HIGH COURT OF UTTARAKHAND AT NAINITAL (1) Writ Petition No. 144 of 2010 (M/S) Tota Ram Panthari. ……..Petitioner Versus Ratnambar Dutt Joshi And others. …….Respondents AND (2) Writ Petition No. 145 of 2010 (M/S) Mohd. Yameen. ……..Petitioner Versus Ratnambar Dutt Joshi And others. …….Respondents AND (3) Writ Petition No. 147 of 2010 (M/S) Suman Naithani. ……..Petitioner Versus Ratnambar Dutt Joshi And others. …….Respondents AND (4) Writ Petition No. 148 of 2010 (M/S) Baba Nihal Singh. ……..Petitioner Versus Ratnambar Dutt Joshi And others. …….Respondents Mr. Sudhir Kumar, Advocate for the petitioners, Mr. B.P. Nautiyal, Advocate for respondents. Dated: September 3, 2010 Hon’ble V.K. Bist, J. These petitions have been filed by the petitioners challenging the judgment and order dated 24.04.2007 passed by Prescribed Authority, Kotdwar, District-Pauri Garhwal in Rent Case No. 11 of 2005 Ratnamber Dutt Joshi and others vs. Abdul Raseed (Deceased) and others and in connected cases and judgment and order dated 08.01.2010 passed by the District Judge, Pauri in Misc. Rent Appeal No. 16 of 2007 and in the connected appeals. 2 2. Since in all these writ petitions, common question of law is involved to be decided by this Court therefore, all these petitions have been consolidated and are being disposed of by a common judgment. Writ petition no. 144 of 2010 (M/S) shall be the leading case. 3. Brief facts of the case, which emerge out from the record of writ petition no. 144 of 2010 (M/S), are that petitioner and one Digambar Prasad Kainthola were partners in the firm known as M/s Kainthola Medicos, since its inception in the year 1984. The firm is the tenant in the shop situated at Badrinath Marg, Kotdwar, District Pauri Garhwal since 1984. It is stated that originally predecessor of respondents, namely, Pitambar Dutt Joshi was the landlord of the shop in dispute and after his death, his widow Smt. Kalpeshwari Devi and respondents became joint owner-landlords of the shop in dispute. As Smt. Kalpeshwari Devi also died, now the respondents have become joint owners of the shop in dispute. At the time of beginning of tenancy, Smt. Kalpeshwari Devi was the owner of the shop in dispute. As the partnership has been dissolved in the year 2007, the tenancy of the shop has fallen to the share of the petitioner and since then the petitioner is doing his business of medical. It is averred in the petition that the shop in dispute is a part of a big building, having eight shops on the ground floor, to tenement on the first floor and one tenement on second floor. All the shops on the ground floor were let out to different tenants and two tenements on the floors above the shops were also let out. It is further stated that lateron, one shop fell vacant and remained vacant since long and one tenement in the tenancy of Ramesh Dhyani, Advocate on the first floor was in occupation of 3 respondent nos. 1 to 3 at the time of filing release application. Only one room on the first floor was in the tenancy of Arun Parmar and rest of the first floor as well as second floor was in occupation of respondent nos. 1 to 3. As the respondent no.3 started causing damage to the shop in dispute, the petitioner instituted a Suit No. 32 of 1996 for injunction, restraining respondent no.3 from causing any damage to the shop in question. This suit was decreed on 20.12.1996 by the Court of Civil Judge (Jr. Div.), Kotdwar. 4. It is stated in the petition that respondent nos. 1 to 3-landlords filed application for release of the shop in dispute under Clause (a) & (b) of sub-section (1) of Section 21 of the U.P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) before the Prescribed Authority, Kotdwar against the petitioner, alleging that the shop in dispute is in dilapidated condition and it requires reconstruction and the shop in dispute is also required for their personal occupation. The application was registered as Rent Case No. 16 of 2005 Ratnamber Dutt Joshi and others vs. Digambar Prasad Kainthola and others. 5. The landlords/respondent nos. 1 to 3 also filed release applications against other tenants (Rent Case No. 12 of 2005 Ratnamber Dutt Joshi and others vs. Suman Kant and others, Case No. 13 of 2005 Ratnamber Dutt Joshi and others vs. Jagdish Prasad and others, Case No. 14 of 2005 Ratnamber Dutt Joshi and others vs. Mohd. Yameen and others, Case No. 15 of 2005 Ratnamber Dutt Joshi and others vs. Baba Nihal Singh and Case No. 17 of 2005 Ratnamber Dutt Joshi and others vs. Balwant 4 Singh and others) also under Clauses (a) and (b) of sub- section (1) of Section 21 of the Act before the Prescribed Authority, Kotdwar with the identical facts and allegations. All the cases were consolidated and were tried and decided together by the Prescribed Authority. 6. The applications were contested and written statements were filed alleging that the respondent nos. 1 to 3 have no need of the shops in dispute and the shops in dispute are not in dilapidated condition. In order to prove their version, the landlords filed affidavits of Ratnamber Joshi, Satish Chandra, Praveen Joshi, Smt. Poornima Joshi, Sandeep Naithani, Jyotsana Dhyani, Anil Kumar, rejoinder affidavit of Ratnamber Joshi and in documentary evidence they filed tax assessment register, copies of applications dated 07.06.1990 and 07.07.1990 which were moved by Praveen Joshi to S.D.M., Kotdwar, report of Station House Officer, Kotdwar dated 28.07.1990, notice u/s 263 of Municipal Act issued by Municipal Board, notices dated 11.12.1991 and 27.09.1997 given to tenants and receipt, notice dated 16.07.1999 issued by Municipal Board u/s 263 of Municipal Act, notice dated 20.09.2004 given to tenants, receipt of registry, inspection report of Engineer Chamoli Associate , photographs, map and estimate prepared by Chamoli Associate. In reply, the tenants filed affidavits of Mohd. Aabid, Suman Kant, Jagdish Prasad, Mohd. Yameen, Baba Nihal Singh, Digamber Prasad, Balwant Singh Gusain, Rajeev Kumar Verma, Harendra Singh Chauhan, Virendra Dutt Tewari, Shashank Shekhar Sharma and Smt. Jyotsna Dhyani. 5 7. After the evidence was concluded, the Prescribed Authority vide her common judgment and order dated 24.04.2007 allowed the applications filed under Section 21 (1) of the Act and released the shops in question in favour of the landlords/respondent nos. 1 to 3. The petitioners were directed to vacate the shops in question within two months and further to hand over possession thereof to the landlords. Being aggrieved by the judgment dated 24.04.2007 the tenants/petitioners preferred appeals before the District Judge, Pauri Garhwal, which were registered as Misc. Civil (Rent) Appeal No(s). 16 of 2007, 18 of 2007, 19 of 2007, 20 of 2007 and 21 of 2007. The landlords/respondent nos. 1 to 3 also filed cross objections against the part of the judgment whereby their application under Clause (b) of sub-section (1) of Section 21 of the Act was rejected. The learned District Judge also did not find favour of the tenants and dismissed the appeals preferred by them but allowed the cross objections of the landlords/respondent nos. 1 to 3. Writ Petition No. 144 of 2010 (M/S) has been filed against the judgment and order dated 24.04.2007 passed by Prescribed Authority, Kotdwar in Rent Case No. 16 of 2005 and judgment and order dated 08.01.2010 passed by District Judge, Pauri in Rent Appeal no. 21 of 2007. Writ Petition No. 145 of 2010 (M/S) has been filed against the judgment and order dated 24.04.2007 passed by Prescribed Authority, Kotdwar in Rent Case No. 14 of 2005 and judgment and order dated 08.01.2010 passed by District Judge, Pauri in Rent Appeal no. 19 of 2007. Writ Petition No. 147 of 2010 (M/S) has been filed against the judgment and order dated 24.04.2007 passed by Prescribed Authority, Kotdwar in Rent Case No. 13 of 2005 and judgment and order dated 08.01.2010 passed 6 by District Judge, Pauri in Rent Appeal no. 18 of 2007. Similarly, Writ Petition No. 148 of 2010 (M/S) has been filed against the judgment and order dated 24.04.2007 passed by Prescribed Authority, Kotdwar in Rent Case No. 15 of 2005 and judgment and order dated 08.01.2010 passed by District Judge, Pauri in Rent Appeal no. 20 of 2007. All these four writ petitions were clubbed and are being decided by a common judgment. 8. In their release application no. 11/2005, the landlords/ respondent nos. 1 to 3 came up with the case that the landlords/applicants have a four storeyed building situated within municipal area in Ward No. 22, House No. 6 which is about 100 years old and is in dilapidated condition. Mother of the applicants Smt. Kalpeshwari Devi was residing in said building but due to decrepitude condition of the premises in question, she left the building. The applicants instituted as many as eight civil suits for release of the premises in question. In the release application, it is stated that the applicant no.1, after his retirement, is jobless. He has two married daughters and one son. His son is unemployed after passing B.Com degree. Applicant no.2, after being retired, is also unemployed who has three daughters and a son aged about 11 years. The applicant no. 3 shall be retired in the year 2007. The applicant no. 3 has a son aged about 17 years who is also unemployed after intermediate examination. All the applicants are residing separately on rental basis, thus the applicants are in genuine need of the entire building for their residence as well as for commercial purposes. The applicants, after demolishing the premises in question, intend to construct a commercial-cum-residential building. Need of the 7 applicants/respondents is genuine and bona-fide, while the petitioner is well settled and is not using the shop/room in his possession. The petitioner is not in need of the premises in his possession. It is further stated that in the city of Kotdwar and to its surroundings, several business and commercial complexes have been constructed and opened; hundreds of such complexes are vacant for purchase as well as for hiring on rent and the petitioner can do needful according to his requirement. The petitioner will not face comparative hardship in vacating the premises in his possession. The defendant no.1 Abdul Raseed filed his written statement with the averment that the application filed by the respondents under Section 17 of the Act is not maintainable. The landlords/ applicants are not in need of the accommodation in question, as applicant no. 1 was aged about 75 years who resides in Delhi with his family members. His daughters are marries and his son has been settled at Delhi. The landlords/applicants have not mentioned in their release application that for whose family or for which applicant, the accommodation is required. The applicant no.2 is not unemployed as he was retired in the year 1990 and is living at Dehradun in his own house and his family has been settled there. The applicant no.3 is in Govt. job, his wife is Vice Principal and they had their own house. One shop is vacant in the premises. The landlords/applicants have no need of the accommodation in dispute. The petitioner/tenant is running hair-cutting salon in the accommodation since long and he had no other source of income. The petitioner/tenant has earned goodwill at this place. If the shop is vacated, the petitioner/tenant will suffer irreparable loss. The property is on Nazool land, which 8 requires proper renewal. The applicants/landlords did nothing for ownership of the property in their names through freehold scheme as directed by the Government in the year 1992. As the property has not been renewed, now ownership rights vests on the Government only. The applicants/landlords have no locus standi so sue. In written statement, it was also stated that there involve serious question of title and the title cannot be decided summarily. The Trial Court has no jurisdiction to try the suit. In their replica, the landlords/applicants stated that in respect of alleged PATTA the landlords are paying lease rent to the Municipal Board, Kotdwar and their rights of ownership are not, at all, changed in any manner. The applicants are the owner/landlords of the property in dispute and there are relation of landlord and tenants in between the parties. The Trial Court is fully empowered to hear and decide the dispute. They further stated that the freehold policy is optional one and the holder of Nazool land cannot be compelled to indulge in freehold proceeding. 9. In Rent Case No(s). 12/2005, 13/2005 14/2005, 15/2005, 16/2005 and 17/2005, filed by the applicants/respondents, the applicants came with the identical averments as was averred in Rent Case no. 11/2005 stating therein that their need is bona fide and genuine. Rest of the averments made in the Rent Case No. 11/2005 was reiterated. In reply to the averments made by the landlords/applicants, rest of the tenants have averred that they are doing their respective business in the accommodation in dispute since long and they have no other source of income. They have earned goodwill in their business at the place of the building in dispute. 9 Further, if the shops in their possession are vacated the tenants will suffer irreparable loss and hardship. 10. I have heard Mr. Sudhir Kumar, the learned counsel for the petitioners, Mr. B.P. Nautiyal, the learned counsel for the respondents and perused the entire material available on record and have also gone through the law cited on various issues. 11. It is pertinent to mention here that so far the questions, as to whether is there any relation as landlords and tenants in between the parties and whether provisions of U.P. Act no. XIII of 1972 are attracted in the property in suit are concerned, these questions are not pressed by the petitioners. Now three questions are remained to be determined by this Court. First, whether the property in dispute is in dilapidated condition secondly, whether need of the landlords is genuine and bona fide and thirdly, whether comparative hardship of petitioners is grater than the landlords. 12. Mr. Sudhir Kumar, the learned counsel for the petitioners first of all assailed the impugned judgment and orders on the ground that impugned orders are perverse, against the law and facts on record and both the Courts below failed to appreciate that motive of the Act is to protect the interests of the tenants, therefore eviction of the tenants cannot be directed on flimsy grounds, as the Courts below utterly failed to consider that applicant no. 1 has retired more than 20 years ago and at the time of filing release application he was more than 75 years of age and his 32 years’ son has been shown as unemployed. Similarly, the applicant no. 2 has been retired 15 years ago 10 at the time of moving release application and he was settled at Dehradun. Both the Courts below have failed to consider that the applicant no.3 had not retired at the time of moving release application and was in regular service. However, he contended that the son of applicant no.1 is an accountant and he has been settled at Delhi and there is no evidence as to whether he was ever interested in settling at Kotdwar, leaving Delhi. He further contended that both the Courts below have ignored to enquire into the genuineness of the alleged need of respondent nos. 1 to 3 and to find out the extent of the space required by them to satisfy their alleged need. He argued that undisputedly, the applicants had one vacant shop in their possession for a long time and had there been any need of the applicants, they could have occupied the same for doing business which itself illustrate that need of the applicants was not bona fide and genuine. He vehemently contended that after the decision of Prescribed Authority, Shri Suman Kant and Shri Balwant Singh have vacated the shops in their tenancy and these two shops also came in the possession of the applicants. He argued that in addition to it, Shri Arun Parmar also vacated the area in his tenancy on the first floor and this portion also came in occupation of the applicants. He argued that, conclusively the applicants are in occupation of three shops as well as entire first and second floor of the premises in dispute, therefore the need of the applicants, if any, stands fully satisfied. 13. Learned counsel for the petitioners further submitted that the landlords have not given any particulars of their alleged requirement in their release application. It has not been stated as to where each of the 11 landlords had been living and what they and their sons had been doing, before the release applications were filed; what is the source of their income and the quantum thereof and whether the same is sufficient for their living or not. He further submitted that the landlords have given their addresses as Badrinath Marg, Kotdwar in their release application and have not given their correct addresses for no reasons. He argued that it is sufficiently proved on record that the applicant no.1 is living at Delhi with his family, the applicant no.2 is living at Dehradun with his family and applicant no.3 was gainfully employed in Garhwal Mandal Vikas Nigam and his wife was also employed as Principal in Govt. College. He submitted that the need of applicant no.1 for the business in the premises in question is not, at all, established and same is the position with applicant no.2. No reasons have been given as to why no business was started in the shop in the occupation of the landlords. He submitted that the landlords are in possession of three vacant shops in which they can carry out their business. Their immediate needs are totally satisfied. He submitted that the landlords have nowhere stated about the nature of the business, they want to start, and the extent of space that may be required for the said business, thus the landlord have utterly failed to prove their need and the extent of the premises required for their alleged need. He argued that the Courts below have also not considered these factors, which are required to be considered and non-consideration thereof has vitiated the decisions of both the Courts below. The counsel for the petitioners relied on the decision of Hon’ble Supreme Court in the case of Ansuyaben Kantilal Bhatt vs. Rashiklal Manilal Shah and another, reported in AIR 1997 SC- 2510, the decision of Allahabad High court 12 in the case of Jai Prakash Rastogi vs. 1st Addl. District Judge, Bulandshar and others, reported in 2000(2) ARC- 569 and decision of Allahabad High Court in the case of S.B. Bhardwaj and others vs. XIth Addl. District Judge Kanpur and others, reported in 2002(2) ARC-244. 14. Counsel for the petitioners also contended that the Appellate Court has committed manifest error of law in recording findings that the building in dispute is in dilapidated condition and in accepting the report of the Engineer, examined by applicants, because no evidence is placed to prove that the building is hundred years old construction. He argued that the finding recorded by both the Courts below on the issue of comparative hardship is wholly against the law and facts on record. Mr. Sudhir Kumar, the learned counsel for the petitioners argued that release application under Section 21 (1) (a) and (b) of the Act is not maintainable. He vehemently argued that the Appellate Court erroneously allowed the composite application for release of the shop under both the Clauses (a) and (b) of Section (1) of Section 21 of the Act. As under Clause (a), the landlord can get the release of the premises on proof of his bona-fide requirement irrespective of whether the building is in dilapidated condition or not while under Clause (b), the landlord can get the release of the premises on proof of the building being in dilapidated condition irrespective of whether the landlord has any need of the same or not. Under Clause (b), the tenant has a right of re-entry but the tenant has no such right under Clause (a). The nature of proof for release of the premises is also totally and altogether different under both the Clauses. He argued that Order II Rule 3 of the Code of Civil Procedure provides that more 13 than one cause of action can be joined in a suit, while Order I Rule 3(b) of the Code provides that several defendants may be joined in the same suit if common question of law and facts arise. Both these rules, if read together, provide that only such cause of action can be joined in a suit when common question of law and facts arise which can be decided on the same evidence. Placing reliance on the decision of Allahabad High court in the case of Dwarike Prasad vs. Kishan Lal and others, reported in AIR 1986 Allahabad-174 and in the case of Shibboo vs. 1st Addl. District Judge, Ghaziabad and another, reported in 1983 (1) ARC-33, Mr. Sudhir Kumar, Advocate submitted that composite application for release under Clauses (a) and (b) of sub-Section (1) of Section 21 of the Act itself being not legally maintainable, is liable to be dismissed. 15. Learned counsel for the petitioners further submitted that it is required for the landlord to seek relief under Clause (a) of sub-Section (1) of Section 21 of the Act to establish by definite and positive averments stating the nature of need and its accrual and how it is necessary for the landlord for his comfortable living. He argued that it is further to be proved by the landlord regarding the extent of the accommodation required for satisfying his alleged need. In this regard he placed reliance upon the decisions of Hon’ble Supreme Court in the case of Phiroze Bamanji Desai vs. Chandrakant M Patel, reported in AIR 1974 SC-1059 and Deena Nath vs. Pooran Lal, reported in (2001) 5 S.C.C.-705. 16. On the other hand, Mr. B.P. Nautiyal, the learned counsel for the applicants has submitted that so 14 far as the bona-fide need of the applicants/landlords is concerned, there is concurrent finding of facts of both the Courts below. He contended that scope of writ jurisdiction under Article 226 of the Constitution of India is limited and while exercising this jurisdiction, the High Court cannot sit like a Court of appeal, thus it cannot re- appreciate or revaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned order can be judged as has been observed in the Apex Court in Surya Dev Rai vs. Ramchandra Rai, reported in 2003 SC page 675, 2003 S.C.W.-3872, (2004) 3 SCC-682 and 2004 S.C.W.4241. A preliminary objection has also been raised to the effect that one of the writ petitions has been filed by petitioner-Tota Ram Panthari who was neither tenant nor party before the Prescribed Authority or Appellate Authority. About the status of Mr. Tota Ram, there is no whisper either in the pleadings of the parties or in the orders passed by the Trial Court or Appellate Court, therefore, this petitioner has no locus standi to file writ petition as the alleged partnership is not pleaded by the tenant Shri Digambar Singh Kainthola in PA Case No. 16 of 2005 and Rent Control Appeal No. 21 of 2007, as such, the Writ Petition No. 144 of 2010 (M/S), which is filed by an outsider to the proceedings and who had never been there as tenant of the landlords in the disputed shops, is not legally maintainable and is liable to be dismissed on this ground alone. 17. So far on the merits of the case, the learned counsel for the applicants/landlords Mr. B.P. Nautiyal submitted that in view of provision contained in Section 21 (1) of the Act itself, the applications are legally maintainable on both