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SMT. SAVITRI DEVI AND OTHERS versus CHANDRA DHAR MISHRA

High Court of Judicature at Allahabad

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Smt. Savitri Devi And Others v. Chandra Dhar Mishra - WRIT - A No. 30697 of 2006 [2006] RD-AH 19069 (10 November 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Mr. Rakesh Tiwari, J.

         The petitioners have challenged the validity and correctness of judgments and orders dated  17..2.2004 and 4.5.2006 (appended as Annexures 3 and 4 respectively to the writ petition) passed by Prescribed Authority/Additional Civil Judge (Senior Division) Court no. 2 and Additional District Judge/Special Judge (S.C./S.T. Act) Kanpur Nagar respectively.

The dispute giving rise to the instant writ petition relates to accommodation under the tenancy of the petitioners on a monthly rent of Rs.100/-, consisting of five rooms, kitchen, varandah, court-yard, laterine/bathroom situated on the first floor of premises no. 108/27-A, Lenin Park, P. Road, Kanpur Nagar.

Respondent-landlord moved release application 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'), which was registered as case no. 45 of 1997.  It was alleged in the release application that  Sri Allu Mal and Sri Daya Ram were joint tenants of the premises, in dispute since 1960. On the death of Sri Allu Mal, who had shifted to Gauhati in 1960, Sri Ganga Ram son of Late Sri Daya Ram, predecessor-in-interest of the petitioners inherited the tenancy. Respondent-landlord was living in the second floor of premises no. 106/261-B Gandhi Nagar, Kanpur Nagar consiting two rooms, kitchen and latrine/bathroom.  On the basis of oral family settlement, house no. 106/261-B, Gandhi Nagar, Kanpur Nagar came to the share of Dr. Kala Dhar Mihsra and the premises, in dispute, i.e., House no. 108/27-A Lenin Park, P. Road, Kanpur Nagar fell in the share of the respondent-landlord. Sri Kela Dhar Mishra, brother of the respondent-landlord served the tenant with a notice dated 30.8.1995 to vacate as the premises-in-dispute was urgently required by him.

Release application was contested by the petitioners by filing joint written statement denying the allegations contained therein, inter alia, that the landlord has no genuine or bona fide need of the accommodation-in- dispute as he was co-owner of premises no. 106/261-B Gandhi Nagar, Kanpur Nagar where he he together with his family members  was comfortably residing; that separate no. 167 dated 24.8.1992 was allotted to the landlord in the property at Gandhi Nagar, which was concealed by him; that the oral family settlement dated 2.2.1981 was not only collusive but was made with a ulterior motive to oust the petitioners from the premises-in-dispute; and  three rooms and a varandah were got vacated from one tenant M/s., Vineet Printing Press by  the landlord, who is in possession of 8 rooms, five of them remain unused.

Release Application was allowed by the Prescribed Authority/Additional Civil Judge (Senior Division) Court No. 2, Kanur Nagar vide judgment and decree dated 17.2.2004 with a direction to the petitioners to vacate the accommodation-in-dispute within three months from the date of decree.

Aggrieved, the petitioners preferred Rent Appeal No. 28 of 2004 before the District Judge, Kanpur Nagar, which was transferred to the Court of Additional District Judge/Special Judge (S.C./S.T Act), Kanpur Nagar.  After hearing the parties and considering the material available on record, the appeal was ultimately dismissed vide judgment and order dated 4.5.2006 and hence this writ petition.

  Counsel for the petitioners contended that the finding recorded by the learned lower appellate Court that written statement of the petitioners was barred by explanation (i) of Section 21(1)(a) of the Act is perverse as the Courts below have not recorded any finding on the specific plea of the petitioners that S/Sri Teju Mal Singhani, Kishan Lal Singhani and Arjun Das Singhani were not dependents of the petitioners and late Ganga Ram as while considering the parallel provision of Section 12(3) of the Act, Hon'ble the Supreme Court has held that the alternate accommodation acquired by any other member of the family cannot be taken into consideration until and unless it is found that such family members were dependent upon the sitting tenant. He submitted that there was sufficient evidence on record that the alleged family settlement of the respondent-landlord was nothing but a device to eject the petitioners in its garb. He also argued that the Courts below have neither considered the bona fide and genuine need of the petitioners nor considered the question of comparative hardship of the petitioners, as such, the impugned judgments are not sustainable in the eye of law and are liable to be quashed. He urged that the Courts below totally ignored the report and map of Vakil Commissioner in respect of three houses of the respondent-landlord which clarifies that the landlord has got eight rooms in the basement-cum-ground floor of the premises-in-dispute.

He further urged that on the one hand, the Prescribed Authority held that explanation (i) of Section 21(1)(a) of the Act is not applicable to the present case and case has to be decided on the basis of bona fide need and hardship, and on the other, it has not recorded any specific finding about the comparative hardship. He lastly urged that the Courts below have neither decided comparative hardship nor the bona fide need and have completely ignored the report of the Advocate Commission about the accommodation of the landlord. It is submitted that the Courts below have not considered the factum of non-availability of any other accommodation to the petitioners in Kanpur Nagar and the fact that the respondent-landlord has other properties in Kanpur Nagar.

In support of his contentions, counsel for the petitioners placed reliance upon the decisions in Ratan Lal and another V. Prescribed Authority-cum-Munsif Saharanur and others-U.P.R.J-208; Ram Babu and others V. Additional District Judge and others-1983(II)ARC-416; Ram Nath V. District Judge Varanasi- ARC 1979-212; Alok Brothers (Tea)Pvt. Ltd. Kanpur Vs. VIIIth Additional District Judge, Kanpur Nagar and others- 1989 U.P.R.J-485; Rajeshwari Prasad V. Fateh Bahadur Chaturvedi and others ARC 1984(1)-347; Ved Prakash and others V. VIth Additional District Judge Bulandshahr and others- ARC 1984(I)-239 and Tilak Ram Vs. The District Judge, Meerut and others- 1978 ARC - 314.

Per contra, counsel for the respondent-landlord raised a preliminary objection that the writ petition is liable to be dismissed for non-joinder of necessary parties.  He submitted that the persons who inherited the tenancy of the accommodation-in-dispute on the death of late Sri Ganga Ram were residing together at the time of death of late Sri Ganga Ram in the property-in-dispute have not been impleaded.  Admittedly, Sri Nari was residing as tenant in the accommodation, in dispute, but he has not filed the writ petition. He urged that Sri Prakash, petitioner no. 5 has acquired another accommodation during the pendency of the release application, in the same city, the petitioners being joint tenants, can easily shift to the alternate accommodation, acquired by petitioner no. 5 and they have no legal right to oppose the release application. He vehemently urged that both the Courts below have recorded clear finding of fact on the question of bona fide need and comparative hardship in favour of the landlord, there is no illegality or infirmity in the impugned judgments and the writ petition deserves to be dismissed.

Conclusions:

I have given thoughtful considerations to the respective arguments advanced by counsels for the parties and perused the record.

Adverting to the case laws cited by counsel for the petitioners, case of Ratan Lal and another (supra) is on the issue of comparative hardship wherein this Court has held that Rule 16(2)(b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules 1972 clearly prescribes that one of such factors is whether the tenant has available with him suitable accommodation to which he could shift his business without substantial loss, there shall be greater justification for allowing the application. In the instant case, both the Courts below have recorded concurrent finding of fact that the tenants have alternate accommodation available with them, as such, this decision does not help the petitioners.  

In Ram Babu and others (supra) this Court, on the facts and in the circumstances of that case, held that under Section 21(1)(a) of the Act.  The question of hardship is consequential finding. In that case the finding in regard to bona fide need was found to be vitiated in law and that the finding of fact by passing the on relevant consideration or material is not a finding of fact.  In the instant case, after discussing the entire evidence, available on record, both the Courts below have arrived to the conclusion that the need of the landlord is bona fide and  his comparative hardship is greater than the petitioners, this decision also does not support the case of the petitioners.  So far as the decision in Ram Nath (supra) is concerned, the Court on the own peculiar facts and circumstances of that case, held that the question of bona fide and relative hardship were without ascertaining the actual accommodation available to the landlady. This decision is also of no help to the petitioners as the Courts below have ascertained the actual accommodation available to the landlord and it does not lay down any general rule of law. As regards the decision in  Alok Brothers (Tea)Pvt. Ltd. Kanpur (supra), counsel for the petitioners has placed implicit reliance in paragraph 4 of the said decision, wherein relying upon decision of Full Bench of this Court in  Chandra Kumar Sha V. The District Judge-A.I.R. 1976 Allahabad-328, it was held that :-

" ''Bona fide' means genuinely or in good faith with no intention to deceive. Thus, if the landlord comes to the Court without being actuated by an ulterior motive or if his need is not based on a fanciful whim, it may be deemed to be bona fide. On an ultimate analysis of the case law on the point, therefore, bona fide requirement of the landlord must be considered on the above broad principles subject, however, to special circumstances of each case. The court must invariably consider the nature of the need set up by the landlord in the light of the surrounding circumstances whether the landlord really needs the accommodation for the required purpose having regard to the suitability of that accommodation for the said purpose."

In the instant case, petitioners have not proved that the case of bona-fide need has been set up by the respondent-landlord with mal intention to deceive, as such, this decision also does not apply to the facts and circumstances of the instant case. In so far as decision Rajeshwari Prasad (supra) is concerned, on the peculiar facts and circumstances of that case, this Court directed the Courts below to re-determine the question of greater hardship, which will happen to the parties on account of rejection or allowing of the application.  It was further held that the question of genuineness of the need of the landlord will not be re-heard. In the case on hand, the Courts below have already considered and decided question of hardship, as such, the petitioners are not benefited by this decision as well.  In Ved Prakash and others (supra), this Court considered the words ''bona fide and comparative hardship' and held that if finding on bona fide need and comparative hardship is given on the basis of wrong approach, ignoring the evidence on record and without considering the suitability of suggested alternative accommodation, it cannot be sustained and in Tilak Ram (supra), it was held by this Court that comparison of hardships of landlord and tenant is necessary under amendment of Rule 16 of the Rules framed under the Act by U.P. Act No. 28 of 1976. As already stated above, the concurrent finding of fact on the issue of bona fide need and comparative hardship recorded by the Courts below being just, apt and proper, these decisions do not support the case of the petitioners.

The Courts below have arrived at a conclusion on the basis of evidence on record that all family members of late Sri Ganga Ram were residing together at the time of his death and opposite party no. 8 had acquired alternate accommodation in Kanpur Nagar itself during the pendency of release application.  The relevant finding, in this regard, recorded by the Prescribed Authority, is as under :-

" izkFkhZ Onkjk fy;s x;s vk/kkj ds vuqlkj Jh xaxkjke dh e`R;q ds ckn foi{khx.k crkSj okfjl iz'uxr Hkkx ds fdjk;snkj gq, A izkFkhZ dks foi{khx.k ds fdjk;snkjh okys Hkkx dh lnHkkfod rhoz ,oa mfpr vko';drk gS A foi{kh la[;k 2 Jh vtqZunkl fla?kkuh iz'uxr edku esa fuokl ugha djrk gS cfYd og vius edku ua0 87@198 vkpk;Z uxj dkuiqj esa fuokl djrk gS A foi{kh la0 4 Jh fd'kuyky flagkuh Hkh vius edku ua0 127@MCY;w 1@269 lkdsr uxj dkuiqj esa fuokl djrk gS A vr,ao iz'uxr eqdnesa esa jsUV dUV~ksy ,DV la0  13 lu 1972 dh /kkjk 21(1) dk izFke Li"Vhdj.k dk izkfo/kku izHkkoh gS ftlds dkj.k foi{khx.k eqdnesa esa vius ,rjkt izLrqr djusa ls vojksf/kr gS A foi{kh la0 1] 3] 5] 6] 7] 8 Onkjk vtqZunkl fla?kkuh dks ifjlj ua0 87@198 vkpk;Z uxj dkuiqj esa fuokl djuk vLohdkj fd;k x;k gS ysfdu dFku fd;k x;k gS fd og iz'uxr edku esa ugha jg jgs gSa cfYd vyx jg jgs gSa A fd'kykyk fla?kkuh dk ifjlj ua0 127@MCY;w 1@269 lkdsr uxj dkuiqj esa fuokl djuk Lohdkj fd;k x;k gS rFkk vfxze dFku fd;k x;k gS fd muds iz'uxr edku esa fuokl u djus o viuk futh edku vf?kxzfgr fd;s tkus ls vU; foi{khx.k ij bldk dksbZ izHkko ugha iMrk gS vkSj izLrqr izdj.k esa Li"Vhdj.k ua0 1 ykxw ugha gksrk gS A"

The further finding, recorded by the appellate Court, in this regard, is as under :-

".......;gkW ij ;g mYys[kuh; gS fd foi{kh la0 1 lkfo=h nsoh xaxkjke dh iRuh gS foi{kh la0 2 vtqZunkl fla/kkuh foi{kh la0 3 jes'k ,oa foi{kh la[;k 4 yxk;r foi{kh la0 8 xaxkjke ds iq= gSa A ;g Hkh izrhr gksrk gS fd ckn esa fd'kuyky fla/kkuh dh Hkh e`R;q gks x;h A ;gkW ij ;g mYys[k djuk Hkh mfpr gksxk fd bUgha dkj.kksa ls foi{kh la0 2 vtqZunkl fla/kkuh la0 4 fd'kuyky fla/kkuh vihykFkhZx.k Onkjk viuh vihy esa vius lkFk vihykFkhZ ds #Ik esa Ik{kdkj ugha cuk;k x;k gS vkSj mUgsa jsLikUMsUV ua0 3 o 4 ds #Ik esa lfEefyr fd;k x;k gS A vr% ;g ekU; rF; gS fd xaxkjke ds yMdksa vtqZunkl ,oa fd'kuyky fla/kkuh fookfnr fdjk;snkjh okys edku ls vyx vius fy;s edkuksa esa jg jgs gSa A Jherh lkfo=h nsoh vihykFkhZ ua-1 foi{kh laa0 1 tks xaxkjke dh fo/kok gSa] ds lkFk&lkFk xaxkjke ds mijksDrkuqlkj lkr yMds Hkh okfjlku gq;s tks xaxkjke ds e`R;q ds le; fookfnr edku esa jg jgs Fks ftuesa ls vtqZunkl fla/kkuh ,oa fd'kuyky fla/kkuh vius vius vyx vyx edku ysdj jg jgs gSa A"

On the question of bona fide need and comparative hardship, the Prescribed Authority,  after consideration of entire material available on record, has recorded that :-

" bl izdkj mDr foospuk ls ;g Li"V gS fd izkFkhZ foHkktu esa vius HkkbZ dks izkIr Hkou la[;k 106@261 ch esa mldh n;k esa jg jgk gS vkSj izkFkhZ ds ikl foHkktu esa izkIr iz'uxr Hkou esa f'kQV djus ds vykok vU; dksbZ fodYi ugha gS A iz'uxr Hkou ds Hkwfery ij izkFkhZ dk vk;qZosfnd nokvksa dh QkesZ'kh] Dyhfud vkfn fLFkr gS vkSj vkoklh; gsrq dksbZ fjDr LFkku ugha gS blfy, foi{khx.k dks fdjk;snkjh okys Hkkx dks izkFkhZ dks lnHkkfod okLrfod ,oa rhozre vko';drk dks vLohdkj ugha fd;k tk ldrk gS A foi{kh la0 2] 4 o 8 Onkjk vU; vkokl izkIr dj fy;k x;k gS blfy, mUgsa vc dksbZ dfBukbZ ugha gS vkSj foi{kh ua0 8 dh vkifRr xzg.k fd;s tkus ;ksX; ugha gS A Ik=koyh ij ,slk dksbZ lk{; miyC/k ugha gS ftlls ;g izrhr gks fd vU; foi{khx.k Onkjk nkSjku eqdnek vU; vkokl vkoaVu djkus ;k izkIr djus gsrq iza;kl fd;k x;k gS A izkFkhZ ds ikl viuk futh edku gksus ds dkj.k mls vU; edku vkoafVr ugha gks ldrk gS tcfd foi{khx.k dks vU; edku vkoafVr gks ldrk gS blfy;s rqyukRed dfBukbZ Hkh izkFkhZ ds I{k esa gS A vr% foi{khx.k ds fdjk;snkjh okyk Hkkx izkFkhZ ds I{k esa fueqZDr fd;s tkus dk vk/kkj Ik;kZIr gS A"

Likewise, the appellate Court concurring with the finding of fact recorded by the Prescribed Authority has held that :-

"&&&&  vr%eSa ugha ld>rk gwW fd tc pUnz iw.kZ feJk ds Ik{k esa ckyd`".k dh fdjk;snkjh okyk Hkkx fueqZDr fd;k x;k gS tc mldk laca/k pUnz/kj feJk ds fgLls esa vk;s edku ls dgkW gks tkrk gS vkSj mldk ykHk vihykFkhZ dks dSls feyrk A ;g Li"V ugha gksrk A vr% vihykFkhZ ds foOnku vf/koDrk dk ;g dguk fd ckyd`".k dh fdjk;snkjh okyk Hkkx tks fjDr gqvk og izkFkhZ ds dCts esa gS lgh ugha yxrk A vr% izkFkhZ ds O;olk; ikfjokfjd I`k"Bhkwfe ifjokj ds lnL;ksa ,oa foosfpr ifjfLFkfr;ksa esa mldh cksukQkbZM uhM HkyhHkkWfr ifjyf{kr gksrh gS A

19&   vc ;g ns[kuk gS fd rqyUkkRed ijs'kkuh ( dEijsfVo gkMZf'ki ) fdls T;knk gS A bl laca/k esa izkFkhZ ds ifjokj esa ekU;#Ik esa 10 lnL; gSa ftu ij dksbZ fookn fdlh izdkj dk izrhr ugha gksrk A buesa pUnz/kj feJk Loa; mudh iRuh] mudk ,d yMdk v'ouh dqekj ,od mldh iRuh o mlds nks cPps] izkFkhZ dk nwljk iq=k vjfcUn dqekj mldh iRuh ,oa mlds nks cPps dqy nl lnL; crk;s x;s gSa A &&&&

&&&

&&& iwoZ foospuk ls HkyhHkkWfr Li"V gS fd vihykFkhZx.k tks xaxkjke ds okfjlku ds #Ik esa fdjk;snkj gSa] esa ls foi{kh la0 ] 4 o 8 vyx vyx vkoklksa esa jg jgs gSa A vihykFkhZx.k ds izFke lsV esa lkfo=kh nsoh] ujs'k dqekj o ukjh fla/kkuh crk;s x;s gSa A ukjh fla/kkuh dh e`R;q gks pqdh gS A fOnrh; lsV esa jes'k mldh iRuh vk'kk nsoh mlds nks yMds] r`rh; lsV esa izdk'k] mldh iRuh ,oa mldk ,d yMdk crk;k x;k gS A iwoZ foospuk ds vuqlkj ;g izdk'k ;kfpdk esa foi{kh la0 8 gS] tks fookfnr edku ls vyx jgrk gS A bl laca/k esa dkxt ua0 56@2 mlds uke dk VsyhQksu fcy edku ua0 106@27 xkW/khuxj dkuiqj dk fnf[ky gS A vr% bl laca/k esa vihykFkhZx.k ds fo#) igys gh foospuk dh tk pqdh gS] ftldk mUgsa ykHk ugha feyrk A pkSFks lsV esa gjh'k dqekj fl/kkuh ,oa mlds iRuh dks crk;k x;k gS A ;gkW ;g mYys[k djuk Hkh mfpr gS fd ujs'k dqekj fla/kkuh ,oa ukjh fla/kkuh vfookfgr gSa mudh mez dkQh gS A ukjh dh e`R;q gks pqdh gS jes'k dqedkj ,oa gjh'k dqekj Hkh O;Ld gSa A vr% og viuh ekW Jherh lkfo=kh nsoh tks Loa; 70 o"kZ ls vf/kd dh gS ij fdrus ij fuHkZj gksaxs] bldk vanktk vklkuh ls yxk;k tk ldrk gS A &&& vr% rqyUkkRed ijs'kkuh dk tgkW rd iz'u gS og izkFkhZ@ jsLikUMsUV ua0 1 ds gh Ik{k esa izrhr gksrk gS A"

 

Thus, it is evident that the Prescribed Authority as well as the appellate Court have recorded concurrent findings of fact, which are neither perverse nor irrational.  The Courts below have considered each and every aspect of the case while releasing the accommodation, in dispute, in favour of the respondent-landlord.  

Relying upon its earlier decision in Surya Dev Rai V. Ram Chander Rai and others -(2003) 6 SCC-675, Hon'ble the Apex Court has held in Ranjeet Singh v. Ravi Prakash- 2004(1) ARC-613 that:-

"... to be amenable to correction in certiorari jurisdiction, the error committed by the Court or Authority on whose judgment the High Court was exercising jurisdiction, should be an error which is self evident. An error which needs to be established by lengthy and complicated arguments or by indulging into a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari.  If it is reasonably possible to form two opinions on the same material the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai (supra) that the jurisdiction was not available to be exercised for indulging into re-appreciation or evaluation of evidence or correcting the errors in drawing inferences like a Court of appeal. The High Court has itself recorded in its judgment that ''considering the evidence on the record carefully' it was inclined not to sustain the judgment of the Appellate Court.  On its own showing, the High Court has acted like an appellate Court which was not permissible for it to do under Article 226 or Article 227 of the Constitution."

To the same effect is the decision of this Court in Smt. Dharamati and others V.Special Judge/Additional District Judge, Ghaziabad and others-1999(1) ARC-324, wherein it has been held that findings on bonafide need recorded by the Courts below cannot be interfered with under supervisory jurisdiction of writ by High Court unless found irrational or unreasonable.

There is yet another aspect of the case.  Even if it is assumed that the need of the tenants is pressing, the fact cannot be overlooked that the release application was filed by the landlord way back in 1997. Almost a decade has passed by the petitioners have made no effort to search out alternate accommodation. Recently, this Court in Salim Khan V. IVth Adl. District Judge, Jhansi and others- 2006(1) ARC-588 relying upon the decision of Hon'ble the Apex Court in Bhutada V. G.R. Mundada- A.I.R. 2003 SC-2713 held that the fact that tenants did not show what efforts they made to search alternate accommodation after filing of release application was sufficient to tilt the balance of hardship against them.

The concurrent findings of facts recorded by the Court below do not suffer from any illegality or infirmity requiring interference by this Court under Article 226 of the Constitution.

For the reasons stated above, the writ petition fails and is dismissed.  The petitioners shall vacate the accommodation, in dispute, within two months from today, failing which, they shall be evicted from the accommodation, in dispute, by coercive process, in accordance with law with the aid of local Police.  No order as to costs.

Dated 10th November, 2006

kkb

 


Copyright

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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