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G.C. Ghildayal Vs. District Judge, Allahabad and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 865 of 1975
Judge
Reported inAIR1975All309
ActsUttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 21 and 21(1); Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules - Rule 16 and 16(1); Constitution of India - Article 226
AppellantG.C. Ghildayal
RespondentDistrict Judge, Allahabad and anr.
Appellant AdvocateMohd. Mooris, ;K.C. Saxena and ;Habibullah, Advs.
Respondent AdvocateS.P. Gupta, Adv. and ;Standing Counsel
DispositionPetition dismissed
Excerpt:
.....a number of grounds. saksena, learned counsel for the petitioner, submitted that the orders of the prescribed authority as well as that of the appellate authority are not sustainable in law as both the authorities failed to consider the hardship likely to be caused to the petitioner by his eviction from the premises in question arid further the said authorities failed to consider the comparative needs of the tenant and the landlord. it was further submitted that both the authorities failed to consider the relevant factors in considering the landlord's application and they passed order of eviction in violation of section 21 and rule 16 of the u. he further urged that the various factors prescribed in rule 16 are not necessary to be considered by the prescribed authority in a case where..........that purpose it shall also have regard to the facts enumerated in the various sub-clauses of the rule. rule 16 contains two clauses. clause (1) lays down guidelines which are required to be taken into account in considering the case of a landlord for purposes of his residence while clause (2) of the rule prescribes factors which are required to be taken into account in considering the case of a landlord in respect of a building let out for purposes of business. rule 16 (1) contains clauses (a) to (g) which the prescribed authority has to take into account in considering the application of the landlord. the enacting clause of rule 16 (1) further lays down that the considerations laid down in the rule. i.e., likely hardship which may be caused to the tenant from the grant of the.....
Judgment:
ORDER

K.N. Singh, J.

1. This is a petition under Article 226 of the Constitution directed against the order of the Prescribed Authority passed tinder Section 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, directing the petitioner's eviction from the accommodation in question and the order of the IV Additional District Judge, Allahabad, dismissing the petitioner's appeal.

2. Sri G.C. Ghildayal, the petitioner, is a practising Advocate of this Court. He is one of the tenants of the premises of building No. 11, Mayo Road, Allahabad, since 1948. There are two other tenants besides the applicant who are occupying the portion of the said building as tenants. Justice Hiralal Kapoor, who is landlord of the premises in question, filed an application under Section 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as the Act, against the petitioner as well as the two other tenants, namely, Sri S. Williams and Lalmani Singh, before the prescribed Authority, Allahabad, for their eviction on the ground that he bona fide required the building in question for his own residence and occupation. Certain technical' objections were raised against the application with the result Justice Kapoor made amendments in the original application and three separate applications were filed against the petitioner as well as against the two other tenants. The petitioner as well as the other two tenants contested the application on a number of grounds. The prescribed Authority held that the landlord's need was genuine and bona fide and pressing as compared to the tenants' need and requirement, therefore he allowed the landlord's application and directed the petitioner's eviction by his order dated 4th November, 1974. The petitioner and the other two tenants filed three separate appeals before the Appellate Authority. All the three appeals were disposed of by the Additional District Judge by a common order dated 16th January, 1975. The Appellate Authority affirmed the findings of the Prescribed Authority and upheld the order of eviction. Aggrieved, the petitioner approached this Court by means of the present writ petition challenging the aforesad two orders of the Appellate Authority and the Prescribed Authority directing the petitioner's eviction from the premises in question.

3. Sri K.C. Saksena, learned Counsel for the petitioner, submitted that the orders of the Prescribed Authority as well as that of the Appellate Authority are not sustainable in law as both the authorities failed to consider the hardship likely to be caused to the petitioner by his eviction from the premises in question arid further the said authorities failed to consider the comparative needs of the tenant and the landlord. It was further submitted that both the authorities failed to consider the relevant factors in considering the landlord's application and they passed order of eviction in violation of Section 21 and Rule 16 of the U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Rules. He further urged that both the authorities committed a patent error of law and fact in coming to the conclusion that since the landlord was a High Court Judge, his social status required more accommodation for him and that the petitioner could find an alternative accommodation for his residence.

4. Sri Jagdish Swarup, learned Counsel appearing for the respondent-landlord, urged that the findings recorded by the Prescribed Authority and the Appellate Authority about the bona fide and genuine need of the landlord are findings of fact which cannot be interfered with in the present proceedings, the two authorities have considered the matter at length and compared the need of the tenant and the landlord, their orders do not suffer from any legal infirmity. He further urged that the various factors prescribed in Rule 16 are not necessary to be considered by the Prescribed Authority in a case where the Explanation to Section 21 (1) of the Act was applicable and in the alternative he urged that the Prescribed Authority as well as the Appellate Authority, considered the question of likely hardship to the tenant and the orders do not suffer from any patent error of law or fact.

5. Section 21 of the Act lays down that the Prescribed Authority may oh an application by the landlord order the eviction of a tenant from the building under tenancy if it is satisfied that any of the grounds laid down therein exists. Under Clause (a) of Section 21 (1) if the Prescribed Authority is satisfied that the building is bona fide required by the landlord for occupation by himself or any member of his family either for residential purposes or for purposes of any profession, trade or calling, it may order eviction of the tenant from the building under tenancy. The Explanation to Sub-section (1) lays down certain exceptions to the general provisions contained under Sub-section (1). There are four Explanations to Sub-section (1) of Section 21. Explanation (i) lays down that where the tenant or any member of his family may have built or may have otherwise acquired in a vacant state or may have got vacated after acquisition a residential building in the same city. Municipality, Notified Area or Town Area, in such a case no objection by the tenant shall be entertained in opposition to the application of the landlord filed under Sub-section (1) of Section 21. Explanation (ii) further lays down that in a case where the landlord was engaged in any trade, profession, employment or calling, away from the Municipality, Notified Area or Town Area and by reason of cessation of such engagement the landlord needed the building for occupation by himself for residential purposes, such need shall be deemed sufficient for the purpose of Clause (a). Explanation (ii) thus creates a presumption relating to the bona fide need of the landlord. Similarly, Explanations (iii) and (iv) make provision for presuming bona fide need of the landlord if the conditions set out therein are fulfilled. The four Explanations to Sub-section (1) of Section 21 of the Act have been enacted by the legislature to safeguard the interest of landlord.

6. In the instant case, Explanation (ii) is material which is in the following words:--

'(ii) where the landlord was engaged in any profession, trade, calling or employment, away from the city, municipality, notified area or town area within which the building is situated and by reason of the cessation of such engagement he needs the building for occupation by himself for residential purposes, such need shall be deemed sufficient for purposes of Clause (a);'

The above explanation read with the substantive provision contained in Sub-section (1) and (1) (a) of Section 2l contemplates that where the landlord who makes an application for the eviction of the tenant from the building under tenancy for purposes of his own residence, the landlord is not required to prove the genuineness or bona fide of his need, instead in such a case such need shall be deemed sufficient under the aforesaid Explanation (ii) provided the landlord was away from the city. Municipality, notified Area or Town Area within which the building may be situated on account of his engagement in any profession, trade, calling or employment and by reason of the cessation of his engagement in such profession, trade or calling and employment he may require the building for his own residence. The legislature intended that where a landlord who may be employed in service and for that reason he may be residing, away from the place or city wherein his building may be situated, and if on account of termination of his service or on account of his retirement from service, he required the building for his own occupation, in such a case the landlord need not prove his bona fide need as contemplated by Section 21 (1) (a), instead his need will be deemed sufficient for the purpose of Clause (a). The Explanation thus lays down a rule of evidence which raises, a presumption with regard to the need of the landlord.

7. Rule 16 lays down that in considering the requirement of personal occupation for purposes of residence by the landlord or any member of his family the Prescribed Authority shall take into account the likely hardship of the tenant from the grant of the application as against the likely hardship which may be caused to the landlord from the refusal of the application and for that purpose it shall also have regard to the facts enumerated in the various sub-clauses of the rule. Rule 16 contains two clauses. Clause (1) lays down guidelines which are required to be taken into account in considering the case of a landlord for purposes of his residence while Clause (2) of the rule prescribes factors which are required to be taken into account in considering the case of a landlord in respect of a building let out for purposes of business. Rule 16 (1) contains Clauses (a) to (g) which the Prescribed Authority has to take into account in considering the application of the landlord. The enacting clause of Rule 16 (1) further lays down that the considerations laid down in the rule. i.e., likely hardship which may be caused to the tenant from the grant of the application or the consideration of the various factors as contained in Clauses (a) to (g) are not necessary to be taken into account in a case where any of the four explanations to Section 21 (i) is applicable. Thus in a case where there is a presumption available to a landlord under Explanation (ii) to Section 21 of the Act, the Prescribed Authority is not required to consider the various factors under Rule 16 because the legislature has expressly laid down that the bona fide need of the landlord shall be presumed for the purposes of Section 21 (1) (a).

8. In the instant case admittedly Justice H.L. Kapoor prior to his elevation to the High Court as a Judge was engaged in service as District Judge and in that connection he was posted outside the city of Allahabad. In June, 1972, he retired from service and thereafter he came to reside at Allahabad. In September, 1972, he was appointed a Judge of this Court. On 24th February, 1973, he filed an application for the release of the accommodation in question. After his retirement and even after his appointment as a Judge of this Court he has been residing in House No. 13, Mayo Road, Allahabad, along with his brothers and nephews and other relations. These facts clearly attract Explanation (ii) to Section 21 (1) (a) and thus he is entitled to the benefit of the presumption contained in the said provision. The need of the landlord was thus bona fide and genuine for his own residence and occupation and the Prescribed Authority and the District Judge were not required to consider the likely hardship which may be caused to the tenants.

9. But even if Explanation (ii) is not attracted as has been urged on behalf of the petitioner, the Prescribed Authority as well as the Additional District Judge have recorded findings on the appraisal of evidence on record that the need of the landlord was bona fide and genuine and they considered the question of likely hardship also. It is noteworthy that thrice Commissioners were appointed by the Prescribed Authority to inspect the premises in question and to submit report. The reports of the Commissioners are on the record. A perusal of the same clearly indicates that Justice H.L. Kapoor was occupying only two rooms and he was sharing a drawing room with his brother Sri Krishna Kapoor who is a practising Advocate of this Court. Both the brothers are residing in the same portion of the building. The contention of Justice H.L. Kapoor that, he is not able to do any official work at his residence and that he is greatly embarrassed on account of the presence of the Chamber of his brother, an Advocate of this Court, is fully supported by the three reports of the Commissioners who found that Sri Krishna Kapoor was having his office in one of the rooms in the same portion of the building. The Prescribed Authority as well as the District Judge both have further recorded a finding that having regard to the social status and the need of a High Court Judge for having privacy to discharge his official duties which include dictation of judgments which are highly confidential in nature, Justice Kapoor required separate and adequate accommodation for him. The circumstances in which Justice H.L. Kapoor is residing is neither befitting to a Judge nor convenient for his living. The two authorities have further recorded a finding that even though there are a number of rooms in the premises No. 13 Mayo Road. Allahabad, in which Justice H.L. Kapoor is residing but there are as many as 23 different members of the family of Justice Kapoor residing in the same premises. The house (13 Mayp Road) is a joint family property and various portions are in the occupation of the other members of the family. Justice H.L. Kapoor is living in two rooms and he has no separate drawing room, no room for his office and no dining room according to his requirement and social status. Both the authorities have further recorded a finding that Sri Krishna Kapoor is a practising lawyer and he is living in the premises in which Justice H.L. Kapoor is residing which has been causing great embarrassment to him. Further one of the nephews of Justice H.L. Kapoor carries on business in cement and he has a go-down in the same premises. Customers and outsiders visit the premises for purchase of cement. On this account also Justice H.L. Kapoor is not able to maintain his privacy. The findings recorded by both these authorities are well supported by the evidence on record including the three reports of the Commissioners appointed by the Prescribed Authority as well as by the affidavits filed before the said authorities. Thus both the authorities have recorded a finding that the need of the landlord was bona fide and genuine.

10. The contention that the comparative need of the landlord and tenant was not considered is untenable. The Prescribed Authority considered the need of the petitioner and other two tenants. The Prescribed Authority observed that on a comparison he was of the opinion that the need of the landlord was more pressing than that of the tenant. In that connection the Prescribed Authority observed that the landlords' application for release of the accommodation in question was pending for the last two years but the petitioner did not make any sincere or bona fide effort for obtaining any other alternative accommodation for him even though alternative accommodations were available. It further observed that the need of the landlord was genuine and bona fide and more pressing as compared to the need and requirement of the petitioner. There is no doubt paucity of accommodation but nonetheless the petitioner did not make any effort for getting an alternative accommodation allotted to him. The findings recorded by the Prescribed Authority were affirmed by the District Judge. In the circumstances both the authorities complied with the requirements of Rule 16.

11. Sri K.C. Saxena, learned counsel for the petitioner, then urged that the Prescribed Authority as well as the Additional District Judge failed to consider the requirement of Rule 16 (1) (e) which lays down that where there are a number of tenants separately occupying a block of tenements and the landlord desires their eviction on grounds of his personal need the Prescribed Authority shall consider whether suitable alternative accommodation is likely to be available to such tenants. It is noteworthy that the Prescribed Authority has only to consider as to whether suitable alternative accommodation is likely to be available to such tenants. In the instant case there are three tenants separately occupying the building in question and the landlord desires their eviction on the ground of his personal need, but the Prescribed Authority as well as the Additional District Judge both considered the question of availability of suitable alternative accommodation and in that connection both the authorities observed that the petitioner did not make any bona fide effort for an alternative accommodation although it was available. The expression 'likely to be available to such tenants' does not require the authorities concerned to record a positive finding that suitable alternative accommodation was available to them. The Prescribed Authority is required to consider as to whether there was any likelihood of availability of suitable alternative accommodation to the tenants. The requirement of Clause (e) of Rule 16 (1) has been fully complied with by the Prescribed Authority as well as by the District Judge

12. It was then urged that the question of hardship likely to be caused to the tenant from eviction from the premises in question was not considered either by the Prescribed Authority or by the District Judge. The argument is, wholly misconceived. Since Explanation (ii) to Section 21 (1) (a) is applicable to the instant case the Prescribed Authority or the District Judge were not required to consider the hardship likely to be caused to the petitioner as would be clear from the enacting Clause of Rule 16. But even if the question of likely hardship to the tenant was required to be considered the two authorities have considered that question aS noted earlier the Prescribed Authority as well as the District Judge both recorded a finding that ii the application of the landlord was refused great hardship would be caused to the landlord. Justice H.L. Kapoor, who has got only two rooms at his disposal for residence and he has no separate drawing room, no office room and no dining room. The Prescribed Authority as well as the District Judge considered the question of adequacy and reasonableness of the accommodation available to Justice H.L. Kapoor and having regard to the various factors prescribed in Clause (e) of Rule 16 (1) both the authorities have recorded a finding that if the application of the landlord was refused and the accommodation was not released in his favour he would be put to great hardship and in that connection they considered the likely hardship which may be caused to the tenants. The petitioner's contention is thus untenable.

13. I find no substance in the contention that unless the various considerations enumerated in Clauses (a) to (g) of Rule 16 (1) are taken into account, the order of the Prescribed Authority releasing the accommodation in favour of the landlord would be vitiated. The scheme of Section 21 and Rule 16 makes it clear that once the landlord's need is found genuine and bona fide for his residence the Prescribed Authority shall evict the tenant but in passing that order of eviction the Prescribed Authority should consider the considerations mentioned in Clauses (a) to (g) of Rule 16 which provide guidelines to the Prescribed Authority for considering the application for release of accommodation on the ground of personal requirement of the landlord and in that connection likely hardship which may be caused to the tenant from the grant of application and the likely hardship which may be caused to the landlord from the rejection of his application for release has to be taken into account and for that purpose the various considerations as enumerated in Clauses (a) to (g) are required to be considered. The expression 'shall have regard to such facts as the following' occurring in the enacting clause of Rule 16 indicates that the guidelines mentioned therein should be considered by the Prescribed Authority. It is, however, noteworthy that the expression 'shall have regard to' does not contemplate that the Prescribed Authority must address itself to all the factors enumerated in Clauses (a) to (g) and the order would not be invalid on the ground that one of the considerations enumerated in Clauses (a) to (g) was not expressly considered in evicting the tenant from the building in his tenancy.

The expressions' 'have regard to' or 'having regard to' have been subject to judicial interpretation in Ryots of Garabandho v. Zamindar of Parlakimedi . The Privy Council dealt with the meaning of the expression in the following words:--

'The view taken by the majority of the Collective Board of Revenue in making the order dated October 19, 1936, which is now complained of is that the requirement to 'haying regard to' the provisions in question has no more definite or technical meaning than that of ordinary usage, and only requires that these provisions must be taken into consideration.'

The above observation of the Privy Council was quoted with approval by the Supreme Court in Mysore State Electricity Board v. Bangalore W. C. and S. Mills, : AIR1963SC1128 . The Supreme Court interpreted Section 49 of the Electricity (Supply) Act, 1948 and observed that even though under the said section the Electricity Board was required to fix tariff 'having regard to the nature and geographical position of the supply and the purpose for which it is required' a consumer of electricity was not entitled to raise a dilute against the Board on the footing that the Board did not pay due regard to the nature and geographical position of the supply and the purpose for which it was required. The principle laid down in these cases is applicable' in interpreting Rule 16 wherein the expression 'shall have regard to such facts' occurs. The primary consideration for the Prescribed Authority is to take into account the likely hardship which may be caused to the tenant or the landlord by the grant or refusal of the application and in that connection it may also consider such facts as enumerated in Clauses (a) to (g). In the instant case, Clauses (a) and (e) of Rule 16 (1) were applicable. As already discussed, the Prescribed Authority as well as the Additional District Judge have considered the factors mentioned in Clauses (a) and (e) of Rule 16, other clauses were not applicable to the facts of the instant case.

14. Learned counsel for the petitioner placed reliance on a judgment of brother Gulati, J., in Roshan Lal v. State, (1975) 1 All LR 13, affirmed in Special Appeal No. 304 of 1974, decided on 21st November, 1874 (All), in support of his contention that even in a case where any of the Explanations to Section 21 (1) (a) was applicable the Prescribed Authority was under a legal duty to consider the various factors prescribed under Rule 16 and the hardship likely to be caused to the tenant on his eviction from the premises. It is true that brother Gulati held that even in a case where the landlord is able to make out a bona fide need for the accommodation in question the Prescribed Authority is required to consider the likely hardship which may be caused to the tenant from his eviction while considering the question of release of the accommodation and eviction of the tenant therefrom, aS already discussed in the instant case both the authorities namely the Prescribed Authority and the Additional District Judge have recorded a detailed finding on this question and in my opinion they have fully complied with the requirements of Rule 16. Thus the case of Roshan Lal is of no assistance to the petitioner.

Reliance was then placed on Jagannath Prasad v. State, 1973 All WR (HC) 622 on behalf of the petitioner in support of the contention that in a case where the need of the landlord is found genuine and bona fide it is imperative for the Prescribed Authority to compare the need of the landlord and the tenant. I have already referred to the findings recorded by the Prescribed Authority and the District Judge and both the authorities have compared the need of the tenant and the landlord and I do not find any prior in their judgment.

15. Learned Counsel for the petitioner urged that the findings recorded by the District Judge as well as by the Prescribed Authority were erroneous and in that connection he referred to the observations made by the District Judge that the petitioner was an Advocate and as such he must be an influential person and it would not be difficult for him to find an alternative accommodation. The Prescribed Authority had recorded a detailed finding and observed that the petitioner did not make any effort to obtain any alternative accommodation although alternative accommodations were available.

That finding was affirmed by the Appellate Authority and it was only in a passing manner that the Appellate Authority made an observation that the petitioner being an Advocate must be an influential person; as such he could find an alternative accommodation. Even though the observations may be erroneous it would not warrant interference by this Court under Article 226 of the Constitution. The Prescribed Authority and the Appellate Authority had jurisdiction to record findings of fact as they have done in the instant case on the appreciation of evidence on the record and this Court is not entitled to interfere with those findings even though some of the findings may be erroneous. The findings recorded by the said two authorities cannot be reviewed by this Court like an Appellate Court Both the authorities were entitled to come to their own conclusion. A writ of certiorari can issue for correcting errors committed by inferior courts or Tribunals where in exercise of its jurisdiction the Tribunal acts improperly or illegally or violates principles of natural justice in passing the order. Further a patent error of law can be corrected by issue of a writ of certiorari but the jurisdiction of this Court does not extend to correction of errors which may have arisen on appreciation of evidence. Adequacy or sufficiency of evidence on a point or the inference of facts to be drawn from the said finding is within fee exclusive jurisdiction of the Tribunal and the same cannot be agitated in this Court under Article 226 of the Constitution.

In Syed Yakoob v. K.S. Radhakrishnan : [1964]5SCR64 the Supreme Court observed as follows:--

'The jurisdiction of High Court to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an Appellate Court, The limitation necessarily means that findings of fact reached by the inferior court or Tribunal as result of the appreciation of evidence cannot be re-opened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be.' Applying the above observations of the Supreme Court, I find no error apparent on the face of the record in the impugned orders, hence the petitioner is not entitled to the issue of any writ or direction in the present proceedings.

16. In view of the above discussion, I do not find any error apparent on the face of the record in the two impugned orders. The petition fails and is accordingly dismissed. There will be no order as to costs.


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