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Judgment
S.P. Mehrotra, J.
The present Writ Petition has been filed by the petitioners under Article 226 of the Constitution of India , interalia, praying for quashing the judgment and order dated 3.8.2002 (Annexure no. 6 to the Writ Petition) passed by the learned Civil Judge (Senior Division)/Prescribed Authority , Mirzapur and the judgment and order dated 2.12.2003 (Annexure no. 8 to the Writ Petition) passed by the learned Additional District Judge (Court No.4), Mirzapur (Appellate Authority).
The dispute relates to a shop situated in Mohalla Saddupur, Qasba Chunar, District Mirzapur, the details whereof are given in the Release Application referred to hereinafter. The said shop has hereinafter been referred to as " the disputed shop".
From a perusal of the averments made in the Writ Petition and Annexures thereto, it appears that the respondent nos. 2 to 9 (hereinafter referred as " the contesting respondents") filed a Release Application under Section 21(1)(a) of the U.P.Act No. XIII of 1972 (in short "the Act") against the petitioners for the release of the disputed shop .
It was , interalia, alleged in the Release Application that the disputed shop was bonafide required for the need of the contesting respondents and their sons; and that the contesting respondents would suffer greater hardship in case , the Release Application was rejected than would be suffered by the petitioners , in case, the Release Application was allowed. The said Release Application was registered as P.A. Case no. 13 of 1996. Copy of the said Release Application has been filed as Annexure no. 1 to the Writ Petition.
The petitioners contested the said Release Application and filed their Written Statement ,copy whereof has been filed as Annexure no. 2 to the Writ Petition.
It further appears that both the sides filed evidence and documents in support of their respective cases.
By the judgment and order dated 3.8.2002, the learned Civil Judge (Senior Division), Mirzapur/Prescribed Authority , Mirzapur allowed the said Release Application filed by the contesting respondents in respect of the disputed shop. On consideration of the evidence on record, it was, interalia , held that the need of the contesting respondents was pressing, real and bonafide; and that on comparison of hardship, the contesting respondents would suffer greater hardship , in case, the said Release Application was rejected than would be suffered by the petitioners , in case, the said Release Application was allowed. Copy of the said judgment and order dated 3.8.2002 has been filed as Annexure no. 6 to the Writ Petition.
Thereafter, the petitioners filed an Appeal under Section 22 of the Act which was registered as Rent Appeal no. 3 of 2002.
By the judgment and order dated 2.12.2003, the learned Additional District Judge , Court no. 4 , Mirzapur(Appellate Authority) dismissed the said Rent Appeal no. 3 of 2002. The Appellate Authority again considered the evidence on record , and held that the need of the contesting respondents was bonafide ; and that the comparative hardship was in favour of the contesting respondents; and that the findings recorded by the Prescribed Authority were correct and did not call for any interference. Copy of the said judgment and order dated 2.12.2003 has been filed as Annexure no. 8 to the Writ Petition.
Thereafter, the petitioners have filed the present Writ Petition seeking the reliefs mentioned above.
I have heard Sri Ratnesh Kumar Pandey, learned counsel for the petitioners and Sri H.O.K. Srivastava, learned counsel for the caveator/contesting respondents .
Sri Ratnesh Kumar Pandey, learned counsel for the petitioners submits that the findings recorded by the Authorities below on the questions of bonafide need and comparative hardship are erroneous.
Sri H.O.K.Srivastava, learned counsel for the caveator/contesting respondents submits that the Authorities below have recorded findings of fact on the questions of bonafide need and comparative hardship on consideration of the evidence on record, and the said findings being findings of fact do not call for any interference under Article 226 of the Constitution of India .
I have considered the submissions made by the learned counsel for the parties. It is well settled that the High Court in exercise of its Writ Jurisdiction under Article 226 of the Constitution of India normally does not interfere with the findings of fact recorded by the Courts/Authorities below on consideration of the material on record unless such findings are shown to be illegal or perverse. The findings on the questions of bonafide need and comparative hardship are findings of fact.
A perusal of the impugned judgments and orders shows that the Authorities below have considered in detail the evidence on record , and have recorded findings on the questions of bonafide need and comparative hardship. Such findings are findings of fact. No illegality or perversity has been shown by the learned counsel for the petitioners in the said findings recorded by the Authorities below.
No interference is, therefore, called for with the said findings.
In the circumstances, I am of opinion that the present Writ Petition lacks merit , and the same is liable to be dismissed.
Sri Pandey , learned counsel for the petitioners then submits that the present Release Application related to a shop, and as such, the Authorities below were required to award compensation to the petitioners in view of the requirements of the Second Proviso to Section 21(1) of the Act.
Section 21 of the Act provides as follows:
"21. Proceedings for release of building under occupation of tenant.(1) The Prescribed Authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely,
(a)that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purpose of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust ;
(b)that the building is in a dilapidated condition and is required for purposes of demolition and new construction :
Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be entertained on the grounds, mentioned in clause (a), unless a period of three years has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years :
Provided further that if any application under clause (a) is made in respect of any building let out exclusively for nonresidential purposes, the prescribed authority while making the order of eviction shall, after considering all relevant facts of the case, award against the landlord to the tenant an amount not exceeding two years'' rent as compensation and may, subject to rules, impose such other conditions as he thinks fit ;
Provided also that no application under clause (a) shall be entertained
(i)for the purposes of a charitable trust, the objects of which provide for discrimination in respect of its beneficiaries on the ground of religion, caste or place of birth ;
(ii) in the case of any residential building, for occupation for
business purposes ;
(iii) in the case of any residential building, against any tenant who is a member of the armed forces of the Union and in whose favour the Prescribed Authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925) has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act, or where he has died by enemy action while so serving, then against his heirs :
Provided also that the Prescribed Authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed.
Explanation.In the case of a residential building:
(i)where the tenant or any member of his family (who has been normally residing with or is wholly dependent on him) has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this subsection shall be entertained;
[Note. For the purposes of this clause a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allotee or licensee.]
(ii) [* * * *]
(iii) where the landlord of any building is
(1)a serving or retired Indian Soldier as defined in the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925), and such building was let out at any time before his retirement; or
(2)a widow of such a soldier and such building was let out at any time before the retirement or death of her husband, whichever, occurred earlier,
and such landlord needs such building for occupation by himself or the members of his family for residential purposes, then his representation that he needs the building for residential purposes for himself or the members of his family shall be deemed sufficient for the purposes of clause (a), and where such landlord owns more than one building this provision shall apply in respect of one building only.
(iv) [* * * *]
(1A) Notwithstanding anything contained in Section 2, the prescribed authority shall, on the application of a landlord in that behalf, order the eviction of a tenant from any building under tenancy, if it is satisfied that the landlord of such building was in occupation of a public building for residential purposes which he had to vacate on account of the cessation of his employment:
Provided that an application under this subsection may also be given by a landlord in occupation of such public building at any time within a period of one year before the expected date of cessation of his employment, but the order of eviction on such application shall take effect only on the date of his actual cessation.
(2) The Prescribed Authority may, on an application of the landlord in that behalf, order the eviction of a tenant from any surplus land appurtenant to the building under tenancy if it is satisfied that the land is required for constructing one or more new buildings, or for dividing it into several plots with a view to the sale thereof for purposes of construction of new buildings, and in either case, that the competent authority under any law for the time being in force has approved a plan for the said purpose.
Explanation.Where the appurtenant land including passage exceeds double the covered area of the building, excess area shall be deemed to be surplus land.
(3) No order shall be made under subsection (1) or subsection (1A) or subsection (2), except after giving to the parties concerned a reasonable opportunity of being heard :
Provided that where the tenant being a servant of Government or of any local authority or any public sector corporation does not contest the application, then a reasonable opportunity of being heard shall be given to the District Magistrate, who shall have the right to oppose the application.
(4) An order under subsection (1) or subsection (1A) or subsection (2), may be made notwithstanding that the tenancy has not been determined:
Provided that no such order shall be made in the case of a tenancy created for a fixed term by a registered lease before the expiry of such term.
(5) On an order being made under subsection (1) or subsection (1A) or subsection (2), the building or part of appurtenant land, as the case may be, shall stand released in favour of the landlord :
Provided that on the occurrence of any of the circumstances mentioned in Section 24, any building or part thereof (but not appurtenant land alone) released as above, shall , without prejudice to the provisions of Section 24, be deemed to become again subject to allotment in accordance with Chapter III.
(6) On the expiration of a period of thirty days from an order under subsection (1) or subsection (1A) or subsection (2), the tenancy of the tenant shall stand determined in its entirety or, as the case may be, in respect of any part of appurtenant land released in favour of the landlord and in the latter case, the rent payable for the remainder of the building under tenancy shall be such as may be agreed upon between the parties and in the absence of such agreement as may be determined under Section 8.
(7) Where during the pendency of an application under clause (a) of subsection (1), the landlord dies, his legal representatives shall be entitled to prosecute such application further on the basis of their own need in substitution of the need of the deceased.
(8) Nothing in clause (a) of subsection (1) shall apply to a building let out to the State Government or to a Local Authority or to a public sector corporation or to a recognized educational institution unless the Prescribed Authority is satisfied that the landlord is a person to whom clause (ii) or clause (iv) of the Explanation to subsection (1) is applicable:
Provided that in the case of such building the District Magistrate may, on the application of the landlord, enhance the monthly rent payable therefor to a sum equivalent to onetwelfth of ten percent of the market value of the building under the tenancy and the rent so enhanced shall be payable from the commencement of the month of tenancy following the date of the application:
Provided further that a similar application for further enhancement may be made after the expiration of a period of five years from the date of the last order of enhancement."
A perusal of the IInd proviso to Section 21 (1) of the Act shows that if any application under clause (a) is made in respect of "any building let out exclusively for nonresidential purposes ", the Prescribed Authority while making the order of eviction shall, after considering all relevant facts of the case, award against the landlord to the tenant " an amount not exceeding two years'' rent" as compensation and may, subject to rules, impose such other conditions as it thinks fit.
In view of the provisions of the IInd proviso to Section 21(1) of the Act, it was incumbent upon the Authorities below to consider the question of award of compensation as the Release Application related to a shop i.e. nonresidential building.
Sri H.O.K.Srivastava, learned counsel for the contesting respondents submits that reasonable compensation may be awarded to the petitioners by this Court.
Having regard to the facts and circumstances of the case, and having considered the submissions made by the learned counsel for the parties, I am of the opinion that two years'' rent be awarded as compensation to the petitioners as against the contesting respondents in view of the provisions of the Second proviso to Section 21(1) of the Act.
In view of the aforesaid discussion, the Writ Petition is dismissed. It is, however, directed that the contesting respondents will pay to the petitioners two years'' rent as compensation within six weeks from today.
Sri Ratnesh Kumar Pandey, learned counsel for the petitioners then submits that reasonable time be granted to the petitioners for vacating the disputed shop .
I have heard learned counsel for the parties on the said question also.
Having considered the facts and circumstances of the case, and the submissions made by the learned counsel for the parties, it is directed that the petitioners will not be evicted from the disputed shop till 31.7.2004 provided the petitioners give an undertaking on their joint personal affidavit within six weeks from today incorporating the following conditions:
The petitioners will vacate the disputed shop on or before 31.7.2004 and will handover its peaceful vacant possession to the contesting respondents.
The petitioners will continue to pay rent/damages in respect of the disputed shop to the contesting respondents till the date of vacating the disputed shop .
In case, the aforesaid undertaking is not given within the aforementioned period or any of the aforesaid conditions incorporated in the undertaking is violated, this order granting time to the petitioners will stand automatically vacated, and it will become open to the contesting respondents to execute the release order forthwith.