Ashok
Kumar & Ors Vs. Sita Ram [2001] Insc 236 (19 April 2001)
D.P.
Mohapatra & Shivaraj V. Patil D.P.Mohapatra, J.
Leave
granted.
L...I...T.......T.......T.......T.......T.......T.......T..J
The
appellants are the tenants of the shop room No.R 67 (New No. R/50) located in
the Mohalla Rasoolpur, Nawab Ganj, District Barabanki, Uttar Pradesh. Sita Ram
@ Nand Kishore, the respondent is the landlord of the said property. On the
petition filed by the respondent on 28.1.1988 for eviction of the appellants
and release of the premises under section 21(1)(a) of the Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act 13 of 1972)
(hereinafter referred to as the Act ) P.A. No. 2/1988 was registered in the
Court of IInd Additional Chief Judicial Magistrate/Prescribed Authority, Barabanki.
The case of the respondent shortly stated was that he was in bona fide need of
the shop room in question for establishing his son Dilip Kumar in business;
being his father and the Karta of the family it was his duty to provide
necessary facilities to his son to start independent business. The appellants
entered contest, refuted the averments/ allegations made by the respondent in
the eviction petition. They denied that the respondent had any bona fide need
for the shop room in question. According to them the respondent had a number of
other premises, some of which he let out to others shortly before filing the
eviction petition in 1987.
The
prescribed authority on sifting the evidence on record accepted the case of the
respondent that he was in bona fide need of the shop room in question, and
allowed the prayer for release of the premises and ordered eviction of the
appellants therefrom. He also ordered payment of an amount equivalent to two
years rental as compensation for indemnifying the appellants for the
inconvenience faced by them in shifting their business.
Both
the parties preferred appeals against the order of the prescribed Authority;
the appellants challenged the order of eviction passed against them, while the
respondent assailed the order for payment of two years rental to the
appellants.
The
5th Additional District Judge Barabanki in the judgment dated 12.5.1992 in Rent
Control Appeal Nos.1/91 and 2/91 allowed the appeal No.2/91 filed by the
appellant herein and disallowed the appeal No.1/91 filed by the respondent
herein.
Being
aggrieved by the judgment of the Appellate Authority the respondent landlord
filed the petition under Article 226 of the Constitution being W.P. No. 92(R/C)
of 1992 in the Allahabad High Court (Lucknow Bench). A single Judge of the
Court by the judgment dated 8.12.1999 allowed the Writ Petition, and quashed
the judgment/order of the Appellate Authority.
Hence
this appeal by the tenants.
The
main thrust of the arguments of the learned counsel appearing for the
appellants is that it was not open to the High Court to re-open the findings of
fact recorded by the Appellate Authority that the landlord has no bona fide
need for the disputed shop room, in exercise of jurisdiction under Article 226.
The further submission of the learned counsel is that the Appellate Authority
has given cogent reasons for differing from the findings recorded by the
prescribed Authority on the question of bona fide requirement of the landlord, and
therefore, no interference by the High Court with the order of the Authority
was warranted.
Per
contra the learned counsel appearing for the respondent supported the judgment
contending that the High Court, in the facts and circumstances of the case, was
right in setting aside the judgment of the Appellate Authority and restoring
the order of eviction passed by the prescribed Authority.
The
position is too well settled to admit of any controversy that the finding of
fact recorded by the final Court of fact should not ordinarily be interfered
with by the High Court in exercise of writ jurisdiction, unless the Court is
satisfied that the finding is vitiated by manifest error of law or is patently
perverse. The High Court should not interfere with a finding of fact simply
because it feels persuaded to take a different view on the material on record.
In the
present case on perusal of the judgment of the Appellate Authority which runs
to about sixty pages the Authority has discussed in great detail the case pleaded
by both the parties, materials placed by them in support of their case and has
disbelieved the case that the landlord bona fide required the shop in question
for his son Dilip Kumar . The Appellate Authority observed that Dilip Kumar was
married in 1979; the marriage was dissolved by a decree of divorce passed in
July 1987 before filing of the eviction petition; therefore, the cause pleaded
in the eviction petition that Dilip Kumar after his marriage felt the need to
augment his income and for that purpose wanted to start his independent
business, was not acceptable. The Appellate Authority further observed that the
respondent landlord had himself let out his building on rent in 1987 which show
that Dilip Kumars need was not bona fide one; the necessity, if any, had ceased
by the date of the eviction petition i.e. on 28.1.1988. In conclusion, the
Appellate Authority recorded the finding that from the evidence produced it
becomes perfectly evident that the applicant had no need for vacation of the
shop room for use of Dilip Kumar and that it was correctly stated by the
opposite party that this application was filed in order to enhance the rent.
The Appellate Authority further observed:
As
regards the relative hardships and the damages it need no decision here as the
relative hardship is material only in case the necessity of applicant had been bonafide
and as regards the damages, a decision on this point would have required only
when the application filed by the applicant was being granted. On these points
no decision is therefore required. The decision of the lower court in this
regard is set aside.
The
High Court set aside the order of the Appellate Authority. The learned Judge
observed:
Every
father wants to see in his life that his son is settled in life. This aspect of
the matter was not taken into consideration by the appellate authority. The
appellate authority further failed to compare the bonafide need of the opposite
parties 2 to 5 and the petitioner. The detailed judgment of the Prescribed
Authority too has not been scrutinised in accordance with law. The only thing
which prevailed in the mind of the appellate authority was that since the wife
had deserted Dilip Kumar, the son of the petitioner therefore there is no need
to release the shop in question in favour of the petitioner on the ground of
need of his son to settle in life. The appellate authority has also recorded a
finding that there is no question of comparing the hardships of the landlord
with opposite parties 2 to 5 because he had come to the conclusion that there
was no bonafide need of the landlord.
Considering
the question of the power of the Court to interfere with the order of the
Appellate Authority the High Court appears to have taken the view that if the
Appellate Authority has erred on a question of law then the High Court has
jurisdiction to interfere under Article 226 of the Constitution. Taking
exception to the Order of the Appellate Authority the High Court observed :
The
Prescribed Authority had compared the bonafide need of the petitioner as well
as the opposite parties 2 to 5 whereas the appellate authority refused to
consider the need of the petitioner-landlord on the ground that there was no bonafide
need.
xxx xxx
xxx However, it can be said that the order of the Prescribed Authority has been
set aside by the appellate authority without comparing the need and hardships
of the landlord with opposite parties 2 to 5 which was considered by the
Prescribed Authority in details. The finding recorded by the appellate
authority that the need of the petitioner was not bonafide is erroneous.
Section
21 makes provision regarding proceedings for release of building under
occupation of tenant. Sub-section (1)(a) under which the respondent sought the
eviction of the petitioner, along with its proviso reads as follows:
21.Proceedings
for release of building under occupation of tenant (1) The prescribed authority
may, on an application of the landlord in that behalf, order the eviction of a
tenant from the building under tenancy or any specified part thereof if it is
satisfied that any of the following grounds exists namely (a)that the building
is bona fide required either in its existing form or after demolition and new
construction by the landlord for occupation by himself or any member of his
family, or any person for whose benefit it is held by him, either for
residential purposes or for purposes of any profession, trade or calling, or
where the landlord is the trustee of a public charitable trust, for the
objection of the trust;
xxx xxx
xxx xxx Provided also that no application under clause (a) shall be entertained
xxx xxx xxx (ii) in the case of any residential building, for occupation for
business purposes As noted earlier the High Court has faulted the Appellate
Authority for not considering the question of comparative hardship. The
Appellate Authority did not feel the necessity to go into that question since
it had recorded the finding that grant of eviction as pleaded by the landlord
was not acceptable. On a fair reading of the proviso to section 21(1)(a) it is
clear that the legislative mandate is that the prescribed Authority shall take
into account the likely hardship to the tenant from the grant of the
application as against the likely hardship to the landlord from the refusal of
the application. This question can appropriately be considered by the Authority
when he comes to the conclusion that the plea of bonafide requirement taken by
the landlord is found to be acceptable.
It is
at that stage that the Authority should take into account the hardship likely
to be caused to the tenant in allowing the petition for eviction as against the
hardship likely to be caused to the landlord in the event of rejection of the
prayer for eviction of the tenant. In case the Authority comes to the conclusion
that the case of bona fide requirement pleaded by the landlord is not
believable and acceptable the question of allowing the petition for eviction
does not arise and so the necessity of making a comparison between the hardship
in allowing the petition for eviction and disallowing the same does not arise.
This
Court in Hiralal Moolchand Doshi vs. Barot Raman Lal Ranchhoddas (1993) 2 SCC
458 held:
The
High Court was also in error in assuming that the landlord is supposed to have
pleaded his own comparative hardship in the plaint itself. Section 13(2) comes
into play at the stage when the court is satisfied that the ground contained in
clause (g) of sub-section (1) of Section 13 of the Act has been made out. It is
at that stage that the court has to examine the question of comparative
hardship. It was thus not necessary to plead in the plaint itself. Often the
parties at the stage of recording of evidence of bona fide personal requirement
also lead evidence as to the comparative hardship of the landlord or the
tenant. But such averments are not required to be pleaded in the plaint itself
to give cause of action to the landlord to enable him to file a suit for
eviction of the tenant on the ground of his bona fide personal requirement.
The
question that remains to be considered is whether the High Court in exercise of
writ jurisdiction was justified in setting aside the order of the Appellate
Authority. The order passed by the Appellate Authority did not suffer from any
serious illegality, nor can it be said to have taken a view of the matter which
no reasonable person was likely to take. In that view of the matter there was
no justification for the High Court to interfere with the order in exercise of
its writ jurisdiction. In a matter like the present case where orders passed by
the Statutory Authority vested with power to act quasi-judicially is challenged
before the High Court, the role of the Court is supervisory and corrective. In
exercise of such jurisdiction the High Court is not expected to interfere with
the final order passed by the Statutory Authority unless the order suffers from
manifest error and if it is allowed to stand it would amount to perpetuation of
grave injustice. The Court should bear in mind that it is not acting as yet
another Appellate Court in the matter. We are constrained to observe that in
the present case the High Court has failed to keep the salutary principles in
mind while deciding the case.
On
consideration of the entire matter we are satisfied that the High Court erred
in interfering with the judgment/order passed by the Appellate Authority.
Accordingly,
the appeal is allowed, the judgment/order of the High Court dated 8.12.1999 in
Writ Petition No. 92 (R/C) of 1992 is set aside and the order of the Appellate
Authority i.e. Vth Additional District Judge, Barabanki dated 12.5.1992 in Rent
Control Appeal No.1 of 1991 is confirmed. The parties will bear their
respective costs.
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