Bombay High Court
Mahendrabhai S/O Purushottam Patel vs Vasant Mahadeorao Sangole on 18 January, 1995
Equivalent citations: 1995(4)BOMCR683, (1995)97BOMLR68, 1995 A I H C 5947, (1996) 2 ICC 71, (1996) 1 RENTLR 290, (1996) 1 MAH LJ 339
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT R.M. Lodha, J.
1. Mahendrabhai, who is a tenant occupying a block bearing No. 208/1 situated in Rukhmini Nagar, Amravati (hereinafter referred to as "the tenant") has filed this writ petition under Articles 226 and 227 of the Constitution of India challenging the order dated 20-12-1988 passed by the Resident Deputy Collector, Amravati in Review Case No. 38/71(2)/88-89 allowing partly the review application and consequently permitting the respondent - landlord (hereinafter referred to as "the Landlord") to issue a quit notice to the tenant under Clause 13(3)(vi) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as "the Rent Control Order").
2. The relevant facts are that the tenant took the premises in dispute from the original owner Vishwanath Bundamal Sachdeo on rent of Rs. 150/- p.m. excluding the electricity charges. The landlord purchased the property comprising southern side half portion of the house bearing No. 208/1-2 situated in Rukhmini Nagar, Amravati including the permises in question from the original owner Vishwanath Bundamal Sachdeo by registered sale-deed executed in his favour on 30-3-1965. The landlord occupied a block of three rooms of the property purchased by him. On 5-3-1986 the landlord filed an application for grant of permission to issue quit notice to the tenant under Clause 13(3)(i), (ii) and (vi) of the Rent Control Order before the Rent Controller. It was averred in the said application that the tenant was the monthly tenant in the premises in question. The tenant has not paid the rent regularly at the expiry of the every tenancy month and has only paid the rent till 30-4-1984 and from 1-5-1984 to 29-8-1986 the rent has fallen due and is outstanding. The landlord thus averred that not only the rent of more than three months has fallen due, but the tenant is also a habitual defaulter. The landlord annexed a schedule of payment of rent to show the conduct of the tenant that he was habitually in arrears with rent. The landlord also set out the ground of bona fide need and it was averred in the application that he has a large family comprising of himself, his father, wife, son and daughter and his brother, brother's wife and nephew, and all of them are residing in the adjacent block of three rooms and kitchen, which is not sufficient for the family of the landlord and the premises in question are required bona fide for his residence.
3. The tenant contested the application of the landlord filed under Clause 13(3)(i), (ii) and (vi) of the Rent Control Order and denied that he has committed any default in payment of rent as alleged or was habitually defaulter within the meaning of Clause 13(3)(i) and (ii). As regards the need, the tenant has denied that the premises were required bona fide by the landlord. On the other hand, according to the tenant, the landlord wanted to increase the rent to which the tenant was not agreeable and, therefore, the said ground has been set out mala fidely.
4. The Rent Controller after holding an inquiry and hearing the Counsel for the parties concluded that the tenant was the defaulter within the meaning of Clause 13(3)(i) and was also a habitual defaulter under Clause 13(3)(ii). The Rent Controller found that the premises in question are required by the landlord for his bona fide occupation and, therefore, granted the permission to the landlord to issue the quit notice to the tenant under Clause 13(3)(i), (ii) and (vi) of the Rent Control Order by his order dated 30-10-1987.
5. The tenant dissatisfied with the order of the Rent Controller, Amravati, passed on 30-10-1987 carried appeal to the Resident Deputy Collector, Amravati. The Appellate Authority did not agree with the findings recorded by the Rent Controller and held that the grounds set out by the landlord under Clause 13(3)(i) and (ii) are not proved. As regards the ground of bona fide occupation under Clause 13(3)(vi), the Appellate Authority found that Dr. Vilas was residing separately and, therefore, while considering the need of the landlord for his family, the family of Dr. Vilas was wrongly considered by the Rent Controller and, therefore, the bona fide need also cannot be said to have been established by the landlord and consequently the appellate authority allowed the appeal vide its order dated 17-10-1988 and set aside the order passed by the Rent Controller dated 30-10-1987.
6. According to the landlord, while passing the order dated 17-10-1988 and reversing the findings of the Rent Controller, the Appellate Authority committed manifest errors and, therefore, he filed the review application against the order dated 17-10-1988.
7. In the review application after hearing both the learned Counsel for the parties, the Appellate Authority did not find any error in so far as its findings relating to Clause 13(3)(i) and (ii) were concerned. However, as regards the finding recorded by it on the question of bona fide need, the Appellate Authority found that the manifest error was committed by him by excluding Dr. Vilas and his family from the family of the landlord on the ground that Dr. Vilas has constructed a room, while in fact that room was constructed by Dr. Vilas for his dispensary and not for his residence, and therefore Dr. Vilas and his parents continued to live with the landlord. Consequent to this finding the Appellate Authority rectified its finding under Clause 13(3)(vi) in review application and held that the landlord has established his bona fide need and the finding recorded by the Rent Controller permitting the landlord to issue the quit notice to the tenant on that ground needs to be affirmed and permitted the landlord to issue the quit notice to the tenant under Clause 13(3)(vi). Thus the Resident Deputy Collector partly allowed the review application vide his order dated 20-12-1988.
8. The only contention raised by the learned Counsel for the petitioner during the course of arguments in the present writ petition is that the Resident Deputy Collector exceeded his jurisdiction in partly allowing the review application and setting aside his own order dated 17-10-1988 on the ground under Clause 13(3)(vi) by interfering with the finding of fact which was recorded by him in the appeal relating to the ground of bona fide reed. In support of this contention, the learned Counsel for the petitioner relied on the decision of this Court in Tukaram Nathuji Sonkusare v. Dayalnath Dudhanath Mishra, 1985 Mah. L.J. 37.
9. Mr. L.A. Mohta, learned Counsel for the landlord, on the other hand submitted that the Appellate Authority having found that the manifest error was committed by it while deciding the ground of bona fide need in its order dated 17-10-1988, rightly corrected the same in review application filed by the landlord in exercise of its powers under Clause 21(2-a) of the Rent Control Order. The learned Counsel for the landlord further submitted that the power of review conferred by Clause 21(2-a) is wide enough to correct even errors of fact and no error has been committed by the reviewing authority in passing the order dated 20-12-1988 and, therefore, no interference is called for in the said order by this Court in its extra ordinary writ jurisdiction under Articles 226 and 227 of the Constitution of India. The learned Counsel for the landlord relied on the judgment of this Court in Dwarkadevi v. Narsingdas, 1987 Mah. L.J. 332.
10. After having given my anxious consideration to the submissions made by the learned Counsel for the parties and on perusal of the order passed by the Resident Deputy Collector, Amravati, dated 20-12-1988 impugned in the present writ petition, I am of the considered view that the contention raised by the learned Counsel for the petitioner is devoid of any merit. It will be seen that in the application filed by the landlord seeking the permission to issue the quite notice to the tenant so far as the ground of need under Clause 13(3)(vi) was concerned, it was averred that the landlord has eight members in his family and they were residing in the portion comprising of three rooms and kitchen, which were very small and insufficient for accommodation of his family. The landlord in the application gave the details of his family members, which included himself, his wife, son, daughter, father, brother, brother's wife and nephew. In his evidence also the facts stated in the application about his need, members of the family and the present premises available to him were proved and the landlord stated that for such a big family three rooms available with him was small and insufficient for their occupation. The tenant Mahendrabhai in his cross-examination has admitted that the landlord is married and he has two sons. He also admitted that his father was residing with him and also his brother Vilas. He also admitted that Dr. Vilas has one son. Thus it is patently clear from the deposition of the tenant himself that the family of the landlord comprises of nine members averred by him in the application and the said family included his parents, his brother Dr. Vilas and his family. On proper appreciation of the evidence the Rent Controller therefore rightly concluded that the accommodation available with the landlord comprising of three rooms was insufficient for the family of 8 members and therefore held that the ground under Clause 13(3)(vi) is proved. In appeal the Appellate Authority mainly reversed the finding of the Rent Controller on the ground of bona fide need on the basis that the landlord's brother Dr. Vilas is separately residing and that the evidence regarding the present accommodation, his father and brother did not find place on record. On the basis of this approach the Appellate Authority reversed the finding of the Rent Controller on the ground of bona fide need. Obviously the finding recorded by the Appellate Authority on the question of need was manifestly erroneous and based on assumption. At the time of hearing of the review application the attention of the Appellate Authority was adverted to the evidence of the tenant and also to the fact that the landlord's brother Dr. Vilas has constructed a room only for his own dispensary and not for his residence. The Appellate Authority thus found that serious error crept in and that needed to be corrected and consequently allowed the review application. The Appellate Authoriy thus held :
"The evidence on record reveals that the N.A. tenant in his cross examination admitted that above members are residing jointly. He has also no other house of his own. The learned Rent Controller has held that the applicant has sufficiently proved his case on this count. In my appellate order I have held that the applicant's brother Dr. Vilas is separately residing. However, the evidence reveals that the applicant's brother Dr. Vilas has constructed a room for his own dispensary. Therefore, the fact remained that the applicant, his brother Dr. Vilas and his parents are jointly residing in the suit premises. I am, therefore, inclined to accept that the order passed by me to the effect that Dr. Vilas is separately residing caused injustice to the applicant landlord in not accepting his bona fide need. Therefore, there has been an error occurred due to which manifest injustice occasioned".
It would be thus seen that the Appellate Authority was persuaded and was fully satisfied that manifest injustice has occasioned due to the error committed by him in deciding the appeal on the ground of bona fide need, which needed to be corrected. The entire consideration of the reviewing authority in the impugned order dated 20-12-1988 would show that the reviewing authority has not exceeded the jurisdiction conferred on it under Clause 21(2-a) of the Rent Control Order.
11. Clause 21(2-a) of the Rent Control Order reads as under :
"21(2-a) The Collector, may either on his own motion at any time or on the application of any party interested made within ninety days of the passing of an order, review any order passed by himself or any of his predecessors in office and pass such order in reference thereto as he thinks fit so however that no order shall be varied or reversed unless notice has been given to the parties interested to appear and be heard in support of such order".
The power of review under the aforesaid clause cannot be said to be restricted to correction of errors of law apparent on the face of record or such like errors. In deserving cases it is open to the reviewing authority to exercise the power of review where gross errors of fact or facts are apparent. Such errors of fact may have occasioned either by misreading of relevant pleadings or evidence or over looking or ignoring of material pleading or evidence or taking into account extraneous consideration and such error of fact or errors of fact have resulted in manifest injustice. It is true that every error in the garb of review cannot and should not be corrected nor the reviewing authority would hear the review application as an appeal against its own order, but at the same time the power of review under Clause 21(2-a) cannot be confined to correction of errors of law. The power of review under Clause 21(2-a) though normally and ordinarily should not be exercised in a routine manner, but there are no limitations and restrictions on the reviewing authority to exercise its power to correct its findings of fact which are patently erroneous and have resulted in failure of justice. In Tukaram's case (cited supra) relied upon by the learned Counsel for the petitioner, it has been held that the review jurisdiction available under Clause 21(2-a) is not restricted to point of law only and in a given case it may embrace even points of fact. The real test is that if error of fact stares at its face and is so obvious on the face of record that such error cannot be allowed to stand and if allowed to stand it would occasion in failure of justice, then it is open to reviewing authority to correct such error of fact. Applying the aforesaid test relating to power of review under Clause 21(2-a), it would be seen that the appellate authority while passing the order in appeal had ignored and over looked the material evidence of the tenant himself in which he admitted that the landlord's parents and brother Vilas were residing with him. In other words, the tenant himself admitted that the family of the landlord comprised of the members mentioned by him in the application filed under the Rent Control Order seeking permission of the Rent Controller to issue the quit notice to the tenant. It is also apparent that the appellate authority while passing the order dated 17-10-1988 took into consideration wrongly that the landlord's brother Dr. Vilas was separately residing on the basis of one room constructed by Dr. Vilas, which he constructed for the purpose of his dispensary only. Dr. Vilas and his parents continued to live jointly with the landlord and in such situation the reviewing authority (same officer) rightly held that in his order dated 18-10-1988 error crept in while considering the question of bona fide need, which has resulted in manifest injustice. In this view of the matter, the exercise of power of review under Clause 21(2-a) was fully justified and it cannot be said that the reviewing authority has exceeded its jurisdiction in interfering with the finding of fact recorded by it while deciding the appeal in so far as the ground of bona fide need under Clause 13(3)(vi) was concerned.
12. No arguments were advanced by either of learned Counsel in the application filed by respondent for taking on record subsequent events.
13. Consequently, this writ petition has no merit and is accordingly dismissed. Rule is discharged. As a result of dismissal of this writ petition, stay order passed by this Court stands vacated. No costs.