Mast Ram Nawani v. District Judge, Chamoli & Ors.

Judgment

#1. 2.

#4. District Judge, Chamoli. Prescribed Authority/Civil Judge (Senior Division) Chamoli, District Chamoli. Rishi Prasad Bhatt S/O Sri Yogeshwar Prasad Bhatt, Resident of Upper Bazar Joshimath, Patwari Circle & Tehsil Joshimath, Distt. Chamoli. Yogeshwar Prasad Bhatt S/O Moti Ram Bhatt, Resident of village Sunil, Patwari Circle & Tehsil Joshimath, District Chamoli. … Respondents. Sri Pankaj Purohit, Advocate, learned counsel for the petitioner. Learned Standing Counsel for the respondents No. 1 & 2. Sri B.P.Nautiyal & Sri H.M.Bhatia, Adv. Learned counsel for respondent no. 3. Dated March 23, 2006. PC: (Hon’ble B.S. Verma, J.)

Heard learned counsel for the petitioner Sri Pankaj Purohit, Advocate as well as learned Standing Counsel and Sri B.P.Nautiyal, Advocate, for the respondents. By way of this Writ Petition, the petitioners seek direction of this Court for setting aside the judgment and order dated 23-10-2004 passed by the Prescribed Authority/Civil Judge (Sr.Division) Chamoli in Rent Case No. 04 of 2000 Rishi Prasad Vs. Mast Ram and another ( Annexure No. 15) and the judgment and order dated 13.12.2004 passed by the District Judge Chamoli ( Annexue-17) in Misc. Civil Appeal No. 06 of 2004. By the judgment and order passed by the Prescribed Authority ( Annexure No.15) the application for release of premises in question moved by the landlord-respondent under Section 21(1)(A) of the U.P.Act No. 13 of 1772 ( for short the Act) was allowed against the tenant- 2 petitioner and the appeal preferred by the petitioner-tenant against the judgment and order dated 23-10-2004 before the District Judge was also dismissed as per judgment and order contained in Annexure No. 17. Brief facts giving rise to the present Writ Petition are that the landlord Rishi Prasad moved application for release of accommodation under Section 21(1)(A) of the said Act against the tenant-petitioner alleging therein that the petitioner is the tenant of the premises in suit at a monthly rental of Rs. 800/- and the landlord is a handicapped and his leg was amputated and the landlord has bona fide need for release of accommodation for running his own business. It was alleged that the tenant has also taken a shop on the ground floor and first floor adjacent to the premises in question in the name of his wife Smt. Bhaga Devi and the tenant is running his business therein. The tenant-petitioner contested the application and denied the allegations made by the landlord and stated that the petitioner is running the shop in question since 1972 as tenant of the landlord Yogeshwar Prasad and at present he is paying rent @ Rs. 1000/- per month. He also asserted that his three sons are employed and have no source of income, therefore, the wife of the petitioner purchased a shop adjoining to the disputed accommodation for the business of his son. It was also stated that when the landlord tried to evict the petitioner, he filed a civil suit no. 8 of 1998. The tenant has also stated that the applicant Rishi Kumar is not the landlord of the suit premises. The record reveals that earlier the matter was heard and decided by the Prescribed Authority in which appeal was preferred and the case was remanded to the Prescribed Authority to decide the case considering the bona fide need and comparative hardship on the basis of the affidavit filed by the parties. The landlord Yogeshwar Prasad substantiated his contention raised in the release application by way of affidavit and 3 asserted that Rishi Prasad is the landlord of the premises and due to injury caused to the landlord, he used to recover rent from the tenant. The tenant in his affidavit supported his contention. After considering the evidence of both the parties, the learned Prescribed Authority came to the conclusion that the need of the applicant- landlord is bona fide and on the point of comparative hardship, the Prescribed Authority found favour with the landlord and accordingly allowed the release application in favour of the landlord and passed the impugned order of eviction against the petitioner. Aggrieved, the tenant-petitioner preferred appeal before the District Judge and took a ground that Yogeshwar Prasad is the landlord and Rishi Prasad, who is his son, had no right to file the case and the Prescribed Authority erred in holing that the applicant Rishi Prasad was the landlord. Another ground of challenge before the District Judge was that the Chief Judicial Magistrate was not authorized to exercise the jurisdiction of the Prescribed Authority in the year 2000. The record the appellant-petitioner failed to substantiate his contention that the Presiding Officer was not exercising the power of the Prescribed Authority. The District Judge has given a clear cut finding that the Presiding Officer was duly authorised to act as Prescribed Authority. The District Judge on the basis of evidence on record has also given a finding of fact that the contention of the petitioner that Rishi Prasad is not the landlord of the suit premises is not reliable. Moreover, on the basis of the evidence on record, the learned District Judge found that the need of the landlord was bona fide and on the point of comparative hardship also, did not find favour with the petitioner. Thus learned District Judge confirmed the findings of the learned Prescribed Authority. At the outset, it may be mentioned that there is concurrent findings of fact of both the courts below in faovur of the landlord and against the petitioner. This Court in exercise of writ jurisdiction cannot look into findings of fact unless the findings recorded by them are shown to be illegal or perverse. I have perused the impugned judgments of both the courts below and as mentioned 4 above, the Prescribed Authority has recorded its findings on bona fide need and comparative need on the basis of evidence on record. The District Judge has also scrutinized the evidence and has given his independent findings against the petitioner. The learned counsel has hammered the findings of the courts below on the ground that Rishi Prasad was not the landlord. It is admitted that Rishi Prasad is son of Yogeshwar Prasad. The contention of the petitioner is that he took the shop on rent in the year 1972. On this point, the District Judge has found that after having become handicapped, Rishi Prasad authorised his father to realize rent on his behalf. He also found that petitioner has admitted both Yogeshwar Prasad and Rishi Prasad as landlords in Suit No. 8 of 1998, Mast Ram Nawani Vs. Yogeshwar Prasad and Rishi Prasad. It does not lie in the mouth of the petitioner to raise the plea that Rishi Prasad is not the landlord. It is settled that even one of the co- landlords/co-owners can file release application. It has been contended by the learned counsel for the petitioner that in case, the petition is found to be devoid of force. Then in that case, considering the fact that the petitioner was the tenant of the landlord-respondents since the year 1972, some reasonable time may be given to the petitioner to handover peaceful possession to the landlord. Learned counsel for the landlord- respondents have objected to it by saying that since the year 2004 when the writ petition was filed before this Court, a reasonable time has already elapsed. Having considered the entire material on record, I do not find any merit in this writ petition. However, considering the submissions of both the parties, it will be in the interest of justice that the petitioner is granted the time upto 31st December, 2006 to vacate the premises in question and to deliver peaceful possession to the landlord-respondents. 5 The writ petition is dismissed on merit. However, the petitioner is granted time upto 31-12-2006 to vacate the premises and deliver peaceful possession to the landlord, provided an undertaking to this effect is furnished before the Prescribed Authority within a period of eight weeks from today. In case of default by the petitioner, the landlord shall be at liberty to proceed in accordance with law. No order as to costs. RCP (B.S.Verma, J.)