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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. 145 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 146 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 147 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