Anup Kumar and Anurag Kumar vs Jagdish Prasad and Arun Kumar

B.S. Verma, J.

(Stay Application No. 5159 of 2011)

Learned Counsel for both the parties are ready to argue the writ petition finally today at the admission stage without counter version of the Respondents.

Heard learned Counsel for the parties and perused the record.

By means of this writ petition, the Petitioners have sought a writ in the nature of certiorari quashing the impugned order dated 17-3-2007 passed by the Prescribed Authority/1st Additional Civil Judge (Senior Division) Dehradun (for short the Prescribed Authority) and the judgment and order dated 4-5-2011 passed by the III Additional District Judge, Dehradun (Annexure Nos. 3 and 6 to the petition). By the order dated 17-3-2007, the learned Prescribed Authority has allowed the release application of the Respondent No. 1 moved u/s 21(1)(a) of the U.P. Act No. 13 of 1972 (for short the Act) and directed the Petitioners to vacate the shop in question within a period of thirty days and to deliver vacant possession to the applicant-Respondent No. 1. By the order dated 4-5-2011, the appellate court modified the order passed by the Prescribed Authority to the extent that the Petitioner-Appellants shall handover peaceful vacant possession of the tenanted premises to the Respondent within one month and the Respondent No. 1/landlord is directed to pay the compensation equivalent to two years'' rent to the Petitioners.

Brief facts giving rise to the present writ petition are that the Respondent No. 1-landlord Jagdish Prasad moved an application for release before the Prescribed Authority u/s 21(1)(a) of the Act on the ground of his bona fide and genuine need alleging therein that the shop in question is required by the landlord to engage his son in the business independently and to develop the business.

The application for release was resisted by the Petitioners, who admitted the tenancy of Anup Kumar and Anurag because the tenancy was in favour of firm M/s Harsimal Bijendra Kumar. Opposite Party No. 2 Arun Kumar is not the tenant in the disputed shop because he separated himself from the family during the lifetime of his father. The bona fide need of the landlord-Respondent No. 1 was questioned. It has been asserted that the son of the applicant-landlord looks-after the business of his father. It was also asserted that besides the shop in question, the applicant has four other godowns, situated behind the shop and they are being given on rent. The applicant is aged about 70 years and is a heart patient and is unable to do business independently. In addition to above, the applicant and his family also had property No. 15/19 Hanuman Chowk, which was sold out through three different sale-deeds on 13-8-1987, which included a vacant shop and that the answering opposite party has no independent accommodation to shift his business. Both the parties led evidence before the Prescribed Authority.

The learned Prescribed Authority after hearing the learned Counsel for both the parties and on perusal of the evidence has come to the conclusion that the applicant and his son are doing their separate business while the applicant-landlord has only one shop. The Prescribed Authority has rejected the contention of the opposite parties that the landlord-applicant is a heart patient and unable to do business. It has been held applicant has bona fide need for the shop in question. On the point of comparative hardship, the Prescribed Authority has come to the conclusion that the tenant-opposite parties has alternative accommodation bearing property No. 58 Ajeet Prasad Marg Dehradun and the balance of comparative hardship tilted in favour of the applicant. Consequently, the application for release moved by the Respondent No. 1 herein was allowed by order dated 17-3-2007.

Aggrieved by the order passed by the Prescribed Authority, both the Petitioners have filed appeal, which was registered as Rent Control Appeal No. 42 of 2007 before the District Judge Dehradun, which was transferred to the court of III Additional District Judge, Dehradun for hearing and disposal.

The appellate court after hearing counsel for both the parties and after perusing the evidence has recorded its independent finding on the point of bona fide need and comparative hardship. The learned appellate court after elaborately dealing with the evidence led by both the parties have recorded its finding on the point of bona fide need of the landlord-Respondent No. 1 and has held that the Respondent No. 1 has bona fide need for the shop in question to engage his son in the business. On the point of comparative hardship, the learned appellate court has held that the Petitioners-Appellants have not made any effort to search alternative shop during the period of pendency of release application and the appeal. Accordingly, the point of comparative hardship was decided in favour of the landlord-Respondent No. 1. The learned appellate court while dismissing the appeal by order dated 4-5-2011 has awarded compensation equivalent to two years'' rent to the Petitioners, which gave rise to the present writ petition.

At the outset it may be mentioned that this Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or reevaluate 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.

In the case Ranjeet Singh Vs. Ravi Prakash, , 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 reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal."

The Apex Court in the case of Shamshad Ahmad and Others Vs. Tilak Raj Bajaj (Deceased) through LRs. and Others, while dealing with Articles 226 and 227 of the Constitution of India as observed as under:

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.

The main ground of challenge raised in this writ petition is that the learned appellate Court has not decided the question of passage to the Kothari, which is in possession of the Petitioners for a long time and for which no application for release has been moved before the courts below.

In reply, the learned Counsel for the Respondent No. 1 has in reply submitted that the learned appellate court in paragraph No. 22 of the impugned judgment has specifically dealt with the contention of the Petitioners. The learned appellate court has categorically observed that the Petitioners have never raised any plea before the Prescribed Authority in the written statement filed in the case. It has also been observed that the landlord by application (paper No. 152-A) proposed a passage leading to the alleged Kothari, which was not agreed to by the Petitioners before the appellate Court and the proposal was withdrawn by the landlord and the application dated 2-12-2010 was disposed of by the appellate court.

I have pondered over this matter and in my view, this issue has been elaborately dealt with by the learned appellate court at pages 21-22 of the impugned judgment, therefore, the contention raised by the learned Counsel for the Petitioners is not tenable.

Admittedly, the application for release was moved by the Respondent No. 1 before the Prescribed Authority in the year 2001. The objection/written statement against the application was filed as early as 15-3-2001 by the Petitioners. The application for release was allowed by the Prescribed Authority by order dated 17-3-2007. The appeal preferred against the order dated 17-3-2007 has been dismissed by order dated 4-5-2011. Thus, it is obvious that a period of ten years have elapsed.

I have also perused the impugned judgment and orders passed by the two courts below. From a bare perusal of the orders impugned, it is obvious that the Prescribed Authority as well as the learned appellate court both have recorded independent findings on the points of bona fide need and comparative hardship. In my view the findings recorded by the courts below are fully based on appraisal of evidence led by the parties. Both the courts below have passed detailed orders on the points of bona fide need and comparative hardship. Moreover, the appellate court in the impugned order has observed that since the filing of release application till the date of decision in appeal a period of more than 10 years has elapsed but there is nothing on record to indicate that the Petitioners have ever made any effort to search for alternate accommodation/shop.

In the case at hand, the Prescribed Authority and the first appellate court have recorded independent findings of the fact that the need of the landlord-Respondent No. 1 is bona fide and that no greater hardship would be caused to the tenant-Petitioners if an order of eviction would be passed against them. In the case of Shamshad Ahmad and Ors. v. Tilak Raj Bajaj (Deceased) through L.RS. and Ors. (supra), the Apex Court has held in paragraph 36 as under:

A finding as to bona fide requirement for doing readymade garments'' business by Matloob Ahmad has been expressly recorded by the appellate authority. The said finding was a finding of fact. Neither could it have been interfered with, nor has it been set aside by the writ court. In view of the above position, the High Court was wrong in allowing the writ petition.

In that case, the Apex Court in paragraph No. 47 has further observed as under:

In the case on hand, a finding had been recorded by the appellate authority that requirement of the landlord for doing business by Matloob Ahmad, husband of Applicant 6 was bona fide and genuine. Thus, the requirement of the landlords was established. The said finding stands today. The High Court by a cryptic order, without disturbing the said finding which was based on appreciation of evidence, set aside the order of eviction against the tenant, inter alia, observing that Matloob Ahmad was a "retired person" and was getting pension and was living in his village at a distance of five kilometers from Dehradun. 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 the case of Ganga Devi Vs. Distt. Judge, Nainital and Others, , the Apex Court had an occasion to consider the provision of Rule 16(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules 1972, wherein the Apex Court relying on the case of Bhagwan Das Vs. Smt. Jiley Kaur and another, has observed in paragraph No. 23 as under:

In Bhagwan Dass v. Jiley Kaur this Court distinguishing the earlier decision of this Court in Bishan Chand v. ADJ stated the law in the following terms: (Bhagwan Dass case, SCC p. 303, para 7)

.... It was also pointed out in this case that the provisions of Rule 16(2) of the Act (sic Rules) had not been considered at all. In our opinion, the said decision is clearly distinguishable. Firstly, the instant case was one where there was an outweighing circumstance in favour of the landlord, namely, that two of her sons after completing their education were unemployed and wanted to carry on business for self-employment. Secondly, as already seen above, it was not a case where the provisions of Rule 16(2) can be said to have been ignored by the District Judge. Thirdly, it was a case where there was even this additional circumstance that the Appellant had brought no material on record to indicate that at any time during the pendency of this long drawn out litigation he made any attempt to seek an alternative accommodation and was unable to get it

The "thirdly" referred to therein applies to the fact of this case.

I have perused the case-law of Ganga Devi (supra) vis-�-vis the facts of the case at hand. I find that in the case at hand, there is a finding of fact that the landlord-Respondent No. 1 wants to get his son settled in the business independently. There is also concurrent finding of fact that during the pendency of long drawn out litigation, the Petitioners have not made any attempt to seek an alternative accommodation and were unable to get it. From a perusal of the impugned orders it is obvious that the applicant-Respondent No. 1 has established his bona fide need for the shop in question. The learned appellate court has also observed that the Petitioners have not made any attempt to search alternative shop during the period of long drawn litigation.

In view of the discussion above, I am of the considered view that the impugned orders passed by the two courts below do not suffer from any perversity or manifest error of law. The impugned orders do not call for any interference by this Court in writ jurisdiction. The writ petition being devoid of merit deserves to be dismissed outright at the threshold.

During the course of arguments, learned Counsel for the Petitioners on the basis of instructions received from his clients has submitted that considering the peculiar business conditions of the Petitioners, a reasonable period of ten months may be granted to the Petitioners to vacate the disputed shop.

Considering the submissions of the learned Counsel for the Petitioners, I am of the view that the ends of justice would be served if the Petitioner is granted period of ten months to vacate the shop in question, provided the Petitioners furnish a written undertaking before the Prescribed Authority to the effect that they shall vacate the shop in question before the expiry of the aforesaid period and shall deliver its vacant possession to Respondent No. 1-Jagdish Prasad.

The writ petition is dismissed. No order as to costs. However, the Petitioners are granted ten months'' time to vacate the shop in question and to handover its vacant and peaceful possession to the Respondent No. 1 before expiry of that period, provided the Petitioners give an undertaking to that effect in writing before the Prescribed Authority within a period of six weeks from today. The Petitioners shall be entitled to compensation equivalent to two years'' rent from the Respondent No. 1-Jagdish Prasad, as directed by the appellate court. The Petitioners need not pay the rent to the Respondent No. 1 for the aforesaid period of ten months, which shall be treated towards part payment of compensation. In case written undertaking is not furnished, as directed above, the landlord-Respondent No. 1 would be at liberty to get the shop in question vacated in accordance with law.

All pending applications stand disposed of.