Dr. Govardhan Das Agarwal (D.) through L. Rs. vs 5th Additional District Judge and Others

S.P. Mehrotra, J.—This writ petition has been filed under Article 226 of the Constitution of India, inter alia, seeking quashing of the judgment and order dated 9.7.1985 (Annexure-9 to the writ petition) passed by the learned Vth Additional District Judge, Jhansi (Respondent No. 1) and the judgment and order dated 25.8.1984 (Annexure-7 to the writ petition) passed by the learned Prescribed Authority, Jhansi (Respondent No. 2).

The dispute relates to a shop, namely shop No. 385, situate at Chamanganj, Sipri Bazar, Jhansi. The said shop has hereinafter been referred to as "the disputed shop.

It appears that the Respondent No. 3 filed a release application u/s 21(1)(a) of the U.P. Act No. XIII of 1972 (in short ''the Act'') for the release of the disputed shop against Dr. Govardhan Das Agarwal the original Petitioner in the writ petition. The said release application was registered as Release Case No. 80 of 1982.

It was inter alia, alleged by the Respondent No. 3 in the release application that the Respondent No. 3 was the owner of the disputed shop, and the said Dr. Govardhan Das Agarwal was the tenant under the Respondent No. 3 at a monthly rent of Rs. 6, and that as a result of family settlement, the disputed shop fell to the share of the Respondent No. 3, and since then the Respondent No. 3 continued as the owner and landlord of the disputed shop. It was, inter alia, further alleged by the Respondent No. 3 that the Respondent No. 3 with his family was residing in House No. 376 which was at the back of the disputed shop and that the elder son of the Respondent No. 3 namely, Kailash Narain had passed B.A.M.S. examination, and wanted to open his Clinic ; and that the Respondent No. 3 had no other shop excepting the disputed shop where the elder son of the Respondent No. 3 could open his Clinic. It was, inter alia, further alleged by the Respondent No. 3 that the Respondent No. 3 had two other sons who were also unemployed, and for establishing them also in business, the Respondent No. 3 required the disputed shop. It was, inter alia, further alleged that the said Dr. Govardhan Das Agarwal had become old, and he had opened his Clinic in his residential house, and that the said Dr. Govardhan Das Agarwal did not require the disputed shop. The said release application has been filed as Annexure-1 to the writ petition.

The said Dr. Govardhan Das Agarwal contested the release application and filed his written statement. It was, inter alia, alleged by Dr. Govardhan Das Agarwal that shop Nos. 385 and 386, Chamanganj, Sipri Bazar, Jhansi, were in the tenancy of the said Dr. Govardhan Das Agarwal at a monthly rent of Rs. 12, and he had taken the said shop Nos. 385 and 386 on rent from Sri Mool Chandra and Mannu Lal in the year 1927 ; and that the owner and landlord of the said shop were Mool Chandra and Mannu Lal ; and that Mannu Lal and Mool Chandra had expired, and as the release application had not been filed on behalf of all the heirs of Mool Chandra and Mannu Lal, the same was not maintainable. It was, inter alia, further alleged by Dr. Govardhan Das Agarwal that he was the tenant of shop Nos. 385 and 386 and as the release application had been filed only in respect of shop No. 385, the same was not maintainable. It was denied by Dr. Govardhan Das Agarwal that there was any family settlement or that shop No. 385 fell to the share of the Respondent No. 3. It was, inter alia, further alleged by Dr. Govardhan Das Agarwal that he was running his Homoeopathic Clinic in the disputed shop, and his son Kailash Narain was helping him in running the same. It was, inter alia, further alleged that Kailash Narain son of the Respondent No. 3 was settled at Harpalpur, and he was not residing in Jhansi. A copy of the written statement has been filed as Annexure-2 to the writ petition.

The parties filed affidavits and various documents before the learned Prescribed Authority in support of their respective cases.

The learned Prescribed Authority, Jhansi (Respondent No. 2) by his said judgment and order dated 25.9.1984, allowed the said release application filed by the Respondent No. 3 in respect of the disputed shop. Direction was also given by the learned Prescribed Authority for the payment of two years'' rent as compensation to the said Dr. Govardhan Das Agarwal by the Respondent No. 3. It was, inter alia, held by the learned Prescribed Authority that the evidence on record filed by the Respondent No. 3 showed that the disputed shop fell in the share of Respondent No. 3 as a result of family settlement ; and that as the disputed shop fell to the share of Respondent No. 3, it was not necessary for the Respondent No. 3 to implead other heirs of the deceased Mool Chandra in the release application. It was, inter alia, further held by the learned Prescribed Authority that shop No. 385 and shop No. 386 were two separate shops, and there was separate tenancy in respect of each of the said shops. It was, inter alia, further held by the learned Prescribed Authority that even if it be assumed that there was one tenancy in respect of the said two shops, still it was open to the landlord to file release application in respect of a part of the tenanted accommodation according to his need. It was, inter alia, further held by the learned Prescribed Authority that since only the disputed shop fell to the share of the Respondent No. 3 as a result of family settlement, he could not file any release application in respect of shop No. 386.

As such, the learned Prescribed Authority held that the release application in respect of the disputed shop, namely, shop No. 385 was maintainable.

On a consideration of the evidence on record, the learned Prescribed Authority held that the need of the Respondent No. 3 for opening Clinic for his son in Jhansi was bona fide and genuine. It was, inter alia, held that the Respondent No. 3 had no other shop excepting the disputed shop in Jhansi where he could settle his son for running Clinic.

The learned Prescribed Authority, on a consideration of the evidence on record further held that on a comparison of hardships, the said Dr. Govardhan Das Agarwal would not suffer any hardship, while in case of rejection of the release application, the son of Respondent No. 3 would be deprived of starting his Clinic in Jhansi near his residential house. It was, inter alia, held that even after the release of the disputed shop, Dr. Govardhan Das Agarwal would still be having the aforesaid shop No. 386. Further, the said Dr. Govardhan Das Agarwal had several other shops, namely, in Sadar Bazar, Nai Basti and Chamanganj.

Against the said judgment and order dated 25.8.1984, passed by the learned Prescribed Authority, Jhansi, the said Dr. Govardhan Das Agarwal filed an appeal before the learned District Judge, Jhansi. The said appeal was registered as Rent Control Appeal No. 48 of 1984.

The learned Vth Additional District Judge, Jhansi (Respondent No. 1) by his judgment and order dated 9.7.1985 dismissed the said Rent Control Appeal No. 48 of 1984 filed by the said Dr. Govardhan Das Agarwal.

Thereafter, the said Dr. Govardhan Das Agarwal filed the present writ petition. During the pendency of this writ petition, the said Dr. Govardhan Das Agarwal expired, and his heirs and legal representatives have been brought on record as Petitioner No. 1/1 to 1/5 pursuant to the order of this Court dated 24.2.1995.

I have heard Sri Hari Om, learned Counsel for the Petitioners and Sri Sharad Malaviya, learned Counsel for the Respondent No. 3.

Sri Hari Om, learned Counsel for the Petitioners submitted that the learned Prescribed Authority had awarded costs against the Respondent No. 3 for seeking adjournment on various dates as detailed in paragraph 5 of the writ petition, but the said costs were not paid by the Respondent No. 3. As such, the learned Counsel contends, the release application filed by the Respondent No. 3 was not maintainable.

Sri Sharad Malaviya, learned Counsel for Respondent No. 3, in reply to the said submission, referred to paragraph 7 of the counter-affidavit filed on behalf of the Respondent No. 3 in this writ petition. In paragraph 7 of the said counter-affidavit, it was, inter alia, stated that "on the date of hearing the deponent had paid the entire cost imposed on him, to the tenant/Petitioner''s counsel before the Court. Sri Malviya, learned Counsel further referred to paragraph 5 of the rejoinder-affidavit which contains reply to paragraph 7 of the said counter-affidavit. Sri Malviya, learned Counsel submitted that in paragraph 5 of the rejoinder-affidavit, the said assertions made in paragraph 7 of the counter-affidavit have not been specifically denied.

Having considered the rival submissions of the learned Counsel, I am of the opinion that the first submission made by the learned Counsel for the Petitioners cannot be accepted. In paragraph 7 of the counter-affidavit filed in this writ petition, it was specifically stated that the entire cost referred to in paragraph 5 of the writ petition had been paid to the learned Counsel for the tenant/Petitioner before the Court. There is no specific denial of the said assertions in the corresponding paragraph 5 of the rejoinder-affidavit filed on behalf of the Petitioners in this writ petition. Thus, it is evident that cost imposed on various dates as mentioned in paragraph 5 of the writ petition had been paid to the learned Counsel for tenant/Petitioner.

Thus, the first submission made by the learned Counsel for the Petitioners fails.

Learned Counsel for the Petitioners next contended that as the release application had been filed in respect of only a part of the tenanted accommodation, the same was not maintainable. This contention of the learned Counsel for the Petitioners is not well-founded, and the same cannot be accepted. The authorities below have recorded findings that as a result of family settlement, the disputed shop, namely, shop No. 385 only fell to the share of the Respondent No. 3. The finding has also been recorded that there was separate tenancy in respect of each of the said shops, namely, shop Nos. 385 and 386. In view of the said findings of fact recorded by the authorities below, the release application filed by the Respondent No. 3 for the release of only the disputed shop, namely, shop No. 385 was maintainable. As shop No. 386 did not fall to the share of the Respondent No. 3, there was no occasion for the Respondent No. 3 to move any release application in respect of the same.

Even otherwise, Sub-section (1) of Section 21 of the Act, in so far as is relevant provides that "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....

This provision clearly shows that the Prescribed Authority may order for release of the entire tenanted accommodation or any specified part thereof. Hence, it follows that it is open to the landlord to move release application for the release of the entire tenanted accommodation or any specified part thereof. In Smt. Chanda Devi and Anr. v.XIIth Additional District Judge, Kanpur and Ors. 1983 ARC 825, it has been laid down as follows (paragraph 4 of the ARC) : "4. ... Building is defined in Sub-clause (i) of Section 2 to mean a residential or non-residential roofed structure. Section 21 entitles a landlord to file an application for eviction of a tenant from the building under tenancy or any specified portion thereof. A landlord could file application for release of entire building or any specified portion, irrespective of whether the building was used for residential or business purposes. But once an application for release is made either of the entire building or any specified portion, the question is whether the authorities could release only a portion. In respect of residential building there is a specific provision in Clause (d) of Sub-rule (1) of Rule 16 empowering authorities to release only a part if the need of landlord was satisfied by that. But Sub-rule (1) has been confined to residential building only. It does not apply to non-residential building, let out for purposes of any business. Argument of a learned Counsel for opposite party that use of word ''also'' in Sub-rule (d) indicates that circumstances mentioned under it are not exhaustive, therefore, the guideline provided in Sub-rule (1) for residential building could be taken into account while comparing hardship of commercial accommodation, cannot be accepted as word ''also'' has been used in Sub-rule (1) as well. Comparison of hardship of landlord and tenant cannot be regulated with mathematical precision. It has to vary from case to case. But to serve as guideline various factors have been enumerated in the sub-rules (1) and (2). They, obviously, are not exhaustive. That is why the word ''also'' has been used in both sub-rules.

Learned Counsel for the Petitioners then tried to assail the findings of fact recorded by the authorities below on the question of bona fide need and comparative hardship. However, no illegality or perversity has been pointed out by the learned Counsel for the Petitioners in the findings recorded by the authorities below on the said questions. The authorities below have considered the entire material on record and have recorded findings on the questions of bona fide need and comparative hardships. The said findings are findings of fact. No illegality or perversity having been pointed out in the said findings, no interference is called for with the same in exercise of writ jurisdiction under Article 226 of the Constitution of India.

In India Pipe Fitting Co. Vs. Fakruddin M.A. Baker and Another, , the Apex Court held that the conclusions of facts cannot be interfered with by the High Court under Article 227 of the Constitution of India. The findings on the question of bona fide requirement of the landlord recorded by the courts below by appreciating the entire evidence, cannot be interfered with by the High Court under Article 227 of the Constitution of India.

Again, in Muni Lal and Others Vs. Prescribed Authority and Others, , the Apex Court laid down that the finding on the question of comparative hardship of the landlord was finding of fact, and the same cannot be interfered with by the High Court in the exercise of its jurisdiction under Article 226 of the Constitution of India.

In Ashok Kumar and Ors. v. Sita Ram 2001 (3) AWC 1997 (SC): 2001 (2) ARC 1 , the Apex Court laid down as follows (Paragraphs 9 and 15 of the said ARC) :

The position is too well-settled to admit of any controversy that the findings of fact recorded by the final Court of fact should not ordinarily be interfered with by the High Court in exercise of writ jurisdiction unless the Court is satisfied that the finding is vitiated by manifest error of law or is patently perverse. The High Court should not interfere with a finding of fact simply because it feels persuaded to take a different view on the material on record.

The question that remains to be considered is whether the High Court in exercise of writ jurisdiction was justified in setting aside the order of the Appellate Authority. The order passed by the Appellate Authority did not suffer from any serious illegality, nor can it be said to have taken a view of the matter which no reasonable person was likely to take. In that view of the matter there was no justification for the High Court to interfere with the order in exercise of its writ jurisdiction. In a matter like the present case where orders passed by the Statutory Authority vested with power to act quasi-judicially is challenged before the High Court, the role of the Court is supervisory and corrective. In exercise of such jurisdiction the High Court is not expected to interfere with the final order passed by the Statutory Authority unless the order suffers from manifest error and if it is allowed to stand it would amount to perpetuation of grave injustice. The Court should bear in mind that it is not acting as yet another appellate court in the matter. We are constrained to observe that in the present case the High Court has failed to keep the salutary principles in mind while deciding the case.

In view of the aforesaid discussion, the writ petition lacks merit and the same is liable to be dismissed. The writ petition is accordingly dismissed. However, in the facts and circumstances of the case, there will be no order as to costs.

Learned Counsel for the Petitioners prays that some time be granted to the Petitioners for vacating the disputed shop namely, shop No. 385.

The Petitioners are granted three months'' time from today for vacating the disputed shop provided an undertaking is given by the Petitioners Nos. 1/1 to 1/5 by filing a joint affidavit before the learned Prescribed Authority, Jhansi, within a period of six weeks from today incorporating the following conditions :

(1) The Petitioners will hand over peaceful, vacant possession of the disputed shop to the Respondent No. 3 on or before 6th November 2002.

(2) The Petitioners will continue to pay rent in respect of the disputed shop to the Respondent No. 3 till the date of vacating the disputed shop.

In case the aforesaid undertaking is not given within the time granted or any of the aforesaid conditions to be incorporated in the undertaking is violated, this order granting time to the Petitioners would stand automatically vacated, and it will be open to the Respondent No. 3 to execute the order of release against the Petitioners.

Order accordingly.