1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1319 of 2003 (M/S) 1. Smt. Leela Gupta (Since deceased) wife of late Sri Satya Prakash Agarwal. 2. Manu son of late Satya Prakash Agarwal Both the resident of Gupta Nursing Home Near Punjabai Dharamshala Jwalapur, District Haridwar. ……Petitioners. Versus 1. Additional District and Sessions Judge/Ist Fast Track Court, Haridwar. 2. Prescribed Authority/Civil Judge (Senior Division), Haridwar. 3. Shiv Prasad Sharma, son of late Sri Ram Prasadji Sharma, Chowk Bazar Jwalapur, District Haridwar. …..Respondents. Sri Narayan Singh Negi, Advocate, for the petitioners. Sri R.C. Arya, Brief Holder for the respondent nos. 1 & 2. Sri Rajendra Dobhal, Senior Advocate, assisted by Ms. Geeta Parihar, Advocate for the respondent no. 3. Date:- December 9, 2009 Hon’ble B.S. Verma J. By means of this writ petition petitioners have sought writ in the nature of certiorari for setting aside the Judgment and order dated 15.10.2003 passed by the Additional District and Sessions Judge/First F.T.C., Haridwar in Rent Control Appeal No. 17 of 2000, Shiv Prasad Sharma Vs. Dr. Smt. Leela Gupta and others (Annexure No. 4 to the writ petition). Brief facts giving rise to the writ petition are that the respondent no. 3 moved an application under Section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting 2 Rent and Eviction) Act, 1972 for bona fide need to release the shop in question in his favour. The shop in question was earlier under the tenancy of late Satya Prakash predecessor of the petitioners and after his death it came under the tenancy of petitioner no. 1 Smt. Leela Gupta. It is stated in the release application that in the life time of Satya Prakash the petitioner no. 1 Smt. Leela Gupta has constructed her own building near Punjabai Dharamshala Shyam Nagar Colony, Haridwar. She is living there and running a Nursing Home in the name and style of Gupta Nursing Home as such petitioner no.1 has no need of the shop in question and the same is usually closed. The respondent no. 3 is in need of the shop in question as his sons, who are unemployed want to start their cloth business. The petitioners have resisted the release application by filing written statement but, according to the respondent no. 3, the same does not contain the correct facts. The petitioners have averred in their written statement that the shop in question was taken on rent by Dr. S.P. Gupta, father of Satya Prakash Agarwal and after his death Som Prakash Gupta and Smt. Raj Kumari Gupta have become the joint tenants but the release application has been filed without making party to other joint tenants. It is also stated that the petitioner no. 1 and her father-in- law are doing medical practice since 1976 in the knowledge of the landlord-respondent no. 3, hence, she is also tenant of shop. According to the petitioners, the respondent no. 3 is the manager cum owner of five shops constructed at Jwalapur. Three shops out of five shops are still lying vacant in which he can settle his sons to carry on business. 3 Both the parties have led their evidences by filing affidavits before the prescribed authority. In support of his contention the applicant-respondent no. 3 has filed his own affidavit 3(c) and supplementary affidavit 66 (c), affidavit 40 (c) of Upendra Pradhan and affidavit 41 (c) of Abhichhit. In the reply of the same the petitioner no. 1 has filed her own affidavit 47 (c), affidavit 48(c) of Smt. Shashi Bala and affidavit 48 (c) of Smt. Mamta. Other documents have also been filed by the parties before the prescribed authority. It is pertinent to mention here that after perusal of the evidence the prescribed authority has held that the sons of the landlord are unemployed and they are in need for the shop. In front of property in question the respondent no. 3 is having a property in the name of temple Bhai Ji Maharaj in which on the road side there are five shops, and three shops out of these five shops are in possession of the respondent no. 3. In his affidavit before the prescribed authority, the respondent no. 3 has stated that the said property belongs to temple Shiv Ji Maharaj and he is managing that property as a manager and he is not the owner of the that property. The learned Prescribed Authority has rejected the release application, vide order dated 25.3.2000, on the ground that since the respondent no. 3 is managing the said property of temple and the three shops are lying vacant which are in his possession, his sons can do the business of cloths in those shops. Aggrieved by the order dated 25.3.2000, the respondent no. 3 preferred Rent Control Appeal No. 17 of 2000 before the District Judge which was subsequently transferred to the court of Additional District and Sessions Judge/First Fast Track Court, Haridwar. 4 After considering the bona fide need of the respondent no.3 and comparative hardship the learned Appellate Court came to the conclusion that the property of Shiv Maharaj Temple is being managed by the appellant as manager. He is not the owner of the property of the temple. The finding to this fact recorded by the prescribed authority is perverse that the need of the respondent no. 3 can be met out by giving shops to their sons in that premises, and accordingly allowed the appeal and release application, vide order dated 15.10.2003. Further aggrieved by the order of the appellate Court the petitioners have filed writ petition before this Court. Heard learned counsel for the parties and perused the material placed on record. In paragrah 10 of the counter affidavit filed on behalf of the respondent no. 3, it is stated that the property of khasara no. 1700 situated at Jwalapur is not the property of the answering respondent, it belongs to Shiv Ji Maharaj and the answering respondent no. 3 is only the manager of the property. It is also stated in paragraph 5 of the counter affidavit that Smt. Leela Gupta has already constructed a building near Panjabai Dharamshala Shyam Nagar Colony, Jwalapur, Haridwar and in the said building she is running a Nursing Home in the name and style Gupta Nursing Home and further in paragraph 6 of the counter affidavit it is stated that the petitioner has no need of the shop in dispute and it is usually closed. This fact is not disputed that the prescribed authority has given a categorical finding that the sons of the respondent no. 3 are unemployed and they are in bona fide 5 need of the shop in question. The release application has been rejected on the ground that the respondent is having another property of temple which is being managed by him. There are five shops by the road side out of which three shops are lying vacant and the sons of the respondent no. 3 can run their cloth business in those shops. The learned appellate Court has given a categorical finding that the ownership of the five shops is under Shiv Ji Maharaj Temple and the respondent no. 3 is not the owner of the those shops only the shops are being managed by him and that is not the property of respondent no.3. After considering comparative hardship and other factors as well as evidence on record it came to the conclusion that the shop in question is bona fidely required by the respondent no. 3 for settling his sons in business of cloth. Learned Appellate Court has also dealt with the fact that the petitioners did not deny that the petitioner no. 1 is running a Nursing Home in ground floor of his house and the assertion in this regard made in the counter affidavit has not been specifically denied in the rejoinder affidavit. 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 misreading 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 court within the bounds of their jurisdiction. When a 6 subordinate court has assumed a jurisdiction on 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, “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.” Relying on the case Ranjeet Singh Vs. Ravi Prakash, (2004) 3 SCC 682, the Apex Court in the case of Shamshad Ahmad Vs. Tilak Raj Bajaj reported in (2008) 9 SCC 1, in paragraph 38 has held as under:- “Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and 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 7 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.” In paragraph 36 of the above Judgment in the case of Shamshad Ahmad (supra) the Apex Court has held as under :- “ 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 could it have been interfered with, nor has it been set aside by the writ court.” In the case of Shamshad Ahmad Vs. Tilak Raj Bajaj (supra) also the prescribed authority had rejected the application for release of the shop and the appeal was allowed. It has been held by the Apex Court that the bona fide need and comparative hardships are the finding of fact. From a bare perusal of the entire material placed before this Court, it is obvious that there is finding of fact recorded by appellate court, based on proper appraisal of evidence, that the need of the respondent no. 3 Shiv Prasad Sharma is bona fide. In view of the above discussion made in foregoing paragraphs, I do not find any perversity or illegality in the impugned Judgment and order passed by the appellate 8 court. The writ petition is devoid of merit and the same is liable to be dismissed. The writ petition is dismissed. However, the petitioners are granted three months time to vacate the shop in question from today and to deliver its vacant and peaceful possession to the landlord-respondent no. 3. Interim order dated 31.12.2003 stands vacated. All the pending applications stand disposed of accordingly. (B.S. Verma, J.) 9.12.2009 RMY