Full Judgment Text
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PETITIONER:
OM PRAKASH AND ORS.
Vs.
RESPONDENT:
SMT. SUNHARI DEVI AND ORS.
DATE OF JUDGMENT02/03/1993
BENCH:
BHARUCHA S.P. (J)
BENCH:
BHARUCHA S.P. (J)
KULDIP SINGH (J)
CITATION:
1993 SCR (2) 144 1993 SCC (2) 397
JT 1993 (3) 641 1993 SCALE (1)743
ACT:
U.P. Urban Building (Regulation of Letting, Rent and
Eviction) Act, 1972: Section 21(1)(a)-Eviction petition-
Comparative hardship-Bonafide requirement-Reassessment of
evidence by High Court under its writ jurisdiction-
Permissibility of.
Constitution of India, 1950: Arts. 136 226-Writ jurisdiction
of High Court-Assessment of evidence- Permissibility of-
Interference in such matters under Special Leave
jurisdiction-Whether called for.
HEADNOTE:
The appellant-landlords filed an eviction petition against
respondent-tenants on the ground that they required the shop
premises for their own use. The prescribed authority
dismissed the petition holding that the appellants’
requirement was not bonafide and that greater hardship would
be caused to the respondents than to the appellants. On
appeal the appellate authority held that the requirement of
the appellants was genuine and bonafide. The respondent
filed a Writ Petition before the High Court and it observed
that the appellate authority ought to have ascertained the
actual accommodation available in the property after
excluding the accommodation necessary for residential
purposes and should have found out whether two rooms on the
first floor could be spared for business. ’Me High Court
further observed that the appellate authority was not
justified in entering into the question of privacy and that
the appellants had failed to disclose their residential
accommodation. The High Court thus quashed the order of the
appellate authority and restored the appeal to the file of
the appellate authority to be decided afresh after hearing
the parties and in the light of the observations made by it.
This has been challenged in the present appeal by special
leave.
On behalf of the appellants, it was contended that it was
not open to the High Court to have reassessed the evidence,
especially under its Writ jurisdiction.
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On behalf of the Respondent it was contended that the
findings of the appellate authority were perverse and
therefore a re-assessment of the evidence was called for.
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Allowing the appeal, this Court,
HELD : 1.1. Even in a second appeal the High Court must
restrict itself to questions of law; all the more so in a
writ petition. [147H]
1.2. In the instant case, the High Court re-assessed the
evidence and went beyond its legitimate jurisdiction. The
intervention of this Court is therefore, called for,
especially since the High Court has directed the appellate
authority to decide the appeal afresh "in the light of the
observations made above". This Court does not approve of
some of those observations. It is very difficult to see how
a landlord can be asked to build alternate premises. It is
also very difficult to see how a landlord who has asked for
the eviction of a tenant from commercial premises can be
faulted for not having given particulars of his residential
accommodation and how this can be treated as a purposeful
attempt on his part to keep back relevant material from the
court, which should be taken into consideration in deciding
his bona fide need. [148A-C]
2. The judgment and order under appeal are set aside. The
order of the appellate authority dated 26th November, 1990
is restored.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 100 of 1993.
From the Judgment and Order dated 2.9.92 of the Allahabad
High Court in Civil Misc. W.P. No. 32805 of 1990.
R.K. Jain and S.R. Setia for the Appellants.
Rajinder Sachhar and K.C. Dua for the Respondents.
The Judgment of the Court was delivered by
BHARUCHA, J. The appeal is directed against the judgment and
order of the High Court at Allahabad allowing the writ
petition filed by the respondents and ordering that the
appeal, the order which was impugned in the writ petition,
should be decided afresh in the light of the
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observations made in its judgment.
The appellants are the landlords and the respondents the
tenants. The appellants filed an eviction petition against
the respondents under section 21(1)(a) of the U.P. Urban
Building (Regulation of Letting, Rent and Eviction) Act,
1972 on the ground that they bonafide required the tenanted
premises, a shop, for their own use. The prescribed
authority under the said Act dismissed the eviction petition
holding that the appellants’ requirement was not bonafide
and that greater hardship would be caused to the respondents
than to the appellants. The appellants filed an appeal and
the appellate authority allowed the same holding that the
requirement of the appellants was genuine and bonafide. It
also held in favour of the appellants upon the aspect of
comparative hardship.
The respondent thereupon preferred the writ petition (being
CMWP No.32805 of 1990) in the Allahabad High Court under
Article 226 of the Constitution of India and impugned the
judgment and order of the appellate authority. The High
Court noted that a perusal of the orders of the prescribed
authority and the appellate authority showed that seven
properties were available to the landlords and these were
relevant for the purposes of determining their bonafide
need. In regard to a particular property (in Mohalla
Shitala), the High Court found that the appellate
authority’s conclusion was not justified. From the material
upon the record it appeared to the High Court that this
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property was available to the appellants and the second
appellant was actually residing in it. The consequence of
this finding was that accommodation on the first floor,
which was alleged by the appellants to have been occupied
for residential purposes, could be freed for doing business.
The High Court had not concluded that the business could not
be carried on in this property. The High Court then noted
that the appellants had themselve pleaded that certain open
land available to them was not sufficient for constructing a
shop, being too small. In view of this pleading the High
Court inferred, in its view, legitimately, that the
appellants had no objection and were capable of raising a
new construction over the open land available to them
subject to their objection regarding its size. The
authorities, in these circumstances, should, it said, have
considered the availability of this land to meet the
appellants’ requirements. This had been done by the
prescribed authority but his finding had been reversed by
the appellate authority on the basis that it would not be
proper to direct the appellants to raise money and to
construct a shop over
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the open land. In the High Court’s opinion this approach
was not justified. The appellate authority should have
confined its consideration of this open land only to its
size. In regard to a shop left by one Lal Chaturson, the
findings of the appellate authority were found by the High
Court to be full of conjectures and surmises. The
measurement of the shop had not been disclosed and there was
nothing on the record to show that it could not be used for
accommodating three persons doing the same business, namely,
that of manufacturing ornaments. In regard to yet another
property it had been admitted by the appellants that they
carried out construction on the first as well as second
floor. In the High Court’s view, the appellate authority
ought, in the circumstances, to have ascertained the actual
accomodation available in this property "as the business can
be carried out and it was being carried out earlier from the
first floor". The appellate authority, after excluding the
accommodation necessary for residential purposes, should, it
held, have ascertained whether two rooms on the first floor
could be spared for the proposed business. So far as
privacy was concerned, no such case having been set up by
the appellants, the appellate authority was not justified in
entering into this question. Further, since the prescribed
authority had noticed the fact that the appellants had
failed to disclose their residential accommodation in the
application, and it %,as "purposive, the appellate authority
ought to have taken the effect of this into consideration on
the question of the bona .fide need of appellants. For
these reasons the High Court quashed the order of the
appellate authority and restored the appeal to the file of
the appellate authority to be decided afresh after hearing
the parties and "in the light of the observations made
above".
Learned counsel for the appellants submitted that it was not
open to the High Court to have re-assessed the evidence,
particularly in a proceeding under Article 226. Counsel for
the respondents, on the other hand, submitted that the
findings of the appellate authority were perverse and the
High Court was, therefore, entitled to look into the
evidence and come to the findings it reached. In his
submission, this Court ought not to exercise its
jurisdiction under Article 136 because all that the High
Court had done was to remand the matter to the appellate
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authority.
Even in a second appeal the High Court must restrict itself
to questions of law-, all the more so in a writ petition.
We have referred to the findings of the High Court in some
detail. They leave us in no doubt
148
that the High Court re-assessed the evidence and went beyond
its legitimate jurisdiction. The intervention of this Court
is therefore, called for, especially since the High Court
has directed the appellate authority to decide the appeal
afresh "in the light of the observations made above". We do
not approve of some of those observations. It is, to take
one example, very difficult to see how a landlord can be
asked to build alternate premises. To take another, it is
very difficult to see how a landlord who has asked for the
eviction of a tenant from. commercial premises can be
faulted for not having given particulars of his residential
accommodation and how this can be treated as a purposeful
attempt on his part to keep back relevant material from the
court, which should be taken into consideration in deciding
his bona fide need.
The appeal is allowed. The judgment and order under appeal
are set aside. The order of the appellate authority dated
26th November, 1990 is restored.
The respondent shall pay to the appellants the costs of this
appeal and of the writ petition quantified at Rs. 3,000.
G.N.
Appeal allowed.
149