Wing Commander Ashok Kumar Sahai vs VI Addl.Distt.Judge, Lucknow and another

K C. Bhargava, J.—By means of this Writ petition the petit�ioner has prayed for quashing the order dated 1271990 passed by the VI Additional District Judge, Lucknow.

The facts as far as they are relevant for deciding the controversy in dispute are that the petitioner is the owner of house no. 545/176, SectorA, Mahanagar, Lucknow. This house has two portions ; one is northern portion and the other is southern portion. The dispute relates to the southern portion which was in occupation of one S. K. Misra. The petitioner was employed in the Indian Air Force and posted outside Lucknow and he retired on 31st July, 1987. At that time he was holding the rank of Wing Commander. The northern portion of the house was allotted to 5, U. P. N C C. Air Squadron. Sri S K. Misra constructed his own house and shifted in his own house and a deemed vacancy arose. Thereupon the petitioner moved an application for release urder Section 21 (1) (b) of U. P. Act 13 of 1972 on 6111991. During the pendency of this application the said Sri S. K. Misra vacated the premises in February, 1983. The authorities below rejected the application for release on 12101983 and the house was allotted to one Srimati Sushila Devi, respondent no. 3, who is now in possession of the southern portion of the house. She had contested the application for release. A revision was filed against the said order which was allowed on 19121988 and the southern half portion was released in favour of the petitioner. Srimati Sushila Devi filed Writ Petition No, 9876 of 1988 before the High Court which was allowed on 6111989 and the case was remanded for deciding afresh. Before his retirement the petitioner applied for release of the southern portion of the house on 6111981. The petitioner, before his retirement, had moved a separate application for release of rhe northern portion of the house which was in the tenancy of 5 U. P. N. C. C. Squad�ron Leader. This application for release was allowed on the basis of the compromise dated 31st March. 1988 and the petitioner took possession of the northern portion of the house. It is alleged that the family of the petitioner consists of himself, his wife and three children who are aged about 21, 19 and 17 years respectively. Against the order passed by this Court the petitioner filed a Special Leave Petition before the Supreme Court which was dismissed on 3011990 and all the matters were left open by the Court. After the remand of the case before the Additional District Magistrate the petitioner filed some additional evidence regarding the extent of the accommodation in possession of the petitioner. That revision was, after hearing, dismissed on 1271990. While deciding the revision the respondent no. 3, the Additional District Judge, VI, did not issue any commission or made any local inspection of the premises in dispute. He also did not take into consideration, during the course of hearing, in his judgment, the order passed by the Hon''ble Supreme Court It is further alleged that the Additional District Judge, VI, did not consider the need of petitioner and his family and ignored the same from consideration. It is further alleged that the provisions of explanation 3 of Section 21 (1) of U. P. Act 13 of 1972 were completely misread by the Additional Distt. Judge who wrongly held that these provisions are not applicable to the petitioner. The Additional District Judge also ignored from consideration the fact that the garrage was converted into a bed room with attached bath room which was a temporary structure and was not meant to permanently satisfy the need of the petitioner and his family. The house was constructed by the mother of the petitioner. The petitioner, at the time of his retirement, was holding the rank of Wing Commander and as such he was entitled to 2169 sq. ft. accommodation. A notice had already been issued for demolition of the temporary construction made by the petitioner by the Lucknow Development Authority.

Respondent no. 3, Srimati Sushila Devi, in whose favour the allotment has been made, has contested this petition. Srimati Sushila Devi had moved an application befor this Court for her impleadment as respondent but this application was dismissed by this Court on 2381991. Against this order Srimati Sushila Devi, respondent no. 3, went to the Hon''ble Supreme Court and theHon''ble Supreme Court allowed the Special Leave Petition filed by her and allowed the application for impleadment moved by her before this Court in the present petition. The order of the Hon''ble Supreme Court is dated 3rd March, 1992. In this way the respondent no. 3 has been allowed to contest this petition and has been made a party. Thereafter the respondent no. 3 filed a short counter affidavit and a regular counter affidavit. Both these counter affidavits are taken together and the necessary averments mentioned therein are given hereunder.

According to opposite party no. 3, house no. 545/176 built over plot no. 5B, Sector A, Mahanagar, Lucknow has two independent portions. The northern portion has more accommodation than the sou�thern portion. The northern portion was in the tenancy of the office of N. C. C. Subsequently the lease of the northern portion was renewed on 1st April, 1983 during the pendency of the proceedings before the Pres�cribed Authority for release of the southern portion under Section 16 (1) (b) of Act 13 of 1972. This release application was moved on 6111981. Thereafter in the release application filed against the N. C. C. Office that portion was released by the Prescribed Authority on the basis of a compromise vide order dated 30th March, 1988. The family of the petitioner started living in that portion and the need of the petitioner stood fully satisfied. After the declaration of the vacancy in the southern portion of the house the respondent no. 3 applied for allotment of the said portion which was allotted to her after the rejection of the release application. It is further alleged that on one hand the petitioner was pressing his release application under Section 16(1)(b) of U. P. Act 13 of 1972 on the ground of benefit of retirement for residential purposes while on the other hand he renewed the lease in favour of N. C. C. Office. This material fact was suppressed by the petitioner from the Rent Control Authority and further that the petitioner was not posted at Lucknow. The possession of the southern portion of the house was handed over to respondent no. 3 on 24101983 after it was allotted to her on 12101983. It is further alleged that after the allotment of the premises the respondent no. 3 FormC was issued by the Additional District Magistrate to Dr. Misra on 19101983 in compliance of which the possession of the southern portion was handed over to the respondent no. 3 on 24th October, 1983. The petitioner had started using part of the northern portion of the house which was in his possession for business purposes i. e. Kanjivaram Silk and Handicrafts, Ice Cream shop and poultry farm.

In the rejoinder affidavit it is admitted by the petitioner that the business of Sarees and Handicrafts was started by the wife of the petitioner but the same has been closed down on 31st March, 1991. This business was being carried in one of the living rooms and the said room always continued to be used as living room and the goods for sale were stored into almirahs.

Learned counsel for the parties have been heard. Learned counsel for the petitioner has argued that in the present case the learned courts below have wrongly held that explanation 3 of Section 21(1)of U. P. Act 13 of 1972 does not apply to the facts of the present case. According to the learned counsel this explanation applies to the facts of this parti�cular case where the petitioner has retired and the building had been let out by him before his retirement and therefore he is entitled to claim the benefit of this section and the application for release should have been allowed. Learned counsel for respondent no. 3 has argued that this explanation does not apply to the facts of the present case as the application for release in this case was moved under Section 16 (1) of Act 13 of 1972. A perusal of Section 21 of Act 13 of 1972 will go to show that the release application is to be moved under this section in the case where the building is under occupation of a tenant. If the building is not in occupation of a tenant then this provision will not apply because the tenant should have been in possession of the premises before the release application is moved. Section 16 of the U. P. Act 13 of 1972 shows that allotment or release of a vacant building is to be done under the provisions of this Section. In the present case there was a deemed vacancy when Sri S. K. Misra had left the premises and the application for release was moved by the petitioner. This application was considered by the Rent Control Authority and after coming to the conclusion that the need of the petitioner is not bonafide the release application was dismissed and allotment was made in favour of Srimati Sushila Devi, respondent no. 3. As the premises were vacant at that time, the provisions of Section 16 of U. P. Act 13 of 1972 will apply and not the provisions of Sec. 21 (1) of the said Act. The benefit of explanation 3 to Section 21 (1) of the said Act shall be available only in those cases where the application is moved under that section. As mentioned in the earlier part of this judgment the petitioner had moved an application under Section 21 of the U. P. Act 13 of 1972 against the office of N C. C. That application was compromised and the petitioner got possession of the northern portion in accordance with the compromise reached between the parties. There�fore in view of the facts of the case it cannot be said that the provisions of Section 21 of the Act will apply in the present case.

In the case of Dr. Ashok Kumar Versus K. C. Panwar and others (1979 A RC 193) it was held by this Court in para 4 that a case under Section 16 is different from the one covered by Section 21 where, as in the present case, the vacancy had occurred, the question for release under Section 21 did not arise. The premises, therefore, could not have been released. This authority supports the view that where the house was already vacant, as in the present case, the provisions of Section 21 of the Act will not apply and the petitioner cannot claim the benefit of explana�tion 3 to Section 21 (1)of the Act. Therefore this contention of the learned counsel for the petitioner cannot be accepted.

Learned counsel for the petitioner has further argued that the learned Additional District Judge should have decided the revision taking into consideration the fact that the petitioner was a Wing Commander and was entitled to a much bigger area than what is in his posssession at present. This contention of the learned counsel for the petitioner cannot be accepted because what was the status of the petitioner in his service or what accommodation was allotted to him or ''for what accommodation he was entitled during his service, has no bearing on the present controversy. The petitioner cannot claim that much accommodation which was in his possession at the time when he was in service. The petitioner had to show his bonafide need before the authority concerned if the accommoda�tion in his occupation was not sufficient for his needs. The courts below have come to a concurrent finding that the need of the petitioner stood satisfied when he got the northern portion of the house released in his favour which was in occupation of N. C. C. Office. In her counter affidavit the oppsite party no. 3 has stated that there is no perversity in the findings of the courts below and as such this Court should not interfere with the same in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. The order passed by the authorities below cannot be said to be perverse or against the material on record. Therefore this Court refuses to interfere in the orders passed by the courts below.

In the case of M/S India Pipe Fitting Co. Versus Fakruddin M. A. Baker and another (AIR 1978 S C 45) laying down the above proposition it was held as under :

"5. The limitation of the High Court while exercising power under Art. 227 of the Constitution of India is well settled. Power under Art. 227 is one of judicial superintendence and cannot be exercised to upset conclusions of facts however erroneous those may be." It was further observed that :

"6. Whether the landlord''s requirement is bonafide and reasonable has been concurrently found by the two courts below against the landlord by appreciating the entire evidence. After exa�mining the reasons given by both the courts it is not possible to hold that the conclusions are "perverse" or even that these are against the weight of evidence on record. It is a case of reasonably possible factual appreciation of the entire evidence and circumstances brought on the record."

In that case the High Court had interfered with the concurrent findings of the courts below and the Supreme Court set aside the order of the High Court because the High Court could not have arrogated to itself the powers of a court of appeal, which it did not possess under the law under the relevant provision.

In the case of Abdul Majeed Versus Bilqees Fatima and others (1990 (1)Allahabad Rent Cases page 186) a Single Judge of this Court held that if the findings on the question of bonafide need and comparative hardship having been arrived at after appraisal of the evidence on record, it is not open to this Court in writ jurisdiction to interfere on the question of bonafide need and comparative hardship. A similar view has also been taken in a number of cases which need not be cited here in order to burden this judgment.

Thus we find that this Court in exercise of its extraordinary jurisdiction will not interfere in the concurrent finding of the courts below because the same cannot be said to be perverse or against the evidence on record, if we scrutinise the evidence on record. It will be sufficient to mention that the petitioner renewed the lease of the northern portion of the house in favour of N. C. C. Office on 141983. It has come in the earlier part of this judgment that the application for release of the southern portion was moved by the petitioner on 6111981. If the need of the petitioner was bonafide and he required additional accommodation for his own use then he would not have renewed the lease of the northern portion in favour of N. C. C. Office during the pendency of the release application for the southern portion which was moved in 1981. He would have asked the N. C. C. Office to vacate the same. This shows that his need for additional accommodation was not bonafide and pressing.

Learned counsel for the petitioner has tried to argue that the need of the members of the family of the petitioner was not considered and hence the orders passed by the court below cannot be said to be just. This question cannot be gone into by this Court as the courts below have taken into consideration the extent of the family of the petitioner and the accommodation he is occupying. Moreover it has also come in evidence that after the occupation of the northern portion by the petitioner he has started the business of Kanjivaram Sarees, Ice Cream and Poultry Farm which continued upto 1991. The petitioner has stated that he has closed down the business of Kanjivaram Sarees but has not stated closure of the business of Ice Cream and Poultry Farm. It is also admitted that the petitioner was doing the business of Kanjivaram Sarees in one of the living rooms. If the accommodation in possession of the petitioner for his residential purpose was not sufficient then how could he carry this business. This also shows that the petitioner came into possession of the northern portion of the house his need stood fully satisfied and this fact has also been considered by the revisional court. Therefore the finding of the revisional court camot be said to be in any way perverse.

It has further been Argued by the learned counsel for the petitioner that the possession of the premises in dispute was taken by the opposite party no. 3 directly from Sri S. K. Misra and not through the petitioner who was the landlord of the premises in dispute. This fact does not appear to be correct in view of the allegation of the opposit party no. 3 that FormC was issued on 19101983 after the allotment and there�after the possession was handed over on 24101983. This fact has been den�ied by the petitioner by filing a supplementary rejoinder affidavit. Therefore this contention of the learned counsel for the petitioner cannot also be said to have any force.

In view of what has been said above this Court comes to the conclusion that the findings of the courts below are not perverse and are not against the weight of evidence on record and therefore no interference is possible by the Court in exercise of its extraordinary jurisdiction. The petition is, therefore, dismissed. There will be no order as to costs.

(Petition dismissed.)