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2013 DIGILAW 746 (UTT)

Prema Joshi v. Dinesh Chandra Goel

2013-11-25

B.S.VERMA

body2013
JUDGMENT : B.S. Verma, J. By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the judgment and order dated 30.11.2012 passed by Additional District Judge, Nainital, in Rent Control Appeal No.20 of 2011 Dinesh Chandra Goel vs. Smt. Prema Joshi (Annexure No.1 to the writ petition). Brief facts of the case, as narrated in the writ petition, are that the husband of petitioner no.1 and father of petitioner nos. 2 and 3, namely, Shri Banshidhar Joshi had taken on rent the premises in dispute on monthly rent of Rs.15/- for the purpose of running his business. In the year 2005, the respondent purchased the property in dispute by way of sale deed. The landlord/respondent moved a release application under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act) before the Prescribed Authority on the ground of need for his daughters-in-law for their business. The release application was contested by the tenants/petitioners by filing written statement and denying all the allegations raised in the application. In the written statement, the tenants/petitioners pleaded that the respondent/landlord is a rich person and he is not in the need of extra premises/space for running the business of his daughters-in-law. It was further alleged that his daughters-in-law are running their business in their residence from last four to five years and they have sufficient space to expand their business. The need of the landlord/respondent is not bona fide and genuine and on the garb of the need of his daughters-in-law, the respondent/landlord wishes to oust the petitioners from the disputed premises. Both the parties led documentary evidence by way of affidavits along with annexures in support of their respective contentions. After hearing both the parties and perusing the record, learned Prescribed Authority, held that the need of the landlord/respondent is not bona fide and genuine as he has three other buildings in his ownership from where his daughters-in-law can easily run their business of boutique. Learned Prescribed Authority also held that the comparative hardship is in favour of the tenants/petitioners and, ultimately by judgment and order dated 02.11.2011, dismissed the release application of the landlord/respondent. Feeling aggrieved by the order of release, the landlord/respondent filed an appeal being Rent Control Appeal No.20 of 2011 before Additional District Judge, Nainital. Learned Addl. Learned Prescribed Authority also held that the comparative hardship is in favour of the tenants/petitioners and, ultimately by judgment and order dated 02.11.2011, dismissed the release application of the landlord/respondent. Feeling aggrieved by the order of release, the landlord/respondent filed an appeal being Rent Control Appeal No.20 of 2011 before Additional District Judge, Nainital. Learned Addl. District Judge after hearing the parties and re-appreciating the entire evidence, vide judgment and order dated 30.11.2012, allowed the appeal and upset the findings of the learned Prescribed Authority by holding that the tenants/petitioners cannot compel the landlord/respondent to run the business of his daughters-in-law from residential accommodation. Feeling aggrieved by the judgment and order of learned Addl. District Judge dated 30.11.2012, the tenants/petitioners have filed the present writ petition. 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 "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 in to exercise its supervisory jurisdiction." 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. 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 re-appreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal." Learned counsel for the petitioner has contended that the findings given by the learned appellate court are erroneous as the landlord/respondent has enough space for running business by his daughters-in-law from residential accommodation as it was being run from last 4-5 years. So far as this contention is concerned, a tenant cannot compel the landlord to run his business from one place or the other. In the case at hand, release application was filed by the landlord/respondent for need of his daughters-in-law in order to expand their business of boutique. It is settled position of law that landlord is the best judge of his need. In Mohd. Ayub and another vs. Mukesh Chand reported in AIR 2012 SC 881 , Hon’ble Apex Court has held as under:- “It is well settled the landlord’s requirement need not to be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. It was wrong on the part of the District Court to hold that the appellant’s case that their sons want to start the general merchant business is a pretence because they are dealing in eggs and it is for the landlord to decide which business he wants to do. The court cannot advise him. It was wrong on the part of the District Court to hold that the appellant’s case that their sons want to start the general merchant business is a pretence because they are dealing in eggs and it is for the landlord to decide which business he wants to do. The court cannot advise him. Similarly, length of tenancy of the respondent in the circumstances of the case ought not to have weighed with the courts below.” Learned counsel for the petitioner has further contended that as per definition of ‘Family’ given in Section 3(g) of the Act, a daughter-in-law does not come within the ambit of family. So far as this plea taken by the learned counsel is concerned, the same was not taken by the tenants before the appellate court. It has been taken by the tenants in writ stage. However, since it is legal issue, therefore, the same is accepted at this stage. In support of this contention, learned counsel for the petitioner has referred a judgment of Hon’ble Supreme Court in the case of Ganpat Roy and others vs. Addl. District Magistrate and others, and another connected petition, reported in (1985) 2 Supreme Court Cases 307, and has relied upon para-6, which reads as under:- “6. It will be convenient to see the relevant provisions of the Act before we turn to the Tirlok Singh and Co. case. Clause (g) of Section 3 defines ‘family’ as follows: (g) ‘family’, in relation to a landlord or tenant of a building, means, his or her- i) spouse, ii) male lineal descendants, iii) such parents, grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building. What is pertinent to note about this definition is that a son-in-law and a daughter-in-law are not expressly included in this definition.” Learned counsel for the petitioner has further placed reliance upon a judgment of Allahabad High Court in the case of M/s Ratan Lal Jagdish Prasad and others v. The District Judge, reported in (1980) ARC 292, wherein it has been held in para-7 as under:- “7. In the instant case, when the firm M/s. Ratan Lal Jagdish Prasad was constituted on October 9, 1975, two ladies, Smt. Sharda Devi, wife of Shankar Lal and Smt. Kamla Devi, daughter of Ganga Prasad, were taken as partners thereof. On the finding that since these two ladies were not covered by the definition of word “family” given in Section 3 (g), the Rent Control and Eviction Officer found that the premises would be deemed to be vacant under Section 12 (2) of U.P. Act No.13 of 1972. Smt. Sharda Devi was the wife of Shanker Lal who was the son of Ratan Lal. Shankar Lal was not a partner in the firm before 1974. It appears that Smt. Sharda Devi was admitted as a partner of the new firm being the dauther-in-law of Ratan Lal. A daughter-in-law is not included in the definition of the word “family”. The last clause of definition provides for “including, in relating to a landlord, any female have a legal right of residence in that building”. The dispute in the instant case is not in respect of a residential building. It is in respect of a non-residential building. The last clause would, thus, not apply.” But, in the case at hand, one room which was given on rent was being used by tenant’s predecessor for commercial purpose and, admittedly, it is a part of residential building for which the release application has been moved. Therefore, Ratan Lal’s case (supra) cited by the learned counsel is of no help to the petitioners. In reply thereto, learned counsel appearing for the landlord/respondent has placed reliance upon a judgment delivered by this Court in the case of Daljeet Singh v. Prithpal Singh Kohali, Writ Petition No.561 of 2012, decided on 27.02.2013, wherein this Court in para-11 held as follows:- “11. Though, it is true that legislature has not put widow of deceased son in Section 3 (g) of the Act, but this Section has taken care of such daughter-in-law by mentioning ‘any female having a legal right of residence in that building’. In my view, widow of a deceased son comes under the meaning of family, as defined under Section 3 (g) of the Act. In Indian society, a girl, after her marriage, leaves her parental house permanently and becomes family member of her husband’s family. She eats there, sleeps there, lives there and dies there. In my view, widow of a deceased son comes under the meaning of family, as defined under Section 3 (g) of the Act. In Indian society, a girl, after her marriage, leaves her parental house permanently and becomes family member of her husband’s family. She eats there, sleeps there, lives there and dies there. Ever her last rites are performed by her in-laws family at their place. Considering all this, how could this be said that after the death of her husband, she has become outsider and is no more a family member? I am unable to understand how status of daughter-in-law in her family can change after the death of her husband, when status of her son remains the same. I am not in agreement with the Allahabad High Court that legal right of widowed daughter-in-law is only limited to maintenance by the father-in-law. Therefore, the argument of learned Senior Advocate for the petitioner that after the death of Dr. Amardeep Singh (son of the landlord), the bonafide need of landlord’s widowed daughter-in-law could not be considered, is rejected.” Learned counsel for the respondent/landlord has further placed reliance upon a judgment of Hon’ble Apex Court in the case of Joginder Pal v. Naval Kishore Behal reported in (2002) 5 SCC 397 has observed as under:- “Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 provides for the accommodation being released if bona fide required by the landlord of occupation by himself or members of his family or for any person for whose benefit it is held by him. In Nand Rani v. ADJ ( AIR 1980 All 148 ) the need was for setting up the daughter’s son in business. The daughter’s son was not a member of the family nor the accommodation could be said to be held for his benefit. The Court held that the provisions of the Act cannot be read so as put an end to the ties of affection, friendship, kinship or sheer necessity. The daughter’s son was not a member of the family nor the accommodation could be said to be held for his benefit. The Court held that the provisions of the Act cannot be read so as put an end to the ties of affection, friendship, kinship or sheer necessity. In appropriate circumstances the landlord may be so much concerned with and interested in the requirement of or for another person, who is not a member of his family as defined in Section 3(g), that the requirement may be properly regarded as the landlord’s own requirement depending on the extent of the landlord’s identification with the person concerned to be determined on the evidence and circumstances of the particular case.” In view of the above case-law cited by the learned counsel for the respondent/landlord, this Court is of the view that the need of the landlord would include the need of his family members like the sons, daughters and daughter-in-law etc. So far as bona fide need and the issue of comparative hardship is concerned, these are findings of fact recorded by the appellate court that the landlord has bona fide requirement for the disputed premises to expand the business of his daughters-in-law. On comparative hardship, I find that the finding of appellate court is well reasoned. It has been held by the appellate court that only on the ground that tenant was residing in the disputed premises from a long time, should not be a ground for depriving the landlord for doing business if the requirement of the landlord is bona fide and reasonable. In Shamshad Ahmad and others vs. Tilak Raj Bajaj (deceased) through L.R.s. and others [(2008) 9 Suprme Court Cases-1], Hon’ble Apex Court has held that 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. In writ jurisdiction, this Court cannot sit as a court to appeal and cannot re-appreciate the evidence, so as to arrive at a different conclusion. The findings have been recorded by the appellate court on appraisal of evidence led by the parties. I do not find any perversity in the impugned order passed by the appellate court. For the reasons and discussions made above, the writ petition is dismissed. The findings have been recorded by the appellate court on appraisal of evidence led by the parties. I do not find any perversity in the impugned order passed by the appellate court. For the reasons and discussions made above, the writ petition is dismissed. However, to do the complete justice, the petitioners/tenants are granted time upto 31st January, 2015 to vacate the disputed premises provided they furnish a written undertaking before the Prescribed Authority within a period of eight weeks from today to the effect that they will vacate the shop in dispute before 31st January, 2015 and shall deliver its vacant and peaceful possession to the respondent-landlord and shall also continue to pay/deposit the rent to the landlord-respondent month to month till the expiry of the aforesaid period. In case, the petitioners/tenants fail to furnish the said undertaking within the stipulated period, the respondent/landlord would be at liberty to get the disputed shop vacated through court in accordance with law.