Judgment:
Anjani Kumar, J.
1. By means of present writ petition under Article 226 of the Constitution of India, the petitioner-landlord challenges the orders dated 25th April, 1989, passed by the prescribed authority and 14th February, 1990, passed by the appellate authority, whereby the appeal filed by the petitioner-landlord was dismissed by the appellate authority.
2. The brief facts, leading to the filing of present writ petition are that the petitioner is admittedly the landlord and the contesting respondent is the tenant of the shop in question. The petitioner-landlord filed an application under Section 21 (1) (a) of the U. P. Act No. 13 of 1972, hereinafter referred to as the 'Act', for release of the shop in dispute in his favour on the ground that his son Sandeep Kumar, who could not study beyond High School and failed in Intermediate, has to be settled in the sweetmeat business, which will be opened after the shops is released in favour of the landlord. In the application it is further stated that there is no other accommodation except the shop in dispute, which is suitable for the proposed business, as the shop in question is 20' x 20' and is close to the residential house of the landlord. In case the shop is released in favour of the landlord, the contesting respondent-tenant would not suffer any hardship as sufficient shops are available in two business complexes, which have been recently constructed and are situated within a distance of one furlong or less. The contesting respondent-tenant is the wife of Dr. R. P. Agarwal, who is in fact carrying on his clinic from the shop in dispute. The tenant denied the aforesaid relationship of the landlord and submitted that her husband Dr. R. P. Agarwal is carrying on his clinic from the shop in question, which was established sometime in the year 1970. Dr. R. P. Agarwal has also set up X-ray machine and thus the tenant's husband, who is carrying on his business and clinic, including the X-ray machine, has earned a goodwill and reputation and if she is forced to vacate the shop in question, firstly there is no suitable shop available in the vicinity as suggested by the landlord and secondly it will affect the established medical practice of the husband of the tenant. The parties have adduced evidence in support of their respective case. It is suggested that had the need of the landlord been bona fide, the landlord would not have let out the shop, which came in the share of the landlord when there was a family partition amongst the brothers of the landlord in the year 1976 and in fact after the aforesaid partition one of the shop has been let out by the landlord to one Awadhesh Kumar. This clearly demonstrates that the application has been filed only as a device for enhancement of the rent, which in fact has been increased from Rs. 250 per month to Rs. 350 per month, but this alone has not satisfied the landlord. The landlord denied the aforesaid allegations levelled against him by the tenant. The prescribed authority after considering the respective case and evidence on record have rejected the application under Section 21 (1) (a) of the Act vide its order dated 25th April, 1989. The order of the prescribed authority runs about 22 type pages.
3. Aggrieved thereby, the petitioner-landlord filed an appeal before the appellate authority under the provisions of the Act. Before the appellate authority, the same arguments were advanced by the tenant that the need of the landlord is not bona fide and on comparison of the hardship of the landlord as well as the tenant, the tenant will face more difficulty than that of the landlord. The appellate authority vide its order dated 14th February, 1990 affirmed the order passed by the prescribed authority and dismissed the appeal preferred by the landlord, thus this writ petition.
4. Before this Court, Sri K. K. Arora, learned counsel for the petitioner-landlord advanced the similar arguments and submitted that the findings arrived at by the prescribed authority and affirmed by the appellate authority deserves to be quashed by this Court in exercise of power under Article 226 of the Constitution of India so far as it relates to the bona fide requirement of the landlord and the comparative hardship. Sri Arora suggested that the view taken by the prescribed authority and affirmed by the appellate authority that there was no occasion to the landlord to have waited for four years in moving the release application under Section 2 (1) (a) of the Act, which was filed in the year 1987 and if his son has failed in the intermediate examination in the year 1983, Sri Arora tries to emphasise that these findings are beyond the pleadings. The prescribed authority as well as the appellate authority have arrived at the conclusion that the need of the landlord is bona fide and in that context it has considered the arguments advanced on behalf of the tenant also. With regard to other arguments advanced on behalf of the landlord. Sri Arora submitted that in view of the decision of this Court dated 4th February, 2004 passed in Writ Petition No. 707 of 2004, Hafiz Khan v. Abdul Gofoor, wherein this Court relying upon decision of the Apex Court in Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada, AIR 2003 SC 2713, has held that where the tenant has not made any effort to find out alternative accommodation, his need for shop in dispute cannot be said to be bona fide. Sri Arora further submitted that admittedly there is no effort on the part of the tenant to acquire any alternative accommodation. A perusal of the order passed by the prescribed authority as well as the appellate authority and the pleadings of the parties, particularly the written statement filed on behalf of the tenant clearly demonstrate that the tenant has categorically stated that the suggestion made by the landlord that since in the vicinity of the shop in dispute, two commercial complexes have been constructed where the tenant can find a suitable shop. The tenant has stated that the shops in the aforesaid commercial complexes are 8' x 12' in size, whereas the present shop in dispute is in the size of 20' x 20' and since the tenant has also established the X-ray machine, the alternative shops as suggested by the landlord is firstly not suitable and secondly the rents are exorbitant, apart from that the landlord demands pagri for the same, therefore it cannot be said as suggested by Sri Arora that the prescribed authority as well as the appellate authority has not considered this aspect of the matter, which has been suggested by learned counsel for the respondent. Sri Arora has relied upon a decision in Akhileshwar Kumar and Ors. v. Mustaqim and Ors., 2003 (3) AWC 2545 (SC) : 2003 (2) SCCD 515 : AIR 2003 SC 532, wherein the Apex Court in paragraphs 3, 4 and 5 has held, which are reproduced below :
'3. In our opinion, the approach adopted by the High Court cannot be countenanced and has occasioned a failure of justice. Overwhelming evidence is available to show that the plaintiff No. 1 is sitting idle, without any adequate commercial activity available to him so as to gainfully employ him. The plaintiff No. 1 and his father both have deposed to this fact. Simply because the plaintiff No. 1 is provisionally assisting his father in their family business, it does not mean that he should never start his own independent business. What the High Court has overlooked is the evidence to the effect relied on by the trial court too, that the husband of plaintiff No. 4, i.e., son-in-law of Ram Chandra Sao, was assisting the latter in his business and there was little left to be done by the three sons.
4. So is the case with the availability of alternative accommodation, as opined by the High Court. There is a shop in respect of which a suit for eviction was filed to satisfy the need of plaintiff No. 2. The suit was compromised and the shop was got vacated. The shop is meant for the business of plaintiff No. 2. There is yet another shop constructed by the father of the plaintiffs which is situated over a septic tank but the same is almost inaccessible inasmuch as there is a deep ditch in front of the shop and that is why it is lying vacant and unutilized. Once it has been proved by a landlord that the suit accommodation is required bona fide by him for his own purpose and such satisfaction withstands the test of objective assessment by the Court of facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. The Court, cannot thrust upon its own choice on the needy. Of course, the choice has to be exercised reasonably and not whimsically. The alternative accommodation which have prevailed with the High Court are either not available to the plaintiff No. 1 or not suitable in all respects as the suit accommodation is. The approach of the High Court that an accommodation got vacated to satisfy the need of plaintiff No. 2, who too is an educated unemployed, should be diverted or can be considered as relevant alternative accommodation to satisfy the requirement of plaintiff No. 1 another educated unemployed brother, cannot be countenanced. So also considering a shop situated over a septic tank and inaccessible on account of a ditch in front of the shop and hence lying vacant cannot be considered a suitable alternative to the suit shop which is situated in a marketing complex, is easily accessible and has been purchased by the plaintiffs to satisfy the felt need of one of them.
5. We find it difficult to sustain the observation of the High Court that the requirement pleaded by the plaintiffs falls short of felt need and is merely a desire. The judgment of the trial court is a detailed and exhaustive judgment which has taken into consideration each and every available piece of evidence and relevant circumstances, assessed with objectivity, consistently with the relevant principles of law and hence the finding is one which could not have been upset by High Court in exercise of its revisional jurisdiction. Moreover, as we have pointed out, the manner in which the High Court has proceeded to form an opinion at variance with the findings of the trial court is wholly unsustainable.'
5. Sri Arora has further relied upon a decision in Narsingh Dass Agarwal (Sri) (since deceased) now represented by Annapurna Devi and Ors. v. District Judge, Ballia and Ors., 2003 (2) ARC 742. Another decision relied upon by Sri Arora in Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada, AIR 2003 SC 2713, submitted that since no efforts have been made by the tenant during the pendency of the application before the prescribed authority or the appellate authority for finding out an alternative accommodation, it cannot be said that the need of the landlord is not bona fide. The Apex Court in paragraph 11 of the aforesaid judgment has observed, which is reproduced below :
'11. The Act does not lay down any guidelines or relevant factors based whereon the question of comparative hardship is to be decided. A slight indication is given in the first para of Section 13 (2) that regard must be had to (i) all the circumstances of the case, (ii) including the question whether other reasonable accommodation is available for the landlord or the tenant, The expression 'other reasonable accommodation' as employed here does not mean an accommodation suitable in all respects as the suit accommodation is. The Legislature has chosen it appropriate to leave the determination of issue on sound discretion of the Court.'
6. In paragraph 9 of the aforesaid judgment, the Apex Court has observed as under :
'9. ..............The conduct of the parties, their mutual relationship may also be relevant. In spite of the availability of ground for eviction being legally sustainable, for the purpose of deciding the issue as to comparative hardship, the Court may take into consideration availability of such other premises with the landlord, which though not necessarily alternative to the suit premises, may still be available to accommodate the proven requirement of the landlord. The fact that the tenant could have had shifted to other premises or has missed the opportunity of availing occupation of other premises or is likely to part with possession over other premises whereto his business can be or could have been shifted are all relevant factors for the purpose of Section 13 (2) though may not be relevant for the purpose of Section 13 (1) (g). These are illustrative factors, incapable of being listed fully and precisely, which enter into the thinking process leading to formulation of opinion on comparative hardship.'
7. On the other hand, learned counsel for the respondent has relied upon a recent decision in Surya Dev Rai v. Ram Chander Rai and Ors., (2003) 6 SCC 675, wherein the Apex Court has laid down the guidelines with regard to exercise of jurisdiction under Article 226/227 of the Constitution of India. Paragraph 38 (8) of the aforesaid judgment relied upon by learned counsel for the respondent is reproduced below :
'38. Such like matters frequently arise before the High Courts. We sum up our conclusion in a nutshell even at the risk of repetition and state the same as hereunder :
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a 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.'
8. Learned counsel for the respondent has further relied upon a decision of the Apex Court in Ranjeet Singh v. Ravi Prakash, 2004 (2) AWC 1721 (SC) : 2004 (1) ARC 613, wherein the Apex Court relying upon the earlier decision in the case of Surya Dev Rai (supra) has held :
'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 a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai (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 a 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 227 of the Constitution.'
9. In view of the law cited by both the sides and also in view of the observations of the Apex Court in the case of Surya Dev Rai (supra), it is not permissible for this Court to sit in appeal over the findings arrived at by the prescribed authority and affirmed by the appellate authority, unless the same is demonstrated to be perverse. Learned counsel appearing on behalf of the petitioner has not been able to demonstrate that the findings arrived at by the prescribed authority and affirmed by the appellate authority with regard to the bona fide requirement and the comparative hardship in any way can be said to be perverse. At the most it can be said to be that if there are two views and one has been taken by the prescribed authority and affirmed by the appellate authority, as held by the Apex Court in the case of Ranjeet Singh (supra), this cannot be a ground for interference by this Court in exercise of power under Article 226 of the Constitution of India. In this view of the matter, I do not find this to be a fit case for interference under Article 226 of the Constitution of India. This writ petition therefore has no force and is accordingly dismissed. The interim order, if any, stands vacated. However there will be no order as to costs.