Reserved Order IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 463 of 2011 Smt. Bindi Devi W/O Late Bachhi Ram and six others. … Petitioners. Versus Lt. Col. Surendra Kumar Sood S/O Sri Sheesh Ram Sood. … Respondent. Mr. Sharad Sharma, Senior Advocate with Mr. Bhuwan Bhatt, Advocate, learned counsel for the petitioners. Mr. Piyush Garg, Advocate, learned counsel for the respondent. Date May 13, 2011. Hon’ble B.S.Verma, J. Learned counsel for both the parties have agreed that this writ petition may be disposed of at the admission stage without counter version of the respondent. 2. By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the impugned order dated 13-12-2002 passed by the Prescribed Authority/Civil Judge (Senior Division)/ F.T.C. I, Dehradun and the order dated 28- 2-2011 passed by the Additional District Judge/ F.T.C. II, Dehradun (Annexure No. 4 and 6 to the writ petition). By the order dated 13-12-2002, the application for release under Section 21(1)(a) of the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act) of the respondent was allowed directing the petitioners to handover vacant possession of the disputed shop to the respondent and the respondent-applicant was directed to pay amount equal to two years’ rent to the petitioners as compensation. By order dated 28-2-2011, the appeal preferred against the said order by the petitioners has been dismissed by the appellant court. 3. Brief facts giving rise to the present writ petition are that the respondent herein moved an application for release of the disputed shop alleging therein that the respondent had retired as 2 Lieutenant Colonel from the Indian Army on 31-7-2000 and he shall retire from reemployment on 31-7-2002; that the respondent is the landlord of the disputed shop, which is in occupation of petitioner no. 1 Bindi Devi at the rate of Rs. 50/- per month as rent and late Bachhi Ram (opposite party no. 2) stood guarantor of the petitioner no. 1 Smt. Bindi Devi. Besides rent, the tenant was required to pay taxes; that the applicant wants to run his own business and to engage his son in the business in the disputed shop and well as the shops adjacent to the disputed shop, which are in occupation of Madan Lal and Deokinandan; that there is no other accommodation with the applicant for that purpose, hence the application for release has been moved on the ground of bona fide need. 4. The opposite parties resisted the application by filing their objection (paper no. 8-Ka). The relationship of landlord and tenant has been admitted, but asserted that the son and daughter of the applicant are highly educated and his wife runs a beauty clinic and ladies Gym at Tilak Road and she has an income of more than Rs. 15,000/-. It is also asserted that Since January 1971 to February 1981, the rent of the disputed shop was Rs. 25/- per month. The rent was increased to Rs. 50/- since January 1994 and now the applicant wants to raise the rent to Rs. 800/- per month. It is also asserted that the disputed shop is not fit for business of wooden and iron furniture and workshop. The opposite parties are doing grocery business in the disputed shop. The O.Ps. are not in a position to shift their business. 5. Both the parties led evidence by filing affidavits and annexures filed along with the affidavits. The learned Prescribed Authority after hearing the parties and perusing the evidence led by them has come to the conclusion that the applicant-respondent has bona fide need for the disputed shop to settle his son in the business. The Prescribed Authority has also held that there are vacant shops available to the opposite parties to shift their business. 3 It was also held that the balance of comparative hardship tilts in favour of the applicant-respondent. The Prescribed Authority has rejected the contention of the opposite parties that the provisions of the Act are not applicable to the disputed shop. Ultimately, the release application moved by the respondent herein was allowed vide order dated 13-12-2002. 6. Aggrieved by the said order, the petitioners preferred an appeal, which was registered as Rent Control Appeal No. 1 of 2003. The appeal was ultimately heard and decided by the Additional District Judge/F.T.C. II Dehradun by order dated 28-2- 2011. The appellant court after hearing both the parties has recorded its independent finding that the respondent-landlord has bona fide need for the disputed shop. The appellate court has observed that the petitioners have not made any efforts to search alternate accommodation during the last ten years and it has been held that the respondent-landlord would suffer greater hardship if the release application is rejected. 7. Further aggrieved by the order dated 28-2-2011, the petitioners have filed the present writ petition mainly on the grounds that the respondent failed to establish that he was residing with his family in Dehradun itself; that the appellate Court erred in law by not considering the affidavit paper no. 60-Ka filed by the petitioners showing that the family of the respondent is residing in Delhi and the business beauty parlor situated at Tilak Road has been handed over to someone else and that the Prescribed Authority has not considered the area of two shop and the nature of construction vis-à-vis the proposed nature of business of the respondent’s son. 8. I have heard learned counsel for the parties at length and perused the material placed before this Court. 4 9. 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. 10. 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.” 11. The Apex Court in the case of Shamshad Ahmad and others Vs. Tilak Raj Bajaj (Deceased) through L.RS. and others [(2008) 9 Supreme Court Cases, 1] while dealing with Articles 226 and 227 of the Constitution of India as observed as under:- “38. 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 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 5 cases in order to keep the subordinate courts and inferior tribunals within the limits of law.” 12. Learned counsel for the petitioners has contended that the courts below has not adhered to the compliance of mandatory requirements of Rule 16(1)(d) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 particularly when the landlord’s needs would be served by releasing a part of the tenanted accommodation and no specific finding has been given with reference to this Rule, therefore, the impugned orders are not tenable in the eye of law. In support of his contention, the learned counsel for the petitioners has relied upon the case of Ram Chandra Gehani Vs. IV Additional District and Sessions Judge, Kanpur and others [1983 (1), A.R.C., Page 590], wherein it has been held by the Allahabad High Court that in view of the fact that the requirement of Rule 16(1)(d) is of a peremptory nature, even if this plea was not raised by the petitioner before the authorities below, he is entitled to raise the same even in the present writ petition. 13. The ratio of the judgment cannot be disputed. In my view, this case-law is of no avail to the petitioners, for the simple reason that the Rule 16(1) of the said Rules applies where the release application has been moved for purposes of residence by the landlord. In the instant case, the release application has been moved for release of the disputed shop let out to the petitioners for purposes of any business. I am fortified in my view by the judgment in the case of Sushila Vs. II Additional District Judge, Banda and others [2003 Supreme Court & Full Bench Rent Cases, Page109] wherein the Apex Court has observed in paragraph no. 9 as under:- “9. A bare perusal of rule 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, makes it clear that the rule only prescribes certain factors which have also to be taken into account while considering the application for eviction of a tenant on the ground of bonafide need. Sub-rule 6 (2) of Rule 16 quoted earlier relates to the cases of eviction from an accommodation for business use. Clause (a) of sub-rule (2) provides, greater the period of tenancy less the justification for allowing the application; whereas according to clause (b) in case tenant has a suitable accommodation available to him to shift his business. Greater the justification to allow the application. Availability of another suitable accommodation to the tenant, waters down the weight attached to the longer period of tenancy as a factor to be considered as provided under clause (a) of sub-rule (2) of Rule 16. Yet another factor which may in some cases be relevant under clause (c) is where the existing business of the landlord is quite huge and extensive leaving aside the proposed business to be set up, there would be lesser justification to allow the application. The idea behind sub-clause(c) is apparent i.e. where the landlords runs a huge business eviction may not be resorted to for expansion or diversification of the business by uprooting a tenant having a small business for a very long period of time. In such situation if eviction is ordered it is definitely bound to cause greater hardship to the tenant.” 14. Learned counsel for the petitioners has vehemently argued that the landlord is not residing in Dehradun and it is evident from the evidence on record that the landlord had been residing in Delhi. The Prescribed Authority as well as the first appellate court lost sight of this fact, therefore, the application of the landlord ought to have been dismissed outright. 15. This contention of the learned counsel for the petitioners cannot be accepted for the simple reason that the petitioners filed their objection to the application for release before the Prescribed Authority as far back as 5-2-2002, which has been annexed as Annexure-2 to the writ petition, but therein there is no whisper that the respondent or his family is not residing in Dehradun or that they are residing in Delhi. Moreover, in the application moved under Section 21(1)(a) of the Act, the 7 respondent-applicant in paragraph no. 5 has specifically stated that the son of the applicant met with an accident in August 2000 and his colour bone got fractured therein. The applicant-respondent wants to settle his son Tarun Sood in private business of wooden, iron and plastic furniture to be run in the shops in question. In the written objection, the petitioners have just denied the averment made in paragraph 5 of the application and have stated that the disputed shop is situate in a small village where there is no scope for the alleged business. 16. Learned counsel for the petitioners has further argued that the two courts below have not considered the provisions of Rule 16(2) (b) particularly on the point of hardship that may be caused to the tenant in shifting his business to another place. In support of his argument, reliance was placed upon the case of Rameshwar Kumar Vs. II Additional District Judge, Muzaffarnagar and another [1990(1), Allahabad Rent Cases, Page 103]. 17. On the other hand, the learned counsel for the respondent, in reply, has submitted that that comparative hardship is a relevant factor for determining the question as to whether requirement of the landlord is bona fide or not within the meaning of the provisions of the Act and the Rules and the provisions of the statutory rules must be interpreted so as to give effect to the object and purport of the Act and that the statute requires comparison of the hardship of both the tenant as also the landlord. Learned counsel for the respondent has placed reliance upon the case of Ganga Devi Vs. District Judge, Nainital and others [(2008) 7 Supreme Court Cases, 770]. 18. In the case of Ganga Devi (supra), the Apex Court had an occasion to consider the provision of Rule 16(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules 1972, wherein the Apex Court relying on the case of Bhagwan Dass 8 Vs. Jiley Kaur [1991 Supp.(2), SCC, 300] has observed in paragraph no. 23 as under:- “23. In Bhagwan Dass v. Jiley Kaur this Court distinguishing the earlier decision of this Court in Bishan Chand v. ADJ stated the law in the following terms: (Bhagwan Dass case, SCC p. 303, para 7) “7. …. It was also pointed out in this case that the provisions of Rule 16(2) of the Act (sic Rules) had not been considered at all. In our opinion, the said decision is clearly distinguishable. Firstly, the instant case was one where there was an outweighing circumstance in favour of the landlord, namely, that two of her sons after completing their education were unemployed and wanted to carry on business for self-employment. Secondly, as already seen above, it was not a case where the provisions of Rule 16(2) can be said to have been ignored by the District Judge. Thirdly, it was a case where there was even this additional circumstance that the appellant had brought no material on record to indicate that at any time during the pendency of this long drawn out litigation he made any attempt to seek an alternative accommodation and was unable to get it.” The “thirdly” referred to therein applies to the fact of this case.” 19. I have perused the case-law of Ganga Devi (supra) vis- à-vis the facts of the case at hand. I find that in the case at hand, there is a finding of fact that the son of the landlord, whose collar bone was got fractured in an accident, is unemployed and the landlord’s wants to get him settled in the business. The appellate court has also considered the fact that the landlord-respondent has already retired from army service and he also wants to settle himself in the business. There is also concurrent finding of fact that during the pendency of long drawn out litigation, the petitioners have not made any attempt to seek an alternative accommodation and were unable to get it, rather there is a finding of fact recorded by the two courts below that within ½ km. Area near the disputed shop, hundreds of new shops were constructed, which were either 9 sold or rented out but the petitioners have not made any attempt to occupy any such shop to shift their business. In view of the Apex Court verdict in the case-law Ganga Devi (supra), the argument of the learned counsel for the respondent has sufficient force. The case of Rameshwar Kumar (supra), therefore, does not help the petitioners. 20. Learned counsel for the petitioners has vehemently argued that the courts below have committed a manifest error of law in not considering the aspects of quality, size and suitability of the building, while allowing the application for release for non- residential purposes. In support of his contention, the learned counsel for the petitioners have placed reliance in the case of Gulab Chand Pukhraj V. R.B.Jinender Raj and another [2009(8) SCJ 936] wherein it has been held by the Apex Court that non-consideration of the quality, size and suitability of the building already in possession of the landlords would be to frustrate the purposes of the Act. In paragraph 15, the Apex Court with reference to the case of Boorju Jagadeshwaraiah & Sons v. Pushpa Trading Co. [(1998) 5 SCC, 410] has observed as under:- “15. In Boorgu Jagadeshwaraiah & Sons (supra), this court was clearly of the opinion that the aspects of quality, size and suitability of the building cannot be out of consideration and doing so would be to frustrate the purposes of the Act. In the said case, the court remitted the matter to the High Court for considering the objection of the tenant as to the claim of the landlord.” 21. The ratio of the case of Gulab Chand Pukhraj cannot be disputed, but the said case is not applicable to the facts of the present case. In the cited case, the appellant had contended that the landlords are already in possession of a non-residential premises and, therefore, their petition seeking eviction of another non- residential premises is not maintainable in law. In the case at hand, it is not the case of either party that the landlord-respondent is already in possession of a non-residential premises. In such 10 circumstances, in my view, there could be no occasion for recording any finding as to the quality, size and suitability of the building. 22. On the other hand, the learned counsel for the respondent-landlord has urged that the Prescribed Authority and the first appellate court have recorded independent findings of the fact that the need of the landlord-respondent is bona fide and that no greater hardship would be caused to the tenant-petitioners if an order of eviction would be passed against them. In support of his contention, the learned counsel for the respondent has placed reliance upon the case of Shamshad Ahmad and others Vs. Tilak Raj Bajaj (Deceased) through L.RS. and others (supra), wherein the Apex Court has held in paragraph 36 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 could it have been interfered with, 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.” 23. 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 not 11 be a ground for depriving the landlord for doing business if the requirement of the landlord is bona fide and reasonable.” 24. In view of the case-law of Shamshad Ahmad (supra), it is also obvious that where the need of the landlord is established to be bona fide and genuine for doing business, as in the case at hand, the tenancy created earlier in favour of the petitioners would not be a ground to deprive the landlord from doing business in the disputed shop. 25. The Prescribed Authority appears to have elaborately discussed the evidence led by both the parties and at page no. 8 of its order, the Prescribed Authority has categorically recorded a finding that the landlord-respondent has bona fide need for the disputed shop to engage his son Tarun Sood in his own business of furniture. On the point of comparative hardship, the learned Prescribed Authority has observed in first paragraph at page 10 that there are a number of shops constructed near the disputed shop, which were available as an alternate shop to the petitioners. It has also been observed that the petitioners have not rebutted the affidavit filed by the landlord-applicant on this point. It has also been observed that the petitioners made no efforts to search any alternate shop. At page 12 of the judgment, the Prescribed Authority has recorded a finding of fact that near the disputed shop, some of the shops are still vacant and the petitioners can very well shift his shop to that place. Accordingly, the point of comparative hardship was decided against the petitioners and the application for release was allowed by order dated 13-12-2002. 26. In the appeal preferred by the petitioners, the learned appellate court has specifically held at page no. 23 of the judgment that the respondent-applicant has already retired from service and he has no alternative accommodation to settle his son and himself in the business. It has also been held that the need of the landlord- respondent is bona fide and genuine. It has also been held that the 12 petitioners have not made any efforts to search for alternate shop to run his business for the last ten years. The point of comparative hardship has also been decided in favour of the landlord- respondent. Thus, it is evident that in the case at hand, there are concurrent and independent findings of fact recorded by the two courts below on the point of bona fide need and the applicant- respondent and on the point of comparative hardship. Undisputedly, the application for release was moved in the year 2001 by the respondent. It also appears that the petitioners have not made any effort to search alternate shop during long span of ten years, as observed by the learned appellate court. It also appears that the learned appellate court has also considered the subsequent event of retirement of the landlord from service. The appellate court at page no. 23 of its judgment has specifically observed that in the case at hand, the respondent-applicant has no non-residential accommodation already available to him for business. The findings recorded by the two courts below on the point of bona fide need and comparative hardship are the findings of fact, which are fully based on appraisal of evidence led by the parties and these findings cannot be interfered with in exercise of writ jurisdiction. The impugned orders do not suffer from any manifest error of law or perversity. 27. For the reasons and discussion above, the writ petition filed by the petitioners being devoid of merit is liable to be dismissed outright at the admission stage. 28. The writ petition is dismissed in limine. Costs easy. However, to serve the ends of justice, the petitioners are granted