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2010 DIGILAW 1802 (ALL)

Mohd. Ahmad Khan v. Mirza Mohammad Ali

2010-05-27

DEVENDRA PRATAP SINGH

body2010
JUDGMENT 1. Heard learned counsel for the parties. 2. This petition by the tenant is directed against concurrent orders dated 23.11.2005 and 4.12.2008 by which the release application no. 53 of 1998 filed by the respondent landlord on the ground of personal need under Section 21(1)(a) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) has been allowed by both the courts below. 3. The respondent landlord filed the release application inter alia with the allegation that he was the owner and landlord of the disputed shop where the petitioner was a tenant and his younger son Mohd. Nadeem Mirza was without any vocation though had become of marriageable age therefore, he needs the disputed shop to run a general merchant business for which no other vacant shop is available. It was further asserted that though one shop was got vacated by the landlord earlier from Abdul Khalid but the same is being used as a godown for the business of his wife in the name of Welcome Marriage House and after retiring from the Railways he is helping his wife in the said business. It was further pleaded that the petitioner has acquired a big house where he is also carrying on a business and keeps the disputed shop closed. By amendment it was pleaded that during the pendency of the release application his son had opened a whole sale agency by the name of D.S. Agency and on receipt of goods by the firm it had to be stocked in the shop vacated by Abdul Khalid and the goods of Welcome Marriage House had to be removed to the residential house and in a portion of the said shop his son had also established his office and got it registered but due to scarcity of space his business is suffering tremendously and likewise the business of his wife in the name of Welcome Marriage House was also suffering forcing her to open a Mother Marry Montessori School and after closing down the P.C.O., that premises was being used as the office of the school which was not fit for the need of his son. 4. The petitioner tenant contested the application inter alia with the allegation that the house purchased by him is a residential house where he is not running any business. 4. The petitioner tenant contested the application inter alia with the allegation that the house purchased by him is a residential house where he is not running any business. It was further asserted that the son of the landlord was running the D.S. Agency even prior to the filing of the release application and he had no bona fide requirement for the disputed shop and in fact they had alternative shop which was made available by other tenants but was also let out to others. 5. After the parties had led evidence, both the courts below found that the need set up by the landlord was both genuine and bona fide and since the petitioner made no sincere efforts for searching out alternative accommodation, it held that comparative hardship would be greater to the landlord if the application is rejected. 6. Learned counsel for the petitioner has firstly urged that the Prescribed Authority vide order dated 14.2.2003 had wrongly rejected certain documents filed by the petitioner through paper no. 59-Ga to show that the disputed accommodation belonged to a waqf and which issue was a question of jurisdiction and therefore, ought to have been considered. 7. No doubt, against the aforesaid order dated 14.2.2003 the petitioner had approached this Court through Writ Petition No. 19048 of 2003 where a learned Single Judge of this Court vide order dated 9.5.2003 dismissed the writ petition with liberty to the petitioner to raise the aforesaid argument in appeal, but the appellate court has considered this question in detail. It has found that the petitioner had already admittedThe predecessor in interest of the contesting respondents that he had been inducted as a tenant by the landlord in his written statement proving landlord tenant relationship between the parties and since question of title cannot be decided in proceedings under Section 21(1)(a) of the Act, it rejected the argument. Once the petitioner had already admitted that he was a tenant of the respondent landlord, he could not have gone back on this admission and the courts while deciding such a release application in summary proceedings are not required to go into the title of the disputed premises. Once the petitioner had already admitted that he was a tenant of the respondent landlord, he could not have gone back on this admission and the courts while deciding such a release application in summary proceedings are not required to go into the title of the disputed premises. The status of a landlord qua a tenant is akin to that of a owner except against the true owner and this issue of true ownership could only be decided by the regular civil court or in any other proceedings except in these summary proceedings. The appellate court, after examining the waqf deed has recorded a finding that it is not a waqf property and this finding has not been shown to be perverse. Therefore, the court below was fully justified in rejecting this argument. 8. It is then urged that earlier a premises was got vacated by Abdul Khalid which was available and also another shop was got vacated from Iqbal Ahmad and, therefore, sufficient alternative accommodation was available and in this background, the need of the landlord was a mere desire, but not genuine and bonafide. In support thereof, he has relied upon a judgment of the Apex Court in the case of Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta. 9. No doubt the Apex Court in Shiv Sarup Gupta (supra) has held that " the Judge of facts should place himself in the armchair of the landlord and then ask the question to himself- whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the court certainly to deny its judicial assistance to the landlord." 10. In the very same paragraph it goes on to hold that "once the Court is satisfied with the bonafide need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court." It further went on to hold that convenience of the landlord and his family members would be relevant factors while choosing the accommodation. 11. Both the courts below have found that Abdul Khalid had vacated his shop about 3 or 4 years prior to the filing of the release application and which was being utilised by the wife of the landlord for storing goods of her business of marriage pandals. It was also found that during pendencyThe predecessor in interest of the contesting respondents of the release application, the son of the landlord was appointed as a whole sale dealer for which he opened 'D.S.Agency' and when whole sale goods were received, the shop vacated by Abdul Khalid was utilised for the said purposes and the goods of the marriage house were shifted to the residential premises. The courts have also found that the contention that after vacation of a shop by Iqbal Ahmad, it was let out to Ashif for his electric shop to be incorrect and to the contrary it has recorded a categorical finding that it is being used as 'Pappu Electric Shop' whereThe predecessor in interest of the contesting respondents lights used in marriage procession and pandals are stored and repaired. The courts have also found that the disputed shop and the shop vacated by Abdul Khalid where whole sale goods were stocked are adjacent to each other with a connecting door and therefore, it found that the disputed premises was ideally suited and was really needed for the business of the son. Therefore, even applying the ratio laid down in the case of Shiv Sarup Gupta (supra), the courts below have rightly recorded findings of fact in favour of the landlord, which have not been demonstrated to be perverse in any respect. 12. These are all findings of fact and even an error therein would not allow this Court in exercise of its power under Articles 226 and 227 of the Constitution of India to interfere. 12. These are all findings of fact and even an error therein would not allow this Court in exercise of its power under Articles 226 and 227 of the Constitution of India to interfere. The Apex Court in the case of Shamshad Ahmad vs. Tilak Raj Bajaj, while considering an appeal against an order of High Court where findings of fact were interferred with, has gone on to hold in paragraph 32 as follows : "Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a Court of Appeal or a Court of Error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate Court or inferior Tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior Court or Tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts and inferior Tribunals within the limits of law." In fact it has approved its earlier decision rendered in the case of State vs. Navjot Sandhu that:- "it is settled law that the jurisdiction under Article 227 could not be exercised 'as the cloak of an appeal in disguise'" 13. No other point has been urged. 14. For the reasons aforesaid, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.