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2013 DIGILAW 574 (UTT)

Jagdish Attri v. Ghanshyam Arora

2013-09-02

B.S.VERMA

body2013
B.S. Verma, J. (Oral).:— By means of this petition the petitioner has sought a writ in the nature of certiorari for quashing the impugned order dated 16-1-2009 passed by Prescribed Authority/Civil Judge (S.D.) Haridwar in P.A. Case No. 1/2006, Smt. Bimla Rani vs. Jagidsh as well as the judgment and order dated 31-1-2012 passed by Addl. District Judge/3rd F.T.C. Haridwar in Rent Control Appeal No. 27/2009 Jagdish Attri vs. Smt. Bimla Rani and others, contained in Annexure Nos. 6 and 8 respectively to the writ petition. Brief facts of the case giving rise to this writ petition are that Smt. Bimla Rani mother of respondent Ghanshyam Arora filed release application U/S 21 (1)(a) of U.P. Act No. 13 of 1972 against petitioner-tenant on the ground that she is landlady of premises in question and Jagdish Attri (petitioner) is the tenant in the said premises. Her family consists of her husband and two sons. Her son Ghanshyam is married and has a daughter also, whereas another son is Bhupendra. Both sons are unemployed and they want to open their own business. It is alleged by the applicant that in the shop adjacent to the disputed shop, the landlady runs the shop of garments in the name and style of M/s Raja Garments and elder son Ghanshyam helps her in the said shop but younger son Bhupendra is not engaged in any work. It is also alleged in the release application that she owns total three shops, in one shop her husband runs the shop, in the second shop she runs the business of Raja Garments and the third shop is shop in dispute which is in the tenancy of opposite-party- petitioner. 2 It is also alleged that the tenant is a prosperous man and he does the work of Panditai and he has a room for this work at Haridwar. Besides this he has a big house consisting of 14 rooms at Milkiyati Mohalla Shivpura Kankhal and he also owns a lodge at Ramghat Haridwar and he has no bonafide need of shop in dispute whereas the applicant has bonafide need of the shop in question to open the business of her sons. The opposite-party-tenant contested the release application by filing W.S. and denied the averments made in the release application. The opposite-party-tenant contested the release application by filing W.S. and denied the averments made in the release application. It was alleged that he is tenant in the shop in question since last 35 years on behalf of Swami Kishan Chand Khanna whereas the landlady has purchased the disputed property in 1982. It was also alleged that the landlady has sufficient property in Pahadi Bazar Kankhal. Ghanshyam elder son of landlady does the business of Raja Garments and another son Bhupendra does the cloth business with his father and the landlady has no bonafide need of the shop in question. On the other hand the shop in dispute is the main source of his income and he does the work in that shop along with his son Sanjay. He has residential accommodation at Kankhal and has no accommodation to do some business. In Ramghaat he has two rooms on ground floor and two rooms in first floor and this accommodation is used for staying the yajmans and the work of Panditai is lookedafter by his son Mohan and if the shop in question is released in favour of landlady the tenant would be put to a great hardship. Both the parties adduced evidence before the Prescribed Authority. Thereafter the learned Prescribed Authority after considering the material on record, has recorded a finding that the landlady and opposite party-tenant has relationship of landlord and tenant. On the point of bonafide need the Prescribed Authority has observed that the landlady has given undertaking if the property is released in her favour she would not let out the same on rent in future and would be used for business purposes by her sons and she is also ready to pay the amount to tenant equivalent to two years rent. Thus on the basis of evidence of parties the Prescribed Authority has held that the landlady has bonafide need of the shop in question. The issue 3 of comparative hardship was also decided in favour of land lady and accordingly allowed the release application. Feeling aggrieved the tenant preferred revision and the same was dismissed by the appellate court. Hence this writ petition. The issue 3 of comparative hardship was also decided in favour of land lady and accordingly allowed the release application. Feeling aggrieved the tenant preferred revision and the same was dismissed by the appellate court. Hence this writ petition. The respondent-tenant filed counter affidavit and reiterated the facts pleaded in the objection filed before the Prescribed Authority and also alleged that the courts below have not assessed the evidence in right perspective and committed a manifest error by holding the bonafide need and comparative hardship in favour of landlady. Rejoinder affidavit has also been filed by the petitioner and reiterated the averments made in the writ petition. I have heard learned counsel for the parties and perused the record. The landlady has moved the release application pleading the bonafide need of her sons Ghanshyam and Bhupendra to run the business. She has specifically pleaded that her elder son Ghanshyam has no business of his own and he only assists her in her business of garments and another son Bhupendra is also unemployed and is not engaged anywhere. Elder son Ghanshyam is married and he has a daughter also. The tenant-petitioner did not dispute this fact that the sons of landlady have no business of their own and simply said that Ghanshyam is engaged in the business with the landlady in Raja Garments and Bhupendra is assisting his father in his cloth business, as no person is engaged as servant in the shop. The petitioner-tenant has not denied his house at Ramghaat but alleged that it has only four rooms, two on ground floor and two on first floor. The Panditai has also not been denied but it was pleaded that his son Mohan does this work of Panditai. The scope of writ jurisdiction under Article 226 and 227 of the Constitution of India is limited and 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 and 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. In the case of Surya Dev Rai vs. ram Chander rai and others [(2003)] 6 Supreme Court cases, 675 it has been observed- 4 ‘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 not 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 into exercise its supervisory jurisdiction.” In the case of Ranjeet Singh vs. Ravi Prakash [(2004) 3 SCC 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.’ The Apex Curt 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 Article 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.” 5 I have perused the judgment and orders passed by the two courts below. 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.” 5 I have perused the judgment and orders passed by the two courts below. The courts below have recorded a concurrent finding of fact holding that the landlady has bonafide requirement for the disputed shop to engage her sons in the business who are unemployed The finding has been recorded by the courts below on appraisal of evidence led by the parties. I do not find any perversity in the impugned orders passed by the two courts below. No efforts have been made by the tenant to make search of some other accommodation. The impugned judgment and orders do not suffer from any manifest error of law. The writ petition being devoid of merit is liable to be dismissed. Accordingly, the writ petition is dismissed. However, to do the complete justice the tenant/petitioner is granted one year’s time from today to vacate the disputed shop, provided the petitioner furnishes a written undertaking before the Prescribed Authority within a period of four weeks from today to the effect that he will vacate the shop in dispute before the expiry of said period of one year and shall deliver its vacant and peaceful possession to the landlady-respondent and shall also continue to pay the rent to the landlady month-wise till the expiry of the aforesaid period of one year. _____________