IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 1314 of 2005. Dhirendra Kumar Sharma, S/O Late Shiv Prasad Sharma, Employee Code No. 749541, Hindalco Industries Ltd., Renu Sagar Power Division, Post Office-Renu Sagar, District Sonbhadra (U.P.) through his attorney, Shri Shankar Mani Kala S/O Late Shri Kripa Ram Kala, R/O House No. 7, Lane No.-1, Shastri Nagar, Haridwar Road, P.O. Nehru Gram, District Dehradun. … Petitioner. Vs. 1. Additional District Judge/F.T.C.-V, Dehradun, District Dehradun. 2. R.S.Suman S/O Late Mauji Ram, R/O 232, Chukhuwala Dehradun, District Dehradun. …Respondents. Mr. V.K.Kohli, Senior Advocate with Mr. I.P. Kohli, Advocate, learned counsel for the petitioner. Mr. Vipul Sharma, Advocate, learned counsel for the respondent no.2. Date March 15, 2011. Hon’ble B.S.Verma, J. Heard learned counsel for the parties and perused the record. By means of this writ petition, the petitioner has sought a writ for setting aside the judgment and order dated 18-5-2005 (Annexure No. 5) passed by the Additional District Judge/F.T.C.-V, Dehradun, whereby the appeal of the respondent no. 2 has been allowed and the order dated 11-6-2003 passed by the Prescribed Authority/Civil Judge (Senior Division) Dehradun in P.A.Case No. 5 of 2002 has been set aside. The application for release under Section 21(1)(a) of the U.P.Act No. 13 of 1972 (for short the Act) has been dismissed. Brief facts giving rise to the present writ petition are that the petitioner-applicant moved an application under Section 21(1)(a) of the Act for release of the premises in question alleging that he is owner and landlord of property no. 232, Chukkhuwala, Dehradun and 2 the opposite party-respondent no. 2 is a tenant in a part thereof; that in the family of the applicant there are in all four members including his wife, his son and daughter; that the applicant has got the said property by inheritance from his father and that the petitioner is going to retire from service after four years. The application for release has been moved on the ground of bona fide need. The release application was resisted by the respondent no.2 by filing his objection asserting therein that the petitioner is not the owner of the premises in question and that the petitioner has not filed any document of ownership; that a number of criminal proceedings are pending against the petitioner; that the family of the opposite party consisting of wife, four daughters, one son, one nephew and he himself. The premises in question belongs to Harijan Jatav and the opposite party is Harijan Jatav, therefore, there is no question of the opposite party being a tenant. The applicant-petitioner in support of his case filed affidavits and the opposite party filed photo copies of criminal proceedings and copies of applications sent to different officers but has not filed any affidavit to controvert the averments made in the affidavits filed by the petitioner. The learned Prescribed Authority after hearing both the parties and perusing the evidence by them has held that the need of the landlord-petitioner is bona fide and genuine. On the point of comparative hardship, the Prescribed Authority has observed that the opposite party has not made any effort to search for alternate accommodation. The Prescribed Authority has held in case the release application is rejected, the landlord would suffer greater hardship than the tenant-opposite party. Consequently, the application for release was allowed by order dated 11-6-2003. Aggrieved by the said order, the tenant-respondent no. 2 filed an appeal before the appellate court, which was heard by the 3 Additional District Judge/F.T.C.-V Dehradun. By order dated 18-5- 2005, the learned appellate court has allowed the appeal observing that since the landlord had executed a general power of attorney in favour of Shankar Mani Kala and on the strength of general power of attorney, the premises in question can also be sold. On this premise, the learned appellate court has held that the landlord has no bona fide need for the premises in question. On the point of comparative hardship, the appellate court appears to have been influenced by the general power of attorney, hence hardship of the landlord was ignored and it has been held that the balance of comparative hardship tilted in favour of the respondent no.2. Ultimately, the appeal has been allowed, the order of release passed by the Prescribed Authority has been set aside and the release application of the petitioner has been rejected. The writ petition has been filed mainly on the ground that the petitioner is living at a place far from Dehradun and cannot visit Dehradun frequently to look-after his property, as he is a heart patient. Thus, the petitioner has appointed Shri Shankermani Kala S/O Late Kripa Ram Kala to look after the affairs of the property bearing No. 232, Chukhuwala, Dehradun, district Dehradun; that the petitioner has no house except property no. 232, Chukhuwala, Dehradun to live in after his retirement and that the appellate court has erred while deciding the appeal merely on the ground that because the petitioner had executed a power of attorney in favour of his Phupha Shri Shankermani Kali, therefore, bona fide need of the petitioner does not stand. During the pendency of the writ petition, supplementary affidavit has been filed on behalf of the petitioner on 17-4-2008, stating therein that the deponent was working in HINDALCO Industries Limited at Renusagar Power Division, District Sonbhadra, Uttar Pradesh, whom where the petitioner had retired on 31-1-2007 and after his retirement, the petitioner had shifted to Dehradun along with his family and presently living at B Block Saraswati Vihar, 4 Ajabpur Khurd, Dehradun on a monthly rental of Rs. 2800/-. The said house belongs to one Smt. Laxmi Chauhan. In the supplementary affidavit the petitioner has also stated the subsequent events. 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 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.” 5 Learned counsel for the petitioner-landlord has vehemently contended that the learned appellate court has recorded a perverse finding that the petitioner has been in possession of the premises in question except one room, while the description of the premises in question in occupation of the respondent no. 2 detailed at the foot of the release application, has not been disputed by the respondent no.2. Secondly, the learned appellate court has denied the bona fide need of the petitioner-landlord merely on the ground that the petitioner had executed a general power of attorney in favour of Shankar Mani Kala in respect of the said property. The learned counsel for the petitioner has pointed out that the power of attorney holder has filed the present writ petition on behalf of the petitioner- landlord. Having heard the rival contentions of the learned counsel for the parties and having perused the entire material placed before this Court, I am of the view that the order passed by the learned appellate court is perverse for the following reasons:- Firstly, from a bare perusal of the order passed by the learned appellate court, it is obvious that the appellate court has not considered the bona fide need of the petitioner on the basis of the evidence led by the landlord. The learned appellate court has not considered the bona fide need of the landlord on the basis of the affidavits and other evidence led by the landlord-petitioner, but has scrutinized the bona fide need on the basis of the copy of plaint of O.S. No. 799 of 2001, Dhirendra Kumar vs. R.S.Suman and has observed that in the plaint, it was alleged that the tenant-respondent no. 2 is in occupation of only one room, and rest of the property is in occupation of the landlord-petitioner. This finding of the learned appellate court is not tenable and is a perverse finding. The boundaries of the premises in question have been given at the foot of the application for release filed by the petitioner, where it is mentioned that the respondent no. 2 is in occupation of two rooms, store, latrine and 6 bathroom. The details of the premises in question in occupation of the respondent no. 2 have not been disputed from the side of the respondent no.2. Secondly, the learned appellate court has held that in the power of attorney, the landlord has given all his powers in favour of the attorney holder Mr. Shankar Mani Kala. By executing general power of attorney, the petitioner has only authorized the power of attorney holder to conduct the case and to sell the property, but for this reason the bona fide need of the landlord cannot be said to have come to an end, particularly when the release application had been moved by the landlord himself and before the Prescribed Authority, the respondent no.2-opposite party has not even filed any affidavit in support of his claim. Thirdly, in this writ petition, the respondent no. 2 was afforded adequate opportunity to file counter affidavit- firstly by order dated 21-11-2005 and secondly on 20-8-2009. It is pertinent to note that Vakalatnama on behalf of respondent no. 2 was filed in the office as far back as 4-6-2008. Till today, no attempt was made to file counter affidavit by the respondent no.2 so as to dispute the averments made by the petitioner in the memo of writ petition. Besides above, by way of supplementary affidavit filed on behalf of the petitioner on 22- 4-2008, the petitioner has categorically stated that after his retirement from service, he has come to Dehradun and the petitioner has been residing in Dehradun along with his family in a house of his relative. The respondent no. 2 has not disputed the averments made by the petitioner, by filing his counter affidavit. Fourthly, the learned Prescribed Authority after perusal of the evidence led by both the parties has recorded a finding of fact that the need of the petitioner-landlord is bona fide and genuine. The Prescribed Authority has also observed that the respondent no.2- opposite party had not made any effort to search for alternate accommodation and has held on appraisal of evidence that the balance 7 of comparative hardship tilted in favour of the landlord, but the learned appellate court on the basis of general power of attorney executed by the petitioner in respect of premises in question has drawn an adverse inference against the landlord and held that the petitioner-landlord would not suffer any hardship if the release application is rejected. It is pertinent to note that the said power of attorney was executed on 27- 6-2001, while the release application was moved by the petitioner on 13-6-2002 on the ground of his bona fide need. The learned appellate court appears to have lost sight of this fact and moreover, the need of the landlord cannot be said to have come to an end merely because a power of attorney had been executed by him to conduct the case and for management of the property with a power to sell the same. In view of the discussion above and since the averments made by the petitioner in the supplementary affidavit as well as the writ petition have not been controverted by filing counter affidavit on behalf of the respondent no.2, despite opportunity given to him, therefore also, the writ petition deserves to be allowed on this ground alone. The writ petition is allowed. The impugned order dated 18-5-2005 passed by the Additional District Judge/F.T.C.-V, Dehradun is set aside. The judgment and order dated 11-6-2003 passed by the Prescribed Authority/Civil Judge (Junior Division), Dehradun in P.A. Case No. 5 of 2002 is upheld. However, the respondent no.2-tenant is granted three months’ time to vacate the premises in question and to handover its vacant and peaceful possession to the petitioner-landlord before expiry of the said period. (B.S.Verma,J.) RCP