JUDGMENT Mrs. Shobha Dikshit, J.
1. This writ petition is directed against the judgment and order dated 20th May, 1985 Annexure-4 to the writ petition passed by 5th Addl. District Judge, Gonda by which the order dated 15.12.1984 passed by the prescribed authority, releasing the shop in dispute in favour of the landlord petitioner has been set aside.
2. The brief facts relevant for the purpose of the present petition are that the petitioner who was working with Indian Railway on the post of Senior Clerk at Lucknow had let out the shop in dispute in the year 1978 for sometime to the opposite parties. His sons Chunni Lal and Vijay Kumar were also studying at that time but when he retired on 30th March, 1983 in order to supplement his meagre pension by doing some business in the said shop as also to establish his sons Chunni Lal aged 22 years and Vijay Kumar aged 20 years who were doing nothing after completing their education, he moved an application under Section 21 of the U. P. Act No. XIII of 1972 for release of the disputed premises. It was stated in the said application that he has no otherplace for doing business for himself or to establish his unemployed son/sons because one shop owned by him is being used by his eldest son Santosh who runs a business in Biscuits and stationery : another shop owned by him is in the tenancy of one Subhagmal, who is his close relation and is doing business. Since petitioner's family consists of his wife, mother, three major sons, one being married and six minor children, therefore. his need for the shop in question is bona fide and genuine and if the shop in question is not released in his favour, then it will be very difficult for the applicant to meet the financial burden of maintaining such a big family and establishing his two unemployed sons who have attained majority and are capable of doing independent business. It was further averred fn the application that the petitioner since has received money on his retirement, therefore, he can very well afford to buy a Chakki and Expeller which can also be set up in the said disputed shop by using part of adjoining vacant land used as a passage. According to the petitioner the tenant who is occupying the disputed shop will not suffer any hardship if shop is released as he can conveniently shift his business to his own premises which are situated in the main market. The front room of his residential house can very well be used for this purpose.
3. This application for release was contested by the opposite parties by filing a written statement wherein the fact that the petitioner was a Railway employee and had retired from service has been admitted. The relationship of landlord and tenant has also been accepted including the fact that the petitioner is in good financial position. The rent of the shop in question was disputed and it was stated that the rent is only Rs. 150 per month and not Rs. 250 per month as stated in the application. He also denied that he ever made a promise when the petitioner would retire he shall vacate the premises. The fact of sons being unemployed too was denied. According to the tenant. Santosh Kumar already doing business of agency of biscuit and Chunni Lal was carrying on business in another shop under the name and style of 'Shanker Crockery Stores' where he keeps stationery also. Both the sons were therefore said to be duly established in business and were doing good business. Regarding Vijay Kumar it was alleged that he does the business of supplying bread, butter etc. to others and is earning very well. The house of the applicant-landlord, according to him, was a big house with ten rooms and there was some space lying vacant where the landlord-applicant can construct another shop. The fact of Subhag Mal real brother-in-law of the landlord, occupying another shop was denied. The tenant further pleaded in his written statement that landlord is a rich man and he can afford even to take another shop on rent somewhere else to set up business for himself or to establish his sons whereas he had no other place to shift his business. The application, according to him, was misconceived and same had been filed with a, view to get the rent of the shop enhanced exorbitantly.
4. On the aforesaid pleadings, the prescribed authority considered the case of the parties and after hearing them came to the conclusion that the landlord has retired from service and also received money as pensionary benefits and is therefore in a position to set up independent business. It was also found as a fact that Chunni Lal is already doing business in one of the shops owned by the landlord. Therefore, there is no need to establish him. Regarding the business of Vijay Kumar. the prescribed authority held that he is not doing any permanent business and since there is no place available for him to set up a business, therefore, he is supplying bread and butter, etc. after purchasing the same from others. He has neither any godown nor a shop to set up his own business.
therefore, he is engaged in supplying bread and butter. The plea of the tenant that Subhagmal is not doing any business in the shop owned by the applicant and the same is lying vacant was disbelieved as according to the learned prescribed authority there is sufficient evidence on record to hold that Subhagmal is doing business in it. In the alternative, the prescribed authority held that even if the contention of the tenant is accepted that Subhagmal is not doing business, then that shop can only satisfy the need of the landlord himself but not of his son Vijay Kumar. On such findings, the learned prescribed authority held that the need of the landlord is bona fide and genuine for setting up business for himself and to establish his unemployed son Vijay Kumar who was doing temporary kind of work. On the question of comparative hardship, it came to the conclusion that the business of the tenant according to his own admission is only small one as also not very old. The tenant has himself admitted that it is only for the last five-six years that he is doing business in the said shop, hence the same can easily be shifted to any other place. The tenant can either shift his business to his own residence or he can take another shop on rent, whereas the hardship in the event of not releasing the disputed shop in favour of the petitioner would be much greater, as his need to augment his income through business and setting his son both are bona fide. On such findings, the prescribed authority came to the conclusion that the application for release of shop is liable to be allowed. Therefore, vide judgment and order dated 15.12.1984 the prescribed authority allowed the application for release of the shop in question in favour of the landlords the tenant-respondents were directed to vacate the same within six months and hand over vacant possession of it to the landlord. The tenants were further directed to pay the rent of the premises to the landlord at the rate of Rs. 250 per month.
5. Being aggrieved by the said Judgment and order, the tenant preferred an appeal under Section 22 of the U. P. Act No. 13 of 1972 on the ground that both the findings recorded by the learned prescribed authority are sustainable on the material on record, hence liable to be reversed. The appellate court on hearing the appeal came to the conclusion that the landlord can get a new shop constructed for himself on the vacant land which is used as passage. According to the learned appellate authority it was also possible for the landlord to use the said space used for passage for carrying on business by the sons of the landlord also. The finding that the business of Vijay Kumar is not a regular business and was of temporary nature was also not accepted by the appellate authority as in its view Vijay Kumar was already engaged in business of regular nature and there was no bona fide need of the landlord for a shop to establish himself. The appellate authority also rejected the contention of the landlord that he needs the disputed shop to set up the 'Aata Chakki' and Expeller on the ground that said Chakki and Expeller can also be set up in the open area which is being used as passage. The fact that one shop was in the occupation of Subhagmal was also not accepted and the statement of the tenant was accepted that in fact the shop alleged to be in the occupation of Subhagmal was lying vacant. On the question of comparative hardship, the appellate authority found that the tenant cannot set up business in the residential premises because the same could not be used for commercial purposes as it would be in violation of law. In the event of shop being released in favour of the landlord the tenant was bound to suffer more hardship as compared to the landlord. The appeal was accordingly allowed and both the findings recorded by the prescribed authority on the question of bona fide need as comparative hardships were reversed. It is against this judgment that the instant writ petition has been filed.
6. I have heard the learned counsel for the parties and have perused both the judgments of the Courts below.
7. Learned counsel for the petitioner submitted that the finding given by the prescribed authority on the question of bona fide need of the landlord to set up business for himself to supplement his Income and also to establish his younger son in business was based on proper appreciation of evidence and law and appellate court committed manifest error of law by reversing the same. Similarly, findings on the comparative hardship cannot be faulted with and the appellate court on this issue also committed grave error by reversing the same. The aforesaid ground of challenge to the impugned Judgment by the learned counsel for the petitioner has been repelled on behalf of the respondents on the ground that since the appellate court being the final Court of facts, the same are not open to challenge in the writ Jurisdiction. It is further submitted that assuming that the findings recorded by the appellate court are erroneous, even then this Court under Article 226 of the Constitution cannot interfere with the same. No perversity has been shown in the findings recorded by the appellate court, therefore, the same do not call for any interference by this Court, as it would amount re-appreciation of evidence under Article 226 of the Constitution of India which is not permissible in law. In support of the said contention, learned counsel for the respondents referred to the decision of Hon'ble Supreme Court in the case of Munni Lal and others v. Prescribed Authority and others, AIR 1978 SC 29. wherein it has been held that the High Court in the exercise of the powers under Article 226 of the Constitution of India cannot reappraise the evidence and come to its own conclusion which are different from that reached by the appellate authority or the prescribed authority and even findings on the question of comparative hardship are pure findings of facts. Therefore, this Court is not within its right to reappraise the evidence on record and interfere with the findings of fact. I have perused this authority. In fact it is a short order and in this case both the Courts, i.e., the prescribed authority and the appellate authority had concurrently found that the need of the landlord was greater than that of the tenant. In my opinion, this decision is not applicable to the facts and circumstances of the present case. In the instant case, it is to be seen whether the appellate court has committed any manifest error of law or not in reversing the findings of fact recorded by the prescribed authority and if the findings recorded by it though it is a final Court of fact are perverse and not based on any material on record, then this Court even under Article 226 or 227 of the Constitution can interfere and render justice to the aggrieved party by deciding as to which of the findings are correct, i.e., one recorded by the prescribed authority or those recorded by the appellate authority. On the same aspect of the matter, learned counsel for the respondent referred to some more decisions Surendra Kumar Bhatta v. Third Addl. District Judge. Nainital and others. 1978 ARC 445 ; Laxmi Chand v. IIIrd Addl. District and Sessions Judge, Mathura and others, 1981 ARC 471, which have also been perused by me. In all the aforesaid cases, proposition of law is that the appellate court is the final Court of findings of fact and normally the same should not be interfered with under writ jurisdiction under Article 226 of the Constitution but all the same if the findings are wholly perverse and contrary to material on record or are based on no material, then this Court is within its right to consider the same and render justice to the aggrieved parry. In case where the appellate court reverses the findings of fact it has to discuss the evidence in detail to justify such reversal of findings.
8. I have gone through the judgment rendered by the appellate court and the findings of fact that the landlord does not need a shop to set up business to augment his meagre income of pension by doing business is wholly perverse because the view by the appellate court that the landlord can possibly set up his business and install the machinery in the passage cannot be accepted when the landlord is the owner of the constructed shops. By any standard of reasoning, it cannot be accepted that whereas owner should do his business in the passage and the tenant should continue to occupy the shop built by him. The appellate court in fact failed to consider the material upon which the prescribed authority based its findings as also the decisions referred by it. Appellate court erred in law in holding that the business of supplying bread and butter, etc. to various shopkeepers is a business of permanent nature. It is certainly not a regular business and the younger son of the landlord Vijay Kumar obviously is doing this kind of business because no shop is available to him. The prescribed authority for this purpose had rightly placed reliance on the decisions in the case of Suraj Prasad Verma v. District Judge, Mirzapur. 1983 AIR 2426. The need of the shop to establish the unemployed son Vijay Kumar in the facts and circumstances of this case who at the most can be said to be doing some temporary business is bona fide as the landlord is justified to ask for releasing of the shop to enable his son to set up business of permanent nature. The appellate court, therefore, by reversing this finding and treating Vijay Kumar to be established in regular business has committed grave error of law as its finding is wholly perverse. The business of supply of bread and butter is undoubtedly temporary business and as there is no place/shop available for Vijay Kumar to establish the business of regular/permanent nature, therefore, he is doing this temporary/irregular business as there is no other option for him to earn his livelihood. Father's anxiety to establish his son in a regular business, in my view, also is bona fide and genuine. Landlord needs to augment his meagre income from pension by setting up business is also bona fide and genuine. The finding given by the appellate court that the machinery can be set up in the passage is again a perverse finding based on no material hence liable to be set aside.
9. On the question of comparative hardship also, it is not the responsibility of the landlord to suggest a shop for alternative accommodation for the tenant. The comparative hardship means that the Courts of law have to weigh as to which party will suffer greater hardship if the shop in question is vacated by the tenant. If the landlord, is not permitted to earn his livelihood and/or to establish his unemployed son, then the rejection of the application for the release of the shop would certainly cause greater hardship to him than to the tenant who can possibly shift his business either to his own residence or to any other shop taken on rent by him. The appellate court has not found that the business of the tenant is an old one and there is some goodwill, etc., for which he shall suffer greater hardship. Therefore, the appellate court has committed manifest error of law by reversing well reasoned findings given by the prescribed authority based on proper appreciation of evidence on each aspect of the matter. I am, therefore, of the firm view that the judgment and order impugned in the present writ petition being perverse and contrary to established principle of law is liable to be set aside. Writ petition is accordingly allowed and the impugned judgment and order dated 20th May, 1985, passed by respondent No. 3 and contained in Annexure No. 4 is hereby quashed and the findings recorded by the learned prescribed authority are accordingly affirmed. Respondents are directed to hand over vacant and peaceful possession of the shop in question to the petitioner within two months from the date a certified copy of this order is served upon them and pay the arrears of rent, if not paid so far within the same period at the rate of Rs. 250 per month. No orders as to costs.