Reserved Order IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No.2072 of 2009 1. Shri Madho Lal Jain, S/O Shri Chaujthmal Jain, Cloth Shop, Badrinath Marg, Kotdwar, District Pauri Garhwal. 2. Shri Ratan Lal Jain S/O Shri Chauthmal Jain, R/O First Floor, Badrinath Marg, Kotdwar, District Pauri Garhwal. … Petitioners. Versus Shri Dharmendra Kumar S/O Shri Munna Lal, R/O House at Ganga Dutt Joshi Marg, Kotdwar, District Pauri Garhwal (Uttarkakhand). … Respondent. Sri V.K.Kohli, Senior Advocate, with Sri T.C.Pande, Advocate, learned counsel for the petitioners. Sri B.P.Nautiyal, Advocate, learned counsel for the respondent. Date December 23, 2009. Hon’ble B.S.Verma, J. Learned counsel for both the parties have agreed that this writ petition may be disposed of finally at the admission stage without inviting counter affidavit from the respondents. 2. By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the impugned judgment and order dated 28th January 2008 passed by the Prescribed Authority/Civil Judge (Junior Division) Kotdwar in P.A. Case No. 3 of 2006, Dharmendra Kumar Vs. Shri Madho Lal Jain and another (Annexure No.1 to the petition) and the judgment and order dated 26-11-2009 passed by the District Judge Pauri Garhwal in Rent Control Appeal No. 1 of 2008, Madho Lal Jain and another Vs. Dharmendra Kumar (Annexure-11 to the petition). By the order dated 28-1-2008 the Prescribed Authority has allowed the release application moved by the landlord-respondent under Section 2 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act) and directed the tenants- petitioners to vacate the disputed accommodation as well as commercial shop within a period of four months and to deliver its vacant possession to the landlord. By the order dated 26-11-2009, the appellate court has dismissed the appeal of the petitioners and upheld the judgment passed by the Prescribed Authority but has directed the landlord to pay two years’ rent as compensation to the petitioners-tenants. 3. Relevant facts giving rise to the present writ petition in brief are that the landlord-respondent moved an application for release of the disputed accommodation/shop under Section 21(1)(a) of the Act alleging therein that he is a landlord of the building situated at Badrinath Road, Kotdwar. On the ground floor, there is shop and Verandah opening towards the road and on the first floor thereof, there is one room, Verandah, kitchen and bath-room and on the second floor there is a latrine. The petitioners are tenants of the said building on monthly rent @ Rs. 225/-. The petitioners are running a cloth merchant shop on the ground floor while the rest portion is being used for residential purposes by them. The landlord has three married sons- Shailendra aged about 44 years, Satendra aged about 42 years and Vivek aged about 38 years and all the three sons are having children. Besides, the applicant- landlord has three daughters and all of them are married. Out of the three sons, Satendra Kumar is in government service, while the other two sons are educated. It is also alleged that Shailendra Kumar is unemployed, while the other son Vivek was unemployed for many years. According to the landlord, he himself has also retired from service and after retirement, he requires the disputed shop for his own business as well as for the business of his two sons. It is also alleged that earlier an application under Section 21(1)(a) of the Act was moved bearing Rent Case No. 24 of 1991, which was dismissed and an appeal was preferred, which too was dismissed. The landlord preferred a writ petition before the 3 Allahabad High Court which was registered as Writ Petition No. 39072 of 1998, which was also dismissed on 20-11-1998 but liberty was given to the landlord to move release application afresh. As per observations made by the Allahabad High Court, the landlord filed release application (Rent Case No. 19 of 1998) against which preliminary objections were filed by the petitioners on the ground that the application for release was not maintainable within a period of one year of the decision of the writ petition. However, the respondent-landlord has withdrawn the release application with permission of the court on 9-8-2002 with liberty to file a fresh application. 4. According to the landlord, his family consists of 12 members. The family has increased since the year 1991. It is also alleged that the son of the landlord Vivek is running a medicine shop on rent at Devi Road near Gauniyal Market, but the same is not beneficial to him. The landlord wants to run his business along with his two sons Shailendra and Vivek in the disputed shop. Hence the application for release of the disputed shop and the disputed accommodation was moved by the landlord to run his own business and to engage his unemployed sons in the business as well as to accommodate the family members on the first floor of the disputed building. Accordingly, the application for release was filed on the ground of bona fide requirement both for residential as well as commercial purposes. 5. The petitioners-tenants contested the application by filing their written statement asserting that the release application has been moved on imaginary facts. It was pleaded that the landlord wants to realize high rent from the petitioners. The requirement of the landlord is not bona fide for the accommodation as well as for disputed shop. Only 20.63% portion of the entire building is in occupation of the petitioner. The petitioners are in possession of the same for the last about 45 years. The upper storey of the building is in occupation of petitioner no. 2 for 4 residential purpose, while the petitioner no. 1 is running his retail cloth business in the disputed shop on the ground floor. Disputed shop is a famous shop in the vicinity of Kotdwar. The petitioner no. 1 is doing business therein along with his two adult sons. There is no alternative shop available for petitioner no. 1 to shift his business. It has also been pleaded that the landlord does not require the disputed accommodation and shop either for himself or his sons. Both of his sons are doing business. Shailendra Kumar is doing his business in Tilak Bazar, Delhi. According to the petitioners, the landlord has concealed some material facts in the application, which are detailed in the written statement. The other son of the landlord Vivek Kumar is doing his business with his brother and he has been residing there with Shailendra Kumar. The alleged licence in favour of the landlord have been obtained for the purposes of the case and to create evidence. Both the sons of the landlord are permanently residing in Delhi and they are doing business there. According to the tenant-petitioners, they have long standing possession of the disputed building for the last about 45 years. There is no hardship in favour of the landlord. The disputed shop is the only source of earning of the petitioner no. 1. 6. In support of his application, the landlord filed in documentary evidence his own affidavit and affidavits of some other persons along with enclosures. The opposite parties also filed their affidavits and affidavits of some other persons as well as some documents annexed with the affidavits. 7. The learned Prescribed Authority after hearing both the parties and on perusal of the entire evidence led by them, has given a categorical finding that the requirement of the son of landlord Shailendra Kumar is bona fide. Learned Prescribed Authority also came to the conclusion that the need of landlord and his another son Vivek Kumar is bona fide for the residential as well for commercial purposes. However, it was observed that the requirement of Satendra is not bona fide. The learned Prescribed 5 Authority after elaborately discussing the evidence has held that the balance of comparative hardship regarding residential accommodation also tilted in favour of the applicant-landlord. 8. On the point of bona fide requirement for the disputed shop, the Prescribed Authority has held that the applicant-landlord has bona fide requirement of the shop in question to run his business. The Prescribed Authority has further held that the need of the two sons of the landlord, namely Shailendra Kumar and Vivek is bona fide. 9. On the point of comparative hardship, the Prescribed Authority found that the petitioners moved an application for allotment in the Nagar Palika with the condition that they be allotted a shop of the dimension of the disputed shop. It was observed that no sincere efforts were made by the tenants to seek alternative shop to run their business. The Prescribed Authority did not find favour with the tenants on the point of comparative hardship. Ultimately, by a detailed order dated 28-1-2008, the Prescribed Authority allowed application for release moved by the landlord under Section 21(1)(a) of the Act. 10. Aggrieved by the said order, the tenants preferred an appeal, which was registered as Rent Control Appeal No. 1 of 2008. The appellate court has also given its independent finding on the point of bona fide requirement and comparative hardship. The learned appellate court also did not find favour with the tenant- appellants and dismissed the appeal vide judgment and order dated26-11-2009 as mentioned earlier. However, the landlord was directed to pay amount of two years’ rent to the tenants. 11. I have heard learned counsel for the parties at length and perused the entire material placed before this Court. 6 12. At the outset it may be mentioned that the scope of writ jurisdiction under Articles 226 and 227 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. It has been observed by the Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai and others [(2003) 6 Supreme Court Cases, 675 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 not 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.” 13. Admittedly in the case at hand, the disputed shop consists of one big room only. Undisputedly there is no material on record to suggest that the disputed shop can be partitioned in two portions so as to adequately satisfy the requirement of the landlord. 7 It is also admitted that the litigation between the parties in respect of release of disputed shop is long standing. From a bare perusal of the record it comes out that the first round of litigation started since the year 1991. The applicant-landlord was unsuccessful before the Prescribed Authority as well as the appellate court. Then, the matter went before the Allahabad High Court in Writ Petition No. 39072 of 1998. It appears that the writ petition of the landlord- respondent was dismissed but liberty was given to the landlord to file release application under changed circumstances. Ultimately the present application for release under Section 21(1)(a) of the Act was filed by the respondent landlord in the year 2006. It is also not disputed that the landlord had retired from government service as far back as 1997. 14. In the case at hand, the Prescribed Authority as well as the appellate court has given independent finding on the point of bona fide requirement and comparative hardship. The findings recorded by the two courts below are based on appreciation of evidence. The bona fide requirement of the landlord to run business in the disputed shop stood fully proved by the concurrent finding of fact on the point of bona fide and genuine requirement. 15. Learned counsel appearing for the petitioners has firstly contended that the petitioners-tenants are running their business in the disputed shop for a long span of last about 45 years and the landlord is a retired person having no experience of business, therefore, considering the long standing tenancy of the petitioners in the disputed shop, the release application of the landlord could not have been allowed treating his requirement as bona fide. Learned counsel also contended that the hardship of the tenants would be greater than that of the landlord. The contention of the petitioners is not at all acceptable. It is well settled that experience in business is not a pre-condition under any statute. I am of the considered view that the bona fide requirement of the landlord-respondent cannot be ignored merely on the basis that the 8 tenancy of the petitioners is about 45 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.” 16. So far as the comparative hardship to the petitioners is concerned, there is concurrent finding of fact recorded by the two courts below that right from the beginning, petitioners have not made any sincere effort to search for alternate shop. The application for allotment made by them was also a conditional one. Both the courts below have rightly rejected the contention of the petitioners that they would suffer greater hardship. 17. Sri V.K.Kohli, learned Senior Advocate assisted by Sri T.C.Pande, Advocate, appearing for the petitioners has further argued that the findings recorded by the two courts below are perverse because neither of the two courts has considered the provision of Rule 16(1)(d) of the rules framed under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, 9 as to whether the landlord’s need could have been satisfied by releasing only a part of the premises. According to the learned counsel for the petitioners, the need for the disputed shop can be adequately satisfied of the landlord if the disputed shop is partitioned in two shops and one portion of the partitioned shop is released in favour of the landlord. Learned counsel has drawn the attention of this Court to the proposal made by the landlord during the pendency of the appeal before the District Judge Pauri Garhwal. In support of his contention, the learned counsel has placed reliance upon the Apex Court judgment in the case of Smt. Raj Rani Mehrotra V. II Additional District Judge and others [1980,Allahabad Rent Cases, Page 311] wherein the Apex Court has observed as under:- “We have heard counsel for the parties. On going through the judgments of the lower authorities also of the High Court we are satisfied that the issue arising under Rule 16(1)(d) of the rules framed under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, as to whether the landlord’s need could have been satisfied by releasing only a part of the premises has not been gone into or considered by any of them. When the plea under the said rule was pressed on behalf of the tenant in the High Court. The High Court rejected it on the sole ground that no such plea has been raised by the tenant in his written statement and as such it could not be considered. It is clear that under the relevant rule it is a duty of the court to take into account that aspect while considering the requirement of personal occupation of the landlord and therefore, this issue will have to be remanded to the High Court.” 18. In reply, the learned counsel for the respondent has submitted that there is neither any material on record to suggest that the requirement of the landlord could be adequately satisfied by release of a portion of the accommodation or the disputed shop nor any such evidence has been led before the two courts to that effect. 10 Moreover, the disputed shop indisputably comprises of one big room only. Learned counsel further contended that the a reasonable proposal was given during the pendency of appeal to end the litigation between the parties to vacate half portion of the disputed shop immediately and the rest half of the disputed shop in two years, but the tenant has demanded unreasonable time of ten years. 19. I have perused the Apex Court verdict in the case of Smt. Raj Rani Mehrotra (supra). The ratio of the judgment cannot be disputed. In the case at hand, it has not been contended on behalf of the petitioners that the need of the landlord-respondent can be adequately satisfied to run a business in half portion of the disputed shop. Moreover, even during the course of argument in the writ petition, a proposal was given from the side of the respondent to the tenant to vacate either one half portion of the disputed shop immediately and the remaining half portion within a period of 3 years or to vacate the entire shop in question within a period of 1,1/2 year, which was not acceded to by the petitioners. On the other hand, the petitioners proposed that they are ready to vacate half portion of the disputed shop within a period of three months and for the remaining half, a period of five years to vacate the same be given. However, None of the proposals given by the parties to each other was acceptable to them and the parties could not arrive at an amicable settlement in this writ petition. In the peculiar circumstances of the case, the case law cited by the learned counsel for the petitioners does not help them. Since there is no partition of the disputed shop, no order of partial release can be passed without consent of the parties. 20. The learned counsel for the petitioners have also contended that the two courts below have lost sight of the fact that one of the sons of the landlord, namely Vivek has been doing the business of medicines in Kotdwar, therefore, the application for release could not have been allowed. I am not convinced by the argument of the learned counsel for the petitioners on this score. 11 Mere fact that son is doing a business in a rented shop cannot be ground for rejecting the release application. In the case at hand, the application for release has been made by the landlord to start his own business and also to engage his unemployed sons in the business. In the case of Herk Singh Vs. IV Additional District Judge, Meerut and another [1999 (1) A.R.C., Page 365], the Allahabad High Court has held that the landlord has got a right to establish business in his own premises and the release application cannot be rejected because son is doing a business in a rented shop. In the case of Kelawati (Smt.) Vs. Special Judge (E.C.Act), Moradabad and others [2006 (1) ARC 78], the Allahabad High Court has held that every adult member of the landlady’s family is entitled to do separate business and such need can never be said to be not bona fide. 21. Learned counsel for the petitioners further argued that the need of landlord respondent could not be said to be bona fide to run his business, as he is admittedly an old and retired person. This argument is also not acceptable. It has not been shown from the side of the petitioners that the landlord is in any way disabled. The Allahabad High Court in the case of Jai Raj Agarwal Vs. Bhola Nath Kapoor and others [2005(3) ARC 417] has held that even at the age of 78 years one can supervise the business unless he has become disabled. Disability to carry on or supervise the business in the absence of any evidence can be presumed at the age of 85/87 years but not at the age of 76 years. Moreover, in the Case of Vinod Kumar Jain Vs. Jagdish Sahu [2007(2) ARC, Page 780], the Allahabad High Court has held that “even a retired person has right to live with dignity and his right to live with dignity is enshrined in Article 21 of the Constitution.” 22. I have perused the judgment and order passed by the twos courts below. The Prescribed Authority as well as the appellate court has recorded its independent findings in detail on the point of bona fide requirement and comparative hardship. The 12 entire controversy has been fully discussed by the Prescribed Authority as well as the appellate court, which included almost all the contentions raised in this writ petition. The findings recorded by the two courts below are fully based on the evidence available on record. The findings being finding of fact cannot be examined as a court of appeal in exercise of writ jurisdiction. 23. While parting with the order, it finds place to mention here that in the writ petition ground (j) has been taken on the point of principle of res judicata, but the learned counsel for the petitioners have not seriously pressed this ground during the course of arguments. Moreover, I have gone through the judgment and order passed by the learned appellate court. In the appeal, this contention has been elaborately dealt with by the learned District Judge in paragraph no. 28 of the judgment and the contention of the petitioners that the present release application was barred by the principle of res judicata has been rejected. To my mind, the District Judge has given correct finding that the application for release is not barred by the principle of res judicata. 24. The learned counsel for the petitioners has lastly urged that the petitioner may be given two years’ time to vacate the disputed shop. Considering the fact that initially the release application was moved by the