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BRIJ MOHAN versus STATE OF U.P. THRU' THE COLLECTOR THE JUDGE, JALAUN & ORS.

High Court of Judicature at Allahabad

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Brij Mohan v. State Of U.P. Thru' The Collector The Judge, Jalaun & Ors. - WRIT - A No. 22814 of 2003 [2006] RD-AH 16560 (21 September 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Rakesh Tiwari, J.

This is tenant's petition. By means of instant writ petition, the petitioner has challenged the validity and correctness of the judgment and decree dated 16.11.1999 passed by the Prescribed Authority, Orai district Jalaun allowing release application of the landlord registered as P.A. Case no. 2 of 1997, affirmed by District Judge, Orai district Jalaun vide judgment and order dated 9.5.2003 in Rent Appeal No.4 of 1999.

The brief facts of the case are that the landlord- respondent has five sons, namely, Sri Ram Kishore, Sri Anil Kishore, Sri Raj Kishore, Sri Brij Kishore and Sri Neeraj Kumar. The petitioner is tenant of the disputed shop on a monthly rent of Rs.500/-..  The landlord filed release application registered as P.A. case no. 2 of 1997 under Section 21(1)(A) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''the Act') on the ground that he required the disputed shop for setting up his unemployed elder son Sri Ram Kishore in cloth business. He asserted that his financial condition is sound and is capable of investing money in the cloth business; that the tenant is also financially sound having a big house in Mohalla Rajendra Nagar in the same city; that his band is famous and can maintain office in his own house; that there are five shops of one Sri Bharat Lal Srivastava in vacant position near the disputed shop and tenant can take any shop from him; that the landlord has no vacant shop in his possession to establish his son in business; that the need of the landlord is bona fide and genuine and the tenant will not suffer comparative hardship if the shop is released in favour of the landlord.

Tenant-petitioner contested the release application by filing written statement denying the averments contained in the release application.  He alleged that the need of the landlord was not genuine or bona fide and if he wants to engage his son Sri Ram Kishore in cloth business, he may start the business in the shop got vacated from Ms. Manorama Garg shown in the map appended to the report of the Commissioner, which is annexed as Annexure 7 to the writ petition.  Sri Ram Kishore is presently carrying on business of sale of sarees in the name and style of ''Saheli Sari Sansar'. Sri Brij Kishore and Sri Neeraj Kumar are carrying on the business of ''Shivani Gutka; Sri Anil Kumar is engaged in light fitting and it is wrong to say that any of the sons of the landlord are unemployed.  He also asserted that the house constructed by him is a small house; that Sri Bharat Lal Srivastava is demanding PAGRI and  exorbitant rent; that if the disputed shop is vacated the tenant will suffer greater hardship than the landlord.

After appraisal of evidence led by both the parties, the Prescribed Authority vide judgment and decree dated 16.11.99 allowed the release application. Aggrieved by the judgment and decree dated 16.11.1999, the tenant-petitioner filed Rent Appeal no. 4 of 1999 which has also been dismissed by he District Judge, Orai vide judgment and order dated 9.5.2003.

Aggrieved by the aforesaid judgments and decree, the petitioner has come up in this writ petition.  

Contentions of Counsel for the petitioner

It has been contended by counsel for the petitioner that the findings of the Courts below to the effect that Sri Ram Kishore, son of the landlord is unemployed is perverse inasmuch as Sri Ram Kishore is in active business of manufacturing ''Paan Masala' in the capacity of Proprietor of M/s. New Kankane Bandhu and is not unemployed.  He further urged that a gallery/shop is also available to the landlord which satisfies his need, if any.  He submitted that Sri Ram Kishore, son of the landlord, is carrying on business of sale of sareer through his wife in the name and style of ''Saheli Saree Sansar'. That apart, Sri Ram Kishore, through his son is also running the business of cloth in the name and style of ''Ranjana Dresses'. He urged that business of ''brass band', being carried on by the petitioner, is not seasonal and the disputed shop being situated in the market, the petitioner has earned goodwill of last 22 years and in case he is evicted from the disputed shop he will suffer greater hardship than the landlord as the business of Brass Band involves group of persons.

It is submitted by the counsel for the petitioner that the alleged shops shown to be vacant and available in the vicinity are neither vacant nor any shop is available to him on rent.  He also urged that there are many premises  available for occupation and possession to the landlord for business by any other to any of his family members.

Contentions of Counsel for the respondent

It has been contended by counsel for the respondent-landlord that the Courts below have recorded concurrent finding of fact that the need of the landlord is genuine and bona fide. He urged that both the Courts below  after considering the evidence and record have arrived to the conclusion that the petitioner-tenant is carrying on business of booking band for marriages and othere ceremonies from the disputed shop even though he has his own house in Rajendra Nagar, Orai and can operate his business from there. It is lastly urged that it is settled law that the High Court may not interfere in concurrent findings of facts unless illegality and perversity is established in the judgments impugned recorded by the Courts below. Reliance has been placed upon the judgment of Hon'ble the Apex Court in Gaya Prasad V. Pradeep Srivastava - 2001(1) ARC-352 wherein it has been held that crucial date for deciding as to the bona fide need of the landlord is the date of application by the landlord for eviction of the tenant. It has been observed by Hon'ble the Apex Court in the aforesaid judgment that ff every subsequent developments during the post-petition period is to be taken into consideration for judging the bona fide need pleaded by the landlord, there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. The subsequent events to over shadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events.          

No other point has been argued by the counsels for the parties.

CONCLUSIONS:

Having heard the arguments advanced by counsels for rival parties and going through the records, it appears that after appraisal of evidence led by both the parties, the Prescribed Authority has held that the need of the landlord is bona fide and genuine and shall suffer greater hardship if the disputed shop is not released in his favour.

The Prescribed Authority also returned a finding that D.W.1- Sri Girish Chandra has admitted that production fees/taxes have not been paid after 1992 and if there was any such business of Gutka, the same is not running now.  

In so far as contention of counsel for the petitioner regarding bona fide need of Sri Anil Kishore is concerned, it is no more in existence as he has expired on 15.2.2004 and the shop under the tenancy of one Sri Ram Prakash which has been got released for the elder son of the landlord in which he can start his business.

It is urged that apart from this legal position, the release application was filed by the landlord for the need of Sri Anil Kishore who is survived by his three sons and the need of the sons of late Anil Kishore has to be looked into which can hardly be satisfied from the shop got released from Sri Ram Prakash.

A bare perusal of judgment of the appellate Court reveals that it has recorded a categorical finding that gallery shown by the Commissioner is not a shop and is being used by the customers as passage for ingress and egress, therefore, it cannot be said that this vacant shop is available to the landlord except the disputed shop. The appellate Court after considering the evidence on record, came to the conclusion that Sri Ram Kishore, son of the landlord is unemployed youth who has three children and it is moral duty of the father to engage his son in some business. The  landlord has no vacant shop in his possession and his need to establish his son in business is bona fide.  The appellate Court has also recorded a categorical finding of fact that the tenant is carrying on business of booking ''brass band' for marriages and other ceremonies from the disputed shop. He has his own house in Rajendra Nagar Orai from where he can run his business. On the other hand, if the disputed shop is not released in favour of the landlord, he will face greater hardship than the tenant.

The Apex court in E.Parasuraman (deceasede by LRs) V. Doralswamy- AIR 2005 SC-376: 2006(8) SCC-658 has held that Findings of bona fide need and comparative hardship are findings of facts  and Courts should not interfere in any finding of fact unless patent illegality or perversity is established.

From a perusal of orders passed by both the Courts below, it is apparent that they after considering the bona fide need as well as comparative hardship of the landlord and the tenant, have given a finding of fact that the need of the landlord is bona fide and genuine and he shall comparatively suffer greater hardship if the shop is not released in his favour.

In Harbans Lal V. Jagmohan Saran- 1986 A.L.J-84, it has been held that a writ in the nature of certiorari may be issued only if the order of the inferior Court suffers from the error of jurisdiction or from a breach of the principles of natural justice or is vitiated by a manifest or apparent error of law. There is no sanction enabling the High Court to reappraise the evidence without sufficient reason in law and reach finding of fact contrary to those rendered by an inferior Court.  When High court proceeds to do so, it acts plainly in excess of its powers.  In Lachmi Singh v. State of U.P. -1981 A.L.J-1068 it has been held that High Court would not be justified in interfering with the finding of fact reached by appellate Court in exercise of its jurisdiction under Article 227 of the Constitution.  In Jagdish Tiwari v. Smt. Asha Devi Mishra - 2005 All.C.J.-1250, it has been held that landlord's requirement cannot be refused only on ground that the tenant would be facing difficulty.  Applying the same ratio in the present case, release application of the landlord cannot be rejected merely on the ground that the tenant would face difficulty as he has established his good will in last 22 years. In Ranjit Singh v. Ravi Prakash - 2004 All. C.J.-1818, Hon'ble the Supreme Court has held that High Court cannot exercise its power like appellate Court nor can re-evaluate evidence for substituting its own view. In the instant case, a perusal of impugned judgments and decree clearly reveals that the Courts below have arrived at conclusion that the need of the landlord is genuine after appraisal of documentary and oral evidence and this Court will not exercise its power like appellate Court to re-evaluate evidence for substituting its own view.

In the instant case, counsel for the petitioner could not establish that the orders of the Courts below suffer from the error of jurisdiction or from a breach of the principles of natural justice or vitiated by a manifest or apparent error of law. Thus, it would be inappropriate in the circumstances for High Court to reappraise the evidence without sufficient reason in law and reach finding of fact contrary to those rendered by the Courts below. .

In Ram Das v. Davinder- 2004 All. C.J.-1819, it has been held by Hon'ble the Apex Court that continued judicial possession cannot save the tenant from the landlord's plea that the tenant has ceased to occupy the building. In the instant case, plea of the petitioner that he has been carrying on business from the disputed shop for the last about 20 years will not save him from the landlord's plea that he ceased to occupy the shop. In Bhabutmal Rai Chand Oswal v. Laxmibai- AIR 1975 SC-1297, it was held that since this jurisdiction was limited only to seeing that the Courts below function within the limits of its authority and did not extend to correction of mere error. In the case in hand, the Courts below have recorded concurrent findings of fact, which are neither perverse nor irrational, hence no case for interference in the writ jurisdiction is made out.

In my opinion landlord cannot be compelled to do business in a small portion so that his son may start business in the other portion or part of the shop in which landlord was carrying on his business.  Both the Courts below have taken into consideration the entire material on record including Commissioner's report. In view of law laid down in E.Parsuraman (supra_ The concurrent findings regarding bona fide need and comparative hardship do not require any interference in exercise of writ jurisdiction.

No illegality or perversity in the impugned judgments and decree could be pointed out by counsel for the petitioner.

For the  reasons given in conclusions of this judgment and in view of the law stated above, the writ petition fails and is dismissed. Tenant-petitioner will handover peaceful possession of the disputed shop to the respondent-landlord within a month from today and make payment of arrears of rent, if any, within two months from today.  In case the disputed shop is not vacated and payment of arrears of rent is not made within the aforesaid stipulated period, he will be evicted by Police force and arrears of rent will be recovered as arrears of land revenue.  No order as to costs.

Dated 21.9. 2006

kkb


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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