WPMS/846/2005 of MOHD. SADIQ Vs D.J. and ORS.

HIGH COURT OF UTTARANCHAL AT NAINITAL

(Court’s order whether the case is or not approved for reporting.)

(Chapter VIII Rule 32 (2)(b)

Description of the case.

WPNO. 846/05 (M/S)

Mohammad Sadiq

D.J. Pauri Garhwal and others

Approved for reporting.

__________________

Not approved for reporting

Date of decision 13.06.2006.

Initial of Judge

IN THE HIGH COURT OF UTTARANCHAL AT NAINITALWRIT PETITION NO. 846 (MS) OF 2005

Mohammad Sadiq,

S/o Allahrakkha,

R/o Kaleshwar Road,

Lansdwone, Shopekeeper,

Sadar Bazar, Lansdowne.

……………Petitioner.

Versus

1. The District Judge, Pauri Garhwal.

2. The Prescribed Authority/Civil Judge (Jr. Division),

Lansdowne, Pauri Garhwal.

3. Mohan Kumar, S/o Nanuram, R/o Buchari Line,

Lansdowne.

……………….Respondents.

Dated: 13.06.2005

Hon’ble Rajesh Tandon, J.

Heard Sri Pradeep Lohnai, Advocate for the petitioner

and Standing Counsel for the respondents no. 1 and 2 and Mr. H.M. Bhatia, advocate for the respondent no. 3. H.M. Bhatia, advocate for the respondent no. 3.

By the present writ petition, the petitioner has prayed for

writ of certiorari quashing the order passed by the

respondent no. 2 dated 09.02.2004 releasing the disputed premises (Annexure No. 19 to the writ petition) and also the order dated 11.05.2005 passed by respondent no. 1 rejecting the appeal of the petitioner (Annexure No. 21 to the writ petition). premises (Annexure No. 19 to the writ petition) and also the order dated 11.05.2005 passed by respondent no. 1 rejecting the appeal of the petitioner (Annexure No. 21 to the writ petition).

Briefly stated, an application U/s 21 (1) (a) of the U.P.

Act No. 13 of 1972 was filed by the respondent no. 3 Sri Mohan

Kumar praying for the release of the accommodation known as

premises No. 199/230 Lansdowne, Garhwal. Respondent no. 3

has purchased the premises for his own requirement. On the

first floor of the accommodation, two rooms have been

occupied as tenant by the petitioner.

According to the case of the respondent no. 3, the

premises is required for the requirement of himself, his

mother and two children and both are married.

According to the case of the respondent no. 3, one room

as well as one kitchen on the ground floor were in possession of one Sri Satpal against whom the proceedings were initiated.

notice has been given on 9[th] July, 2001 for vacating the accommodation but the petitioner has failed to vacate the same and as such the present proceedings were initiated for eviction of the petitioner.

At the time of filing of the application, one child and two daughters were there.

written statement was filed by the petitioner, where in the additional pleas, it is stated that the mother of the landlord is serving at Cantt. Lansdowne and he has no need of the accommodation and two brothers, one of whom is in army, both are married and both are working at various office, Lansdowne.

So far as the family of the tenant is concerned, it is stated that they have three children aged about 13, 15 and 18 respectively and there is no other livelihood for landlord.

Mohan Kumar has filed an affidavit, where in paragraph

no. 2, 3 and 4 it has been stated as under:-

**2- fd [kjhn’kqnk Hkou ds iwjc esa dkys’oj efUnj ekxZ if’Pe esa eks0 v;wc dk Hkou o mRrj esa xyh o nf{k.k esa Nkouh ifj"kn dh Hkwfe gS]

fd izkFkhZ ds ifjokj esa mldh ekrk iRuh ,d cPpk

o nks HkkbZ gSa tks fd 'kknh 'kqnk gSa izkFkhZ dk la;qDr ifjokj gS]

4- fd izkFkhZ dh ekrk dks ek= ,d dejk

Nkouh

ifj"kn ls feyk gS] ‘[kjhn’kqnk Hkou ds vykok vU; dksbZ Hkou

izkFkhZ o mlds ifjokj gsrq miyC/k ugha gSA izfroknh }kjk xyr

c;kuh dh x;h gS]**

The mother of the landlord has also filed an affidavit

namely Smt. Jaggo Devii, where in paragraph 4 of the affidavit, it has been stated that there is only one room available in the said house and she has no other accommodation except the aforesaid house.

Similar statement has been made in paragraph no. 11. Paragraphs no. 4, 9 and 11 are quoted below:-

fd esjs dks Nkouh ifj"kn esa ek= ,d dejk feyk

gS [kjhn 'kqnk Hkou ds vykok vU; dksbZ Hkou ySUlMkSu esa

izkFkhZ gsrq miyC/k ugha gSA

fd izkFkhZ ds ikl ek= 10 x 10 fQV dk dejk gS

ftlesa mldk lkeku Hkh iwjk ugha vkrk vk/kk lkeku ckgj gh

jgrk gSA 11-

fd eSa Nkouh ifj"kn esa ukSdjh djrh gWwa o eq>s

foHkkx dh vksj ls ek= ,d dejk feyk gS ftlesa nks iq=

ftleas ,d 'kknh 'kqnk gS ftlesa brus cM+s ifjokj dk xqtkjk

ugha gks ldrk gSA**

One Mr. Bhaskar has also filed an affidavit on behalf of the landlord, where in paragraph 5 and 6 it has been stated as under:-

fd izkFkhZ ds dejs esa mldk lkeku Hkh iwjk ugha

vkrk gS vk/kk lkeku ckgj gh j[kk gqvk gSA [kqn cM+h eqf’dy

ls mlesa jgrs gSaA 6-

fd izkFkhZ dsk [kqn ds fjgk;’k gsrq Hkou dh l[r

vko’;drk gS ;fn Hkou oknh ds gd esa fjyht u fd;k x;k

rks mls viw.kZ {kfr gksxhA**

One Mr. Ramesh Chandra, S/o Sri Gopal Chandra has

also filed an affidavit, wherein paragraphs 4, 5 and 6, it has

been stated as under:-

**4- fd [kjhn 'kqnk Hkou esa izkFkhZ ds ikl ,d dejk o ,d dhpu gS dejk 10 x 10 fQV dk gS tks izkFkhZ mldh iRuh o cPps ds fy, iwjk ugha gSA og mlh dejs esa jgrs gSaA

fd [kjhn 'kqnk Hkou esa izkFkhZ ds ikl ,d dejk o

5- vkrk gS vk/kk lkeku ckgj gh jgrk gSA

fd izkFkhZ ds dejs esa mldk lkeku Hkh iwjk ugha

6- eSa ukSdjh djrh gSa mlds ikl Nkouh ifj"kn dk ,d dejk gSA**

fd izkFkhZ dh ekrk o`) o chekj gS Nkouh ifj"kn

Mohan Kumar has filed another affidavit, paragraph 4 of which shows that Mr. Satpal has vacated the premises of one room of 10 X 10 alonr and there is no accommodation available with the landlord/respondent no.3. Paragraphs No. 5 and 11 of the same affidavit are quoted below:-

**5- iwjh miyC/k ugha gS vk/kk lkeku ckgj gh jgrk gSA

mDr dejs esa izkFkhZ dk lkeku gh yk;d txg

11- fd izkFkhZ dh vko’;drk ln~Hkkoh gS ;fn izfroknh ls Hkou [kkyh u djok;k x;k rks mls viw.kZ {kfr gksxhA tcfd izfroknh vU;= O;oLFkk dj ldrk gSA**

Another affidavit has been filed by Mr. Mohan Kumar showing the requirement of the landlord.

Mohd. Sadiq has also filed an affidavit, who has only deposed about vacating the accommodation by Satpal and it has not been disputed that the petitioner is available with him one room at Cantt. And another room has been vacated by Sri Satpal and there is no other accommodation available with the petitioner.

Similar affidavits were filed by Mr. Jai Narain and

Roshan Lal reiterating the facts that the small accommodation is hardly sufficient for the need of the respondent no. 3.

The Prescribed Authority after taking into consideration

the entire evidence on the record, released the accommodation

in favour the landlord and dismissed the appeal.

Counsel for the petitioner has submitted following points

for consideration:-

(a) firstly the need having been set up by the respondent no.2 on the ground that she has retired is wholly baseless and cannot be taken into account as she is retiring in 2010.

firstly the need having been set up by the

perusal of the application under Section 21 (1) (a) of

the U.P. Act No.13 of 1972 shows that the landlord has filed release application for the requirement of settlement of his two sons, who is married as well the requirement of other family members.

It is settled law that the landlord is the best Judge for personal requirement and also for his family members.

Following the decision of Bega Begum (supra),in the

case ofJoginder Pal vs. Naval Kishore Behal, 2002 SC &

FB, Rent Cases, 388,the Apex Court has held as under:-

5.In Malpe Vishwanath Acharya and Ors. v. State of Maharashtra and Anr. (1998) 2 SCC 1) this Court emphasized the need of social legislations like the Rent Control Act striking balance between rival interests so as to be just to law. “The law ought not to be unjust to one and give disproportionate benefit or protection to another section of the society”. While the shortage of accommodation makes it necessary to protect the tenants to save them from exploitation but at the same time the need to protect tenant is coupled with an obligation to ensure that the tenants are not conferred with benefit disproportionately larger that the one needed. Socially progressive legislation must have

holistic perception and not shortsighted parochial approach. Power to legislate socially progressive legislation is coupled with responsibility to avoid arbitrariness and unreasonability. legislation impregnated with tendency to give undue preference to one section, at the cost of constraints by placing shackles on the other section, not only entails miscarriage of justice but may also in constitutional invalidity.

8. The need for reasonable interpretation of rent control legislations was emphasized by this Court in Bega Begum v. Abdul Ahad Khan 1979 A.I.R. SC page 272. Speaking in the context of reasonable requirement of landlord as ground for eviction, the Court guarded against any artificial extension entailing stretching or straining of language so as to make it impossible or extremely difficult for the landlord to get decree for eviction. The Court warned that such course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. In Kewal Singh v. Lajwanti this Court has observed, while the rent control legislation has given number of facilities to the tenants, it should not be construed so as to destroy the limited relief which it seeks to give to the landlord also. For instance, one of the grounds for eviction which is contained in almost all the Rent Control Acts in the country is the question of landlord’s bona fide personal necessity. The concept of bona fide necessity should be meaningfully construed so as to make the relief granted to the landlord real and practical. Recently in Shiv Sarup Gupta v. Dr Mahesh Chand Gupta8the Courthas held that the concept of bona fide need or genuine requirement needs practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. 9.The rent control Legislations are heavily loaded in favour of the tenants treating them as weaker sections of the society requiring legislative protection against exploitation and unscrupulous devices of greedy landlords. The legislative intent has to be respected by the courts while interpreting the laws. But it is being uncharitable to legislatures if they are attributed with an intention that they lean only in favour of the tenants and while being fair to the tenants, go to the extent of being unfair to the landlords. The legislature is fair to the tenants and to the landlords – both. The courts have to adopt reasonable and balanced approach while interpreting rent control legislations starting with an assumption that an equal treatment has been meted out to both the sections of the society. In spite of the overall balance tilting in favour of the tenants, while interpreting such of the provisions as take care of the interest of the landlord the court should not hesitate in leaning in favour of the landlords. Such provisions are engrafted in rent control legislations to take care of those situations where the landlords too are weak and feeble and feel humble.

30. In providing key to the meaning of any word or expression the context in which it is set has significance. Colour and content emanating from context may permit sense being preferred to mere meaning depending on what is sought to be achieved and what is sought to be prevented by the legislative scheme surrounding the

expression. Requirement of landlord for his own use, is an expression capable for attributing an intention to the legislature that what was intended to be fulfilled is such requirement as would persuade the landlord to have the premises vacated by the tenant, to forego the rental income, and to put the premises to such use as the landlord would deem to be his own use and in the given facts and circumstances of case the Court too would hold it to be so in contradistinction with mere ruse to evict the tenant. The legislature intending to protect the tenant also intends to lift the protection when it is the requirement of landlord to put the accommodation to such use as he intends, away from leasing it out.

31.If we do not meaningly construe the concept of requirement the provision may suffer from the risk of being branded as unreasonable, arbitrary or as placing uncalled for and unreasonable restrictions on the right of the owner to hold and use his property. We cannot place construction on the expression ‘for his own use’ in such way as to deny the landlord right to evict his tenant when he needs the accommodation for his own son to settle himself well in his life. We have to give colour and content to the expression and provide the skin of living thought to the skeleton of the words, which the Legislature has not itself chosen to define. The Indian society, its customs and requirements and the context where the provision is set in the legislation are the guides leading to acceptance of the meaning which we have chosen to assign to the words ‘for his own use’ in Section 13(3)(a)(ii) of the Act.

The appellate Court having confirmed the finding, I do not find any error in the impugned order passed by the courts

below while sitting under Article 226/227 of the Constitution of India.

In the case of Smt Sarla Ahuja Vs. United India

Insurance Co. Ltd. AIR 1999 SC page no. 103, it has

been observed as under:-

“ When landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bonafide . when other conditions of the clause are satisfied and when the landlord shows prima facts case it is open to the Rent Controller to draw presumption that the requirement of the landlord is bonafide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafide of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.”

Counsel for the petitioner has submitted that there is no need to the landlord. Since the release application has been filed stating that the premises is required for himself and the family members and there cannot be any doubt that the release application has been filed for the whole of the family members. Hardship also lies in favour of the landlord, who has grown up family members.

5. Interference under Article 226/227 of theConstitution of India:-

In view of the judgment of Apex Court reported in 2004

ARC (3) 6892, Ranjeet Singh v. Ravi Prakash, the jurisdiction of the High Court under Article 226 is limited to the extent that the finding of fact recorded by the court below cannot be interfered. The two courts below have recorded concurrent findings and High Court cannot act like an

appellate Court under Article 226/227 of the Constitution of India.

In Surya Dev Rai Vs. Ram Chander SCC 2003 Vol-6

675, the Apex Court has held as under:-

“Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When subordinate Court has assumed jurisdiction which it does not have or has failed to exercise jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in 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.

Be it writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirement are satisfied: (i) The error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) grave injustice or gross

failure of justice has occasioned thereby.

patent error is an error which is self- evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one

view, the error cannot be called gross or patent.

The power to issue writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the

above said two jurisdictions is sought to be invoked during the pendency of any suit or correction is yet capable of being corrected at the conclusion of the proceedings is an appeal or revision preferred there against and entertaining petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and or early disposal of the suit of proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that every moment, may become incapable of correction at letter stage and refused to intervene would result in stravesty of justice or where such refusal itself would result in prolonging of the lis.”

The High Court in exercise of certiorari or supervisory

jurisdiction will not convert itself into court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.”

Relying upon the Judgment of Surya Devi Rai Vs.

Ram Chandra 2003 (6) SCC 675, the Apex Court in Ranjeet Singh Vs. Ravi Prakash 2004 (3) SCC 682, has held as under:-

“ As to the exercise of supervisory jurisdiction of the

High Court under Article 227 of the Constitution of India also, it has been held in Surya Devi Rai that he jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like court of appeal.”

In the case of M/s India Pipe Fitting Co. V.

Fakruddin M.A. Baker and another reported in 1978 A.I.R. (S.C) Page 45, the Apex Court has held as under:-

“The limitation of the High Court while exercising

power under Art. 227 of the Constitution is well settled.

Power under Art. 227 is one of judicial superintendence and

cannot be exercised to upset conclusions of facts however,

erroneous those may be. It is well settled and perhaps too late

in the day to refer to the decisions of the Constitution Bench of

this Court in Waryam Singh v. Amarnath 1954 SCR 565

; (AIR 1954 SC 215) where the principles have been clearly

laid down as follows:- (at p. 217 of AIR).

“This power of superintendence conferred by Art. 227is.

As pointed out by Harries C.J., In Dalmia Jain Airways

Ltd. V. Sukumar Mukherjee AIR 1951 Cal 193 (SB) to

be exercised most sparingly and only in appropriate cases in

order to keep to Subordinate Courts within the boundary of

their authority and not for correcting mere erros.”

In Piper v. Harvey [1958] 1 All E.R. Page 454, it

has been held as under:

“I have in mind what this court has said in Coplans v.

King (1) [1947]2 All E.R. 393] to the effect that the decision of

the country court judge, when considering the balance of hardship, is to all intents and purposes final. It is not for the Court of Appeal to interfere when there is evidence on which

the judge can reasonably come to the conclusion which he

did.”

In Whitley v. Whitley 1946 (2) All England Law

Reports Annoted 726, it has been held as under:-

“In the present case the judge decided in favour of the

land, and I can see no ground for saying that he did not

arrive at his conclusion on the issue raised under para (h) on

ample evidence. If there was any evidence to support his

decision we cannot interfere with it. It is most important in

these cases that this court should not interfere with findings

of fact where there is evidence to support them.”

Counsel for the petitioner has submitted that some time

may be allowed to vacate the premises.

Taking into consideration the aforesaid

prayer,

petitioner is granted time to vacate the premises by 31[st] of

may, 2007 provided:-

(a) he gives the undertaking by 30[th] August, 2006.

(b) the petitioner pays the entire rent and damages due up to date by 30[th] of August, 2006. due up to date by 30[th] of August, 2006.

(c) the petitioner pays regularly the damages by 1[st]week of every month. week of every month.

(d) In case of failure of aforesaid conditions, the

respondent/landlord shall be at liberty to execute the decree forthwith. the decree forthwith.

Consequently, writ petition is dismissed. No order as to costs.

13.06.2006 Rathour

(Rajesh Tandon, J.)

HIGH COURT OF UTTARANCHAL AT NAINITAL

TIME EXTENSION APPLICATION NO. 11939 OF 2006

WRIT PETITION NO. 846 (MS) OF 2005

Mohammad Sadiq, S/o Allahrakha, R/o Kaleshwar Road, Lansdowne, Shopkeeper, Sadar Bazar, Lansdowne. …………Petitioner.

Versus

1. The District Judge Pauri Garhwal.

2. The Prescribed Authority/Civil Judge (J.D.) Lansdowne, Pauri, Garhwal. Pauri, Garhwal.

3. Mohan Kumar, S/o Nanuram, R/o Buchari Line, Lansdowne. ………….Respondents. Lansdowne. ………….Respondents.

Dated: 22.09.2006

Hon’ble Rajesh Tandon, J.

Heard Sri Pradeep Lohani, Advocate for the petitioner/applicant, Standing Counsel for the respondents no. 1 and 2 and Sri Hari Mohan Bhatia, Advocate for the respondent no.3.

2. On 13[th] June, 2006, the order, the order was passed granting time to the petitioner to vacate the premises by 31[st]May, 2007 provided, he gives undertaking by 30[th] August, 2006.

3. Present application has been filed for extension of time of furnishing the undertaking, for depositing the arrears of rent as well as extension of time for vacating the premises in question.

4. In paragraph 3, the petitioner has made following averments: averments:

“3. That it is very important to mention here that the petitioner applied for the certified copy of the order dated 13.6.06 on the next day but he get the certified copy of the aforesaid order on 18-9-06 after extreme delay of 3 month. When the petitioner/applicant received the order on 18- 9-06 only then he came to know that this Hon’ble Court prior to grant time for vacating the disputed premises has directed the petitioner/applicant to give undertaking by 31 Aug. 2006 in respect of vacating the premises.”here that the petitioner applied for the certified copy of the order dated 13.6.06 on the next day but he get the certified copy of the aforesaid order on 18-9-06 after extreme delay of 3 month. When the petitioner/applicant received the order on 18- 9-06 only then he came to know that this Hon’ble Court prior to grant time for vacating the disputed premises has directed the petitioner/applicant to give undertaking by 31 Aug. 2006 in respect of vacating the premises.”

5. In the prayer the petitioner has prayed as under:

“It is therefore expedient and necessary in the interest of justice that this Hon’ble Court may graciously be pleased to extend the time for giving undertaking in regard of vacating the disputed premises otherwise the applicant/petitioner will suffer irreparable loss and injury.” interest of justice that this Hon’ble Court may graciously be pleased to extend the time for giving undertaking in regard of vacating the disputed premises otherwise the applicant/petitioner will suffer irreparable loss and injury.”

6. As such the application is allowed. The order dated 13[th] June, 2006 is substituted as under: 13[th] June, 2006 is substituted as under:

(a) petitioner is permitted to give undertaking by 15[th]October, 2006. October, 2006.

(b) Petitioner shall pay the entire rent/damages due up to date at the admitted rate of rent by 15[th] October, 2006. (c) Further payment of rent/damages shall be paid by the IInd week of every month. to date at the admitted rate of rent by 15[th] October, 2006. (c) Further payment of rent/damages shall be paid by the IInd week of every month.

(Rajesh Tandon, J.)

22.09.2006 Rathour