Heard Sri Sanjai Srivastava, learned counsel for the petitioners, Sri Manish Kumar on behalf of respondent nos. 1 & 2 and Sri Akash Prasad holding brief of Sri Vinay Verma who put in appearance on behalf of respondent nos. 3 to 7.
By means of present writ petition, the petitioner has challenged the impugned order dated 01.10.2008 passed by Prescribed Authority/Small Causes Court, Lucknow in P.A. Case No. 20 of 2000 and order dated 10.12.2010 passed by respondent no. 1 in Rent Appeal 45 of 2008.
Controversy involved in the present case relates to the the House bearing municipal corporation no. 337/193 under the tenancy of the petitioner situated in Tapewali Gali Kazgain Poad Mansoor Nagar, Lucknow(hereinafter referred as premises in question).
In respect of same, an application under Section 21(1)(a) of the U.P. Act No. XIII of 1972 has been moved by the landlord-respondents. Accordingly, a P.A. Case no. 20 of 2000 registered before the respondent no. 2, allowed vide order dated 01.10.2008.
Aggrieved by the same, a Rent Appeal No. 45 of 2008(Gulam Husain and others Vs. Smt. Shamim Akhter and others) under Section 22 of the U.P. Act No. XIII of 1972, has been filed by the tenant-petitioners, dismissed vide order dated 10.12.2010. Hence, the present writ petition has been filed.
Sri Sanjai Srivastava, learned counsel for the petitioners/tenants vehemently argued that the landlord-respondents have other property in their possession, so their need in respect to the premises in dispute is neither bonafide nor genuine, as such the release application moved by them is liable to be rejected.
Sri Sanjai Srivastava, learned counsel for the petitioners further submits that the courts below have failed to take into consideration that the need of the petitioners-tenants are more genuine and bonafide in comparison to the need of the landlords-respondents, as such impugned orders passed by the courts below are arbitrary, discriminatory and violative of the fundamental rights of the petitioners guaranteed under Article 226 of the Constitution of India, liable to be set aside.
Sri Akash Prasad holding brief of Sri Vinay Verma, learned counsel for the respondents submits that the both the courts below have given concurrent finding of facts to the effect that the need of the landlords-respondents are more genuine and pressing in comparison to the need of the tenant-petitioners, as such the said findings of fact cannot be disturbed or to be set aside by this Court while exercising the power under Article 226 of the Constitution of India, present writ petition filed lacks merit and liable to be dismissed.
I have heard learned counsel for the parties and gone through the record.
So far as the factual matrix of the present case, it is not disputed between the parties that petitioners are the tenant of the premises in question let out to them at a monthly rent of Rs. 40/-. An application under Section 21(1)(a) of the Act has been moved by the respondents-landlord, allowed by the prescribed authority vide order dated 01.10.2008 holding therein that the need of the landlord-respondents are more genuine and bonafide in comparison to the petitioners-tenants. The said finding of fact has been confirmed by the appellate court while dismissing the Rent Appeal filed by the petitioners vide order dated 10.12.2010.
Argument advanced by the learned counsel for the petitioners Sri Sanjai Srivastava that the landlords-respondents have other property in their possession, so their need in respect to the premises in dispute is neither boanfide nor genuine is concerned, the same is misconceived and unsustainable because it is well settled proposition of law that landlord is best judge for his personal requirement as well as for his family members and the courts cannot dictate the terms in this regard to the landlord to choose a particular premises for his personal need.
In the case of Smt. Sarla Ahuja Vs. United India Insurance Co. Ltd. AIR 1999 SC Page No. 103, it has been held as under :-
"When a landlord asserts that the requires his building for his own occupation the "Rent Controller shall not proceed on the presumption that the requirement is not bonafide. When other conditions of the clause are satisfied and when the landlord shows a prima facts case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bonafide. It is often said by/Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafide 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 Prativa Devi(Smt.) Vs. T.V. Krishnan, 1996 (5) SCC 353 it was held that the landlord is the best judge of his requirement and Courts have no concern to dictate the landlord as to how and in what manner he should live. The bana fide personal need is a question of fact and should not be normally interfered with."(See also the case of Gaya Prasad Vs. Pradeep Shrivastava, AIR 2001 SC 803 :2001(1) ARC 352).
In the case of Rishi Kumar Govil Vs. Maqsoodan and others [2007(2) ARC 1],the Hon'ble Apex Court held that it is the choice of the landlord to choose the place for the business which is mot suitable for him. He has complete freedom in the matter.
The said view was further reiterated by the Hon'ble Apex Court in the case of Uday Shankar Upadhyay and others Vs. Naveen Maheshwari [2010 SAR (Civil) 69 and in the case of Mohd. Sadiq Vs. District Judge,Pauri Garhwal and others [2007(1) ARC 297]. So, the argument raised by the learned counsel for the petitioners-tenants in this regard is misconceived and liable to be rejected.
It is well settled proposition of law that this Court while exercising the power of judicial review under Article 226 of the Constitution of India can not reappraisal the findings on it's own motion and recorded the finding which are contrary to the concurrent finding of facts recorded by the two courts below, as such keeping in view the said principles in the instant case as both the courts below have given concurrent finding of fact that the need of the petitioners-landlords is more genuine and bonafide in comparison to the need of the tenants-petitioners, so the same cannot be set aside being a finding of fact recorded on the basis of material `on record and not perverse in nature.
Further, High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a Court or appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
In the case of M/s India Pipe Fitting Co. Vs. Fakruddin M.A. Baker and another reported in 1978 AIR (SC) page 45 :1978 ARC 224, the Apex Court has held as under :-
"The limitation of the High Court while exercising power under Article 227 of the Constitution is well settled. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset conclusions of facts however, erroneous those may be."
In Piper Vs. Harvey [1958] 1 All E.R. Page 454, it has been held as under :-
"I have in mind what this Court has said in Coplans Vs. King(1)[1947] 2 All E.R. 393] to the effect that the decision of the country Court judge, when considering the balance of hardship, is to all intents and purposes final, it is not for the Court of Appeal to interferer when there is evidence on which the judge can reasonably come to the conclusion which he did."
In Whitley Vs. Whitley 1946 (2) All England Law Reports Annoted 726, it has been held as under :-
"In the present case the judge decide, in favour of the land, and I can see no ground for saying that he did not arrive at his conclusion on the issue raised under Para(h) on ample evidence. If there was any evidence to support his decision we cannot interfere with it. It is most important in these cases that this Court should not interfere with findings of fact where there is evidence to support them."
In Surya Dev Rai Vs. Ram Chander SCC 2003 Vol. 675 :2003(2) ARC 385, the Apex Court held as under :-
"Supervisory jurisdiction under Article Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a sub-ordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction."
Hon'ble Apex Court in the case of 2004 ARC (1) 613, Ranjeet Singh Vs. Ravi Prakash, held that the jurisdiction of the High Court under Article 226 is limited to the extent that the finding of fact recorded by the Court below cannot be interfered. The two Courts below have recorded concurrent findings and High Court cannot act like an appellate Court under Article 226/227 of the Constitution of India.
Accordingly, I do not find any infirmity or illegality in the impugned orders which are under challenge in the present writ petition.
At this stage, Sri Sanjay Srivastava, learned counsel for the petitioners prays that some time may be allowed to vacate the premises.
Taking into consideration the aforesaid prayer, petitioners are granted time to vacate the premises by 31st July, 2011, provided :
(a) they give undertaking by 15th March, 2011.
(b) the petitioners pay the entire rent and damages due up to date by 15th of March, 2011.
(c) the petitioners pay regularly the damages by 1st week of every month.
(d) In case of failure of aforesaid conditions, the respondents/landlords shall be at liberty to execute the decree forthwith.
For the foregoing reasons, writ petition is dismissed with the observation made hereinabove.
No order as to costs.
Order Date :- 11.2.2011 krishna/*