Sanjay Kumar and Ors. vs Subodh Kumar & Ors.

S.P. Mehrotra, J.

The present writ petition has been filed by the petitioners under Articles 226/227 of the Constitution of India, inter alia, praying for quashing the judgment and order dated 10th November, 2003 passed by the learned District Judge, Farrukhabad in Rent Control Appeal No. 26 of 2001.

The dispute relates to a shop, the details whereof have been 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 the annexures thereto, it appears that the respondent Nos. 1 and 2 herein, as applicant Nos. 1 and 2 filed a release application under Section 21 (1) (a) of the U.P. Act No. 13 of 1972 (in short �the Act�) in respect of the disputed shop impleading the petitioner Nos. 1, 2 and 3 as well as the respondent Nos. 3 to 11 herein as the opposite parties in the said release application.

It was, inter alia, stated in the said release application that Kishan Lal, the predecessor in interest of the said opposite parties in the release application, was the tenant of the disputed shop; and that the said Kishan Lal died on 25th March, 1994 leaving behind the said opposite parties in the said release application as his legal representatives; and that though only Sanjeev Kumar (opposite party No. 1 in the release application and petitioner No. 1 herein) was carrying on business of goldsmith, but in order to avoid complications, other legal representatives had also been impleaded as the opposite parties Nos. 2 to 12 in the said release application (petitioners 2 and 3 and respondent Nos. 3 to 11 herein); and that the respondent No. 1 herein (applicant No. 1 in the said release application) wanted to carry on Jewellary shop with allied work of goldsmith in the disputed shop so as to get rid of unemployment as also for upliftment and maintenance of the family, in asmuch as in very near future, marriages were to be performed in the family; and that besides the disputed shop, there was no other shop in the family of the respondent Nos.1 and 2 herein (applicants in the said release application) so as to carry on the said business; and that Ram Autar, father of the respondent Nos. 1 and 2 herein (applicants in the said release application) was carrying on goldsmith business in a rented shop of Ram Adhar, and that the need of the respondent No. 1 herein (applicant No. 1 in the said release application) was genuine and hard pressing; and that the comparative hardship lay in favour of the respondent Nos. 1 and 2 herein (applicant Nos. 1 and 2 in the said release application).

The said release application was registered as P.A. Case No. 3 of 1998. Copy of the said release application has been filed as Annexure1 to the writ petition.

It appears that the parties filed affidavits and documentary evidence in support of their respective cases.

By the judgment and order dated 17th April, 2001 (Annexure3 to the writ petition), the Prescribed Authority, Farrukhabad rejected the said release application filed by the respondent Nos. 1 and 2.

It was, inter alia held by the Prescribed Authority, Farrukhabad that the need of the respondent Nos. 1 and 2 herein (applicant Nos. 1 and 2 in the said release application) for the release of the disputed shop was not bona fide; and that on comparison of hardship, the opposite parties in the said release application would suffer greater hardship as compared to the respondent Nos. 1 and 2 herein (applicant Nos. 1 and 2 in the said release application), in case the disputed shop was released, while the respondent Nos. 1 and 2 herein (applicant Nos. 1 and 2 in the said release application) would not suffer hardship, in case the disputed shop was not released.

Thereupon, it appears that the respondent Nos. 1 and 2 herein (applicant Nos. 1 and 2 in the said release application) filed an appeal under Section 22 of the Act, which was registered as Rent Control Appeal No. 26 of 2001.

By the judgment and order dated 10th November, 2003 (Annexure4 to the writ petition), the learned District Judge, Farrukhabad (appellate authority) allowed the said appeal filed by the respondent Nos. 1 and 2 herein, set aside the said judgment and order dated 17th April, 2001 passed by the Prescribed Authority, and allowed the said release application filed by the respondent Nos. 1 and 2, herein under Section 21 (1) (a) of the Act for the release of the disputed shop.

Thereafter, the petitioners have filed the present writ petition seeking relief mentioned above.

I have heard Sri B.D. Mandhyan learned Counsel for the petitioners and Shri K.M. Tripathi, learned Counsel for the caveatorrespondent Nos. 1 and 2 at length.

It is submitted by Shri B.D. Mandhyan, learned Counsel for the petitioners that the Prescribed Authority on a detailed consideration of the material on record, recorded findings on the questions of bona fide need and comparative hardship in its judgment and order dated 17th April, 2001. The appellate authority set aside the said judgment and order dated 17th April, 2001 passed by the Prescribed Authority without applying its mind to the material on record and recording proper findings on the questions of bona fide need and comparative hardship.

Shri K.M. Tripathi, learned Counsel for the caveator respondent Nos. 1 and 2 submits that the appellate authority has, on a consideration of the material on record, dealt with the various findings recorded by the Prescribed Authority and the reasoning given by the Prescribed Authority in support of such findings, and has also recorded its own findings on the questions of bona fide need and comparative hardship on a consideration of the material on record. The findings do not suffer from any illegality or perversity, and no interference is called for with the said findings by this Court in exercise of its jurisdiction under Article 226 or Article 227 of the Constitution of India.

I have considered the submissions made by the learned Counsel for the parties, and perused the record.

A perusal of the judgment and order dated 10th November, 2003 passed by the appellate authority shows that the appellate authority has dealt with the various findings recorded by the Prescribed Authority including the findings on the questions of bona fide need and comparative hardship, as well as the reasoning given by the Prescribed Authority in support of such findings. Giving cogent reasons the appellate authority has set aside the findings recorded by the Prescribed Authority. Further, on a consideration of the material on record,the appellate authority has recorded its own findings on various questions including the questions of bona fide need and comparative hardship.

The findings on the questions of bona fide need and comparative hardship are findings of fact. The High Court in exercise of its writ jurisdiction under Article 226 or supervisory jurisdiction under Article 227 of the Constitution of India normally does not interfere with the findings of fact recorded by the authorities below on consideration of material on record, unless such findings suffer from any jurisdictional error or are shown to be manifestly illegal or perverse.

No jurisdictional error or illegality or perversity has been shown in the findings recorded by the appellate authority.

The High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India or its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by the authorities below on consideration of the material on record. The High Court in exercise of its writ jurisdiction under Article 226 or supervisory jurisdiction under Article 227 of the Constitution of India cannot act as an appellate Court, and it cannot like a Court of appeal reappraise the evidence and examine the findings of fact recorded by the authorities below. Merely, because, two reasonable interpretation of the evidence on record are possible, and the Prescribed Authority takes one of such views of the evidence on record while the appellate authority takes the other view of the evidence on record, the same cannot provide a ground for interference by the High Court in exercise of its jurisdiction under Article 226 or Article 227 of the Constitution of India.

Reference in this regard may be made to certain judicial decisions.

In M/s India Pipe Fitting Co. v. Fakruddin M.A. Baker and another, AIR 1978 SC 45, it was laid down by their Lordships of the Supreme Court that the conclusions of fact 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. Their Lordships of the Supreme Court opined as under (paragraphs 5, 6, 7 and 8 of the said AIR) :

�(5) The limitation of the High Court while exercising power under Article 227 of the Constitution is wellsettled. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset conclusions of facts however erroneous those may be. It is wellsettled and perhaps too late in the day to refer to the decision of the Constitution Bench of this Court in Waryam Singh v. Amarnath, 1954 SCR 565 : AIR 1954 SC 215, where the principles have been clearly laid down as follows : (at page 217 of AIR)

�This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (SB), 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.�

The same view was reiterated by another Constitution Bench of this Court in Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Assam, 1958 SCR 1240 : AIR 1958 SC 398. Even recently in Bathutmal Raichand Oswal v. Laxmibai R. Tarte, (1975)1 SCC 858 : AIR 1975 SC 1297, dealing with a litigation between a landlord and tenant under Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, this Court relying on its earlier decisions observed as follows : (at pp. 1301, 1302 of AIR):

�If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 Court be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a Court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the Legislature has not conferred a right of appeal and made the decision of the subordinate Court or Tribunal final on facts.�

(6) Whether the landlord''s requirement is bona fide and reasonable has been concurrently found by the two Courts below against the landlord by appreciating the entire evidence. After examining the reasons given by both the Courts it is not possible to hold that the conclusions are �perverse� or even that these are against the weight of evidence on record. It is a case of reasonably possible factual appreciation of the entire evidence and circumstances brought on the record.

(7) It is possible that another Court may be able to take a different view of the matter by appreciating the evidence in a different manner, if it determinedly chooses to do so. However, with respect to the learned Judge (Vaidya, J.) that will not be justice administered according to law to which Courts are committed notwithstanding dissertation, in season and out of season, about philosophies.

(8) We are clearly of opinion that there was no justification for interference in this case with the conclusion of facts, by the High Court under Article 227 of the Constitution. We are also unable to agree with, the High Court that there was anything so grossly wrong and unjust or shocking the Court''s �conscience� that it was absolutely necessary in the interest of justice for the High Court to step in under Article 227 of the Constitution. Counsel for both sides took us through the reasonings given by the High Court as well as by the Courts below and we are unable to hold that the High Court was at all correct in exercising its powers under Article 227 of the Constitution to interfere with the decisions of the Courts below. In our opinion the High Court arrogated to itself the powers of a Court of appeal, which it did not possess under the law, and has exceeded its jurisdiction under Article 227 of the Constitution.�

In Munni Lal and others v. Prescribed Authority and others, AIR 1978 SC 29, it was laid down by their Lordships of the Supreme Court 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 writ jurisdiction under Article 226 of the Constitution of India. Their Lordships of the Supreme Court observed as follows (paragraph 1 of the said AIR) :

�(1)..............There can be no doubt that a finding that the need of respondent 3, landlord was greater than that of the appellant/tenant is a finding of fact and when the High Court has refused to interfere with this finding of fact, we cannot find fault with the High Court, even if the findings were wrong on the evidence before the Court. It is not for the High Court in the exercise of its jurisdiction under Article 226 of the Constitution to reappraise the evidence and come to its own conclusion which may be different from that reached by the District Judge or the Prescribed Authority. We do not, therefore, see any reason to interfere with the decision of the High Court.�

In Ashok Kumar and others v. Sita Ram, 2001 (2) ARC 1 : 2001 (43) ALR 783 (SC), their Lordships of the Supreme Court held as follows (paragraphs 9 and 15 of the said ARC) :

�(9) The position is too wellsettled to admit of any controversy that the finding 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.

(15) 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 in 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 Surya Dev Rai v. Ram Chander Rai and others, 2003 All LJ 2057, their Lordships of the Supreme Court laid down as under (paragraph 38 of the said All LJ) :

�(38) Such like matters frequently arise before the High Court. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder :

(1) Amendment by Act No. 46 of 1999 with effect from 172002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India.

(2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in and continue to be subject to certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari under Article 226 of the Constitution is issued for correcting gross errors of jurisdiction i.e., when a subordinator Court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave in justice has occasioned thereby; the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied :

(i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of more formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annual or set aside the act, orders or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case.�

(Emphasis supplied)

The appellate authority in the said judgment and order dated 10th November, 2003, has examined the material on record and has recorded findings on the questions of bona fide need and comparative hardship in favour of the respondent Nos. 1 and 2 herein. Merely because, another view of the evidence on record is reasonably possible, the same cannot be a ground for interference by this Court in exercise of its jurisdiction under Article 226 or Article 227 of the Constitution of India.

Shri Mandhyan, learned Counsel for the petitioners then submits that the appellate authority did not consider the case of the petitioners 1 and 2 on the ground that they were the grandsons of the said Kishan Lal.

I have considered the submissions made by Shri Mandhyan, learned Counsel for the petitioners, and I find myself unable to accept the same.

A perusal of the judgment and order dated 10th November, 2003 shows that the appellate authority considered the case of various opposite parties in the said release application, and concluded that none of the ladies, who had been impleaded as the opposite parties was in a position to personally do any business in the disputed shop, nor was any of the said ladies making any effort to do business in the disputed shop; and that only Ramesh Chandra (respondent No. 4 herein), son of the said Kishan Lal, and Sanjeev Kumar (petitioner No. 1 herein), and Rajiv Kumar (petitioner No. 2 herein), grandsons of the said Kishan Lal, remained to be considered; and that the need of Subodh Kumar and Vinod Kumar (respondent Nos. 1 and 2 herein) for the disputed shop was much more pressing as compared to that of the said Sanjeev Kumar (petitioner No. 1 herein), Rajeev Kumar (petitioner No. 2 herein), and Ramesh Chandra (respondent No. 4 herein); and that in case, the said Ramesh Chandra (respondent No. 4 herein), son of the said Kishan Lal did not need the disputed shop for carrying on business, then in the circumstances, the need of Sanjeev Kumar and Rajiv Kumar (petitioner Nos. 1 and 2 herein), who were the grandsons of the said Kishan Lal, became weak as compared to the need of the said Subodh Kumar and Vinod Kumar, (respondent Nos. 1 and 2 herein); and that on comparison, the need of the said Subodh Kumar and Vinod Kumar (respondent Nos. 1 and 2 herein) was much pressing as compared to that of Sanjeev Kumar and Rajeev Kumar (petitioner Nos. 1 and 2 herein).

In view of the said findings recorded by the appellate authority, it is evident that the appellate authority has considered the case of the said Sanjeev Kumar and Rajeev Kumar (petitioner Nos. 1 and 2 herein), and the appellate authority has not discarded their case merely on the ground that they were the grandsons of the said Kishan Lal, as submitted by Shri Mandhyan, learned Counsel for the petitioners.

The submission made by Shri Mandhyan, learned Counsel for the petitioners, therefore, cannot be accepted.

Shri Mandhyan, learned Counsel for the petitioners, then submits that the Prescribed Authority disbelieved the version of the respondent Nos. 1 and 2 that their father Ram Autar was carrying on business in a tenanted shop. The appellate authority failed to appreciate the said aspect of the case, and proceeded to decide the appeal on assumption to the contrary.

I have considered the submission made by Shri Mandhyan and I find myself unable to accept the same.

A perusal of the judgment and order dated 10112003 passed by the appellate authority shows that the appellate authority held that it was established in the case before the Prescribed Authority that Ram Autar, father of the respondent Nos. 1 and 2, was doing the business of goldsmith in a tenanted shop at a monthly rent of Rs. 750 per month, and that he (Ram Autar) was being pressurised by his landlord to vacate the said tenanted shop.

Evidently, therefore, the appellate authority recorded findings contrary to the findings recorded by the Prescribed Authority in this regard in the said judgment and order dated 17 42001. The appellate authority, thus, did not act on assumptions. The submission of Shri Mandhyan to the contrary cannot be accepted.

It is further noteworthy that the Prescribed Authority in the said judgment and order dated 1742001, inter alia, held that Ram Adhar was not the landlord and owner of the shop in which the said Ram Autar (father of respondent Nos. 1 and 2) was doing business; and that the sons of Ram Adhar got the said shop under the Will dated 17111987. Hence, even according to the findings of the Prescribed Authority, neither the said Ram Autar (father of the respondent Nos. 1 and 2) nor the respondent Nos. 1 and 2 were the owner of the said shop.

There is one more aspect of the matter. As will be evident from the propositions discussed in subsequent part of this judgment, each adult member of the family has right to establish himself in an independent business/profession/occupation of his individual aptitude and choice. The respondent No. 1 herein has similar right to establish himself in an independent business, as mentioned in the release application. Therefore, the existence of business of Ram Autar (father of the respondent Nos. 1 and 2) or the availability of shop with Ram Autar for such business, could not affect the bona fide need of the respondent No. 1 herein for the release of the disputed shop so as to establish himself in an independent business, as mentioned in the release application. Hence it was not relevant as to whether the said Ram Autar (father of respondent Nos. 1 and 2) was doing business in a tenanted shop or not.

Shri Mandhyan, then submits that the Prescribed Authority in the said judgment and order dated 1742001 held that the respondent Nos. 1 and 2 were members of joint family and there were several businesses in the family. The appellate authority, the submission proceeds, acted illegally in holding that the question of availability/arrangement or otherwise of commercial buildings and residential buildings with the uncle, grantfather etc. of the respondent Nos. 1 and 2, was not the subjectmatter for consideration.

Before proceeding to deal with the said submission of Sri Mandhyan, it is necessary to consider the legal position regarding bona fide need of a member of a family, e.g., son, for settling himself in an independent business as emerges from various decisions discussed hereinafter.

In Pharma Traders v. 7thAdditional District Judge, Kanpur Nagar and others, 1992 (2) ARC 592, a learned single Judge of this Court laid down as follows (paragraph 45 of the said ARC):

�(45) There could be no manner of doubt that the release contemplated under Section 21 (1) (a) of the Act can be granted for settling in a new venture of the unengaged member of a family. There is nothing in the Act or policy underlying it, which may lead to any inference contrary to it. In the present case, the question of bona fide need of the disputed shop was the need to settle the third son of the landlady, Sanjay Kumar in an independent business. The need to set up a son in independent business has always been recognized as bona fide and genuine. Even if some members of the family of the landlord are engaged in the business that cannot be an impediment for the grant of release of the accommodation for enabling the unemployed or unengaged member of the family to start business of his own or for augmenting income as each adult member of the family is entitled to work for his own independent existence and is further entitled to chose a vocation suiting his individual aptitude, education and qualification. There could be no manner of doubt that such release can also be granted to provide a source to augment the income of a family member, so that he may lead a decent life and cater to the needs of his own growing family.� (Emphasis supplied)

In M/s Deep Chand Nem Chand Jain and others v. Prescribed Authority A.D.M. (E), Saharanpur and others, 1980 ARC 479, a learned single Judge of this Court held as follows (paragraph 16 of the said ARC) :

�(16) I am not persuaded to accept the contention of Sri S.N. Kackker, as a proposition that if some members of the family of the landlords are found engaged in any business earning profits, the building under tenancy ought not to be released for enabling the unemployed or unengaged members of the family to start business of their own in that building merely because the family as a circle or unit has some existing business engagement. In my view, each ought to be legitimately entitled to work for his own independent existence and sustenance is entitled to choose a vocation or profession suiting his individual aptitude, education or qualification capabilities and so forth. The need of such an unemployed member cannot in my judgment, be dismissed by telling him that he must follow the line or profession of the other members of the family or try to get absorbed in the business already carried on by the family. Of course, such a need of the landlords will have to be balanced against the hardship likely to be caused to the tenants from the grant of the application.�

(Emphasis supplied)

In N.S. Dutta and others v. 7th Additional District Judge Allahabad and others, 1984 (1) ARC 113, a learned single Judge of this Court opined as follows (paragraphs 14, 15 and 16 of the said ARC) :

�(14) Now there is no dispute that Harsh Tandon (now aged nearly 25) the only son of the landlordrespondent has completed his study and secured the degree of B.Com. and the Master of Business Administration from the University of Allahabad. When the petition was filed he was a student in the course of Master of Business Administration which was completed in 1979. The landlord contends that he has to settle the son and the latter is keen to run a Hotel. For the petitioners it is urged that the son might join his father in the jewellery shop and even that he is already assisting the respondent therein. Both the landlord and Harsh Tandon put in their affidavits before the Prescribed Authority specifying that the latter had absolutely no inclination to deal in ornaments and it is incorrect that he has had any concern with that business. It is also made clear that the landlord is only a partner in the Kashi Oronament House having 25% share against which there is no effective rebuttal. In believing these affidavits the authorities below cannot be said to have erred in law or to have indulged in perversity. Even if it were assumed for the sake of arguments that Harsh Tandon assists the father in that business such a stop gap arrangement in the absence of his being able immediately to start the Hotel is entirely of no consequence. Ghanshyam Das v. VIth Addl. District and Sessions Judge, Meerut and others, 1982 (U.P.) RCC 650 : 1982 (2) ARC 195. The petitioners do not dispute that the respondent has the requisite financial capacity to make heavy investment for running Hotel. It was stated that the respondent or his son have had no previous experience but that does not prevent making a beginning with a new venture.

(15) Sri Dayal, the learned Counsel, submitted that the respondent has not produced accounts to show that the income that he used to have in pre 1952 era has dwindled. The contention is that the respondent''s earning is considerable still such as does not justify the son engaging himself in this kind of business. He cited the cases reported in 1981 ARC 30, Ved Prakash v. IIIrd Addl. District Judge, Bulandshahr etc. and M/s Lalita Printers Stores v. IVth Additional District Judge and others, 1981 ARC 649, in this connection. Both these cases stand on different footing. In Ved Prakash (supra) the landlord''s case was that the sources of his income was insufficient for him to earn his livelihood, in the other too contention was that the income was not sufficient for reasonably comfortable living. The respondent in the instant case certainly does not pleaded that his son needs engagement in new business to make the two ends meet. In substance his averments amounts to this namely, that due to the abolition of zamindari, the Gold Control Act and the orders relating to this besides the restrictions placed under the Urban Land (Ceiling and Regulation) Act, 1976 his earning is not on the scale as it was in pre1952 days. The petitioner have disputed this as incorrect and maintained although without any source of personal knowledge that the respondents'' earning has not suffered any get sack. We might assume that to be so and also draw adverse infference against the respondent due to the accounts of income being not submitted. But then that does not meet the point. Despite the resources of his father and other sources of income of the family, the son is entitled to look for and engage himself in an undertaking. That would be perfectly legitimate. In M/s Deep Chand Nem Chand Jain and others v. The Prescribed Authority, A.D.M. (E), Saharanpur and others, 1980 ARC 479, brother A.N. Verma, J. observed :

�I am not persuaded to accept the contention of Sri S.N. Kakkar, as a proposition that if some members of the family of the landlords are found engaged in any business earning profits, the building under tenancy ought not be released for enabling the unemployed or unengaged members of the family to start business or their own in that building merely because the family as a circle or unit has some existing business engagement. In my view, each adult ought to legitimately entitled to work for own independent existence and sustenance. He is entitled to choose a vocation or profession suiting his individual aptitude, education or qualification, capabilities and so forth. The need of such an unemployed member cannot, in my judgment, be dismissed by telling him that he must follow the line or profession of the other members of the family or try to get absorbed in the business already carried on by the family. Of course, such a need of the landlords will have to be balanced against the hardship likely to be caused to the tenants from the grant of the application.�

(16) I am a respectful agreement with this view. Subject, of course, to the question of comparative hardship being considered that I will do latter, the respondent is within his rights in seeking to augment his income and in this there is no lack of bona fides.�

(Emphasis supplied)

In B. Balaiah v. Chandoor Lachaiah, AIR 1965 Andhra Pradesh 435, it was laid down as follow : (Paragraph 19 of the said AIR)

�(19) In the instant case what is found by the Courts below is that the nonresidential building in question belongs to the joint family, where the petitioner as father and naturally the manager of the joint Hindu family is carrying on the business. It is also found that the son who has become major and who is a member of the joint Hindu family, intends to start a business in the same city. It is not in doubt that the son intends to bona fide commence the business. Whether the business is the same which his father is carrying on or altogether a different business makes little difference. It can in any case come either under subclause (a) or subclause (b). It cannot be in doubt in the circumstances of the present case that the existing nonresidential building occupied by the father as the manager of the joint Hindu family where he is carrying on the business, is unsuitable and insufficient for the purpose of starting the business by the son.

Assuming therefore, that the nonresidential building which the petitioner is occupying is a joint family building in which alongwith the petitioner, the son also would be considered in occupation. It does not necessarily mean that the son can claim the building as his own or for that matter even the father can claim the entire building as his own. It must be realized that it belongs to all the coparceners for the time being. The son may be nationally in occupation of the nonresidential building belonging to the joint family but that cannot be a ground for rejecting the application. When it is held that he wants to start a business, it may be the same business which the petitioner is carrying on but the son''s requirement must be held to be the requirement of the father or of the joint family. It cannot be said in such case that the son is in possession of another non residential building which is his own or to the possession of which he is entitled. Admittedly he is not the exclusive owner of the nonresidential building occupied by the petitioner, but it belongs to the joint family.

It is immaterial in such a case whether the petition under Section 10 of the Act is filed by the father as a manager of the joint Hindu family or by the coparcener who bona fide intends to start a new business or intends to expand the business in the locality where the nonresidential building claimed is situated as in the instant case. As long as such requirement is bona fide, the petitioner can certainly claim for a direction for the eviction of the tenant. This interpretation of ours does not in any way go contrary to the interpretation which we have put on the second limb of that provision while considering the third requirement. We are, therefore, of opinion that a fathercummanager of a joint Hindu family, who is in occupation of a nonresidential building can validly ask for eviction under Section (3) (a) (iii) of the Act of a tenant from another nonresidential building in the same city belonging to the family, on the ground that his undivided major son requires it for carrying on his business.�

(Emphasis supplied)

In Joginder Pal v. Naval Kishore Behal, (2002)5 SCC 397, Their Lordships of the apex Court have laid down as follows (paragraphs 12, 23, 24, 32 and 33) :

�(12) In B. Balaiah v. Chandoor Lachaiah, Section 10 (3) (a) (iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 came up for consideration of the Division Bench. The landlord could seek a direction for recovery of possession of the building �for the purpose of a business which he is carrying on� or which �the landlord bona fide purposes to commence�. The Division Bench made a review of the decisions delivered by different High Courts under local rent control legislations and held that these expressions are not necessarily confined to the physical requirement of the landlord himself. Such expression ought to be construed liberally and not in a narrow way. They are susceptible to a wide meaning and include within the meaning of �own� not only the members of the landlord''s family but also those persons who are socially or economically dependent on him and whose responsibilities he has accepted. This is based on the necessity of realizing that the family in India, whether joint or separate, is the social unit of Indian civilization and it is of greater public importance to keep it together. The Division Bench concluded by holding that the expression �landlord� or �his� must include all normal emanations of the landlord so as to include his wife and children though on a strict construction of the expression, they may not be available to be included within �landlord himself.� The requirement of a major son and a coparcener in a joint Hindu family intending to start a business was deemed to be the requirement of the landlord himself. This decision was cited with approval in Bega Begum case.

(23) The preceding reference to several decisions rendered by different High Courts under different State legislations is not intended by any means to be an exhaustive survey of available case law. We have set out only by way of illustrations the decisions on which we could lay our hands in the plethora of precedents to show the meaning assigned to the words �his own� generally by the High Courts in the country dealing with different fact situations. The judicial opinion leans entirely in favour of assigning the expression �his own� requirement of the landlord a liberal, wide and useful even an extended meaning as that would advance the purpose of enacting the provision, discarding a narrow interpretation.

(24) We are of the opinion that the expression �for his own use� as occurring in Section 13 (3) (a) (ii) of the Act cannot be narrowly construed. The expression must be assigned a wider, liberal and practical meaning. The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use. In the several decided cases referred to hereinabove, we have found the pari materia provisions being interpreted so as to include the requirement of the wife, husband, sister, children including son, daughter, a widowed daughter and her son, nephew, coparceners, members of family and dependents and kith and kin in the requirement of landlord as �his� or �his own� requirement and user. Keeping in view the social or socioreligious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be the obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire : (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close interrelation or identity nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the above said tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord''s son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent. The landlord is not going to let out the premises to his son and though the son would run his office in the premises the possession would continue with the landlord and in a sense the actual occupation by the son would be the occupation by the landlord himself. It is the landlord who requires the premises for his son and in substance the user would be by the landlord for his son''s office. The case squarely falls within the scope of Section 13 (3) (a) (ii) of the Act.

(32) We have already noticed that the purpose of the Act is to restrict increase of rent and the eviction of tenants in urban areas. Still the legislature has taken care to provide grounds for eviction, one of them being the requirement of the landlord. We have to strike a balance between the need of protecting the tenants from unjustified evictions and the need for eviction when ground for eviction is one such as the requirement of the landlord. If we do not meaningfully construe the concept of requirement the provision may suffer from the risk of being branded as unreasonable, arbitrary or as placing uncalled for and unreasonable restrictions on the right of the owner to hold and use his property. We cannot place a construction on the expression �for his own use� in such a way as to deny the landlord a right to evict his tenant when he needs the accommodation for his own son to settle himself well in his life. We have to give colour and content to the expression and provide the skin of a living thought to the skeleton of the words, which the legislature has not itself chosen to define. The Indian society, its customs and requirements and the context where the provision is set in the legislation are the guides leading to acceptance of the meaning which we have chosen to assign to the words �for his own use� in Section 13 (3) (a) (ii) of the Act.

(33) Our conclusions are crystallized as under :

(i) The words �for his own use� as occurring in Section 13 (3) (a) (ii) of the East Punjab Urban Rent Restriction Act, 1949 must receive a wide liberal and useful meaning rather than a strict or narrow construction.

(ii) The expression landlord requires for �his own use�, is not confined in its meaning to actual physical user by the landlord personally. The requirement not only of the landlord himself but also of the normal �emanations� of the landlord is included therein. All the cases and circumstances in which actual physical occupation or user by someone else, would amount to occupation or user by the landlord himself, cannot be exhaustively enumerated. It will depend on a variety of factors such as interrelationship and interdependence economic or otherwise, between the landlord and such person in the background of social, socio religious and local customs and obligations of the society or region to which they belong.

(iii) The tests to be applied are : (i) whether the requirement pleaded and proved may properly be regarded as the landlord''s own requirement; and, (ii) whether on the facts and in the circumstances of a given case, actual occupation and user by a person other than the landlord would be deemed by the landlord as �his own� occupation or user. The answer would, in its turn, depend on (i) the nature and degree of relationship and/or dependence between the landlord pleading the requirement as �his own� and the person who would actually use the premises; (ii) the circumstances in which the claim arises and is put forward; and (iii) the intrinsic tenability of the claim. The Court on being satisfied of the reasonability and genuineness of claim, as distinguished from a mere ruse to get rid of the tenant, will uphold the landlord''s claim.

(iv) While casting its judicial verdict, the Court shall adopt a practical and meaningful approach guided by the realities of life.

(v) In the present case, the requirement of the landlord of the suit premises for user as office of his chartered accountant son is the requirement of landlord �for his own use� within the meaning of Section 13 (3) (a) (ii).�

(Emphasis supplied)

In Anand Babu alias Anand Swaroop v. IIIrd Additional District Judge, Jaloun at Urai and others, 2000(2) JCLE 48 (All) : 2000 (1) ARC 405 (supra), a learned single Judge of this Court laid down as follows (paragraph 7 of the said ARC) :

�(7) Learned Counsel for the respondent contended that in fact, son of the petitioner had started his business in the name �Sangam Ink Industry'''' and once that industry has been closed that indicates that he does not require the shop in question. A landlord is entitled to establish his son in independent business. The landlord may be carrying on the business but if his son want to carry on an independent business irrespective of the income of the father, he is entitled to carry on his business as held in N.S. Datta and others v. VIIth Additional District Judge, Allahabad and others, 1984 (1) ARC 113. Secondly, even assuming that his son is carrying on some business till he gets some independent business, that will not deprive his to get a separate accommodation for carrying on independent business. In Smt. Ramka Bai v. Hazari Mal Dholak Chandak, AIR 1999 SC 3089 : 199 SCFBRC 378, whether the landlady required the premises to set up one of her sons in grocery business but subsequently his son started work of contractor, it was held that his need did not extinguish merely because he started some work. His son cannot be expected to remain unemployed till the suit is finally decided.�

(Emphasis supplied)

From these decisions the following principles, amongst others, may be deduced :

(1) Every adult member of the family has right to settle himself in an independent business/profession/occupation of his individual aptitude.

(2) Existence of a family business will not debar such adult member from claiming his right to settle himself in an independent business/profession/occupation even if he is already assisting in such family business. Further, the available resources of his father and other sources of income of the family will not be a hurdle in his way in claiming his right to settle himself in an independent business/profession/occupation.

(3) Every landlord is under moral obligation to settle his son well in his life and to contribute his best to see him economically independent.

(4) It is open to the landlord to file a release application for settling his son in an independent business/profession/occupation, irrespective of the existence of a family business in which such son may be assisting the landlord.

(5) An adult member of a family, for whose need the release application is filed, is not expected to sit idle during the pendency of the release application, and it is open to him to take up an alternative assignment or work or engagement while awaiting the release of the accommodation for settling himself in an independent business/profession/occupation of his choice.

(6) The need of the landlord for settling his son in independent business will not be negatived on the ground of the existence of family business in which such son may be assisting the landlord, nor will such a need be negatived on the ground of the existing family business being a flourishing one or on the ground of alreadyavailable resources with the landlord and his family nor will such a need be negatived on the ground that the nature of the independent business in which the son is to be settled is the same as that of the existing family business nor will such a need be negatived on the ground that the son during the pendency of the release application has taken up an alternative assignment or work or engagement while awaiting the release of the accommodation for carrying on business/profession/occupation of his choice and aptitude.

(7) The Court should adopt a practical and meaningful approach guided by the realities of life and the relevant social context.

From the propositions mentioned above, it follows that each adult member of the family has right to establish himself in an independent business/profession/occupation of his individual aptitude and choice. The existence of any joint family business, or the existence of businesses of other members of joint family, or the availability of accommodations for such business/businesses, or the available resources of other members of joint family, or other sources of income of the family will not be a hurdle in the way of an adult member of the family to settle himself in an independent business/profession/occupation of his individual aptitude and choice, and to seek release of an accommodation for such business/profession/occupation.

Therefore, the respondent No. 1 herein has right to settle himself in an independent business, as mentioned in the release application, even if he is assumed to be a member of joint family. The existence of business of other family members or the availability of accommodations with other family members for their businesses, will not negative the bona fide need of the respondent No. 1 to settle himself in an independent business, as mentioned in the release application, and to seek release of the disputed shop for such business.

Hence, in my opinion, the appellate authority rightly held that the question of availability/arrangement or otherwise of commercial buildings and residential buildings with the uncle, grandfather etc. of the respondent Nos. 1 and 2, was not the subjectmatter for consideration. The submission of Shri Mandhyan in this regard, cannot, in my view, be accepted.

In view of the aforesaid discussion, I am of the opinion that this writ petition lacks merit, and the same is liable to be dismissed.

Shri Mandhyan, learned Counsel for the petitioners then submits that the release application related to nonresidential building, and as such, the appellate authority ought to have awarded compensation in view of the provisions of second proviso to Section 21 (1) (a) of the Act.

In order to appreciate the submission of Shri Mandhyan, it is necessary to reproduce Section 21 of the Act, i.e., U.P. Act No. 13 of 1972 :

�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 exits, 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 purposes 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 non residential 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]:

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, allottee or licensee].

(ii) [* * * *]

�(iii) where the landlord of any building is

(1) a serving or retired Indian Solider 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 to 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 sub section (2)], may be made notwithstanding that the tenancy has not been determined :

Provided that no such order shall be made in the case of 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, may 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 sub section (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 date the rent payable for the remainder of the building under tenancy shall be such 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 therefore, to a sum equivalent to one twelfth 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].�

Second proviso to Section 21 (1) of the Act, inter alia, provides that if any application under clause (a) of Section 21 (1) of the Act 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.

Hence, in view of the provisions of the second proviso to Section 21 (1) of the Act, the appellate authority ought to have considered the question of award of compensation to the petitioners while allowing the release application under Section 21 (1) (a) of the Act, as the said release application related to a shop i.e., nonresidential building.

Shri K.M. Tripathi, learned Counsel for the caverator respondent Nos. 1 and 2 submits that this Court may award reasonable compensation to the petitioners.

Having considered the submissions made by the learned Counsel for the parties and having regard to the facts and circumstances of the case, I am of the opinion that two years'' rent ought to be awarded as compensation to the petitioners in view of the second proviso to Section 21 (1) of the Act.

In view of the aforesaid the writ petition is dismissed. It is further directed that the respondent Nos. 1 and 2 will pay to the petitioners two years'' rent as compensation within six weeks from today.

The petitioners are granted six weeks time for vacating the disputed shop.