- (1.) 1. By means of this writ petition, moved under Article 226 read with Ar ticle 227 of Constitution of India, the petitioners (tenants) have challenged the judgment and order dated 16-03-2004, passed by learned Additional District Judge/et. C. I, Dehradun, in Rent Con trol Appeal No. 57 of 2001, whereby re versing the order dated 08- 05-2001, passed by Prescribed Authority, in PA. Case No. 19 of 1995, has allowed the application for release of the premises in question in favour of the landlord.
(2.) HEARD learned counsel for the parties and perused the record. Brief facts of the case, as nar rated in the writ petition, are that Late Shri Govind Ram Arora, the grandfather of the petitioner No. 2, occupied the ground floor of property No. 12, Astley Hall, Dehradun, as tenant on rent from its erstwhile landlord in the year 1935, and since then the tenancy had contin ued. On the death of Shri Govind Ram Arora, the tenancy of the aforesaid premises was inherited by his son Shri S. K. Arora, who expired in the year 1981, leaving behind petitioner No. 1 Prabha Arora, as his widow and peti tioner No. 2 Kapil Arora, as his son apart from the two daughters, Ms. Jyoti and Ms. Vrinda. The premises in ques tion were taken on rent for commercial purposes. The respondent No. 1 Km. Brijmohini Arora, along with her sister Ms. Pushpa Anand, moved an applica tion under Section 21 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (for brevity hereinafter referred as U. P. Act No. 13' of 1972) in the year 1995, for release of the aforesaid premises. The other co-owners Madan Mohan Anand and Sudarshan Mohan Anand, were not impleaded. Both Ms. Brijmohini Anand and Pushpa Anand, the unmarried duo, claimed themselves landladies while their brothers had settled out of Dehradun. During the pendency of proceedings, ini tiated on aforesaid release application, Ms. Pushpa Anand, expired on 15-01-2002. The ground mentioned in the re lease application of the landlady, is that she needs the premises in question to augment her income, as she being a re tired teacher from M. K. P. College, Dehradun, getting a meagre amount of pension and wants to run tuition/coach ing classes in the aforesaid premises. Ear lier also in the year 1973, Smt. Pushpa and others moved an application for release of property No. 12, Astley Hall, the same though allowed in respect of first floor but as to the ground floor, the said earlier application was rejected. As such, the landlady is already in posses sion of the rooms in the first floor of property No. 12, Astley Hall, Dehradun. According to the petitioners (tenants), need of the landlady is not genuine and by the time she filed application, she had already passed retired life of some 10-15 years. The release application was challenged by the petitioner also on the ground that there is no justification in allowing the same in view of Rule 16 (2) (a) of U. P. Act No. 13 of 1972. The Pre scribed Authority, after hearing the par ties and considering the evidence, ad duced by them, rejected the release ap plication on 08-05-2001 (copy Annexure-3 to the writ petition ). Ag grieved by which, the landlady, preferred Rent Control Appeal No. 57 of 2001, before appellate authority. The appellate authority, after hearing the parties, on 16-03-2004, reversed the judgment of the Prescribed Authority and allowed the application for release of premises on 16-03-2004 in favour of the landlady (copy of said order is Annexure-6 to the writ petition ). The order of the appellate au thority (respondent No. 2) is challenged through this writ petition on the grounds that mere desire of the landlady, cannot be equated with the bonafide need, par ticularly in view of the fact that the landlady (respondent No. 1) is eighty years of age and cannot run the tuition/ coaching classes. It is also alleged in the writ petition that the landlady can run the tuition and coaching classes in eight rooms, already available to her in the first floor. While allowing the release ap plication, the appellate authority, ig nored the provision of Rule 15 (2) and Rule 16 (2) (a) of U. P Urban Buildings (Regulation of Letting, Rent and Evic tion) Rules, 1972. Lastly, it is also pleaded that comparative hardship was not properly examined by the appellate court. It is also alleged that during the pendency of the appeal, before respond ent No. 2, a trust in respect of the premises, has been created, as such, the personal need of the landlord has lost its significance. The respondent No. 1, contested the writ petition and filed a counter af fidavit. Defending the impugned -judg ment and order, passed by respondent No. 2, the landlady has stated in the counter affidavit that in view of the prin ciples of law laid down in Surya Dev Rai case (2003) 4 S. C. C. 675 and Ranjeet Singh Vs. Ravi Prakash (2004) 3 S. C. C. 682, the present writ petition is not maintainable. It is further stated that the landlady was admittedly a retired teacher from M. K. R RG. College, Dehradun and has sufficient experience to run the tui tion classes. It is also stated that there is no bar for a retired person to run any business or profession after her retire ment. It is further stated in the counter affidavit that tenant cannot dictate the landlady as to her business and profes sion, she should or should not adopt. In the rejoinder affidavit, the petitioners have reiterated their averments made in the writ petition. During the pendency of the writ petition, the petitioners got impleaded Brahma Dutt Tyagi, Sudarshan Mohan Anand, Dr. Smt. Krishana Anand, Dr. Arun Anand, Murli Manohar Sharma and Umesh Rastogi (respondents No. 4 to 9), alleging that a trust has been created during the pendency of the appeal before re spondent No. 2, on 04-08-2003 in re spect of the property in question. Impleaded respondent No. 4 Brahma Dutt Tyagi (one of the trustees), filed an affidavit before this Court, stating that though the trust is created in re spect of the property in question but the landlordship of the premises still remains with respondent No. 1 Brij Mohini Anand, who is also the Chair man of the trust. Respondent No. 1, has filed a supplementary counter af fidavit, admitting the creation of trust, but alleging that her status as land lady has not changed nor is she re quired to make disclosure as from where she had received the amount in her bank accounts, as she has not sold the property nor has accepted any con sideration therefor.
(3.) IN its writ jurisdiction, this Court cannot go into the correctness of the fac tual satisfaction of the appellate court unless the same is perverse. As such, the findings on the bonafide need of the landlord and on the point of compara tive hardship being finding of fact, can be disturbed by this Court only if the same is perverse or against the provi sions of law. What can be examined by this Court is the material error of law, if any, committed by the Court in allowing the release application, moved by the landlady under Section 21 of U. P. Act No. 13 of 1972.;