Uttarakhand High Court
Mahesh Singh vs Paramjeet Singh And Others on 6 September, 2017
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 2012 (M/S) of 2017
Mahesh Singh ...... Petitioner
versus
Paramjit Singh & others ....... Respondents
Mr. S.R. Singh, Senior Advocate assisted by Mr. Pankaj Miglani and Ms.
Aditi Sharma, Advocates for the petitioner.
Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Subhang Dobhal,
Advocate for the respondents.
U.C. Dhyani, J. (Oral)
By means of present writ petition, the petitioner seeks to issue a writ, order or direction in the nature of certiorari quashing the impugned judgment and order dated 24.01.2012, passed by learned Prescribed Authority / Civil Judge (Jr. Div.), Haldwani in P.A. case no. 04 of 2009, as well as judgment and order dated 24.07.2017, passed by learned I Addl. District Judge, Haldwani, in R.C. Appeal no. 15 of 2012.
2) Applicants-landlords (respondents herein) moved an application under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction), Act, 1972 (for short Act no. 13 of 1972) for release of the building, evicting the petitioner-opposite party and handing over the vacant possession of the building in question to the landlords- applicants-respondents.
3) Learned Prescribed allowed such an application under Section 21(1)(a) of Act no. 13 of 1972 and directed the tenant-petitioner to handover the vacant possession of the property in question to the applicants-landlords-respondents, 2 vide order dated 24.01.2012. Aggrieved against the same, the tenant-petitioner filed rent control appeal, which was also dismissed, vide order dated 24.07.2017, passed by the Appellate Authority. Aggrieved against both the orders impugned, present writ petition has been filed.
4) The landlord (respondent no. 1 herein) made a request for release of the shop in question on the grounds, inter alia, that he is an Advocate by profession and needs the shop in question for establishing his chamber. He made frantic efforts for finding suitable accommodation, but to no avail. When he failed to search out a suitable accommodation, then only he moved application for release of the shop, which is in the possession of the tenant. The tenant has a big house in Kathgodam. Tenant has sound financial condition. He can establish his business in the house owned by him. Whereas the landlord has bona fide need, the tenant has no such need. An argument was advanced on behalf of the tenant that he runs a hotel in the tenanted premises. According to the tenant, the landlord owns a house, in which he runs a guest house and he can run his profession from there.
5) Both the sides filed their respective affidavits before learned Prescribed Authority. An Advocate Commission was also issued and, accordingly, Advocate Commissioner's report was also brought on record. Both the parties cited some decisions of High Court of Uttarakhand in support of their respective contentions.
6) Learned Prescribed Authority has appropriately dealt with the issue. It was inferred by learned Prescribed Authority that it is not the tenant who can dictate the terms upon the landlord and advise him what he should do and what 3 he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business.
7) The following are the observations made by the Hon'ble Apex Court in Sait Nagjee Purushotham and Co. Ltd. Vs. Vimalabai Prabhulal and others, (2005) 8 SCC 252.
"It is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business. However, the trial court held in favour of the appellant tenant. But the appellant court as well as the High Court after scrutinizing the evidence on record, reversed the finding of the trial court and held that the need of establishing the business at Calicut by the landlords cannot be said to be lacking in bona fides."
8) In the case of Joginder Pal vs Naval Kishore Behal, 2002 SC & FB, Rent Cases 288, the Apex Court has held as under:
"In Maope Vishwanath Acharya and others Vs State of Maharashtra and another (1988) 2 SCC 1, this court has emphasized the need of social legislation like the Rent Control Act striking a balance between rival interests so as to be just to law. "The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society". While the shortage of accommodation makes it necessary to 4 protect the tenants to save them from exploitation but at the same time the need to protect tenant is coupled with an obligation to ensure that the tenants are not conferred with a benefit disproportionately larger than the one needed. Socially progressive legislation must have a holistic perception and not a shortsighted parochial approach. Power to legislate socially progressive legislation is coupled with a responsibility to avoid arbitrariness and unreasonability. A legislation impregnated with tendency to give undue preference to one section, at the cost of constraints by placing shackles on the other section, not only entails miscarriage of justice but may also in constitutional invalidity."
[Emphasis supplied]
9) In the decision of Ram Shankar Jaiswal v. Additional District Judge (Sc/St Act), Lucknow and others, 2015 (1) ARC 474, in paragraph 11 of the judgment, the following was observed:
"The need in respect of additional accommodation as envisaged in Section 21 of the Act must be a bonafide need and not a mere desire. If the landlord has a desire to have more accommodation, that will not attract the provisions of Section 21 because the intention of the legislature is that a building should be released to the landlord only if his need in respect of the accommodation in occupation is bonafide, genuine and hard pressing. It is not a case where the landlord has no accommodation at all. It is an admitted case of the parties that the opposite parties landlords have an independent house in their occupation. They need additional accommodation which is in occupation of the petitioner-tenant. Therefore, the accommodation in 5 occupation of both the parties has to be taken into account while considering the need of the opposite parties landlords. The Prescribed Authority will have jurisdiction to make an order of release only it is satisfied that the need of the landlord is bonafide and genuine. Once it is found that the need of the landlord is bonafide, the Prescribed Authority is required to proceed to consider the comparative hardship of the parties. Unless it is found that the need of the landlord is bonafide, there is no occasion to consider the comparative hardship. In this case although the Prescribed Authority has discussed in detail the evidence led by the parties but has not recorded any finding that the need of the opposite parties landlords for additional accommodation was bonafide and genuine. The learned Prescribed Authority without recording any finding as to the need of the landlord, proceeded to compare the hardship of the parties. The learned appellate Court found the need of the landlords as bonafide only on the ground that the son of the petitioner-tenant has been living separately and construction of two rooms constructed by the opposite parties landlords were not subject matter of this litigation."
10) In Indian Overseas Bank vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, the Court observed that it is impermissible for the Writ Court to re-appreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ 6 Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere.
11) Likewise, in Prakash Chandra and others vs. XII A.D.J. and another, 2013 (2) ARC 91, it was observed that once the very basis of filing application under Section 21(1)(a) of the Act, 1972 is not substantiated and findings recorded by Appellate Court is not shown to be manifestly erroneous, this court would not be justified in interfering in exercise of writ jurisdiction since it is not an appellate jurisdiction conferred upon this Court. In supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority.
12) The Prescribed Authority, therefore, gave cogent reasons in support of its finding that the landlord has been able to show his bona fide need.
13) Learned Prescribed Authority has also dealt with the issue of comparative hardship of the parties, indicating that the tenant has not made an effort to search out an alternate accommodation and, therefore, the element of comparative hardship was also in favour of the landlord. The tenant has not denied the fact that he does not own a house or owns property at Kathgodam. Learned Prescribed Authority has again relied upon a decision of High Court of Uttarakhand in support of its 7 findings, as regards comparative hardship, which goes in favour of the landlord. The application under Section 21(1)(a) of Act no. 13 of 1972 was, therefore, allowed.
14) Learned Appellate Authority while deciding rent control appeal has affirmed the findings recorded by learned Prescribed Authority. Learned Appellate Authority has also mentioned a host of decisions placed by the rival contestants before it and has observed, on the basis of affidavits filed by the parties, as also the decision cited by them in support of their respective contentions, that the landlord has bona fide need. Comparative hardship is also in his favour. Besides that, the Appellant Authority has also relied upon Advocate Commissioner's report. The Court need not reproduce those reasons again for the sake of brevity and also because the reasons assigned by the Appellate Authority are part of the record.
15) It may be noted here that, at an earlier point of time, the landlord filed an application for deemed vacancy and release under Sections 12 and 16 of the Act no. 13 of 1972. The said application of the landlord was allowed by a composite order. Aggrieved against the same, the tenant filed writ petition before Hon'ble Allahabad High Court, who allowed the writ petition. Aggrieved against the same, the landlord preferred Special Leave Petition before Hon'ble Supreme Court, in which it was held that the landlord is the owner of the disputed property and the petitioner is the tenant. Special Leave Petition was later on dismissed as withdrawn. But the fact of the matter is that the Hon'ble Apex Court has held that the petitioner is a tenant in the shop owned by respondents-landlords and, hence, there is no occasion for the 8 tenant-petitioner to challenge the ownership of the landlords on the tenanted premises.
16) Learned Senior Counsel appearing on behalf of the petitioner submitted that the lease was never extended in favour of the respondents-landlords. Such a plea was never taken before the Prescribed Authority and, moreover, as stated above, it has been affirmed by Hon'ble Apex Court that the petitioner is tenant and the tenanted premises is owned by the respondents-landlords.
17) Thus there are concurrent findings of two authorities below. Both the Prescribed Authority as well as Appellate Authority have given cogent reasons in support of findings arrived at by them.
18) The Court does not find any perversity in the decisions of two authorities below.
19) It will be apt to quote para 4 of the judgment rendered by Hon'ble Apex Court in Ranjeet Singh vs Ravi Prakash, (2004) 3 SCC 682, as under:
"4. Feeling aggrieved by the judgment of the appellate court, the respondent preferred a writ petition in the High Court of Judicature at Allahabad under Article 226 and alternatively under Article 227 of the Constitution. It was heard by a learned Single Judge of the High Court. The High Court has set aside the judgment of the appellate court and restored that of the trial court. A perusal of the judgment of the High Court shows that the High Court has clearly exceeded its jurisdiction in setting aside the judgment of the appellate court. Though not specifically stated, the phraseology employed by the High Court in its judgment goes to show that the High Court has exercised its certiorari jurisdiction for correcting the judgment of the appellate court. In Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675, this Court has ruled that to be amenable to correction in certiorari jurisdiction, the error committed by the court or authority on whose judgment the High Court was exercising 9 jurisdiction, should be an error which is self-evident. An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev's case (supra) that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal. The High Court has itself recorded in its judgment that - "considering the evidence on the record carefully" it was inclined not to sustain the judgment of the appellate court. On its own showing, the High Court has acted like an appellate court which was not permissible for it to do under Article 226 or Article 227 of the Constitution."
20) It will also be apt to quote paras 29, 30, 31, 32 and 33 of the decision of Hon'ble Apex Court in Celina Coelho Pereira (Ms) and others vs Ulhas Mahabaleshwar Kholkar and others, (2010) 1 SCC 217, as under:
"29. The High Court, as the discussion in impugned judgment shows, has been too technical in construing the pleadings of the case overlooking the fact that plea of sub- letting has been set up by landlord in the plaint and there has been full and critical examination of the evidence by the Additional Rent Controller as well as the Administrative Tribunal. The Additional Rent Controller and the Administrative Tribunal cannot be said to have misdirected themselves either on law or on facts. Both Authorities found as a fact that Mandovi Tours and Travels was not a genuine partnership and it was formed to cover up the subletting of the suit premises. They also found as a fact that the partnership having not been found to be genuine partnership, it was difficult to hold that the tenant continued to have a control over the suit premises. These findings recorded by the Administrative Tribunal as well as the Additional Rent Controller are based on the consideration of evidence on record. In any case, it cannot be said that the aforesaid view of the Rent Control Authorities is not a possible view.
30. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta, (1975) 1 SCC 858, this Court held :
"7. ....The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court 10 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."
31. In State v. Navjot Sandhu, (2003) 6 SCC 641, this Court explained the power of the High Court under Article 227 thus :
"28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such (1975) 1 SCC 858 (2003) 6 SCC 641 discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised 'as the cloak of an appeal in disguise'."
32. The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, (1986) 4 SCC 447; State of Maharashtra v. Milind, (2001) 1 SCC 4 and Ranjeet Singh v. Ravi Prakash, (2004) 3 SCC 682, came to be considered by this Court in Shamshad Ahmad v. Tilak Raj Bajaj, (2008) 9 SCC 1 and this Court held :
"38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The (1986) 4 SCC 447 (2001) 1 SCC 4 (2004) 3 SCC 682 (2008) 9 SCC 1 powers are required to be exercised most 11 sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law."
33. In light of the aforesaid legal position concerning jurisdiction of the High Court under Article 227, which the High Court failed to keep in mind, it must be held that in the facts and circumstances of the case and the findings recorded by the Additional Rent Controller as well as the Administrative Tribunal, High Court was not justified in interfering with the concurrent orders of eviction based on the ground of sub- letting in exercise of its power under Article 227 of the Constitution of India."
21) No interference is, therefore, called for in the concurrent findings of two authorities below.
22) Writ petition, therefore, fails and is dismissed.
23) At this stage, learned Senior Counsel appearing on behalf of the petitioner submitted that some time may be granted to the tenant-petitioner to vacate the premises in question. Learned Senior Counsel further submitted that at least three years' time be granted to the tenant-petitioner to handover the vacant and peaceful possession of the tenanted premises to the landlords-respondents.
24) Mr. Rajendra Dobhal, learned Senior Counsel appearing on behalf of landlords-respondents replied that the landlords have no objection in permitting the tenant-petitioner to retain the possession of the tenanted premises for another 1½ years. Considering such no objection of the landlords- respondents, the Court deems it appropriate to pass the following order:
(1) The petitioner shall file an undertaking before the trial court on or before 05.10.2017 that he shall vacate the premises in question on or before 05.03.2019 and handover vacant and peaceful 12 possession of the premises in question to the landlord.
(2) The petitioner should undertake to deposit the entire decretal amount before the trial court within a period of two months from today subject to adjustment of any amount already deposited before the court below.
(3) The petitioner should continue to pay the rent for the use and occupation of the premises in question on each succeeding month till vacation of the accommodation on 7th day of each month.
(4) The petitioner shall not induct any other person in the premises in question.
(5) In the event of default of any of the aforesaid conditions, the petitioner shall not be entitled to continue in the premises in question up to 05.03.2019 and the decree shall be executed forthwith.
(U.C. Dhyani, J.) Dt. September 06, 2017.
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