Shreekrishan Garg vs Rajendra Singh & Ors.

S.P. Mehrotra, J.—Supplementary affidavit filed today on behalf of the petitioner he taken on record.

This writ petition has been filed by the petitioner interalia, praying for quashing the judgment and order dated 2910 1999 (Annexure 6 to the writ petition) passed by the Prescribed Authority and the judgment and order dated 12122002 (Annexure 7 to the writ petition) passed by the learned Additional District & Sessions Judge, Court No. 9, Agra (Appellate Authority).

The dispute relates to a shop bearing building No. 23 Baldeoganj, Lohamdni Agra 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 the allegations made in the writ petition, it appears that Amba Prasad predecessorininterest of the Respondent Nos. 1 to 6, filed a release application under Section 21 (1) (a) of the U.P. Act No. 13 of 1972 (in shot �the Act�) against the petitioner in respect of the disputed shop. The said release application was registered as P.A. Case No. 40 of 1992. A copy of the said release application has been filed as Annexure 1 to the supplementary affidavit filed today on behalf of the petitioner.

It was, interalia alleged in the said release application that the said Amba Prasad was the owner and landlord of the disputed shop wherein the petitioner was tenant at the rate of Rs. 16/ per month; and that the disputed shop was bona fide required for the son of the said Amba Prasad namely, Devendra Singh and for the ground son of the said Amba Prasad, namely Bharat Bhushan, son of Rajendra Singh for their independent and suitable business after making alterations and additions as per their requirements and that the building in question was quite old and old type construction and required complete alterations.

The said release application was contested by the petitioner. Evidence was led by both the sides.

The learned Prescribed Authority Second Additional Civil Judge (Senior Division) Agra by the judgment and order dated 29101999 allowed the said release application filed by the said Amba Prasad.

It was, interalia, held by the learned Prescribed Authority that while the son of the said Amba Prasad, namely, Devendra Singh was doing the business of supply of shoes, but no place was available to the said Devendra Singh.

It was, interalia, further held by the learned Prescribed Authority that no business place was available for the grandson of the said Amba Prasad, namely, Bharat Bhushan.

It was, interalia, further held by the learned Prescribed Authority that during the course of evidence, the need of the grandson of the said Amba Prasad, namely, Kamal Bhushan, son of Rajendra Singh was also pressed on behalf of the said Amba Prasad, and that the said Kamal Bhushan, who was aged 18 years in 1992, was now aged 25 years, and that the need of the said Kamal Bhushan for business place could also be considered.

It was, interalia, further held that as regards, the properties alleged to be sold by the said Amba Prasad and his family members, no shop or commercial place was available in any of the said properties, and as such, the submission made on behalf of the petitioner in regard to the sale of the properties could not be accepted.

It was, interalia further held by the learned Prescribed Authority that the need of the said Amba Prasad was genuine and bonafide.

It was, interalia, further held by the learned Prescribed Authority that in case of eviction of the petitioner from the disputed shop, he would not suffer any hardship, and if at all there would be any hardship, the same was much less than the hardship which would be suffered by the said Amba Prasad in case of rejection of the said release application of Amba Prasad.

Thereupon, the petitioner filed an appeal under Section 22 of the Act which was registered as Rent Control Appeal No. 279 of 1999.

During the pendency of the said appeal the said Amba prasad died, and the Respondent Nos. 1 to 6, herein, were substituted in the said appeal as the heirs and legal representatives of the said Amba Prasad.

The learned Appellate Authority by the judgment and order dated 12122002 dismissed the said Rent Control Appeal No. 279 of 1999 filed by the petitioner.

Thereafter, the petitioner has filed the present writ petition seeking the reliefs mentioned above.

I have heard Sri Pankaj Mithal, learned Counsel for the petitioner and Sri Madhav Jain who has filed caveat on behalf of the respondents.

Sri Pankaj Mithal learned Counsel for the petitioner submits that in the release application, the said Amba Prasad had setup the need of only his son Devendra Singh and his grand son Bharat Bhushan (son of Rajendra Singh). It is submitted that there was no averment in the release application regarding the grandson Kamal Bhushan (son of Rajendra Singh). In the circumstances, the contention proceeds, the need of the said grandson Kamal Bhushan could not be considered, and the learned Prescribed Authority acted illegally in considering the need of the said grandson Kamal Bhushan.

In reply, Sri Madhav Jain, learned Counsel for the caveator respondents submits this ever though the need for the said grand son Kamal Bhushan did not find mention in the release application, but the same was subsequently brought on record by filing affidavits, and as such, the learned Prescribed Authority did not commit any illegality or perversity in considering the need of the said son Kamal Bhushan.

It is further submitted by Sri Madhav Jain learned Counsel for the caveatorrespondents that no ground was taken by the petitioner in the memorandum of appeal of the said Rent Control Appeal No. 279 of 1999 challenging the consideration of the need of the said granson Kamal Bhushan by the learned Prescribed Authority.

Having considered the submissions made by the learned Counsel for the parties, I am of the opinion that the submission made by Sri Pankaj Mithal, Counsel for the petitioner cannot be accepted. It is not disputed that even though the need of the said Kamal Bhushan was not mentioned in the release application, but the need of the said Kamal Bhushan was brought on record by filing affidavits before the Prescribed Authority. Therefore, the learned Prescribed Authority did not commit any illegality or perversity in considering the need of the said Kamal Bhushan.

In any case, a perusal of the judgment and order dated 1212 2002 passed by the learned Appellate Authority shows that no submission was made on behalf of the petitioner challenging the consideration of the need of the said Kamal Bhushan by the learned Prescribed Authority. Moreover, the learned Appellate Authority in passing the judgment and order dated 12122002 has considered only the need of the said Devendra Singh and Bharat Bhushan, and has not taken into account the need of the said Kamal Bhushan. Therefore, no prejudice has been caused to the petitioner by the consideration of the need of the said grandson Kamal Bhushan by the learned Prescribed Authority.

Sri Pankaj Mithal learned Counsel for the petitioner then submits that the finding recorded by the authorities below that the said Devendra Singh had no alternative business place has been recorded without taking into consideration the affidavits filed on behalf of the petitioner Sri Mithal has referred to the affidavit of Mahesh Chand Goyal (Annexure3 to the writ petition) and the affidavit of Om Prakash (Annexure4 to the writ petition).

In reply, Sri Madhav Jain, learned Counsel for the caveatorrespondents submits that the entire material on record has been considered by the authorities below and the findings of fact have been recorded.

It is further submitted by Sri Madhav Jain that the learned Appellate Authority has specifically stated in the judgment and order dated 12122002 that it had perused the affidavits filed on record relied upon on behalf of the petitioner. It is submitted that the submission raised on behalf of the petitioner that the affidavits have not been considered, is not correct.

I have considered the submissions made by the learned Counsel for the parties. A perusal of the judgment and orders passed by the authorities below shows that the authorities below have considered the entire material on record including various affidavits filed on record in concluding that no alternative business place was available for the said Devendra Singh. Therefore, the submission of Sri Mithal that the affidavits filed on behalf of the petitioner have not been considered, cannot be accepted.

In any case, a perusal of the affidavit of Mahesh Chand Goyal (Annexure3 to the writ petition) as well as the affidavit of Om Prakash (Annexure4 to the writ petition) shows that only vague and general allegations were made in the said affidavits that the said Devendra Singh had already got business place for his shoe work, but no specific details of such place were given in any of the said affidavits. In the circumstances, the averments made in the said affidavits regarding the availability of businessplace for the said Devendra Singh could not be accepted.

Therefore, in my opinion, the findings recorded by the authorities below regarding noravailability of businessplace for the said Devendra Singh, cannot be said to be vitiated on the ground of nonconsideration of the affidavits relied upon by the learned Counsel for the petitioner.

Sri Pankaj Mithal, learned Counsel for the petitioner has placed reliance on a decision of the Supreme Court in Raghunathe Jew Bhapur v. State of Orissa & others, JT 1998 (8) 483.

It is submitted by Sri Mithal that in case, the findings are recorded by the authorities below ignoring any material piece of evidence on the record, this Court can interfere with such findings under Article 226 of the Constitution of India.

In Raghunathe Jew Bhapur v. State of Orissa & others (supra), their Lordships of the apex Court laid down as under:

�(3)....It is well settled that in exercise of such supervisory jurisdiction, High Court would be entitled to interfere with the conclusions of an inferior tribunal, if such tribunal considers any inadmissible pieces of evidence in arriving at its conclusion or ignores material piece of evidence from the purview of consideration or the conclusion is based upon any error of law or the tribunal itself has no jurisdiction at all or that the conclusion is based on no evidence......�

In view of this decision, it is evident that if an inferior tribunal ignores any material piece of evidence in recording findings of fact then the High Court in exercise of its jurisdiction under Article 226/227 of the Constitution of India can interfere with such findings. However, the affidavits relied upon by the learned Counsel for the petitioner as noted above, did not give any specific particulars of the alternative businessplace allegedly available to the said Devendra Singh. Therefore, it cannot be said that any material piece of evidence has been ignored by the authorities below in recording findings of fact on the said question.

Sri Pankaj Mithal, learned Counsel for the petitioner then submits that the landlord and his family members sold various properties, and as such, the need of the landlord was not bonafide.

In reply, Sri Madhav Jain, learned Counsel for the caveator respondents submits that the properties which were sold by the landlord and his family members were residential properties as admitted by the petitioner in paragraph 15 of his written statement (Annexure2 to the writ petition).

It is further submitted by Sri Madhav Jain that as the said properties were residential properties, the sale of the said properties was not relevant for deciding the question of bonafide need in respect of the disputed shop for commercial purposes.

I have considered the submissions made by the learned Counsel for the parties.

As noted above, the release application was filed by the said Amba Prasad in respect of the disputed shop for bonafide need of the said Devendra Singh and the said Bharat Bhushan for their independent and suitable business. Thus, the disputed shop was required for business purposes.

A perusal of paragraph 15 of the written statement shows that the petitioner admitted that the properties sold by the landlord and his family members were residential properties. The learned Prescribed Authority in the judgment and order dated 29101999, interalia held that there was no shop or business place in the properties sold by the landlord and his family members. In my opinion as the need setup for the disputed shop was for commercial purposes, the sale of the said residential properties was evidently not relevant for deciding the question of bona fide need in respect of the disputed shop. The contention of Sri Mithal, therefore, cannot be accepted.

It is well established that the findings on the questions of bonafide need and comparative hardships are findings of fact. The authorities below have considered the entire material or record, and recorded findings of fact on the questions of bonafide need and comparative hardships. No illegality or perversity has been shown in the findings recorded by the authorities below. In the circumstances, no interference is called for with the findings of fact recorded by the authorities below on the questions of bonafide need and comparative hardships.

Certain judicial decisions may be referred to in this regard.

In M/s India Pipe Fitting Co. v. Fakruddin M.A. Baker and another, AIR 1978 SC 45, it was laid down by the Apex Court that the conclusions of fact cannot be interfered with the High Court under Article 227 of the Constitution of India. The findings on the question of bonafide 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.

In Munni Lal and others v. Prescribed Authority and others, AIR 1978 SC 29, it was laid down by 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.

In Ashok Kumar and others v. Sita Ram, 2001(2) JCLR 249 (SC) : 2001 (2) ARC 1: 2001 (43) ALR 783 (SC), the Apex Court held as follows (Paragraphs 9 and 15 of the said ARC) :

�(9) The position is too well settled 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 is 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 of 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, not 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 quasijudicially 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 is is not acting is yet another Appellate Court in the matter. We are constrained to observed that in the present case the High Court has filed to keep the salutary principles in mind while deciding the case.�

Sri Mithal, learned Counsel for the petitioner lastly submits that it was alleged in the release application that the disputed shop was bonafide required for the said Devendra Singh and Bharat Bhushan for their independent and suitable business after making alterations and additions as per their requirements, and that the building the question was quite old and old type construction and required complete alterations. Therefore, it is submitted, the landlord was required to establish that the requirements of Rule 17 of Rules framed under the Act were fulfilled in present case. It is further submitted that even though the release application in the present case was under Section 21 (1) (a) of the Act, still the requirements of Rule 17 of the Rules framed under the Act will have to be fulfilled in case the release application under Section 21(1) (a) is filed on the ground that the building is bonafide required �after demolition and new construction� by the landlord.

Shri Madhav Jain, learned Counsel for the caveator respondents submits, in reply that Rule 17 of the Rules framed under the Act is applicable in case where the release application is filed under Section 21 (1) (b) of the Act and not in case where the release application is filed under Section 21 (1) (s) of the Act.

Having considered the submissions made by the learned Counsel for the parties. I am of the opinion that the submission made by Shri Mithal cannot be accepted.

Section 21 of the Act provides as follows.:

�21. Proceedings for release of building under occupation of tenant. (1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely:

(a) that the building is bonafide 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 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 oft he 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 Soldier as declined in the Indian Soldies (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 solider and such building was let out at any time before the retirement or death of her husband, whichever occurred earlier,

and such landlord needs such building for occupation by himself or the members of his family for residential purposes, then his representation that he needs the building for residential purposes for himself or the members of his family shall be deemed sufficient for the purposes of clause (a), and where such landlord owns more than one building this provision shall apply in respect of one building.�

((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 dated 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 (20), the building or part of appurtenant land, as the case may be, shall stand released in favour of the landlord:

Provided that on the occurrence of any of the circumstances mentioned in Section 24, any building or part thereof (but not appurtenant land alone) released as above, shall without prejudice to the provisions of Section 24, be deemed to become again subject to allotment in accordance with Chapter III.

(6) On the expiration of a period of thirty days from an order under (subsection (1) or subsection (1A) or subsection (2), the tenancy of the tenant shall stand determined in its entirely or, as the case may be, in respect of any part of appurtenant land released in favour of the landlord, and in the latter case, the rent payable for the remainder of the building under tenancy shall be such as may be 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 land lord 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 onetwelfth of ten percent of the market value of the building under the tenancy, and the rent so enhanced shall be payable from the commencement of the month of tenancy following the date of the application:

Provided further that a similar application for further enhancement may be made after the expiration of a period of five years from the date of the last order of enhancement)�.

A perusal of subsection (1) of Section 21 of the Act shows that release application under clause (a) of the said Subsection (1) can be filed on the ground that the building in question is bonafide 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, for any of the purposes mentioned in the said clause.

(a) Clause (b) Subsection (1) of Section 21 of the Act provides that release application under the said clause can be filed on the ground that the building is in a �dilapidated condition� and is �required for purposes of demolition and new construction.�

Rules 17 of the Rules framed under the Act provides as follows:

�17. Application for release on the ground for demolition and new construction, (Sections 21 (1) (b) and 34 (8)) (1) Before allowing an application for release of a building under Section 21 (1) (b) on the ground that it is required for purposes of demolition and new construction, the prescribed authority shall satisfy itself

(i) that the building required demolition;

(ii) that a proper estimate of expenditure over the proposed demolition and new construction has been prepared;

(iii) that a plan has been duly prepared and conforms to the bye laws or regulations of the local authority or other statutory authority under any law in that behalf for the time being in force; and

(iv) that the landlord has the financial capacity for the proposed demolition and new construction.�

A perusal of Rule 17 shows that this Rule has been framed under Section 21 (1)(b) read with Section 34 (8) of the Act. Further, Rule 17 specifically refers to Section 21 (1) (b) of the Act, and provides that before allowing an application for release of a building under Section 21 (1)(b) of the Act on the ground that it is required for purposes of demolition and new construction, the Prescribed Authority shall satisfy itself regarding various requirements mentioned in the said Rule 17.

Thus, Rule 17, on its plain reading, applies to a case where release application is filed under Section 21 (1) (b) of the Act. Rule 17, therefore, cannot be applied where release application is filed under Section 21 (1) (a) of the Act.

It is true that under clause (a) of subsection (1) of Section 21 of the Act also, the landlord may seek release on the ground that the building in question is bonafide required �after demolition and new construction.� However, in such a case, in my opinion, Rule 17 of the Rules framed under the Act cannot be invoked. In other words, where the landlord files release application under Section 21 (1)(a) on the ground that the building in question is bonafide required �after demolition and new construction�, he will not be required to establish that the requirements of Rule 17 of the Rules framed under the Act are fulfilled.

However, if in such a case, i.e., where the landlord files release application under Section 21(1) (a) on the ground that the building in question is bonafide required �after demolition and new construction�, the tenant disputes the bonafide requirement of the landlord on the ground that the landlord lacks financial capacity to carry out �demolition and new construction�, then the Prescribed Authority, in deciding the question of bonafide need, may incidentally examine the question of financial capacity of the landlord to carry out �demolition and new construction.�

Coming to the present case, it has not been shown that the tenant petitioner raised any dispute/issue regarding financial capacity of the landlord to make alterations and additions in the disputed shop. Therefore, it was not necessary for the authorities below to consider the question of financial capacity of the landlord while deciding the question of bonafide requirement.

Considering the facts and circumstances of the present case, I am of the view that this is not a fit case for interference in exercise of writ jurisdiction under Article 226 of the Constitution of India.

This writ petition, in my opinion, lacks merit and the same is liable to be dismissed. the writ petition is accordingly dismissed.

Sri Pankaj Mithal, learned Counsel for the petitioner has then submitted that some reasonable time may be granted to the petitioner for vacating the disputed shop.

I have heard Sri Pankaj Mithal, learned Counsel for the petitioner and Sri Madhav Jain, learned Counsel for the caveatorrespondents on this question also.

Having considered the facts and circumstances of the case and the submission made by the learned Counsel for the parties, it is directed that the petitioner will not be evicted shop till 31st July, 2003 provided the petitioner gives an undertaking before th Prescribed Authority. Agra on his personal affidavit within eight weeks from today incorporating the following condition:

(1) The petitioner will vacate the disputed shop on or before 31st July, 2003 and will hand over peaceful vacant possession of the same to the respondents.

(2) The petitioner will continue to pay rent in respect of the disputed shop to the respondents till the date of vacating the disputed shop.

In case, the aforesaid requisite undertaking is not given by the petitioner within the time granted of the petitioner does not comply with any of the aforesaid conditions incorporated in the undertaking, this order granting time to the petitioner for vacating the disputed shop will stand automatically vacated, and it will become open to the respondents to execute the release order forthwith.