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2012 DIGILAW 426 (UTT)

NAND LAL v. PRABASH CHANDRA

2012-07-26

B.S.VERMA

body2012
JUDGMENT Hon’ble B.S.Verma, J. (Stay Application No. 7230 of 2012) Heard Mr. Lokpal Singh, Advocate, 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 quashing the impugned order dated 28.9.2007 passed by the Prescribed Authority/Civil Judge (Junior Division), Kashipur (for short the Prescribed Authority) in Rent Case NO. 3 of 2005, Prabhash Chandra Vs. Lalman Foolmali as well as the order dated 30-5-2012 passed by the District Judge, Udham Singh Nagar in Rent Control Appeal NO. 4 of 2007. By the order dated 28-9-2007, the application for release moved under Section 21(1)(a) of the U.P. Urban Buildings ( Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act) moved by the respondent-landlord was allowed by the Prescribed Authority and by order dated 30.5.2012, the appeal preferred by the tenant-petitioner has been dismissed. 3. Relevant facts giving rise to the present writ petition, in brief, as emerges out from the record are that the respondent-landlord Prabhash Chandra moved an application under Section 21(1)(a) of the Act for release of the shop in question before the Prescribed Authority alleging therein that he along with his brother Subhash Chandra is the landlord of the shop in question and four other shops adjoining to it and in the year 2004 on account of oral partition between them, the shop in question came to his exclusive share. According to the respondent, the petitioner continues to be a tenant in the said shop on monthly rental of Rs. 36/- plus water tax @ 12% thereon. The petitioner has bona fide need for shop in question to settle his son Shobhit Kumar Agrawal in business. The respondent requested the petitioner to vacate the said shop time and again but no heed was paid to his request, hence the respondent served a notice dated 5/7-9-2005 upon the petitioner by registered post demanding arrears of rent and to vacate the shop in question. The petitioner paid the arrears of rent but did not vacate the shop in question. Ultimately, on the ground of bona fide need, the release application was moved before the Prescribed Authority. 4. The petitioner-tenant resisted the application and filed his written statement and admitted that the respondent is the co-landlord and co-owner of the shop in question. The theory of oral partition is imaginary. Ultimately, on the ground of bona fide need, the release application was moved before the Prescribed Authority. 4. The petitioner-tenant resisted the application and filed his written statement and admitted that the respondent is the co-landlord and co-owner of the shop in question. The theory of oral partition is imaginary. The petitioner admitted the monthly rent but denied liability of water tax. The petitioner also denied the alleged bona fide need of the landlord-respondent and alleged that there are many other vacant shops in possession of the respondent. It was also claimed that the petitioner runs a tea restaurant in the shop in question, which is the only source of his livelihood. The petitioner has made sincere effort to search for an alternative shop but failed. It was also alleged that the balance of comparative hardship tilted in favour of the petitioner than the respondent. 5. Both the parties filed documentary evidence before the Prescribed Authority, which finds mention and discussion thereon in the judgment recorded by the Prescribed Authority. Learned Prescribed Authority heard them and after perusing the evidence led by the parties, it has been held that the need of the landlord is bona fine and genuine and on the point of comparative hardship, the learned Prescribed Authority came to the conclusion that the landlord would suffer greater hardship if the release application is rejected. Consequently, the Prescribed Authority passed the impugned order dated 28-9-2007 thereby allowed the release application of the respondent-landlord and directed the petitioner to vacate the shop in question within a period of 60 days. 6. Aggrieved, the tenant-petitioner preferred an appeal before the appellate Court. The appellate Court did not find favour with the appellant-petitioner and recorded its independent finding of fact on the point of bona fide need and comparative hardship by a detailed judgment, upheld the judgment and order passed by the Prescribed Authority and dismissed the appeal by order 30-5-2012, which gave rise to the present writ petition. 7. I have heard learned counsel for the parties and perused the material placed before this Court. 8. At the outset it may be mentioned that 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. 7. I have heard learned counsel for the parties and perused the material placed before this Court. 8. At the outset it may be mentioned that 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. 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. 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. 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.” 11. A perusal of the impugned order passed by the learned Prescribed Authority shows that the Prescribed Authority after appraisal of the evidence led by the parties came to the conclusion at page 9 of the judgment that the son of the applicant-respondent is unemployed and that the applicant-landlord has bona fide requirement for the shop in question to settle his son to do chartered accountancy business therein. On the other hand, the opposite party-tenant could not establish the name and style of the restaurant being run by him and anything about his goodwill in Jaspur town. The Prescribed Authority has also opined that the opposite party-petitioner can run his tea shop somewhere else. Therefore, the need of the landlord is bona fide and genuine. On the point of comparative hardship, the learned Prescribed Authority has recorded a finding of fact that the tenant-opposite party would not suffer any hardship, while by rejection of release application, the landlord-applicant would suffer greater hardship. It was also held that the opposite party has not made any effort to search alternative shop during the pendency of release application. Ultimately, by a detailed order, the application for release moved by the respondent-landlord has been allowed by order dated 28-9-2007. 12. The appellate Court after hearing both the parties and after reappreciating the evidence of the parties has recorded its independent finding of fact on the point of bona fide need and comparative hardship and did not find favour with the petitioner and dismissed the appeal by order dated 30-5-2012. 13. Having heard the submissions of the learned counsel for the petitioner as well as by a perusal of the entire material placed before this Court, I am of the considered view that there is concurrent finding of fact on the point of bona fide need and comparative hardship. The finding of fact cannot be examined in exercise of writ jurisdiction. Having heard the submissions of the learned counsel for the petitioner as well as by a perusal of the entire material placed before this Court, I am of the considered view that there is concurrent finding of fact on the point of bona fide need and comparative hardship. The finding of fact cannot be examined in exercise of writ jurisdiction. The release application has been rightly allowed by the Prescribed Authority and the appeal has been rightly dismissed by the appellate Court. I do not find any perversity or manifest error of law in the impugned orders. There is no merit in this writ petition, which is liable to be dismissed outright at admission stage. 14. The writ petition is dismissed in limine. However, to do complete justice, the petitioner is granted fifteen months’ time to vacate the disputed property from today provided the petitioner furnishes a written undertaking before the Prescribed Authority within a period of eight weeks to the effect that he shall vacate the shop in question before the expiry of the said period of 15 months and shall deliver its vacant and peaceful possession to the respondent-landlord. It is further provided that the petitioner shall pay/deposit monthly rent regularly by the seventh day of each succeeding month for the previous month. In case of default, the landlord-respondent would be at liberty to get the shop in dispute vacated in accordance with law. 15. All pending applications stand disposed of.