Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 557 of 2011 Pankaj Batra. … Petitioner. Versus Smt. Krishna Gupta and another. … Respondent. Mr. V.N.Agarwal with Mr. K.C.Tiwari, Advocates, learned counsel for the petitioner. Mr. Sharad Sharma, Senior Advocate with Mr. Bhuwan Bhatt, Advocate, learned counsel for the respondent. Date September 15, 2011. Hon’ble B.S.Verma, J. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the order dated 10- 3-2011 passed by the respondent no.2 Annexure No. 14 to the writ petition, whereby the learned appellate court has allowed the appeal of the landlady, has set aside the order dated 17-8-2009 passed by the Prescribed Authority and has allowed the application under Section 21(1)(a) of the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act) of the landlady for release of the shop in question and directed the opposite-party respondent no. 1 to vacate the same and deliver vacant possession within a period of one month as mentioned in the order. Brief facts, giving rise to the present writ petition, are that the landlady-respondent no.1 moved an application under Section 21(1)(a) of the Act against the tenant-petitioner for release of the shop in question on the ground that she wants to do her own business. Since she has no liability to do at house to keep her busy, she has bona fide need for the shop in question and the same be released in her favour. The landlady served a notice dated 17-8- 2006 asking the tenant to vacate the shop in question, but the notice was wrongly replied. She also stated that the alternative shop is available to the tenant and shops are being given on rent in 2 Kashipur town and the opposite party can take a shop on rent to do his business. The applicant-landlady is ready to pay compensation. The opposite party-petitioner resisted the release application by filing his written statement. Relationship of landlord and tenant has been admitted. It has been asserted that towards the west of the shop in question, there is a vacant shop of the landlady and she can run her business therein. The release application has been resisted on the ground that the landlady had a shop vacant and in that shop with an ulterior and oblique motive to get the shop in question released, she gave possession of the shop to her son Varun Kumar, while Varun Kumar has his own shop. It has been further asserted that in the disputed shop, the grandfather of the opposite party was a tenant. On his death, the father of the opposite party became tenant and after the death of his father, the petitioner-O.P. is the tenant of the shop in question and has earned a goodwill. In the year 1970, the rate of rent was Rs. 45/- per months and fraudulently, the rate of rent was mentioned Rs. 90/- in the municipal record and presently the rate of rent is Rs. 900/- per month. The landlady wants to increase the rate of rent and for this purpose, the release application has been moved. According to the petitioner, the shop which is in possession of Varun Kumar was given on rent in the year 2003 and the application under Section 21(1)(a) of the Act has been filed in the year 2006. The tenant-petitioner has filed documents of assessment of the Municipality to support his contention that the shop has been shown in her own possession in the year 2003-2004. Learned counsel appearing for the landlady-respondent has clarified this fact that the survey report, which was filed as Annexure-16 to the writ petition was prepared to support that business as has been mentioned in the paper itself to get the registration in the sales tax department and the assessment of order was for the purpose of assessing sales tax, i.e. after starting the 3 business. These are public documents. Unless rebutted, these documents be treated as correct. Learned counsel for the landlady-respondent has further contended that there is no bar under the Act that mother cannot give her shop to a son and the landlady is the best Judge of her need to get the shop released, which she needed. Learned Prescribed Authority has dismissed the release application on the ground that the landlady was having a shop and that was given to her son. The son is already having a shop, therefore, the need of the landlady is not bona fide. No finding has been given on the point of comparative hardship since bona fide need has not been established. Aggrieved by the order of the Prescribed Authority, the landlady preferred an appeal before the learned District Judge Udham Singh Nagar. The learned District Judge, after considering the evidence filed by the parties before the Prescribed Authority by way of affidavits including the affidavit of Varun Kumar, the tenant-petitioner and the landlady and by relying upon the survey made by the Sales Tax department in the year 2003 and the assessment order made thereafter, came to the conclusion that the son of the landlady had occupied the shop in the year 2003 and the application for release has been filed in the year 2006. It cannot be said that the application was moved with an ulterior and oblique motive to get the shop released from the possession of the tenant- petitioner and allowed the application. Counter affidavit has been filed on behalf of the respondent no.1 and it has been stated therein that the landlady needed the shop in dispute to start her business of Ladies Fancy items and that the need of the landlady is bona fide and genuine. It has been specifically stated in paragraph no.4 of the counter 4 affidavit, which is in reply to the contents of paragraph no. 5 of the writ petition as under:- “4. That the contents of para no. 5 of the writ petition are not admitted as stated therein. It is wrong to say that the deponent has shown her need is simply for passing the time. Deponent has specifically pleaded that since she has no house work to do and remained idle and has developed mental sickness so to keep herself busy she needed the present shop in dispute to start her business in Ladies Fancy items. She further pleaded that she is capable of doing business and the shop in dispute is a proper shop where she can do this business. She need the shop genuinely and her need is bona fide. The law postulates that the existence of accommodation for commercial purposes with the landlord will always be determined on the basis of actual availability on the date of filing of release and that status in itself would be relevant for the purposes of Section 21(1)(a) of the Act, and prior or later availability of a vacant accommodation is of no avail. Admittedly in the instant case the tenant’s contention for denouncing the need of landlord on the ground that she has let out an accommodation to Varun Kumar in 2003 is of no relevance because the said creation of tenancy since happens to be prior to filing of the release application hence no note of it could be taken for the purposes of the present writ petition.” Along with the counter affidavit, the landlady- respondent no.1 has annexed copies of certain documents filed before the Prescribed Authority including copies of affidavit of the landlady and the affidavit of Varun Kumar as Annexure Nos. 1 and 2 to the counter affidavit. The Certificate of Registration of the Central Sales Tax has been filed as Annexure-3 to the counter affidavit. The respondent no.1 has also annexed copy of the sanction granted by the Prescribed Authority Kashipur pertaining to House No. 329/1 dated 25-9-2004 in favour of Varun Kumar Son of Sri Umesh Kumar. 5 The petitioner has filed rejoinder affidavit wherein the averments made in the writ petition have been reiterated. I have heard learned counsel for the parties and perused the record including the memo of writ petition, the counter affidavit and the rejoinder affidavit. 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. 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.” The Apex Court in the case of Shamshad Ahmad and others Vs. Tilak Raj Bajaj (Deceased) through L.RS. and others [(2008) 9 Supreme Court Cases, 1] while dealing with Articles 226 and 227 of the Constitution of India has observed as under:- “38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and 6 tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law.” Learned counsel for the petitioner firstly contended that if the evidence was misread by the Court, which has bearing, the District Judge may set aside the finding of the trial court and give perverse finding treating the documents of the sales tax department to be a genuine one and secondly the shop of son Varun Kumar is suitable for business. Varun Kumar was given shop with oblique motive to get the shop in question released. Learned counsel for the petitioner in support of his first contention has placed reliance in the case of Achutananda Baidya Vs. Prafullya Kumar Gayen & Ors. [1997, Supreme Appeals Reporter (Supreme Court), page 433] wherein the Apex Court has held in paragraph no. 9 as under:- “9. We are, however, unable to accept such contention of Mr. Bhattacharya. In this case, the High Court has rightly held that the appellate authority came to the finding of non existence of oral agreement of reconveyance without considering the evidence on record. If the appellate authority does not consider the materials on record having a bearing on a finding of fact and makes the finding of fact, such finding of fact arrived without consideration of relevant materials on record cannot be sustained in law. The High Court, in such circumstances, will be competent to consider the 7 validity of the finding of fact assailed before it with reference to materials on record.” The ratio of the judgment cannot be disputed. In the case at hand, from a bare perusal of the impugned order dated10-3- 2011 passed by the appellate court, it is obvious that the contentions raised by the respondent-petitioner have been considered at pages 8 to 19 of the judgment. The learned appellate court in paragraph 2 of page no. 8 has specifically observed that on the basis of the facts on record, it is not established that the shop which was occupied by Varun Gupta for business is vacant. It has been held that Varun Gupta has been doing his business on the shop, which was taken on rent from the landlady. The learned appellate court has further observed that the survey report was conducted by the sales tax department and the said survey report cannot be taken to be a forged one. From the survey report, the appellate court has held that the son of the landlady is doing his business in that shop and that shop cannot taken as vacant. The appellate court has considered the sanctioned map paper no. 20- C/2, which has been allegedly reconstructed in the year 2005. The appellate court has observed that the Prescribed Authority lost sight of important facts while dismissing the release application. It has been specifically held by the appellate court that on the basis of documentary evidence led by the parties it cannot be said that the shops which are alleged to be vacant by the petitioner are not in fact vacant. Thus, in any view of the matter, it cannot be said that the appellate court failed to consider any such evidence which has a bearing on finding of fact. The above case law relied upon by the petitioner does not help him. In my view no case of misreading of evidence by the appellate court is made out in the instant case. Learned counsel for the petitioner has further submitted that the need of the landlady in the case at hand is not genuine and honest, as the landlady had given the shop to her son with oblique and ulterior motive. In support of his contention, the 8 learned counsel for the petitioner has placed reliance upon the verdict of the Apex Court in paragraph 6 of the case of Ram Dass Vs. Ishwar Chander and others [AIR 1988 Supreme Court, 1422]. In paragraph 6, the Apex Court has inter alia held as under:- “Statutes enacted to afford protection to tenants from eviction on the basis of contractual rights of the parties make the resumption of possession by the landlord subject to the satisfaction of certain statutory conditions. One of them is the bona fide requirement of the landlord, variously described in the statutes as “bona fide requirement”, “reasonable requirement”, “bona fide and reasonable requirement” or, as in the case of the present statute, merely referred to as “landlord requires for his own use”. But the essential idea basic to all such cases is that the need of the landlord should be genuine and honest, conceived in good faith; and that, further, the court must also consider it reasonable to gratify that need. Landlord’s desire for possession, however honest it might otherwise be, has inevitably a subjective element in it and that, that desire to become a “requirement” in law must have the objective element of a “need”. It must also be such that the court considers it reasonable and, therefore, eligible to be gratified. In doing so, the court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down.” Learned counsel for the petitioner has further relied upon the case of Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta [1999 SAR (Civil) 687], wherein the Apex Court in paragraph no. 13 has inter alia held as under:- “The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself-whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the 9 court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord.” The ratio of the above judgments rendered by the Apex Court cannot be disputed, but they are of no avail to the tenant-petitioner. There is specific finding of fact recorded by the appellate Court that the need of the landlady is bona fide and genuine and that release application has not been filed against the tenant just to get rid of him to get the premises vacated. The contention of the learned counsel for the petitioner is that the landlady has other premises available for her occupation. Learned counsel has placed reliance upon paragraph no. 18 of the case of M.M. Quasim V. Manohar Lal Sharma and others [AIR 1981 Supreme Court, 1113]. This contention of the petitioner is not at all acceptable because from a perusal of record, there is no such evidence on record that some other shop than the disputed shop is available to the landlady, therefore, the case law is of no avail to the petitioner. So far as the point of bona fide and reasonable requirement of the landlady for the disputed shop is concerned, the learned appellate Court has elaborately discussed the evidence brought on record by the parties. In the case at hand, the petitioner has vehemently hammered that the landlady is a house lady and she does not require to start any business and that no medical evidence has been led by the landlady with regard to her mental agony or distress. So far as the finding on the point of bona fide and genuine need of the landlady is concerned, in my view the learned appellate court has rightly held that the bona fide need of the landlord shall be considered on the date of filing of application for release. The release application undisputedly has been filed by the landlady in the year 2006. It is settled law that the landlord is the 10 best Judge of his own need. It has been clearly held by the learned appellate Court that on the basis of evidence led by parties, it is established that the shop, which has been claimed to be vacant and in possession of the son of the landlady by the tenant is being used as go-down by the said Varun Kumar after reconstruction of the said shop. On that ground, the inference drawn by the Prescribed Authority has been held to be erroneous by the appellate Court. In my considered view the conclusion drawn by the learned appellate court are fully based on proper appraisal of evidence and there is no case of misreading of evidence by the learned appellate court. The contention of the learned counsel for the petitioner therefore cannot be accepted on that score. Learned counsel for the petitioner in support of his contention that the application for release was filed with an oblique motive has placed reliance upon the case of Ajit Prasad Vs. IVth Addl. District Judge, Meerut and others [1979, ARC, Page 73] wherein in paragraph no. 8, the following observations have been made by the Allahabad High Court:- “8. Section 21(1)(a) of U.P. Act XIII of 1972 requires that a premises should be bona fide required by a landldord. The word “bona fide” is a latin of ablative, meaning ‘in good faith’. The need of a landlord, therefore, should not be dishonest, and an application should not be filed by a landlord with an oblique motive. It should further not be a device to evict a tenant. Similarly, the word “required” signifies that a mere desire on the part of landlord is not enough. The requirement of a landlord has to be objectively satisfied, being not a matter of subjective satisfaction. A Court has, therefore, to ascertain objectively whether a landlord requires a premises honestly and in good faith. See Mattulal v. Radhelal.” The learned appellate Court has also elaborately dealt with this Issue in its judgment and has rejected the contention of the tenant that the release application was moved by the landlady with 11 an oblique motive and just as a device to evict the tenant. On the basis of appraisal of evidence, the learned appellate Court at page no. 12 of the judgment has held that no such inference can be drawn that Varun Kumar had occupied the shop of his mother-the landlady, so that a release application could be moved against the tenant. The learned appellate Court has observed that the survey report was made on 30-8-2003 by the sales tax department and in the year stock worth Rs. 25000/- was found in the shop of Varun Kumar. This is a finding of fact recorded by the learned appellate Court and cannot be examined in exercise of writ jurisdiction. Learned counsel for the petitioner has lastly contended that the choice of the landlord is not unfettered otherwise the landlord can manipulate his requirement for the accommodation. In support of his argument, learned counsel for the tenant-petitioner has placed reliance upon paragraph no. 18 of the case of M.M.Quasim Vs. Manohar Lal Sharma and others [AIR, 1981 Supreme Court, Page 1113]. This case-law is not at all applicable to the facts of the case at hand. In the case before the Apex Court, there was vacant premises available to the landlord and a finding to that effect has come in the appellate Court judgment. In the case at hand, no such finding has been recorded by the learned appellate Court that some other premises are available to the landlady to run her business. The theory of vacant premises as set up by the tenant has been discarded by the learned appellate Court, as discussed above. So far as the finding on the point of comparative hardship is concerned, the learned appellate Court has given a categorical finding that the tenant-petitioner has not made any effort to search alternative accommodation to shift his business. The appellate Court has also found that in case the release application is refused, the landlady would suffer greater hardship that the tenant. From a bare perusal of the entire judgment and order running in as many as 20 pages, it is crystal clear that the 12 appellate Court has discussed the entire evidence elaborately including the contentions raised by the petitioner in this writ petition. In any view of the matter, it cannot be said that the findings arrived at by the learned appellate Court are not based on appraisal of evidence led by the parties or that the appellate Court has mis-read the evidence. For the reasons and discussion above, I am of the considered view that the petitioner has utterly failed to establish that the release application was filed by the landlady just to get rid of the tenant from the disputed shop or that the need of the landlady is not honest, real, genuine or bona fide or that the learned appellate Court has mis-read the evidence led by the parties. I do not find any ground to interfere with the conclusion arrived at by the learned appellate Court in writ jurisdiction. The learned appellate Court has not committed any manifest error of law or jurisdictional error in passing the impugned order. I do not find any perversity in the order impugned. The writ petition therefore deserves to be dismissed outright. The writ petition is dismissed. Costs easy. However, in order to do complete justice, the petitioner is granted three months’ time to vacate the disputed shop and to deliver its vacant and peaceful possession to