Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 959 (ALL)

Seraj Ahmad v. Afzal Ahmad

2014-03-26

SUDHIR AGARWAL

body2014
JUDGMENT Sudhir Agarwal, J.: - Heard Sri I.R. Singh, Advocate, holding brief of Sri Arvind Upadhyay, learned counsel for petitioners and perused the record. 2. The writ petition is directed against the judgment passed by Prescribed Authority under Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") releasing shop in question in favour of respondent-landlord by recording a finding in favour of landlord that his need is genuine and bona fide and comparative hardship also lies in his favour. The aforesaid judgment has also been confirmed by Appellate Court by dismissing petitioners' appeal vide judgment dated 15.1.2014 concurring with the findings recorded by Prescribed Authority on the aforesaid aspects. 3. Sri Singh, learned counsel appearing for petitioners, contended that accommodation in question is in tenancy of petitioner and predecessors in interest for the last almost 50 years, but this relevant aspect was not considered at the time of considering comparative hardship. He also contended that there is no other accommodation available to petitioners to shift his business and, this aspect has also not been considered by Court below. 4. In my view, the argument advanced by learned counsel for petitioners lacks substance. It is not the case of petitioners that landlord has any alternative accommodation or that his need was not genuine. The concurrent findings of fact recorded on this aspect also could not be shown perverse. In these circumstances, the claim of landlord has to prevail over tenants' claim. 5. Section 21 of Act, 1972 confers a right on landlord to get a building, which is under occupation of a tenant, released on the ground specified therein and this includes bona fide requirement of building by himself or members of his family for whose benefit he held it. The right of landlord to judge his requirement and live according to his own wisdom and discretion cannot be controlled by third person, like tenant, or, even the Court. The right of landlord to judge his requirement and live according to his own wisdom and discretion cannot be controlled by third person, like tenant, or, even the Court. The purpose of the Court is to protect the tenant from unjustified eviction or abrupt increase of rent etc., but, simultaneously, if the landlord has come with the case of his own personal need, it has to be judged disparately, fairly and independently, so that a landlord, coming with a bona fide case, must be able to use his own premises for the purpose he has disclosed before the Court, if it is found bona fide and genuine. The issue of hardship between the two is an integral part of looking into the bona fide and genuity of personal need set up by landlord. 6. It cannot be disputed that it is the privilege of landlord to determine his way of living and accommodate himself and his family according to his status, requirement etc. He cannot be compelled to live in a particular manner either by tenant or any other agency. Even the Court of law must not dictate such terms to a landlord to live in a particular manner and adjust his needs accordingly. 7. In Prativa Devi Vs. T.V. Krishnan (1996) 5 SCC 353 , the Apex Court said that the landlord is the best judge of his residential requirement. He has complete freedom in the matter. It is no concern of the courts to dictate to the landlord how and in what manner he should live or to prescribe for him a residential standard of their own. Therein the Court considered the age of landlord and doubted his need on the ground that in such advanced age, he would be requiring somebody to take care and therefore should live with other family members instead of alone. The Apex Court observed that High Court is rather solicitous about the age of the appellant and thinks that because of her age she needs to be looked after. That is a lookout of landlord and not of High Court. The Apex Court disapproved the approach of High Court and observed: "We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property." 8. Similarly, in R. C. Tamrakar Vs. That is a lookout of landlord and not of High Court. The Apex Court disapproved the approach of High Court and observed: "We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property." 8. Similarly, in R. C. Tamrakar Vs. Nidi Lekha AIR 2001 SC 3806 the Court in para 10 and 11 said: "10. Law is well settled that it is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. In deciding the question of the bonafide requirement, it is unnecessary to make an endeavor as to how else landlord could have adjusted himself. 11. Though the son of the landlady is a doctor and has constructed his own house, the landlady wants to stay in the suit premises. It is not the case of the tenant that landlady has any other suitable accommodation. Therefore, the High Court rightly set aside the finding of the First Appellate Court holding that landlady could not be compelled to reside with her son as her case was that she wanted to stay by herself in the suit premises because of her health condition and the climatic condition of that place suit her." 9. The above referred authorities though, were in the context of residential accommodation, but the principle that the landlord is the master of arranging his own affairs applies not only in respect to his residential accommodation but also the manner and method etc. of earning his livelihood for maintaining himself and family. 10. In Ragavendra Kumar Vs. Firm Prem Machinary & Co. (2000) 1 SCC 679 , the Court said that landlord is best judge of his requirement for his residential or business purpose and he has complete freedom in the matter. 11. Further, in order to attract Section 21 (1) (a) of Act, 1972, the landlord must show it is not a mere desire but a need, which is an outcome of good faith also. The need must be bona fide, genuine, honest and conceived in good faith as observed in T. Sivasubramaniam & others Vs. Kasinath Pujari and others JT 1999 (6) SC 405. 12. In Akhileshwar Kumar Vs. The need must be bona fide, genuine, honest and conceived in good faith as observed in T. Sivasubramaniam & others Vs. Kasinath Pujari and others JT 1999 (6) SC 405. 12. In Akhileshwar Kumar Vs. Mustaqim AIR 2003 SC 532 , the Court observed, where it is evident from record that the son of landlord is idle, without any adequate commercial activity available to him so as to gainfully employ him and where educated unemployed son, even if provisionally assisting his father, that would not mean that he should not or cannot start his own independent business and if a commercial accommodation is required for the said purpose, it cannot be be said that the need is not genuine and bona fide. 13. In Sushila Vs. II Addl. District Judge, Banda and others 2003 (1) ARC 256, the Court said that a married and major son cannot be compelled to join his father and do work with his running business but his need for settling an independent business has to be sustained. 14. In Yadvendra Arya and another Vs. Mukesh Kumar Verma 2008 (1) ARC 322, the Court reiterated that the landlord is best judge of his requirement and has got every right to file release application for settling his unemployed son in an independent business and son cannot be forcibly asked to be accommodated with father's business. Mere fact that landlord is a rich and affluent person will make no difference as held in Shamshad Ahmad and others Vs. Tilak Raj Bajaj and others 2008 (3) ARC 532. 15. Moreover, both the Courts below have recorded concurrent findings of fact and unless these findings are shown perverse or contrary to record resulting in grave injustice to petitioner, in writ jurisdiction under Article 226/227, this Court exercising restricted and narrow jurisdiction would not be justified in interfering with the same. 16. In supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority. 17. 16. In supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority. 17. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes. 18. In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 the Court said: "Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere." 19. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 : "This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193 , to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors". 20. In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38 the Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice. 21. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895 ; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746 ; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896 ; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576 ; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300 ; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749 ; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47 ). 22. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341 ; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70 ; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171 ; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr., (1999) 2 SCC 143 ). 23. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521 ). 24. In Ajaib Singh Vs. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521 ). 24. In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82 , the Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution. 25. In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, AIR 2000 SC 931 , the Court said that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse. 26. In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245 , the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere. 27. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472 , the Court observed that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below. 28. Similar view has been reiterated in State of Maharashtra Vs. Milind & ors., (2001) 1 SCC 4 ; Extrella Rubber Vs. Dass Estate (P) Ltd., (2001) 8 SCC 97 ; and Omeph Mathai & ors. Vs. 28. Similar view has been reiterated in State of Maharashtra Vs. Milind & ors., (2001) 1 SCC 4 ; Extrella Rubber Vs. Dass Estate (P) Ltd., (2001) 8 SCC 97 ; and Omeph Mathai & ors. Vs. M. Abdul Khader, (2002) 1 SCC 319 . 29. In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675 , it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby. 30. In Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, the Court said: "...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions." 31. In Shalini Shyam Shetty and another Vs. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions." 31. In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329 , the Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650. 32. In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432 , Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction. 33. In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772 , the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. 34. In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244 , Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227. 35. In view thereof, I find no justification warranting interference with the orders impugned in this writ petition. 36. Dismissed.