Uttarakhand High Court
Ahmad Sayeed vs District Judge And Ors. on 16 February, 2005
Equivalent citations: 2005(1)ARC730
Author: Rajesh Tandon
Bench: Rajesh Tandon
JUDGMENT Rajesh Tandon, J.
1. Heard Mr. Sharad Sharma, Counsel for the petitioner and Sri V.K. Bisht, Sr. Advocate assisted by Ms. Seema Sirohi, Counsel for the respondents.
By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the judgment and orders dated 19.8.2000 dismissing the petitioner's Rent Control Appeal No. 6 of 1997 and 28.2.1997 passed by the respondent No. 2 allowing the release application filed under Section 21 (1) (a) of U.P. Act No. 13 of 1972.
FACTUAL ASPECTS OF THE CASE:-
1. Briefly stated, the proceedings were initiated under Section 21 (1) (a) of the Act by the landlord Sri Balbir Singh in respect of the premises within the municipal limits of Nagar Palika.
2. The dispute in the present case relates to a shop situate in a part of premises being Municipal No. 29 Dhara Road, Pauri Garhwal of which respondent No. 3 Balbir Singh is owner and the petitioner is a tenant at the rate of Rs. 100/-. The petitioner was inducted as tenant in the shop by the father of the respondent No. 3 Sri Balbir Singh.
3. It has been stated in the writ petition that the petitioner is carrying on the business of sale of hardware in the shop in question for the last three decades and the business is the only source of earning his livelihood and his three unemployed sons and other family dependents.
4. Balbir Singh respondent No. 3 has filed an application under Section 21 (1) (a) of U.P. Act No. 13 of 1972 (hereinafter referred to as the act) in the Court of Prescribed Authority (Munsif) Pauri Garhwal (respondent No. 2) on 16.10.1985 seeking release of the shop in question on the ground that he is unemployed having eight dependents.
5. For the purpose of opening Kasth Kala Udyog, a loan was sanctioned by Small Scale Industries in favour of the respondent No. 3, the owner and therefore, he proposed his desire to repay the loan amount by opening a workshop of manufacturing Wooden Goods.
6. At the same time, it has been stated by the respondent No. 3 that there is no shop available with him in Bazar for selling wooden goods manufactured by him in his workshop and maintaining a show room for attracting customers.
7. It has further been stated in Paragraph 7 of the release application that the tenant is in possession of their houses-shop within the municipal limits, Pauri bearing one house/shop situate in Upper Bazar, Pauri bearing municipal No. Aa 28 having three shops all in occupation of tenants. Remaining two houses/shops bearing Nos. 106 and 107 are situate in lower Bazar Pauri. The tenant is carrying on Hardware Pipe etc. business in shop Lu 107 besides carrying on another business in from Part of No. Lu-106 and lives in remaining part, Lower Bazar as per landlord's claim is main market of hardware pipes goods and the tenant can change his business by shifting in his shop situate in lower Bazar without facing any loss of goodwill.
8. The respondent No. 3 has submitted that his requirement is bonafide and the release application has to be filed on tenant's reluctance to vacate the shop.
9. Petitioner has filed his written statement denying the landlord's theory of alleged need and has stated that he is carrying on the business in the shop in question for the last 17-18 years. There is no market of specified commodities or varieties in the city of Pauri and business men carry on their respective business in different parts of Pauri according to their convenience.
10. Petitioner has submitted that he has earned goodwill from the business in question and if he is evicted from the same, he will suffer irreparable loss.
11. It has been stated by the petitioner in the writ petition that the landlord respondent No. 3 has neither any requirement for the shop in question nor he has any other shop in his occupation elsewhere in Pauri.
12. Before the prescribed authority, some evidence in the form of affidavits were filed by the landlord i.e., paper No. 12 Ga affidavit of the landlord Sri Balbir, copy of affidavit paper No. 31 Ga, 65, Ga, 76 Ga and 90 Ga, 11-Ga, inquiry done against the landlord paper No. 44 Ga, the affidavit of Sri Vijay Lal 11 Ga, affidavit paper No. 28-Ga of Mohan Lal, by the landlord Sri Balbir Singh himself. The landlord has also filed document evidence i.e. Maikradhan Panjika, Extract of Nagar Palika Pauri Exhibit-1, Lagayat Exhibit-3, Notice No. 15 Ga of Assistant Development Officer, Paper No. 16 Ga, the application given to the Zila Gramodhyog Adhikari by the applicant/landlord, Bill 17 Ga, Certificate of Zila Udyog Kendra paper No. 18 Ga, application given to Khadi Gramodyog Board paper No. 19 Ga, Rent Receipt Paper No. 20 Ga, Deposit receipt paper No. 22 Ga, Notice given to applicant by Nagar Palika Paper No. 23 Ga and 24 Ga, Application of Manvar Singh Paper No. 25 Ga, Copy of the statement of Ahmad Sayeed Paper No. 78 Ga were filed.
13. Balbir Singh, the landlord has stated in his affidavit that petitioner is tenant at a rent of Rs. 100/- from about 8 years and he has been doing business of hardware by the name and style of Goodluck Hardware and prior to him his father was tenant at a rent of Rs. 90/- per month and he had a Shoe-shop.
14. It has been stated in the application filed by Sri Balbir Singh that he wants to open a show-room to display the wooden items. Paragraphs 3 and 4 of the application are quoted below:-
^^fd izkFkhZ ,d csjkstxkj O;fDr gS rFkk izkFkhZ ij vkB O;fDr vkfJr gS rFkk izkFkhZ dks y/kq m|ksx dh bdkbZ ls _.k ds Hk; ls [kknh o m|ksx ls dk"Bdyk ds m|ksx ds fy;s _.k Lohd`r gqvk gSA fd izkFkhZ viuh dk;Z'kkyk esa dk"Bdyk ls cuh oLrqvksa dk mRiknu dj cktj esa fcØh djuk pkgrk gS ftlls izkFkhZ viuk _.k vnk dj lds rFkk jkstxkj Hkh izkIr dj ldsaA**
15. The tenant has filed the evidence in the form of the affidavit i.e. paper No. 27-Ga, 69 Ga, 87 Ga, which are his own affidavit, affidavits of Rameshwar Prasad Paper No. 29 Ga, affidavit of Mobarak Hussain paper No. 30 Ga, affidavit of Vimla Nand Bahuguna paper No. 71 Ga and in the documentary evidence Notice Exhibit, 1 has been filed.
16. In his own affidavit, Ahmad Sayeed has denied the fact that he is doing business in the property in dispute from 7-8 years only, He has stated that he is doing business for the last 17-18 years in the building in dispute.
17. The petitioner has submitted that from Paper No. 44 Ga and 48 GA, it has been admitted to the respondent/landlord that the upper portion of the building has been given to Sri Vijay Lal at the rate of Rs. 100/- per month during the proceedings of the case.
18. The prescribed authority has framed following points for determination:-
^^1- D;k iz'uxr Hkou m- iz- vf/kfu;e la- 13 lu~ 1972 ds v/khu ugha gS vkSj D;k bl U;k;ky; dks bl izkFkZuk i= ds Jo.k dk {ks=k/khdkj ugha gS\ 2- D;k izkFkhZ dks iz'uxr Hkou dh ln~Hkkoh vko';drk gS\ 3- i{kdkjksa dh dfBukbZ;ksa dh rqyuk\ 4- izkFkhZ dks vuqrks"k ;fn dksbZ gks\**
19. Point No. 1 with regard to maintainability of the application:-
So far as point No. 1 is concerned, both the Courts below have recorded a finding that there is a relationship of landlord and tenant between the parties.
20. A perusal of the application filed under Section 21 (1) (a) shows that the building in question is two storeyed, in which at ground floor, the petitioner is a tenant at the rate of Rs. 100/- per month and he is carrying on business of hardware, pipe etc. for last 7 and 8 years in the name and style of Goodluck Hardware. Relevant Para is quoted below:-
^^fd mijksDr Hkou nq[k.Mk gS ftlesa izFke [k.M ij fo:ð i{k lkS :i;k 100] egkokj dh nj ls fdjk;snkj gSA rFkk gkMZos;j ikbZi vkfn dk O;kikj xqMyd gkMZos;j ds uke ls djhc 7&8 o"kksZa ls djrk gSA** In reply to Paragraph 2, the petitioner has stated as under:-
^^fd iSjk la[;k 2 esa ;g Lohdkj ugha gS fd fo:ð i{k dsoy 7&8 o"kksZA ls izkFkhZ ds Hkou ij fdjk;snkj ds :i esa O;kikj djrk gSA fo:ð i{k fiNys 17&18 lky ls fookfnr Hkou ij O;kikj dj jgk gSA**
21. In fact, it has been admitted by the petitioner that he is a tenant of the premises and as such it is not open for him to say that Court has no jurisdiction to decide the case.
22. In Nutam Kumar and Ors. v. IInd Additional District Judge and Ors. reported in A.R.C. 2002 (2) Page 645, the Apex Court has held as under:-
"In the case of Nankram v. Kundalraj, 1986 (2) SCR 839 : (1986) 3 SCC 83 : 1986 SCFBRC 315, the question was whether a lease in violation of statutory provisions was void. It was held that in the absence of any mandatory provision obliging eviction in case of contravention of the provisions of the Act the lease would not be void and the parties would be bound, as between themselves, to observe the condition of lease. It was held that neither of them could assail the lease a proceeding between themselves. This authority was in respect of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, whereunder also the landlord was obliged to intimate a vacancy to the Deputy Commissioner of the District and the Deputy Commissioner could allot or direct the landlord to let the house to any person. The provisions were more or less identical to the provisions of the said Act. This authority has directly dealt with the questions under consideration and answered them. The majority judgments takes note of this authority and holds as follows:
"With utmost humility and reverence it is stated that above observations are not compatible with provisions of Section 10 and 23 of the Contract Act. Otherwise also, it is most respectful pointed out that the statement of law contained in the said observation is, perhaps, in conflict with the law declared in the decisions of the Hon'ble Supreme Court in Wasman Shriniwas Kini v. Rati Lal Bhagwan Das and Co., 1959 (Supp 2) SCR 217; Shrikrishna Khanna v. Additional District Magistrate, Kanpur and Ors., 1975 (3) SCR 709; and Manna Lal Khetan v. Kedar Nath Kheta, 1977 (2) 190."
23. Relying upon the decision of Brij Nandan Sahai v. IIIrd Additional District Judge and Ors., 1996 All. L.J. 1221: 1996 (1) ARC 165 in Shankar Lal Khandelwal v. IVth ADJ, Mathura, 1998 (2) ARC, Page 506, Allahabad High Court has held that where the relationship of landlord and tenant is admitted, the proceedings under Section 21 (1) is maintainable. The relevant observations of the Allahabad High Court in the case of Shankar Lal Khandelwal (supra) is quoted below:-
"The landlord filed application under Section 21 (1) (a) of the Act on 22.1.1994 alleging that he was landlord of the accommodation in question. In Para 3 of the application it was stated that the petitioner is tenant of the said accommodation on monthly rent of Rs. 250 per month. The petitioner himself admitted that respondent No. 3 is landlord and he is tenant of the disputed accommodation on monthly rent of Rs. 250 per month. It was never the case of the petitioner that he is unauthorized occupant of the accommodation in question as there was no allotment order in his favour. In Brij Nandan Sahai Hajela v. IIIrd Additional District Judge and Ors., 1996 All. L.J. 1221 : 1996 (1) ARC 165, it has been held that if the application under Section 21 (1) (a) of the Act is filed on the allegation that there was no agreement of tenant between him and the tenant against whom the application under Section 21 (1) (a) is filed, the said application is maintainable under the provisions of the aforesaid Act."
24. Similar view has been taken by me in Shankari Devi v. District Judge Pauri Garhwal and Ors. reported in 2005 (1) A.R.C. Page 92 after relying upon the judgment of Shankar Lal Khandelwal (supra) as well as in 1996 (1) A.R.C. 165 Brij Nandan Sahai Hajela v. IIIrd Additional Civil Judge Shahjahanpur, 1996 (1) A.R.C. Page 165. Relevant Paragraphs 9 and 10 are quoted below:-
"Similar view has been taken in the case of Brij Nandan Sahai Hajela v. IIIrd Additional District Judge, Shahjahanpur reported in 1996 (1) A.R.C. 165. The observations made in Paras 8 and 9 are to the following effect:
"In Smt. Protima Chatterji and Ors. v. Special Judge, Kanpur and Ors., 1992 (2) A.R.C. 193, it was held that once the tenant admitted the relationship of landlord and tenant he cannot thereafter pleaded to be unauthorised occupant. The application filed under Section 21 (1) (a) of the Act is maintainable.
25. In view of the above, I find no infirmity in the findings recorded by the Courts below while deciding the application under Section 21 (1) of U.P. Act No. 13 of 1972 as maintainable.
26. Point No. 2 BONAFIDE NEED:-
While deciding the bona-fide need of the landlord it has come in the evidence that the landlord wants to display the wooden goods.
27. The Courts below have come to the conclusion that since the business of Show-room can be started only on the lower portion, therefore, both the Courts below have considered the requirement of the landlord as bonafide need.
28. Both the Courts below have also come to the conclusion that from the industrial department, a sum of Rs. 35,000/- was taken as loan and from the District Cooperative Bank Rs. 35,000/- was also taken and he has started the work of wooden articles and from the own residential place, he is doing the business and he has no other place to display. The findings of the Appellate Court is quoted below:-
^^Hkou fueqZfdr izkFkZuk i= esa mRrjnkrk us fookfnr nqdku dh ln~Hkkfod vko';drk bl vk/kkj ij crkbZ gS fd og ,d csjkstxkj O;fDr gS rFkk ml ij vkB O;fDr vkfJr gSa] mls y?kq m|ksx dh bdkbZ ds :I esa _.k m|ksx foHkkx ls dk"Bdyk midj.k ds fy, Lohd`r gqvk Fkk og viuh dk;Z'kkyk esa dk"V ls cuh oLrqvksa dk mRiknu dj cktkj esa fcØh djuk pkgrk gS ftlls og vius mijksDr _.k dks vnk dj lds rFkk jkstxkj Hkh izkIr dj ldsA vkxs ;g mYys[k fd; x;k gS fd mlds ikl dksbZ nqdku cktkj esa ugha gS tgka ij og viuh dk;Z'kkyk esa fufeZr oLrqvksa dks fcØh dj lds vkSj 'kks:i }kjk xzkgdksa dks ckrk lds rFkk vkd`"B dj ldsA bl rF; dks vihykFkhZ dh vksj ls mRrji= esa vLohdkj fd;k x;k gS vkSj ;g mYys[k fd;k x;k gS fd mlds dksbZ ln~Hkkfod vko';drk ugha gSA mRrjnkrk ds 'kiFki= 12 x esa ;g mYys[k fd;k x;k gS fd mlus viuh thfodk ds fy;s m|ksx foHkkx ls 35]000 :i;s _.k fy;s Fks bl _.k ls mlus y{ehukjk;.k jksM fLFkr edku esa dk;Z'kkyk [kksyh gS] mlsu dk;Z'kkyk ds fy, midjk.k vkfn Hkh Ø;
fd;s gSA bl lEcU/k esa mlus ftyk lgdkjh cSad ikSMh ds vUrj.k i= dks izLrqr fd;k ftlls xzkeks|ksx foHkkx us uksfVl dkxt la[;k 15 x esa Hkh gksrh gSA fcy ds'k eseksa dkxt la[;k 17 x ls Li"V gS fd mRrjnkrk us eq- 19]340@& :i;s esa midj.k Ø; fd;s FksA mls dk"B m|ksx vkjEHk djus ds fy, ftyk m|ksx foHkkx ls LFkkbZ izek.k i= dkxt la[;k 18 x Hkh izkIr gqvk FkkA blfy, ;g Li"V gksrk gS fd mlus viuh thfodk ds fy, dk"V m|ksx vkjEHk dj fn;k vkSj dk"B m|ksx ls fufeZr gksus okyh oLrqvksa dk mRiknu og vius gh ?kj esa dj jgk gSA blfy, mlus vius ?kj ij fufeZr dh xbZ dk"B dh ydM+h rFkk eqfrZ;ksa vkfn ds foØ; ds fy, 'kks:e esa iz'uxr Hkou dh vko';drk gSA**
29. Since there is no place for show-room and the same is being done at his house and therefore, I find no infirmity in the order passed by the Courts below treating the need of the landlord to be bonafide.
30. Further the choice of the landlord to settle his own business at any place of his choice cannot be denied.
31. In Mst. Bega Begum v. Abdul Ahmad Khan, 1979 A.I.R. SC Page 272 : 1986 SCFBRC, 346, it has been held:-
"The connotation of the term of the term requirement should not be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for the landlord to get an order of release. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds contemplated under Section 21 of the Act. The provisions contained in the Act strike a just balance between the genuine need of the landlord on the one hand and the great inconvenience and troubles of the tenants on the other. Since Section 21 of the Act is meant for the benefit of the landlord, therefore, it must be so construed as to advance the object behind the said provision. The tenant has to establish that if he is evicted he will suffer greater hardship as compared to the landlord and must lead clear evidence to show that inspite of the best efforts he was unable to get another alternative suitable accommodation in the absence whereof the scale of relative hardship may be tilted in favour of the landlord as the inconvenience, loss or trouble resulting from a denial of the order of release in favour of the landlord will for outweight the prejudice or the inconvenience which may likely be caused to the tenants."
32. The Apex Court in the case of G.C. Kapoor v. Nand Kumar Bhasin and Ors. reported in 2001 Supreme Court and Full Bench Rent Cases 541 has rightly pointed out the plight of a young man to settle in the business. The observations of the Apex Court in Paras 13 and 14 of the judgment are quoted below:-
"13. Another reasoning of the Courts below is that as Rohit did not start the business between the year, 1992 and 1997 by taking any property on rent, it could not be said that the appellant needed the suit premises to run the business. There is a categorical averment by the appellant would not be able to take any other premises on rent. Not starting the business in a rented premises during the above-mentioned period, cannot be a ground to deny decree for eviction of the suit premises. This Court in Gaya Prasad v. Pradeep Srivastava, 2001 (2) SCC 604 : 2001 SCFBRC 128, relying on early decisions of this Court held that the crucial date for deciding as the bona fide of requirement of the premises in question for starting clinic by the son of the landlord. The litigation continued for 23 years and during that period the son of the landlord joined provincial medical service and was posted at different places. The Court refused to take notice of the subsequent event holding that crucial date was the date of filing of the eviction petition.
14. That Courts below completely overlooked Clause (d) of Sub-rule (2) of Rule 16 of the rules while deciding the eviction petition. From the rule extracted earlier, the Court has to ascertain whether the son of the landlord has completed technical education and is not employed in the Government and wants to engage in self-employment. All the criteria laid down in the said clause have been proved and therefore, appellant is entitled to get the decree for eviction."
32. In the case of Prem Prakash and Ors. v. Second Additional District Judge, Allahabad and Ors. - Allahabad Rent Cases 1993 (1) Page 77, it has been held that no doubt true that the tenant will have to be ousted from a house, if a decree of eviction has been passed, yet such an event by itself will not be a valid ground for refusing a decree for eviction. The observation in the case of Prem Prakash Gupta (supra) is quoted as below:
"As observed by this Court in its decision in the case of Rajeshwari Prasad v. Fateh Bahadur Chaturvedi and Ors. reported in 1984 (1) ARC. 387, the bona fide need is the foundation of application for eviction of a tenant without which it cannot be allowed. Hardship is relative word"........................
33. In Tej Kumar v. Additional District and Sessions Judge, Hardwar and Ors. - 1994 (2) ARC 117, it has been held as under:
"The inaction of the tenant to search for an alternative accommodation, as already indicated hereinbefore, constitutes an additional factor which may outweight the hardship, if any, likely to be suffered by the tenant in the event of the grant of the release application in case where the bona fide requirement for the release stands conclusively established."
34. In view of the judgments of the Apex Court in Parvati Bega Begum v. Abdul Ahmad Khan, 1979 A.I.R. SC page 272 : ARC. 1984 (1) Page 113, N.S. Dutta v. VIIth Addl. District Judge, Allahabad, Tej Kumar v. Additional District and Sessions Judge, Hardwar and Ors., 1994 (2) ARC 117, G.C. Kapoor v. Nand Kumar Bhasin reported in 2001 Supreme Court and Full Bench Rent Cases, 541, I do not find any infirmity with the findings of bonafide need of the landlord.
35. Point No. 3 COMPARATIVE HARDSHIPS:-
So far as the comparative hardship is concerned, it has come on the record that the tenant has various alternative shops available with him. The said fact has been submitted by the landlord in Paragraph 7 and 8 of the application. The same are quoted below:-
^^fd iSjk la[;k 7 ftl izdkj fy[kk x;k gS og xyr gS og Lohdkj ugha gSA fooj.k vfrfjDr dFku esa fn;k tk jgk gSA fd iSjk la[;k 8 xry gksus ls Lohdkj ugha gS] ikSMh uxj esa fdlh O;kikj fo'ks"k dk dksbZ fuf'pr cktkj ugha gS lHkh O;kikjh viuh lqfo/kk o xzkgdksa dh miyC/krk ds vk/kkj ij iwjs 'kgj esa LFkku LFkku ij fofHkUu izdkj ds O;kikj djrs gSA ;g dguk Hkh xyr gS fd yksvj cktkj esa izeq[k :i ls gkMZos;j] ikbZi isaV vkfn dh nqdkuksa gSA yksvj cktkj esa lHkh izdkj ds O;kikj iwjs uxj ds leku gS ogka ekl ds O;kikj ls ysdj izpwu] Vsyj] ikbi] bULVhV~;wV vkfn lc izdkj ds O;kikj gksrs gSa vkSj ;g dguk xyr gS fd ogka vf/kdrj xzkgd gkMZos;j] ikbi] isaV vkfn ds fy;s tkrs gSaA ikSMh esa yxHkx lHkh izeq[k cktkjksa esa ,d nks gkMZos;j isaV dh nqdku gSaA**
36. Both the Court below have recorded a finding that the tenant/petitioner is available with him an alternative accommodation.
37. The said finding is mentioned in Paragraph 22 Page 95. The same is quoted below:-
^^tgka rd ckn fcUnq la[;k 33 dk iz'u gS ;g rqyukRed dfBukbZ ds laca/k esa gS rFkk bldk fu"d"kZ fo}ku v/khuLFk U;k;ky; }kjk mRrjnkrk ds i{k esa rFkk vihykFkhZ ds fo:ð fn;k x;k gSA bl laca/k esa vihykFkhZ dh vksj ls ;g rdZ izLrqr fd;k x;k gS fd v/khuLFk U;k;ky; us ;g ekuk fd fuHkZfDr izkFkZuk i= ds izLrj la[;k 3 dks ns[kk tk; rks mlesa lkQ :i ls mRrjnkrk ds izLrj la[;k 3 ds rF;ksa dks lR; gksus ls bUdkj fd;k x;k gSA v/khuLFk U;k;y; us ;g ekuk gS fd vihykFkhZ us vius mRrj i= ds izLrj la[;k 20 esa bl ckr dks Lohdkj fd;k x;k gS fd mldk ,d Hkou viu cktkj ikSMh esa gS tcfd ,slk dksbZ Hkh rF; vihykFkhZ us vius mRrj i= ds izLrj la[;k 20 esa Lohdkj ugah fd;k gS fd mlds ikl vij cktkj fLFkr Hkou ij edku [kkyh gSA vihykFkhZ us Li"V :i ls vius mRrj i= ds izLrj la[;k 20 esa ;g mYys[k fd; fd vihykFkhZ ds Hkoj ij ,d nqdku vij cktkj ikSMh esa gS ftl ij JH foey dqekj cgqxq.kk fdjk;snkj gSA mldk yksvj cktkj ikSMh esa fLFkr edku esa dksbZ nqdku ugha gSa] flQ ,d dejs ij gkMZos;j dk xksnke gSA vihydrkZ bl ij vius lkeku yksgs dh Hkkjh oLrqvksa vkfn dh laxzg djrk gS] D;ksafd fookfnr nqdku izFke ry ij fLFkr gS ml ij Hkkjh oLrqvksa dk LVksj ughaa fd;k tk ldrkA vkxs ;g rdZ izLrqr fd;k x;k gS fd v/khuLFk U;k;ky; us bl laca/k esa ;g fu"d"kZ xyr fn;k gS fd yksvj cktkj ikSMh esa fLFkr edku ua- 107 esa foi{kh Lo;a nqdku djrk gS vkSj viu cktkj] ikSMh esa Hkh rhu vU; nqdkusa gSa] blfy;s vihydrkZ dks rqyukRed dfBukbZ Hkou [kkyh djus dh fLFkr esa ;g ugha gksrh gS dkxt la[;k 44 x mRrknkrk cychj flag dh izfr ijh{kk esa ;g Lohdkj fd;k x;k gS fd vij cktkj o yksvj cktkj ikSMh esa vihydrkZ dh dksbZ nqdku [kkyh ugha gSA mRrjnkrk ds lk{kh eksguyky us izfr ijh{kk dktx la- 48 x esa ;g mYys[k fd;k gSA fd vihydrkZ ds vij cktkj o yksvj cktkj ikSMh fLFkr Hkou esa dksbZ nqdku [kkyh ugha gSA blds vykok 'kiFki= foey dqkej cgqxq.kk dkxt la[;k 71 x ds }kjk ;g dgk x;k gS fd og vihydrkZ ds vij cktkj ikSMh esa fLFkr nwdku dk crkSj fdjk;snkj v/;kflr gSA 'kiFki= ds izLrj la[;k 4 esa ;g mYys[k x;k gS fd vgen lbZn ds vij cktkj] ikSMh esa fLFkr Hkou v @ 28 ls viuk v/;klu ugha gVk;lk gS rFkk mRrjnkrk ds 'kiFki= 11-3-1993 esa fn;s x;s dFkuksa dk [k.Mu djrk gSA vkxs ;g rdZ izLrqr fd;k x;k gS fd vfHkys[kh; lk{;ksa dks ns[kus ls ;g rF; lkfcr ugha gksrk fd vihykFkhZ ds ikl vij cktkj o yksvj cktkj ikSMh fLFkr Hkouksa ij dksbZ nqdku fLFkr gSA dkxt la[;k 14 x esa LiLV mYys[k gS fd Hkou la[;k 2@106 vihydkrkZ dk Lo;a fjgk;'kh edku gSA dkxt la[;k 14x@2 esa ;g Li"V gS fd vij cktkj ikSMh fLFkr la[;k v@28 esa ,d fr[k.Mh nqdku ij foey dqekj cgqxq.kk fdjk;snku v/;kflr gS rFkk nks vU; fdjk;snkj Hkh v/;kflr gSA blds vfrfjDr mRrjnkjkr o mlds lk{kh eksguyky us viuh izfrijh{kk dkxt la[;k 44x o 48 x esa bl rF; dks Lohdkj fd;k gS dh vihydrkZ dk dkjksckj vPNk gSA vkSj mls xqMfoy gkfly gSA blfy, v/khuLFk U;k;ky; }kjk okn fcUnq la[;k 3 ds lUnHkZ esa tks fu"d"kZ fn;k x;k gS fd og fof/kd ugha gS] vkSj iUUkoyh ij miyC/k lk{; fd foijhr gSA blfy, ;g fu"d"kZ Hkh v/khuLFk U;k;ky dk vikLr gksus ;ksX; gSA**
38. Rule 16 of Act No. XIII of 1972 has been interpreted in the case of Munni Lal Gupta v. VIIth Additional District and Sessions Judge, Aligarh reported in 1997 (1) A.R.C. 301. After relying upon the judgment of Rajendra Kumar v. Gopal Krishnan and Ors., A.I.R. 1995 Allahabad 82 : 1994 (2) ARC 11, it has been held that suitable alternative accommodation, which may become available on an effort being made in that direction is also a factor to be considered and want or earnest efforts in looking for suitable alternative accommodation, disentitles protection given to the tenant while considering the comparative hardship of the parties. The observations in the decision of Munni Lal Gupta (supra) are quoted below:-
"A suitable alternative accommodation which may become available on an effort being made in that direction is also in the comprehension of the expression and in the facts and circumstances of the case, it has been held that the petitioner was wanting in earnest efforts in looking for suitable alternative accommodation, notwithstanding the fact that the litigation between the parties had protracted to considerable stretched. In Rajendra Kumar Gupta v. Gopal Kishan and Ors., AIR 1995 Alld. 82 : 1994 (2) ARC 11, it has been held by Sudhir Narain, J. and I concur with the view take therein that "one of the principles for considering comparative hardship of the parties is to find out as to whether the tenant had made a sincere efforts to find out alternative accommodation and had placed materials before the authorities to come to their conclusions that he made such an effort." The fact that earlier application for release, met the fate of rejection some 10 years ago, could not be projected backward to operate as an obstacle in the way of the release application being allowed as with the passage of time, the situation has undergone considerable change. Indubitable, landlord Gupta did his M.A. after rejection of the earlier applications and his failure to secure employment for himself, lends cogency to his moving the present application.
39. I find no infirmity in the order passed by the Court below while deciding the comparative hardship of the parties in favour of the landlord.
40. Point No. 4 Interference under Article 226/227 of the Constitution of India:-
In view of the judgment of Apex Court reported in 2003 (1) ARC 613, 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 concurrent findings and High Court cannot act like an appellate Court under Article 226/227 of the Constitution of India.
41. In Surya Dev Rai v. Ram Chander SCC 2003 Vol-6, 675 : 2003 (2) ARC 385, the Apex Court has held as under:-
"Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a 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 injustice has occasioned thereby, the High Court may step into exercise its supervisory jurisdiction."
"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 requirement 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 (ii) a grave injustice or gross failure of justice has occasioned thereby."
"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 of patent."
"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 jurisdiction is sought to be invoked during the pendency of any suit or correction is yet capable of being corrected at the conclusion of the proceedings is an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and or early disposal of the suit of proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that every moment, may become incapable of correction at a letter stage and refused to intervene would result in stravesty of justice or where such refusal itself would result in prolonging of the lis."
"The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a Court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character."
42. Relying upon the judgment of Surya Dev Rai v. Ram Chandra, 2003 (6) SCC 675 : 2003 (2) ARC 385, the Apex Court in Ranjeet Singh v. Ravi Prakash, 2004 (3) SCC 682 : 2004 (1) ARC 613, has held as under:-
"As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution of India also, it has been held in Surya Dev Rai 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."
43. In the case of India Pipe Fitting Co. v. Fakruddin M.A. Baker and Anr. reported in 1978, A.I.R. (S.C.) Page 45 : 1978 ARC 224, the Apex Court has held as under:-
"The limitation of the High Court while exercising power under Article 227 of the Constitution is well settled. 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 well settled and perhaps too late in the day to refer to the decisions 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 Harris 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 to Subordinate Courts within the boundary of their authority and not for carrying mere errors."
44. In view of the above, I find no infirmity in the orders passed by the Courts below while exercising the jurisdiction under Article 226/227 of the Constitution of India.
45. However, time is granted up to 31st of July, 2005 to vacate the premises provided an undertaking is given in the following terms by the petitioner:-
(i) to vacate the premises by 31st of December, 2005.
(ii) the undertaking shall be furnished by 7th of March, 2005
(iii) in case of default the decree for eviction shall be executed forthwith.
Writ Petition is dismissed. No order as to costs.