Laxmi Kant Bhatnagar vs District Judge, Muzaffarnagar and Another.

Sudhir Agarwal, J.—This writ petition is directed against the judgment and order dated 15.2.1995, passed by District Judge, Muzaffarnagar allowing respondent-landlord''s Rent Control Appeal No. 64 of 1993 by setting aside Prescribed Authority''s judgment and order dated 19.10.1993 whereby Prescribed Authority rejected landlord''s application u/s 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972"). The Appellate Court while allowing such application has directed petitioner-tenant to vacate disputed portion, under tenancy, in the building in dispute, within a period of two months. It is not in dispute that pursuant to an interim order dated 5.4.1995 passed by this Court, petitioner is still continuing in possession of the accommodation in question.

Sri P.K. Jain, learned Senior Advocate appearing for respondent pointed out to this Court that during pendency of this writ petition, petitioner''s wife Smt. Nirmal Bhatnagar has purchased a residential house situated at State Bank Colony, Muzaffarnagar. He submitted that in view of Section 12(3) of Act, 1972, there is a deemed vacancy in the accommodation in question and petitioner has no right to contest release application filed by landlord in view of Explanation (i) to Section 21(1)(a) and, therefore, this writ petition is liable to be dismissed in view of the above subsequent event.

The petitioner-tenant has filed a supplementary counter-affidavit dated 27.4.2011 wherein, the factum of purchase of residential accommodation has not been disputed. This fact, in para 4 of the supplementary counter-affidavit, has been admitted. It is however pleaded that the said accommodation has been under tenancy of one M.R. Shukla posted as Manager (Agriculture) in Punjab National Bank, Muzaffarnagar and not in a vacant state. Sri A.K. Mehrotra, learned counsel for the petitioner could not explain whether said tenant was there in residential building purchased by petitioner at the time of purchase also or has subsequently been inducted therein or what is the actual situation. He however, did not dispute that residential accommodation has been purchased by petitioner''s wife at Muzaffarnagar, who constitute a member of the family of tenant.

Sri Mehrotra urged that mere purchase of a residential accommodation by petitioner''s wife would not distract from the fact that before allowing release application, Rent Control and Eviction Officer (hereinafter referred to as "RCEO") has to satisfy himself about ground necessary for release existed u/s 16(4) of Act, 1974 read with Rule 14. Uttar Pradesh Urban Buildings (Regulation of Letting. Rent and Eviction) Rules, 1972 (hereinafter referred to as "Rules, 1972") and unless such findings are recorded, building in question cannot be released in favour of the landlord. He further submitted, even if petitioner has lost right to contest release application filed by the landlord, yet he cannot be evicted from the accommodation in question except in accordance with law.

Coming to the merits of the matter, he submitted that release application was filed by landlord on the ground that he intends to run a Blood Bank in the accommodation in question but in view of amendment made in Drugs and Cosmetics Rules, 1945, now it is not possible to run such a Blood Bank from building in dispute and therefore, very basis for seeking release of accommodation in question having disappeared, impugned judgment is liable to be set aside in view of aforesaid subsequent events. He argued that once need set up by landlord initially stood vanished, and no application has been filed by landlord under any other provision of rent statute, the occupier of rented accommodation like petitioner cannot be evicted therefrom for any reason whatsoever. In support of his above submissions, Sri Mehrotra relied on decisions of Apex Court in State of Uttar Pradesh Vs. Singhara Singh and Others, ; Dhananjaya Reddy etc. Vs. State of Karnataka, , AIR 1936 253 (Privy Council) ; and two judgments of this Court i.e. Anil Kumar Vinayak & Ors. v. 1st Addl. District Judge, Nainital and others, 1994 (23) ALR 227; and Jai Prakash Vashishst v. Additional District Magistrate (E) (Delegated Authority), Meerut and others, 1995 (1) ARC 476.

In this backdrop of the case, I have to examine the consequences of the above events vis-a-vis the rights of tenants if any survive.

Explanation (i) to Section 21 reads as under:

where the tenant or any member of his family who has been normally residing with or is wholly dependent on him has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained:

Note.-- For the purposes of this clause a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant allotee or licensee.

The legislative mandate is very clear. Once a tenant has himself got a residential accommodation, or through any member of his family who has been normally residing with him or is wholly dependent on him, in a vacant state, no objection against release application u/s 21(1)(a) of Act, 1972 shall be entertained from such tenant.

The sale deed is on record. There is nothing to show that accommodation was not vacant at the time of execution of sale deed between petitioner-tenant''s wife and erstwhile landlord of said building. No other material has been placed to show that the building when acquired was not vacant. The acquirement of building by petitioner''s wife is not in dispute. It is also not in dispute that Explanation (i) would be attracted in the present case. Even during course of argument Sri A.K. Mehrotra has not controverted that the said provision i.e. Explanation (i) to Section 21(1)(a) shall be attracted in the present case.

That being so, against landlord''s application for release of residential accommodation, no objection can be entertained from the tenant. It means that the tenant loses any locus standi to object prayer for release made by the landlord.

That being so, it results in extinguishing any right to contest prayer of landlord for release of residential building which embraces within itself right to pursue or contest in subsequent proceedings also.

Now coming to the merits of the matter also, what learned counsel for the petitioner submitted, that, in view of subsequent amendment made in Drugs and Cosmetics Rules, 1945 (hereinafter referred to as "Rules, 1945"), landlord cannot set up a Blood Bank in the accommodation in question and therefore subsequent event renders release of the accommodation in question impermissible.

Sri Jain, on the contrary stated that rights of parties have to be determined on the basis of state of affairs as existed on the date of filing of suit and not otherwise.

It cannot be disputed that basic rules is, rights of parties should be determined according to state of affairs existed and available on the date of institution of suit or proceeding. However, there is an exception to this normal rule that events happening after institution of the suit/proceeding which may have material bearing on the matter or may render entire proceedings infructuous etc., can be and should be looked into by the Court at a subsequent stage.

A three-Judge Bench of Apex Court in Pasupuleti Venkateswarlu Vs. The Motor and General Traders, permitted cognizance of subsequent events, though very cautiously, and said:

We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed.

Again in Hasmat Rai and Another Vs. Raghunath Prasad, cognizance of subsequent events was held permissible provided it wholly satisfy requirement of petitioner/landlord who petitioned for eviction on the ground of personal requirement. The Court said:

Therefore, it is now incontrovertible that where possession is sought for personal requirement it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. If in the meantime events have cropped up which would show that the landlord''s requirement is wholly satisfied then in that case his action must fail and in such a situation it is incorrect to say that as decree or order for eviction is passed against the tenant he cannot invite the Court to take into consideration subsequent events.

(Emphasis added)

In Ramesh Kumar Vs. Kesho Ram, a two-Judge Bench of Apex Court said that normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced. The only exception is that the Court is not precluded from moulding reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations. Hon''ble M.N. Venkatachalia, J. (as his Lordship then was) observed:

The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the Court is not precluded from taking a ''cautious cognizance'' of the subsequent changes of fact and law to mould the relief.

In Gaya Prasad Vs. Sh. Pradeep Srivastava, , the Court said that for the malady of judicial system of delayed justice, a landlord should not suffer. Every day may result in some kind of development and, therefore, every subsequent development would not deny claim of landlord on the pretext of a subsequent development since no one can be expected to stay idle for all times to come till a litigation is going on. It may happen that the lifetime of litigation may be more than that of litigant-landlord himself. Therefore, the judicial tardiness should not cause an irreparable loss to a landlord. It would be unjust to shut the door of justice to a landlord on the end of litigation after passing through various levels of litigation to deny him justice and relief sought only on the ground of certain developments occurred pendente lite because the tenant has been successful in prolonging litigation for an unduly extended long period. However, if the cause of action is submerged in such subsequent events, in other words, if the subsequent events are such as to satisfy the very requirement of landlord in its entirety, the same can be seen and there is no allergy in considering and taking note of subsequent events of importance which may justify remoulding of relief not on account of mere pendency of litigation but on account of the position and status of landlord and other relevant factors.

This matter was further examined in detail in Kedar Nath Agrawal and another v. Dhanraji Devi and another, 2004 (4) AWC 3709 (SC): (2004 AIR SCW 5789) and having considered a number of authorities on the subject, the Apex Court, in para 14 of judgment, crystallized three aspects when subsequent events can be taken note by a Court of law, namely:

(i) The relief claimed originally has, by reason of subsequent change of circumstances, become inappropriate; or

(ii) It is necessary to take notice of subsequent events in order to shorten litigation; or

(iii) It is necessary to do so in order to do complete justice between the parties.

In the present case also the Court can take a subsequent event, into notice, i.e. purchase of residential building by the petitioner tenant''s wife in the same city i.e. Muzaffarnagar which according to this Court would render petitioner incompetent to object the release application of landlord attracting explanation (i) to Section 21(1)(a) of Act, 1972. Therefore, for the purpose of landlord also, if there is a subsequent event of the kind referred to above, it can be and must be looked into.

This Court has looked into Rule 122(G) of Rules, 1945 wherein a substantial amendment has been made by substituting Clause (i) vide Drugs and Cosmetics (Second Amendment) Rules, 1999 w.e.f. 5.4.1999 permitting a Blood Bank to be run under the personal supervision of competent technical staff possessing Post-graduate degree in Medicine-M.D. (Pathology/Transfusion Medicines); or Degree in Medicine (M.B.B.S.) with Diploma in Pathology or Transfusion Medicines or Degree in Medicine (M.B.B.S.) having experience in Blood Bank etc.

The suggestion of counsel for the petitioner is that landlord is admittedly Doctor by profession and possesses medical qualification of M.B.B.S. A mere M.B.B.S. qualification is not sufficient to run a Blood Bank as per Rule 122-G and therefore, very basis for seeking release of accommodation in question has disappeared.

The submission is thoroughly misconceived. It is evident that the respondent-landlord is not only M.B.B.S. but passed Special Diploma Course of D.C.P. and has been running a Pathology lab since 1975. Apparently to me he is duly qualified to run Blood Bank but I need not to record any final opinion on this aspect of the matter, since it is for competent authority who would have to issue licence under relevant statute but suffice it to mention that for running a Blood Bank, if the petitioner himself is not technically qualified, he can employ a person technically qualified to supervise running of Blood Bank and, therefore, it cannot be said that very foundation of application filed by respondent-landlord has disappeared.

It is no doubt true, mere fact that tenant loses his right to object release application of landlord would not absolve the competent authority from satisfying itself about bona fide need of landlord but that question would not detain this Court for the reason that competent Appellate Court exercising co-ordinate jurisdiction with the Prescribed Authority has already recorded its satisfaction finding need of landlord to be genuine and bona fide and has already held that requisite conditions for release of accommodation in question in favour of landlord exist.

Since no perversity in aforesaid findings has been shown, I therefore, do not find it a fit case warranting interference with the impugned order.

Various authorities relied by counsel for the petitioner, in my view, have no application to the facts in issue in the present case and therefore, do not help him.

Nazir Ahmad (supra) has been cited to support contention that when a rule requires certain thing to be done in a particular manner, it must be done in that manner alone and not otherwise, or not at all. Other methods of performance are necessarily forbidden. State of Uttar Pradesh Vs. Singhara Singh and Others, and Dhananjaya Reddy etc. Vs. State of Karnataka, is also for the same proposition. The proposition admits no doubt but has no application in the present case. In Jai Prakash Vashishst (supra) dispute relates to house grabbing with the help of Gunda and miscreants. This Court said that such a possession is wholly illegal, unauthorized and incumbent obtaining possession in such a manner has no right to retain it. He must hand over vacant possession to the person from whom it was taken. From the very facts of case, it has no application to the present case. To the same effect is the decision in Anil Kumar Vinayak (supra), which, in my view, would have no application hereat.

In the present case petitioner''s initial right to contest release application of landlord, by operation of law, has disappeared after purchase of a residential accommodation by his wife who satisfies definition of ''family'' under Act, 1972. Since this disability comes in by legislative mandate, whenever it occurs during pendency of the case, the stage at which such event occur, it can be looked into since it has material bearing in the case like present one. Moreover, as a matter of fact, I have already discussed that respondent-landlord''s requirement cannot be said to be lacking bona fide or ingenuine. Even otherwise, the findings recorded by Courts below having not been shown perverse or contrary to record, no interference in writ jurisdiction is called for even on merits.

It is well established that scope of judicial review is extremely limited in such matters. It is not to correct the errors in the orders of the Court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority.

This power involves a duty on the High Court to keep the inferior Courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.

In D.N. Banerji v. P.R. Mukherjee, AIR 1953 SC 58 the Court said:

Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Articles 226 and 227 of the Constitution to interfere.

A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and Another Vs. Amarnath and Another, and made following observations at p. 571:

This power of superintendence conferred, by Article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors.

In Mohd. Yunus Vs. Mohd. Mustaqim and Others, the Apex Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice.

For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and dehors the factual and legal position on record. (See: Nibaran Chandra Bag etc. Vs. Mahendra Nath Ghughu, ; Rukumanand Bairoliya Vs. The State of Bihar, ; Gujarat Steel Tubes Ltd. and Others Vs. Gujarat Steel Tubes Mazdoor Sabha and Others, ; Laxmikant Revchand Bhojwani and Another Vs. Pratapsing Mohansingh Pardeshi Deceased through his Heirs and Legal Representatives, ; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel and others, ; Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, and Virendra Kashinath Ravat & Ors. v. Vinayak N. Joshi & Ors. (1999) 1 SCC 47: (AIR 1999 SC 162)).

It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Mrs. Rena Drego Vs. Lalchand Soni, Etc., ; Chandra Bhushan (Deceased) by Lrs. Vs. Beni Prasad and Others, ; Smt. Savitrabai Bhausaheb Kevate and Others Vs. Raichand Dhanraj Lunja, ; M/s. Savita Chemicals (Pvt.) Ltd. Vs. Dyes and Chemical Workers Union and Another, ).

Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India and Others Vs. Himmat Singh Chahar, ).

In Ajaib Singh Vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Another, , the Hon''ble Apex Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Article 226/227 of the Constitution.

In Mohan Amba Prasad Agnihotri and Others Vs. Bhaskar Balwant Aher (D) Through I.Rs., , the Hon''ble Supreme Court held that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse.

In Indian Overseas Bank Vs. I.O.B. Staff Canteen Workers'' Union and Another, the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court cannot interfere.

In Union of India and Others Vs. Rajendra Prabha and Another, the Hon''ble Apex Court held that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below.

Similar view has been reiterated in State of Maharashtra v. Milind & Ors., (2001) 1 SCC 4: (AIR 2001 SC 393); Extrella Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 : (AIR 2001 SC 3295); and Ouseph Mathai and Others Vs. M. Abdul Khadir, .

In Surya Dev Rai Vs. Ram Chander Rai and Others, , it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby.

In Jasbir Singh Vs. State of Punjab, , the Court said:

...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority. The power of superintendence exercised over the subordinate Courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate Courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior Courts in the discharge of their judicial functions.

In Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, , the Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and others v. K.D. Ganapathi and another, AIR 2011 SC 1353 and Bandaru Satyanarayana v. Imandi Anasuya (2011) 12 SCC 650 : (AIR 2012 SC (Civ) 630).

In Abdul Razak (D) through LRs. & others v. Mangesh Rajaram Wagle and others (2010) 2 SCC 432 : (AIR 2010 SC (Sup.) 661), Apex Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction.

In T.G N. Kumar Vs. State of Kerala and Others, , the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority.

InCommandant, 22nd Battalion, CRPF and others v. Surinder Kumar (2011) 10 SCC 244 : (2011 AIR SCW 6377), Apex Court referring to its earlier decision in Union of India and Others Vs. R.K. Sharma, observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Article 226 or 227.

In view thereof, I find no justification warranting interference with the order impugned in this writ petition. The writ petition therefore, lacks merit. Dismissed. Interim order, if any, stands vacated.