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2011 DIGILAW 382 (UTT)

JAIDEV SADANA v. ROSHAN LAL

2011-06-27

B.S.VERMA

body2011
JUDGMENT By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the order dated 17.4.2010 (Annexure No. 6 to the petition) passed by the District Judge Pauri Garhwal in Misc. Civil Appeal No. 1 of 2006 Roshan Lal Vs. Jaidev Sadana, whereby the appellate court has allowed the appeal and set aside the order dated 13.12.2005 passed by the Prescribed Authority/Civil Judge (Junior Division) Srinagar (for short the Prescribed Authority). The application of the respondent-landlord moved under Section 21(1)(a) of The U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972 (for short the Act) has been allowed directing the petitioner-tenant to vacate the disputed shop within one month and to handover its vacant possession to the landlord-respondent. The appellate Court also directed the landlord to pay compensation equal to one year’s rent to the tenant-petitioner. 2. Brief facts giving rise to the present writ petition are that the respondent-landlord moved an application for release of the dispute shop under Section 21(1)(a) of the Act against the petitioner before the Prescribed Authority alleging on the ground of his bona fide need alleging that the disputed shop has been given on rent to the petitioner on monthly rental of Rs. 575/- for a period of five years, but the tenant-petitioner has not vacated the dispute shop after the expiry of the stipulated period despite request made by the landlord. The landlord served a notice on 22.3.1987 demanding the petitioner to vacate the disputed shop but the petitioner paid no heed to it. The landlord-respondent filed a case no. 7 of 1993 on the ground of his bona fide need, but the landlord was appointed as Assistant Labour Commissioner and ultimately the case was dismissed in default. The present application has been moved to engage the son of the landlord in business, hence the application under Section 21(1)(a) of the Act was moved. 3. The tenant-petitioner resisted the application and filed his written statement. The relationship of landlord and tenant and the rate of rent have been admitted. Rest of the allegations made in the application have been denied. The bona fide need of the landlord-respondent was denied and it was alleged that the son of the landlord was studying in Meerut and he is not competent to run any business as he has no business qualification. Rest of the allegations made in the application have been denied. The bona fide need of the landlord-respondent was denied and it was alleged that the son of the landlord was studying in Meerut and he is not competent to run any business as he has no business qualification. The application has been made on illusory grounds. The tenant has no alternative shop to do his business except the disputed shop and it is the only source of his livelihood. The tenant has earned a goodwill. 4. On these pleadings, the Prescribed Authority framed three issues in the case. The first issue related to bona fide need of the landlord-applicant. The second issue related to any alternative shop available to the opposite party for running business and the third issue related to comparative hardship. 5. The Prescribed Authority after hearing the parties and after perusing the evidence led by them has come to the conclusion that the need of the landlord-respondent herein is not bona fide and the need has been shown for the purposes of getting the disputed shop vacated. Learned Prescribed Authority also held that the petitioner-tenant has no alternative shop to run his business and consequently dismissed the application for release by order dated 13.12.2005. Aggrieved by that order, the landlord-respondent preferred appeal before the District Judge, Pauri Garhwal, which was registered as Misc. Civil Appeal No. 1 of 2006. The learned District Judge after hearing both the parties has recorded his independent finding on all the three issues. After elaborately discussing each and every aspect of the case, the learned appellate court on the point of bonafide need of the landlord has held that the disputed shop is bonafide required by the landlord-respondent to establish his son in business. On point no. 2, the learned appellate court has held that the tenant-petitioner has no alternative shop in Srinagar to run his business. On the point of comparative hardship (Issue No. 3), the appellate court has observed that the tenant has made no effort to search alternative shop during the pendency of the case or the appeal, therefore, the point of comparative hardship was decided against the tenant-petitioner. Ultimately, by detailed order dated 17.4.2010, the learned District Judge allowed the appeal of the landlord and set aside the order of the Prescribed Authority. The release application was accordingly allowed as mentioned earlier. 6. Ultimately, by detailed order dated 17.4.2010, the learned District Judge allowed the appeal of the landlord and set aside the order of the Prescribed Authority. The release application was accordingly allowed as mentioned earlier. 6. The main ground of challenge raised in this writ petition is that the finding recorded by the District Judge on the issues of bonafide need and comparative hardship are perverse and cryptic and beyond the scope of evidence and pleadings. 7. On behalf of the landlord-respondent counter affidavit has been filed. On the other hand, the petitioner has filed rejoinder affidavit in reply to the averments made in the counter affidavit. 8. I have heard learned counsel for the parties and perused the record including the memo of writ petition, the counter affidavit and the rejoinder affidavit. 9. This Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or reevaluate 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. 10. 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.” 11. The Apex Court in the case of Shamshad Ahmad and others Vs. Tilak Raj Bajaj (Deceased) through L.Rs. and others [(2008) 9 Supreme Court Cases, 1] while dealing with Articles 226 and 227 of the Constitution of India has observed as under :- “38. The Apex Court in the case of Shamshad Ahmad and others Vs. Tilak Raj Bajaj (Deceased) through L.Rs. and others [(2008) 9 Supreme Court Cases, 1] while dealing with Articles 226 and 227 of the Constitution of India has observed as under :- “38. 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.” 12. Learned counsel for the petitioner has contended that the finding recorded by the appellate Court on the bona fide need is not based on appraisal of evidence and is a cryptic one. 13. In reply, the learned counsel for the respondent-landlord has urged that the finding on the issue of bonafide need is a finding of fact and the evidence cannot be reassessed in writ jurisdiction. 14. So far as the finding of the appellate court on the point of bonafide need is concerned, from a bare perusal of the impugned order, it is obvious that the learned District Judge has categorically observed that the release application has been moved for the bona fide need of the son of the landlord Rishab, who was aged 14-15 years when the application was filed in the year 2004. The appellate court has observed that the age of the son Rishab in the year 2010 would be 20-21 years. The appellate court has taken note of the changed circumstances in this regard. Moreover, it is neither the case of the petitioner that the need of the landlord is mala fide nor the petitioner has established that the need of the landlord is made fide or imaginary. The appellate court has taken note of the changed circumstances in this regard. Moreover, it is neither the case of the petitioner that the need of the landlord is mala fide nor the petitioner has established that the need of the landlord is made fide or imaginary. From a perusal of the entire order passed by the learned District Judge it cannot be said that there is misreading of evidence or that the impugned order has been passed without appraisal of the evidence led by the parties. 15. Besides, the learned District Judge in paragraph no. 12 of the impugned order has clearly observed that the contention of the tenant-petitioner that the landlord wants to increase the rent and wants to rent out the disputed on high rent after the same is vacated is not tenable. It has also been observed that no evidence in that regard has been brought on record by the petitioner. The learned District Judge has not accepted the contention of the petitioner that the landlord possesses two other shops- one at Ram Gali and the other on Badrinath Road. The affidavit of the petitioner has been controverted by filing counter affidavit by the landlord wherein the plea raised by the tenant has been controverted. It has also been observed that the tenant has failed to file any documentary evidence to prove this fact. The learned District Judge after reassessing the evidence has held that the need of the landlord for the disputed shop is genuine and bona fide and the same cannot be termed as mala fide. 16. Moreover, the appellate court in paragraph no. 16 of the impugned judgment has considered the conduct of both the parties and has found that in P.A. Case No. 7 of 1993, the release application was moved for the own requirement of the landlord, but when the landlord was appointed as Assistant Labour Commissioner, he got the release application dismissed for want of prosecution. The present release application has been filed on account of bonafide need of the son of the landlord. The appellate court in paragraph no. 17 of the order has observed that the conduct of the tenant has not been bona fide. The present release application has been filed on account of bonafide need of the son of the landlord. The appellate court in paragraph no. 17 of the order has observed that the conduct of the tenant has not been bona fide. He has been tenant since the year 1976 and no effort at all has been made by the tenant to search for alternative shop rather a son of the tenant is doing his business in a separate shop on rent. The appellate court in paragraph no. 18 of the impugned order has observed that since 15.3.2007, the appeal was listed at the stage of arguments but the arguments in the appeal was heard after a very long interval of three years. Ultimately, the release application filed under Section 21(1)(a) of the Act has been allowed and while passing the order of eviction against the petitioner, the landlord-respondent has been directed to pay compensation equal to one year’s rent to the tenant. 17. In the case at hand, the appellate court have recorded independent findings of the fact that the need of the landlord-respondent is bona fide and that no greater hardship would be caused to the tenant-petitioner if an order of eviction would be passed against him. In the case of Shamshad Ahmad and others Vs. Tilak Raj Bajaj (Deceased) through L.Rs. and others (supra). The Apex Court has held in paragraph 36 as under :- “36. A finding as to bona fide requirement for doing readymade garments’ business by Matloob Ahmad has been expressly recorded by the appellate authority. The said finding was a finding of fact. Neither could it have been interfered with, nor has it been set aside by the writ court. In view of the above position, the High Court was wrong in allowing the writ petition.” 18. In that case, the Apex Court in paragraph no. 47 has further observed as under :- “47. In the case on hand, a finding had been recorded by the appellate authority that requirement of the landlord for doing business by Matloob Ahmad, husband of Applicant 6 was bona fide and genuine. Thus, the requirement of the landlords was established. The said finding stands today. 47 has further observed as under :- “47. In the case on hand, a finding had been recorded by the appellate authority that requirement of the landlord for doing business by Matloob Ahmad, husband of Applicant 6 was bona fide and genuine. Thus, the requirement of the landlords was established. The said finding stands today. The High Court by a cryptic order, without disturbing the said finding which was based on appreciation of evidence, set aside the order of eviction against the tenant, inter alia, observing that Matloob Ahmad was a “retired person” and was getting pension and was living in his village at a distance of five kilometers from Dehradun. It is no doubt true that the tenancy was created before about fifty years but that should not be a ground for depriving the landlord for doing business if the requirement of the landlord is bona fide and reasonable.” 19. In the case of Ganga Devi Vs. District Judge, Nainital and others [(2008) 7 Supreme Court Cases, 770], the Apex Court had an occasion to consider the provision of Rule 16(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules 1972, wherein the Apex Court relying on the case of Bhagwan Dass Vs. Jiley Kaur [1991 Supp. (2), SCC, 300] has observed in paragraph no. 23 as under :- “23. In Bhagwan Dass V. Jiley Kaur this Court distinguishing the earlier decision of this Court in Bishan Chand v. ADJ stated the law in the following terms. (Bhagwan Dass case, SCC p. 303, para 7) “7. ... It was also pointed out in this case that the provisions of Rule 16(2) of the Act (sic Rules) had not been considered at all. In our opinion, the said decision is clearly distinguishable. Firstly, the instant case was one where there was an outweighing circumstance in favour of the landlord, namely, that two of her sons after completing their education were unemployed and wanted to carry on business for self-employment. Secondly, as already seen above, it was not a case where the provisions of Rule 16(2) can be said to have been ignored by the District Judge. Secondly, as already seen above, it was not a case where the provisions of Rule 16(2) can be said to have been ignored by the District Judge. Thirdly, it was a case where there 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 get it.” The “thirdly” referred to therein applies to the fact of this case.” 20. In the case at hand, the appellate court has observed in paragraph no. 23 at pages 14-15 of the impugned order that the petitioner-tenant has not made any serious attempt to seek an alternative accommodation and was unable to get it. 21. For the reasons and discussion above, I am of the considered view that the learned appellate court has recorded a finding of fact that the need of the landlord to settle his son in the business is bona fide and genuine. It is also not disputed that the son of the landlord has attained the age of more than 20-21 years at present. It has been specifically observed by the appellate court that no effort has been made by the tenant-petitioner to search for alternative shop during the pendency of the case and the appeal, which had involved about six years, as mentioned above. The findings recorded by the appellate court are fully based on appraisal of evidence on record and the finding of fact cannot be examined in writ jurisdiction. In my view the impugned order passed by the appellate court does not suffer from any manifest error of law or jurisdictional error and the same does not call for any interference in this writ petition. The writ petition being devoid of merit is liable to be dismissed outright. 22. The writ petition is dismissed. Costs easy. However, to do complete justice, the petitioner is granted six months’ time from today to vacate the disputed shop and to deliver its vacant and peaceful possession to the landlord before expiry of the said period, provided the petitioner furnishes a written undertaking to that effect within a period of eight weeks before the Prescribed Authority. Costs easy. However, to do complete justice, the petitioner is granted six months’ time from today to vacate the disputed shop and to deliver its vacant and peaceful possession to the landlord before expiry of the said period, provided the petitioner furnishes a written undertaking to that effect within a period of eight weeks before the Prescribed Authority. In case, the petitioner-tenant fails to furnish the undertaking as directed above, the landlord-respondent would be at liberty to get the disputed shop vacated in accordance with law. 23. The interim order dated 29.4.2010 is vacated.