Allahabad High Court
Laddan @ Jamin Abbas Hussain vs Mohd. Abbas @ Sabbo And Ors. on 18 February, 2005
Equivalent citations: 2005(1)ARC687, 2005(3)AWC2574
Author: Anjani Kumar
Bench: Anjani Kumar
JUDGMENT Anjani Kumar, J.
1. By means of writ petition under Article 226 of the Constitution of India, the petitioner-tenant challenges the order dated 28th January, 2004, passed by the prescribed authority and the order dated 14th July, 2004, passed by the appellate authority under the provisions of the U.P. Act No. 13 of 1972, copies whereof are annexed as Annexures-'3' and '4', respectively, to the writ petition.
2. The brief facts of the present case are that the respondent Nos. 1, 2 and 3 are the landlord of the accommodation in question, who were residing under the guardianship of their maternal grand-father at the time when the application under Section 21 (1) (a) of the U.P. Act No. 13 of 1972, (In short 'the Act') was filed on behalf of the maternal grand-father on the ground that they are living under the guardianship of their maternal grand-father, as their parents died at early age. It is also asserted that respondent No. 1, namely, Mohd. Abbas has attain majority, and doing his own business and is of marriageable age, but his marriage is being postponed because they do not have any residential accommodation. In the residence of their maternal grand-father, who lives in small accommodation, there are huge family members, including three grand-daughters. It is also asserted that respondent No. 2, namely, Km. Huma is going to attain majority within fifteen days of the filing of the application and respondent No. 3, namely, Km. Saba is also is going to be major, they are studying in the college in higher classes and since there is paucity of space in the residence of their maternal grandfather, they are feeling difficulty in perusing their higher studies, therefore, the need for the release of the accommodation in question, which is under the tenancy of the petitioner-tenant, is bona fide. On the question of comparative hardship, it is asserted by the landlord that the need is more pressing as compared to that of the tenant, therefore, the application under Section 1 (1) (a) of the Act was filed for the release of the accommodation in question in favour of the landlord.
3. The petitioner-tenant contested the aforesaid application and asserted that all the allegations made in the application are incorrect. The applicants-landlord are comfortably living with their maternal grand-father and they do not require any additional accommodation. On the contrary, if the tenant with a large family, in case the release application is allowed, he will be thrown out on the street and on the question of alternative accommodation, the tenant asserted he is trying to find out the accommodation covered by the provisions of the Act is to be allotted to him and as soon as any other accommodation is allotted he will be vacating the accommodation in question. There is dispute between the parties on the question of rent payable by the tenant. The landlord asserted that the rent of the accommodation in question is Rs. 100/- per month, whereas the petitioner-tenant submitted that the rent is Rs. 5.20 per month.
4. The prescribed authority after the exchange of the pleadings by the parties and the evidence adduced by the parties arrived at the conclusion that since the landlord has asserted that the rent is Rs. 100/- per month, the burden of establishing that the rent is Rs. 5.20 per month was on the tenant and there is no evidence, much less any documentary evidence which may demonstrate that the rent of the accommodation in question is Rs. 5.20, as asserted by the tenant, therefore, the prescribed authority found that the rent for the accommodation in dispute is Rs. 100/- per month, as asserted by the landlord. On the question of bona fide requirement, the prescribed authority has recorded a finding in favour of the landlord holding that the need of the landlord is bona fide. The prescribed authority has relied upon the decision of this Court reported in 1984 (1) A.R.C., 113. On the question of the comparative hardship, the tilt was also found in favour of the landlord, according to law laid down by this Court reported in 1984 (1) ARC, 113 : 1995 (2) ARC, 8 therefore, the prescribed authority vide its order dated 28th January, 2004 allowed the application under Section 21 (1) (a) of the Act filed by the landlord and directed for release of the accommodation in question in favour of the landlord.
5. Aggrieved by the order passed by the prescribed authority, the petitioner-tenant preferred an appeal under Section 22 of the Act before the appellate authority, Before the appellate authority the first ground that was raised by the tenant that the prescribed authority has exceeded its jurisdiction in fixing the rent at the rate of Rs. 100/- per month, as asserted by the landlord, therefore, the order of the prescribed authority deserves to be set aside. The appellate authority found that in fact the prescribed authority deserves to be set aside. The appellate Authority found that in fact the prescribed authority has not fixed the rent, but it is only found that the out of the two assertions, one made by the landlord and the other made by the petitioner-tenant, the assertion made by the landlord was found to be correct that the rent is Rs. 100/- per month and by recording a finding that the rent of the accommodation in question is Rs. 100/- per month, the prescribed authority has not exceeded its jurisdiction. This plea therefore, was rejected by the appellate authority. On the question of bona fide requirement also the appellate authority found that the view taken by the prescribed authority do not warrant any interference as the findings arrived at by the prescribed authority do not suffer from any error of law, nor the same is perverse. In this view of the matter, the appellate authority affirmed the finding arrived at by the prescribed authority on the question of bona fide requirement. On the question of comparative hardship, the appellate authority found that the finding recorded by the prescribed authority having in favour of the landlord also do not suffer from any error of law, much less manifest error, or the same is perverse. Therefore, the findings with regard to the comparative hardship was also affirmed by the appellate authority. The appellate authority has also found that there is noting on record to show that the petitioner-tenant has made any effort to find out any alternative accommodation after filing of the present release application under Section 21 (1) (a) of the Act, therefore, in view of the law laid down by this Court reported in 1984 (1) A.R.C., 113 N.S. Datta and Ors. v. The VIIth Addl. District Judge, Allahabad and Ors., the tenant-petitioner cannot object that the accommodation in question should not be released on the defence of tenant will not be considered. In this view of the matter also, the appellate authority found that therefore, affirmed the findings arrived at by the prescribed authority and the appeal preferred on behalf of the tenant-petitioner was dismissed by the appellate authority vide its order dated 14th July, 2004.
6. Before this Court learned Counsel appearing on behalf of the petitioner-tenant tries to demonstrate that the findings arrived at by the prescribed authority and affirmed by the appellate authority suffer from the manifest error of law by citing evidence adduced by the parties before the prescribed authority. On the other hand, learned Counsel appearing on behalf of the landlord relied upon a decision of the apex Court reported in (2004) 3 Supreme Court Cases, 682 : 2004 (1) ARC 613 (SC) Ranjeet Singh v. Ravi Prakash, wherein the Apex Court has ruled in Paragraphs 4 and 5, which run 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 and 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 and Ors., (2003) 6 SCC 675 : 2003 (2) ARC 385 (SC), 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 jurisdiction, should be an error which is self-evident. An error which needs to be established by lengthy and complicated arguments or by indulging into a long-drawn available for correct by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai (supra) that the jurisdiction was not available to be exercised for indulging into re-appreciation or evaluatoin of evidence of 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 of Article 227 of the Constitution.
5. The approach of the High Court cannot be countenanced. The appeal is allowed. The judgment of the High Court is set aside and that of the appellate Court is restored. The respondent is allowed four months time from today for vacating the suit premises subject to filing the usual undertaking within a period of 4 weeks' from today. No order as to costs."
7. In view of the aforesaid law relied upon by learned Counsel for the respondent-landlord and also in view of the law laid down by the Apex Court in the case reported in (2003) 6 SCC, 675 : 2003 (2) ARC 385, Surya Dev Rai v. Ram Chander Rai and Ors., I do not find this to be a fit case for interference by this Court in exercise of power under Article 226 of the Constitution of India. This writ petition therefore, has no merits and is accordingly dismissed. The interim order, if any, stands vacated. However, the parties shall bear their own costs.