Roman Catholic Diocese Private Limited vs Addl. District Judge Room No. 13

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Sudhir Agarwal, J.—Heard Sri. P.C. Jain, learned counsel for the petitioner and Sri. P.K. Jain, Sr. Advocate, assisted by Sri. J.S. Pandey, learned counsel for the respondents. The writ petition is directed against the judgment dated 31.7.2003 passed by Additional Civil Judge (Senior Division)/Prescribed Authority-II, Court No. 22, Agra (Annexure 12 to the writ petition) in P.A. Case No. 147 of 2003, rejecting Release Application of petitioner-applicant and the judgment of Appellate Court dated 24.2.2006 passed by Additional District Judge, Court No. 13, Agra, dismissing petitioner''s Rent Control Appeal No. 463 of 2003.

Petitioner, Roman Catholic Diocese Private Limited claims itself to be a charitable and religious organization. It also claims itself to be the exclusive owner and landlord of property No. 161 situate at Metcalfe Road, Cantonment, Agra. The disputed premises constituted three rooms, kitchen, bathroom and open veranda on the ground floor, which is said to have been let out to respondent-tenant Sri. K.B. Hingorani, for a monthly rent of Rs. 45/-. An application under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") was filed by petitioner before Prescribed Authority for release of disputed accommodation on the ground that it intends to start a Social Work Centre for providing training of tailoring, embroidery, typewriting etc. for development of poor women living around the area where the disputed property situate and also in the nearby villages. It appears that tenant did not appear initially and Release Application was allowed by an ex-parte order dated 14.8.1995, where against Restoration Application under Order 9, Rule 13, C.P.C. was filed by one Gajendra Singh, which was rejected by Prescribed Authority by order dated 31.5.1997 on the ground that Gajendra Singh has no authority to contest the matter and he was not party in the case. Misc. Appeal No. 303 of 306 (sic) of 1997 was filed along with Delay Condonation Application, which was allowed by Appellate Court by order dated 2.12.1998. Petitioner challenged the said appellate order in Writ Petition No. 9187 of 1999 which was dismissed on 15.3.1999. The result was that Gajendra Singh stood validated to contest the Release Application of petitioner on behalf of respondent No. 3.

He filed written statement contesting the Release Application contending that there is no such resolution passed by petitioner to undergo such activities as stated in the application, Father Thomas K.C. is neither holder of Power of Attorney nor otherwise authorized to move application on behalf of petitioner-applicant; applicant possesses enough accommodation at different places where the activities, as claimed by it in the Release Application, may be carried out etc.

There are some interlocutory proceedings but, in my view, the same are not relevant vis-�-vis the question, whether the Release Application has been rightly considered by Courts below or not, needs be considered in this writ petition. Suffice it to mention that Prescribed Authority rejected Release Application by order dated 31.7.2003, recording its finding that neither the alleged need set up by applicant was genuine nor the issue of comparative hardship lies in its favour. Prescribed Authority, besides above two issues, also considered the question, whether Release Application of petitioner was maintainable and whether Act, 1972 was applicable to the premises in dispute when the Release Application was filed. With respect to applicability of Act, Prescribed Authority held that premises in dispute is not exempted under Section 2(1)(f) and, therefore, the Act is applicable.

Lower Appellate Court concurring with the finding recorded by Prescribed Authority has rejected the appeal.

Learned Counsel for petitioner-landlord contended that Release Application has been rejected on the ground that appurtenant to the disputed building, about 10,000 sq. feet land is available and petitioner, if so intends, may raise necessary construction for establishing Training Centre as claimed in Release Application and hence its need is not genuine. This approach is patently erroneous inasmuch the need of landlord cannot be judged by observing that he has vacant land, in which he may raise construction. No extra financial liability can be imposed upon landlord while considering the question of bona fide need in respect to disputed premises so as to non-suit him and therefore, the Courts below have erred in law in holding that need of petitioner-landlord was not genuine.

Having gone through the judgments, I find that this observation has come from Lower Appellate Court only as an additional fact and not as sole fact on which finding on the question of bona fide need has been recorded. In the present case, the landlord has not placed any material to show that his need is immediate and imminent. The only thing placed before the Court below that in the bye-laws of petitioner-institution, welfare of women was one of the objective and therefore the applicant has decided to set up a Centre. It does not mean that there was a need of the accommodation, as claimed, and not a mere intention of desire. While considering the question of bona fide need, one has to make a distinction in "mere desire" and the "actual need".

In order to attract Section 21(1)(a) of Act, 1972, the landlord must show it is not a "mere desire" but "a need", which is an outcome of good faith also. The need must be bona fide, genuine, honest and conceived in good faith as observed in T. Sivasubramaniam and Others Vs. Kasinath Pujari and Others, .

In Akhileshwar Kumar and Others Vs. Mustaqim and Others, , the Court observed, where it is evident from record that the son of landlord is idle, without any adequate commercial activity available to him so as to gainfully employ him and where educated unemployed son, even if provisionally assisting his father, that would not mean that he should not or cannot start his own independent business and if a commercial accommodation is required for the said purpose, it cannot be said that the need is not genuine and bona fide.

In Sushila Vs. IInd Addl. District Judge, Banda and Others, , the Court said that a married and major son cannot be compelled to join his father and do work with his running business but his need for settling an independent business has to be sustained.

In Yadvendra Arya and Another Vs. Mukesh Kumar Gupta, , the Court reiterated that the landlord is best Judge of his requirement and has got every right to file release application for settling his unemployed son in an independent business and son cannot be forcibly asked to be accommodated with father''s business. Mere fact that landlord is a rich and affluent person will make no difference as held in Shamshad Ahmad and Others Vs. Tilak Raj Bajaj (Deceased) through LRs. and Others, .

In the present case, petitioner''s counsel has completely failed to show any material whereby it can be said that ground set up by it for release of accommodation in question can be said to have crossed stage of "mere desire" and partaken the nature of "actual need". Nothing was placed on record to show as to what preparation was made, whether any ground was pleaded and/or other things. The mere averment in the Release Application and the claim that in the objective of bye-laws, petitioner-body is entitled to take up projects of welfare of women, by itself cannot be equated with the ''actual need'' of landlord of the accommodation in question. That being so, and also considering the fact that both the Courts below have recorded concurrent findings of fact, I do not find it a fit case warranting interference in writ jurisdiction under Article 226/ 227.

In supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. 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 Vs. P.R. Mukherjee and Others, 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. Vs. Sukumar Mukherjee, , 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 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 and Another Vs. Vinayak N. Joshi and Others, .

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, ; and 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 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 Court said 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 Court observed 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 Vs. Milind and Others, ; M/s. Estralla Rubber Vs. Dass Estate (Pvt.) Ltd., ; 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 into 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 Vs. K.D. Ganapathi and Another, and Bandaru Satyanarayana Vs. Imandi Anasuya and Others, .

In Abdul Razak (D) through L.Rs. and Others Vs. Mangesh Rajaram Wagle and Others, , 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.

In The Commandant, 22 Battalion, CRPF Srinagar, C/o 56/APO and Others Vs. Surinder Kumar, , 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 orders impugned in this writ petition. Dismissed.