Heard Sri B.R. Singh , learned counsel for the petitioner and Sri A.A. Siddiqui, learned counsel for the opposite parties.
The facts, in brief , as submitted by the learned counsel for the petitioner are that respondent no. 2 Smt. Kanis Fatima, who is a landlady of the shop situated in Mohalla Jahanbad district Raebareli, moved an application on 11.11.2003( Annexure no.3 to the writ petition) under Section 21(1) (a) of U.P. Act no. 13 of 1972 inter alia stating therein that the shop in question is needed in order to establish a business for his son Azaz Askari, who is unemployed youth.
Accordingly, a P.A. Case No. 6 of 2003 ( Smt. Kanis Fatima Vs. Mohd. Hussain) registered before the Prescribed Authority/ Additional Civil Judge ( Senior Division) Court no.14 , Rae bareli.
After exchange of pleadings between the parties ,prescribed authority came to the conclusion that the need of landlady is bona fide and genuine in comparison to tenant, allowed release application under Section 21(1) (a) of U.P. Act no. 13 of 1972 by order dated 15.12.2009.
While allowing the release application , the prescribed authority recorded a finding that from the date of filling of release application moved by the landlady , tenant does not make any effort to search alternate accommodation.
Aggrieved by the same, the tenant/ petitioner filed Rent Appeal No. 07 of 2010 ( Mohd. Hussain Vs. Smt. Kanis Fatima), dismissed vide order dated 19.5.2010 passed by District Judge , Raebareli. The appellate authority while dismissing the appeal confirmed the findings given by the prescribed authority in respect to the bona fide need on the part of land lady to get the shop released and also that since the date of moving of release application by the landlord/ respondent no.2, no efforts have been made by the tenant/petitioner to search any alternate accommodation.
Aggrieved by the said orders present writ petition filed by the petitioner under Article 226 of the Constitution of India.
Sri B.R. Singh , learned counsel for the petitioner while challenging the order dated 15.12.2009 ( Annexure no.1 to the writ petition) passed by prescribed authority/ Additional Civil Judge ( Senior Division) Raibareli and order dated 19.5.2010 ( Annexure no.2 to the writ petition ) passed by appellate authority/ District Judge Raebareli ,submits that neither the prescribed authority nor the appellate authority considered the need of the tenant in the present case and passed the impugned orders which are contrary on the basis of material on record as from the same it is established that need and comparative hardship of the tenant/petitioner is more genuine and bona fide in comparison to the need of landlady/respondent no.2 on the basis of which she moved release application under Section 21(1) (a) of the Act .
He further submits that in the present case landlady has not disclosed the age of her son Azaz Askari and not also disclosed his qualification so the alleged theory as set up by her to get the shop in question released in order to establish her business for his son is incorrect and wrong rather the same is a desire on the part of landlady to get the shop in question vacated from the tenant/petitioner.
Sri B.R. Singh learned counsel for the petitioner further submits that the authority under rent control failed to take into account the plea as raised on behalf of the petitioner/tenant that landlady has other shop in her possession situate in the same place from where she can start her business for his son , hence the orders passed by the courts below are contrary to record and liable to be set aside and the present writ petition may be allowed.
I have heard Sri B.R. Singh learned counsel for the petitioner as well as Sri A.A. Siddiqui, learned counsel for contesting respondent/ landlady and perused the record.
From the perusal of the record, it transpires that while deciding the release application moved by landlady/respondent no.2 , prescribed authority on the basis of evidence led by landlady i.e. in the shape of affidavits filed in her support, namely, P.W.-1 Syed Azaz Hussain, P.W.-2 Nooruddin Akbar , P.W.-3 Visram Singh Amin Commissioner, P.W.-4 Shyam Mohan Pal Incharge Additional Registrar , Tilhoi Raibareli as well as other documentary evidence filed on her behalf and also evidence placed by tenant/petitioner in support of affidavit, namely, D.W.-1 Mohd. Hussain Beg alias Rajjan, D.W.-2 Indrish , D.W.-3 Pawan Kumar Srivastava , D.W.-4 Badri Vishal Awasthi, D.W.-5 Anwar Jamal and D.W. -6 Lal Mohammad , came to the conclusion that son of landlady after getting education upto class XI is unemployed youth in order to establish his business shop in question is needed.
Further, the prescribed authority also given finding that on the basis of report submitted by Amin Commissioner shop in question is an old shop and lock has been put on the door, no business is run by the tenant/petitioner , so taking into account the said fact and other material on record, prescribed authority held that need of landlady/respondent no.2 to get shop in question to start of the business for his son, is more genuine and bona fide . The prescribed authority also given a findings that since the date of moving of release application no effort has been made by the tenant in order to search alternate accommodation .Accordingly, the release application is allowed.
Moreover, the appellate authority has also given a finding on the basis of evidence on record that shop in question locked since long and no business is being running from the same thus, confirmed the findings given by the prescribed authority in respect to bona fide and genuine need of the landlady/respondent no.2 in respect to shop in question as well as confirmed the findings that tenant has not made any effort to search alternate accommodation since the date of moving the release application.
After hearing the counsel for the parties and from the perusal of the material on record , it is clearly established that petitioner/tenant is enjoying comforts of a rented shop while the son of landlady is unemployed youth and the shop is needed in order to establish her business both the rent courts after appreciacing facts of the present case stated that after filing of release application tenant not made any sincere effort to find out alternate accommodation. So as per settled provision of law that when a release application is filed before the prescribed authority, tenant must find out suitable accommodation, Thus, once it established on the basis of material on record that the tenant did not make any effort to search an alternate accommodation immediately the filing of the release application and even thereafter, so the said facts are sufficient to tilt the balance of comparative hardship against the tenant as held by the Apex Court in the case of Bhutada V. G.R. Mundada 2003 Supreme Court 2713; 2005(2) ARC 899 , the said authority has been followed by this Court in Salim Khan V. Ivth Additional District Judge, Jhanshi and others , 2006(1) ARC 588 wherein it is held is under:-
"in respect of comparative hardship , tenant did not show what efforts they made to search alternative accommodation after filing of release application . This case sufficient to tilt the balance of hardship against them Vide Bhutada V. G.R. Mundada 2003 Supreme Court 2713; 2005(2) ARC 899. Moreover, rent of Rs. 6/- per month which the tenants are paying is virtually as well as actually no rent. By paying such insignificant rent they must have saved a lot of money. Money saved is money earned. They must , therefore, be in a position to take another house on good rent. Further, they did not file any allotment application for allotment of another house. Under Rule 10(3) of the Rules framed under the Act, a tenant, against whom release application has been filed, is entitled to apply for allotment of another house immediately. Naturally such person is to be given preference in the matter of allotment. Respondents did not file any such allotment application. Thus, the question of comparative hardship has also to be decided against the tenants."
The said view has been further reiterated by this Court in the following cases:-
(1) Jai Raj Agarwal Vs. Bhola Nath kapoor and others , 2005(3) ARC 417.
(2) Rulemuddin and others Vs. Abdul Nadeem ,2007(2) ARC 62.
(3) Mohabbey Ali Vs Taj Bahadur and other, 2009 (2) ARC 715.
(4) Raj Kumar Vs. Lal Khan, 2009 (2) ARC 740 (5) Ashis Sonar and other Vs. Prescribed Authority and others 2009 (3) ARC 269 .
In view of the said facts, that once tenant/petitioner had not made any sincere effort to search for an alternate accommodation since the date of moving of release application by landlady/respondent no.2 coupled with the fact in the present era in every City several commercial complex/shops are built and soft loans are also provided by banks to aspirants and in case if petitioner/tenant has made an effort in this regard then he might have get a shop to run his business which he running from the shop in dispute accordingly arguments which are advanced by learned counsel for the petitioner in the instant case that landlady got another shop from which her son can run his business and need of the shop in question is not bona fide and genuine but her mere desire , has got not force accordingly, rejected. At this stage, it is also relevant to mention herein that as per settled proposition of law as laid down by Hon'ble Apex Court as well as by this Court , landlady/ landlord is the best judge to see in what manner and capacity his/her business is to be operated by her/him or by a person on whose behalf release application is moved , tenant or the Courts under Rent Control Act can not dictate the terms that in the manner business is to be operated.
Further, both the courts below have given concurrent findings of facts that need of landlady/respondent no.2 is genuine and bona fide in order to establish the business of her unemployed son Azaz Askari in order to earn his livelihood and held that the tenant/ petitioner has not made any effort to search the alternative accommodation since the date of filing of release application . Keeping in view the said fact this court while exercising the power of judicial review under Article 226 of the Constitution of India cannot set aside the findings of fact recorded by two courts below as per following judgments:-
In the case of Abdul Gaffer Vs. H.S. Srinivasa Setty (dead) by Lrs. 2002 (1) ARC 129, this Court held as under :-
"We have perused the record and find that the District Judge has recorded a categorical fact based on appreciation of evidence that the need of the landlord was neither bona fide nor genuine. On comparative hardship, learned District Judge found that the tenant would suffer greater hardship in the event of eviction from the premises. This, in our view, was a pure finding of fact, which was not permissible for the High Court that to interfere with. However, we are in agreement with the High Court that the bona fide need of the landlord could be tested in the light of subsequent events pleaded by the tenant, if found correct."
In the case of Thakur Madan Mohanji Maharaj (Sri) and another Vs. VII Additional District Judge, Mathura and others 2002(1)ARC 47, this Court held as under :-
"A reading of the aforesaid Section 22, with Section 10 of the Act reveals that the Appellate Authority has got the jurisdiction to go into the validity and correctness of the findings recorded by the prescribed authority. The Appellate Authority can reappraise the entire evidence and can set aside the findings recorded by the Prescribed Authority if they are found to be perverse, erroneous or contrary to the evidence on the record. The submission made by the learned counsel for the petitioners that the Appellate Authority has no jurisdiction to reverse the findings recorded by the Prescribed Authority, therefore, cannot be accepted. The Appellate Authority recorded the findings in the impugned order, on the questions of genuineness of need and hardship against the petitioners, which are based on the relevant evidence on record. I do not find any illegality of infirmity in the said findings recorded and the order passed by the Appellate Authority."
The said view further reiterated in the case of Basanti Bai(Smt.) Vs. Vith Additional District Judge, Kanpur and another [2004(2) ARC 718] and also in the case of Ram Nath Jetle Vs. Ist Additional District Judge, Meerut and another [2004(2) ARC 800].
Hon'ble the Apex Court in the case of Ashok Kumar and others Vs. Sita Ram (2001) SCC 478 held as under :-
"As noted earlier the High Court has faulted the Appellate Authority for not considering the question of comparative hardship. The Appellate Authority did not feel the necessity to go into that question since it had recorded the finding that grant of eviction as pleaded by the landlord was not acceptable. On a fair reading of the proviso to section 21(1)(a) it is clear that the legislative mandate is that the prescribed Authority shall take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application. This question can appropriately be considered by the Authority when he comes to the conclusion that the plea of bonafide requirement taken by the landlord is found to be acceptable. It is at that stage that the Authority should take into account the hardship likely to be caused to the tenant in allowing the petition for eviction as against the hardship likely to be caused to the landlord in the event of rejection of the prayer for eviction of the tenant. In case the Authority comes to the conclusion that the case of bona fide requirement pleaded by the landlord is not believable and acceptable the question of allowing the petition for eviction does not arise and so the necessity of making a comparison between the hardship in allowing the petition for eviction and disallowing the same does not arise."
For the foregoing reasons, I do not find any illegality or infirmity in the impugned orders passed by the courts under Rent Control Act . Accordingly the writ petition lacks merit and is dismissed. However, keeping in view the facts of the present case since the tenant/ petitioner is operating his business from the shop in question, time is granted to him to vacate the same on or before 31st December, 2011 and shall give peaceful possession to the landlady/respondent no.2.
Order Date :- 25.5.2011 dk/