Mahesh Chandra Raikwar And 2 Ors. vs Dr. Ravi Kankane
2013 Latest Caselaw 5024 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved.
 

 

 
Civil Misc. Writ Petition N0. 23924 of 2013
 
Mahesh Chandra Raikwar and others......................................Petitioners.
 
Vs.
 
Dr. Ravi Kankane.................................................................Respondents.
 

 

 
Hon'ble Rajes Kumar, J.

This is the petition filed by the tenants, challenging the order of the Additional District District Judge, Jhansi dated 9.4.2013 by which the appeal filed by the petitioners against the order of the Prescribed Authority dated 11.5.2010 in P.A. Case No. 25 of 2008 has been rejected.

The brief facts giving rise to the present writ petition are that the petitioners are the tenants of shop nos. 139, 140 and 141 ( New Nos. 185 & 186) Mohalla-Hingan Katra, Jhansi in which there are three shutters in which they are carrying on the business of Sweetmeat.

In a shop adjacent to the disputed shop, the respondent-Dr. Ravi Kankane is running his Dental Clinic since long. In the year 1988, the respondent purchased the house in which the disputed shop as well as the area in which the respondent is running the Dental Clinic in shop no. 142 are situated. After purchase of the shop in dispute, the respondent has given a notice dated 14.11.1991 to the petitioners to evict the shop on the ground that he needed the shop to expand his Dental Clinic. After giving the notice, a release application was filed, which was registered as Case No. 26 of 1992. The said release application has been rejected by the Prescribed Authority vide order dated 5.2.2000 on the ground that the release application has been filed before expiry of six months and, therefore, it is not maintainable. Against the order of the Prescribed Authority, the respondent filed an appeal, which has been dismissed vide order dated 30.5.2001.

It appears that meanwhile, the respondent purchased a property at Civil Lines, Jhansi and constructed his residential house, his clinic and few shops. The shops have been let out. Thereafter, the respondent filed a release application under Section 21 (1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the ("Act") for the release of the shops, which was registered as P.A. Case No. 25 of 2008. The application was filed on the ground that he is a Dental Doctor and running the clinic since last 35 years in shop no. 142 (New No. 184), the shop adjacent to the disputed shop and to expand the clinic has purchased the shop in dispute. Now his son Sri Raghvendra Kankane has given the examination of B.D.S. and for the purposes of his son to run the Dental Clinic, the shop in dispute is required. It was explained that earlier the release application was dismissed on the ground that the release application was filed before expiry of six months. Having regard to his need under compulsion, he had purchased one plot at Civil Lines, Jhansi and constructed a clinic as per his need. Now to construct a well equipped Modern Dental Clinic in which the dental chairs, Ex-ray machines, space for sitting the patients, operatory room, bathroom, consultation room, Dental lab, Orthopentomography room, staffs and technician room, major O.T. and recovery rooms are required and for that purpose the shop in dispute is genuinely required. The petitioners filed the written statement and contested the release application. It was also stated that in front of the shop in dispute, on a main crossing, the petitioner-tenants have constructed a Sweetmeat shop in which they are carrying on the business of Sweetmeat on a large scale and the petitioners are retaining the shop in dispute only with intent to get the premium and to harass by putting a Bhatti. The Prescribed Authority on consideration of the entire facts and circumstances, by the order dated 11.5.2010 allowed the release application. The Prescribed authority further directed the petitioners to pay the rent of two years and on payment of of such rent, the petitioners have been directed to evict the premises within one month.

Being aggrieved by the order of the Prescribed Authority, the petitioners filed an appeal, being appeal no. R.C.A. No.19 of 2010. During the pendency of appeal, the petitioners moved an application seeking amendment for adding a plea that no notice has been given as required under the proviso to Section 21 (1)(a) of the Act before filing the release application. The said application has been allowed by the Additional District Judge vide order dated 9.11.2011 on the cost of Rs.2,000/- and the petitioners have been permitted to add paras-33 and 34 in the written statement, with the condition that the amendment shall not relate back to the date of filing of written statement and the landlord shall be free to argue the waiver of notice at the time of final argument. The Additional District Judge vide its impugned order dated 9.4.2013 dismissed the appeal, which is being challenged in the present writ petition.

Heard Sri Atul Dayal, learned counsel for the petitioners and Sri A.K. Goel, learned counsel appearing on behalf of the respondent.

Learned counsel for the petitioners submitted that without giving six months notice as required under the proviso to Section 21 (1)(a) of Act, the release application is being filed and, therefore, it is not maintainable. The notice is mandatory and the release application would only be maintainable when six months notice is given, but in the present case, no notice has been given. He submitted that the respondent has constructed a huge building at Civil Lines, Jhansi, which consists of residential accommodation, big Dental Clinic and several shops, which have been let out. These shops were vacant during the pendency of appeal and such shops can be used to settle his son inasmuch as his son can also work along with his father in a Dental Clinic, situated at Civil Lines, Jhansi. The appellate authority has not considered the Commissioner's report wherein alternate accommodation available with the landlord has been stated. He submitted that the building and shops constructed in front of the shop in dispute at the main crossing belong to the brother of the petitioners and is not owned by the petitioners and the petitioners have only disputed shop in their possession to carry on the business of Sweetmeat and in case if the petitioners would be asked to evict the shop in dispute, the petitioners would suffer irreparable loss. He submitted that during the pendency of the appeal, an affidavit has been filed giving the details of the shops, which were vacant but the same have not been considered. In support of the submission that six months notice is necessary for the maintainability of the release application, reliance is placed on the decision of this Court in the case of Deep Kumar Vs. D.J., Jhansi & others, reported in 2013 (1) ARC 797 (para-14). In support of the submission that if the landlord has another commercial accommodation, the need of the landlord in respect of the shop in dispute cannot be said to be genuine and further the entire accommodation in possession of the landlord has to be seen to judge the bona fide need. Reliance is placed on the decision of the Apex Court in the case of D. Devaji Vs. K. Sudarashana Rao, reported in 1994 Supp (1) SCC 729. He submitted that subsequent event can be considered at any stage. Reliance is placed on the decision of the Apex Court in the case of Jai Prakash Gupta (Dead) through LRS. Vs. Riyaz Ahmad and another, reported in (2009) 10 SCC 197 (paras-22 to 25) and the Division Bench decision of this Court in the case of Smt. Kanta Devi Jain Vs. Additional District Judge and others, reported in 1983 (2) ARC 436 (paras 10 & 11). He submitted that since the Commissioner's report has not been considered, the order stands vitiated. Reliance is placed on the decision of this Court in the case of Abdul Sattar Khan and another Vs. District Judge, Shahjahanpur and others, reported in 1996 (2) ARC 153 (para-12).

Sri A.K. Goel, learned counsel for the respondent referred the averments made in the counter affidavit and the documents annexed. It is submitted that proviso to Section 21 (1) (a) of the Act provides that where the building was in the occupation of a tenant since before its purchase by the landlord, no application shall be entertained unless a period of three years has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years. The object of giving six months notice is only to provide sufficient time to enable him to put his house in order and to get the matter settled amicably or to get alternative accommodation if the tenant realises that the landlord has a good case. Though six months notice is mandatory but it is not a jurisdictional notice. He submitted that notice has already been given on 14.11.1991 wherein the petitioners have been required to vacate the premises on the ground of bona fide need, which has been replied by the petitioners. The reply of the petitioners is Annexure-5 to the counter affidavit wherein in para-5 it is stated that the bona fide requirement of the landlord has been disputed on the ground that the landlord has sufficient space to run the Dental Clinic whereas they were running the Sweetmeat shop since 45 years. Once the notice has been given as required under the proviso to Section 21 (1) (a) of the Act, no further second notice is required to be given. Reliance is placed on the decision of this Court in the case of Pushp Raj and others Vs. District Judge, Meerut, and others, reported in 2009 (3) ARC 267. He further submitted that a composite notice under Sections 20 and 21 (1) (a) of the Act fulfils the requirement of the proviso to Section 21 (1)(a) of the Act. Reliance is placed on the decision of this Court in the case of Misri Lal Vs. IXth Additional District Judge, Gorakhpur and others, reported in 1992 (2) ARC 545. Therefore, the notice given on 14.11.1991 fulfils the requirement of the proviso to Section 21 (1) (a) of the Act. He further submitted that knowing the fact that the notice has already been given in the year 1991 and no further notice is required, neither any objection nor any plea was raised in the written statement. Thus, on the facts and circumstances, it means that the petitioners have waived the requirement of notice under the proviso to Section 21 (1) (a) of the Act. The appellate authority has rightly held so. Reliance is placed on the decision of the Apex Court in the case of Martin & Harris Ltd. Vs. VIth District Judge and others, reported in (1998) 1 SCC 732 which has been approved by the larger Bench of the Apex Court in the case of Nirbhai Kumar Vs. Maya Devi and others, reported in (2009) 5 SCC 399. On the point of bona fide need, he submitted that the landlord's son has become Dental doctor. When the application was moved, he appeared in the last examination of B.D.S. and about to come to start his profession. The landlord himself is a Doctor and running his Dental Clinic at the adjacent shop of the disputed shop and such Dental Clinic is still continuing and with the intention to make a well equipped Modernized Dental Clinic, the shop in dispute has been purchased in the year 1988. He was in serious need of the shop in dispute in the year 1991 itself but due to the technical flaw, the release application filed in the year 1991 has been rejected as not maintainable inasmuch as six months period could not be expired before filing of the release application. The landlord under compulsion had to purchase a land at Civil Lines, Jhansi and to construct the Dental Clinic there but now his son has become a Doctor. The clinic at Mohalla-Hingan Katra is still running. The respondent wants to establish a well equipped Modernized Dental Clinic which needs Dental Chairs, Ex-ray machines, space for sitting the patients, operatory room, bathroom, consultation room, Dental lab, Orthopentomography room, staffs and technician room, major O.T. and recovery room. He submitted that the accommodation available in the form of shop at Civil Lines, Jhansi has no relevance. The landlord has already one Dental Clinic at Civil Lines, Jhansi. The landlord, who is running a Dental Clinic at Mohalla-Hingan Katra, wants to establish a well equipped Modernized Dental Clinic to settle his son. He submitted that it is wrong to say that the petitioners are not running a Sweetmeats shop in the name of Gopal Sweets in front of the disputed shop at main crossing. The address of the shop where the petitioners are running a Sweetmeat shop is situated at 168 Old Passrath (New No. 217) and Ajay Anand, who is also known as Ajit Kumar, is having a licence no. NN/B68 dated 4.5.2009. Such certificate is part of Annexure-C.A.-2 which is at page 35. The photograph of Gopal Sweets is at page 43 of the counter affidavit, which also reveals that proprietor of Gopal Sweetmeats is Ajay Anand @ Nitin, who is the petitioner in the present writ petition. He submitted that on consideration of entire facts and circumstances, both the courts below have recorded the findings of bona fide need and the comparative hardship in favour of the respondent. The concurrent findings recorded by the courts below are findings of facts, based on material on record, and require no interference. It has been brought to the notice of the Court through the marriage card of Sri Rakesh Kumar, who is one of the petitioners, in which the Gopal Mishthan Bhandar has been shown as the business concern of the petitioners. The marriage card is Annexure-C.A.-6.

Section 21 along with First Proviso of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 reads as follows:

"21. Proceedings for release of building under occupation of tenant.--(1) The Prescribed Authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely--

(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust;

Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be entertained on the grounds, mentioned in clause (a), unless a period of three years has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years."

The first proviso to Section 21 (1) (a) of the Act came up for consideration before the Apex Court in the case of Martin & Harris Ltd. Vs. VIth District Judge and others (supra). The Apex Court held as follows:

"It is not possible to agree with the contention of the learned Senior Counsel for the appellant that the provision containing the proviso to Section 21 (1) of the Act was for public benefit and could not be waived. It is, course, true that it is enacted to cover a class of tenants who are sitting tenants and whose premises are subsequently purchased by landlords will seek to evict the sitting tenants on the ground of bona fide requirement envisaged by Section 21 (1) (a) of the Act, still the protection available to such tenants as found in the proviso would give the tenants concerned locus poeniteniae to avail of it or not. It is easy to visualise that proceeding under Section 21 (1) (a) of the Act would be between the landlord on the one hand and the tenant on the other. These proceedings are not of any public nature. Nor any public interest is involved therein. Only personal interest of landlord on the one hand and the tenant on the other hand get clashed and call for adjudication by the Prescribed Authority. The ground raised by the landlord under Section 21 (1) (a) would be personal to him and similarly the defence taken by the tenant would also be personal to him. Six months' breathing time is given to the tenant after service of notice to enable him to put his house in order and to get the matter settled amicably or to get alternative accommodation if the tenant realises that the landlord has a good case. This type of protection to the tenant would naturally be personal to him and could be waived. In this connection we may profitably refer to a decision of this Court in the case of Krishna Lal v. State of J & K, reported in (1994) 4 SCC 422 wherein Hansaria, J., speaking for a Bench of two learned Judges has made the pertinent observations concerning the question of waiver of a mandatory provision providing for issuance of notice to the parties sought to be proceed against by the person giving the notice, in paragraphs 16 and 17 of the Report as under: (SCC p. 430)

"16....As to when violation of a mandatory provision makes an order a nullity has been the subject-matter of various decisions of this Court as well as of courts beyond the seven seas. This apart, there are views of reputed text writers. Let us start from our own one-time Highest Court, which used to be Privy Council. This question came up for examination by that body in Vellayan Chettiar v. Govt. of the Province of Madras, reported in AIR 1947 PC 197 in which while accepting that Section 80 of the Code of Civil Procedure is mandatory, which was the view taken in Bhagchand Dagadusa v. Secy. of State for India-in-Council, reported in (1927) 54 IA 338 it was held that even if a notice under Section 80 be defective, the same would not per se render the suit requiring issuance of such a notice as a precondition for instituting the same as bad in the eye of law, as such a defect can be waived. This view was taken by pointing out that the protection provided by Section 80 is a protection given to the person concerned and if in a particular case that person does not require the protection he can lawfully waive his right. A distinction was made in this regard where the benefit conferred was to serve 'an important purpose', in which case there would not be waiver, (see paragraph 14).

17- This point had come up for examination by this Court in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh, reported in AIR 1964 SC 1300 and a question was posed in paragraph 7 whether an act done in breach of a mandatory provision is per force a nullity. This Court referred to what was stated in this regard by Mookherjee, J. in Ashutosh Sikhar v. Behari Lal Kirtania, reported in ILR 35 Cal 61 at p. 72 and some other decisions of the Calcutta High Court along with one of the Patna High Court and it was held that if a judgment-debtor, despite having received notice of proclamation of sale, did not object to the non-compliance of the required provision, he must be deemed to have waived his right conferred by that provision. It was observed that a mandatory provision can be waived if the same be aimed to safeguard the interest of an individual and has not been conceived in the public interest."

Consequently it must be held that the provision for six months' notice before initiation of proceedings under Section 21 (1) of the Act, though is mandatory and confers protection on the tenant concerned, it can be waived by him. On the facts of the present case there is no scape from the conclusion that the appellant, for reasons best known to it, consciously and being alive to the clear factual situation that the suit was filed on that ground prior to the expiry of six months' notice, did not think it fit to pursue that point any further and on the contrary joined issues on merits expecting a favourable decision in the suit and having lost therein and got an adverse decision did not think it fit even to challenge the decision on the ground of maintainability of the suit while filing an appeal and argued the appeal only on merits and only as an afterthought at the stage of writ petition in the High Court such a contention was sought to be taken up for the first time for consideration. On the facts of the present case, therefore, it must be held that the appellant had waived that contention about the suit being premature having been filed before the expiry of six months from the date of the suit notice."

When a contrary view has been taken by the Apex Court to the view taken in the case of Martin & Hariss Ltd. v. Vith additional District Judge, and others (supra), in the case of Anwar Hasan Khan vs. Mohammad Shafi and others, reported in 2001 (2) ARC 554, the matter has been referred to the larger Bench. The larger Bench in the case of Nirbhai Kumar vs. Maya Devi and others (supra) has approved the view taken in the case of Martin & Hariss Ltd. v. Vith additional District Judge, and others (supra) and did not approve the view taken in the case of Anwar Hasan Khan vs. Mohammad Shafi and others (supra). The Apex Court observed as follows:

" A three years' period becomes relevant when there is a change of ownership. This three years' period is a sort of moratorium intended for the tenant's protection. It is to be noted that the crucial expression in the proviso is "and such notice may be given before the expiration of the aforesaid period of three years". In other words, notice can be given either before or after the three years' period. After expiry of three years' period the protection given to the tenant from being evicted has no further relevance. Thereafter it is only the question of notice.

Above being the question the decision in Martin & Harris Ltd. case expressed the correct view. Unfortunately, the said decision does not appear to have been placed before the Bench which heard Anwar Hasan Khan case."

In the case of Mahesh Chandra v. Piyush Kumar Agarwal and another, reported in 2012 (91) ALR 819 relying upon the decision of the Apex Court in the case of Martin & Hariss Ltd. v. Vith additional District Judge, and others (supra), this Court held that when the tenant had not taken the plea about notice in the written statement, it can be said that he had waived it. It also needs to be pointed out that in case such a plea was taken by the tenant at that time, the landlord could have withdrawn the application filed by him and given six months' notice to the tenant and thereafter filed the application under section 21 (1) (a) of the Act. Admittedly, in the present case, no plea has been taken in the written statement. Thus, on the facts and circumstances, the appellate authority has rightly arrived to the conclusion that such plea has been waived. Moreover, it is not the case of no notice. The notice has been given on 14.11.1991. It appears to have been a composite notice under Sections 20 and 21 (1) (a) of the Act. The reply given by the petitioners to the notice reveals that it was a notice under Section 21 (1) (a) of the Act. In the reply, it was stated that the landlord did not bonafidely need the premises in dispute. Thus, the notice given on 14.11.1991 fulfils the requirement of the proviso to Section 21 (1) (a) of the Act. No further notice was required to be given. Three years' period is a sort of moratorium intended for the tenant's protection. After expiry of three years' period the protection given to the tenant from being evicted has no further relevance. Thereafter it is only the question of notice.

In view of the aforesaid laws laid down by the Apex Court, it is clear that though issue of notice is mandatory but it is not jurisdictional. It does not confer any jurisdiction to the authority to entertain the release application. The object of giving the notice is only to give six months' breathing time to the tenant after service of notice to enable him to put his house in order and to get the matter settled amicably or to get alternative accommodation. The notice dated 14.11.1991, which has admittedly been served upon the petitioners has given sufficient time to the petitioners to put his house in order and to get the alternative accommodation.

Now coming to the question of bona fide need, in my view, the respondent-landlord has established the bona fide need. The bona fide need is to be examined with reference to the property in dispute as to whether the landlord has a bona fide need in respect of such property. It is settled principle of law that to examine the bona fide need, the desire and the suitability of the landlord is relevant and the tenant cannot dictate his own terms.

In the present case, both the courts below have examined the material on record and arrived to the conclusion that the landlord has a genuine need of the premises in dispute for the purposes of extension of Dental Clinic to make it a well equipped Modernized Dental Clinic for the purposes of his son, who has become a Dental Doctor. Both the courts below have also examined the comparative hardship and have recorded the findings in favour of the landlord. The evidence on record further reveals that the petitioners are running a Sweetmeat shop in the name of Gopal Sweetmeat near the disputed shop at the main crossing.

The learned Single Judge of this Court in the case of Suresh Chand Sharma v. Nand Kumar Kamal, reported in 2013 (3) ADJ 484 has held that as follows:

"Section 21 of the Act, 1972 confers a right on landlord to get a building, which is under occupation of a tenant, released on the ground specified therein and this includes bona fide requirement of building by himself or members of his family for whose benefit he held it. The right of landlord to judge his requirement and live according to his own wisdom and discretion cannot be controlled by third person, like tenant, or, even the Court. The purpose of the Court is to protect the tenant from unjustified eviction or abrupt increase of rent etc., but, simultaneously, if the landlord has come with the case of his own personal need, it has to be judged disparately, fairly and independently, so that a landlord, coming with a bona fide case, must be able to use his own premises for the purpose he has disclosed before the Court, if it is found bona fide and genuine. The issue of hardship between the two is an integral part of looking into the bona fide and genuity of personal need set up by landlord.

It cannot be disputed that it is the privilege of landlord to determine his way of living and accommodate himself and his family according to his status, requirement etc. He cannot be compelled to live in a particular manner either by tenant or any other agency. Even the Court of law must not dictate such terms to a landlord to live in a particular manner and adjust his needs accordingly."

In Prativa Devi v. T.V. Krishnan, (1996) 5 SCC 353, the Apex Court said that the landlord is the best judge of his residential requirement. He has complete freedom in the matter. It is no concern of the Courts to dictate to the landlord how and in what manner he should live or to prescribe for him a residential standard of their own. Therein the Court considered the age of landlord and doubted his need on the ground that in such advanced age, he would be requiring somebody to take care and therefore should live with other family members instead of alone. The Apex Court observed that High Court is rather solicitous about the age of the appellant and thinks that because of her age she needs to be looked after. That is a lookout of landlord and not of High Court. The Apex Court disapproved the approach of High Court and observed:

"We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property."

Similarly, in R.C. Tamarkar v. Nidi Lekha, AIR 2001 SC 3806, the Court in para 10 and 11 said:

"10. Law is well-settled that it is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. In deciding the question of the bona fide requirement, it is unnecessary to make an endeavor as to how else landlord could have adjusted himself.

11- Though the son of the landlady is a doctor and has constructed his own house, the landlady wants to stay in the suit premises. It is not the case of the tenant that landlady has any other suitable accommodation. Therefore, the High Court rightly set aside the finding of the First Appellate Court holding that landlady could not be compelled to reside with her son as her case was that she wanted to stay by herself in the suit premises because of her health condition and the climatic condition of that place suit her."

In Ragavendra Kumar v. Firm Prem Machinery & Co., (2000) 1 SCC 679, the Court said that landlord is best judge of his requirement for his residential or business purpose and he has complete freedom in the matter.

In Yadvendra Arya and another v. Mukesh Kumar Verma, 2008 (1) ARC 322, the Court reiterated that the landlord is best judge of his requirement and has got every right to file release application for settling his unemployed son in an independent business and son cannot be forcibly asked to be accommodated with father's business. Mere fact that landlord is a rich and affluent person will make no difference as held in Shamshad Ahmad and others v. Tilak Raj Bajaj and others, 2008 (3) ARC 532.

On the question of comparative hardship, the Courts below have observed that petitioner-tenant did not make any attempt to find out any alternative accommodation. This is a relevant aspect to decide question of comparative hardship in favour of landlord and mere long possession of tenant is immaterial, as held in Sushila v. II Additional District Judge, Banda and others (supra).

In the case of Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, reported in (1996) 6 SCC 222, while considering the bonafide requirement of the landlord, the Apex Court has held that the alternative accommodation available to the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant factors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come.

In the case of Sarla Ahuja Vs. United India Insurance Co. Ltd. (1996) 5 SCC 353, the Apex Court has held that the Rent Controller should not proceed on the assumption that the landlord's requirement is not bonafide. When the landlord shows a prima facie case a presumption that the requirement of the landlord is bonafide is available to be drawn. It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.

In the case of Ragavendra Kumar Vs. Firm Prem Machinery and Co., reported in AIR 2000 SC 534, the Apex Court has held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter.

In the case of Ashfaque Brother and others Vs. Additional District Judge, Court No. 10, Kanpur Nagar and others, reported in 2010 (3) ARC 544, this Court has held that it is the legal right of the landlord to decide which portion or accommodation would suit him/her for utilizing it how and in what manner. This factor of utility is to be satisfied by him to meet his needs is only dependent upon the landlord only and tenant has no say in the matter.

In Mst. Bega Begum & Ors. v. Abdul Ahad Khan (dead) by LRs. & Ors. [1979 (1) SCC 273], this Court held that rent control laws must be construed reasonably. They should be interpreted in such a way as to achieve the object of enabling landlord to evict tenant where the statute grants such right in favour of landlord.

Dealing with the Jammu and Kashmir Houses and Shops Rent Control Act, 1966, the Court observed that 'reasonable requirement' undoubtedly postulates that there must be an element of 'need' as opposed to a mere 'desire' or 'wish'. The distinction between 'desire' and 'need' should doubtless be kept in mind. That does not, however, mean that even a genuine need should be treated as nothing more than a desire or wish. The connotation 'need' or the word 'requirement' should not be artificially expanded nor its language so unduly stretched or strained as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such construction would defeat the very purpose of the Act, which affords facility of eviction of the tenant to the landlord on certain specified grounds.

In a recent decision, the Apex Court had an occasion to consider the principle relating to the bona fide need and comparative hardship. In the case of Mohd. Ayub and another v. Mukesh Chand, reported in (2012) 2 SCC 155, the Apex Court held that the landlord's requirement need not be a dire necessity. The length of tenancy ought not to have weighed with the courts below. It has been held that the hardship the land lord would suffer by not occupying their own premises would be far greater than the hardship the respondent would suffer by having to move out to another place. It has been further observed that whenever the tenant has been asked to move out of the premises some hardship is inherent.

In the case of Shamshad Ahmad & Ors. v. Tilak Raj Bajaj (Deceased) through Lrs. & Ors., reported in JT 2008 (10) SC 56, the Apex Court while dealing with Section 21 of Act No. 1972 held as follows :

"Though the 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 power 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 appreciate, 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 powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts and inferior Tribunals within the limits of law."

In Chundavarakar Sita Ratna Rao v. Ashalata S. Guram [JT 1986 SC 619], this Court stated :

"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention it was not for the High Court under Articles 226 and 227 of the Constitution to interfere. If there is evidence on record on which a finding can be arrived at and if the court has not misdirected itself either on law or on fact, then in exercise of the power under Article 226 or Article 227 of the Constitution, the High Court should refrain from interfering with such findings made by the appropriate authorities."

Even prior to Chundavarkar, in Babhutmal Raichand Oswal v. Laxmibai R. Tarta & Anr. [1975 (1) SCC 858], dealing with supervisory power of a High Court under Article 227 of the Constitution, Bhagwati, J. (as His Lordship then was) stated:

"If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 covert itself into a court 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".

(emphasis supplied)

In State of Maharashtra v. Milind [JT 2000 (Supp. 3) SC 213; 2001 (1) SCC 4], this Court observed;

"The power of the High Court under Article 227 of the Constitution of India, while exercising the power of judicial review against an order of inferior. Tribunal being supervisory and not appellate, the High Court would be justified in interfering with the conclusion of the Tribunal, only when it records a finding that the inferior Tribunal's conclusion is based upon exclusion of some admissible evidence or consideration of some inadmissible evidence or the inferior Tribunal has no jurisdiction at all or that the finding is such, which no reasonable man could arrive at, on the materials on record".

In State v. Navjot Sandhu [JT 2003 (4) SC 605; 2003 (6) SCC 641], this Court reiterated;

"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 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".

(emphasis supplied)

While dealing with the petitions under the present statute the above principles have been followed.

In Om Prakash & Ors. v. Sunhari Devi (Smt.) & Ors. [JT 1993 (3) SC 641 ; 1993 (2) SCC 397], a similar question came up for consideration before this Court. There an application under Section 21(1)(a) of the present Act was filed by the landlords against the tenants on the ground that they bona fide required the tenanted premises, a shop, for their own use. The Prescribed Authority dismissed the eviction petition holding that the applicant's requirement was not bona fide and greater hardship would be caused to the tenants than to the landlords. The landlords filed an appeal and the appellate authority allowed the same holding that the requirement of the landlords was genuine and bona fide. It also recorded a finding in favour of the landlords on the question of comparative hardship.

The High Court of Allahabad in a petition by the tenants, set aside the finding recorded by the appellate authority and dismissed the eviction application. Aggrieved landlords approached this Court.

Allowing the appeal, setting aside the order passed by the High Court and restoring that of the appellate authority, this Court held that even in second appeal, the High Court should restrict itself to question of law. It was all the more so, in a writ petition. When findings were recorded by the appellate authority, the High Court was wrong in interfering with the said findings and in setting aside the order of eviction, observed this Court.

In Ranjeet Singh v. Ravi Prakash [JT 2004 (4) SC 127; 2004 (3) SCC 682], again this Court while interpreting the provisions of the Act in question, held that the High Court, while exercising powers under Articles 226 and 227 of the Constitution, cannot act like an appellate Court and re-appreciate or revaluate the evidence while exercising certiorari or supervisory jurisdiction. Only a patent error which did not require establishment by lengthy and complicated arguments or by long drawn process of reasoning is amenable to certiorari jurisdiction. If two opinions were reasonably possible, the finding arrived at one way or the other by the appellate authority, cannot be disturbed.

In the case of Muni Lal and others v. Prescribed Authority and others, reported in AIR 1978 SC 29 while dealing with Section 21 of the Act No. 13 of 1972, the Apex Court held that It is not for the High Court in the exercise of its jurisdiction under Article 226 of the Constitution to reapprise the evidence and come to its own conclusion which may be different from that reached by the District Judge or the Prescribed Authority.

In my view, the concurrent findings recorded by the courts below are findings of fact, which are based on the material on record, do not require interference under Article 226 of the Constitution of India.

In view of the foregoing discussions, the writ petition is devoid of merit and is accordingly dismissed. However, on the facts and circumstances, the petitioners are allowed three months' time to vacate the premises, provided, the petitioners give an undertaking before the Prescribed Authority to this effect within a period of 10 days from today.

Dated: 12th August, 2013

OP