WPMS/411/2020 of JANKI PANDEY Vs GIRIJA SHANKER MUNGALI

HIGH COURT OF UTTARAKHAND AT NAINITALWrit Petition No. 411 of 2020 (M/S)

Janki Pandey

……. Tenant/Petitioner.

Versus

Lt. Col Girjia Shankar Mungali & others …… Landlord/Respondents.

Present :

Mr. Sudhir Kumar Advocate for the petitioners. None for the respondents.

Dated: 11thMarch, 2020

JUDGMENT

Hon’ble Sharad Kumar Sharma, J.

Primarily, the Writ Petition arises out of the proceedings, which was held before the Court below, under Section 21 (1) (a) of Act No. 13 of 1972, which was initiated by the respondent / landlord by way of PA Case No. 4 of 2009 Lt. Colonel Girijashankar Mungali and others Vs. Janki Pandey. On initiation of the aforesaid proceedings of release in 2009, before the Court of Prescribed Authority at Nainital, the same was contested on merits by the parties to the proceedings and was ultimately decided by the judgement dated 31[st] May, 2013 and, as consequence thereto, the release of the residential accommodation, as sought for, by the respondent/landlord was allowed and, consequently, the direction was issued to the opposite party therein, to the proceedings before the Prescribed Authority, i.e. the petitioner/tenant, herein, to vacate the tenement, in question, within the time period as specified in the judgement of the Prescribed Authority dated 31[st] May, 2013.

2. The said judgement of the Prescribed Authority was put to challenge by the petitioner/tenant before the Court of Additional District Judge, 2[nd], Nainital, by way of Rent Control Appeal No. 15 of 2013, Janki Pandey Vs. Lt Colonel Girijashankar Mungali and others preferred under section 22 of the Act no. 13 of 1972. The said Rent Control Appeal No 15 of 2013, was also dismissed by the appellate

court wide its impugned judgement dated 08.11.19; thereby affirming the release of the tenement. It is these two judgements rendered by both the Courts below concurrently in the proceedings of release of the residential accommodation under Section 21(1)(a) of Act No. 13 of 1972, for the bona fide requirement of the landlord/respondent, herein, and that when it was concurrently allowed by both the Courts below, the present Writ Petition has been preferred by the petitioner giving challenge to the two judgements before this Court.

3. The Writ Petition was filed by the tenant /petitioner before the Registry on 17[th] February, 2020. When the matter was taken up for argument at admission stage on 18[th] February, 2020, an adjournment was sought by the learned counsel for the petitioner and the writ petition was directed to be posted on 19[th] February, 2020 for hearing on admission. On the proceedings held further on 19[th]February, 2020, after hearing the counsel for the petitioner at length, since both the Courts below have concurrently considered the aspect of the bona fide requirement of the landlord for release of the tenement i.e the residential accommodation, wherein, the applicant No I and II, who were the retired ex-army personnel wanted the release of the disputed tenement to accommodate their family, and since the same was concurrently allowed by both the Courts below, and as such, after prolonged hearing, the counsel for the petitioner had, consequently confined his prayer, limited to the extent that he may be permitted to vacate the tenement, in question, within the period of three years from the date of the order i.e dated 19[th]February, 2020. But, since at the time when the writ petition was argued on 19[th] February, 2020, at admission stage, and the petitioner had prayed for time to vacate the premises, it could not have been granted unilaterally without hearing the landlord/respondents, hence, pre-cautionarily the Court directed the petitioner to serve the respondent/landlord ‘dasti’ and fixed 26[th] February, 2020, for their appearance in order to solicit their opinion with regard to the time sought for by the petitioner to vacate the premises. The appearance ofthe landlord/respondent was sought for the limited purpose, to fix the time for the petitioner to vacate the premises.

4. The petitioner took steps on 22[nd] February, 2020 and ‘dasti’ notices were supplied to the petitioner by the Registry of this court to be served on the respondent/landlord, but, as per the office report dated 24[th] February, 2020, it shows that the ‘dasti’ notices, which was thus directed thereto by the order dated 19[th] February, 2020, was not served and there was no proof to the effect, nor the affidavit of service was filed by the petitioner to show that the service of notice ‘dasti’ was actually effected upon the respondent/landlord, as would be apparent from the report of Registry dated 24,February 2020.

5. The matter was taken up again on 25[th] February, 2020, yet again, the petitioner was directed to take fresh steps for serving dasti on the respondents/landlord, to ensure their appearance for the purposes of expressing their opinion with regard to the time sought for by the petitioner/tenant to vacate the premises. It was yet again that the petitioner has taken steps for serving dasti on 28[th] February, 2020, it was reported by the Registry; thereafter also that no affidavit of service has been filed by the petitioner to establish that the notices thus issued on 25.02.2020, had been actually served upon the respondent/ landlord. Consequently, the matter was directed to be posted on 2[nd] March, 2020.

6. When the Writ Petition was taken up on 2[nd] March, 2020, an adjournment was sought by the counsel for the petitioner and, thereafter the grant of the said adjournment, the matter was directed to be posted for hearing on admission; on 4[th] March, 2020. Since on two earlier occasions, dasti notice which was directed to the petitioner/tenant, to be served upon the respondents/landlord, since no affidavit of service was filed by him even this time, consequently, when the proceeding was held on 4[th] March, 2020, the petitioner was

directed to address the Writ Petition itself on its own merit for admission as fresh on 11[th] March, 2020. Consequently, the Writ Petition was heard on 11[th] March, 2020.

7. Brief facts, which engages for consideration in the present Writ Petition, is that release application under Section 21 (1) (a) of the Act No. 13 of 1972, was filed by the respondent/ landlord for vacating and release of the premises, which has been precisely described therein, as to be the residential accommodation, which was occupied by the tenant/petitioner, which was , consisting of two rooms of 9 feet x 14 feet each, kitchen and bathroom, which was existing on ground floor of Bhawani Lodge, Cantonment Board Area, Tallital, District Nainital( herein after to be called as disputed tenant.)

8. The foundation of the proceedings of the release was that, it was contended by the landlord Nos. 1 to 6 that the property, in question, which was initially joint family property, family partition had taken place in May, 2008 and, as consequence thereto, the tenement, in question, as described above, which was in occupation of the petitioner/tenant and her predecessors in the capacity of tenant had fallen into the share of the petitioners. In the proceedings before the Prescribed Authority, the landlord/applicant No. 1, i.e. Lieutenant Colonel Girija Shankar Mungali, had filed his affidavit by way of an evidence to show that the accommodation, which he owns in the cantonment area, i.e. Set number 5 / 1 and 5 / 2 Bhavani Lodge, Cantt. Tallital, Nainital, since has got only two rooms accommodation available with him, that was not sufficient enough to meet the requirement of comfortable living, looking into the strength of the family, the need of whom he has to cater; have their requirement of comfortable residence, and as such, he submitted that looking to the strength of the family, as well as, the accommodation, which he was presently occupying that was not sufficient enough to comfortably accommodate his family in the property, which was already available with him. Apart from that, in the affidavit of the applicant No. 1, i.e.

paper No. 29 Ga, he had reiterated the pleading, which was raised by him in the release application, seeking the release of the tenement, in question. Primarily, the landlord /respondent had also filed an affidavit of applicant No. 2, also, i.e. paper No. 31 Ga, another affidavit of applicant No. 6, i.e. paper number 33 Ga; the affidavit of applicant No. 3, i.e. paper number 30 Ga; affidavit of applicant No.4, i.e. paper No. 24 Ga, as well as the affidavit of one Mr Bhuwan Chandra Joshi and an affidavit, paper No. 32-Ga of applicant No. 5, in order to substantiate their pleading of bonafide requirement, and that their need as compared to that of the tenant/petitioner, is more hard pressing and earnest to accommodate the members of the family. The landlord/respondent had also came up with the case, in the release application that so far as the petitioner is concerned, she is an employee in Government Department and she already holds an accommodation which stands allotted to her, being Set No.B-2, situated at Pines District Nainital, and the said allotment of residential accommodation, which was made in her favour in 1999, is still possessed by her and as such, in an event of release of accommodation, she will not suffer any hardship because as such, as of now, she is already occupying an allotted accommodation in her favour. Hence too no defence is available to her in opposition to release under Section 21(1)(a); as such, against the release held under Section 21 (1) (a) of Act No. 13 of 1972, in view of Explanation (i) to the aforesaid section, which is quoted here under:-

Explanation - In the case of residential building :-

(i) where the tenant or any member of his family has built or has otherwise acquired in vacant state or has got vacated after acquisition residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained ;

9. The respondent/landlord had further came up with the case that since owing to the strength of the family, which they are having and as described in detail in para 3 of the release application, the disputed tenement occupied by the petitioner was urgently required by them in order to meet their emergent family requirement

for residential purposes, because the applicant Nos. 1 and 2, who are retired ex-army personals and other family members, wanted to accommodate their family and also that the accommodation at present, which they were already holding, i.e. Set No. 5 / 1 and 5/ 2, at Bhawani Lodge, Cantt, Tallital, District Nainital, was not sufficient enough to accommodation the family in comfort and, as such, they on several occasion made oral request to the petitioner/tenant, to vacate the premises, in order to meet their personal requirement. Since and oral request made by the respondent/landlord, was not heeded to, the respondent/landlord have specifically pleaded in the release application, that on 17[th] October, 2008, they have served legal notice on the petitioner consequently, terminating her tenancy and directing her to vacate the premises within reasonable time. In the release application, it was also contended by the landlord/ respondent that apart from accommodating the family since the applicant No. 5, i.e. Dr. Nirmal Chandra Mungali, who is practicing Doctor, since he has his patients both in district Nainital and Tahsil Haldwani and other adjoining areas, the accommodation is also required by him in order to meet up his professional requirements, as well as the professional requirements of the applicant No. 3, who has got business in Nainital, as well as in Haldwani, coupled with the fact also that the son of applicant No. 4, i.e. Anil Mungali, was also studying in Nainital hence too family wanted to reside in Nainital. Under the aforesaid backdrop, the release application was filed by respondent/landlords, in order to meet up the bona fide requirement of the residential accommodation, so as to accommodate the entire family in comfort after the release of the said tenement, in question.

10. Besides this, the landlord/respondent, in support of his case has also adduced independent evidences by way of an affidavit of one Mr. Sudhir Sharma, who has filed his affidavit on 23[rd] November, 2010, i.e. paper No. 35-Ga, to show that the requirement of the landlord/respondent looking to the strength of the family and due to the shortage of the residential accommodation available with them,

their need was bonafide and more hard pressing. There was yet another independent evidence adduced by the landlord/respondent by way of affidavit of one Mr. Gajendra Shrama, who, also in his affidavit, i.e Paper No. 36-Ga, had submitted that as far as the petitioner is concerned, she after attaining her age of superannuation at present, is residing with her elder daughter in Haldwani and most of the time the disputed tenement in question, stands locked and sometimes her brother-in-law, i.e. Dewar and sister-in-law, i.e. Devrani (who are not family member under the definition of family under the Act) visit the tenement, in question, but otherwise most of the time it remains locked. Hence the need of the tenant/petitioner was shown not to be actual and bonafide but rather artificial.

11. In response to the release application as filed by the respondent/landlord in 2009, the petitioner/tenant, has filed her written statement by way of an objection in October 2009, and made an effort to deny the bonafide need of the landlord/respondent on the ground, contending thereof that the entire family of the respondents/landlords are quite affluent person and they have got sufficient other accommodation available with them, where they could easily accommodate their family, apart from the above fact, she had also contended that as far as the applicants/landlords, are concerned, some of them are already profitably engaged in Pune, where applicant No. 1 is allegedly shown to be engaged as CEO in Multinational Company and his wife is shown to be running School in Pune itself and, hence, she i.e. petitioner/tenant, had contended that the need as expressed by the respondent/landlord is artificial and not bona fide. She further contended in her written statement that as far as applicant No. 2 is concerned, he is already settled in Canada and there he is already engaged in business and, hence the requirement as expressed on behalf of applicant No. 2; in the release application is not bona fide and, hence, the release application deserves to be rejected.

12. She further in the written statement the petitioner/tenant had, submitted that as far as the accommodation, which was allotted to her, i.e. Set No. – 2, at Pines, Nainital, in the year 1999 is concerned, she has submitted that the said accommodation since was not suitable as per her expectation, being situated about three kilometres away from Nainital, the same had now been allotted to another person named as Mr. Anup Arya, an employee of Civil Court, Nainital and, also as such, since she stood retired in December 2009, the said allotted accommodation of 1999; may not be of much benefit and relevance to her now, hence, she contended that the said allotment of residential accommodation, may not be taken into consideration as an accommodation available to her, at the time of considering the release application preferred by the respondent/landlord, on its merits.13. The tenant/petitioner also filed her affidavit by way of an evidence almost reiterating the stand taken by her in the written statement denying the bona fide requirement of the landlords, however, the fact which is important to be considered while going through the affidavit filed by the petitioner/tenant, by way of an evidence was that she had principally admitted the fact with regard to issuance of notices by the respondent/landlord on 17[th] October, 2008,terminating the tenancy and requesting to vacate the premises and also the fact which too stands established by her pleadings that there is no plea taken by her in the affidavit to the effect that ever since filing of the release application as back in 2009, she has made any efforts to look for an alternative accommodation within the Municipal area of Nainital or elsewhere by filing any appropriate application for allotment of an accommodation in accordance with the provisions contained under Section 16 of the Act No. 13 of 1972. Apart from it, there was no evidence in that regard too adduced by her in order to show any of her efforts made to look for an alternative accommodation.

14. As far as the contention pleaded in the release application by the landlord, pertaining to the notice issued by the respondent/landlord to the tenant/petitioner on 17[th] October, 2008, in fact, very evasive and vague reply, which has been given by the petitioner, with regard to the receipt of notice and in its reply given by her to the notice dated 17.10.08, and where she has submitted that the tenement, in question, since was earlier being occupied by her in-laws, initially, and later on she has inherited the tenancy , and that since she has got no other accommodation available with her in Municipal Area of Nainital, as such based on said pleadings, she contended that her need to continue to occupy the accommodation is more hard pressing and bona fide as compared to that of landlord/respondent.

15. What is surprising is that, if the written objection of the petitioner/tenant is considered in its totality, apart from giving very vague and evasive reply pertaining to the requirement of the respondent/ landlord’s family, she has never drawn plea nor had led any evidence also to the effect that even after the filing of the release application way back in 2009, the petitioner/tenant, had ever, made any efforts to look for the allotment of an alternative accommodation within the Municipal area of Nainital or had searched for another accommodation. Hence, on account of an absence to prove or plead with regards to looking for an alternative accommodation, before both the Courts below and to the effect that the petitioner had made any efforts to look for an alternative accommodation, the inference, which would be drawn in accordance with the judicial pronouncements as laid down by the various High Courts and, particularly, the one as reported in 2011 (1) ARC 706, Rahmut Ullah and Another Vs. Aziz Ahmad.

“38. It is settled proposition of law that the equity follows law and so does sympathy. If the factors mentioned in Rule 16 are considered, taking into consideration the facts of this case, no doubt it is an old tenancy but there is nothing to show any real efforts were made by the tenant to find law and so does sympathy. If the factors mentioned in Rule 16 are considered, taking into consideration the facts of this case, no doubt it is an old tenancy but there is nothing to show any real efforts were made by the tenant to find

another accommodation despite the fact that even the application for release has been moved in the year 1986.”

16. It has held that where the tenant fails to establish by evidence on record, of having taken steps to look for an alternative accommodation, presumption would be drawn that in an event of the release of the disputed residential tenement, in question, the petitioner/tenant would not be suffering much hardship as compared to that of respondent/landlord in an event if the release application is allowed in favour of the landlord applicants, as well as in judgement rendered by Hon’ble Allahabad High Court on 11.11.1983 in Civil Misc. Writ Petition No. 3658 of 1983, N.S. Datta and Ors. Vs. The VIIth Addl. District Judge, Allahabad and Ors. Relevant para is quoted herewith.

“27. Though not decisive this too is relevant in the context of sub clauses (a) and (c) of Rule 16(2) the application whereof necessarily depends on the facts and circumstances of each case. Sub-clause (d) is not rendered nugatory by sub-clauses (a) or (c) vide Smt. Chandrawati v. VIth Additional District Judge, Saharanpur, MANU/UP/1206/1978 : 1978 ARC 418. In deciding this aspect of the matter, held the Supreme Court in Mt. Bega Begum & others, MANU/SC/0313/1978 : (1979) 1 SCC 273(supra), "each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on the plaintiffs to prove that lesser disadvantages will be suffered by the dependants and that they were remediable." Sri Dayal made feeble attempt to distinguish that case urging that in Section 11(1)(h) of the Jammu & Kashmir Rent Control Act there is the word "Explanation" while Sec. 21(1) of the U.P. Act, 1972 uses the expression "Proviso" and that as general rule as observed in Shah Bhojraj Kuverji Oil Mills & Ginning Factory, MANU/SC/0336/1961 : AIR 1961 SC 1596 and the Commissioner of Income-tax etc. v. The Indo-Mercantile Bank Ltd., MANU/SC/0070/1959 : AIR 1959 SC 713, proviso is added to an enactment to qualify or create an exception to what is in the enactment while an Explanation elucidates what is contained in the main provision. I am not impressed with this contention. Suffice it may be say that in the context of the relevant provisions the distinction attempted is without difference. It is not the nomenclature or the label put upon it but the substance that matters. The proviso toSection 21(1) as also the Explanation to Section 11(1)(h) of the other Act (quoted above) require as mandatory regard being bad to the advantages or disadvantages on either side in the event of the application being allowed or otherwise. "To put this, in other words, therefore, there is no difference in substance due to the provision in our Act being designated as 'proviso' instead of an 'explanation. The provision is in 'pari materia' and that has also been the consistent view of this court. (See: Sanwal Das Banka v. IIIrd Addl. District Judge, Falzabad 1982(1) ARC 24; Radhey Shyam v. IVth Addl. District Judge, Bulandshahr MANU/UP/1016/1980 : 1980 ARC 594, in M/s. Central Tobacco Co. v. Chandra Prakash an unreported decision of the Supreme Court of 1969, which has been followed in Bega Begum (supra) and again in Phiroze Bamanji Desai v. Chandrakant N. Patel, MANU/SC/0394/1974 : (1974) 1 SCC 661 it was held that each party must adduce evidence to show that hardship could be caused to him by the granting or refusal of the decree and that the tenant must also adduce evidence to the effect that other reasonable accommodation was not available to him. The view taken in Bega Begum (supra) has been followed in Kewal Singh v. Lajwanti, MANU/SC/0491/1979 : (1980) I SCC 290. The Court is entitled also to take into account the fact that the tenant has neither alleged, nor proved to have made effort to have an alternative accommodation. Nur Ilahi v. IIIrd Addl. District Judge, Saharanpur and others, MANU/UP/0681/1983 : 1983 (1) ARC 412; Sanwal Das Binka, 1982(1) ARC 24 (supra). Moreover, the non-availability of alternative accommodation to the tenant is in itself not the adequate ground to reject the landlord's application vide Kamil Khan v. IIIrd Addl. District Judge, Bareilly and others, 1982 (1) ARC 783. In Sura Prasad Sharma v. IInd Additional District Judge, Mirzapur and others, MANU/UP/0578/1983 : (1983) Alld. C.J. 432: 1983 (1) ARC 427, brother M.N. Shukla, J. observed:--

"It is common place fact that invariably when an application under Section 21 of the Act is allowed, the tenant has to quiet and this involves discomfort but if this alone were sufficient to non-suit the landlord, no application for release could ever be allowed. Judging comparative hardships' is matter of deeper import and it would be lopsided order which dismisses landlord's application for release merely with the plaintiffs dingus observation that the tenant would be "thrown on the street". The physical dispossession of the tenant is the necessary concomitant of every release application of the landlord which is allowed. However, well-founded the application may be on

element of inconvenience or discomfort is inherent in the very process of vacating an accommodation- release application cannot be thrown out merely with the bald observation that the tenant would suffer greater hardship."

17. On exchange of the pleadings, the matter was taken up before the Prescribed Authority and, after considering the rival arguments and evidence on record, the Prescribed Authority has recorded finding that as far as the document, which was adduced by the respondent/landlord by way of an evidence before it, it had proved that the oral family partition, did took place amongst the family members of the landlords; as back as in May, 2008, and as consequence thereto, the tenement, in question, has fallen in the share of applicant/respondent/landlords Nos. 1 to 6. It was further proved by evidence on record before the Prescribed Authority that the respondent/landlord did issued notices on 17.10.08 terminating the tenancy and for getting the accommodation vacated. The learned Prescribed Authority, while considering the rival contentions and that as particularly raised in the written statement, i.e. Paper No. 14-Ga as filed by the petitioner/tenant, though, she had made an effort to deny her status as that of not occupying the premises, in question at the moment. She submitted by qualifying her pleading that as far as her economic status after her retirement is concerned, that is not sound enough, for her to enable her to make available for herself, an alternative accommodation in an expensive city of Nainital. She further denied the allotment of the government accommodation situated in the Pines, which has been pleaded by the landlord/respondent in the release application to have been made to the petitioner/tenant in 1999. The Prescribed Authority at the stage of considering the bona fide requirement has also considered the fact that the respondent/landlord, has specifically pleaded in his affidavit in evidence, ie. paper No. 29-Ga; that ever since their childhood, they have studied in Nainital and owning to the aforesaid fact and also the fact that most of the relatives and friends are residing in the Municipal area of Nainital and, coupled with the fact that since after

the retirement, the landlords/respondents wanted to settle and spent their retired life in District Nainital and hence, requirement of the release of tenanted accommodation to meet for bonafide requirement, was sought to be established by her way of an affidavit, Paper No. 29-Ga. The Prescribed Authority on considering the evidence in its totality and recording specific finding in relation to the contents of the affidavits filed by the respondent/landlord; as well as that filed by the tenant in support of their case had concluded that as far as the bona fide requirement is concerned, the landlord/ respondent, had been able to substantiate their bonafide need owing to the evidence, which was adduced by them by way of documentary evidence as well as by way of an affidavit which was adduced by their witnesses in support of their case.18. The Prescribed Authority had also considered and held that the pleadings taken by the respondent/landlord that after the retirement he wants to settle amongst his family members and other relatives of their native town, who are residing in Nainital, the Courts have held that once the respondent/landlord has already got an accommodation available with them in Nainital, which is being sought to be released, the said requirement as proved to settle himself after the retirement among the relatives and friends was held to be the bona fide requirement of the respondent/landlord and on its comparative analysis, the Prescribed Authority has also recorded finding, that as far as the petitioner/tenant is concerned, she was not actually occupying the tenement, in question, and as proved most of the time, it has been kept locked by her, as it has also been proved by paper number 36-Ga, i.e. an affidavit filed by Mr. Gajendra Sharma the contents of which mostly remained uncontroverted by the petitioner/tenant, which has shown that the petitioner in fact after her retirement is presently residing in Haldwani along with her elder daughter and she is not regularly occupying the tenement in question. Hence, on that score itself, the finding in relation to the bona fide

requirement has been settled down concurrently in favour of the respondent landlord. Because-

1. He wanted to settle his family in his native town after retirement amongst his other relatives and friends residing in Nainital.

2. Tenant is not regularly residing in Nainital, most of the time she resides in Haldwani with her elder daughter.

3. Landlord always has choice to settle his family in the accommodation available to him under his ownership.

4. Tenant/petitioner ever since filing of release has not sought for any steps to look for an alternative accommodation.

19. Coming to the question of comparative hardship, it goes without saying that apart from the fact that it is always the landlord’s prerogative to accommodate himself and his family after his retirement in his own accommodation or the place of his choice, with the family members and the said requirement of the landlord to settle his family members and other relatives, comfortably in the accommodation, which is available to him in his native town has always been held out to be the bona fide requirement of the landlord, as per the judicial precedents laid down by the Courts. Here in the instant case it has been proved that petitioner/tenant is not regularly residing in the disputed tenement and that she resides with her elder daughter in Haldwani, and also because the petitioner/tenant had not made nor proved to have made any attempt to look for an alternative accommodation, hence the aspect of comparative hardships has been rightly decided against the petitioner/tenant.

20. Even otherwise also, if the proposition is also taken into consideration in view of the ratio as propounded by the Hon’ble Apex Court, in the case reported in AIR 2000 SC 534, Ragavendra Kumar Vs. Firm Prem Machinary and Co. particularly in para 10 and 14 which are quoted hereunder:-

“10. The learned Single Judge of the High Court while formulating first substantial question of law proceeded on the basis that the plaintiff-landlord admitted that there were number of plots, shops and houses in his possession. We have been taken through the judgments of the courts below and we do not find any such admission. It is true that the plaintiff-landlord in his evidence stated that there were number of other shops and houses belonging to him but he made categorical statement that his said houses and shops were not vacant and that suit premises is suitable for his business purpose. It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. (See: Prativa Devi (Smt.) v. T.V. Krishnan, MANU/SC/0811/1987. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted.

14. The learned Single Judge also erred in law in holding that lower appellate court wrongly placed onus on the defendant-tenant It is true that the lower appellate court was of the view that the burden of proving that the plaintiff-landlord has many shops in the city, lied with the defendant-tenant but Court did so while appreciating the evidence on record adduced by the parties. The above view was expressed by the appellate court after holding that on preliminary documents and evidence produced before the courts below it was evident that the disputed shop was required by the plaintiff-landlord for bona fide need. On going through the judgment of the lower appellate court we find the appellate court decided the appeal on preponderance evidence not on the basis of burden of proof. We may state here that trial court clearly recorded that the burden was on the plaintiff-landlord to prove that he was in bona fide need of the suit premises.”

21. In the said judgement, it has been held that it is always the choice of the landlord to determine his family requirement, the expanse of the accommodation which is needed for the family, which would be best suited to accommodate his family members comfortably, the suitability of the premises is left exclusively at the choices of the landlord, who is held to be the best judge and he enjoys and has got complete freedom too in the matter and, particularly, atleast the tenant cannot direct the landlord to accommodate his family in limited accommodation according to the tenants advise, particularly when he already owns an accommodation within Municipal area, where he intends to accommodate his family after his retirement from services. In view of the said ratio also, the contention

of the petitioner/tenant cannot be accepted that the need of the respondent/landlord was not bona fide, hence the said plea of petitioner/tenant, it is turned down.

22. There is yet another ratio, which has been settled down by the High Court of Judicature at Allahabad in judgement as reported in 2005 (61) ALR 501, Kallu Mal Vs. 8[th] ADJ, Meerut, where settled preposition has been reiterated that the tenant cannot take the liberty to dictate the terms to the landlord, as to the manner in which he has to adjust his family in small accommodation, despite of the fact that he i.e. the landlord, has an accommodation available with him under his ownership, which is being sought to be released for the

purposes to accommodate his family.

“4. The whole approach is erroneous in law and cannot be approved. Even tenant cannot dictate the landlord to adjust his family in small accommodation let alone the Court. The Appellate Court has played the role of either Rationing Officer or Interior Decorator. The judgment of the Lower Appellate Court clearly shows that the learned Court was fully satisfied about the need of the landlord, however, in order to protect the tenant from their eviction, he suggested the means through which landlord could squeeze himself, his family and his house hold goods in the accommodation available to him. It has been held by the Supreme Court in Sarla Ahuja v. U.I. Insurance Co. MANU/SC/0665/1998 : AIR 1999 SC 100 (para 14), that:

“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 bona fides of the requirement of the landlord it is quite unnecessary to make an endeavor as to how else the landlord could have adjusted himself.”

5. Tenant also did not show that what efforts he made to search alternative accommodation after filing of the release application, which itself was sufficient to decide the question of comparative hardship against the tenant vide B.C. Bhutada v. G.R. Mundada.

6. When both the Courts below have rejected the release application of the landlord and judgments are found to be erroneous by Writ Court, matter is normally remanded. However, that formula is not to be necessarily followed in every case particularly when the matter is pending for long. Release application in the instant case was filed in the year 1983 and this writ petition is pending since 1985. The Supreme Court in G.C. Kapoor v. N.K. Bhasin MANU/SC/0736/2001 : 2001 (45) ALR 808 (SC), allowed the release application out rightly which had been rejected by the prescribed authority, Lower Appellate Court as well as High Court. In my opinion it is fit case where ultimate relief shall be granted to the landlord. Supreme Court has also held in R.E.V. Gounder v. V.V.P. Temple MANU/SC/0798/2003 : 2004

ACJ 304 (SC), and R.C. Kesharwani v. Dwarika Prasad MANU/SC/0536/2002 : 2002 (2) ARC 298 (SC), that when the matter is pending for long, remand must be avoided. Supreme Court in its authority in Shall v. Manoj Kumar MANU/SC/0311/2004 : 2004 ACJ 1213, placing reliance upon Surya Dev Rai v. R.C. Rai MANU/SC/0559/2003 : 2003 (52) ALR 707 (SC), has held that in exercise of writ jurisdiction High Court has the jurisdiction also to pass itself such decision or direction as the inferior Court or tribunal should have made.

7. Accordingly, writ petition is allowed. Both the impugned orders are set aside. Release application of the landlord petitioner stands allowed.

8. As no one has appeared for tenant respondent, hence before issuing warrant of possession (Parwana Dakhal) on the execution application under section 23 of U.P. Act No. 13 of 1972 which may be filed by landlord in pursuance of this judgment, prescribed authority shall ensure service of notice upon tenant respondent.”

23. Hence, in view of this ratio also, the Prescribed Authority has appropriately held that the advices extended by the tenant/petitioner, that the landlord has got sufficient accommodation available with them elsewhere in the country, cannot be considered and compared with the accommodation available to them in the Municipal area of Nainital i.e. the landlords’ native town, where they want their family to settle after retirement, where he could accommodate his family comfortably. Hence, the said plea has been rightly turned down by the Prescribed Authority, while allowing the release application of the respondent/landlord wide its judgement dated 31.05.13.

24. Though, it is repetition, but, yet the Prescribed Authority has also taken into consideration, the fact that the petitioner/tenant, since she has now retired and that since the evidence on record proves that she after her retirement is presently permanently residing with her elder daughter in Haldwani, in that eventuality keeping the tenement, in question, locked or visiting it occasionally herself or through her brother-in-law (devar), cannot be termed as to be bona fide requirement of the petitioner/tenant; coupled with the fact that, when particularly as proved that she has not made any efforts to look for an alternative accommodation as per the finding

recorded in para 15 of the judgement of the Prescribed Authority, it would be held that the comparative hardship as that with the landlord/respondent, if it is compared with that of the tenant, is more hard pressing because he wants to settle his family after their retirement, in their native town amongst their other relatives who reside in Nainital.

25. The aforesaid ratio of drawing an inference of the tenant/petitioner would be suffering lesser hardship in an event of release of an accommodation because of the failure to establish that having made any efforts which have been made by the tenant/petitioner to look for an alternative accommodation has been settled by the judicial pronouncements laid down by the Allahabad High Court as reported in 2011 (1) ARC 706, Rahmut Ullah and Another Vs. Aziz Ahmad(supra), hence, the finding on the comparative hardship was also rightly determined by the Prescribed Authority in favour of the landlord/respondent.

26. It is an inevitable proposition that whenever release is considered and allowed by the Prescribed Authority in that eventuality the tenant who is occupying or allegedly occupying the premises for considerable longer time would be suffering some hardship or difficulty on vacating the disputed tenanted premises, but that sufferance of the hardship with the tenant/petitioner cannot equated with the sufferance with which the landlord/respondent has to suffer on account of his failure to accommodate his family comfortable as per their stature and status of family, where they are seeking the release of the residential accommodation for meeting his personal requirement of their family and, thus, the Prescribed Authority in view of the aforesaid findings has rightly allowed the release application by the impugned judgement dated 31[st] May, 2013.

27. The petitioner being aggrieved against the said judgement of the Prescribed Authority dated 31[st] May, 2013, as

rendered in Rent Control Case No. 4 of 2009, had preferred Rent Control Appeal, invoking Section 22 of the Act No. 13 of 1972, which was numbered as Rent Control Appeal No. 15 of 2013, Smt. Janaki Pandey, Vs. Lt. Colonel Girija Shankar Mungali and others and the Appellate Court too after giving considered thought and after considering the findings which have been recorded by the Prescribed Authority, on an appreciation of the evidence adduced by the parties, had dismissed the Appeal by one of the impugned judgement dated 8[th] November, 2019, and, consequently, has affirmed the judgement of release passed by Prescribed Authority dated 31[st] May, 2013, directing the petitioner/tenant to vacate the premises, in question, within the time specified by the Prescribed Authority. It is being aggrieved against these two judgements, that the present Writ Petition has been preferred by the petitioner/tenant.

28. As already dealt in the above paras of this judgement, the petitioner/tenant realising that the fact that the Writ Petition; engages consideration of concurrent finding of facts recorded by the Prescribed Authority; as well as that by the Appellate Authority in the proceedings under Section 21 (1) (a) which is summary in nature; and after visualising that the tenant has got very limited ground of challenge to the concurrent judgements in the writ jurisdiction under Article 227 of the Constitution of India, in the summary proceedings held under the Act No. 13 of 1972, though, initially the petitioner/tenant through her counsel on earlier occasion attempted to convince the Court to futility, for the grant of an interim protection from eviction, during the pendency of the Writ Petition, but, when the Court had expressed that the findings recorded by both the courts below since it is based on plausible consideration of the evidence led by the parties and as the same could not be re-appreciated as an appeal by the Writ Courts under Article 227 of the Constitution of India by way of re-appreciating the evidence because the Writ Courts cannot sit as Court of Appeal against the concurrent judgements rendered by both the Courts below as held by Hon’ble Apex Court in the case

of Ranjeet Singh Vs. Ravi Prakash, as reported in 2004 (3) Supreme Court Cases 682, para 4 of the said judgement is reproduced hereunder:-

“4. Feeling aggrieved by the judgment of the Appellate Court, the respondent preferred writ petition in the/High Court of Judicature at Allahabad under Article 226 and alternatively under Article 227 of the Constitution. It was heard by learned Single Judge of the High Court. The High Court has set aside the judgment of the Appellate Court and restored that of the Trial Court. perusal of the judgment of the High Court shows that the High Court has clearly exceeded its jurisdiction in setting aside the judgment of the Appellate Court. Though not specifically stated, the phraseology employed by the High Court in its judgment, goes to show that the High Court has exercised its certiorari jurisdiction for correcting the judgment of the Appellate Court. In Surya Dev Rai v. Ram Chander Rai and Ors. - MANU/SC/0559/2003 : AIR2003SC3044 , this Court has ruled that to be amenable to correction in certiorari jurisdiction, the error committed by the Court or Authority on whose judgment the High Court was exercising jurisdiction, should be an error which is self-evident. An error which needs to be established by lengthy and complicated arguments or by indulging into 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 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 (Supra) that the jurisdiction was not available to be exercised for indulging into re-appreciation or evaluation of evidence or correcting the errors in drawing inferences like court of appeal. The High Court has itself recorded in its judgment that - "considering the evidence on the record carefully" it was inclined not to sustain the judgment of the Appellate Court. On its own showing, the High Court has acted like an Appellate Court which was not permissible for it to do under Article 226 or Article 227 of the Constitution.”

29. Hence, the Court was inclined to dismiss the Writ Petition but since the petitioner had sought time to vacate the premises, hence, the matter was adjourned in order to enable to effect the service of the notice on the respondent/landlord so as to take their consent for time to be granted to the tenant/petitioner to vacate the tenement, which the petitioner has failed to serve. Consequently, the Writ Petition was taken up and is being decided with the following consideration and directions.

i.The respondent/landlords are the best judge of their requirement and they cannot be guided by the tenants directives, as to in what manner they would requirement and they cannot be guided by the tenants directives, as to in what manner they would

iii.

accommodate their family and, particularly, when the landlord/respondent, herein after their retirement from armed forces wanted to accommodate their family in the residential accommodation in their native town amongst their relatives and friends residing in Municipal area, from where the landlord/respondent had spent their childhood. The said settlement of the family after the retirement itself has been treated as to be bona fide requirement, which has been rightly and concurrently affirmed by both the Courts below.

Now the issue which comes is with regard to the comparative hardship, as it has already been observed and proved that there is no evidence as such brought on record or adduced by the petitioner/tenant to establish that she had ever made any efforts to look for an alternative accommodation since 2009 ie. filing of release, in accordance with the process contemplated under section 16 of the Act No. 13 of 1972, hence, it would be deemed that in an event of release of accommodation, in question, in favour of landlord/respondents, the comparative hardship, which the petitioner tenant would suffer would be of lesser magnitude than that of the landlord/respondent in an event of denial of the release application.

The unrebutted evidence on record shows that the petitioner/tenant after her retirement from the official engagement permanently resides in Haldwani (Another Municipal Area) with her elder daughter, and that she occasionally visits the tenement in question, which is most of the time kept locked by her to harass the Landlord/respondent and obstruct the release of the tenement by creating hindrance, without there being actual need with her.

30. In view of the aforesaid reasoning, this Court does not find any merit in the Writ Petition, the Writ Petition is concluded by concurrent finding of facts and, as such, the same is here by dismissed accordingly.

31. However, the petitioner is directed to vacate the premises and handover the vacant and peaceful possession of the disputed tenement to the respondent/landlord within 60 days from the date of receipt of the certified copy of this judgment. However, there will be no order as to costs.

Mahinder/

(Sharad Kumar Sharma, J.)11.03.2020