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Bhola Nath Verma (D) Through L.Rs. vs Vth Additional District Judge, ...

High Court Of Judicature at Allahabad|24 May, 2002


JUDGMENT Anjani Kumar, J.
1. In pursuance of the order passed by me on 15th March, 2002 in Civil Misc. Restoration Application No. 48618 of 2002, this petition is being heard on merits for final disposal with the consent of the learned counsel for the parties.
2. This is a tenant petition arising out of the proceedings under Section 21 (1) (a) of the U. P. Act No. 13 of 1972. The brief facts of the case are that the respondent No. 3, who is the landlord of the premises No. 118/479 (1). Kaushalpuri, Kanpur, filed an application for release of the shop in question under Section 21 (1) (a) of the U. P. Act No, 13 of 1972 (hereinafter shall be referred to as the 'Act'), on the ground that the landlord requires the aforesaid shop for his bona fide purposes and the tilts of the comparative hardship is in favour of the landlord. The prescribed authority issued notices to both the parties. The parties have exchanged their pleadings and also their evidence. The prescribed authority after considering the pleadings and evidence on record, allowed the release application on 9.10.1987, Annexure-10 to the writ petition, and directed to release the shop in question after recording the findings that the shop in question is bona fide required by the landlord and also the comparative hardship tilts in favour of the landlord. Aggrieved by the order dated 9.10.1987, passed by the prescribed authority, petitioner-tenant preferred an appeal as contemplated under Section 22 of the Act before the Appellate Authority, which too has been dismissed by the appellate authority vide its order dated 25.2.1989.
3. Learned counsel appearing on behalf of the petitioner aggrieved by the orders of the prescribed authority as well as the appellate authority, who have held that the need of the landlord is bona fide and comparison of the need also finds in favour of the landlord allowed the release application and the appellate authority has dismissed the appeal filed by the petitioner-tenant, tried to assail before this Court the findings recorded by both the Courts below and submitted that the findings recorded by the prescribed authority and affirmed by the appellate authority do not make out a case that the landlord either requires the shop in question for bona fide need, on the comparison of the hardship has been judged in the correct perspective and thus submitted that the orders impugned in the present writ petition deserve to be set aside and the application filed by the landlord deserves to be rejected on this ground. I have gone through the findings recorded by the prescribed authority as well as by the appellate authority, I do not find any error, much less an error of law as suggested by learned counsel for the petitioner.
4. In the teeth of the concurrent findings of fact recorded by both the Courts below, this Court will not interfere in exercise of its jurisdiction under Article 226 of the Constitution of India.
5. Learned counsel for the petitioner thereafter submitted that during the pendency of the appeal before the appellate authority, one shop, which was occupied by some other tenant, came in the possession of the landlord as the tenant of that shop left the shop and handover the possession thereof to the landlord. This fact should have been taken into account by the appellate authority, but this fact was not brought on the record before the appellate authority when the appeal was decided and has been brought on record of this writ petition by filing a supplementary affidavit. Learned counsel for the petitioner relied upon two decisions of the Apex Court arising out of Punjab and Haryana Development Authority with regard to the premises, which was let out by the Haryana Urban Development Authority under the provisions of Rent Control Act of the State. The said Act is not applicable, which is in Om Prakash Gupta v. Ranbir B. Goyal, JT 2002 (1) SC 254. The another decision relied upon by petitioner's learned counsel is reported in Paul George v. State, JT 2002 (1) SC 225, in which it has been held that 'no reasons have been recorded for arriving at the conclusion that the accommodation in question is bona fide required by the landlord'. The relevant portion of the aforesaid judgment is quoted below :
"It is true that it may depend upon the nature of the matter which is being dealt with by the Court and the nature of jurisdiction being exercised as to in what manner the reasons may be recorded e.g., in an order of affirmance detailed reasons of discussion may not be necessary but some brief indication by which application of mind may be traceable to affirm an order, would certainly be required. Mere ritual of repeating the words or language used in the provisions, saying that no illegality, impropriety or jurisdictional error is found in the judgment under challenge without even a whisper of the merit of the matter or nature of pleas raised does not meet the requirement of decision of a case judicially."
6. Learned counsel for the landlord-respondent replying the aforesaid arguments has relied upon a decision in 1988 (2) ARC 108. Paragraph 23 whereof is reproduced below :
"23. On the date of hearing of this petition, an application was filed by the petitioner stating therein that Dr. Himanshu Garg, respondent No. 3. along with his wife. Dr. Bindu Garg, has opened a Clinic-cum-Nursing Home in the name and style of City Clinic Maternity Nursing Home at B. S. College, G.T. Road, Aligarh, on 10th November, 1985, and, consequently, it was alleged that this was a subsequent event and, consequently, the need set up in the release application has ceased to exist. In reply to this application, a counter-affidavit has been filed by Dr. Sudhanshu Garg wherein it has been stated that since Dr. Sudhanshu Garg had completed his M.D. in the year 1984 and was without a job he was advised to make a temporary arrangement for starting a clinic. It has been further stated that he along with his wife, who is also a doctor, took on rent a small premises measuring 30' x 20' as a temporary measure for starting a small clinic. The said premises has been taken on an exorbitant rent of Rs. 900 per month and that this arrangement is only a make shift arrangement. In fact, this subsequent event itself proves the bona fide need of the landlord. This circumstance goes against the petitioner. His case, that the landlords do not require the accommodation, is believed by this action on the part of the respondent-landlords. It is further clear consequently that, in fact, the landlord respondents are doctors and are without job, consequently they require the accommodation in question. In the circumstances, the subsequent event, in fact, has no effect in the release application. On the other hand, it established more clearly the bona fide need of the respondent-landlord."
7. The other decisions relied upon by learned counsel for the respondent-landlord are in Pradeep Kumar Rastogi v. XVIth Additional District Judge. Meerut and 2 Ors. 2001 (1) AWC 690 : 20O1 (1) ARC 176 ; Smt. Labhkumar Bhagwani Shaha v. Janardan Mahadeo Kalan, AIR 1983 SC 535 ; Babhutmal Raichand v. Laximbai, AIR 1975 SC 1296 and Nattu Lal v. Radhey, AIR 1974 SC 1696. In AIR 1974 SC 1696, it has been held "High Court under Article 226 of the Constitution has no power to reappraise evidence and to record its own finding." In AIR 1975 SC 1296, the Hon'ble Supreme Court held that "the High Court has no jurisdiction under Article 227 to reconsider the evidence."
8. The law laid down in this case is applied to the facts of the present case under Article 226 of the Constitution as well. This Court in the case of Ram Rakesh Pal and Ors. v. 1st Additional District Judge and Ors.. 1976 UPRCC 376, has held that "the question of bona fide requirement of the premises as well as that of comparative need are questions of fact and. therefore. High Court has no power to correct the question of fact even if erroneously decided." A reference may also be made to the decision of this Court in the case of Jagan Prasad v. District Judge and Ors., 1976 UPRCC 342 ; Laxmi Narain v. IInd Additional District Judge and Ors., 1977 UPRCC 230 and Smt. Nirmala Tandon v. Xth Additional District Judge, Kanpur Nagar, 1997 (1) AWC 2.59 (NOC) : 1996 (2) ARC 409. The matter has recently been considered by the Apex Court In the case of Kamleshwar Prasad v. Pradumanju Agarwal, 1997 (1) ARC 627, wherein it was held that "under the Act. the order of the appellate authority is final and the said order is a decree of the civil court and a decree of a competent court having become final cannot be interfered with by the High Court in exercise of its power of superintendence under Articles 226 and 227 of the Constitution of India by taking into account any subsequent event which might have happened. That apart, it was further observed that the fact that the landlord needed the premises in question for starting a business which fact has been found by the appellate authority, in the eye of law, must be that on the day of application for eviction, which is the crucial day, the tenant incurred the liability of being evicted from the premises. The finality of the decisions cannot be disturbed on account of any subsequent events on a petition under Article 226 of the Constitution of India." This view has been endorsed by the Apex Court in the case of Gaya Prasad, AIR 2001 SC 807 (supra). Learned counsel for the respondent-landlord has further relied upon a case in 1998 (2) ARC 148, and also other cases on this issue have been relied upon by the landlord counsel. In this view of the matter, the contention of learned counsel appearing on behalf of the petitioner cannot be accepted wherein It has been stated that the fact which has been sought to be brought on record of the writ petition for the first time even if it has not been taken into account and possibly the same could not have been taken into account because of the fact that for the first time it has been brought on the record of writ petition vitiates the orders impugned in the present writ petition, which as stated above, are otherwise do not warrant any Interference by this Court under Article 226 of the Constitution of India as the same are covered by the concurrent findings of fact. No other point was urged by learned counsel for the petitioner.
9. In view of what has been stated above, this writ petition deserves to be dismissed as no ground for interference is made out and is hereby dismissed. The interim order, if any, sands vacated. However, in the facts and circumstances of the case the parties shall bear their own costs.
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Bhola Nath Verma (D) Through L.Rs. vs Vth Additional District Judge, ...


High Court Of Judicature at Allahabad

24 May, 2002
  • A Kumar