded on wrong assumption of legal position regarding the bona fide requirement of the landlady and also on account of the fact that the findings of fact recorded on question of bona fide need and comparative hardship are vitiated on account of non- consideration of material evidence brought on record from the side of the landlady. 16. FOR the reasons stated above this writ petition is allowed. The judgment and order of respondent No. 2 dated 22-12-1994 is set aside and the case is remanded back to the lower appellate authority with the direction that appeal filed by the landlady shall be restored to its original number and shall be decided afresh in accordance with law and in the light of observations made above. It shall be heard and decided as expeditiously as possible preferably within a period of three months from the date a certified copy of this judgment is produced before the Court below. In the circumstances parties are directed to bear their own costs. Petition allowed.