Allahdin vs Grish Chandra Agrwal And Another
2013 Latest Caselaw 5025 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved.
 

 
Court No. - 7
 

 
Case :- WRIT - A No. - 25613 of 2005
 

 
Petitioner :- Allahdin
 
Respondent :- Grish Chandra Agrwal And Another
 
Counsel for Petitioner :- H.M. Srivastava,Neeraj Srivastava
 
Counsel for Respondent :- S.C.,Amit Daga,Sumit Daga,V.P. Varshney
 

 
Hon'ble Rajes Kumar, J.

This is the petition by the tenant, challenging the order of the Additional District Judge, Kasganj, Etah dated 28.2.2005 by which the appeal filed by the landlord-respondents has been allowed against the order of the Prescribed Authority dated 3.3.2003 by which he has rejected the release application under Section 21 (1) (a) of the U.P. Act No. 13 of 1972.

The brief facts of the case are that the landlord-respondents filed release application for the eviction of the petitioner from the house in dispute on the ground that the same is needed for the residence of his son Sri Nikhil Agarwal. In the application, it was stated that Sri Nikhil Agarwal is now married and he is living along with his wife and children in House No. 1504 of State Bank Colony belonging to Smt. Asha Agarwal on a rent of Rs.1000/- per month, while the tenant has his own residential house towards east of Kasganj Railway Station, which is about 500 meters away from the disputed house in which the family of the defendant no. 1 is residing inasmuch as defendant no. 2 is not residing at Kasganj. It was also stated that defendant normally put the house closed and is not regularly using and unnecessarily occupying it with the intention to get the premium. The release application has been contested by the defendant-petitioner by filing the written statement. An amendment application has also been moved for the amendment in the written statement. By way of amendment, it is contended that during the pendency of the case, the owner of the house got one property situated at Mohalla-Mohan Railway Road, Kasganj vacated by way of settlement dated 16.9.2001, which was in possession of Kailash Chandra Jain and Anil Kumar Jain, on which Virendra Kumar and Girish Chandra have constructed two storeyed house, hence there is no need of the disputed house for the son Sri Nikhil Agarwal inasmuch as residential house is available to him.

The Prescribed Authority has rejected the application on the ground that during the course of the case, the landlords have constructed a Marriage Hall in the name of their daughter-in-law on a house which was got vacated from Kailash Nath Jain and Anil Kumar Jain, situated at Mohalla-Mohan Railway Road, Kasganj through compromise dated 16.8.2001 and other properties adjoining to said property. If the residential house was needed, in stead of constructing the Marriage Hall in the name of their daughter-in-law, the residential house would have been built which shows that the house for residential purposes was not urgently required. It has also been observed that Sri Nikhil Kumar is residing at the residence of his aunt. On a comparative hardship, the Prescribed Authority has observed that the landlords could not produce any evidence to demonstrate that the disputed house ordinarily remains closed and the defendant had a house at Gram Ahrauli and not at Kasganj. Another house near Mosque is not available to the defendant for residence. In the said house, Smt. Anwar resides as a tenant and the landlords are not able to file any evidence to show that the house situated at Nagla Sayed Pargana Bilram is vacant and is available to the defendant for residence.

Being aggrieved by the order, the respondents filed an appeal. The appeal has been allowed vide order dated 28.2.2005 and the release application has been allowed and the petitioner has been directed to vacate the premises within one month. It appears that before the appellate court, the landlord has filed an amendment application incorporating the fact that now he has been retired and the property in dispute is required for his own residential purposes. The appellate court has held that the landlord does not possess any residential house at Kasganj. The house in dispute is an ancestral house. The landlord

Girish Chandra retired on 31.12.2003 from the service and the house in dispute is required for his residence as well as for the residence of Nikhil Agarwal. On the comparative hardship, it has been observed that the tenant has his own house near the disputed house.

Heard Sri H.M. Srivastava, learned counsel for the petitioner and Sri V.P. Varshney, learned counsel appearing on behalf of the respondents.

Learned counsel for the petitioner submitted that initially in the release application the requirement of the son has been shown while in appeal his own requirement has been pleaded on the ground that he has now been retired on 31.12.2003 and for residential purposes the disputed house is required. The appellate authority has illegally entertained the plea taken subsequently and has allowed the release application on the ground that the landlord bonafidely required the premises in dispute. He further submitted that the house owned by the tenant is not situated in the municipal area while it is situated in regulated area and, therefore, the case does not fall within the purview of Section 21 (1)(a) of the Act No. 13 of 1972.

Learned counsel for the respondents submitted that the landlords have every right to live as per their own desire depending upon their suitability and tenant cannot dictate his own term. The house in dispute is an ancestral house and apart from this house, there is no other residential house situated at Kasganj. It is the desire of every one to live in his own residential house. Since Girish Chandra was in service and posted outside Kasganj and his son was young the property has been let out. Now the son is married and he himself retired in the year 2003. Both landlord and son need house to live at Kasganj to look after other properties. In this way, the landlord has established the bona fide need. The tenant has one house at Mosque which is situated in municipal area and another house near village at Kasganj and has sufficient place to live, therefore, the comparative hardship is also in favour of the landlords.

I have considered the rival submissions and perused the impugned orders.

I do not find any substance in the argument of learned counsel for the petitioner.

The appellate court on the facts and circumstances, has recorded the finding that the landlord has bonafide need. The finding recorded by the appellate court is a finding of fact, based on the material on record and needs no interference. The house in dispute is an ancestral house and there is no other residential house of the landlord to the contrary the petitioner-defendant possessed the house where he can settle himself. Therefore, the landlord was able to establish the bonafide need and the comparative hardship is in favour of the landlords.

In the case of Shamshad Ahmad & Ors. v. Tilak Raj Bajaj (Deceased) through Lrs. & Ors., reported in JT (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 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 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.

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 view of the foregoing discussion, I do not find any merit in the writ petition.

In the result, the writ petition fails and is dismissed. However, the petitioner is allowed three months' time to vacate the premises, provided he gives an undertaking before the Prescribed Authority within 10 days. On the failure to vacate the premises within the aforesaid period, the petitioner shall be liable to pay damages @ Rs. 2000/- per month till the date the premises is vacated.

Dated : 12th August, 2013

OP