Shyam Lal Jain vs Rohit Kumar Jain

Sudhir Agarwal, J.—Heard Shri M.K. Gupta, Advocate, assisted by Shri Pankaj Agarwal for the petitioner, Shri Ravikant, learned Senior Advocate assisted by Shri A.K. Gupta and Shri Udai Chandani, Advocate for the respondents. The petitioner Shyam Lal Jain is a tenant of part of ground floor of building bearing Municipal No. 5/9 Nehru Road, Baraut, District Baghpat on a monthly rent of Rs. 100/- where he is running the business of expeller.

The respondent-landlord filed an application for release of aforesaid accommodation on the ground of personal need u/s 21(1)(a) of U.P. Urban Buildings, (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''Act 1972'') which was registered as P.A. Case No. 2 of 2004.

The application was allowed by the Prescribed Authority vide judgment and order dated 18.2.2010 whereagainst petitioner filed Rent Control Appeal No. 9 of 2010 which has been dismissed vide judgment dated 16.7.2011. These are two judgments and orders which have been impugned in this writ petition.

Shri M.K. Gupta, learned counsel for the petitioner drew my attention to the site plan which is on page 41 of the paper book and submitted that two shops which have been shown therein as EJFG are vacant and in possession of landlord which could have satisfied his requirement for starting business for his son. This plea was specifically taken by petitioner in para 15 of written statement. By the affidavit filed by him this fact was reiterated. The aforesaid assertion of petitioner-tenant was contested by landlord-respondent and in para 13 of the affidavit of Rohit Kumar Jain, he deposed that the above two shops, claimed to be vacant and in possession of the landlord, are actually under the tenancy of one Meemal Jain @ Pappu, S/o. Khemchand Jain since lifetime of landlord-respondent''s grandfather and he is using as a go-down of Paint etc. An affidavit of Meemal Jain was also filed who supported the claim of respondent-landlord and deposed that the two shops are under his tenancy since lifetime of respondent-landlord''s grandfather.

In order to discredit these two affidavits filed by respondent-landlord, and Meemal Jain, the petitioner-tenant placed on record a copy of assessment of the property in dispute in which names of occupants are mentioned which included the names of respondent-landlord as well as tenants namely Ved Prakash, Shyam Lal, Dinesh, Niyaz and Rajbala, Ismail and Mahaveer. Copies of these municipal records are on record at pages 158 to 162 of the paper book of the writ petition. The name of Meemal Jain did not find mention in the aforesaid municipal record as an occupant of any part of entire building in which the disputed accommodation exists.

Shri M.K. Gupta, contended that the Trial Court has relied on the affidavits of respondent-landlord and Meemal Jain and discarded municipal record which was a documentary evidence in a wholly illegal manner. The bare averments made by respondent-landlord, are nothing but a sheer conjecture and surmise. The Court below also has proceeded on assumptions. The appellate Court has ignored this aspect by saying that there is no issue whether Meemal Jain is a tenant in the premises in dispute. It has no relevancy to the issue in the case in hand. He contended that the above findings recorded by both the Courts below is totally perverse, results in miscarriage of justice and is a manifest error causing grave injustice to the petitioner-tenant which vitiates both the impugned orders. He contended that the accommodation in question sought to be released by respondent-landlord on the ground that his son has passed Engineering and intend to start his own business of electronic goods in the accommodation in question. Since accommodation is required for commercial purposes, therefore, issues of the aforesaid two shops acquired importance inasmuch as unless it is shown by the landlord-respondent that the aforesaid two shops are not in vacant state or that they do not satisfy his requirements. The availability of these shops in vacant state is liable to disentitle landlord for release of accommodation in question. This aspect is relevant to find out whether the need is bona fide and genuine or not. He further contended that landlord''s allegation that the petitioner-tenant is not doing any business for the last one year in the accommodation in question was contested by filing a large number of documentary evidence by petitioner at the appellate stage. The said documents were admitted as additional evidence by appellate Court but in the impugned appellate judgment, there is not even a whisper to show that the appellate Court has considered the same and has applied its mind to those documents while considering the question of comparative hardship.

Shri Ravikant, learned Senior Advocate submitted, firstly the Courts below having believed the affidavits of landlord-respondent and Meemal Jain, and, have recorded a concurrent finding, in exercise of jurisdiction under Article 226 of the Constitution, this Court shall not and should not interfere. He further contended that even if it is assumed that the aforesaid two shops are vacant, that would not mean that the landlord perforce would have to use that accommodation even if it would not satisfy his requirement. He contended that landlord is free to arrange his requirements etc. and to decide the manner he would carry out his affairs. He cannot be dictated by the tenant or the Court to live and arrange his life in a particular manner. He further contended that the documents filed by petitioners at the appellate stage do not show that the petitioner was doing business for the last one year before the date of application filed by landlord, since most of the documents are of subsequent period. However, he could not dispute that appellate Court though has admitted additional documents at the appellate stage but has not referred or discussed the same in the impugned appellate judgment.

It is no doubt true that here is a case where both the Courts below have taken a view against the petitioner-tenant and in such a case, the Courts should be very careful and cautious so as not to disturb the concurrent findings of fact recorded by the Courts below in exercise of its power under Articles 226 /227 of the Constitution since it is not exercising an appellate jurisdiction. The scope of judicial review in matters arising out of judgment of the subordinate Courts and before this Court under Articles 226 /227 of the Constitution 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 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 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 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 Articles 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 re-appreciate 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 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 jurisdictions 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 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, , 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.

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.

I have to proceed to consider present case in the light of the above discussion and exposition of law. It cannot be disputed when an accommodation is required to be released by a landlord on the ground of personal need for commercial purposes, if such landlord possess any other accommodation and that too in the same building and in the vicinity of the accommodation in dispute, this would be an important aspect to be considered to decide bona fide need of landlord, as to why the available accommodation cannot be used for the purposes for which the disputed accommodation is required. If the landlord fails to provide a valid reason and justification, it would be a relevant consideration justifying an inference against the bona fide and genuity of the need claimed by landlord.

In the present case, the petitioner-tenant contended that the aforesaid two shops are vacant and in possession of landlord. It was disputed by landlord by filing an affidavit of himself and one Meemal Jain, whom the landlord claimed that these two shops are in his tenancy. No documentary evidence was placed on record like old receipts receiving rent from Meemal Jain, or any other documents showing that Meemal Jain was doing any kind of business in the aforesaid two shops. The evidence in the form of affidavits was endeavoured to be discarded by the petitioner, filing statutory official documents of assessment of Nagar Palika Parishad, Baraut in which names of various occupants of the building in which the disputed accommodation exists were mentioned but not that of Meemal Jain. It was a documentary evidence of a statutory independent body and has its own importance. It is really surprising that this evidence has been ignored by Trial Court on sheer conjectures and surmises. It has failed to consider its evidentiary value on valid and relevant reason. The Trial Court, in the impugned judgment, on pages 200-201 of the paper book, has observed:--

(Vernacular matter omitted....Ed.)

The above shows that assessment register/record has been discarded on sheer presumptions and conjectures that probably the name of Meemal Jain may have left to be mentioned therein though no reason or basis for such presumption or conjectures has been mentioned.

The appellate Court has given more strange reason to discard it by observing that the question whether Meemal Jain is tenant in the said building or not is not at all an issue in dispute in the matter and is not relevant. In para 17 of the appellate judgment it says:

(Vernacular matter omitted. ...Ed.)

The Court finds it strange that the two vacant shops in respect whereto the petitioner claimed that the landlord is in possession and can settle his son therein which fact the landlord has disputed on the ground that the same are under the tenancy of Meemal Jain, and this fact would be relevant to consider bona fide of the need of respondent-landlord in respect to the accommodation in question yet when confronted with the municipal record and finding probably no reply, the appellate Court has given a strange finding that the question whether Meemal Jain is tenant in building or not is not at all a relevant issue.

To my mind, the appellate Court''s approach is clearly illegal unjust and unsustainable.

Besides above, it is evident from record that the appellate Court, though admitted a large number of documentary evidence at the appellate stage, filed by petitioner-tenant, but in the impugned judgment, appellate Court has neither discussed the same in one or the other way nor has even referred the same. Normally, additional evidence at appellate stage is not accepted as a matter of course unless the appellate Court finds it necessary. Once the additional evidence was accepted by appellate Court, meaning thereby, it found those documents necessary for proper adjudication of the matter in appeal, yet in the ultimate judgment, it has completely ignored all those documents, is really surprising and disturbing.

Since both these aspects can be looked into afresh by the appellate Court itself, hence, I find it appropriate to set aside the appellate judgment and order only and remand the matter to Appellate Court to consider and decide appeal afresh after giving due opportunity of hearing to all concerned parties. It shall pass a fresh order in accordance with law and in the light of the observations made above.

Accordingly, the writ petition is partly allowed. The judgment dated 16.7.2011 passed by 1st Additional District Judge, Baghpat in Rent Appeal No. 9 of 2010 is, hereby, set aside. The Appellate Court is directed to decide the above appeal afresh, expeditiously, and in any case within three months from the date of production of a certified copy of this order, in accordance with law in the light of the observations made above. No costs.