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2012 DIGILAW 589 (UTT)

KEWAL KRISHAN SHARMA v. RAJESHWARI DEVI

2012-09-18

B.S.VERMA

body2012
JUDGMENT [Hon’ble B.S. Verma, J. (Oral)] In both the writ petitions, judgment and order dated 30-5-2012 passed by Addl. District Judge/II F.T.C. Dehradun in Rent Control Appeal No. 148/2009 Kewal Krishan Sharma Vs. Rajeshwari Devi and another, has been assailed, therefore, these writ petitions are being decided by this common judgment. 2. Brief facts of the case giving rise to these writ petitions are that Smt. Rajeshwari Devi is the landlady of property in question 38 Tilak Road Dehradun and the tenanted accommodation was in the tenancy of Bihari Lal and after his death, his widow Smt. Sumitra Rani and son Kewal Krishan Sharma are joint tenants since the accommodation is commercial. The landlady moved release application U/S 21(1)(a) of U.P. Act No. 13 of 1972 for release of two shops against tenants Kewal Krishan Sharma and Smt. Sumitra Rani on the ground that the shops are required for go-down of the adjacent shop of her husband. It was also alleged in the application that the opposite parties have their own property, in which there is a shop, vacant piece of land and residential building. The shops are bonafidely needed to the landlady and if the shops are released in favor of landlady the tenants would not be put to any hardship. 3. The opposite parties/tenants filed objection before the Prescribed Authority and alleged that the landlady has no bonafide need of the shops in dispute. It is wrong to say that the sons of tenant Smt. Sumitra Devi have their separate business and residence. She runs a flour-mill in a room at her residential premises. The landlady has a number of shops, some of which are in their own occupation, some are closed and some have been given on rent and if the shops in possession of the tenants are released they would suffer greater hardship in comparison to the landlady. 4. The parties adduced evidence before the Prescribed Authority in support of their contentions. The Prescribed Authority after hearing parties and considering the material on record allowed the release application and issued direction to the tenants to hand over possession of the shops to the landlady within a month and the opposite parties tenants would be entitled to get Rs. 15,000/- as compensation from the land lady. 5. The Prescribed Authority after hearing parties and considering the material on record allowed the release application and issued direction to the tenants to hand over possession of the shops to the landlady within a month and the opposite parties tenants would be entitled to get Rs. 15,000/- as compensation from the land lady. 5. Feeling aggrieved by the order passed by Prescribed Authority, one of the tenants Kewal Krishan Sharma preferred Rent Control Appeal No. 148 of 2009. The Addl. District Judge/II F.T.C. Dehradun vide impugned judgment and order dated 30-5-20 12 partly allowed the appeal and modified the order to the extent that the appellant/tenant shall hand over possession of one shop having width 9 ½ feet x 12 feet which is adjacent to the cement shop of the husband of landlady within a period of two months and the appellant will be entitled to get a sum of Rs. 15,000/- from the landlady as compensation. 6. Feeling aggrieved by the impugned judgment and order passed in appeal, the tenant Kewal Krishan Sharma has preferred the W.P. No. 1309(M/S) 2012 and the landlady has preferred the W.P. No. 1698 (M/S) of 2012. 7. The tenant Kewal Krishan Sharma in the writ petition No. 1698(M/S) 2012 has pleaded that the landlady has moved the release application before the Prescribed Authority on the ground that her husband is running a business of cement and also want to start the business of paint in shop in question measuring 19 ft. x 12ft. The landlady and her husband are living separately from their children and that the shops in question are required for the husband of landlady for using it as a godown. The need of landlady is not bonafide and genuine and the same a mere desire. The tenant reiterated the facts mentioned in objection filed before the Prescribed Authority and alleged that the landlady has sufficient commercial accommodation. Some accommodation was also got vacated by the landlady in the same building occupied by Lekha Pariksha Adhikari, Cooperative Societies and the same could be used by the landlady. Subsequently on 3 0-6-2006 Regional Information Directorate also vacated a room under the ownership of husband of the landlady and the said room is a commercial accommodation. Some accommodation was also got vacated by the landlady in the same building occupied by Lekha Pariksha Adhikari, Cooperative Societies and the same could be used by the landlady. Subsequently on 3 0-6-2006 Regional Information Directorate also vacated a room under the ownership of husband of the landlady and the said room is a commercial accommodation. It is further alleged that there was no denial on behalf of the landlady that the rooms are residential and no material has been placed by the landlady before lower appellate court with regard to nature of the rooms and the learned appellate authority was not competent to record such finding with regard to the nature of such premises without spot inspection. The petitioner has filed application for spot inspection but the same was rejected and no spot inspection was done. 8. W.P. No. 1698(M/S) 2012 has been filed by the landlady that the learned Prescribed Authority has recorded a categorical finding in its judgment dated 19-9-2009 that the tenants have an alternative accommodation at Dandipur Mohalla, Dehradun where the tenants are running Aata Chaki and General Store in their own shop but the appellate court has committed manifest error by reversing the findings recorded by the Prescribed Authority. The learned Appellate Court did not record any finding about the need of the landlady for both the shops is not genuine, thus without recording any reason there was no occasion to allow the appeal partly. 9. The tenant Kewal Krishan Sharma filed counter affidavit and denied the contents of the writ petition and also alleged that though Prescribed Authority recorded a finding that the need of landlady is genuine and the tenant has alternate accommodation at Dandipur Mohalla and is running Aata Chakki and general store, but the said findings are illegal and perverse and without any evidence, in as much as no such business as alleged is running at present and due to financial crisis the said business was closed long back. 10. I have heard learned counsel for the parties and perused the record. 11. The release application was filed by the landlady for releasing two shops, details of which is given in release application as property ‘Ka’ and ‘Kha’. The Prescribed Authority allowed the release application in respect of both the shops. 10. I have heard learned counsel for the parties and perused the record. 11. The release application was filed by the landlady for releasing two shops, details of which is given in release application as property ‘Ka’ and ‘Kha’. The Prescribed Authority allowed the release application in respect of both the shops. In appeal the appellate court has modified the judgment passed by Prescribed Authority and directed that only one shop adjacent to the shop of her husband, measuring 9 ½ feet x 12 feet shall be released in favour of landlady. 12. The learned counsel appearing on behalf of the landlady has contended that the landlady has bonafide need of both the shops in question but the learned appellate court has committed manifest error by not considering the bonafide need of the landlady for both the shops and by releasing only one shop in favour of landlady will not suffice the need of landlady and the another shop is also liable to be released in favour of the land lady. 13. On the other hand learned counsel appearing on behalf of the tenant has submitted that the landlady has sufficient vacant accommodation to use as godown to the business of her husband. Some accommodation was also got vacated by the landlady in the same building occupied by Lekha Pariksha Adhikari, Cooperative Societies and the same could be used by the landlady. Subsequently on 3 0-6-2006 Regional Information Directorate also vacated a room under the ownership of husband of the landlady and the said room is a commercial accommodation. He further contended that an application was also moved to verify the fact that the accommodation which was in possession of Lekha Pariksha Adhikari is of commercial nature but that application was rejected by the Prescribed Authority and when the ground was raised before the Appellate Court the same was not considered and nature of accommodation could not be ascertained. 14. 14. The submission of learned counsel for the petitioner cannot be accepted for the reasons that the landlady has specifically pleaded that the accommodation was a residential accommodation and it was got vacated five years prior to filing of the release application and the said accommodation is away from the cement shop of the landlady and cannot be said suitable for godown and thus this fact has got no importance that the Prescribed Authority as well as the Appellate Court have not accorded permission to inspect the said accommodation to know its nature. 15. The learned Appellate Court has considered the bonafide need of the landlady and comparative hardship of the landlady as well as the tenants and has given categorical finding that as per version of the tenant an Aata Chakki is at their house and in the shops in dispute the tenants do their business. It was contended on behalf of the appellant/petitioner that the Aata Chakki is at the residence of the tenants and is not sufficient to feed up the family of the tenants and the tenants are doing business at the shops in question. The appellate court also considered this aspect of the case whether the shops in question are bonafidely required to run the business of cement and paint. The appellate court also came to the conclusion that the husband of the landlady is running the cement business in the name of M/s Shiva Traders and there is no partnership of their children in the said business. It was also held that the room which is said to be vacated by Regional Information Directorate is not completely handed over and the room which was vacated the same was residential accommodation and that cannot be suitable for godown. So far as the property vacated by Lekha Pariksha Adhikari is concerned, the appellate court has recorded a finding that the said premises was vacated on 6-11-2001 whereas the release application is filed in the year 2006 and this fact in itself shows that the rooms vacated five years earlier cannot be utilized for the purposes of a go-down. The appellate court also recorded a finding that from perusal of site-plan paper No. 33-A it reveals that the two shops in question are having width of 6 feet x 6 feet and 9 ½ feet x 12 feet. The appellate court also recorded a finding that from perusal of site-plan paper No. 33-A it reveals that the two shops in question are having width of 6 feet x 6 feet and 9 ½ feet x 12 feet. The shop having width of 9 ½ feet x 12 feet is adjacent to the cement shop of the husband of the landlady whereas the another shop is situated on another road and in between these two shops there are many other shops. In the shop having width of 6 feet x 6feet, tenant’s son is doing the business. In this way the appellate court came to the conclusion that the landlady has bonafide need of shop which is adjacent to the shop of her husband. 16. It is also to be mentioned here that the landlady has shown the bonafide need of the shops in question for the go-down of cement shop of her husband and the shop adjacent to the cement shop is the suitable place to open the godown. For the sake of argument, if it be presumed that the accommodation vacated by Lekha Pariksha Adhikari, Cooperative Societies could be used for commercial purposes, but the same cannot fulfil the purpose of godown. This accommodation is away from the cement shop and cannot be useful for opening the godown. It has come on record that the husband of the landlady is about 80 years of age and they are doing cement business independently, and their children are not partners in the said business. In my opinion the learned Appellate Court has rightly held that the bonafide need of the landlady is of the adjacent shop to the shop of her husband. The need of another shop in question has rightly not been considered. 17, In writ jurisdiction the court cannot re-appreciate the evidence like an appeal. In the case of 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. 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 exercise of supervisory jurisdiction of the High Court under Article 227 of the Constriction 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 inference like a court of appeal.” 18. The findings recorded by the appellate court are findings of fact and the findings of appellate court are not a perverse finding. 19. I do not find any manifest error or law and fact in the judgment and order passed by the appellate court and the same do not require interference by this court. 20. Both the writ petitions lack merit and are dismissed. The judgment and order passed by the appellate court is affirmed. 21. However, the tenant/petitioner Kewal Krishan Sharma is given six months time to vacate the shop in question, provided the petitioner gives an undertaking before the Prescribed Authority to this effect that he will hand over possession of the shop to the landlady after six months. The petitioner/tenant shall be entitled to get a sum of Rs. 10,000/- from the landlady as compensation instead of Rs. 15,000/- as is directed by the appellate court.