WPMS/890/2002 of ARUN KUMAR Vs SMT. RAMWATI DEVI and ORS.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 890 of 2002 (M/S)

Arun Kumar ……. Petitioner

versus

Smt. Ramwati Devi and others …….

Respondents

Mr. Sudhir Kumar, Advocate for the writ petitioner. Mr. Lok Pal Singh, Advocate with Mr. Tapan Singh, Advocate for the respondents.

with

Writ Petition No. 858 of 2003 (M/S)

Ajay Kumar ……. Petitioner

versus Smt. Attaro Devi and others ……. Respondents

Mr. Sudhir Kumar, Advocate for the writ petitioner. Mr. Lok Pal Singh, Advocate with Mr. Tapan Singh, Advocate for the respondents. Mr. I.P. Kohli, Standing Counsel for the respondent State.

U.C. Dhyani, J.

Since the aforesaid two writ petitions involve similar questions of law for determination, therefore, they are being decided together by this common judgment and order for the sake of brevity and convenience.

2) The petitioners in both these petitions are landlords. They filed applications for release of the shops in question on the ground of their requirements under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as Act 13 of 1972) before the Prescribed

Authority, Haldwani, District Nainital. It was stated in the applications that the respective petitioners have purchased the respective shops in question from their owners by means of registered sale deeds. They do not have any other place for doing their business and, therefore, the shops in question be released in their favour. The predecessors of the respective respondents were tenants of the respective shops in question. The application for release was opposed by the tenants-respondents alleging that the petitioners have sufficient accommodation at their disposal and the petitioners have no need for the shops in question. The learned Prescribed Authority in the case of Arun Kumar upheld the need of the petitioner landlord but dismissed the application holding that several accommodations are available to the petitioner and, therefore, his need cannot be said to be bonafide and also that comparative hardship is not in favour of the petitioner-landlord. Learned Prescribed Authority in the case of Ajay Kumar upheld the bonafide need of the petitioner landlord and allowed the release application of the landlord-petitioner.

3) Aggrieved against the decision of the Prescribed Authority, in the case of Arun Kumar, the landlord-petitioner as well as the tenants-respondents filed appeals before the District Judge, Nainital. Learned Addl. District Judge / F.T.C. Haldwani dismissed the appeal filed by the landlord-petitioner and allowed the appeal filed by the tenants-respondents holding that the

landlord-petitioner has no need for the shop in question. Aggrieved against the decision of the Prescribed Authority, in the case of Ajay Kumar, the tenants-respondents filed appeal before the District Judge, Nainital. Learned Addl. District Judge, Nainital allowed the appeal filed by the tenants-respondents holding that the landlord-petitioner has no need for the shop in question. Aforesaid writ petitions have been filed by the landlord-petitioner for quashing the orders passed by the Addl. District Judge and the Prescribed Authority.

4) It is submitted on behalf of the landlord-petitioners that they are not in possession of any property belonging to them. The alleged shops in occupation of the petitioners do not belong to the petitioners but are owned by their father Sri Manni Lal. There is no document on record to show that the petitioners are owners of any of the shops referred to in the written statement. The Prescribed Authority as well as the Appellate Authority has passed the impugned orders without any evidence on record to show that the petitioners are the owners of alleged shops. Since the shops are owned by Sri Manni Lal, the nature of occupation of the petitioners of the alleged shops shall be that of licensees and such occupation cannot be considered while considering the accommodation available with the petitioners. Hon’ble Supreme Court in the decision of Phiroze Bamanji Desai vs Candrakant M. Patel, reported in AIR 1974 SC 1059 and Meenal Eknath

Kshirsagar vs Traders Agencies, reported in (1996) 5 SCC 344 has held that the accommodation available with the landlord as licensee can not be considered and the tenant has no right to dictate the landlord as to how and where should he live?

5) Learned counsel for the respondents, on the other hand, submitted that learned Prescribed Authority did not consider the grounds raised by the tenant and allowed the release application. Learned Appellate Authority, after considering the pleadings and evidence of the parties, has recorded categorical findings on facts of law that the need of the landlord is not bona fide and also recorded the finding to the effect that the landlord is having alternate accommodation where he is running his business smoothly and consequently allowed the appeal. It is further contended by learned counsel for the respondents that the petitioners have failed to show any perversity, illegality and jurisdictional error in the order passed by learned Appellate Authority. Since the petitioners have failed to show any perversity and miscarriage of justice occasioned to them, the writ petitions are liable to be dismissed. The petitioners have failed to show that the above noted cases are exceptional cases where, under Article 227 of Constitution of India, orders of the courts below can be examined. Such power is not to be exercised to correct mistake of fact or law. Power under Article 227 of the Constitution of India has to be exercised only in very exceptional cases where

manifest miscarriage of justice has been occasioned as has been held by Hon’ble Apex Court in Radhey Shyam vs Chavi Nath 2009 (5) SCC 616; Ranjit vs Ravi Kumar (2004) 3 SCC 682 and Sunil Kumar vs Anil Kumar (2008) 9 SCC 241. It is also the submission of learned counsel for the respondents that the need of the landlords is not bona fide, they have not come to the Court with clean hands, as the landlords are having other properties where they are running their business and have concealed the material facts. They have admitted the fact that they are having other properties. Both the courts below have recorded the concurrent findings of fact that the need of the landlords is not . bona fide

6) Much emphasis is laid on the fact that the alleged shops in occupation of the petitioners did not belong to them, but are owned by their father Manni Lal and there is no document on record to show that the petitioners are owners of any of the shops referred to in the written statement. Since the shops are owned by Manni Lal, the nature of occupation of the petitioners of the alleged shops shall be that of licensee and such occupation cannot be considered while considering the accommodation available with the petitioners.

7) The decision of M/s Lalita Printers Stores vs IVth Addl. District Judge, Kanpur and others, reported inAllahabad Rent Cases 1981 pg. 649, provides the answer as follows:

“As already pointed out above, the main ground on which the application for release had been made by respondent no. 3 was that her sons had completed their education and were to be set up in business. It was not her case that even though her sons were carrying on some business or were in employment, their income was not sufficient and the accommodation in question was needed for carrying on additional business to augment their income. However, in view of the facts stated by the petitioner in his written statement that all the three sons of respondent no. 3 were carrying on business as partners with their father in the name of Budhsen Sweet House, and that the eldest son of respondent no. 3, viz., Rajesh Kumar, was also working with his father in his business carried on in the name of Universal Corporation as well as the facts stated in the application filed by respondent no. 3 and the discussion in the impugned orders it is apparent that the case was really fought out on the ground that even though the sons of respondent no. 3 were not completely unemployed as was asserted in the release application and were carrying on business in partnership in the name of Budhsen Sweet House and one of them was also working with his father in the business carried on by him in the name of Universal Corporation, the income which they were receiving was not sufficient and that they still needed the accommodation in question for carrying on the business specified in the release application. When the case was being decided on this basis the question as to that what was the income which each of the sons of respondent no. 3 was having and what the extent of

their participation and occupation in the existing business assumed significance. Reference in this behalf may usefully be made to decision of this Court in Ved Prakash Agarwal v. IIIrd Addl. District Judge, Bulandshahr and others, 1981 Allahabad Rent Cases 30.”

8) It will also be worthwhile to reproduce paragraphs no. 21 and 22 of the decision rendered by Hon’ble Allahabad High Court in Saadat Ali vs Ist Addl. District Judge, Farrukhabad and others, reported inAllahabad Rent Cases 1984 (2) 615 here-in-below:

“The contention of the learned counsel is that admittedly Uma Shanker Gupta has Sarrafa and wholesale business in cloth and the Appellate Authority while deciding the matter should have taken into consideration the fact that the landlord’s need would be largely met from his other business and should have considered whether it was essential to set up his son Ajai Kumar in an independent business or not. It is argued that the mere statement of the landlord that Ajai Kumar could not be taken into his business because he had bad relations with the other members of the family was not sufficient reason for ousting the tenant from the shop in question in which he had been tenant for over 35 years.

The criteria laid down under Rule 16(2)(c) of the Rules framed under the Act was not considered by the Appellate Authority while deciding the appeal preferred by Syed Saadat Ali. What the appellate authority did was that it only considered the question as

to whether the landlord required the shop to set up his son Ajai Kumar in an independent cloth business in the shop in question. Having come to the conclusion that the landlord’s need was genuine, it has took no further fact into account. The criteria prescribed under Rule 16(2)(c) had also to be considered before deciding the question as to whether the application under Section 21(1)(a) should be allowed or not.”

9) It is held in Meenal Eknath Kshirsagar (Mrs.) vs Traders & Agencies and another, (1996) 5 Supreme Court Cases 344 that it is for the landlord to decide how and in what manner he should live and he is the best judge of his residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as tenant or on any other basis is either insecure or inconvenient it is not for the courts to dictate to him to continue to occupy such premises.

10) There is yet another aspect of the matter. Burden to prove that the concurrent findings were manifestly unjust is on the landlord-writ petitioners and they are required to show the perversity in the judgments of the Prescribed Authority and Appellate Authority. It has been held by the Hon’ble Apex Court in Phiroze Bamanji Desai vs Chandrakant M. Patel and others, AIR 1974 Supreme Court 1059 that the High Court cannot re-assess the value of the evidence and interfere with finding of fact merely because it thinks that the

appreciation of the evidence by the lower court is wrong and the court should have reached different conclusion of fact from what it did.

11) In Hindustan Petroleum Corporation Limited vs Dilbahar Singh, (2014) 9 Supreme Court Cases 78, in paragraphs no. 10 and 11 of the decision, the Hon’ble Supreme Court has observed that in this reference, what has to be determined is the extent, scope, ambit and meaning of the terms ‘legality or propriety’, ‘regularity, correctness, legality or propriety’ and ‘legality, regularity or propriety’. Obviously, this will determine the extent of the revisional jurisdiction of the High Court under the respective rent control statutes and will also include the consideration of the question whether the High Court in exercise of its revisional jurisdiction can re-appreciate the evidence in order to find out the correctness, legality or propriety of the impugned order or decision.

The extent, scope, ambit and meaning of the terms ‘legality or propriety’; ‘regularity, correctness, legality or propriety’; and ‘legality, regularity or propriety’ which are used in the Rent Control Acts under consideration need determination. The ordinary meaning of the word ‘legality’ is lawfulness. It refers to strict adherence to law, prescription, or doctrine; the quality of being legal. The terms ‘propriety’ means fitness; appropriateness, aptitude; suitability; appropriateness to the circumstances or condition conformity with requirement; rules or principle, rightness, correctness, justness, accuracy. The

terms ‘correctness’ and ‘propriety’ ordinarily convey the same meaning, that is something which is legal and proper. In its ordinary meaning and substance, “correctness” is compounded of ‘legality’ and ‘propriety’ and that which is legal and proper is ‘correct’. The expression ‘regularity’ with reference to an order ordinarily relates to the procedure being followed in accord with the principles of natural justice and fair play.

12) What is the meaning of the word ‘perverse’? It has been observed by Hon’ble Supreme Court in Gaya Din vs Hanuman Prasad, (2001) 1 SCC 501 that the findings are perverse when they are not supported by the evidence brought on record or they are against the law or where they suffer from the vice of procedural irregularity. Again, Hon’ble Apex Court in Kilasho Devi Burman vs C.I.T., (1996) 7 SCC 613 has held that conclusion is perverse only if it is such that no person, duly instructed could, upon the record before him, have reasonably come to it. According to Hon’ble Calcutta High Court in Parrys (Cal) Employees’ Union vs M/s Parry and Co., AIR 1966 Cal 31, ‘perverse finding’ means finding which is not only against the weight of the evidence but is all together against the evidence itself. According to Hon’ble Karnataka High Court in M/s Narayanagowde vs Smt. Girijamma and another, AIR 1977 KAR 58, all order made in conscious violation of pleading and law is perverse order.

13) The expression ‘bona fideneed’, or ‘requirement’ has to be meaningfully construed so as to make the relief granted to the landlord real and practical. Mattulal vs Radhe Lal, AIR 1974 S.C. 1596; Ram Dass vs Ishwar Chander, AIR 1988 S.C. 1422 and Bega Begum vs Abdul Ahad Khan, AIR 1979 S.C. 272, are some illustrations on the point. In Bega Begum’s case (supra) it was reiterated that reasonable requirement undoubtedly postulates that there must be an element of need asopposed to mere desire or wish and that the distinctionbetween the two must be kept in mind but it has given acaution that the expression should not be considered in amanner so as to make even genuine need as nothing buta desire. The connotation of the term ‘need’ or word ‘ requirement’ should not be artificially extended nor itslanguage so unduly stretched or strained as to make itimpossible or extremely difficult for the landlord to get adecree for eviction. Such course would defeat the very purpose of the Act, which affords facility of eviction of the tenant to the landlord on certain specified grounds as mentioned in J&K Houses and Shops Rent Control Act, 1966.14) In Mattulal’s case it was reiterated that mere assertion by the landlord of his bona fide requirement is not enough. The Court must determine the truth of the assertion by applying an objective test. It was again asserted in Munni Lal vs Prescribed Authority, AIR 1978 S.C. 29, by the Apex Court that the test which has to be

applied is the objective test and not subjective test. In Ram Dass’s case (supra) this aspect of the concept of bona fide need has further been clarified. It has been observed therein that the “bona fide need of the landlordshould be genuine and honest, conceived in good faith;and the Court must also consider it reasonable to gratifythe need. Landlord’s desire for possession, however honest it might otherwise be, has inevitably subjectiveelement in it and that desire, to become ‘requirement’ in‘need’. It must law must have the objective element of also be such that the Court considers it reasonable and, therefore, eligible to be gratified. In doing so, the Court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is notrendered merely illusory or whittled down. Court can take cautious cognizance of the subsequent events in order to mould the relief.”

15) It is submitted that the writ petitioners were not dependent on their father, rather both of them were running their business of partnership firm. Thus, they cannot be treated as unemployed and, therefore, there was no occasion for them to setup the alleged need of the shops. It is submitted that the property in question was under the tenancy of respondents even prior to it’s purchase by the father of the petitioners in the name of the petitioners, when they were minor. The intention to purchase the property, which was under tenancy was mala fide from the very beginning and it was purchased

for petty amount in the name of the minors. Thus, the need of the petitioners cannot be said to be bona fide for two reasons, viz., the property in possession of tenants was purchased in the name of minors and thereafter on attending the majority the release application was filed. The property left by the father of the petitioners is also with the petitioners. Hence, there is no bona fide need of the petitioners for the property in question.

Now the petitioners are invoking the writ jurisdiction under Article 227 of the Constitution of India, which in fact, is revisional jurisdiction. Since the petitioners failed to show any perversity and jurisdictional error or illegality or miscarriage of justice thus the writ petitions are devoid of merit and are liable to be dismissed in view of the dictum of Constitution Bench of Hon’ble Supreme Court in the case of Hindustan Petroleum Corporation Ltd. V. Dilbahara Singh, 2014 (9) SCC, 78.

It is also submitted that the petitioners have totally failed to show any perversity, illegality and jurisdictional error in the order passed by the learned appellate authority. Since the petitioners have failed to show any perversity and miscarriage of justice occasioned to him the writ petitions are liable to be dismiss with cost.

16)In support of their respective cases, the parties led evidence by filing affidavits. From the perusal of papers available on record of the writ petition filed by

Arun Kumar, it appears that the petitioner Arun Kumar has filed his own affidavit and the respondents have filed affidavits of Sanjay Kumar, Ramwati, Satish Kumar and Surendra Kumar, all of whom are respondents-tenants of the premises in dispute. The petitioner, in his affidavit has specifically supported his claim as mentioned in the application and has denied the allegations made in the reply of the respondents. He has denied that he is in possession of any premises where he could start his business. He has also asserted that no space is available to him to start his own business. To the contrary, the respondents, in their affidavits, have stated that the petitioner is already engaged in business with his brother and has no requirement at all. Apart from this, the family of the petitioner owns several other properties where he could start his business. The petitioner has denied this fact that no premises are available which he could occupy as his own premises. Merely because the petitioner is engaged in partnership business with his other brother, it cannot be said that the petitioner cannot start his own business separately from his other brothers.

Similarly from the perusal of papers available

on record of the writ petition filed by Ajay Kumar, it appears that the petitioner Ajay Kumar has filed his own affidavit and the affidavits of Sri Chandra Kishore and Ashok Rajpal. The respondents have filed affidavits of Ram Lal, the original defendant-tenant, Attaro Devi, Sanjay Kumar, Bharat Bushan, Dinesh Singh Kaida and Navin Kumar. The petitioner and his witnesses, in their

affidavits have specifically supported the claim of the petitioner as mentioned in the application and have denied the allegations made in the reply of the respondents. They have denied that the petitioner is in possession of any premises where he could start his business. They have also asserted that no premises are available to the petitioner to start his own business. On the contrary, the respondents and their witnesses, in their affidavits, have stated that the petitioner is already engaged in business with his father or is doing his business in the shop of his father in the godown situated in the house of the father of the petitioner at Karkhana Bazar and has no requirement at all. Apart from this, the family of the petitioner owns several other properties where he could start his business. The petitioner has denied this fact that no premises are available which he could occupy as his own premises. Merely because the petitioner is engaged in partnership business with his other brother, it cannot be said that the petitioner cannot start his own business separately from his other brothers.

The learned Prescribed Authority in the case of Arun Kumar upheld the need of the petitioner- landlord, but dismissed the application holding that several accommodations are available to the petitioner and therefore his need cannot be said to be bona fide and also that comparative hardship is not in favour the petitioner-landlord. Learned Prescribed Authority in the case of Ajay Kumar upheld the bona fide need of the landlord-

petitioner and allowed the release application of the landlord-petitioner.

17) When Arun Kumar (landlord) moved an application for release, for the first time, in para 3 of the said application, he stated that the landlord-applicant has completed his education and is an unemployed person, after completing his education in 1986. Thereafter, Arun Kumar (landlord) moved an application for amendment and stated that, after completing his education, he alongwith Smt. Kamlesh (wife of his brother Anup Kumar) and another brother Ajay Kumar have started doing business in the name and style of ‘M/s Anup Brothers’. It was also stated in the amendment applicant that there was no proper place to run this business, there was not enough income and the relations between the three partners were not smooth and, therefore, he withdrew from this business since 31.03.1993. It was stated that he is completely unemployed since then. In this way, it was projected earlier that he was unemployed since 1986, but by virtue of amendment in the pleadings, it was projected that he was unemployed since 31.03.1993.

18) In para 2 of the release application, the landlord stated that he purchased the shop from one Kaushalya Devi on 04.12.1982. When written statement was filed on behalf of respondents no. 1, 2 and 4 on 06.10.1989, it was averred that the plaintiff-landlord was

doing business in the name and style of ‘M/s Anup Brothers’ at Karkhana Bazar, Haldwani and he was not an unemployed person. It was also stated that he was an income-tax payee. In the written statement, in para 3, it was clarified that had the landlord been unemployed, how could he had purchased the shop by paying such huge sum? The landlord, thereafter, gave the details of his family property and opposed the move of the defendant-tenant. On 12.07.1989, the respondent-tenant moved an application before the Prescribed Authority, asking for the details of the property, whereby the shop was purchased. The matter remained pending since 1989 to 1995 and, thereafter, the landlord filed his affidavit only on 04.04.1994 / 19.01.1995 alongwith the affidavits of Jugal Kishor and Gurbachan Singh. Thereafter, other affidavits were filed by the applicant-landlord on 15.02.1995 and 06.09.1995. It was admitted in the affidavit [para 18 of the affidavit (paper no. 58-C)] that the applicant-landlord was business partner of his brother Ajay Kumar (another petitioner-landlord) and Anup Kumar’s wife, but owing to the space crunch, he withdrew himself from the partnership business and is totally unemployed since then. The documents brought on record reveal that the business of partnership firm known as ‘M/s Anup Brothers’ was registered in the sales-tax department on 01.06.1987. The firm ‘Manni Lal and Sons’, G.B. Pant Market, Haldwani was also registered in the sales-tax department since 26.06.1970. The telephone numbers of firm ‘Manni Lal and Sons’ and ‘M/s Anup Brothers’ were also given. Both the firms were inexistence before filing of application by the landlords for release. The fact of running the business in the partnership firm was conspicuous by it’s absence in the release application. Whenever any landlord moves any application for release on the ground of his bonafide need, he is supposed to disclose the correct particulars, but in the instant case, the landlords did not do so, till such time the written statements were filed on behalf of the respondents-tenants and only, thereafter, late attempt was made on behalf of the landlords for amending their applications. Affidavits (papers no. 58-C, 60-C and 61-C) were unnecessarily kept pending for six months (for filing before the Prescribed Authority). In the affidavits (papers no. 63-C and 72-C), which were filed on 15.02.1995, it was stated in para 4, that the landlord was partner in the firm known as ‘M/s Anup Brothers’, but no date was given as to when the landlord left his partnership in the firm. On 06.10.1989, when the written statements were filed by the respondents disclosing the fact that the applicants-landlords were income-tax payee and were rich persons, but no reply was given by the applicants-landlords to the foresaid facts of the written statements of the respondents-tenants. In other words, it was not controverted that the applicants-landlords were not income-tax payees. An affidavit was filed by one Sanjay Kumar on behalf of the respondents disclosing that the applicant-landlord is partner in the partnership firm known as ‘M/s Anup Brothers’, theirs was joint Hindu family and no partition took place between them. The applicant-landlord made an attempt to clarify the things only by way of making amendment, but it was too late. Of

late, in 1998, the applicant-landlord denied, by way of an affidavit, that he was an income-tax payee and that he was partner in the firm known as ‘M/s Anup Brothers’. The respondents-tenants already disclosed this fact in their written statements, which was filed on 06.10.1989, which was denied only on 23.07.1998, by way of an affidavit. When the defendants filed their written statements, they filed the documents pertaining to the firms Manni Lal and Sons and M/s Anup Brothers, but the said fact was not controverted on behalf of the applicants-landlords.

19) It is, no doubt, true that the court cannot dictate the requirements of any landlord, but the fact remains that the landlord must come to the Court with clean hands and must express their bonafide need, which is lacking in the instant case. Otherwise also, comparative hardship was also in favour of the respondents-tenants.

20) The Prescribed Authority, therefore, committed no mistake in rejecting the application of the landlord Arun Kumar and the Appellate Authority also did not commit any mistake in dismissing the rent control appeal, arising from the said judgment.

21) On the basis of the same facts, the Appellate Authority committed no mistake in allowing the rent control appeal of the tenant and setting aside the judgment dated 01.06.2000, passed by learned Prescribed Authority, whereby the tenant was directed to handover the vacant possession of the shop to the landlord Ajay Kumar.

Consequently, landlord’s application for release is dismissed.

22) In view of the aforesaid discussion, this Court is of the view, that both the writ petitions are liable to be dismissed. The order impugned passed by the learned Appellate Authority needs no interference by this Court. Accordingly, both the writ petitions are dismissed. No order as to costs.

(U.C. Dhyani, J.)

Dt. September 01, 2015. Negi