IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2302 (M/S) of 2007 Ajay Pratap and others - Petitioners Versus Sanjay Shah and others - Respondents Mr. Sharad Sharma, Senior Advocate, assisted by Mr. Bhuwan Bhatt, Advocate for the petitioners. Mr. Dinesh Chauhan, Advocate for the respondents. [Hon’ble B.S. Verma, J. (Oral)] By means of this petition, the petitioners have sought a writ or certiorari quashing the impugned judgments dated 18-8-2004 and 5- 10-2007, passed by Prescribed Authority and District Judge Almora, annexed as Annexure Nos. 4 and 8 to the writ petition respectively, and the consequential eviction of the petitioners from the tenement shop in dispute. Briefly stated the facts of the case giving rise to this writ petition are that Harish Shah ( since deceased) father of respondents filed application U/S 21 (1)(a) of U.P. Act No.13 of 1972 for eviction of petitioners from the disputed shop, consisting show case, two rooms, and five rooms of go down. The premises is a part of the building Old No. 356 and new No. 89(1). There was a family partition and applicant got the disputed property in partition. The property was in the tenancy of Krishna Pratap @ Rs. 150/- per month. He died 1 ½ years ago. He was carrying the business of shoes in the name and style of Pratap Traders. The applicant was serving in the Electricity Board Almora. He retired from service in the year 1996. Sanjay Sah son of deceased applicant aged about 20 years has got the education upto M.A. There are two daughters of the deceased who are unemployed. According to applicant on his retirement he was getting pension 2500/- per month and he has income of Rs. 150/- per month from the rent of shop. The assertion of the applicant was that he was not able to feed his family members by the pension and income of rent therefore, he wanted to establish his son and daughters in the premises in dispute. Hence he filed the release application. The opposite parties, who are sons and daughters of late Krishna Pratap, filed their objections admitting the tenancy on the 2 disputed premises @ Rs.150/- per month as rent. They also admitted that the original landlord had retired in 1996. It has been stated that the shop in question was taken on rent in the year 1955. At that time one Sri Ude Lal Sah was the owner of property. He died 20 years ago. After his death, Jawahar Lal Sah, Banke Lal Sah, Jagdish Lal Sah and Harish Lal Sah became the landlord of property in dispute. Krishna Pratap, father of petitioners died in 1997 and before his death, petitioners 3 to 5 got married and they started to reside in their Sasural and they are not co-tenants of the disputed property. It was further alleged in the objections that the applicant has no bonafide need of the property. He has received a handsome amount of about four lacs rupees at the time of retirement. It was also alleged that they tried to search the alternative accommodation at Almora, but they did not get success. They further alleged that the disputed premises are situated in a part of a big building. The building consists of so many shops and residential portion. A part consisting of two shops is in the possession of the family members of the applicant. The applicant has a good income. On the other side, the disputed premises are the only source of livelihood of tenants family consisting of nine persons. The learned Prescribed Authority having heard counsel for parties and considering the entire material available on record, allowed the application of landlord filed U/S 21 (1)(a) of U.P. Act No. 13 of 1972 and order that the vacant possession of the shop in dispute be handed over to landlord within six months. Feeling aggrieved by the order of Prescribed Authority, the tenants filed appeal before District Judge, Almora, who vide impugned judgment and order dated 5-10-2007, dismissed the appeal and directed that the landlord shall pay an amount of Rs. 3,600/- (equal to two years rent) as compensation to the appellants-tenants. Now feeling aggrieved by the judgment and orders passed by courts below, the petitioners have filed this writ petition reiterating the facts mentioned by them in their objections filed before the Prescribed Authority. It is also mentioned in the petition that the petitioners have raised this plea before the Prescribed Authority that in the tenement in dispute they have been conducting their business for last 48 years and have developed a goodwill and in an event of release 3 they would suffer irreparable loss. It is further reiterated that the landlords have no bonafide need of shop in question and the courts below have given wrong finding on this point. The respondents/landlords filed counter affidavit and alleged that at present the petitioners are carrying the business of whole sale of footwear and are using the premises for the purpose of go-down. The premises in question is bonafidely needed to establish the respondents 1,3 and 4. I have heard learned counsel for parties and perused the record. At the outset it is to be noted that the scope of writ jurisdiction is very limited and in view of Surya Dev Rai Vs. Ram Chander Rai and others [(2003) 6 Supreme Court Cases, 675 and Ranjeet Singh Vs. Ravi Prakash” [(2004) 3 S.C.C. page 682], 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 Courts below have recorded a concurrent finding of fact on the point of bonafide need and comparative hardship. The specific case of the landlords is that the premises in question has come in the share of father of respondents in family partition and they are exclusive owner of the premises in question. The petitioners have also admitted their tenancy. The application has been moved by late Harish Lal Sah for establishing his son Sanjay Lal Sah and daughters Deepa Sah and Alka Sah in business on the disputed premises. Affidavits have been filed by Sanjay Lal Sah and his sisters Km. Alka and Deepa about their education and unemployment on record. The tenants have contended that Smt. Champa Sah mother of other respondents is getting family pension of Rs. 1950/- per month besides the rent. The learned appellate court has held the amount is not sufficient to feed up the respondents. The landlord has a right to expand his income. A person is best judge of his requirement for residential or business purpose and he has got complete freedom to expand his income. Learned counsel for the petitioners has submitted that the landlord Harish Sah has filed the release application and he has died during the pendency of case hence the need of Harish Sah has come to an end. He also submitted that subsequent event-need of 4 family members of deceased Harish Sah cannot be taken into consideration. I do not find any substance in the above submission. In Writ Petition No. 4128 of 2001(M/S) P.R. Narang Vs. IIIrd Addl. District Judge, Dehradun and others, the learned Single Judge of this Court, after interpreting various judgments of Apex Court on the point of subsequent events, has observed that the subsequent events cannot overshadow the genuineness of the need and that the subsequent events to overshadow such genuine need must be of such nature and of such a dimension that the need of the landlord is eclipsed by subsequent events. In that case, the court was of the opinion that the need existed and the cause of action still survived and was not eclipsed by the subsequent events that had been brought on record and the writ petition was dismissed accordingly. In the instant case at the time of filing release application the original landlord has sought the release of the accommodation for the bonafide need of his children. Specific mention was there that the applicant was not able to feed his family members by the pension and income of rent, therefore, he wanted to establish his son and daughters in the premises in dispute and now on the death of original landlord the need of his family members does not extinct. The need of landlord is to be seen on the day of filing the release application. In the case of Gaya Prasad Vs. Pradeep Srivastava, the Hon’ble Apex Court has observed as under- “we have no doubt that the crucial date for deciding as to the bona fide of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps having utility for him to reach the said crucial date of consideration. If every subsequent development during the post-petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. In our opinion, the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events. 5 The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many events are bound to take place which might happen in relation to the parties as well as the subject- matter of the list. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatters the confidence of the litigant, despite the impairment already caused. Considering all the aforesaid decisions, we are of the definite view that the subsequent events pleaded and highlighted by the appellant are too insufficient to overshadow the bona fide need concurrently found by the fact finding courts.” On the subject of subsequent event in the case of Raj Kumar Vs. IIIrd Addl. District Judge, Meerut and other, the Hon’ble Apex Court in para No.4 has observed as below:- “4. So far as the question that the landlord respondent has purchased some property during the pendency of the writ petition is concerned, the same is not relevant as the release order which was passed by two courts below had attained finality. The Apex Court in the case of Kamleshwar Prasad v. Padumna Agrawal, 1997 (1) ARC 627 has held that if subsequent event takes place during the pendency of writ petition, that will not affect finality attached to a release order passed by the court below.” Learned counsel for the petitioners also contended that in the tenement in dispute the petitioners have been conducting their business for last 48 years and have developed a goodwill and in the event of release they would suffer irreparable loss. The above submission of learned counsel for the petitioners has no substance. In the case of Shamshad Ahmad and others Vs. Tilak Raj Bajaj (deceased) through L.R.S. and others, reported in (2008) 9 SCC –1. In paragraph 36 it has been held as under :- “36. A finding as to bona fide requirement for doing readymade garments business by Matloob Ahmad has been expressly recorded by the appellate authority. The said finding was a finding of fact. Neither court it have been interfered with, 6 nor has it been set aside by the writ court. In view of the above position, the High Court was wrong in allowing the writ petition.” In that case, the Apex Court in paragraph no.47 has further observed 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, husband 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 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 appellants argued that marriage of Deepa Sah has been solemnized and she has left her parental house, hence her need cannot been seen. It is also argued that children of original landlord late Harish Lal are now employed and their need of the premises has come to an end. I do not find any force in above submission also. In the case of Jamila Khatoon (Smt.) and others, reported in [2004 (1) ARC 282]. release application for the shop was filed by Anil Kumar 3rd son of landlord who had passed chartered accountancy examination and wanted to start his own profession of chartered accountancy. Meanwhile, Anil Kumar had joined the service in Hindustan Times, group for the time being, he could not sit idle awaiting release of the shop. The Hon’ble Apex court has held that even if he had joined the partnership firm of chartered accountancy at Kanpur for some time his need of starting his own profession did not come to an end. 7 In the instant case no evidence has been brought on record about the permanent employment of Sanjay Lal Sah and Km. Alka from the side of the petitioners. For the sake of argument if it is taken to be true that they are earning their livelihood by doing some work, even then their bonafide need of disputed premises does not extinct. From the side of petitioners/tenants it has not been established that the landlords/respondents have sufficient means to feed the family members. Therefore, the finding recorded by courts below in favour of landlords on the point of bonafide need and comparative hardship, is a finding of fact and the same cannot be disturbed by this court. I find myself in full agreement with the concurrent finding of fact recorded by both the courts below on the point of bonafide need and comparative hardship in favour of the landlord. I do not find any manifest error of law, perversity or jurisdiction error in the impugned judgments and orders passed by the courts below. The writ petition lacks merit and is liable to be dismissed. The writ petition is dismissed. However, looking to the fact that the tenants have to search for another premises to shift their business and it will take some time, hence one years time is given to the petitioners/tenants to vacate the premises in question, provided that they give an undertaking to this effect before the Prescribed Authority within a period of two weeks from today, and continue to pay the rent of the premises regularly. Dated: 20-7-2011 (B.S. Verma, J.) ISB