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2005 DIGILAW 1289 (ALL)

Prem Prakash Maheshwari v. Gyaneshwar Sharma

2005-07-20

ANJANI KUMAR

body2005
ANJANI KUMAR, J. ( 1 ) THESE two writ petitions, namely, Writ Petition No. 34544 of 2001 filed by Prem Prakash maheshwari and Writ Petition No. 34545 of 2001 filed by Smt. Keshar Bai Jain and another, since raise common questions of fact and law which have been decided by the appellate authority under the provisions of U. P. Act No. 13 of 1972 (hereinafter referred to as the Act) by a common judgment. The tenants having felt aggrieved by the order passed by the appellate authority, whereby the appeals filed by the landlord were allowed by the common judgment dated 18th August, 2001, have approached this Court by means of these writ petitions under article 226 of the Constitution of India. ( 2 ) THE two petitioners in the two writ petitions are tenants of two shops and the respondent, gyaneshwar Sharma, is the landlord. The landlord-respondent filed two applications against the two petitioners for release of two shops under the provisions of the Act for the purpose of bona fide requirement which has been set up by the landlord to set up his son in Girder and stone slabs business and the business of other building materials. The two applications were heard together and after hearing the parties the prescribed authority under the provisions of the Act has dismissed both the applications for release filed by the respondent-landlord. Aggrieved thereby the respondent-landlord preferred two appeals being U. P. U. B. Appeal No. 4 of 1997 against prem Prakash Maheshwari and U. P. U. B. Appeal No, 5 of 1997 against Kailash Chandra Jain, husband of Smt. Keshar Bai Jain, petitioner No. 1 in Writ Petition No. 34545 of 2001. Both these appeals were heard and as stated above, were allowed by the appellate authority after setting aside the order passed by the prescribed authority. The appellate authority directed release of the two shops, under the tenancy of the petitioners, in favour of the landlord. Both these appeals were heard and as stated above, were allowed by the appellate authority after setting aside the order passed by the prescribed authority. The appellate authority directed release of the two shops, under the tenancy of the petitioners, in favour of the landlord. ( 3 ) BEFORE this Court learned Counsel for the petitioners has argued that even according to findings recorded by the appellate authority, since respondent-landlord possesses space for storage purpose he can start his business from the available open space at the back of his house and at the best some sort of office space is required for setting of the business of son as stated by the landlord and found by the appellate authority to be bona fide requirement of the landlord. It is further submitted that in that event even release of one shop will be sufficient and the other tenant need not be evicted. The other argument which has been advanced on behalf of the petitioners is that the appellate authority had not at all considered this aspect of the matter and directed release of both the shops. It is then submitted that in view of provisions of Section 21 (1) (a) of the Act, it was incumbent on the part of the appellate authority to have considered the question of part release. Learned Counsel for the petitioners has relied upon recent decision of apex Court in Ramesh Chandra Kesharwani v. Dwarika Prasad and Anr. , 2002 (4) AWC 2737 (SC) : 2002 (2) ARC 298, whereby the Apex Court has approved the judgment of this Court that this Court can consider part release of the accommodation. Learned Counsel for the petitioners further relied upon the decision in Badrinarayan Chunilal Bhutada v. Govindram Ramgopal mundada, AIR2003 SC 2713 , JT2003 (1 )SC 438 , 2003 (1)SCALE147 , (2003 )2 SCC320 , 2003 (1 )UJ726 (SC ), and prayed that in this view of the aforesaid judgment the matter may be referred to the court below for consideration of partial eviction of the tenants. Learned Counsel for the petitioners has further relied upon the decision of the Apex Court which has been followed by this Court that even if the question of part release has not been considered by the appellate authority, it can be raised for the first time before this court under Article 226 of the Constitution of India. Learned Counsel for the petitioners has further relied upon the decision of the Apex Court which has been followed by this Court that even if the question of part release has not been considered by the appellate authority, it can be raised for the first time before this court under Article 226 of the Constitution of India. Thus, it is submitted by learned Counsel for the petitioners that even assuming that the findings arrived at by the appellate authority are liable to be upheld the order passed by the appellate authority deserves to be quashed and the matter may be remanded back to the appellate authority to decide at least the question of part release in favour of the petitioners. ( 4 ) LEARNED Counsel appearing for the respondent has submitted that in view of law laid down by the Apex Court in the case of Ranjeet Singh v. Ravi Prakash, AIR2004 sc 3892 , 2004 (2 )AWC1721 (SC ), (SCSuppl )2004 (3 )CHN152 , [2004 (3 )JCR85 (SC )], jt2004 (4 )SC 127 , (2004 )3 MLJ72 (SC ), 2004 (3 )SCALE481 , (2004 )3 SCC682 , this Court cannot reappraise and interfere the findings arrived at by the appellate authority by sitting in appeal. It is further submitted by learned Counsel for the respondent that in view of law laid down by the Apex Court in the case of Surya Dev Rai v. Ram Chander Rai and Ors. , JT 2003 (6)SC 465, the findings arrived at by the appellate authority do not warrant any interference nor any perversity or error has been pointed out by the learned Counsel for the petitioners and the writ petition is liable to be dismissed. ( 5 ) IN view of the aforesaid decisions in the case of Ranjeet Singh (supra) and Surya Dev Rai (supra) it is manifest that this Court cannot sit in appeal over the findings arrived at by the appellate authority by reappraising the evidence on the record and since learned Counsel for the petitioners has failed to demonstrate that the findings arrived at by the appellate authority, on the question of bona fide need of the landlord and also on the question of comparative hardship do not suffer from any error much less manifest error of law, do not warrant interference by this court in exercise of jurisdiction under Article 226 of the Constitution of India. Thus, the findings arrived at by the appellate authority on the question of bona fide need and comparative hardship do not warrant any interference by this Court under Article 226 of the Constitution of India by means of these writ petitions. ( 6 ) SO far as question of consideration of part release is concerned, none of the petitioners have demonstrated from the material on the record that part release of any of the accommodation would serve the purpose of the landlord for which he has sought release of the two shops in dispute. The only argument advanced before this Court is that since it is found by the appellate authority, as of fact, that the landlord has sufficient storage space at the back of his residence, at the most it can be said he requires a small space for establishing some sort of office/showroom etc. It has not been demonstrated from the evidence or material on the record as to what would be the sufficient space as pleaded by the tenants in the present writ petitions. In this view of the matter even question of part release will not apply to the case of the petitioners and release of the two shops. Learned Counsel for the respondent-landlord submitted that by making aforesaid submission regarding part release learned Counsel for the petitioners has failed to justify his arguments on part release against the need set up by the landlord to set up business of Girder, stone slabs and other building materials. Therefore, question of part release, in the facts and circumstances of the case, does not arise. I am in full agreement with the submission made by the landlord and I hold that the arguments regarding part release are not applicable to the case of the petitioners because there are two different tenants who have challenged the common order of the appellate authority and they have failed to demonstrate as to what part would serve the purpose if part release is considered. Learned Counsel for the petitioners could not demonstrate as to how requirement of the landlord would be met even if the findings recorded by the appellate authority regarding availability of storage space at the back of the landlords residence is accepted. ( 7 ) IN this view of the matter I do not find any force in these writ-petitions. Learned Counsel for the petitioners could not demonstrate as to how requirement of the landlord would be met even if the findings recorded by the appellate authority regarding availability of storage space at the back of the landlords residence is accepted. ( 7 ) IN this view of the matter I do not find any force in these writ-petitions. Both the petitions are liable to be dismissed and are hereby dismissed. . .