Heard counsel for the parties and perused the record.
This writ petition is preferred by the tenant challenging the validity and correctness of the order dated 23-3-2010 passed by the appellate court / Addl. District Judge-13, Kanpur in Rent Appeal No. 66 of 2009 Suryapal Singh vs. Shashi Prabha Srivsatava and others as well as the judgement and order dated 24-5-2001 passed by the aforesaid appellate authority appended as Annexure no.16 and 17 respectively to the writ petition. The petitioner has prayed for quashing of the aforesaid order on the ground that the orders are illegal.
The facts culled out from the record are that the landlord field release application under section 21(1)(a) of the U.P. Act No.13 of 1972 which was registered as Rent Case No. 30 of 2004 for release of the portion in the tenancy of the tenant consisting of one room, court yard, latrine and bathroom situated on the ground floor of the premises no. 109/231 Ram Krishna Nagar, Kanpur Nagar. The aforesaid accommodation was given on rent @ Rs.100/- p.m. The release application was filed by the landlord on the ground that he is aged about 65 years and that he and his wife are senior citizens and his mother is very old aged about 90 years; that all the three persons were suffering from old age diseases such as arthritis and high blood pressure and as their movement were restricted due to aforesaid disease, they require ground floor accommodation under the tenancy of the petitioner. It was also averred in the release application that the landlord has only one daughter and there is no one except her to lookafter them as such she is living with her family alongwith them which consist of four persons i.e. son-in-law of the landlord, daughter and two sons. Three brothers and the two sisters of the landlord also frequently visit the landlord for residing with him alongwith their family in summer vacation and on festive occasions but as there are only three rooms on the first floor it is insufficient for the landlord as the landlord requires at least several rooms. The need for additional accommodation under the tenancy of the petitioner is genuine and bona fide.
The tenant filed his written statement denying the allegations in the application interalia that originally the need set up by the landlord was of seven rooms including one room for his mother, who has since deceased i.e. after her death now six rooms are required by the landlord and as there are three rooms already in his possession, only three more additional rooms are required and that the landlord has much more accommodation in the concerned premises than what is revealed by him in the release application for the reasons that the landlord has two more houses in district Kanpur itself.
It appears that the tenant suggested in his written statement that the landlord has two rooms in his possession on the ground floor whereas in fact he had only in possession of one room behind the shop of the petitioner in which the landlord is doing his business; that the tenant has described the portion of mezzanine floor as one very big hall.
An affidavit appears to have been filed by the landlord (Annexure no.3 to the writ petition) in which he clarified the portion wrongly described by the tenant. An application was also filed by the landlord for issuing advocate commission before the Prescribed Authority in order to verify the actual position of the portion in possession of the landlord, which was objected by the tenant and the application remain undecided about more than three years compelling the landlord to withdraw the application on 23-7-2009 so that the matter may be heard on merits.
The Prescribed Authority by its order and judgment dated 30-7-2009 rejected the release application. Aggrieved by the order of the Prescribed Authority, the landlord preferred an appeal no. 66 of 2009 Suryapal Singh vs. Shashi Prabha Srivastava and another. The appellate court allowed the appeal and set aside the order passed by the Prescribed Authority on the ground that the tenant himself did not make any effort to search out any accommodation after filing of the release application against him.
The contention of the counsel for the petitioner is that the Prescribed Authority had illegally dismissed the release application on total misconception of facts as he did not consider the grounds on which release application has been filed.
It is stated that the Prescribed Authority did not even consider the diseases from which the landlord and his family members were suffering and were having difficulty in locomotive movement and the release application was dismissed totally on misconceived grounds that the landlord has a huge accommodation in his possession situated in the second floor.
It is submitted that on the second floor, one room was vacated by Ghanshyam which is situated in dilapidated condition and there are two other kotharies which have been vacated by Smt. Kanti Srivastava. Those are being used for storage purpose by the landlord.
It is also stated that at the appellate stage, the landlord had made an offer to the tenant to take that portion and the mezzanine floor and tin shed situated in the third floor which was refused by the tenant by saying that the offer of the accommodation of the landlord was not suitable for residential purposes.
The appellate court found that the need of the landlord was bona fide and genuine and considering the materials on record as well as the facts and circumstances of the case found that the need of the landlord for additional accommodation was pressing, genuine and bona fide and that the landlord has only three rooms available on the first floor which are insufficient for requirement of the landlord.
It is argued by the learned counsel for the petitioner that the appellate court also considered the accommodation / portion suggested by the landlord and allowed the release application and has set aside the order passed by the Prescribed Authority. It is lastly urged that the order passed by the appellate court is based on material facts available on record and is in accordance with law therefore liable to be upheld and the writ petition is liable to be quashed. Counsel for the petitioner has relied upon the following case law :-
1. Savitri Sahay vs. Sachida Nand Prasad 2003 Supreme Court page 223 wherein the Supreme Court had held that the landlord is the best judge of his requirement and if the landlord has premises 2 or more than that 2 premises, even then only landlord has right to choose which one would be preferable and the tenant cannot question such preference.
2. R.C. Tamrakar and another vs. Nidi Lekha 2002 SC page 661 wherein Apex Court has held that the landlord is the best judge of his requirement for the residential purposes and he has to decide that how and in what manner he should live and neither the tenant court can suggest the landlord as to how the landlord should adjust with his requirement.
3. Joginder Pal vs. Naval Kishore Bahel 2002 SC Full Bench Rent Cases page 288 wherein the question has come before Hon'ble Supreme Court that for whom the landlord can file release application and it is held by the Hon'ble Supreme Court that the family includes the requirement of the wife, husband, sister, children including son, daughter, a widow daughter and her son, nephew, co-parceners members of the family and dependant and kith and kin of the requirement of landlord and 'as his' of 'his own' requirement and user keeping in view the social or socio religious milieu an practices prevalent and particular section of society or a particular religion to which the landlord belongs.
4. Chandrapal Singh Parihar vs. Vth Additional District Judge, Kanpur and others 1992 Vol-2 A.R.C. Page 523. It is stated in this case also for occupation by himself or by any member of his family or any person has been described and it is held that if a landlord moved by social rules and moral principles, sentiments of love and affection, sympathy and compassion, permanently accommodates with him a person related to him by marriage or birth, directly or indirectly. Who is in distress, the need of occupation for the purposes of residence of such a person may be taken as the need of the landlord himself notwithstanding the fact that such person is not a member of the landlord's family within the meaning of the term as defined in section 3[g] and the landlord also dies not require such person for any assistance, personal or professional. Reasons being the fulfilment of landlord's social and moral need.
Per contra the learned counsel for the respondent has submitted that the need originally set up by the landlord in the release application was for seven persons inclusive of married daughter and her family members as well as mother of the landlord (mother of the landlord viz. Smt. Raihna Devi expired during the pendency of the release application). Thus there are now only six persons in the family of landlord, which includes married daughter and her family member also. Thus according to the landlord himself four more /additional rooms were required, which was inclusive of one room for mother, who admittedly expired in the month of October, 2003 during the pendency of the release application.
It is argued by the learned counsel for the petitioner that the Prescribed Authority has rightly rejected the release application and that the findings recorded by the appellate authority is bona fide, are wholly perverse. He has made reference to the following admissions, made by the landlord :-
(a) that he has two rooms and one verandah on the ground floor of the concerned premises though initially the landlord has not revealed about this accommodation; that he had himself admitted in the release application that he has three rooms on first floor.
In his affidavit appended as Annexure no.13, the landlord had admitted in paragraph no 7 and 15 thus :-
7-
;g fd iq=h ds ifr ds ikl LorU= :i ls dejk u gksus ds vHkko esa mlus ?ku';ke flga ds }kjk fjDr fd;s x;s izHkkx dks ejEer djds nkekn ds lksu ds fy, dejk cuk fy;k gS ,oa 'kiFkdrkZ dh iq=h ds ikl ?kjsyw lkeku j[kus ds fy,] dwyj j[kus ds fy,] jtkbZ xn~nk j[kus fd fy,] oL=ksa dh lqj{kk gsrq dksbZ Hk.Mkjx`g ugha Fkk] bl fy, dkUrh JhokLro }kjk fjDr fd;s x;s izHkkx dks ,d dejk cukdj mldks Hk.Mkjx`g cuk;k x;k gS A edkunkj dks viuh vko';drk dk Lor% fu.kkZ;d ekuk x;k gS A mls viuh vko';drkuqlkj Hkou esa jgus dk vf/kdkj gSA /kkjk 21 dk mn~~ns'; HkouLokeh dks mlds edku esa fcuk d"V ds jgus dh lqfo/kk iznku djrk gS u fd jsy ds fMCcs ds lkeku dks Hkjdj thou fuokZg djuk A 15-
;g fd edkunkj dh iq=h dh iq=h o iq=h ds iq= ds i<+us ds fy, dksbZ LFkku ugha Fkk] bl fy, uUnu flag okys Hkkx esa edkunkj us est dqlhZ Myokdj iq=h dh iq=h o iq=h ds iq= dks i<+kus dk izcU/k dj j[kk gS A fdrkcsa j[kus dk LFkku cuk gS A xzh"edky esa ogkaW B.Mh gok vkrh gS A ;g dFku vlR; gS fd Hkwfe[k.M esa nks deus dks edkunkj us izdV ugha fd;k gS A 'kiFkdrkZ us Lo;a dgk gS fd mlds ikl Hkwfe[k.M esa ,d fctyh dh nqdku gS] ftlesa og fctyh] ia[ks] tujsVj vkfn dh ejEer djrk gS vkSj ihNs dh rjQ ,d dejk o cjkenk gS] ftles ejEer fd;s gq;s o ejEer ds fy, vk;s gq, ia[ks] tujsVj] fctyh vkfn j[krk gS A It is stated that one room was vacated by Ghanshyam, one room was vacated by Smt. Kanti Srivastava and one room has also been vacated by Nandan Singh during the pendency of release application which came into possession of the landlord. Therefore the landlord has two rooms, one verahdah on ground floor, three rooms on first floor as admitted by the landlord in his release application, one room vacated by Ghanshayam, one room vacated by Smt. Kanti Srivastava and one room vacated by Nandan Singh. Thus according to the tenant, the landlord has at least 8 rooms as per his own admission and according to the tenant, he has at least 11 rooms which goes to show that the Prescribed Authority has not applied its mind and the findings recorded by the appellate authority are wholly perverse. It is also stated that the appellate court has wrongly observed that the matter regarding vacation of one room by Nandan Singh is still pending. As such the need set up by the landlord is neither bona fide nor the factum of comparative hardship is in his favour as he has more accommodation than the need set up by him.
With regard to comparative hardship, the counsel for the petitioner has pointed out that the offer made by the petitioner for getting the whole accommodation allotted was not met with and the findings recorded by the appellate court in this regard are wholly perverse as such the judgment of the appellate authority deserves to be set aside and the writ petition is liable to be allowed.
Counsel for the petitioner has relied upon the paragraph no. 9 of the case G.C. Kapoor vs. Nand Kumar Bhasin reported in 2001 (2) Allahabad Rent Cases page 603 and submits that it has been held in this judgment that the need of the landlord should be bona fide. Paragraph 9 is quoted below :-
"It is settled position of law that bona fide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. In Dattaraya Laxman Kamble v. Abdul Rasul Mopulali Kotkunde and Another, 1999 (4) SCC 1: 1999 SCFBRC 292, this Court while considering the bona fide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he has to prove it but there is no warrant for 'presuming that his need is not bona fide' It was also held that while deciding this question, Court would look into the broad aspects and if the Court feels any doubt about bona fide requirement of the landlord for non-residential purposes, as he wanted to start a grocery business in the suit premises to improve his livelihood."
He has also relied upon the paragraph nos. 5, 6, 7 and 8 of the judgement in Smt. Ram Devi vs. VIII Additional District Judge, Kanpur and others reported in 1999 (1) ARC 172 which pertains to the scope of interference in the writ petition. Paragraphs are quoted below :-
"5. It is true that this Court while exercising powers under Article 226/227 of the Constitution of India does not act as a Court of appeal and the powers are of judicial review only. It is also well settled that this Court in exercise of powers of judicial review does not ordinarily interfere with the concurrent findings of fact recorded by the Courts below on appraisal of evidence but that does not mean that in no case this Court will intervene. When can interference be made in writ jurisdiction in such cases, has been explained by the Supreme Court in the case of M/s. Variety Emporium v. V.R.M. Mohd. Ibrahim Naina, 1985 (1) S.C.C. 251 : 1985 SCFBRC 52 (SC). In that case, the Apex Court made interference on the ground that injustice should not be allowed to be perpetuated.
6.Even in those cases where this Court in its writ jurisdiction is faced with concurrent decisions, it is the duty of the Court to examine the material and do justice between the parties and it will be a denial of justice if the Court acts on a computerised system of administration of justice by just affixing a rubber stamp of approval on the concurrent decisions merely on the ground that they are based on findings of fact. I do not feel that the litigant public should be given a message that concurrent findings howsoever erroneous may be, cannot in any circumstances be questioned in writ jurisdiction. Where the case of a party has been accepted without an objective test and careful assessment of evidence on record, intervention by this Court becomes necessary for doing justice between the parties.
7.In the case of Chandravarkar Sita Ratna Rao v. Ashalata S. Guram, (1986) 4 S.C.C. 447 : 1986 SCFBRC 413 (SC), it was held by the Apex Court that in exercise of jurisdiction under Article 227 of the Constitution, the High Court can go into the question of facts or look into the evidence if justice so requires. But it should decline to exercise that jurisdiction in the absence of clear cut down reasons where the question depends upon the appreciation of evidence. It also should not interfere with a finding within the jurisdiction of the inferior Tribunal or Court except where the finding is perverse in law in the sense that no reasonable person properly instructed could have come to such a finding or there is mis-direction in law or a view of fact has been taken in the teeth of preponderance of evidence or the finding is not based on any material or it has resulted in manifest injustice. Except to that limited extent the High Court has no jurisdiction.
8.In the case of Smt. Nirmala Tandon v. Xth A.D.J. Kanpur, 1996 (2) A.R.C. 409, it was held by this Court that the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India in rent control matters is supervisory in nature and it does not sit as a Court of appeal when called upon to Judge the findings of the competent authorities viz, bonafide need of the landlord and comparative hardship of the parties. The Court would not embark upon reappraisal of the evidence or substitute its own findings of fact in place of findings reached by the fact finding authorities. It is clearly outside the Court and ambit of the judicial review. However, findings of fact may be interfered with when they are based on account of wrong application of principle of law relevant thereto or relevant material has not been taken into consideration or a finding is otherwise arbitrary or perverse.
Counsel for the petitioner has contended that even bonafide need of the accommodation and the comparative hardship is in favour of the landlord. It may also be noted that the landlord had offered the accommodation vacated by the other tenant to the petitioner but he refused the same on the ground that it is not fit for residential purpose. The two small kotharies and the rooms vacated by Ghanshyam and Smt. Kanti Srivastava and the mezzanine floor are being used by the landlord as store purpose. If the accommodation in mezzanine floor is not useful for residential purpose, it cannot be considered for residential purpose in the facts and circumstances of the case. The landlord has also clarified the accommodation in his possession.
The landlord and his wife are senior citizens and are living with his old mother. Their daughter had come to look after them. The need of the daughter and her family who have come to look-after her parents and grand mother cannot be ignored. The mother and wife of the landlord is not very locomotive and suffering from old age diseases. Their problems have increased in the old age as they are living on the first and second floor. It would be wholly unreasonable to calculate the number of rooms and number of members of the family to come to a conclusion that the accommodation is sufficient or not. Apart from the rooms to sleep and keeping their valuables the family also requires store room, latrine, bathroom, drawing room etc. for common use of the family members. The landlord is the best judge of his requirement. Apex Court in the case of Savitri Sahay (supra) has held that even if the landlord has more than two premises or more he has a choice of preference and the landlord cannot question such preference. The room vacated by Ghanshyam is in dilapidated condition which has been made habitable by the landlord for his daughter and her family who are living with them. It is prerogative of a landlord how and in what manner he has to live and the tenant is loath to make any suggestion how need of the landlord can be satisfied by adjusting his requirement.
The appellant court has rightly found that the need of the landlord was genuine and he would suffer more comparative hardship than the tenant in the facts and circumstances of the case as is also held in the case of Chandrapal Singh Parihar (supra). The appellate court has not committed any error of law on facts of record to come to the conclusion that the accommodation in possession of the landlord does not satisfy his bona fide requirement and his bona fide need and comparative hardship for the accommodation under the tenancy of the petitioner cannot be ignored.
The appellate court has also found that the tenant did not make any effort to search out any accommodation after filing of the release application against him. The order passed by the appellate court is based on material facts available on record and based on legal approach. Therefore no interference is called under Article 226 of the Constitution of India.
For all the reasons stated above, the writ petition is dismissed. No order as to costs.
Order Date :- 17.9.2010 skv