S.C. Chaurasia, J.
1. This writ petition under Article 226 of the Constitution of India, has been filed with the prayer that by a writ of certiorari, Judgment and order dated 02-09-2009 (Annexure No. 12 to the writ petition) passed by learned Additional District Judge, Court No. 4, Lakhimpur Kheri, may be quashed.
2. The brief facts, giving rise to the present writ petition, are that the applicants, Ram Gopal Shekhar and Krishna Gopal Shekhar, moved an application under Section 21 of the Uttar Pradesh Urban Buildings(Regulation of Letting, Rent and Eviction)Act, 1972 (hereinafter referred to as U.P. Act No. XIII of 1972), with the prayer that the shop in question may be released in favour of the applicants after eviction of the opposite parties on the ground that they are owner-landlords of the shop in question as detailed and described in the application and the opposite party is the tenant in the said shop at the monthly rent of Rs. 250/-. When the said shop was let out to the opposite party, it was not required for the business purpose. Now, the applicant No. 1 has three sons, aged about 23 years, 21 years and 19 years, and the applicant No. 2 has two sons, aged about 22 years and 20 years. The applicants have to engage their sons in the business, but, at present, Rajat Shekhar, eldest son of the applicant No. 1, is eager to carry on business and he has attained marriageable age. He intends to carry on business of motor spare parts, but, due to non-availability of the shop, the applicants could not get engage him in the business of his liking and he was got admitted in M.Com. The need for the shop in question, for carrying on business of the motor spare parts by Rajat Shekhar, is genuine and bonafide. The opposite party, Smt. Vidyawati, is aged about 70 years and she does not carry on any business in the said shop. She used to carry on business of kerosene oil earlier in the said shop, but, now she has shifted her business at Garhi Road. She is not in need of the said shop. If the shop in question is not released, the applicants would suffer greater hardship than the opposite party.
3. The opposite party, Smt. Vidyawati, has filed her written statement and has denied the allegations made in the said application. Her version is that the applicants have not shown the boundaries of the shop in question correctly, and she has mentioned the correct boundaries of the said shop in her written statement. The applicants are the land-lords of the said shop and she is the tenant therein at the monthly rent of Rs. 250/-. When the applicants refused to receive the rent, it is being deposited in the Rent Misc. Case No. 3 of 1995 in the court of Civil Judge (Jr. Division), Kheri. All adult members of the family of applicants are carrying on their separate business. The applicants have several shops, which have been let out. The details of some of the shops and the business being carried out therein have been mentioned in para 15 of the written statement. Sri Dwarikadhish Flour Mill of Sri Rajat Shekhar is situated at L.R.P. Road, Lakhimpur and he is carrying on his business separately. Sri Rajat Shekhar is also carrying on business of ornaments at M/s Krishna Aabhushan Bhandar, situated at Mohalla-Sarafa Bazar, Lakhimpur. Richa Shekar, wife of Rajat Shekhar and Divya Shekhar, wife of Gaurav Shekhar, are the partners in the said firm. The need of Sri Rajat Shekhar for the shop in question is not bonafide and genuine. Her husband was in Indian Army Service and he scarified his life for the country and became a Martyr. She was appointed dealer by Indian Oil Corporation and she is carrying on her business from the shop in question. Her oil depot is situated at Garhi Road, but, the main sale centre is situated in the said shop. In fact, her age is about 50 years and it is not correct that her age is about 70 years. She is widow of a soldier and she has no other place to carry on her business and the said business is the main source of her livelihood. The point of ownership of the disputed shop is also involved and the Prescribed Authority has no jurisdiction to hear the case. The O.S. No. 428 of 2000 is also pending between the parties. The said application is liable to be rejected.
4. The applicants have filed replication and have denied the main allegations made in the written statement. Their version is that para 15 of the written statement is not admitted. The applicants have no concern with Dwarikadhish Flour Mill. Sri Rajat Shekhar does not carry on any business of flour mill. The applicants have no other vacant shop at Kheri. As per the rules issued by Indian Oil Corporation, a dealer has to carry on his/her business from the place where underground tank is situated. The opposite party has constructed the underground tank at Garhi Road and her son-in-law and others, are carrying on business from there. The opposite party is aged about 70 years and she is not carrying on any business. No sale centre of the opposite party is situated at the shop in question.
5. After considering the evidence produced by both the parties and hearing learned Counsel, learned Prescribed Authority has held that the need of the applicants for the shop in question is not genuine and bonafide and the shop in question cannot be released in favour of the applicants merely on the ground that the opposite party would not suffer any hardship on her eviction from the said shop. On the basis of the said findings, learned Prescribed Authority has rejected the applicants' application for release of the shop in question vide judgment and order dated 28-05-2003.
6. Feeling aggrieved by the said Judgment and order dated 2805-2003, the applicants preferred Rent Appeal No. 7 of 2003 in the court of District Judge, Lakhimpur Kheri, which was allowed vide judgment and order dated 02-09-2009 passed by the learned Additional District Judge, Court No. 4, Lakhimpur Kheri holding that need of appellant's son, Rajat Shekhar, for the shop in question for carrying on business of motor spare parts is genuine and bonafide and he would suffer greater hardship than the opposite party, if the said shop is not released. The appellate court directed the respondent to vacate the shop in question within one month from the date of the order and directed the appellants to pay rent of two years as compensation to the respondent.
7. Counter Affidavit and Rejoinder Affidavit have been exchanged between the parties.
8. I have heard Sri Mohd. Arif Khan, learned Senior Advocate for the petitioner, Sri S.K.Mehrotra, learned Counsel for the opposite parties Nos. 2 & 3 and perused the record.
9. Learned Counsel for the petitioner has submitted that the need of the opposite parties Nos. 2 & 3/landlords for the shop in question is neither genuine nor bonafide and mere desire of the landlords is not sufficient to release the shop in question in their favour. He has further submitted that the learned Appellate Court has not considered the evidence on record properly and hence, has committed illegality in reversing the finding with regard to genuine and bonafide need as recorded by the learned Prescribed Authority. His submission is that the learned Appellate court has also not considered the third proviso appended to Sub-section (1) of Section 21 of the U.P. Act No. XIII of 1972 properly. He has further submitted that the impugned Judgment of the learned Appellate Court suffers from illegality and hence, it deserves to be quashed. In support of his contentions, he has placed reliance on the decision of Hon'ble Supreme Court reported in : (2003) 2 Supreme Court Cases 3, Atma S. Berar v. Mukhtiar Singh.
10. Learned Counsel for the opposite parties Nos. 2 & 3 has submitted that learned Appellate Court was perfectly justified in reversing the finding of the learned Prescribed Authority with regard to bonafide and genuine need of the shop in question and the said finding of the learned Appellate Court is based on correct appreciation of evidence available on record. His submission is that there is no manifest error of law in the impugned judgment of the learned Appellate Court and hence, no interference is warranted by this Court in exercise of its writ jurisdiction. In support of his contentions, he has placed reliance on the following decisions of the Hon'ble Supreme Court as well as of this Court.
1. 2008 (1) ARC 322 Supreme Court, Yadvendra Arya and Anr. v. Mukesh Kumar Verma.
2. 2009 (27) LCD 1552 Supreme Court, Ram Babu Agarwal v. Jay Kishan Das.
3. 2008 (1) ARC 467 Umesh Chandra Agrawal v. Additional District Judge, Court No. 7, Moradabad and Ors.
11. The Sub-section (1) of Section 21 of the U.P. Act No. XIII of 1972, so far as it is relevant, may be quoted as under:
21. Proceedings for release of building under occupation of tenant.-(1) The Prescribed Authority may, on an application of the landlord in that behalf order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely
(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade, or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust ;
(b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction:
Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be entertained on the grounds mentioned in Clause (a), unless a period of three years has elapsed since the date of such acquisition and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years:
Provided further that if any application under Clause (a) is made in respect of any building let out exclusively for non-residential purposes the prescribed authority while making the order of eviction shall after considering all relevant facts of the case, award against the landlord to the tenant an amount not exceeding two years' rent as compensation and may, subject to rules, impose such other conditions as he thinks fit:
Provided also that no application under Clause (a) shall be entertained
(i) for the purposes of a charitable trust, the objects of which provide for discrimination in respect of its beneficiaries on the ground of religion, caste or place of birth ;
(ii) in the case of any residential building, for occupation for business purposes ;
(iii) in the case of any residential building, against any tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925) has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act, or where he has died by enemy action while so serving then against his heirs:
Provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed.
12. It is not disputed that the petitioner/tenant is the widow of a soldier. The learned Counsel for the opposite parties Nos. 2 & 3 has submitted that Sub-clause (iii) of the third proviso applies to the residential building only and not to any commercial building. In the instant case, an application under Section 21 of the U.P. Act No. XIII of 1972 has been moved for release of the shop in question and not for any residential building. The petitioner is a tenant of the shop in question. From a bare perusal of Sub-clause (iii) of the third proviso, it is clear that the benefit of the said proviso is extended to the widow of a soldier in the case of any residential building and not in the case of any commercial building. Under these circumstances, I am of the view that the petitioner is not entitled to get any benefit in the matter of release of shop in question on the basis of Sub-clause (iii) of third proviso appended to Sub-section (1) of Section 21 of the U.P. Act No. XIII of 1972.
13. From the perusal of the record, it transpires that after hearing the arguments of learned Counsel for the parties, learned Prescribed Authority fixed the date for delivery of Judgment, but, before the delivery of Judgment, the marriage card relating to marriage of Raman S/o Ram Gopal Shekhar, applicant No. 1, was filed by the opposite party/petitioner on 27-05-2003(Annexure No. 9 to the writ petition). Neither the opportunity of hearing nor the opportunity to file evidence in-rebuttal was provided to the applicants by the learned Prescribed Authority. Thereafter, the Judgment was delivered on 28-05-2003. Thus, the learned Prescribed Authority has violated the principles of natural justice by admitting the said marriage card after fixing the date for delivery of Judgment, without affording any opportunity of hearing to the applicants- landlords. In the said marriage card, names of some business concerns/firms have been mentioned. The said marriage card has not been duly proved. I agree with the finding of learned Appellate Court that on the basis of said marriage card, it cannot be inferred that Sri Rajat Shekhar is the proprietor or partner of Rajat & Company or Sri Dwarikadhish Flour Mill (Pvt. Ltd.), particularly when, it has been denied specifically on behalf of the applicants- landlords. The burden lies upon the petitioner/tenant to establish that Rajat Shekhar has any business interest in the said business concerns, but, it has not been established from the evidence available on record that Rajat Shekhar owns the said Flour Mill or carries on the business in the name and style of Rajat & Company.
14. The applicants/landlords have admitted in their replication that their building situated at Mohalla-Idgah is in occupation of tenants and no vacant shop is available for setting up Sri Rajat Shekhar, in his own independent business. The burden lies on the petitioner/tenant to establish that the vacant shop is available to the landlords to set up the business of Rajat Shekhar independently,but, the petitioner has not been able to establish by reliable evidence that any vacant shop is available to the applicants for setting up the business of Sri Rajat Shekhar. The Commissioner's report is of no help to the petitioner in establishing that any vacant shop is available to the applicants for the said purpose.
15. In para 12 of the Counter Affidavit, it has been stated on behalf of applicants that the shop, which became available in the year 1999, does not belong to them, and it was owned by a trust, which was taken on rent for establishing Tanmay Shekhar, son of opposite party No. 3, Sri Krishna Gopal Shekhar, and he is occupying the said shop as tenant. It has been further asserted that the said shop was not suitable for doing business of motor spare parts. The location of a particular shop is relevant for carrying on any business. The land-lords are not expected to give any explanation as to why the said shop was not provided to Rajat Shekhar for carrying on his independent business. The tenant has no right to dictate the landlord as to how and in what manner, he should manage his own affairs with regard to business. Every adult member of the family is entitled to carry on independent business of his liking and it is not necessary that every member of the family should engage himself in the family business. It is also not necessary to establish that Rajat Shekhar has experience in carrying on the business of motor spare parts, which he intends to start in the shop in question.
16. In the case of Ram Babu Agarwal (Supra), Hon'ble Supreme Court has held that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new business even if they do not have experience in the new business and sometimes, they are successful in the new business also. Thus, it is clear that bonafide need of the applicants, cannot be rejected merely on the ground that Rajat Shekhar has no experience in carrying on business of motor spare parts.
17. In the case reported in : 2000 (1) SCC 679, Ragavendra Kumar v. Firm Prem Machinery & Co., Hon'ble Supreme Court has held that 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.
18. The basic need concept was considered by Hon'ble Supreme Court in the case reported in : AIR 2003 SC 532, Akhileshwar Kumar and Ors. v. Mustaqim and Ors. and it has been quoted in para 11 of the judgment rendered in the case of Yadvendra Arya and Anr. (Supra). Para 11 of the said Judgment may be quoted as under:
11. So far as the basic need concept is concerned is Akhileswar Kumar and Ors. v. Mustaqim and Ors. : AIR 2003 SC 532 : 2003 SCFBRC 137, it was inter alia held as follows: 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 to 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 plaintiff 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 needly. The Court cannot thrust upon its own choice on the needy. Of course, the choice has to be exercised reasonable 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 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.
19. In view of the principles of law laid down by the Hon'ble Supreme Court, it is clear that the landlord is the best Judge of his requirement and the tenant or the court cannot thrust upon its own choice on him.
20. The learned Appellate Court has considered the evidence available on record thoroughly and has held that the need of the landlords for the shop in question for setting up the business of motor spare parts for applicants' son Rajat Shekhar is genuine and bonafide. The said finding of fact is based on correct appreciation of evidence available on record. Hence, no interference is warranted by this Court in exercise of writ jurisdiction. In my view, learned Appellate Court has reversed the finding of the learned Prescribed Authority in this regard rightly.
21. The copy of G.O. No. 2923 dated 17-10-1998 filed by the applicants, indicates that U.P. Kerosene Control Order, 1962 has been amended and it has been provided that every dealer shall store the kerosene oil in the underground tank and if the underground tank is not constructed by 31-03-1999, the licence of the dealer shall be cancelled. It has been admitted by the petitioner/tenant that her oil depot is situated at Garhi Road. The learned Prescribed Authority has considered this aspect of the matter and has rejected petitioner's version that she cannot carry on her business from the said place, where her oil depot is situated. Learned Prescribed Authority has categorically held that it cannot be accepted that after establishment of her oil depot at Garhi Road in the year 1999, she would suffer greater hardship than the applicants if she is evicted from the shop in question. The petitioner has stated her age as 50 years, but, the Prescribed Authority has mentioned in its judgment that she has filed the copy of plaint of O.S. No. 428 of 2008, pending between the parties and she herself has disclosed her age as 75 years in the said suit. Thus, the stand taken by the opposite party with regard to her age is far from truth.
22. Sub Rule (2) of Rule 16 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, provides as under:
(2) While considering an application for release under Clause (a) of Sub-section (1) of Section 21 in respect of building let out for purposes of any business the prescribed authority shall also have regard to such facts as the following:
(a) the greater the period since when the tenant opposite party, or the original tenant whose heir the opposite party is, has been carrying on his business in that building, the less justification for allowing the application ;
(b) where the tenant has available with him, suitable accommodation to which he can shift his business without substantial loss there shall be greater justification for allowing the application ;
(c) ....
(d) ....
23. The petitioner has established her underground tank for storing kerosene oil at Garhi Road. She can shift her business there easily without any substantial loss. Hence, there is greater justification for allowing the application for release in view of Rule 16(2) (b) of the said Rules. The learned Appellate Court has also considered the comparative need of the parties and has held that the applicants would suffer greater hardship than the opposite party/petitioner in case the application for release of shop in question is rejected. Thus, on the point of comparative hardship, the learned Prescribed Authority as well as learned Appellate Court have recorded concurrent findings of fact that the applicants would suffer greater hardship than the opposite party/petitioner.
24. In the case reported in : (2001) 4 SCC 478, Ashok Kumar and Ors. v. Sita Ram, the Hon. Supreme Court has held that a finding of fact recorded by the final court of fact should not ordinarily be interfered with by the High Court in exercise of writ jurisdiction, unless the Court is satisfied that the finding is vitiated by manifest error of law or is patently perverse. The High Court should not interfere with a finding of fact simply because it feels persuaded to take a different view on the material on record. The Court should bear in mind that it is not acting as yet another appellate Court in the matter.
25. I have carefully gone through the impugned judgments of the learned prescribed Authority as well as of the appellate court. The findings of facts recorded by the learned appellate court are based on evidence available on record. There seems to be no illegality or error of law or perversity in the impugned judgment and order. In view of principle of law laid down by the Hon'ble Supreme Court, no interference is called for in the findings of facts recorded by the final court of fact, that is, appellate court, which are based on correct appreciation of material on record, by invoking writ jurisdiction under Article 226 of the Constitution of India.
26. In view of the foregoing discussions, I am of the view that no interference is warranted in the impugned Judgment and order dated 02-09-2009 passed by the learned Appellate Court. This writ petition lacks merit and it is dismissed accordingly.