IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No.18 of 2010 Jagdish Narain Mehra, Son of Sri R.R.Mehra, Resident of Merino Hotel, Mall Road, Tallital, Nainital. … Petitioner. Versus Sri Ranjay Pratap Son of Sri Ram Pratap, Resident of Hotel Pratap Regency, The Mall, Tallital, Nainital, District Nainital. … Respondent. Sri Arvind Vashist, Advocate, learned counsel for the petitioner. Sri B.D.Kandpal, Advocate, learned counsel for the respondent. Date March 15, 2010. Hon’ble B.S.Verma, J. Heard learned counsel for the parties and perused the record. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the order dated 22- 12-2009 passed by Additional District Judge, I F.T.C. Nainital in Rent Control Appeal No. 12 of 2006 Jagdish Narain Mehra Vs. Sri Ranjay Pratap and the order dated 22-8-2006 passed by Prescribed Authority/Chief Judicial Magistrate, Nainital, in Rent Control Case No. 11 of 2003, Ranjay Pratap Vs. Jagdish Narain Mehra. By the order dated 22-8-2006, the learned Prescribed Authority had allowed the application of the landlord for release moved under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 ( for short the Act) and directed the petitioner tenant to vacate the disputed property within a period of thirty days. By the order dated 22-12-2009, the appellate Court dismissed the appeal of the petitioner. 2 Relevant facts, giving rise to the present writ petition, are that the respondent-landlord moved an application under Section 21(1)(a) of the Act before the Prescribed Authority for release of the disputed premises the boundaries of which have been detailed at the foot of the application. The application was registered as Rent Control Case No. 11 of 2003. It has been alleged therein that the landlord purchased the property known as Grainvill Shop, Mall Road, Tallital, Nainital through registered sale-deed dated 15-9-1993 from its previous owner and landlord Madan Lal Sah. The portion which the landlord had purchased has been shown and delineated within the words A-B-C-D-E-F-G-H-A in the map attached to the sale-deed. The petitioner is a month-to-month tenant in the ground floor and is running a restaurant and a hotel in the name and style of Merino Hotel and Restaurant. The tenant has also opened the office of travel agency in the Verandah. The upper storey of the said portion is in the tenancy of one Mohan Lal Sah. The said property was purchased by the landlord for his personal need to settle him in the business. The applicant served a notice dated 10-2-2003 upon the petitioner asking him to vacate the premises in question and to deliver its possession to the landlord, granting six months’ time to vacate but the petitioner did not comply with the notice. The application for release has been moved to start a business in the disputed premises as the landlord has become overage for government jobs. It is alleged that the applicant is married person having four members in his family comprising himself, his wife, one son Master Shaurya Pratap and one daughter Tanisha Pratap. The opposite party is a rich person having several businesses in Nainital and Bareilly and he also owns one passenger bus, two Qualis, Vans and they are being run on rent. The petitioner resisted the application by filing his objection contending therein that the applicant is not the owner of the entire Grainvill Shop Mall Road. The petitioner has admitted his tenancy and ownership of the respondent over the disputed premises but alleged that the tenancy is annual and not month to 3 month. It is also alleged that the office of travel agency had been existing there prior to the purchase of the portion by the applicant,, hence the allegation on this point is wrong. It has been denied that the landlord needs the disputed premises for his bona fide requirement to run his business. The intention of the landlord to purchase the disputed property was to safeguard the hotel of the applicant and his brothers known as Pratap Regency. The petitioner has a longstanding tenancy since 1956. It is also asserted that the tenancy has the disputed premises as the only source of his livelihood. The applicant does not have any bona fide requirement for the disputed premises. It is also asserted that if the premises in question are released, the petitioner would suffer greater hardship and his entire business would be ruined. Both the parties led documentary evidence as well as oral evidence in the shape of affidavits before the Prescribed Authority. The Prescribed Authority after hearing both the parties and on perusal of the evidence has recorded a clearcut finding that the landlord has bona fide requirement for the disputed premises. It has also been held that the landlord would suffer greater hardship if the premises in question is not released in his favour as compared to the hardship of the petitioner. Accordingly, by order dated 22-8- 2006, the application for release of the petitioner has been allowed. Aggrieved by the said judgment and order, the petitioner preferred appeal before the appellate Court, which was registered as Rent Control Appeal No. 12 of 2006, Jagdish Narain Mehra Vs. Ranjay Pratap. However, after hearing both the parties and perusing the evidence led by the parties, the learned appellate Court also did not find favour with the petitioner and dismissed the appeal holding that the need of the landlord-respondent is bona fide and that the balance of comparative hardship also tilted in favour of the landlord. 4 The main ground of challenge raised in the writ petition are that the courts below failed to consider the provisions of Section 34 of the Act and Rule 22 framed under the Act. Counter affidavit has been filed on behalf of the respondents. It has been stated that the landlord is the sole owner of the portion of building, which was purchased by him. The respondent purchased the disputed premises with double storey on 15-9-1993 for his personal use and occupation and for business purpose. It is also stated that the application under Rule 34 of the Rules framed under the Act has been moved just to delay the proceedings. It is also stated that the report of the Commissioner was rightly relied upon by the Prescribed Authority. It is also stated that the two courts below have recorded independent finding of fact regarding the bona fide need of the landlord-respondent and the comparative hardship was also found in favour of the respondent. Rejoinder affidavit has been filed on behalf of the petitioner. I have perused the averments made in the memo of writ petition, the counter affidavit filed by the respondent and the rejoinder affidavit of the petitioner. It is an admitted fact that the relationship between the petitioner and respondent is that of tenant and landlord. At the outset it may be mentioned that the scope of writ jurisdiction under Articles 226 and 227 of the Constitution of India is limited. This Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or reevaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned order can be seen to find out whether there is a case of mis-reading of evidence by the courts concerned. 5 The Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai and others [(2003) 6 Supreme Court Cases, 675 has held that “On the other hand, supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate 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.” In the case “Ranjeet Singh Vs. Ravi Prakash” [(2004) 3 S.C.C. page 682], the Apex Court has observed inter alia in paragraph 4 of the judgment that “An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal.” In the above premises, it has only to be examined whether the courts below have committed any manifest error of law or the jurisdictional error or has based its findings without any evidence. A perusal of the judgment and order of the Prescribed Authority clearly goes to show that the Prescribed Authority has elaborately discussed the points of relationship of tenant and 6 landlord between the parties, the bona fide requirement of the landlord and comparative hardship. The Prescribed Authority has dealt with the point of bona fide need from page 11 to page 20 of its judgment and order and after discussing the evidence led by the parties and controversy in detail the Prescribed Authority has given a categorical finding that the landlord-respondent has bona fide requirement for the disputed premises under the tenancy of the petitioner. On the point of comparative hardship, the Prescribed Authority has observed that the petitioner has not made any effort to search for the alternate accommodation to shift his business despite sufficient time given to him. The Prescribed was therefore also of the view that that the applicant-landlord would suffer greater hardship if the application for release is refused. In appeal, the appellate Court also discussed the matter elaborately and by a detailed judgment and order, it has been observed that the applicant-respondent has bona fide need for the disputed premises and the appellate court has rejected all the contentions raised by the appellant-petitioner and has held that the need of the landlord is bona fide. The appellate court has also categorically held that the petitioner-appellant did not make any effort to get alternative accommodation during the pendency of the release application and even during the pendency of appeal and no evidence was led to that effect. It has been held that the comparative hardship goes in favour of the landlord. Learned counsel for the petitioner has vehemently contended that the application of the petitioner (paper no. 52-C) which was moved under Section 34(1)(g) read with Rule 22 of the Rules framed under the Act before the appellate court was wrongly dismissed. I have also perused the order dated 9-3-2009 passed by the appellate court (Annexure-7 to the petition). This order is not under challenge by the petitioner in this writ petition. Even 7 otherwise, the order passed by the appellate court does not suffer from any perversity. It has also been submitted that the tenancy of the petitioner is longstanding. Long standing tenancy is also of no help to the petitioner. I am of the considered view that the bona fide requirement of the landlord-respondent cannot be ignored merely on the basis that the tenancy of the petitioners is about 54 years long. I am supported in my view by the Apex Court verdict in the case of Shamshad Ahmad and others Vs. Tilak Raj Bajaj (Deceased) by LRs. and others [(2008) 9 Supreme Court Cases, Page 1]. The Apex Court while considering the provisions of Section 21(1)(a) of the Act has observed in paragraph no. 47 as under:- “47. In the case on hand, a finding had been recorded by the appellate authority that requirement of the landlord for doing business by Matloob Ahmad, hushand of Applicant 6 was bona fide and genuine. Thus, the requirement of the landlords was established. The said finding stands today. The High Court by a cryptic order, without disturbing the said finding which was based on appreciation of evidence, set aside the order of eviction against the tenant, inter alia, observing that Matloob Ahmad was a “retired person” and was getting pension and was living in his village at a distance of five kilometers from Dehradun. It is no doubt true that the tenancy was created before about fifty years but that should not be a ground for depriving the landlord for doing business if the requirement of the landlord is bona fide and reasonable.” Learned counsel for the petitioner has lastly contended that in case this Court does not find favour with the contentions raised on behalf of the petitioners and the writ petition has to be dismissed by this Court on merits, in that case the petitioner may be granted one year’s time to vacate the disputed premises. 8 It is evident from a perusal of the impugned orders that there is concurrent finding of fact on the point of bona fide need and comparative hardship recorded by the two courts below. These findings have been recorded on appraisal of the evidence brought on record. I do not find any perversity or manifest error of law or jurisdictional error in the impugned orders. The impugned orders do not call for any interference by this Court in this writ petition. The writ petition being devoid of merit is liable to the dismissed outright. The writ petition is dismissed on merits. However, considering the facts and circumstances of the case and to do complete justice in the matter, a period of one year, as prayed for by the learned counsel for the petitioner, is granted to the petitioner to vacate the disputed premises and to deliver its vacant and peaceful possession to the landlord-respondent before expiry of the said period i.e. 15th March 2011, provided the petitioner furnishes an undertaking in writing to that effect before the Prescribed Authority within a period of four weeks from today and the petitioner pays the rent/damages to the respondent-landlord regularly by the seventh day of the next month for the previous month. If the undertaking is not given by the petitioner within the stipulated period of four weeks, in that event, the landlord- respondent shall be entitled to get the disputed premises vacated through court in accordance with law. ( B.S.Verma, J.) RCP 9