Kamal Kumar vs Additional District Judge

B.S. Verma, J.—By means of this writ petition, the Petitioner has sought a writ in the nature of certiorari quashing the judgment and order dated 30-11-2005 (Annexure No. 5 to the writ petition), passed by Additional District Judge/5th Fast Track Court, Dehradun in Rent Control Appeal No. 95 of 1998, Jagdish Prasad v. Kamal Kumar, whereby the appeal of the landlord was allowed and the order of the Prescribed Authority/1st Additional Civil Judge (Senior Division) Dehradun (for short the Prescribed Authority) was set aside and the release application moved by the landlord-Respondent u/s 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act) has been allowed.

During the tendency of this writ petition, the Respondent No. 2-Jagdish Prasad had died and he has been substituted by his legal heirs (sons) Ravi Shankar and Om Shankar in the writ petition.

Relevant facts, giving rise to the present writ petition, in brief, are that the landlord-applicant Jagdish Prasad moved an application for release of the shop in question u/s 21(1)(a) of the Act on the ground of bona fide need to settle his two educated unemployed sons in the business independently.

The release application was resisted by the tenant-Petitioner by filing his objections inter alia on the ground that the need of the landlord is not bona fide. It was also asserted that the sons of the landlord are already settled in business with the landlord. The Petitioner has five school going children and the shop in question is the only source of his livelihood. If the release application is allowed, the Petitioner would suffer greater hardship.

Both the parties led evidence in the case. The learned Prescribed Authority made spot inspection of the shop in question and heard both the parties. Ultimately by order dated 8-5-1998 has held that the landlord has no bona fide need for the shop in question. On the point of comparative hardship, it was held that the tenant-Petitioner would suffer greater hardship if the application for release is allowed. Consequently, the release application was dismissed.

Aggrieved, the landlord Jagdish Prasad preferred an appeal before the appellate Court. The appellate Court after hearing both the parties and on perusal of the evidence led by the parties, by a detailed order dated 30-11-2005 (Annexure-5 to the petition), has allowed the appeal, set aside the order of the Prescribed Authority and has allowed the release application. The Petitioner-tenant has been directed to vacate the shop in question within one month.

Aggrieved by the said order dated 30-11-2005, the tenant-Petitioner has preferred this writ petition.

The main ground of challenge raised in this writ petition is that the bona fide need of the landlord was not established on record, therefore, the finding of the appellate court is perverse.

On behalf of the Respondent, counter affidavit has been filed wherein it has been stated that the tenant has not made any efforts to search for alternative accommodation, therefore, his comparative hardship cannot be considered. It has also been stated that the Appellate Court after considering the entire facts and evidence on record and after considering the legal aspect has allowed the appeal. On behalf of the Respondent-landlords, supplementary counter affidavit has been filed to show the changed circumstances and it has been stated therein that during the tendency of the writ petition 2/2 Sri Omkar Shankar was compelled to vacate the rented shop No. 22/1 Bodyguard Rajpur Road, Dehradun and the possession of the same has been delivered to the landlord concerned. It has also been stated that during the tendency of proceeding, said Om Shankar got married and he is facing hardship for want of suitable accommodation and that the shop in question is lying vacant and locked since long.

On behalf of the Petitioner, rejoinder affidavit has been filed and it has been stated that the shop in question is not lying vacant rather the Petitioner is running his business therein and that the need of the Respondent is artificial. Hence the release application was rightly rejected by the Prescribed Authority.

I have heard learned Counsel for the parties and perused the entire material placed on record.

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 miss-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 has 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.

Learned Counsel for the Petitioner has contended that the finding recorded by the appellate Court on the bona fide need is not based on appraisal of evidence and is a cryptic one.

In reply, the learned Counsel for the Respondent-landlord has urged that the finding on the issue of bona fide need is a finding of fact and the evidence cannot be reassessed in writ jurisdiction.

17.In the case at hand, the appellate court have recorded independent findings of the fact that the need of the landlord-Respondent is bona fide and that no greater hardship would be caused to the tenant-Petitioner if an order of eviction would be passed against him. 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.

In the case at hand, from a perusal of the judgment and order passed by the Appellate Court, it reveals that the entire controversy on the point of bona fide need and comparative hardship has been elaborately dealt with by the Appellate Court at pages 8, 9, 10, 11 and 12 of the judgment and the findings recorded by the appellate court are fully based on appraisal of evidence. Moreover, it appears that from the year 1996 when the release application was moved before the Prescribed Authority till the date of order of the appellate court on 30-11-2005, a period of ten years have elapsed, but the Petitioner appears to have not made any effort to search alternative accommodation.

For the reasons and discussion above, I do not find any perversity or manifest error of law in the impugned order. The writ petition being devoid of merit is liable to be dismissed outright.

At this stage, the learned Counsel for the Petitioner has submitted that the Petitioner is ready and willing to vacate the shop in question provided that one-year time may be granted to him to vacate the premises.

The writ petition is dismissed. Costs easy. However, in order to do complete justice, one year time is granted to the Petitioner to vacate the shop in question and to deliver its vacant possession to the landlords, provided the Petitioner furnishes a written undertaking to that effect before the Prescribed Authority within a period of eight weeks from today. The Petitioner shall pay regular rent every month by the 7th day of the next month for each previous month. In case of default, as directed above, the landlords shall be at liberty to get the shop in question vacated in accordance with law.

Interim order dated 21-12-2005 is vacated.