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Pooran Chand JaIn Vs. Ixth A.D.J. and ors. - Court Judgment

SooperKanoon Citation

Subject

Tenancy;Constitution

Court

Allahabad High Court

Decided On

Case Number

C.M.W.P. No. 5784 of 1993

Judge

Reported in

2005(2)AWC2241

Acts

Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 21, 21(1) and 22; Constitution of India - Article 226

Appellant

Pooran Chand Jain

Respondent

ixth A.D.J. and ors.

Appellant Advocate

R.N. Bhalla, Adv.

Respondent Advocate

S.C.

Disposition

Petition dismissed

Cases Referred

Gaya Prasad v. Pradeep Srivastava

Excerpt:


.....for determining quantum of compensation. - aggrieved by the aforesaid two orders, passed by the prescribed authority as well as by the appellate authority, the petitioner approached this court by means of present writ petition under article 226 of the constitution of india. in that view of the matter there was no justification for the high court to interfere with the order in exercise of its writ jurisdiction in the matter like the present case where orders passed by the statutory authority vested with power to act quasi judicially is challenged before the high court, the role of the court is supervisory and corrective. we are constrained to observe that in the present case the high court has failed to keep the statutory principles in mind while deciding the case. so far as the orders impugned in the present writ petition are concerned, sri bhalla, learned counsel for the petitioner-tenant tried to assail the findings arrived at by the prescribed authority, which have been affirmed by the appellate authority on the question of bona fide need of the landlord as well as on the question of comparative hardship. he has mentioned that the applicant has only mentioned the..........this court in exercise of power under article 226 of the constitution of india.12. learned counsel appearing on behalf of the contesting respondent-landlord relied upon a recent decision of the apex court in gaya prasad v. pradeep srivastava, 2001 (1) awc 834 (sc) : 2001 (1) arc 352. paragraph 10 relied upon by learned counsel for the landlord is reproduced below :'10. we have no doubt that the crucial date for deciding as to the bona fide of the requirement of the landlord is the date of his application for eviction. the antecedent days may perhaps have utility for him to reach the said crucial date of consideration. if every subsequent development during the post-petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as to unfortunate situation in our litigative slow process system subsists. during 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement.....

Judgment:


Anjani Kumar, J.

1. Heard learned counsel appearing on behalf of the parties.

2. The petitioner-tenant aggrieved by the order dated 6th March, 1987, passed by the prescribed authority, copy whereof is annexed as Annexure-12 to the writ petition, whereby the prescribed authority has allowed the application for release of the accommodation in question under Section 21(1) (a) of the U.P. Act No. 13 of 1972, hereinafter referred to as the 'Act', approached the appellate authority by means of an appeal as contemplated under Section 22 of the Act. The appellate authority vide its order dated 10th February, 1993 dismissed the appeal preferred by the petitioner-tenant, copy whereof is annexed as Annexure-14 to the writ petition. Aggrieved by the aforesaid two orders, passed by the prescribed authority as well as by the appellate authority, the petitioner approached this Court by means of present writ petition under Article 226 of the Constitution of India.

3. In short, the facts of the present case are that the contesting respondent-landlord filed an application under Section 21(1)(a) of the Act for release of the accommodation in question on the ground that the accommodation in question is bona fide required by the landlord. The prescribed authority on the basis of the pleadings of the parties and evidence adduced before it arrived at the conclusion that the need of the landlord is not bona fide and the question of the comparison of hardship does not arise, therefore the application of the landlord was rejected by the prescribed authority vide his order dated 24th November, 1980, copy whereof is annexed as Annexure-8 to the writ petition.

4. Aggrieved thereby the landlord-contesting respondent preferred an appeal as contemplated under Section 22 of the Act before the appellate authority. The appellate authority by the order dated 17th December, 1985 allowed the appeal, set aside the order of the prescribed authority and remanded back the matter to the prescribed authority to decide the case afresh as per the directions given in the body of the judgment, copy whereof is annexed as Annexure-11 to the writ petition. After remand, the prescribed authority decided the matter as directed by the appellate authority vide its order dated 6th March, 1987 and allowed the application of the landlord under Section 21(1)(a) of the Act. The prescribed authority found that the need of the landlord is bona fide and comparison of hardship also tilts in favour of the landlord. Aggrieved thereby, the petitioner-tenant preferred an appeal before the appellate authority. The appellate authority vide its order dated 10th February, 1993 affirmed the findings recorded by the prescribed authority and dismissed the appeal. Thus, this writ petition under Article 226 of the Constitution of India.

5. Learned counsel appearing on behalf of the petitioner-tenant Sri R. N. Bhalla argued firstly that the facts, which came into existence after the filing of the present writ petition, should be taken into account and thereupon if those facts are taken into account, the orders impugned in the present writ petition passed by the courts below deserve to be quashed. On the other hand, learned counsel appearing on behalf of the landlord-contesting respondent Sri Madhav Jain relied upon a decision in Ashok Kumar and Ors. v. Sita Ram, : [2001]3SCR101 . Paragraph 17 of the aforesaid judgment relied upon by learned counsel for the landlord is reproduced below :

'17. The question that remains to be considered is whether the High Court in exercise of writ jurisdiction was justified in setting aside the order of the appellate authority. The order passed by the appellate authority did not suffer from any serious illegality, nor can it be said to have taken a view of the matter, which no reasonable person was likely to take. In that view of the matter there was no justification for the High Court to interfere with the order in exercise of its writ jurisdiction in the matter like the present case where orders passed by the Statutory Authority vested with power to act quasi judicially is challenged before the High Court, the role of the Court is supervisory and corrective. In exercise of such jurisdiction the High Court is not expected to interfere with the final order passed by the Statutory Authority unless the order suffers from manifest error and if it is allowed to stand it would amount to perpetuation of grave injustice. The Court should bear in mind that it is not acting as yet another appellate court in the manner. We are constrained to observe that in the present case the High Court has failed to keep the statutory principles in mind while deciding the case.'

6. Learned counsel for the landlord-contesting respondent relied upon the decision in Ved Prakash v. IInd Additional District Judge, Aligarh and Ors., 1984 (2) ARC 485, and argued that subsequent facts, which came into existence during the pendency of the writ petition, cannot be looked into by this Court while deciding the present writ petition, inasmuch as the writ petition cannot be said to be of the proceedings before the appellate authority, which according to the statute came to an end with the decision by the appellate authority on an appeal under Section 22 of the Act. So far as the orders impugned in the present writ petition are concerned, Sri Bhalla, learned counsel for the petitioner-tenant tried to assail the findings arrived at by the prescribed authority, which have been affirmed by the appellate authority on the question of bona fide need of the landlord as well as on the question of comparative hardship. I need not repeat the facts. It is crystal clear from the facts that the order of the prescribed authority has been affirmed by the appellate authority. The prescribed authority has arrived at the conclusion that the need of the landlord is bona fide on the consideration of the entire material, including the pleadings and evidence on record and it has not been brought to my notice that the findings arrived at by the prescribed authority after the remand by the appellate authority, as stated above, suffer from any error, much less manifest error of law, so as to warrant interference by this Court in exercise of power under Article 226 of the Constitution of India.

7. Learned counsel for the landlord-contesting respondent further relied upon a decision in Nirmal Singh Saluja and Ors. v. Ist Additional District Judge, Kanpur City and Ors., 1993 (2) ARC 160, particularly paragraph 14, which is reproduced below :

'14. However, it cannot be lost sight of that there is a vital difference between the order of reversal passed by the appellate or revisory authority and an order of affirmance passed by it. Having stated that there was no valid ground for interference in the reasons and the conclusions reached by the prescribed authority, the appellate authority was not bound to give fuller reasons.'

8. Learned counsel for the landlord further relied upon a decision in Chottey Nath v. Special Judge/Additional District and Sessions Judge, Nainital and Ors., 1903 (1) ARC 337, and particularly paragraph 10, which is reproduced below :

'10. The judgment passed by the appellate authority is a judgment of affirmance. In the present case, the prescribed authority had considered the entire material and evidence on record while recording its conclusions on the questions relating to the genuineness of the requirement for the release and had found it to be bona fide one. Similarly the finding on the question relating to the comparative hardship was also recorded after carefully considering the evidence and the materials on record. The Apex Court in its decision the case of Girijanandini Devi v. Birendra Narain Choudhary, : [1962]3SCR718 , had pointed out that even where the appellate court did not enter upon a reappraisal of the evidence but it generally approved of the reasons adduced by the trial court in support of its conclusions that would ordinarily suffice. It was observed in that case that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial court. This question had also come up for consideration before a Division Bench of this Court in the case of G.V. Massey v. E.C. Daniel and Ors., 1976 AWC 278. In this case the Division Bench observed that in an order of affirmance all that was required was that the order should be a speaking order and it is not necessary to have elaborately dealt with every circumstance. It was further observed that there may be different ways of expressing the opinion or writing an order but so long as the purport is clear it would be a substantial compliance with the requirement of law. In the present case, the appellate authority has considered the respective cases of the parties and the materials on the record and a perusal of the judgment indicates that he was alive to be a case whereby judgment passed by the appellate authority can be said to be lacking in reflecting the use of application of mind. There appears to be a substantial compliance of the requirements of an order of affirmance as indicated in the Full Bench decision of this Court in the case of Haji Manzoor Ahmad v. State of U.P. and Ors., 1968 ALJ 809. The contention raised by the learned counsel for the petitioner in this regard, is therefore not acceptable.'

9. Learned counsel for the landlord further relied upon a decision in Chottey Nath v. Special Judge/Additional District and Sessions Judge, Nainital and Ors., 1999 (2) ARC 820, and particularly paragraph 15, which is reproduced below :

'15. It is true that when the appellate court gives a judgment of affirmance, then it needs no discussion on every evidence considered by the trial court while deciding the appeal if appellate court wants to reverse the finding of fact recorded by the trial court based on evidence. I am of the view that it must be by the lower authority and it must set aside that finding of fact while deciding the appeal and if the appellate court has only decided that appeal on the basis of the presumption or speculation and has set aside the judgment of the trial court in this case of Prescribed Authority, the judgment cannot be said to be a judgment in the eye of law. From a perusal of the judgment of the District Judge, while exercising powers of appeal, it is crystal clear that he has set aside the findings on presumption. For example, he says in his judgment, Palladar cannot have any experience of iron business. He has mentioned that the applicant has only mentioned the iron business and he is not satisfied with the kind of the iron business as to whether it would be saria business or girdar business. Law as stands that under Section 21 application even if the nature of the business is not mentioned, the application shall not be rejected. A perusal of the relevant provision would show that it only says that the landlord requires it for occupation by himself or any member of his family or any person in whose benefit it is held by him either for residential purpose or for any other purpose, trade or calling or any person for whose benefit it is held by him either for residential purpose or for the purposes of any profession, trade or calling. The section itself does not say that he must mention the nature of business, profession, trade or calling. If the landlord has mentioned in his application that he wants to start iron business, it may include any business connected with iron. If he has not specified as to whether it would be saria business or girdar business or nail business that does not mean that the provisions of Section 21 of the Act has not been complied with. The word 'iron' used by the applicant is sufficient to show that he wants to start iron business. There are a number of items prepared by metal iron and there cannot be any exhaustive list in modern scientific age whether the iron business can be confined to sale of saria or girdar only. There are various other items of iron, which can be sold on the iron shop. Therefore, the observations of the learned Judge that the specific iron trade is not specified is not correct, I am of the view that even if the purpose is not specified, the application is maintainable.'

10. In view of the aforesaid law and also in view of the settled principles for exercise of power under Article 226 of the Constitution of India as recently laid down by the Apex Court in a case in Surya Devi Rai v. Ram Chander Rai and Ors., : AIR2003SC3044 . The relevant paragraph 38, sub-para (8) of the aforesaid judgment 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.'

11. A bare reading of paragraph 38, sub-para (8) of the aforesaid judgment clearly shows that it clearly prescribes the guidelines for interference by this Court in exercise of power under Article 226 of the Constitution of India. On the question of finding being perverse, it should have considered the entire evidence on record, according to learned counsel for the petitioner, but I do not agree with the contention of learned counsel for the petitioner that the findings arrived at by the appellate authority were either perverse, or suffer from manifest error or law, so as to warrant any interference by this Court in exercise of power under Article 226 of the Constitution of India.

12. Learned counsel appearing on behalf of the contesting respondent-landlord relied upon a recent decision of the Apex Court in Gaya Prasad v. Pradeep Srivastava, 2001 (1) AWC 834 (SC) : 2001 (1) ARC 352. Paragraph 10 relied upon by learned counsel for the landlord is reproduced below :

'10. We have no doubt that the crucial date for deciding as to the bona fide of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post-petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as to unfortunate situation in our litigative slow process system subsists. During 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent development during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an appellant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite. Because the opposite party succeeded in prolonging the matter for such unduly long period.'

13. The relevant portion of paragraph 15 of the aforesaid judgment relied upon by learned counsel for the landlord is reproduced below :

'15. The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many events are bound to take place which might happen in relation to the parties as well as the subject-matter of the Us. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatters the confidence of the litigant, despite the impairment already caused.'

14. The relevant portion of paragraph 17 of the aforesaid judgment relied upon by learned counsel for the landlord is reproduced below :

'17. Considering all the aforesaid decisions, we are of the definite view that the subsequent events pleaded and highlighted by the appellant are too insufficient to overshadow the bona fide need concurrently found by the fact finding Courts.'

15. In this view of the matter, in my opinion, this is not a fit ease in which this Court should exercise its jurisdiction under Article 226 of the Constitution of India, as the findings arrived at by the prescribed authority affirmed by the appellate authority do not suffer from any error of law. This writ petition therefore has no force and is liable to be dismissed. The interim order, if any, stands vacated.


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