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2004 DIGILAW 29 (ALL)

Anand Swaroop Goel v. Additional District Judge

2004-01-07

N.K.MEHROTRA

body2004
JUDGMENT : N.K. MEHROTRA, J. 1. This is a writ Petition for issuing a writ of certiorari to quash the judgment dated 13.11.2003 (Annexure-2) passed by the opposite party No. 1 Additional District Judge, Sitapur Court No. 10 upholding the judgment dated 22.8.1998 (Annexure-1) passed by the opposite party No. 2 prescribed authority under Uttar Pradesh Urban Buildings Act, 1972/IInd Additional Civil Judge, Senior Division, Sitapur. 2. Opposite party No. 3 Krishna Murari Mishra moved an application on 28.7.1992 u/s 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972 (hereinafter called the 'Act') for the release of the shop in the tenancy of the Petitioner on the ground that the opposite party No. 3 is M.B.B.S. Doctor and he requires the shop in dispute for his clinic. It was alleged that the opposite party No. 3 earlier used to do the practice in private Polyclinic at Lucknow but subsequently he has been shifted to Sitapur. The Petitioner was carrying on the business of general merchandise and since his business was not running on well, he opened a P.C.O. It was alleged that the shop in occupation of the Petitioner is bona fide required for the purpose of the clinic to be run by the Petitioner. During the pendency of the appeal, the opposite party No. 3 filed affidavit in reply to the affidavit of the Petitioner and alleged that his daughter Kumari Richa has also passed M.D. Course and she will also assist the opposite party No. 3 in his clinic in the disputed shop. 3. The release application was contested by the Petitioner by pleading that the need of the opposite party No. 3 is neither genuine nor bona fide rather it is a mere desire to oust the Petitioner from the premises which is the only source of livelihood. It was also alleged that the Petitioner is carrying on his business for the last twenty four years from the disputed shop and he has earned the good will of his business. It was also alleged that the opposite party No. 3 after the eviction of the shop intends to let out the shop to the other persons after realising the huge premium on hire rent. It was also alleged that the opposite party No. 3 after the eviction of the shop intends to let out the shop to the other persons after realising the huge premium on hire rent. It is also alleged that the opposite party No. 3 is a man of means and is possessing various accommodations in vacant state but he has not opened and his clinic rather let out those accommodations on rent. The accommodation in possession of the District Malaria Officer which was being used for the office as well as the lab was vacated and the possession was delivered to the opposite party No. 3 in which he could carry on his so called clinic. The opposite party No. 3 is doing his medical practice from the premises from where his father was carrying on his clinic. It is further pleaded that on the first floor of the disputed shop as well as the adjoining shops, there is also sufficient space which is lying vacant and the same can be used by the opposite party No. 3 for the purpose of his so called need. 4. On the basis of the pleadings, the trial court framed four issues ; namely (i) Whether the opposite party No 3 is a qualified M.B.B.S. doctor ; (ii) Whether the need of the opposite party No. 3 is bona fide ; (iii) Whether the need of the landlord is comparatively greater than the need of the tenant Petitioner ; and (iv) Whether the tenant Petitioner has any other alternative accommodation to shift his business. 5. The prescribed authority decided the issue Nos. 1, 2 and 3 in favour of the opposite party No. 3. On issue No. 4, the prescribed authority on the basis of the evidence on record, held that there are other newly built vacant shops available for rent in the vicinity. The Petitioner can choose any of those accommodations to shift his business. 1, 2 and 3 in favour of the opposite party No. 3. On issue No. 4, the prescribed authority on the basis of the evidence on record, held that there are other newly built vacant shops available for rent in the vicinity. The Petitioner can choose any of those accommodations to shift his business. The prescribed authority has further held that during the pendency of the release application, the Petitioner tenant has not made any attempt to find out the alternative accommodation and on the basis of the inaction on the part of the Petitioner tenant in making attempt for the alternative accommodation, the prescribed authority has held that the need of the Petitioner tenant cannot be said to be greater than the need of the landlord and for this finding, the prescribed authority has relied on a decision of this Court in Rajendra Kumar v. Gopal Krishna and Ors. 1995 ALJ 291. The prescribed authority has also held that the disputed shop was let out to the Petitioner for running the business of general merchandise and when the Petitioner could not run his business successfully, he has shifted his business from general merchant to P.C.O. and the P.C.O. can be run at any other place to earn the livelihood by the Petitioner. It has also been held that the Petitioner can shift to any other place in Sitapur for running his P.C.O. business. 6. After recording this finding, the prescribed authority has allowed the application for release of the disputed shop on payment of amount equal to two years rent. 7. The Petitioner preferred an appeal before the District Judge and this appeal has been dismissed by the impugned judgment Annexure-2. The appellate Judge has upheld the findings recorded by the prescribed authority. The case of the Petitioner is that the need as set up by the opposite party No. 3 is neither bona fide nor genuine ; that the opposite party Nos. 1 and 2 have failed to consider that the opposite party No. 3 had already let out various shops and had not used those vacant shops for running his so called clinic as well as he had also disposed of so many properties and is a man of means ; that the opposite party Nos. 1 and 2 have failed to consider that the opposite party No. 3 had already let out various shops and had not used those vacant shops for running his so called clinic as well as he had also disposed of so many properties and is a man of means ; that the opposite party Nos. 1 and 2 have failed to consider the large number of accommodations available to the opposite party No. 3 ignoring the premises vacated by the District Malaria Officer and the fact that the opposite party No. 3 is still possessed of various unfinished constructions in his possession from where he can easily run his shop ; that the opposite party No. 2 have failed to consider the entire evidence on record including the report of the Commissioner which proves that the opposite party No. 3 is in possession of the huge accommodation to run his clinic, that the Petitioner despite his best efforts, could not acquire any other alternative accommodation in the vicinity of the shop on account of payment of hire rent and premium and the opposite party Nos. 1 and 2 have wrongly taken into consideration the fact that the Petitioner had subsequently started running the P.C.O. by closing the general merchandise business and the need for the general merchandise business had vanished. 8. The opposite party No. 3 has made a statement that no counter-affidavit is required to be filed in this petition and both the parties have argued the merit of the case on the basis of the evidence discussed in the judgment of the two courts below and the legal position referred by them. 9. After hearing the learned Counsel for the parties and looking to the evidence discussed in the two impugned judgments passed by the courts below, I find that the finding about the bona fide and genuine need of the landlord opposite party No. 3 is well discussed by the two courts below on the basis of the evidence on record. I further find that the contentions of the Petitioner that before moving the release petition, the opposite party No. 3 had let out other shops to other persons, is not relevant to discard the need of the Petitioner. I further find that the contentions of the Petitioner that before moving the release petition, the opposite party No. 3 had let out other shops to other persons, is not relevant to discard the need of the Petitioner. I also find that both the courts below have considered the entire accommodation pointed out by the Petitioner tenant which are said to be in possession of the landlord opposite party No. 3 and after taking into consideration, the contentions of both the parties with regard to the availability of the alternative accommodation with the landlord, it has been correctly held that the need of the landlord opposite party No. 3 is bona fide and genuine and on comparative hardship, the need of the landlord who is an M.B.B.S. doctor, has been correctly considered to be greater than the need of the tenant Petitioner. There are concurrent findings of facts based on evidence which cannot be interfered with in the writ petition under Article 226 of the Constitution of India. In Surya Deo Rai v. Ram Chandra Rai JT 2003 (6) SC 465, it has been held: Certiorari under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted: (i) without jurisdiction-by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction-by over stepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice ... Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby. A patent error is an error which is self evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long drawn process of reasoning. 10. Learned Counsel for the Petitioner has also argued that Petitioner had made an offer before the opposite party Nos. A patent error is an error which is self evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long drawn process of reasoning. 10. Learned Counsel for the Petitioner has also argued that Petitioner had made an offer before the opposite party Nos. 1 and 2 that in case it is held that the so-called need of the opposite party No. 3 is found to be genuine and bona fide, the Petitioner may be accommodated in the shops existing on the first floor which are lying vacant and the opposite party Nos. 1 and 2 have failed to consider this offer in accordance with the provisions of Rule 16(2)(c) of the Rules framed under the Act. Rule 16(2)(c) of the Act is as follows: 16(2)(c). While considering an application for release under Clause (a) of Sub-section (1) of Section 21 in respect of building let out for purposes of any business the prescribed authority shall also have regard to such facts: (c) the greater the existing business of the landlords own apart from the business proposed to be set up in the leased premises, the less the justification for allowing the application, and even if an application is allowed in such a case, the prescribed authority may on the application of the tenant impose the condition where the landlord has available with him other accommodation (whether subject to the Act or not) which is not suitable for his own proposed business but may serve the purpose of the tenant, that the landlord shall let out that accommodation to the tenant on a fair rent to be fixed by the prescribed authority. 11. I find from the evidence discussed in the impugned judgment that the opposite party No. 3 is an M.B.B.S. doctor. Earlier he was engaged in a private polyclinic at Lucknow after passing the M.B.B.S. in the year 1975. Later on, he shifted to Sitapur and started his clinic jointly with his doctor brother. Later he started his clinic in his own residence in a place where his doctor father was giving consultation to the patients at his residence. Now the landlord opposite party No. 3 requires a more suitable independent accommodation for running his clinic from the disputed shop. Later he started his clinic in his own residence in a place where his doctor father was giving consultation to the patients at his residence. Now the landlord opposite party No. 3 requires a more suitable independent accommodation for running his clinic from the disputed shop. No doubt the need of the landlord is genuine and he has every right to run his clinic from the place of his choice and he cannot be compelled to run his clinic at the place pointed out by the tenant Petitioner but in view of the provision under Rule 16(2)(c) cited above, if the Petitioner offers to take those accommodations the offer should be considered in accordance with the provisions under the Rules so that the Petitioner tenant may not suffer by losing the right of livelihood. I refer a portion of the judgment of the prescribed authority in which the prescribed authority has referred the Commissioner's report relating to the available alternative accommodation in possession of the landlord as suggested by the Petitioner tenant for the landlord which according to the landlord is not suitable for him to run his clinic. The relevant portion of the judgment of the prescribed authority is as follows: 12. The aforesaid reference in the judgment of the prescribed authority makes it clear that there is some vacant accommodation above the disputed shop on the first floor. The appellate Judge has not considered this offer of the tenant only by saying that no vacant shop in possession of the landlord is available and no incomplete construction can be asked to be completed by the landlord for the purpose of shifting the business of the tenant. I find that the report of the Commissioner as referred to by the prescribed authority, clearly indicates that there is some accommodation on the first floor of the disputed shop where a 'sign board' offering 'To let' is hanged. Learned Counsel for the opposite party No. 3 has not pointed out any evidence to rebut this fact. The only argument of the learned Counsel for the opposite party No. 3 is that this accommodation is not suitable for the landlord and the appellate Judge has referred this accommodation as incomplete accommodation. The arguments advanced by the learned Counsel for the opposite party No. 3 does not convince me on this point. The only argument of the learned Counsel for the opposite party No. 3 is that this accommodation is not suitable for the landlord and the appellate Judge has referred this accommodation as incomplete accommodation. The arguments advanced by the learned Counsel for the opposite party No. 3 does not convince me on this point. I find that some shop is available on the first floor accommodation over the disputed shop and it could be made available to the tenant Petitioner at the time of eviction of the Petitioner from the disputed shop. 13. In view of the above, at the time of dismissal of the writ petition, it is provided that the Petitioner tenant is provided three months' time to vacate the disputed premises. He is free to find out any other alternative accommodation to shift his business during this period but if he is not able to find out any other accommodation to shift his business, he will have the right to take the shop on the first floor of the disputed shop on the rent fixed by the prescribed authority at the time of passing the order on the application u/s 23 of the Act for enforcement of eviction order and prescribed authority at the time of enforcing the order of eviction, will offer that accommodation after fixing the rent to the tenant Petitioner. 14. With the aforesaid direction, the writ petition is dismissed.