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2005 DIGILAW 537 (UTT)

Wong Sun Moi v. Arun Goyal

2005-12-21

RAJESH TANDON

body2005
JUDGMENT Hon'ble Rajesh Tandon, J.- Heard Ms. Tehmina Punwani, Sr. Advocate, assisted by Ms. Menka Tripathi, learned counsel for the petitioners and Sri V.K. Kohli, Sr. Advocates, assisted by Sri I.P. Kohli, learned counsel for the respondents. FACTUAL BACKGROUND: 2. By the present writ petition, the petitioners have Prayed for the issue of a writ, order or direction in the nature of certiorari "quashing the order dated 25.08.1998 passed by the Prescribed Authority/1st Additional Civil Judge (Sr. Div.), Dehradun in Case No. 25 of 1996 and the order dated 7th December, 1999 in Appeal No. 177 of 1998 passed by the Appellate Court (Annexure 12 to the writ petition). 3. Earlier on 15th September, 2004, writ petition was decided in absence of the counsel for the petitioners. However, on a recall application filed by the petitioners, order was recalled. Further opportunity was given to both the parties for hearing. Petitioners have filed a rejoinder affidavit, the same has been duly considered. 4. According to the case of the landlord/respondent no. 1, an application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 was filed against Smt. Wong Shu Moi, wife of late Sri K.K. Lu, Sri Rani, son of late Sri K.K. Lu, Sri" Peter, son of late Sri K.K. Lu, Sri Johny, son of late Sri K.K. Lu stating therein that the respondent no. 1 is the landlord of the shop situated at 27 -A, Rajpur Road, Dehradun, which was originally in the tenancy of late Sri K.K. Lu. the husband of Smt. Wong Sung Moi and father of Sri Rani, Sri Peter and Sri Johny. The respondent no. 1 has stated in his application that Sri KK Lu expired about ten years back and thereafter his wife continued as a tenant and is paying rent. Late Sri K.K. Lu. was a shoe maker and he was manufacturing shoes with the help of his employee. However, after the death of Sri K.K. Lu. the manufacturing of shoes was stopped and the family started selling readymade shoes and no manufacturing activities were carried on in ~the shop. 5. The Prescribed Authority vide his order dated 25.08.1998 allowed the release application. 6. Aggrieved against the said order, the petitioners preferred an appeal being Appeal No. 177 of 1998 before the respondent no. 2 under Section 22 of the Act. 5. The Prescribed Authority vide his order dated 25.08.1998 allowed the release application. 6. Aggrieved against the said order, the petitioners preferred an appeal being Appeal No. 177 of 1998 before the respondent no. 2 under Section 22 of the Act. The appeal was dismissed on 7th December, 1999 Present writ petition has been filed against the said order passed by the appellate court. 7. I have gone through the record of the entire writ petition, counter affidavit and rejoinder affidavit. 8. In the application under Section 21(1)(a) of the D.P. Act No. 11 of 1972 specific averments were made by the landlord that all the heirs of Sri KK Lu are employed and are getting handsome salary. 9. The landlord wanted to start a furniture shop in the premises in dispute. He is living in the first-floor of shop no. 27-A, Rajpur Road, Dehradun. He has stated that unfortunately, he met with an accident in 1968 due to which his eye-sight started gradually decreasing and in the year, 1999 he became completely blind. 10. The submission of the respondent no.1/landlord is that he is married and has two children and he being handicapped, he is isolated with the society and is facing difficulty in running the business outside due to his blindness. However according to the respondent no. 1 he started running furniture shop at 156/6, Ballupur Road, Dehradun in a rented accommodation, which is four kilometers away from the residence of the respondent no. 1 and on account of his inconvenience, which he is suffering, he has met with an accident in which he has sustained multiple fractures and head injury while attending the shop and as such he is to stop running the business. 11. Further it has been stated that the income of the respondent no. 1 was also not sufficient to meet out the expenditure of the family. 12. According to the case of the landlord, the respondent no.1 /landlord started a show room for selling wooden and steel furniture at 156/6 Ballupur Road, Dehradun in a rented accommodation which is about 4 Kms. away from the residence of the respondent no. 1. 13. A written statement was filed by the petitioners and in paragraph 4. it has been admitted that her husband Sri KK Lu used to manufacture shoes but later on it had to be stopped. away from the residence of the respondent no. 1. 13. A written statement was filed by the petitioners and in paragraph 4. it has been admitted that her husband Sri KK Lu used to manufacture shoes but later on it had to be stopped. Paragraph 4 of the written statement is quoted below: "4. That the contents of para 3 of the said application are not correctly stated, it is denied that the OPs have completely stopped manufacturing shoes. It is vehemently denied that no manufactured activities are carried in the shop portion of the premises at 27 Rajpr Road, Dehradun. The O.P. No.1 husband Shri KK Lu use to manufacture shoes. But later it had to be stopped as the applicant's father Shri P.C. Goel acquired the backyard area where the labourers use to manufacture shoes. On account of thereof in order to survive and keep the shop business running the Opposite Parties started selling readymade shoes. Apart from it due to the goodwill and trust of the Ops for valued customers manufacturing of shoes on given specifications was and is still carried out, albeit on small scale. Correct fact shall appear in additional plea hereunder." 14. In paragraph 26 of the additional pleas, it has been mentioned that the premises in occupation of the petitioners at 27-A Rajpur Road, Dehradun is commercial-cum-residential and the same is separable from, the commercial premises. The petitioners have• also filed a copy of the map showing the shop to be 14 X 18 Feet and the back portion of this has been' shown to be bed-room and one dining room. As will appear from paragraph 4 of the written statement that the back portion was being used for manufacturing of the shoes during the life-time of the husband of the petitioner no. 1. 15. The Prescribed Authority has also inspected the premises. The inspection report dated 05.08.1998 is on the record. As will appear from the inspection note, the back portion is not in the shape of a room but has been partitioned from wood. The inspection note is quoted below: 16. In paragraph 9 of the affidavit of Sri Johny Lu, Son of late Sri KK Lu, it has been stated that they are willing to vacate the premises if an alternative accommodation (shop-cum-residential) is made available to them. 7. The inspection note is quoted below: 16. In paragraph 9 of the affidavit of Sri Johny Lu, Son of late Sri KK Lu, it has been stated that they are willing to vacate the premises if an alternative accommodation (shop-cum-residential) is made available to them. 7. In paragraph 6 of the affidavit of Sri Johny Lu, it has been admitted that the landlord/respondent no. 1 is blind. Paragraph 6 of the affidavit is quoted below: "6. That the petitioner is making-capital about the fact about his so-called visual handicap. It is an emotional approach which is not sustainable in a Court of law. It is also a settled law that the court is not to be guided by sympathies. According to the petitioner, he carried on business at Ballupur; even then he was visually handicap. The position has not been changed since then." SUBMISSIONS 18. Learned counsel for the petitioners has raised the following sub-missions :- (1) Need of the landlord being not bona fide, no application cal) be. allowed. (2) The respondent/landlord has already a shop at Ballupur, and as such his need is not bona fide. (3) The accommodation being commercial-cum-residential, therefore, the same cannot be released in favour of the landlord for carrying on the commercial activities. (4) the comparative hardship lies in favour of the tenant. (5) Whether interference cannot be under Article 226/227 of the Constitution of India. FINDINGS ON BONAFIDE NEED AND THE AVAILABILITY OF THE SHOP TO THE LANDLORD Point No.1 and 2. 19. So far as the first and second submissions of the petitioners are concerned, a perusal of the evidence on the record shows that the premises was being used by the petitioner for commercial activities and the back portion as will appear from para 4 of the written statement the same was being used for manufacturing of the shoes till the husband of the petitioner no. 1 was alive. There is an inspection note dated 05.08.1998 of the Prescribed Authority, which has already been narrated above, which has come in the evidence on the record that there is a wooden partition in order to cover the back portion. 20. The respondent no. l/landlord has filed a counter affidavit to the writ petition and it has been stated that the entire accommodation was given for manufacturing of shoes and it is wrong that the premises is a residential accommodation. Petitioner no. 20. The respondent no. l/landlord has filed a counter affidavit to the writ petition and it has been stated that the entire accommodation was given for manufacturing of shoes and it is wrong that the premises is a residential accommodation. Petitioner no. 5 Mrs. Mary Oon is a married daughter of late Sri K.K. Lu and is settled in Malaysia, petitioner nos. 2 and 3 have migrated from Dehradun even during their father's lifetime and are living separately and are busy in their own life and Sri Peter Lu is settled at Bombay and petitioner no. 2 Sri Paul Lu at Delhi. The premises under the tenancy is a commercial and the residential portion is a part of the shop only. There is no separate provision for any bedroom. However, the petitioners have made a mere wooden partition as will appear from the inspection note carried out by the Prescribed Authority. Adjoining shops are also of the same size namely; Radio Engineering Works and they have not been partitioned. 21. In paragraph 14 of the counter affidavit, the respondent no. 1 has denied of having given any advertisement for the sale of the property and this has been a malafide act on the part of the petitioners themselves. The affidavit to that effect has been filed on 19th June, 1998. In paragraph 16 of the counter affidavit it has been stated that on 7th February, 1994, the respondent no. 1 was hit by Vikram and he sustained multiple fracture and head injuries and as such the business of the Ballupur was abandoned. The averments to that effect are quoted below: "It was also placed on record that there is a great rush in Dehradun and for going to Ballupur the Respondent had to pass the Chakrata Road which is the busiest road of Dehradun and it was also placed on record that on 7th February, 1994, the respondent was hit by a Vikram and he sustained multiple fracture and also sustained head injury and after the said date, he became very scare and it become difficult for him to run furniture business at Ballupur. During the pendency of the case, the business at Ballupur was abandoned on 3rd April, 1998 and an affidavit to this effect was also given to the Lower Court. The deponent was not in a position to hire Three-Wheeler as the charges of Three-wheeler was Rs. During the pendency of the case, the business at Ballupur was abandoned on 3rd April, 1998 and an affidavit to this effect was also given to the Lower Court. The deponent was not in a position to hire Three-Wheeler as the charges of Three-wheeler was Rs. 50/-. It was also placed on record that there was no direct transport from Rajpur Road to Ballupur. It was also placed on record that in the petition itself that the deponent had no sufficient means to hire three-wheeler." 22. The petitioners have also not taken any sincere efforts to search out another accommodation when in point of fact, petitioner no. 4 is employed in O.N.G.C. and is getting Rs. 12,000/- per month. The affidavit was filed by Sri Arun Goel, the respondent no.1/landloard controverting the advertisement given in his name and in fact, a notice was given on 10th June, 1998 stating therein that no such advertisement was given f6r the sale of the property. Another affidavit of Sri Arun Goel showing that the petitioners have completely stopped the manufacturing of shoes and no manufacturing activities are carried in the shop. 23. In paragraph 11 of the affidavit, it has been mentioned that the respondent no. 1 is totally blind. In another affidavit of Sri Arun Goel, it has been held that the premises in question is only commercial place and any wooden structure will not make it a residential one and the dominant purpose being non-residential, the respondent no. 1 is entitled for the release of the same. 24. A rejoinder affidavit has been filed. In paragraph 5 of the rejoinder affidavit, it has been -admitted that there is a wooden partition of the height of 7 and half feet and further it has been admitted that late KK Lu used to make shoes in the back yard area of the premises in question. Paragraph 42 of the Rejoinder affidavit is quoted below: "That the contents of Para 4 of the Counter Affidavit are not admitted and it is further stated that there is no contradiction in the Written Statement and' pleadings taken in the Para under reply are misconceived and it is further stated that the commercial portion was always separate from the residential portion and the residential portion has always been used for the purpose of residence. It is further stated that there is no evidence or record that. It is further stated that there is no evidence or record that. the Petitioners were not living in the premises in question ever since it was taken on rent by late KK Lu the father of the Deponent, and therefore, it is beyond doubt that the Petitioner are using the property in question for residential purpose as the property in question belonged to one Shri Rai Bahadur Ugrasen who had given the said property to Late KK Lu for his residential purpose and a perusal of inspection report (Annexure no. 3 to the Writ Petition) shows that there is a pucca wall between the first bedroom and the dining room which is 7 and 112 feet high and above that there is wooden partition. It is further submitted that late K.K. Lu used to' manufacture shoes in the backyard area of the premises in question but the same had to' be stopped when the father of the Respondent no. 1, Shri P.C. Goyal acquired the backyard area where the labourers used to manufacture shoes. Therefore in order to sustain themselves the Petitioners started selling readymade shoes, those were already in stock with them. It is pertinent to mention here in the aforesaid matter the Han'ble High Court at Allahabad on 4.2.2000 was pleased to pass an interim order directing the petitioners to vacate that portion of property in question which was used by them for commercial purpose which was indicated by the map thereto. True copy of the order dated 4.2.2000 along with the map is annexed herewith as Annexure no. RA-l. A perusal of the aforesaid order would reveal that the Hon 'ble Court only after considering the facts and circumstances of the case directed the Petitioners to vacate the portion of the premises in question which was being used as shop. It was also indicated in the order that 5 feet of the said portion on the left side shall be left for the purpose of egress and ingress. It was further mentioned in the order that there was a wooden partition and the Petitioners were entitled to raise a-wall instead of wooden partition at the same place. It was also indicated in the order that 5 feet of the said portion on the left side shall be left for the purpose of egress and ingress. It was further mentioned in the order that there was a wooden partition and the Petitioners were entitled to raise a-wall instead of wooden partition at the same place. Which goes to show that the Hon'ble High Court had appreciated the facts and circumstances of the case before passing interim order and accepted the contentions of the Petitioners that the premises in question was dominantly used for residential purpose." 25. In the rejoinder affidavit, the petitioners have admitted that there is no alternative accommodation available with the respondent landlord. However, the employment in the ONGC has not been denied. 26. Learned counsel for the petitioners has submitted that on 4th February, 2000, the order was passed by the Allahabad High Court to the following effect: "Considering the facts and circumstances of the case the petitioner shall vacate the portion being used as hop marked by letters ABCD in the map leaving a portion on the left side by 5, for the purposes of' egress and ingress to the petitioner. At present it is alleged that a. wooden partition is there. The tenant petitioner shall be entitled to raise at the same place wall instead of wooden partition". The possession shall be given to respondent No. 1 within two weeks from today. The petitioner has filed a copy of the Map forming part of annexure 2 to the writ petition. I have marked the shop by letters ABCD. In case the petitioner does not vacate the shop and hands over the possession as stated above, it will be open to respondent to execute the order. A certified copy of the map will be provided on payment of usual charges. It is made clear that Photostat copy of the Map will be certified." 27. In the same order it has been mentioned that a wooden partition is there. 28. The evidence on the record further shows that the landlord is a blind person and requires the premises for running furniture business. There is no evidence on the record to show that the premises is a residential accommodation. The dominant purpose of letting being non-residential i.e. shoe manufacturing and shoe selling and therefore, it cannot be treated as residential one. DISCUSSION ABOUT DOMINANT PURPPOSE 29. There is no evidence on the record to show that the premises is a residential accommodation. The dominant purpose of letting being non-residential i.e. shoe manufacturing and shoe selling and therefore, it cannot be treated as residential one. DISCUSSION ABOUT DOMINANT PURPPOSE 29. In Basant Kumar Shanna Vs. Rent Control and Eviction Officer [2003 (2) ARC 555], the question came up for consideration with regard to the dominant purpose of the letting and .relying upon the judgment of the Apex Court; it has been held as under: "33. Considering from the point of view of dominant user and purpose of the tenancy it is necessary to consider the scope of dominant purpose in the context of the present case. 'In AIR 1968 SC 438, Miss S. Snaya v. Gian. Chand, the Apex court has considered the provisions of Section 13(a)(e) of Delhi and Ajmer Rent Control Act. Section 13 (1) ( e) is similar to sub clause (3) of Section 12. The Apex Court has observed as under : "If in respect of premises originally let for residential purposes a decree in ejectment cannot be passed 'on the grounds mentioned in Section 13 (1) (e) if subsequent to the letting, with the consent of the landlord the premises are used both for residential and non-residential purpose, the bar against the jurisdiction of the Court would be more effective when the original letting was for purposes-non-residential as well as residential. It may be recalled that the condition of the applicability of Section 13 (1) (e) of the Act is letting of the premises for residential purposes. In this case the letting not being solely for residential purposes, in our judgment, the Court had no jurisdiction to pass the order appealed from." 35. Similar view has been taken- in the case of Smt. Kanti Khare (supra) to the following effect: "Section 12 (3) could apply only to be a case of residential and not non-residential." In the case of Smt. Kanti Khare vs. IIIrd Additional District Judge, 1982 (1) A.R.C. 594, the Division Bench of Allahabad High Court has held as under : "If the premises to which Section 12 (3) is sought to be applied is dominantly used for non-residential purpose, it is unreasonable to hold that the tenant has ceased to occupy the same." 39. Yet there is another factor, which shows that the dominant purpose of letting was not residential. In the writ petition No. 1497 of 1978. was decided on December 1t, 1979, the judgment of which has been reported in, 1980 A.R.C. 207. The premises were required by the landlord for running nursing home. Relying upon the decision of the Apex Court in, AIR 1977 SC (Sic), Allahabad High Court has observed as under : "It was also observed in this case that where an accommodation is used partly for one purpose and partly for another, the dominant purpose for which it is used must be discovered for determining whether it was required for residential purpose or otherwise. The same principle emerges from the Supreme Court decision in Prem Chand v. District Judge, 1977 And. R.C. 117 (S.C.) and the decision of this Court in Chunni Lal v. District Judge. It is obvious that the purpose of Nursing Home is a business purpose and if part of premises occupied by the Nursing Home used for residence of the Staff Nurse attached to the Nursing Home the main and dominant purpose would still remain running of the Nursing Home and, therefore, the business purpose." 30. In view of the aforesaid facts on the record, Point no. 1 is decided in favour of the landlord. 31. So far as the point no. 2 is concerned, the evidence on the record shows that the landlord has already abandoned the shop at Ballupur after he met with an accident. The evidence to that effect is quoted below:- "That the contents of para 13 of the said affidavit are wrong and are denied. The applicant had started furniture business at Ballupur but now the same is totally closed and it is incorrect to say that the deponent has a flourishing business at Ballupur or the said shop is in the heart of commercial area" 32. Admittedly the landlord is blind person. There is no place for running business. The family of the landlord consists of one son Rohit and daughter Sweta. Paragraph 10 of the release application is quoted below: "That the applicant is married and he has tow children i.e. one son, Master Rohit aged about 12 years and one daughter Km. Sweta, aged about 8 years." DISCUSSION ABOUT BONAFIDE NEED 33. In Mst. Bega Begum Vs. The family of the landlord consists of one son Rohit and daughter Sweta. Paragraph 10 of the release application is quoted below: "That the applicant is married and he has tow children i.e. one son, Master Rohit aged about 12 years and one daughter Km. Sweta, aged about 8 years." DISCUSSION ABOUT BONAFIDE NEED 33. In Mst. Bega Begum Vs. Abdul Ahmad Khan 1979 A.I.R. SC page 272, it has been held: "The connotation of the term of the term 'requirement should not be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for the landlord to get an order of release. Such a course would defeat the very purpose of the Act, which affords the facility of eviction of the tenant to the landlord on certain specified grounds contemplated under section 21 of the Act. The provisions contained in the Act strike a just balance between the genuine need of the landlord on the one hand and the great inconvenience and troubles of the tenants on the other. Since section 21 of the Act is meant for the benefit of the landlord, therefore, it must/be so construed as to advance the object behind the said provision. 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 in spite of the best efforts he was unable to get another alternative suitable accommodation in the absence whereof the scale of relative hardship may be tilted in favour of the landlord as the inconvenience, loss or trouble resulting from, a denial of the order of release in favour of the landlord will for out weight the prejudice or the inconvenience which may likely be caused to the tenants" 34. In the case of Ragavendra Kumar v. Firm Prem Machinery & Co. (2000) 1 Supreme Court Cases 67, it has been held: "It is settled position of law that the landlord is best judge of his requirement for residential or business- purpose and he has got complete freedom in the matter. [See-Prativa Devi (Smt.) v. T.V. Krishnan] In the case in hand the plaintiff landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted. 35. [See-Prativa Devi (Smt.) v. T.V. Krishnan] In the case in hand the plaintiff landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted. 35. Following the decision of Bega Begum (supra), in the of Jogindgr Pal vs. Naval Kishore Behal, 2002 SC & FB, Rent Cases, 388, the Apex Court has held as under : 5. In Malpe Vishwanath Acharya and Ors. v. State of Maharashtra and Am. (1998) 2 SCC 1) this Court emphasized the need of social legislations like the Rent Control Act striking a balance between rival interests so as to be just to law. "The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society". While the shortage of accommodation makes it necessary to protect the tenants to save them from exploitation but at the same time the need to protect tenant is coupled with an obligation to ensure that the tenants are not conferred with a benefit disproportionately larger than the one needed. Socially progressive legislation must have a holistic perception and not a shortsighted parochial approach. Power to legislate socially progressive legislation is coupled with a responsibility to avoid arbitrariness and unreasonability, A legislation impregnated with tendency to give, undue preference to one section, at the cost of constraints by placing shackles on the other section, not only entails miscarriage of justice but may also in constitutional invalidity. 8. The need for reasonable interpretation of rent control legislations was emphasized by this Court in Bega Begum Vs. Abdul Ahad Khan 1979 A.I.R. SC page 272. Speaking in the context of reasonable requirement of landlord as a ground for eviction, the Court guarded against any artificial extension entailing stretching or straining of language so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. The Court warned that such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. In Kewal Singh v. Lajwanti this Court has observed, while the rent control legislation has given a number of facilities to the tenants, it should not be construed so as to destroy the limited relief which it seeks to give to the landlord also. In Kewal Singh v. Lajwanti this Court has observed, while the rent control legislation has given a number of facilities to the tenants, it should not be construed so as to destroy the limited relief which it seeks to give to the landlord also. For instance, one of the grounds for eviction which is contained in almost all the Rent Control Acts in the country is the question of landlord's bona fide personal necessity. The concept of bonafide necessity should be meaningfully construed so as to make the relief granted to the landlord real and practical. Recently in Shiv Sarup Gupta v. Dr Mahesh Chand Gupta the Court has held that the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative .or pedantic must be guarded against. 9. The rent control legislations are heavily loaded in favour of the tenants treating them as weaker sections of the society requiring legislative protection against exploitation and unscrypulous devices of greedy landlords. The legislative intent has to be' respected by the courts while interpreting the laws. But it is being uncharitable to legislatures if they are attributed with an intention that they lean only in favour of the tenants and while being fair to the tenants, go to the extent of being unfair to the landlords. The legislature is fair to the tenants and to the landlords both. The courts have to adopt a reasonable and balanced approach while interpreting rent control legislations starting with an assumption that an equal treatment has been meted out to both the sections of the society. In spite of the overall balance tilting in favour of the tenants, while interpreting such of the provisions as take care of the interest of the landlord the court should not hesitate in .leaning in favour of the landlords. Such provisions are engrafted in rent control legislations to take care of those situations where the landlords too are weak 'and feeble and feel humble. 30. In providing key to the meaning of any word or expression the context in which it is set has significance. Colour and content emanating from context may permit sense being preferred to mere meaning depending on what is sought to be achieved and what is sought to be prevented by the legislative scheme surrounding the expression. 30. In providing key to the meaning of any word or expression the context in which it is set has significance. Colour and content emanating from context may permit sense being preferred to mere meaning depending on what is sought to be achieved and what is sought to be prevented by the legislative scheme surrounding the expression. Requirement of landlord for his own use. is an expression capable for attributing an intention to the legislature that what was intended to be fulfilled is such requirement as would persuade the landlord to have the premises vacated by the tenant, to forego the rental income, and to put the premises to such use as the landlord would deem to be his own use and in the given facts and circumstances of a case the Court too would hold it to be so in contradistinction with a mere ruse to evict the tenant. The legislature intending to protect the tenant also intends to lift the protection when it is the requirement of landlord to put the accommodation to such use as he intends, away from leasing it out. 31. If we do not meaningly construe the concept of requirement the provision may suffer from the risk of being branded as unreason-, able, arbitrary or as placing uncalled for and unreasonable restrictions on the right of the owner to hold and use his property. We cannot place a construction on the expression 'for his own use' in such a way as to deny the landlord a right to evict his tenant when he needs the accommodation for his own son to settle himself well in his life. We have to give colour and content to the expression and provide the skin of a living thought to the skeleton of the words, which the Legislature has not itself chosen to define. The Indian society, its customs and requirements and the context where the provision is set in the legislation are the guides leading to acceptance of the meaning which we have chosen to assign to the words 'for his own use' in Section 13(3)(a)(ii) of the Act. 32. (v) In the present case, the requirement of landlord of the suit premises for user as office of his chartered accountant son is the requirement of landlord [or his own use' within the meaning of Section 13(3)( a)( ii)." 36. 32. (v) In the present case, the requirement of landlord of the suit premises for user as office of his chartered accountant son is the requirement of landlord [or his own use' within the meaning of Section 13(3)( a)( ii)." 36. In the case of Prem Prakash Gupta and others Vs. Second Additional District Judge, Allahabad and others Allahabad Rent Cases 1993 (1) page 77, it has been held that no doubt true ,that the tenant will have to be ousted from a house, if a decree of eviction has been passed, yet such an event by itself will not be a valid ground for refusing a decree for eviction. The observation in the case of Prem Prakash Gupta (supra) is quoted as below: "As observed by this Court in its decision in the case of Rajeshwari Prasad Vs. Pateh Bahadur Chaturvedi and others reported in 1984 (1) A.R.C. 387, the bona fide need is the foundation of application for eviction of a tenant without which it cannot be allowed. Hardship is relative word"... ............ 37. In Smt. Prativa Devi v. T.V. Krishan, 1987 SCFBRC 242 it has been held by the Apex Court that since the landlord has no legal right to occupy any of the shops, the findings of the' Appellate Court therefore cannot be interfered. The findings of the Apex Court are given below: "In considering the availability of alternative accommodation, the Court has to consider, not merely whether such accommodation is available but also whether the landlord has a legal right to such accommodation. The appellant had established her bonafide personal requirement of the demised premises under Section 14(1) (e) of the Act and her claim could not be disallowed merely on the ground that she was staying as a guest with a family friend by force of circumstances." 38. The Apex Court in G.C. Kapoor v. Nand Kumar Bhasin, 2001 (2) Allahabad Rent Cases Page No. 603 has relied upon the judgment of Datta Laxman as well as Raghunath Pale and has come to the conclusion as under : "It is settled position of law that bona fide requirement means the requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. In Dattaraya Laxman Kamble Vs. In Dattaraya Laxman Kamble Vs. Abdul Rasul Moulali Kokunde and Another, 1999 (4) SCC 1 : 1999 SCFBRC 292, this Court while considering the bona fide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he has to prove it but there is no warrant for 'presuming that his need is not bonafide'. It was also held that while deciding this question, court would look into the broad aspects and if the Court feels any doubt about bona fide requirement, it is for the landlord to clear such doubt." 39. In view of the aforesaid facts and circumstance, I decide the point no. 3 in favour of the landlord. The need is bonafide. 4. Comparative Hardship 40. So far as the comparative hardship is concerned he being a blind person there is no place for him to run a business. The evidence on the record shows that he has already abandoned the shop at Ballupur whereas the petitioner no. 4's wife is employed in ONGC. Paragraph 42 is quoted below: "42. That as per the version of petitioner 2 and 3 in para 5 of the written statement submitted by them in the lower court they migrated from Dehradun during the lifetime of their father. Petitioner no.5 is the married daughter of K.K. Lu and is settled at Malaysia "Petitioner No. 4's•wife is employed in O.N.G.C. and is getting more than Rs. 12,000/- per month. She even can get house allotted from their employer." 41. Rule 16 of the Act No. XIII of 1972 has been interpreted in the case of Munni Lal Gupta Vs. 7th Additional District and Sessions Judge, Aligarh reported in 1997 (1) AR.C. 30L After relying upon the judgment of Rajendra Kumar Gupta Vs.Gopal Krishan and other, AI.R. 1995 Allahabad 82, it has been held that suitable alternative accommodation, which may become available on an effort being made in that direction is also a factor to be considered and want or earnest efforts in looking for suitable alternative accommodation, disentitles protection given to the tenant while considering the comparative hardship of the parties. The observations in the decision of Munni Lal Gupta (supra) are quoted below: "A suitable alternative accommodation "which may become available on an effort being made in that direction is also in the comprehension of the expression and in the facts and circumstances of the case, it has been held that the petitioner was wanting in earnest efforts in looking for suitable alternative accommodation, notwithstanding the fact that the litigation between the parties had protracted to considerable stretched. In Rajendra Kumar Gupta Vs. Gopal Kishan and Others, AIR 1995 Alld. 82 : 1994 ARC 11, it has been held by Sudhir Narain, J. and I concur with the view taken' therein that "one of the principles for considering comparative hardship of the parties is to find out as to whether the tenant had made a sincere efforts to find out alternative accommodation and had placed materials before the authorities to come to their conclusions that he made such an effort". The fact that earlier application for release, met the fact of rejection some 10 years ago, could not be projected backward to operate as an obstacle in the way of the release application being allowed as with the passage of time, the situation has undergone considerable change. Indubitable, landlord Sanjai Gupta did his M.A. after rejection of the earlier applications and his failure to secure employment for himself, lends congency to his moving the present application." 42. In the case of Shushila v. IInd Additional District Judge, Banda and others reported in 2003 (1) AI.R. Page 256, it has been held as under: "A bare perusal of rule 16 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Rules, 1972, makes it clear that the rule only prescribes certain factors which have also to be taken into account while considering the application for eviction of a tenant on the ground of bonafide need. Sub-rule (2) of Rule 16 quoted earlier relates to the cases of eviction from an accommodation for business use. Clause (1) of sub-rule (2) provides greater the period of tenancy less the justification for allowing the application; where as according to Clause (b) in case tenant has a suitable accommodation available to him to shift his business. Greater the justification to allow the application. Clause (1) of sub-rule (2) provides greater the period of tenancy less the justification for allowing the application; where as according to Clause (b) in case tenant has a suitable accommodation available to him to shift his business. Greater the justification to allow the application. Availability of another suitable accommodation to the tenant, waters down the weight attached to the longer period of tenancy as a factor to be considered as provided under clause (a) of sub-rule (2) of Rule 16. Yet another factor which may in some cases be relevant under clause (c) is where the existing business of the landlord is quite huge and extensive leaving aside the proposed business to be set up, there would be lesser justification to allow the application. The idea behind sub-clause (c) is apparent i.e. where the landlord runs a huge business eviction may not be resorted to for expansion or diversification of the business by uprooting a tenant having a small business for a very period of time. In such a situation if eviction is ordered it is definitely bound to cause greater hardship to the tenant." 43. Further there being no material on record to indicate that the petitioners have made any effort to search out the accommodation during the pendency of the case. This factor also goes against the petitioners. 44. In the case of Bhagwan Das Vs. Smt. Jiley Kaur and others reported in 1991 (1) A.R.C. Page 377. the Apex Court has held as under: "Thirdly, it was a case where was even this additional circumstance that the appellant had brought no material on record to indicate that at any time during the pendency of this long drawn out litigation he made any attempt to seek an alternative accommodation and was unable to gel. In Mst. Bega Begum E Abdul Ahad Khan, (1979) 1SCC 273; 1986 SCFBRC 346 (SC), it was held that in deciding the extent of the hardship that may be caused to one party or the other, in case a decree for eviction is passed or is refused, each party has to prove its relative advantages or disadvantages and the entire onus canl10t thrown on the plaintiffs to prove that lesser disadvantages will be suffered by the defendants and that they were remediable." 45. In view of the admission of the landlord that the manufacturing work was done back side and further there being wooden partition, the back portion of the unit cannot be treated as the residential- one and even if it is used for residential purposes, it cannot be considered into residential portion treating the accommodation as a residential one as from the evidence on the record, the purpose of the letting being a dominating purpose was non-commercial for selling of the shoes and any user of the back portion for any purposes cannot convert the, accommodation into a residential one. 46. The comparative hardship lies in favour of the-1andlord. 5. Interference under Article 226/227 of the Constitution of India:- 47. In view of the judgment of Apex Court reported in 2004 ARC (3) -6892, Ranjeet Singh v. Ravi Prakash, the jurisdiction of the High Court under Article 226 is limited to the extent that the finding of fact recorded by the court below cannot be interfered. The two courts below have recorded concurrent findings and High Court cannot act like an appellate Court under Article 226/227 of the Constitution of India. 47. In Surya Dev Rai Vs. Ram Chander SCC 2003 Vol-6 675, the Apex Court has held as under : "Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction." "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 requirement 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 (ii) 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. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent." "The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases• where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or correction is yet .capable of being corrected at the conclusion of the proceedings is an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and or early disposal of the suit of proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that every moment, may become incapable of correction at a letter stage and refused to intervene would result in stravesty of justice or where such refusal itself would result in prolonging of the lis." "The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal And indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.” 49. Relying upon the Judgment of Surya Dev Rai Vs. Ram Chandra 2003 (6) SCC 675, the Apex Court in Ranjeet Singh Vs. Ravi Prakash 2004 (3) SCC 682, has held as under: "As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution of India also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal" 50. In the case of Mis India Pipe Fitting Co. V. Fakruddin M.A. Baker and another reported in 1978 AI.R. (S.C.) Page 45, the Apex Court has held as under: "The limitation of the High Court while exercising power under Art. 227 of the Constitution is well settled. Power under Art. 227 is one of judicial superintendence and cannot be exercised to upset conclusions of facts however, erroneous those may be. Power under Art. 227 is one of judicial superintendence and cannot be exercised to upset conclusions of facts however, erroneous those may be. It is well settled and perhaps too late in the day to refer to the decisions of the Constitution Bench of this Court in Waryam Singh v. Amarnath 1954 SCR 565 ; (AIR 1954 SC 215) where the principles have been clearly laid down as follows:- (at p. 217 of AIR). "This power of superintendence conferred by Art. 227 is. As pointed out by Harries. C.J., in Dalmia Jain Airways Ltd. V. Sukumar Mukherjee AIR 1951 Cal 193 (SB) to be exercised most sparingly and only in appropriate cases in order to keep to Subordinate Courts within the boundary of their authority and not 'for correcting mere errors." 51. In Piper v. Harvey 11958] 1 All ER. Page 454, it has been held as under: "I have in mind what this court has said in Coplans Vs. King (1). [19471 2 All E.R. 393] to the effect that the decision of the county court judge, when considering the balance of hardship, is to all inte9ts and purposes final. It is not for the Court of Appeal to interfere when there is evidence on which the judge can reasonably come to the conclusion which he did". 52. In Whitley v. Whitley 1946 (2) All England Law Reports Annoted 726, it has been held as under:- "In the present case the judge decided in favour of the land, and I can see no ground for saying that he did not arrive at his conclusion on the issue raised under para (h) on ample evidence. If there was any evidence to support his decision we cannot interfere with it. It is most important in these cases that this court should not interfere with findings of fact where there is evidence to support them." CONCLUSION 53. In view of the facts, it is a case, where the application under Section 21(1)( a) was filed in the year 1994 and the landlord has no place for business although he is blind but looking to the plight of the landlord he has been facing hardship since then. In view of the facts, it is a case, where the application under Section 21(1)( a) was filed in the year 1994 and the landlord has no place for business although he is blind but looking to the plight of the landlord he has been facing hardship since then. The children which were of age has now grown up during the course of the period when' in point of fact, the wife of petitioner no.4 is employed in ONGC and with a slight effort the residential accommodation can he made available to the tenant. 54. Both the parties have admitted that the son of the tenant is employed in Taj and is perfect in catering work. 55. In view of the above, I find no infirmity in the orders passed by the Courts below while exercising the jurisdiction under Article 226/227 of the Constitution of India. 56. The petitioner is directed to give the undertaking to vacate the premises by 15th January, 2006 to respondent no. 1 and to vacate the premises in question by 30th April, 2006. 57. The petitioner shall also pay the entire arrears of rent and damages by 15th of January, 2006 and shall deposit the monthly rent regularly by the 1st week of every month. On failure to submit the undertaking or to pay the arrears, the decree holder will be at liberty to execute the decree forthwith. 58. 1 n view of the above, writ petition is dismissed. No order as to costs.