IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 3941 of 2001 (Old No. 17258 of 1989) Shri Mohan Singh and others. … Petitioners. Versus III Addl. District Judge, Nainital and others. … Respondents. Mr. J.C.Belwal, Advocate learned counsel for the petitioners. Mr. Lok Pal Singh, Advocate, learned counsel for the respondent no.3. Date September 19, 2011. Hon’ble B.S.Verma, J.(Oral) Learned counsel for the respondent no. 3 files supplementary counter affidavit. The same is taken on record. By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the order dated 19- 5-1989 passed by the respondent no.1 in Rent Control Appeal No. 13 of 1985, Lokmani (since deceased) through legal heirs Vs. Laxman Singh (since deceased) through legal heirs, whereby the appeal of the tenant-respondent was allowed, the order of the Prescribed Authority dated 16-3-1985 was set aside and the release application of the landlord-petitioners was rejected. Brief facts giving rise to the present writ petition, according to the petitioners, are that the predecessor of the petitioners namely Laxman Singh (since deceased) filed an application for release of the disputed shop on the first storey of House No. 8/319, situate at Painth Parao Haldwani on the ground of his bona fide need of his sons as detailed in the release application. The release application was resisted by the tenant Lokmani (since deceased), who was the predecessor of respondent nos. 2 to 5 on the ground that the applicant is neither owner nor landlord of the disputed shop, rather Sri Nain Singh Rautela, a 2 retired Tahsildar and thereafter his sons are the co-sharers of the disputed shop and that they have not been arrayed as party to the proceeding. It was further asserted that on this ground alone, the release application is liable to be rejected. According to him, in the year 1940 Sri Nain Singh let out the disputed shop to him and late Nain Singh used to realise the rent thereof and some times the rent was being realised by the applicant. He had no knowledge whether the disputed shop has fallen to the share of the applicant and that no notice was ever given by the applicant to the answering opposite party. The applicant is the owner of more than 60 Bighas of land situated at Motiyapathar fetching an income of Rs. 1000/- per month to the applicant. The applicant has other joint landed property in Almora as well as at Mukhani. According to the opposite party, no son of the applicant is unemployed and that the applicant has no bona fide and genuine need for the disputed shop. On the pleadings of the parties, the learned Prescribed Authority framed four issues in the case, heard them and after perusing the evidence led by the parties has held that the applicant has bona fide and genuine need for the disputed shop to engage his sons. On the point of comparative hardship, the learned Prescribed Authority has held that the balance of hardship also tilted in favour of the applicant and in case, the application for release is allowed, the opposite party would not suffer greater hardship than the applicant. Ultimately, by a detailed order, the learned Prescribed Authority has allowed the release application by order dated 16-3- 1985 and at the same time also directed the applicant to pay rent of two years as compensation within a period of one month. Aggrieved by the order dated 16-3-1985, the original tenant-O.P. Lokmani preferred Rent Control Appeal No. 13 of 1985. It appears that during the pendency of the said appeal sole appellant and the sole respondent both had died. Both the parties were substituted by their legal heirs before the appellate Court. The appeal was ultimately heard by the III Additional District Judge, 3 Nainital. The learned appellate Court after hearing both the parties has observed as under:- “As discussed above the genuineness of the need put forward by the respondents in this case as well as in the case against Sardar Singh becomes doubtful due to the fact that the case against Sardar Singh was not sincerely contested and also due to the fact that after having sufficient land in important place of Mukhani, they have not started any business uptil now. The hardship is more to the appellants than the respondents because the only source of livelihood of the appellants is this shop and it is in his possession for the last more than 44 years.” Ultimately, the appeal preferred by the opposite party Lokmani has been allowed and the order dated 16-3-1985 passed by the learned Prescribed Authority was set aside vide judgment and order dated 19-5-1989, which gave rise to the present appeal. On behalf of the respondent no.3, counter affidavit has been filed and it has been stated therein that the petitioners have no need of the shop in question as at present petition no.1 Mohan Singh is leading a retired life after his retirement from service and his two sons are also employed in multi national company at New Delhi and they are getting huge amount as salary and petitioner no. 2 Sri Govind Singh is in regular service in medical department of the State Government. The petitioner no. 3 Raghubir Singh is employed in the Roadway department and petitioner no. 4 Rajendra Singh is running a shop in Rautela Colony at Haldwani. Petitioner No. 5 Indra Bahadur Singh is a government approved contractor and Proprietor of M/s Rautela Construction. It has further been stated that none of the petitioners have any bona fide need for the disputed shop and all of them are employed and settled in their respective places. On behalf of the petitioners, rejoinder affidavit has been filed wherein the affidavit has been duly sworn in by 4 petitioner no. 3 Govind Singh Rautela. In reply to the contents of paragraph nos. 7 and 8, the petitioners have stated as under:- “7. That the contents of para 7 and 8 of the Counter Affidavit are not admitted in the manner stated. The contesting respondent has deliberately and intentionally twisted the facts. It is denied that both the sons of respondent no.1 are employed in multi national companies and residing at Delhi. The sons of the respondent no. 1 are not engaged in any permanent profession and want to settle at Haldwani. The deponent is in an ordinary service in the medical department and the petitioner 3A is also in ordinary service in Uttarakhand Road Transport Corporation. The deponent and the petitioner 3A Raghubir Singh can not be deprived from the use of their property only because they have joined service during the pendency of litigation, which is pending for the last more than 20 years. Similarly the petitioner Rajendra Singh is running a small shop in village Chhoti Mukhani from which he has only nominal income. It is further submitted that the petitioners are ready to let out the said shop to the contesting respondent if he so desires.” In paragraph no. 9 which is in reply to the contents of paragraph no. 10 of the counter affidavit, it has been stated that the need of the petitioners for settling themselves and their sons in business is most urgent and the contesting respondent has sufficient alternative accommodation for his business. It has also been stated that in any case the contesting respondent failed to search any alternative accommodation for the last more than 20 years, which would show the mala fide intention of the respondents. The petitioners have also filed supplementary affidavit stating therein that the petitioner no. 2 Govind Singh Rautela was reinstated as Health Assistant and he has since been retired from service in the month of February 2010 and that the petitioner no.1 has already retired from service and he needs the disputed shop to engage himself in business as well as to settle his sons in business. 5 On behalf of the respondent no. 3, supplementary counter affidavit has been filed wherein the averments made in paragraph no. 3 of the supplementary affidavit filed on behalf of the petitioners have been denied. It has been stated in paragraph no.3 thereof that at the time of filing of release application, the petitioner no. 2 and his brothers were in employment and that the petitioner no. 2 does not want the disputed shop. It has also been stated that the petitioners have constructed shops in Mukhani Haldwani, where Rajendra Singh is doing his business. On behalf of the petitioners, another supplementary affidavit has been filed on 17-8-2011 and along with the same, the petitioners have annexed copy of the release application bearing Rent Case No. 10 of 1984 Laxman Singh Vs. Lokmani. On the other hand, on behalf of the respondent no.3, another supplementary counter affidavit has been filed on 19-9- 2011 and along with the same, the answering respondent has annexed copy of the written statement filed before the Prescribed Authority in that case. I have heard learned counsel for the contesting parties and perused the material placed before the Court. 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. 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 6 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.” 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 has 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 cases in order to keep the subordinate courts and inferior tribunals within the limits of law.” Learned counsel for the petitioners has vehemently contended that the approach of the learned appellate Court in rejecting the release application of the petitioners is not proper and the finding recorded by the learned appellate Court is perverse. The grounds mentioned by the appellate Court to discard the bona 7 fide and genuine need of the landlords are not tenable in the eye of law. I have perused the judgment and order passed by the Prescribed Authority as well as by the learned appellate Court. In the case at hand, the short controversy to resolved by this Court is whether the findings recorded by the appellate Court are perverse. Learned appellate Court appears to have been influenced by the mere fact that the release application, which was filed by the predecessor of the petitioners, namely Laxman Singh against Sardar Singh was not seriously contested by the landlord and since the petitioners have not started any business at Mukhani, where there is sufficient land in possession of the petitioners, the need of the landlords cannot be said to be bona fide, honest and genuine. I do not agree with the findings arrived at by the learned appellate Court on this count for the following reasons. In the case at hand, the landlord has sought release of the disputed shop, which is in possession of the respondents no. 3 to 5. The observation of the learned appellate Court that if the petitioners had bona fide and pressing need for the disputed shop, they would have constructed a shop over their land situated in Mukhani. I am of the considered view that while deciding an application for release of the disputed shop, it was not open for the appellate Court to have drawn an adverse inference because the landlords are having sufficient land at another place and that they ought to have constructed a shop to run their business. The appellate Court has clearly exceeded its jurisdiction in not deciding the release application on its own merits. There is no such finding of the appellate Court that the landlords are unemployed or not and whether they have any bona fide need for the disputed shop to run their business. On the other hand, the learned Prescribed Authority 8 while considering the point of bona fide need of the landlord has also dealt with the contention of the contesting respondent that the release application against Sardar Singh was got dismissed by the landlord with a view to raise the rate of rent. I have pondered over the matter. Even if the release application, which was filed against another tenant, was dismissed in default and the restoration application filed to recall the dismissal order was not sincerely contested, this would lead to the negligence on the part of the landlord. This circumstance in itself is not at all sufficient to hold that the need of the landlords for the disputed shop is not bona fide and pressing. From a bare perusal of the order passed by the Prescribed Authority, it is obvious that the point of bona fide need as well as that of comparative hardship has been dealt with by the Prescribed Authority within the four corners of the settled principle of law and the Prescribed Authority has rightly held that the need of the petitioners is bona fide and pressing. Learned counsel for the contesting respondent no.3 has vehemently argued that the respondent no.3 has a long-standing tenancy over the disputed shop, therefore, it cannot be said that the landlords would suffer greater hardship in case the release application is refused. I do not find any force in the contention of the contesting respondent. In the case of Shamshad Ahmad and others Vs. Tilak Raj Bajaj (Deceased) through L.RS. and others (supra), the Apex Court has held in paragraph 47 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 9 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 be a ground for depriving the landlord for doing business if the requirement of the landlord is bona fide and reasonable.” In the case of Ganga Devi Vs. District Judge, Nainital and others [(2008) 7 Supreme Court Cases, 770], 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 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.” 10 In the case at hand, the learned Prescribed Authority has recorded a categorical finding of fact that the landlord has bona fide need for the disputed shop to settle his sons in business. In my view, the landlord is the best Judge of his choice for the disputed shop. In the case at hand, it has not been established before the appellate Court that some other vacant shop was available to the landlords to run their business. The landlord has undisputedly moved the release application against the predecessor of the contesting respondent no.3 in April, 1984, whereas the release application against Sardar Singh appears to have been dismissed in default as early as 13-1-1983. The release application in that case might have been filed much before 13-1-1983 before the Prescribed Authority. Therefore, when the landlord filed release application against the tenant in the case at hand in April 1984, it was obligatory upon the appellate Court to have examined the need of the landlord as existing on the date of filing of release application. But the learned appellate Court misdirected itself by considering the merits of the earlier release application, which was neither decided on merits nor any such finding had come in that case that the need of the landlord is not bona fide. The learned appellate Court was also not justified in observing that the landlords ought to have constructed a shop to run their business at Mukhani, which is a place outside the limits of municipal area, according to the learned counsel for the petitioners. The appellate Court should have confined itself to the bona fide requirement and comparative hardship in respect of the disputed shop and should not have developed a third case, while considering the provisions of Section 21(1)(a) of the Act. For the reasons and discussion above, I am of the view that the findings recorded by the learned appellate Court are perverse and the same cannot be sustained in the eye of law. The finding on the bona fide need and comparative hardship recorded by the Prescribed Authority are fully based on appraisal of evidence. The impugned judgment and order passed by the learned 11 appellate court deserves to be set aside. The writ petition therefore deserves to be allowed outright. The writ petition is allowed. Costs easy. The impugned order dated 19-5-1989 passed by the appellate Court is set aside. The judgment and order dated 16-3-1985 passed by the learned Prescribed Authority is upheld. However, in order to do complete justice, one year’s time from today is granted to the tenants-respondents no. 3 to 5 to vacate the disputed shop and to deliver its vacant and peaceful possession to the landlords- petitioners, provided the tenants-respondents no 3 to 5 furnish a written undertaking to that effect before the Prescribed Authority within a period of eight weeks from today. The respondents shall be entitled to two years’ rent, as directed by the Prescribed Authority. The rent for the said period of one year shall be adjusted towards payment of compensation to the tenant-respondents. In case the respondent nos. 3 to 5 fail to furnish the undertaking as directed above, the petitioners would be at liberty to get the disputed shop vacated in accordance with law. (B.S.Verma, J.) RCP