Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 1837 (ALL)

Omkar Singh v. Harjeet Singh

2010-05-28

DEVENDRA PRATAP SINGH

body2010
JUDGMENT 1. Heard learned counsel for the petitioner and for the respondent caveator. 2. This petition is directed against concurrent orders dated 30.9.2009 and 17.5.2010 by which both the courts below have allowed the release application filed by the respondent landlord under Section 21 (1)(a) of U.P. Act No.13 of 1972 (herein after referred to as the 'Act'). 3. The respondent landlord filed a release application as Rent Case no.31 of 2007 against the petitioner tenants inter alia with the allegation that earlier their father Sardar Ram Singh was the owner and on his death by virtue of a will they became owner and landlord of a shop situated in the ground floor of building no.111A/12B G.R.Road, Kanpur where the petitioners were tenants at Rs.500/- per month apart from taxes etc. It was further stated that they were running a auto mobile repair shop by the name of "Auto Repair Centre" but in view of a Government Notification, the entire business of auto repair of that area was shifted to Gadariapur and in view of forced shifting by the Government, the Kanpur Development Authority allotted a place at plot no.375, boock no. P & T, Scheme no.1 in the factory area for shifting of their business. It was further averred that thereafter one of the two partners namely Mohan Singh shifted to Delhi and established a Jewellery Shop at Karolbagh, New Delhi while Omkar Singh, the other partner starting running a tyre business alongwith his son in the name of "Sukhpal Tyres" in an acquired shop at 119/2 in Zakir Chowk in Kanpur and inducted his brother Jaswant Singh as a sub tenant in the disputed shop, though he was not a member of the family of the two tenants. It was further stated that the daughter-in-law of the tenant was running a boutique in the name of "Jassi Botiqui" near Ratan Tal area in Kanpur while the son of the sub tenant was a Chartered Accountant and the sub tenant operates several trucks from the disputed shop. It was further stated that the daughter-in-law of the tenant was running a boutique in the name of "Jassi Botiqui" near Ratan Tal area in Kanpur while the son of the sub tenant was a Chartered Accountant and the sub tenant operates several trucks from the disputed shop. It was further pleaded that earlier Baljeet Singh and his family were dependant on his two brothers but due to family reasons, he has to be settled in his independent business for which the need of the disputed shop was both genuine and bonafide and in case his application is rejected, the landlord would suffer greater hardship, while the tenants already have sufficient accommodation for running of their business. 4. The petitioner tenants contested the release admitting his tenancy, but at Rs.350/- per month and they went on to allege that Jaswant Singh was not a sub tenant but was doing his independent business from the disputed shop and that "Auto Repair Centre" was being run from the same place and they further denied allotment of the place in lieu of the disputed shop by the Kanpur Development Authority. It was further alleged that the landlords have three shops at 118/237 Indra Nagar at Gomti No.5, apart from other premises. They denied that there was any bonafide or genuine need as Baljeet Singh was already engaged in business alongwith his brothers. 5. Both the courts below after considering the need of the landlord, recorded categorical findings of fact that his need was both genuine and pressing and it found as a matter of fact that the Kanpur Development Authority had allotted a place in the factory area in lieu of shifting of the automobile repair shop. 6. Learned counsel for the petitioner has urged that it was specifically pleaded in the written statement that another big shop adjoining the disputed premises towards east was available where Baljeet Singh could be settled. 7. No doubt, there is an allegation to that effect but it appears that this availability of the shop was never developed and argued before the courts below. Even in the pleadings of this writ petition and the grounds raised therein, there is no such allegation and it appears that it is being raised here for the first time. 7. No doubt, there is an allegation to that effect but it appears that this availability of the shop was never developed and argued before the courts below. Even in the pleadings of this writ petition and the grounds raised therein, there is no such allegation and it appears that it is being raised here for the first time. However, counsel for the respondent landlord from the record of the writ petition itself has proved that this alleged shop belonged to Ravinder Singh, the brother of the landlord and therefore, the availability of the shop qua Baljeet Singh is misconceived. 8. Both the courts below have recorded findings of fact that Baljeet Singh had absolutely no premises available to him for starting his business. Further, once the tenant had been allotted a place for shifting of 'Auto Repair Centre' by the Kanpur Development Authority , the need of the petitioner tenants ceased to exist. 9. The counsel for the petitioner has taken the Court through the two judgments, but has not been able to point out any error, much less an error apparent on the face of record, requiring interference under Article 226 of the Constitution of India. The Apex Court in the case of Shamshad Ahamd Vs. Tilak Raj Bajaj, while considering an appeal against the order of our High Court where the findings of fact recorded by the Appellate Court in a case of release were set aside, has held; "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." 10. It has gone on to quote with approval its observation in an earlier decision in State Vs. 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." 10. It has gone on to quote with approval its observation in an earlier decision in State Vs. Navjot Sandhu to the effect that: "it is settled law that the jurisdiction under Article 227 could not be exercised as the cloak of an appeal in disguise." 11. For the reasons aforesaid, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.