OM PRAKASH AND ORS.versusSMT. SUNHARI DEVI AND ORS.

A                       OM PRAKASH AND ORS.
                                  v.
                      SMT. SUNHARI DEVI AND ORS.

                                MARCH 2, 1993
B
                [KULDIP SINGH AND S.P. BHARUCHA, JJ.]

          U.P. Urban Building (Ret,ulation of Letting, Rent and Eviction) Act,
    1972: Section 21( l)(a)-Eviction petition-Comparative hardship-Bonafide
    requiremem-fl.e-assessnzent of evidence by High Court under its writ juris-
C   dicrion-l'emiissibility of

          Co11stitutio11 of India, 1950: Arts. 136, 22~rit jurisdiction of High
    Court-Re-Assessment of evidence- Permiw"bility of-Interference in such
    matters u11der Special Leave jurisdiction-Whether called for.                 "'"(.
D
        The appellant-landlords filed an eviction petition against respon-
  dent-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
E appellate authority held that the requirement of the appellants was
  genuine and bo11afide. The respondent filed a Writ Petition before the High
  Court and it observed that the appellate authority ought to have ascer-
  tained the actual accommodation available in the property after excluding
  the accommodation necessary for residential purposes and •hould have
F found out whether two rooms on the first Door could be spared for                       -
  business. The 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
G 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 wa• contended that It was not open to
  the High Court lo have reassessed the evidence, especially under its Writ
H jurisdiction.
                                        144
+
                 OM PRAKASH v. SUNHARI DEVI [BHARUCHA, J.]                  145

            On behalf of the Respondent it was contended that the findings of A
      the appellate authority were perverse and therefore a re-assessment of the
      evidence was called for.

              Allowing the appeal, this Court,

              HELD : 1.1. Even in a second appeal the High Court must restrict    B
      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 obser- c
      vations 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 D
      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.           E
              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.
                                                                                  F

              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                          G

            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 im-
      pugned in the writ petition, should be decided afresh in the light of the H
    146                   SUPREME COURT REPORTS                  (1993] 2 S.C.R.

A 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 2l(l)(a) of the U.P. Urban Building (Regulation of Letting, Rent
    and Eviction) Act, 1972 on the ground that they bonafide required the
B   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
c   requirement of the appellants was genuine a.nd 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
D Constitution of India and impugned the judgment and order of the appel-
    late authority. The High Court noted that a perusal of the orders of the
  . prescribed authority and the appellate authority showed that seven proper-
    ties were available to the landlords and these were relevant for the pur-
    poses of determining their bonafide need. In regard to a particular property
    (in Mohalla Shitala), the High Court found that the appellate authority's
E conclusion was not justified. From the material upon the record it ap-
    peared to the High Court that this 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
F 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
G 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 appellanis' require-
     ments. This had been done by the prescribed authority but his findit.g had
     been reversed by the appellate authority on the basis that it would not be
H proper to direct the appellants to raise money and to construct a shop over
              OM PRAKASH v. SUNHARI DEVI (BHARUCHA, J.]                    147

-+ the open land. In the High Court's opinion this approach was not justified. A
    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,
                                                                                   B
~
    that of manufacturing ornaments. In regard to yet another property it had
    been admitted by the appellants that they carried out construction on the
    fir5t as well as second floor. In the High Court's view, the appellate
    authority ought, in the circumstances, to have ascertained the actual ac-
    comodation. available in this property 'as the business can be carried out   c
    and it was being carried out earlier from the first floor". The appellate
    authority, after excluding the accommodation necessary for residential
.--purposes, shoulrl, 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 ha•ing been set up by the appellants, the appellate D
    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 was
    "purposive, the appellate authority ought to have taken the effect of this
    into consideration on the question of the bonafide need of appellants. For
    _these reasons the High Court quashed the order of the appellate authority E
'1' 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 F
      the High Court to have re-assessed the evidence, particularly in a proceed-
...._ ing 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 G
      had done was to remand the matter to the appellate 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 H
    148                  SUPREME COURT REPORTS                  [1993) 2 S.C.R.

A that the High Court re-assessed the evidence and went beyond its +
    legitimate jurisdiction. The intervention of this Court is therefore, called
    for, ~specially 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 sec how a landlord can be asked to build alternate
B
    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 con-
c   sideration 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 "f
    restored.

D        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.