Smt. Katori Devi vs Addl. District Judge and Others

Rajesh Tandon, J.—Heard the learned Counsel for the parties.

By the present writ petition the Petitioner has prayed for a writ of certiorari quashing the order dated 9-2-2001 and 1-4-2003 passed by the Prescribed Authority and appellate authority respectively.

Briefly stated the facts giving rise to the present writ petition are that an application u/s 21(1)(a) of Act No. XIII of 1972 was filed by the Respondent No. 3 praying for the release of one room Khaprail on the ground that he is landlord of the premises in dispute. When the accommodation was let out the family of the landlord was very small, but now the family of the landlord has grown up and he has paucity of accommodation. The landlord has stated that he has three rooms in his possession and out of three rooms two rooms are being used as cow shed. Four rooms are in occupation of other tenants.

Written statement was filed in the Court below by the Petitioner where it was admitted that the landlord was residing in a rented premises. In paragraph 16 of the written statement the Petitioner has stated in the family of the landlord he himself, his wife and four daughters and one son is residing in which three daughters have already been married. Thus the family of the landlord consisted wife, a daughter and one son. The counsel for the Petitioner has submitted that the Petitioner is having only one room and, therefore, he has contended that the need of the tenant shall suffer greater hardship than the landlord.

The Prescribed Authority vide order dated 9-2-2001 has allowed the release application. Aggrieved by the said order tenant has filed appeal before the District Judge. The appellate court has also confirmed the judgment and order of the Prescribed Authority.

The family of the landlord consists of

Self

wife

two daughters, Shila Devi and Than Devi

three married daughters.

In paragraph 5 of the application it has been stated by the landlord that in one room the landlord any how passing his life with utmost dissatisfaction and mental tension and harassment to the family members.

The landlord has also filed his affidavit paper No. 23-Ga showing that it is very difficult to get the family members accommodated in one room. It was further deposed that there are five tenants namely Ramesh, Katori Devi, Sanjai, Bachan Singh and Geeta. The tenant Geeta has also filed the affidavit stating therein that except one room other Khaprail rooms are in occupation of the tenants.

On the basis of the evidence on record both the Courts below have recorded the concurrent findings of fact that there are only two rooms in possession of the landlord. One is in his self occupation and other is being used for cow shed.

In view of the aforesaid facts, the landlord has fully proved the bonafide need and comparative hardship also lies in his favour.

Both the courts below have found that there is bona fide need of the landlord. So far as the comparative hardship is concerned both the Courts below have come to the conclusion that the landlord would suffer greater hardship if the premises in question is not released in favour of the landlord.

A perusal of the record shows that the landlord in his application has specifically stated that there are 7 khaprail. In one of the room son of the landlord namely Kanhaya Lal and his wife and in one Khaprail room there is a cow shed and rest are occupied by four tenants and one room is in occupation of the Petitioner.

Moreover, there is no evidence on the record to suggest that the Petitioner has ever made any effort to find alternative accommodation when the application is filed as back as in the year 1999.

In view of the judgment of Apex Court reported in 2004 ARC (1) 682 Ranjeet Singh v. Ravi Prakash, the jurisdiction of the High Court under Article 226 is limited to the extent that the finding of fact recorded by the court below cannot be interfered. The two courts below have recorded a concurrent findings and High Court cannot act like an appellate Court under Article 226/227 of the Constitution of India.

Allahabad High Court has held in 2001 (44) ALR 14 Radha Kant Debey v. Vth Additional District Judge, Kanpur Nagar and Ors. as under:

It is well established proposition of law that finding with regard to the bonafide need of the landlord as well as that of the hardship is a finding of fact which cannot be disturbed in writ jurisdiction under Article 226 of the Constitution of India. In support of his submission she placed reliance on some decisions in the case of Kamla Sarin v. Shyam Lal and Ors. 1984 (2) ARC 344 in the case of Muni Lal and Others Vs. Prescribed Authority and Others, , in the case of J.K. Kapur and Others Vs. State of Gujarat and Others, , in the case of Davenport and Co. Pvt. Ltd. Vs. Commissioner of Income Tax, West Bengal-II, , in the case of Mrs Labhkuwar Bhagwani Shaha and Others Vs. Janardhan Mahadeo Kalan and Another, , in the case of Ram Rakesh Pal and Anr. v. 1st Additional District Judge and Ors. 1967 UPRCC 376, in the case of Jagan Prasad v. District Judge and Anr. 1976 UPRCC 342, in the case of Smt. Nirmala Tandon v. Xth Additional District Judge, Kanpur Nagar 1997 (29) ALR 12 and in the case of Kamleshar Prasad v. Praduman Ja Agarwal 1997 (30) ALR 307 (SC).

The writ petition has no merit and is hereby dismissed.

However, four months time is allowed to the Petitioner to vacate the premises provided an undertaking is given by the Petitioner within a period of three weeks after obtaining the certified copy of this order. No order as to costs.