Allahabad High Court
Heera Lal Agarwal And Another vs Iind Additional District Judge, ... on 28 September, 2000
Equivalent citations: 2000(4)AWC3121, 2000 ALL. L. J. 2893, 2001 A I H C 405, (2000) 2 ALL RENTCAS 703, (2001) 1 RENCJ 355, (2001) 1 RENTLR 399, 2001 ALL CJ 1 281, (2000) 4 ALL WC 3121, (2000) 41 ALL LR 500, (2001) 1 RENCR 323
JUDGMENT R.H. Zaidi, J.
1. By means of this petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the judgment and order dated 25.11.1997 passed by the appellate authority allowing the appeal and setting aside the judgment and order dated 30.8.1996 passed by the prescribed authority in the proceeding under Section 21(1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. XIII of 1972), for short the Act.
2. The dispute relates to shop Nos. 5/23, 5/24. Nehru Nagar, Farrukhabad (hereinafter referred to as shop in dispute). The petitioner is a tenant of the shop in dispute and used to carry on "sarrafa" business in the said shop for last more than 40 years in the name and style of Firm Sundar Lal Ram Bharose and Company. The respondent Nos. 2 and 3 (hereinafter referred to as contesting respondents) applied for release of the shop in dispute as according to them the said shop was needed for setting Prabhat Kumar son of Rajendra Prasad (respondent No. 2) in the business of sale of furniture and gift articles. It was stated that Prabhat Kumar completed his education in 1992 but since then he was Jobless and for that reason he was also not being married. It was pleaded that the petitioner No. 1 had an alternative accommodation in his possession at Lohai Road, Farrukhabad and could also acquire other shop, that need of the contesting respondents was bona fide and genuine. It was also pleaded that the contesting respondents were also willing to have shop at Lohai Road, Farrukhabad, owned by respondent No. 1 at the same rent at which the shop in dispute was let out to him if the same was offered to them by petitioner after getting it repaired. It was stated that the contesting respondents asked the petitioner to vacate the shop in dispute to which he did not agree. Plea of comparatively more hardship, in case the release application was rejected, was also taken. The petitioner No. 1 filed his written statement/objection on receipt of notice from the Court of prescribed authority admitting relationship of landlord and tenant between the parties ; but controverting and denying the rest of the allegations made in the release application. It was pleaded that actually the shops in dispute, were two shops on the spot. One was let out at the rent of Rs. 30 per month and other at the rent of Rs. 93.75 per month, total Rs. 123.75 per month. Prabhat Kumar son of respondent No. 2 actually had no need for the shop in dispute as he was already engaged in the family business. It was also pleaded that alternative place for setting him in business was available to the landlords at Lohai Road as they had two shops on the said road Sarrafa bazar was the centre of sarrafa business and the shop in dispute was not fit for starting proposed business of furniture and gift articles. The said shop was also not big enough to start the said business. The petitioner had been carrying on sarrafa business in the shop in dispute for last 40 years. He with the consent of landlords made a show room to make the shop more attractive after spending sufficient amount of money. The said business was the only source of his livelihood. He has earned goodwill in the said business. His two sons also sit in the said shop and if he was uprooted from the said shop, he shall be ruined. It was also pleaded that Prabhat Kumar son of respondent No. 2 was carrying independently the business of general merchant in the name and style of Firm Sundar Lal Ram Bharose and Company which was situated on the first floor of their general store at Nehru Road. Even at Lohai Road the landlords used to carry on the business of brassware. They actually wanted to enhance the rent of the shop in dispute. In view of these facts there was absolutely no question of any hardship what to say of comparatively greater hardship to the landlords if their application was rejected. The release application was, therefore, liable to be dismissed.
3. In support of their cases the parties have produced evidence, oral and documentary. The prescribed authority after perusing the material on record recorded clear and categorical findings against the contesting respondents on the relevant questions involved in the case. It was held that the need of the landlords was neither bona fide nor genuine. They had two storied shop at Nehru Road and were engaged in family business of general merchandise. Pawan Kumar, the other son of respondent No. 2 also used to work at that shop. It was held that even at Lohai Road they had two ancestral shops in which they were also carrying on business. The shop in dispute was not fit for establishment of business of furniture and gift articles, as the said business requires a big and spacious shop, with show room and place to manufacture and repair furniture. The shop in question was smaller in size which was situated in sarrafa market and was fit for sarrafa business only in which petitioner No. 1 used to carry on business for last 40 years. It was also held that the landlords have owned three brick kilns and members of their family used to do and look after the said business. The prescribed authority also recorded clear and categorical finding that Prabhat Kumar also used to do business in the name and style of M/s. Sundar Lal Ganga Saran and Company. The prescribed authority also held that with a view to make out a case for release of the shop in dispute, during the pendency of the case, the landlords appear to have entered into a partition and also pretended to claim that one brick kiln was closed. Even on the question of comparative hardship, it was held that the landlords shall suffer absolutely no hardship if their application was rejected. On the other hand, if the petitioner No. 1 was uprooted from the shop in dispute, he shall be totally ruined as he had no alternative suitable place to shift his business. The shop situated at Lohai Road was also not found fit to shift the proposed business as there was no sarrafa shops at that place. After recording said findings by judgment and order dated 30.8.1996 the release application was rejected by the prescribed authority.
4. Aggrieved by the said judgment and order passed by the prescribed authority, the contesting respondents filed an appeal before the appellate authority. Before the appellate authority it was urged that the judgment and order passed by the prescribed authority was illegal and contrary to evidence on record, therefore, the same was liable to be set aside. The appellate authority agreeing with the submissions made by the learned counsel for the respondents set aside the judgment and order passed by the prescribed authority and allowed the appeal by its Judgment and order dated 25.11.1999, hence, the present writ petition.
5. Learned counsel appearing for the petitioners vehemently urged that the appellate authority has acted illegally in setting aside the Judgment and order passed by the prescribed authority without critically examining properly setting aside the findings on which said Judgment was based. It was urged that the appellate authority has acted illegally in not reversing the findings on the question of comparative hardship in accordance with law and in allowing the appeal, k was urged that under the facts and circumstances of the case no reasonable person could arrive at a finding that the need of the landlords for the shop in dispute was genuine or bona fide or that they were to suffer any hardship in case their application was rejected. The Judgment and order passed by the appellate authority was, therefore, liable to be set aside. Learned counsel for the petitioner also submitted that the petitioners were willing to offer one shop to the contesting respondents at Lohai Road after getting the same repaired and renovated and after making it fit for their requirement, if they were willing to accept the same.
6. Learned counsel for the contesting respondents submitted that before the authority below, their offer was not accepted by the petitioners. Therefore, at this stage, for him, there is no occasion to accept the offer. It was also urged that the judgment and order passed by the appellate authority was quite valid and legal.
7. I have considered the rival submissions made by the learned counsel for the parties and also carefully perused the record.
8. The main thrust of the argument of learned counsel for the petitioners is that the appellate authority has without critically examining the Judgment and order passed by the prescribed authority, without meeting the reasons given by the said authority and without reversing the findings recorded by it, recorded its own findings on the question of bona fide need. The appellate authority, thus, acted as if it was the original authority. It recorded its own findings and substituted the same in place of the findings recorded by the prescribed authority, therefore, the judgment and order passed by the appellate authority was bad in law and was liable to be set aside. The judgment of the appellate authority is the Judgment of reversal, therefore, it should be adequate and satisfactory. It is well-settled in law that the Judgment of reversal must contain, definite findings on the questions involved and must give reasons for reversing the decisions of the prescribed authority. The appeal was filed against the order passed by the prescribed authority dismissing the release application filed under Section 22 of the Act, which reads as under :
"22. Appeal.--Any person aggrieved by an order under Section 21 or Section 24 may within thirty days from the date of the order prefer an appeal against it to the District Judge, and in other respects, the provisions of Section 10 shall mutatis muntandis apply in relation to such appeal."
9. Section 22 of the Act provides that the provisions of Section 10 of the Act shall mutatis mutandis apply in relation to an appeal filed under Section 22 of the Act. Section 10 of the Act reads as under :
"10. Appeal against order under Sections 8, 9 and 9A.--(1) Any person aggrieved by an order of the District Magistrate under Section 8 or Section 9 or Section 9A may, within thirty days from the date of the order, prefer an appeal against it to the District Judge, and the District Judge may either dispose it of himself or assign it for disposal to an Additional District Judge under his administrative control, and may recall it from any such officer, or transfer it to any other such officer.
(2) The appellate authority may confirm, vary or rescind the order, or remand the case to the District Magistrate for rehearing, and may also take any additional evidence, and pending its decision, stay the operation of the order under appeal on such terms, if any, as it thinks fit.
(3) No further appeal or revision shall lie against any order passed by the appellate authority under this section, and its order shall be final."
10. The scope of appellate powers came to be considered by this Court in Gyan Chand v. Additional District Judge, Badaun and another. 1996 (2) ARC 479, wherein, it was held as under :
"8. A reading of Section 22 with Section 10 of the Act clearly shows that the appellate authority has got the power of confirming, varying or rescinding the order under appeal. It has also got power to remand the case to the authority below and to grant interim order on such terms as it thinks fit. The order passed by the appellate authority has been made final under subsection (3) of Section 10 of the Act. The appellate authority while confirming varying or rescinding the order, will have to act Judicially and in accordance with law. The appellate authority will have to record the reasons for passing the said order particularly while passing an order of reversal."
After considering the decisions in the cases of Ram Niwas Pandey v. VIIth Additional District Judge, Kanpur and another. 1982 (1) ARC 246, Mohd. Nanhey Mian v. IVth Additional District Judge, Aligarh and others. 1982 (2) ARC 527, Mahavir Jain v. 1st Additional District Judge, Jhansi and others, 1985 (1) ARC 368, it was ruled as under:
"In the aforesaid decisions, in the similar circumstances, the orders passed by the appellate authority have been quashed by this Court on the ground that they did not examine the findings recorded by the prescribed authorities critically the material, which was relied upon by the prescribed authorities and reasons recorded by them for the conclusion arrived at, remained untouched."
Similar view was taken by this Court in Ramesh Chandra v. IInd Additional District Judge, Allahabad, 1996 (2) ARC 617.
11. From the reading of the aforesaid Sections of the Act and decisions, it is evident that the appellate authority/District Judge may confirm, vary or rescind the order or remand the case to the prescribed authority for re-hearing besides conferring other powers. In the present case, the appellate authority has rescinded (reversed) the judgment and order passed by the prescribed authority, therefore, the judgment of the appellate authority must satisfy the basic requirements of the judgment of reversal, which have been stated above. In the Act and the Rules prescribed thereunder, no detailed procedure for deciding an appeal has been provided but subsection (7) of Section 34 of the Act provides as under :
"34. Powers of various authorities and procedure to be followed by them--(1).....
(7) The District Magistrate, the prescribed authority or the appellate or revisional authority shall record reasons for every order made under this Act."
12. In view of the aforesaid provision, the Judgment of the appellate authority must contain reasons. This Court has consistently ruled that the appellate authority should examine the judgment of the prescribed authority critically if it wanted to reverse the findings recorded by the prescribed authority. It must meet the reasons recorded, after referring to the evidence which was referred and relied upon by the prescribed authority, including such other evidence which formed part of the record and thereafter, it could reverse the findings and record its own findings on the questions involved in the appeal.
13. In the present case, the appellate authority, after stating the facts and some of the findings recorded by the prescribed authority while examining the questions of bona fide and genuine need, recorded its own findings, it also referred to certain decisions of this Court and abruptly reached the conclusion that the prescribed authority committed mistake in analysing the facts and law and that the appeal had force and was liable to be allowed without critically examining the findings and without meeting reasons recorded by the prescribed authority.
14. It is evident from the judgment and order passed by the appellate authority that what has weighed with it to allow the appeal, was the fact of availability of alternative accommodation at Lohai Road. The prescribed authority, while dealing with the question of availability of alternative accommodation, rejected the contention of the contesting respondents on the ground that the petitioner has been carrying on sarrafa business in the shop in dispute for about 40 years. He with the consent of the landlord, made showroom attractive after investing sufficient amount, earned goodwill in the said business. The said business was the only source of his livelihood and his two major sons also used to sit with him on the shop in dispute, and that Prabhat Kumar, son of the petitioner No. 2 was already engaged in the business in the name and style of Sundar Lal Ram Bharose and Company, and also used to assist his father in the ancestral business. He was carrying on the business of brick kiln and that at Lohai Road, there was no sarrafa business carried on by any other person. It was not a fit and proper place for sarrafa business. In Dr. M.K. Salpekar v. Sunil Kumar Shyam Sunder Chaudhary and others, AIR 1988 SC 1841, the Apex Court of the country, while considering the question of alternative accommodation was pleased to rule as under:
"When Court is called upon to decide whether another building available to the tenant can be treated as alternative accommodation, it has to consider whether the other building is capable of reasonably meeting the requirements of the tenant on his vacating the disputed premises."
15. In Pitamber Lal Gupta v. Bankey Lal and others, 1978 ARC 17, this Court ruled as under :
"The alternative premises must be such where the business could be carried on by the petitioner. The State Government again appears in favour of the respondent Nos. 1 and 2 and without discussing the evidence on the said question, held that the premises No. 27/33, Katra, Allahabad, could be used by the petitioner for carrying on his business. The State Government ought to have considered the evidence of the petitioner which was to the effect that the same was not suitable for the purposes of doing the business" :
16. Similar view was taken by this Court in Ram Swamp Gupta v. IIIrd Additional District Judge and others, 1978 UPRCC 446, wherein it was held as under :
"Mere availability of an accommodation is not enough. Whether it is adequate for the nature and the requirement of the business to be carried on as also the location of that accommodation are important circumstances. The floor space area available in the alternative accommodation may also form an important consideration depending on the nature of business carried on."
17. According to the version of the petitioners, at Lohai Road no shop is available : but even if it is available, it does not satisfy the requirements of an alternative accommodation as held in the above noted decisions. The view taken and the finding recorded by the appellate authority, to the contrary, to the effect that there existed an alternative accommodation was not correct. The appellate authority has not applied its mind to the fact that all the four shops or any one of them situated at Lohai Road was vacant and available to the petitioner and that it satisfied the requirement of an alternative accommodation.
18. There is another aspect of the matter, as in paragraph 6A of the release application, it was stated as under :
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19. From the above noted paragraph, it is evident that the dispute could be resolved if one shop at Lohai Road was offered by the petitioner and the same is accepted by the contesting respondent Nos. 2 and 3. With this view in consideration, I asked the learned counsel for the petitioner as to whether the petitioner was willing to accept the offer and provide one shop suitable for the purpose of Prabhat Kumar. Learned counsel for the petitioner after consultation with his client made statement at the Bar that he was willing to offer a shop suitable for the purpose of Prabhat Kumar on the same terms and on the same conditions the shop in dispute had been let out to the petitioner. It was also stated that the shop shall be repaired and renovated according to the wishes of the contesting respondents within such reasonable time as may be prescribed by this Court. The learned counsel appearing for the contesting respondents also consulted his client after the aforesaid offer was made ; but according to him, the contesting respondents declined to accept the offer. Legally, the contesting respondents are bound by their statements of fact made in paragraph No. 6A of the release application as the same so far has not been withdrawn specifically or otherwise.
20. In support of their pleas regarding partition of property and closure of brick kiln business, the contesting respondents filed supplementary counter-affidavit along with which as many as 15 documents have been filed as annexures. Learned counsel for the respondents wanted to rely on the said documents. In the affidavit, it has not been stated as to whether these documents were filed before the authorities below or they are being produced before this Court for the first time, in any view of the matter, this Court, in exercise of its power under Article 226 of the Constitution of India, cannot appraise or re-appraise the evidence and cannot record its own findings on the questions of fact involved in the case.
21. It may also be noticed that the prescribed authority has recorded a clear and categorical finding on the question of comparative hardship in favour of the petitioner. The appellate authority did not reverse the said finding in accordance with law. Legally, without reversing the said finding, the judgment and order passed by the prescribed authority could not be reversed, therefore, the judgment and order passed by the appellate authority is bad in law judging from the said angle. A reference in this regard may be made to a decision in Shyam Lal v. VIIth Additional District Judge, Meerut and others, 1986 (1) ARC 34.
22. In view of the aforesaid discussions, the judgment and order passed by the appellate authority dated 25.11.1997 is liable to be set aside and the case is liable to be remanded to the appellate authority for decision in the light of the observations made above.
23. The writ petition succeeds and is allowed. The judgment and order dated 25.11.1997 passed by the respondent No. 1 is hereby quashed. The case is remanded to the appellate authority for decision afresh in the light of the observations made above. The appellate authority shall also take into consideration the offer made by the petitioner to provide a suitable shop to the contesting respondents at Lohai Road while deciding the appeal. It is further observed that the appeal shall be decided expeditiously.