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2011 DIGILAW 169 (UTT)

VISHWANATH AGARWAL v. TARA SATI

2011-03-15

B.S.VERMA

body2011
JUDGMENT Hon’ble B.S. Verma, J.: Heard learned counsel for the petitioner and perused the record. 2. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari for setting aside the judgment and order dated 13.10.2006 passed by the Prescribed Authority/Civil Judge (Junior Division) Ramnagar, Nainital, in Rent Case No. 10 of 2005 as well as judgment and order dated 3.3.2011 passed by the District Judge, Nainital, in Rent Control Appeal No. 14 of 2006. By the order dated 13.10.2006, the Prescribed Authority had allowed the application under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act) of the landlords and directed the petitioner to deliver possession of the shop in question to them within a period of 30 days, as mentioned in the order. By the order dated 3.3.2011, the appeal preferred by the petitioners against the order dated 13.10.2006 has been dismissed by the appellate court. 3. Relevant facts necessary for disposal of the present writ petition, in brief, are that the respondents herein filed an application for release of the shop in question under Section 21(1)(a) of the Act before the Prescribed Authority alleging therein that they are the landlords of the shop in question, which was let out to the petitioners on monthly rental of Rs. 200/-. Two sons of applicant no. 1 Tara Sati had died and children of both the sons are living with her. Smt. Champa Sati (applicant no. 2) is widow of elder son Bharat Ratna Sati. She has one son and three daughters, who are of marriageable age. Younger son Deep Sati left behind him two daughters and one son. The elder grandson of the applicant no. 1 has attained age of 20 years and he wants to engage himself in business, being unemployed. The applicants have no other shop to engage him in business except the shop in question. The need of the applicants for the shop in question is bona fide and genuine. Hence the release application was moved. 4. The opposite party-petitioner resisted the release application by filing his objection mainly on the ground that the boundaries of the shop in question are not correct. There are other co-owners of the shop in question; that earlier the rent of the shop in question was Rs. 351-56 p. per annum including water tax. Hence the release application was moved. 4. The opposite party-petitioner resisted the release application by filing his objection mainly on the ground that the boundaries of the shop in question are not correct. There are other co-owners of the shop in question; that earlier the rent of the shop in question was Rs. 351-56 p. per annum including water tax. Bona fide need of the landlords was disputed. It was alleged that the grandson for whom the release application has been moved is doing his studies and the landlords intend to let out the shop in question on high rent after the same is vacated. The petitioner has earned goodwill in the business. The petitioner made efforts to search alternate shop but failed. 5. Both the parties have led evidence in the case before the Prescribed Authority by way of affidavits and have also filed documentary evidence in support of their rival contentions. 6. The Prescribed Authority after hearing both the parties and after perusing the evidence led by them came to the conclusion that the need of the landlords for release of the shop in question is bona fide and genuine. On the ground of comparative hardship the Prescribed Authority came to the conclusion that the petitioner had not made any effort to search for any alternate shop and no evidence to that effect was led. The Prescribed Authority has held that the balance of comparative hardship also tilted in favour of the landlords. Consequently, the application for release of the shop in question was allowed by order dated 13.10.2006. 7. Aggrieved by the said order, the petitioner-tenant preferred Rent Control Appeal No. 14 of 2006 before the District Judge, Nainital. The appellate court on the basis of evidence on record recorded its independent finding that the need of the landlords for the shop in question is bona fide. On the point of comparative hardship, the appellate court also found that if the release application is rejected, the landlords would suffer greater hardship. The appellate court also found that the landlords have no other shop in Ramnagar to engage her grandson in business. Consequently, the appeal filed by the petitioner has been dismissed, which gave rise to the present petition. 8. At the outset it may be mentioned that the scope of writ jurisdiction under Articles 226 and 227 is limited. The appellate court also found that the landlords have no other shop in Ramnagar to engage her grandson in business. Consequently, the appeal filed by the petitioner has been dismissed, which gave rise to the present petition. 8. At the outset it may be mentioned that the scope of writ jurisdiction under Articles 226 and 227 is limited. This Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or re-evaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned order can be seen to find out whether there is a case of mis-reading of evidence by the courts concerned. It has been observed by the Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai and others [(2003) 6 Supreme Court Cases, 675] that “On the other hand, 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.” 9. In the case “Ranjeet Singh Vs. Ravi Prakash” [(2004) 3 S.C.C. Page 682], the Apex Court has observed inter alia in paragraph 4 of the judgment that “An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal.” 10. I have perused the judgment and orders passed by the two courts below. I have perused the judgment and orders passed by the two courts below. There is concurrent finding of fact on the point of bona fide need as well as comparative hardship. I also find that the Prescribed Authority has categorically held that the petitioner-tenant not made any sincere effort to search out alternate shop during the period of pendency of release application. Both the two courts below have elaborately discussed every aspect of the matter in the impugned orders. The orders passed by the two courts below are based on appraisal of evidence led by the parties. In writ jurisdiction, this court cannot sit like a court of appeal so as to arrive at a different conclusion. 11. In the instant case, the release application was moved on 1.9.2005. The release application was allowed by the Prescribed Authority by order dated 13.10.2006. The appeal against that order was dismissed by order dated 3.3.2011. Thus a period of about 5½ years have elapsed from the date of filing of release application. 12. At this stage, learned counsel for the petitioner has submitted that the petitioner is ready to give an undertaking to vacate the shop in question and the petitioner may be allowed a period of one year to vacate the shop in question. 13. For the reasons and discussion above, I find that the impugned orders passed by the Prescribed Authority as well as the appellate court do not suffer from any perversity or manifest error of law. The writ petition being devoid of merit is liable to be dismissed outright at the admission stage. 14. The writ petition is dismissed summarily. Costs easy. However, the petitioner is granted seven months’ time to vacate the disputed premises and to deliver its vacant and peaceful possession to the landlord-respondents before expiry of the said period, provided the petitioner furnishes a written undertaking to that effect before the Prescribed Authority within a period of four weeks from today. It is further provided that the petitioner shall continue to pay/deposit the rent/damages to the respondents month to month by the seventh day of the next month for every previous month till the expiry of the aforesaid period seven months. In case no undertaking is furnished by the petitioners, as directed above, the landlord-respondents would be at liberty to get the shop in question vacated through Court in accordance with law. 15. In case no undertaking is furnished by the petitioners, as directed above, the landlord-respondents would be at liberty to get the shop in question vacated through Court in accordance with law. 15. All pending applications stand disposed of accordingly.