Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1089(M/S) of 2003 Rakesh Kumar S/o Late Sri Chetan Dass - Petitioner Versus Additional District Judge Roorkee, and others - Respondents Mr. A.K. Sharma, Advocate for the petitioner Mr. Sharad Sharma, Senior Advocate, assisted by Mr. Jagdish Bisht, Advocate for respondents. Date: 9.6.2011 (Hon’ble B.S. Verma, J.) By means of this petition the petitioner has sought a writ in the nature of certiorari to quash the order dated 19-7-2003 and 14-8-2001 passed by respondent Nos. 1 and 2 respectively, and to allow the release application of the petitioner. Brief facts giving rise to the present writ petition are that the disputed property was purchased by Chetan Dass father of petitioner Rakesh Kumar and respondents 7 to 9, from Pramod Kumar and Smt. Meenakshi Devi on 29-8-1976. At that time respondent No.4 Ascharj Lal was tenant on behalf of one Pramod etc and they were running business in the name and style of M/s Jeevan Dass Ascharj Lal Anajmandi. Chetan Dass had purchased the property in question through sale deed hence after his purchase respondents 3 and 4, M/s Jeevan Dass Ascharj Lal Anajmandi and Ascharj Lal became tenants of Chetan Dass. After death of Chetan Dass, the rent of the property was paid to the petitioner. The death of Chetan Dass had caused in 1989 and after his death the owner of property in suit became the petitioner and respondents 5 to 9 and Smt. Ramkali widow of Chetan Dass. Thereafter on 3-3-1997 the property in suit was partitioned among the legal representatives of late Chetan Dass by oral partition and the deed was executed on 30-5-1997. In the partition the disputed property as well as the property on first floor came in the share of petitioner and he became the owner of said property. Name of the petitioner was registered in Nagar Palika records in 1997. 2 The petitioner filed application U/S 21(1)(a) of U.P. Act No. 13 of 1972 in respect of disputed property on the ground that during the life time of his father he used to do work with his father and also used to do contractor work separately. He did contractor work during the period 1972 to 1982 and from the income of contractor he purchased a house recorded as No.12, situated in Mohalla Rajputana West Roorkee from Pramod Kumar etc in the name of his wife Smt. Geeta Rani. In the newly purchase house there was one tenant. He had purchased the house for his residential purposes. He got released the portion of the house which was in the tenancy of other persons. In the year 1982 he left the contractor work as he suffered a heavy loss and started the work of Payal Medicos in west Ambar Talab and adjacent to this shop he took a shop on rent and opened Maha Lakshmi Finance Company. Thereafter due to ill health he had to close the above works. He had to perform marriage of his daughter. His financial condition is very weak. On the other hand the tenant has other business in Roorkee market. Therefore, he has bonafide need of the premises in question. The respondents 3 and 4 resisted the release application by filing objection and alleged that they were tenant of late Chetan Dass but denied the exclusive ownership of the petitioner on the premises in suit. It is also alleged that the petitioner has purchased house No. 12 in the name of his wife in Rajputana Mohalla behind the disputed premises whose ground floor has always been used for business purposes. In the above house on ground floor Roop Chand, Pramod Kumar were tenants, who were got evicted by the petitioner and on that vacant premises the petitioner started business Neeraj Agency. The property in dispute is part of joint property and the partition deed dated 30-5-1997 is a forged document and has been got executed only with a view to show the exclusive ownership of the petitioner. The respondent’s further case is that they are doing business on the disputed premises since 65 years and they have achieved goodwill of the disputed shop. It was also alleged that the respondent No.2 has four sons out of whom one son is running business of Auto-Parts in Nagar Palika Roorkee and he hardly earn livelihood of his children. Another son Dinesh also runs a shop in Anaj Mandi. These above two 3 sons are living separately with their family. In the disputed shop Mukesh and Bhushan use to sit, whose family consists large members and they have bonafide need of the shop in question. Parties led evidence in support of their case. Thereafter the Prescribed Authority/ Civil Judge (Junior Division) Roorkee vide judgment and order dated 14-8-2001 dismissed the release application of the petitioner. The appeal preferred by the petitioner was also dismissed by Additional District Judge, Roorkee vide impugned judgment and order dated 29-07-2003. Now feeling aggrieved by the above judgment and orders the petitioner has preferred this petition on the grounds that the courts below have passed the orders arbitrarily. They did not consider the bonafide need of the petitioner. The finding of the courts below that Neeraj Agency is running on the ground floor of the House No.12 Rajputana West, Roorkee, by the petitioner is misreading of evidence. No such Agency is there on the ground floor of the House No.12. The petitioner has bonafide need of the premises in question but both the courts have ignored the evidence on record. The counter affidavit has been filed by the respondent No.3 and reiterated the facts mentioned in the objection filed before the Prescribed Authority. He further alleged that the ground floor of House No.12 purchased by the petitioner is utilized for commercial purposes and said vacant accommodation is available with the landlord. The tenant/respondent No.3 reiterated his bonafide need of the premises in question. I have heard learned counsel for the parties and perused the record. At the out-set learned counsel for the respondent no.3 has submitted 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 revaluate 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 support of his contention he has cited before me the case of “Ranjeet Singh Vs. Ravi Prakash” [(2004) 3 S.C.C. page 682]. 4 The Apex Court in the above cited case has observed inter alia in paragraph 4 “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. The learned counsel for the petitioner has submitted that the petitioner had moved release application on the ground of his bonafide need as he has no other premises except the disputed one to start his own business. On the other hand the respondent/tenant has no bonafide need of the shop in question as he is about 80 years of age and his all the sons are doing their own business. The courts below has committed manifest error in not considering the above circumstances of the case. On the other hand learned counsel for the respondent/tenant has submitted that the petitioner/landlord has no bonafide need of the suit premises as he has vacant premises on the ground floor of the House No.12 purchased in the name of his wife. The two sons of respondent/tenant are living separately and doing business for their own family. They have no concern with the tenant/respondent and his other family members and the tenant/respondent has no other means to earn his livelihood. Hence he has bonafide need of the premises and the courts below have rightly rejected the prayer of the petitioner/landlord. I have perused the impugned judgments. Both the courts below have recorded a concurrent finding of fact on the point of bonafide need of the petitioner and also on the point of comparative hardship. This fact is not denied to the petitioner that he has purchased a house 5 No.12 on the name of his wife. The courts below have recorded a categorical finding after considering the evidence of parties that on the ground floor of the above house Neeraj Agency was being run and the said ground floor was being used for commercial purposes, and the said premises is available with the landlord. I do not find any manifest error in the above finding of fact recorded by the courts below. Learned counsel for the petitioner further submitted that ground floor of House No.12 owned by wife of petitioner is a residential house and the petitioner has no other premises to be utilized to start doing business, and the landlord cannot be compelled to use said residential house for commercial purposes, therefore he had bonafide need for commercial accommodation beyond any doubt. In support of his contention he has cited before me the case of Saraswati Devi (Smt.) vs. IVth ADJ, Gorakhpur and others, reported in [2006 (4) ARC 852]. I have gone through the above cited ruling and I am of the considered view that the facts of above cited case do no apply to the facts of the case in hand. In the above cited case the tenant had admitted that he had two other shops in his occupation from where two of his sons were carrying on their business. Tenant also did not show that what efforts he had made to search alternative accommodation, hence balance of hardship had to be decided against him by virtue of authority of the Supreme Court in B.C. Bhutada v. G.R. Mundada, 2005 (2) ARC 899: 2006 (63) ALR (SC). However, in the case in hand the specific case of the tenant/respondent is that his two sons are doing business separately and they are maintaining their own families and he has responsibility of other two sons and their family members by doing business on premises in question. These two sons of the respondent use to sit in the demised premises and run the shop. In the above cited case in the supplementary counter-affidavit it has been stated that landlords have got a big house which is situated on the main road and is adjacent to a market and petitioner Dinesh Kumar is running a general merchandise and confectionery shop at the ground floor of the house. No landlord can be compelled to use residential house for commercial. If due to non-availability of a shop, a landlord starts doing business from a room of his residential house, 6 then this proves bona fide need for commercial accommodation beyond any doubt. However, in the instant case the landlord has not denied this fact by cogent and reliable evidence that Neeraj Agency was being run on the ground floor of House No.12 and this floor of the house was being used for commercial purposes in the past also. Learned counsel for the petitioner also contended that the tenant did not make any efforts to search alternative accommodation after filing the release application hence comparative hardship should be presumed against the tenant. In support of his contention he has cited before me the case of Dina Nath Chaturvedi Vs. IVth Additional District Judge, Aligarh and others, reported in [2006(2) ARC 162]. In the above cited case the Allahabad High Court has taken a view in respect of comparative hardship that tenant did not make any efforts to search alternative accommodation after filing of the release application and this fact was sufficient to decide question of hardship against the tenant. In the case in hand the learned Prescribed Authority as well as the Appellate Court have recorded concurrent finding of fact on the point of relationship of landlord and tenant between the petitioner and the respondent No.3. It has been held that the tenant has been paying rent regularly and relationship of landlord and tenant is among them. It has also been concluded that Neeraj Agency was being run on the ground floor of House No.12 and the petitioner has not pleaded this fact in the release application. Thus he has not come with clean hands. On the other hand the case of the tenant/respondent No.3 is that he is running his business in the premises in question since 65 years and he has achieved goodwill of the shop and by vacating the said premises he would not achieve such a goodwill in any other premises and he would be put to great hardship. In the above premise, I am of the view that the principle of law laid down by the Allahabad High Court in the above cited case of Dina Nath Chaturvedi Vs. IVth Additional District Judge, Aligarh and others, reported in [2006(2) ARC 162], has no application to the facts of the case in hand. 7 Therefore, I am in full agreement with the finding of fact arrived by the learned Prescribed Authority as well as by the Appellate Court, whereby it has been concluded that the landlord has another accommodation available to start his business, and on the other hand the tenant/respondent No.3 would suffer greater hardship if the premises in question is vacated from him, in comparison to the landlord. In view of discussions made in the foregoing paragraphs, I do not find any perversity or manifest error of law or jurisdictional error in the impugned orders. There is no scope of interference in the conclusions arrived at by the courts below, by this court in the writ jurisdiction. The writ petition lacks merit and is liable to be dismissed. The writ petition is dismissed. The judgments and orders passed by the courts below are upheld. No order as to cost. Dated: 9.6.2011 (B.S. Verma, J.) RCP