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2014 DIGILAW 707 (ALL)

Shabihul Hasan v. Xivth A. D. J. Kanpur Angar

2014-02-26

SUDHIR AGARWAL

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JUDGMENT Sudhir Agarwal,J.: - Heard Sri Atul Dayal, Advocate for petitioners and Sri M.A. Qadeer, learned Senior Advocate assisted by Sri Shamim Ahmad, for respondent no. 2. 2. This is a landlords' writ petition filed under Article 226 of the Constitution of India, who are aggrieved by the judgment dated 20.10.1999 passed by 14th Additional District Judge, Kanpur Nagar, whereby it has allowed tenants' rent appeals and set aside Prescribed Authority's order dated 13.11.1998 and dismissed landlords' release application filed under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972") . 3. Rent Case No. 15 of 1992 was instituted by petitioners, Shabihul Hasan and Wajihul Hasan. The case set up by petitioners is that petitioner No. 1, Shabuhul Hasan is a Law Graduate and owner and landlord of House No. 98/119, Mohalla Nazir Bagh, Beconganj, Kanpur. He is an Advocate by profession and practicing in District Court Kanpur Nagar since 1985. He has no place to run his office/chamber for conducting legal practice. He is having lot of difficulty for want of accommodation to have his office/chamber. He needs accommodation in question for the purpose of establishing his office/chamber. This is what was pleaded in the release application in paras 5 and 6. Similarly, in para 13 it was pleaded that petitioner no. 2, Wajihul Hasan, is unemployed and jobless, having no business or any means or source of livelihood and he wants to establish himself by carrying on a business of cloth. Since there is no other accommodation available to him to run the said business, he required accommodation in question for said purpose. This is what has been pleaded in paras 13, 14 and 15 of release application. The petitioners in the above facts and circumstances sought release of accommodation in question from respondents-tenants impleaded therein. 4. The application was allowed by Prescribed Authority vide judgment and order dated 13.11.1998 whereagainst tenants preferred rent appeals which have been allowed by Lower Appellate Court vide judgment dated 20.10.1999 and the judgment of Prescribed Authority has been set aside. 5. The petitioners in the above facts and circumstances sought release of accommodation in question from respondents-tenants impleaded therein. 4. The application was allowed by Prescribed Authority vide judgment and order dated 13.11.1998 whereagainst tenants preferred rent appeals which have been allowed by Lower Appellate Court vide judgment dated 20.10.1999 and the judgment of Prescribed Authority has been set aside. 5. It is evident from record that both these petitioners, alongwith their father, earlier instituted release proceedings vide Rent Case No. 73 of 1985, filed in the Court of Prescribed Authority/2nd Additional Civil Judge, Kanpur seeking release of another accommodation, which was in possession of Sri Anwar Khan Mahboob and others, who were impleaded as defendants. Therein also all the three applicants, namely, present petitioners as also their father, pleaded their individual need for getting said accommodation released. In para 6 of release application petitioners' father, Shamshul Hasan, set up his need while petitioner no. 1, Shabihul Hasan had set up his case in paras 13 and 14 and petitioner no. 2, Wajuhul Hasan set up his case in para 15 of the release application. These paras read as under: "6. That the petitioner no. 1 wants and requires to establish the business of manufacturing later belts and akin materials for industrial purposes including those used in Textile Mill amongst others and other leather goods and material on a large scale. At present his family members namely Smt. Shagufta and Km. Farzia are some how gone but that have practically no accommodation for the same, but have to some how drag on to make source of survival in these high times. The business is being run under the name and style of Kanpur Leather Products." "13. That besides the petitioner no. 2, Shabihul Hasan is LL.B. III years pass and has to start his legal practice and he is in urgent and acute need for establishing the office/chamber for the purpose of consultation with his clients, preparation of cases giving dictations to the Steno and keeping his library and other furniture necessary for the office besides adequate space for seating his Clerks, Typist and Clients. 14. That the petitioner no. 2 Shabihul Hasan has got no accommodation to establish and run his office and needs accommodation urgently for the purpose." "15. That besides the petitioner no. 14. That the petitioner no. 2 Shabihul Hasan has got no accommodation to establish and run his office and needs accommodation urgently for the purpose." "15. That besides the petitioner no. 3 Wajihul Hasan is also Jobless and without any employment he needs and requires a separate shop with adequate accommodation for establishing his business but this petition is being confined only to the needs and requirements and hardships of the petitioner no. 1 and his other family members as aforesaid." 6. In prayer part applicants have said that accommodation be released in favour of petitioner no. 1 for his use and occupation. The aforesaid release application was rejected by Prescribed Authority vide order dated 21.02.1986, whereagainst all the three applicants preferred Rent Appeal No. 24 of 1986 in which the pleadings as set up in release application with respect to all the three applicants were considered by Lower Appellate Court and it held: "......it is established that the appellants bonafidely require the said accommodation for their own personal use and their need for this additional accommodation is bona fide, genuine and hard pressing..." 7. The ultimate order passed by Lower Appellate Court on 23.03.1987 reads as under: "The order of the Prescribed Authority is set aside and the petition of the appellants for release of the accommodation in the tenancy of opp. Parties is allowed. The accommodation is released in favour of the applicants. The Opp. Parties are directed to vacate the accommodation within a month and deliver possession to the appellants, failing which the appellants will have right to get possession through Court. The detail of the accommodation on the ground floor is given at the bottom of the release petition." 8. It is thus evident that the Appellate Court satisfied itself with the genuinity of personal need based on the collective pleadings of all the three applicants. 9. The second release application, i.e., Rent Case No. 15 of 1992 is preferred by two sons, i.e., present petitioners. They have not at all pleaded or disclosed the factum of earlier release application though the grounds set up for personal need of these two petitioners are identical. In my view, concealment of these material facts in the subsequent release application, renders, petitioners guilty of withholding of relevant information and renders the case of bona fide need unbelievable and ingenuine. They have not at all pleaded or disclosed the factum of earlier release application though the grounds set up for personal need of these two petitioners are identical. In my view, concealment of these material facts in the subsequent release application, renders, petitioners guilty of withholding of relevant information and renders the case of bona fide need unbelievable and ingenuine. Moreover, the earlier accommodation was released in favour of all the applicants. Without pleading and showing as to how that accommodation was not found adequate to meet requirement of all the applicants therein, new release application on the same facts, in my view, rightly should not have been allowed. It is not the case where petitioners sought additional accommodation but they have sought release of accommodation in question independently, without making any reference to earlier proceedings though earlier application for release was allowed in favour of all the applicants. 10. In view thereof, I do not find any legal or otherwise error in the judgment impugned in this petition. The scope of judicial review in these matter under Article 226/227 is very limited and narrow as discussed in detail by this court in Writ Petition No. 11365 of 1998 (Jalil Ahmad Vs. 16th Additional District Judge, Kanpur Nagar and others), decided on 30.07.2012. There is nothing which may justify judicial review of orders impugned in this writ petition in the light of exposition of law, as discussed in the above judgment. 11. I, therefore, find no merit in the writ petition. Dismissed. Interim order, if any, stands vacated.