Unknown vs Arun Sah And Others; As
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         HIGH COURT OF UTTARAKHAND

                          AT NAINITAL

          ON THE 11TH DAY OF JANUARY, 2021

                                BEFORE:

   HON'BLE SHRI JUSTICE SHARAD KUMAR SHARMA


           Writ Petition No.3830 of 2019 (M/S)


BETWEEN:
     Smt. Harvant Kaur (Female), aged about 75 years,
     W/o Late Gurdyal Singh,
     R/o Bhabar Hal, Tallital, Nainital.
                                                   .....Petitioner/Tenant

     (By Sri Syed Nadim, Advocate)



AND:
     Santosh Sah alias Santosh Kumar
     S/o Late Mathura Prasad Sah,
     R/o Pilgrim Villa Nainital Club
     Ward Mallital, District Nainital.
                                            .....Respondents/Landlord


     (By Sri Mohit Maulekhi, Advocate)




                            JUDGEMENT

This is a tenant's petition, which is arising out of a concurrent judgments which were rendered in the proceedings which were held under Section 21(1)(a) of Act No.13 of 1972 against the petitioner/tenant, whereby both the courts below have concurrently recorded a finding of fact pertaining to the bonafide requirement of the landlord;

as it has been expressed in his release application to the effect that he wants to repair garage, which is the disputed tenement in question and after repairing same he wants to utilize it for his own purpose for parking his car, which otherwise despite of an availability of a garage under his ownership, he is forced to park his vehicle elsewhere. Hence, expressed his need to be bonafide and hard pressing.

2. Brief facts of the case are that the respondent/landlord had instituted the proceedings, under Section 21(1)(a) on 02.09.2016, by filing a release application specifically contending thereof that there exist a relationship of landlord and tenant; between petitioner and respondent and as a consequence of the existence of the said relationship; there were two garages, which were under the exclusive ownership of the landlord/respondent, being Garage No.11 and 12, the cahaudhi of the said garage was more specifically defined in para 3 of the release application which is referred to as under:-

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3. The release was sought by the respondent/landlord, of the disputed garage contending thereof that the disputed property which is bearing Municipal No.155; Eyenovilla, Garage No.11, is the tenement in question, which has been being occupied by the petitioner on a rent of Rs.400/- per month. He has contended in the release that the said tenament was

required for his need and hence, the release. The fact of being a tenant; and existence of the relationship of landlord and tenant as well as the aspect pertaining to the applicability of Act No.13 of 1972; was not in dispute which was ever raised by the petitioner/tenant, when she filed her written statement, she in her pleadings attempted to deny the bonafide requirement of the landlord/respondent, on the pretext that since the property was granted for the purpose of being utilized as garage and the same is still continued to be utilized in the said capacity, the landlord's need which too in the release application has been expressed to be the need for the purposes that garage is not so genuine and bonafide and hence the release application deserves to be rejected.

4. However, the learned court of prescribed authority after considering the rival contentions and particularly the evidence which was adduced by the parties to the proceedings by way of the affidavit Paper No.22 Ga, which was filed by the landlord/respondent, himself drawing his contentions from the earlier proceedings of RCC Case No.04 of 2004, Gurdiyal Singh vs. Arun Sah and others; as well as other documents i.e. Paper No.22 Ga/5, it was established rather admitted too that the respondent happens to the landlord and in accordance with the evidence adduced by the tenant by way of an affidavit Paper No.29 Ga, he had annexed therewith the receipts which were earlier issued by the landlord on 28.08.1981, for showing thereof that the rent was remitted by the petitioner to respondent/landlord accepting his ownership over the property in question i.e. the disputed Garage No.11. It is not only that the respondent/landlord, prior to initiation of the proceedings, for filing the release

application has also issued notices to the tenant/petitioner, under proviso to Section 21(1)(a), which was placed on record in original as Paper No.29 Ga(2), which was replied by the petitioner/tenant vide his reply dated 27.04.2016, denying the bonafide requirement of the respondent/landlord as was expressed in the notice.

5. The learned prescribed authority while dealing with the rival contentions and after appreciating the evidences which were placed on record had allowed the release application holding thereof that the need as expressed by the landlord/respondent in para 5 of the release application, for release of the tenement in question to meet his personal need was held to be bonafide and accordingly after recording the finding about the necessity of the landlord/respondent, to occupy the premises, which was under the tenancy of the petitioner, the release application was allowed. What is important to be pointed out at this stage itself is that if the judgment itself is taken into consideration, the learned Prescribed Authority has categorically considered the impact of the judgment which was rendered by this Court as reported in 2014 (2) UD, 101, Suresh Chandra @ Suresh Pal vs. Smt. Sarna Devi & another. Para 11 to 13 of the said judgment are quoted hereunder :-

"11) Learned lower appellate court did not find favour with the inference of the Prescribed Authority that there was no bona fide need or comparative hardship in favour of the landlady. It cannot be expected from two growing male children to live with their mother in the same room, who have attained majority during the pendency of eviction proceedings. Their dates of birth were 22.01.1988 and 08.04.1990. They also need some privacy. The mother also requires some privacy. Three grownups cannot conveniently live together in one room. One of the son

of the landlady is married. Learned lower appellate court took into account all these aspects to hold that the landlady had no other alternative accommodation. The tenants-writ petitioners did not lead any evidence, which could show that they ever attempted to make a search for an alternative accommodation or ever attempted to seek allotment of any accommodation. There was, therefore, inaction on the part of the tenants in searching for an alternative accommodation by seeking allotment or otherwise searching for an accommodation for them. Non-availability of alternative accommodation to the tenants in itself is no good ground to reject the application of the landlady to release her building.

12) Lower Appellate Court, therefore, find cogent reasons to allow the appeal of the landlady and in setting aside the order of Prescribed Authority, whereby her application for release was dismissed.

13) This Court has considered the elements which are required to be considered for release under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. This Court is, therefore, of the opinion that the findings arrived by the learned lower appellate court are not perverse. The reasons are sound. No interference is called for in the same."

6. In the said case it is held that in those circumstances where after the initiation of proceedings under Section 21(1)(a), if the tenant fails to prove and establish by way of evidence on record; that after issuance of notice or after filing of the release application, he has failed to make any effort to look after for an alternative accommodation, in that eventuality, if there is a failure to establish the same, the said inaction of the tenant, the need of the landlord was to be held to be bonafide, as it has been settled by yet another judgment which was rendered by the Hon'ble Apex Court in AIR 2003 Supreme Court 2712, Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada. Para 13 of the said judgment is quoted hereunder :-

"13. In Piper v. Harvery, (1958) 1 AII.ER 454, the issue as to comparative hardship arose for the consideration of Court of Appeals under the Rent Act, 1957. Lord Denning opined: "When I look at all the evidence in this case and see the strong case of hardship which the landlord put forward, and when I see that the tenant did not give any evidence of any attempts made by him to find other accommodation, to look for another house, either to buy or to rent, it seems to me that there is only one reasonable conclusion to be arrived at, and this is that the tenant did not prove (and the burden is on him to prove) the case of greater hardship." Hudson, L.J., opined: "The tenant has not been able to say anything more than the minimum which every tenant can say, namely, that he has in fact been in occupation of the bungalow, and that he has not at the moment any other place to go to. He has not, however, sought to prove anything additional to that by way of hardship, such as unsucessful attempts to find other accommodation, or, indeed, to raise the question of his relative financial incompetence as compared with the landlord." On such state of the case, the Court answered the issue as to comparative hardship against the tenant and ordered his eviction."

7. The above judgment was subsequently also considered by this Court also in number of judgments rendered and reported, and also in the judgment reported in UD 2014 (2), 101 (Supra). In the absence of there being any evidence led by the petitioner/tenant, to show that after the institution of release application as back as on 02.09.2016, the petitioner has looked for an alternative accommodation the plea of bonafide requirement of the tenant as raised by the counsel for the petitioner would not be sustainable and the presumption would be that comparative hardship of the landlord was more grievous as compared to that of the tenant/petitioner. Thus the prescribed authority upheld the bonafide requirement of the landlord/respondent.

8. Consequently, the petitioner being aggrieved against the said judgment of learned Prescribed Authority dated 17.10.2017, allowing the release application, the petitioner/tenant has preferred an Appeal under Section 22 of the Act No.13 of 1972; which was numbered as Rent Control Appeal No.11 of 2017, Smt. Harvant Kaur vs. Santosh Shah; and the appellate court too vide its impugned judgment dated 07.08.2019 had dismissed the appeal and consequently, a concurrent finding of fact pertaining to the bonafide requirement and of the comparative hardship has been recorded in favour of the landlord/respondent.

9. Having considering the respective argument which has been extended by the counsel for the parties and particularly the findings which has been concurrently recorded by the judgment of the courts below; it had been held that the tenant has got no authority under law to play as such, to sit in an advisory capacity and to direct or guide the landlord, as to the manner in which his need, would be best suited, because the contention of the petitioner was that looking to the condition of the tenement in question, which is the disputed Garage No.11, that since its roof is completely damaged and ruined, it may not be suitable for the landlord to occupy the same. This Court is of the view that the tenant ought not to have any concern about the condition of the tenement sought to be released, its rather an absolute prerogative which falls within the domain of assessment of need and condition of the tenement with the landlord.

10. I am too of the view that the condition of the tenement in question, even though if it is in a dilapidated condition, it is no more the choice of the tenant/petitioner to decide, as to in what manner the landlord/respondent, would get it renovated or make it habitable to meet his bonafide requirement and the tenant/petitioner cannot at all guide or defend her bonafide requirement on that pretext regarding the condition of the garage.

11. The counsel for petitioner had lastly submitted that the petitioner, at present, is an aged lady, and her mobility is too very restricted due to age and that is why her occupancy over the tenement garage in question, should be permitted to be continued. Being an aged lady, and continuance of tenancy, of the occupancy of the tenement, would might not have played any significant role had the tenement in question, which is allegedly utilized by the tenant/petitioner, was for the residential or any commercial activity; in which she was indulged. Since the finding has been recorded on the contrary, on record which shows that it was being exclusively used for the garage only, it was not so eminent need which would render the release application, itself to be rejected on the pretext that the petitioner/tenant is an aged lady. Since both the courts below have recorded the concurrent finding of facts. Even the Hon'ble Apex Court has also laid down in B.C. Bhatuda vs. G.R. Mundala (Supra) judgment, that the concurrent finding of facts as recorded in the proceedings under Section 21(1)(a), the writ court under Article 227 of the Constitution of India would not sit over the judgments by rescrutinizing it, as a court of appeal to decide the matter on its own merits. Hence, since the judgments are concluded with a concurrent finding of fact, this Court

declines to exercise its supervisory jurisdiction under Article 227 of the Constitution of India, as against the impugned judgments, which are under challenge herein as it does not suffer from any apparent judicial flaw, nor any such attempt has been made to be argued by the counsel for the petitioner, who had harped his argument only on the basis of age of tenancy and age of tenant, which itself, for the reasons recorded above, be necessary to be looked into in a writ jurisdiction.

12. After culmination of the judgment, the counsel for the petitioner had sought two years time to vacate the premises in question. But however the said request, has been strongly opposed by the counsel for the respondent Mr. Mohit Maulekhi; on the ground that since release itself was instituted in the year 2016 and the record does not show that the petitioner has ever looked for an alternative accommodation, prayer for continuing the occupancy of the disputed tenement garage no.11 for a period of two years, is too longer a period and it should be curtailed, but however he had agreed that in case if this Court grants one year period to the petitioner to vacate the premises his client may not be having any objection as such.

13. Considering the foresaid consensus granted by the respondent/landlord and the offer which had been extended by the petitioner to vacate the premises in one year from today, this writ petition is being dismissed with the following observations and exceptions:-

i. That the petitioner would within a period of two weeks from the date of receipt of the certified copy of this judgment, would submit an undertaking, by way of an affidavit, before the learned Prescribed Authority, giving an

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undertaking that she would be vacating the premises, within one year from today.

ii. She further undertakes, that during this period of consented extended occupancy of one year, she would continue to remit the rent, which was being paid by her during subsistence of her tenancy.

iii. That during this period of occupancy for one year from today, the petitioner undertakes that she will not be making any alteration or changes, over the tenement Garage No.11; in any manner whatsoever, without there being a prior written consent from the respondent/landlord.

iv. That the petitioner undertakes that she would not induct any third person as a sub tenant over the premises in question and after the expiry of the aforesaid period of one year as consented by her today, she would be handing over the vacant and peaceful possession of the property in question to the landlord free from any encumbrances.

vi. It is further directed that in case if there is violation of any of the covenants of the conditions of occupancy as given above and agreed too, for a period of one year from today, it will be open for the landlord/respondent to get the judgments impugned in the writ petition executed, which has been affirmed by the dismissal of this writ petition in accordance with law.

14. Accordingly, Writ Petition since being concluded by concurrent finding of facts is dismissed, subject to above exceptions.

(Sharad Kumar Sharma, J.)

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