Allahabad High Court
Manzoor Alam vs Saiyad Mahmood Ali on 29 January, 2018
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 7 Case :- MATTERS UNDER ARTICLE 227 No. - 435 of 2018 Petitioner :- Manzoor Alam Respondent :- Saiyad Mahmood Ali Counsel for Petitioner :- Mr Shailendra Singh,Mr Sanjiv Singh Counsel for Respondent :- Mr Rafiuddin Ansari Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Sanjiv Singh, learned counsel for the defendant-petitioner/tenant and Sri Rafiuddin Ansari, learned counsel for the plaintiff-respondent/landlord.
2. This petition under Article 227 of the Constitution of India has been filed praying for the following relief:
I. Issue, an order or direction in the nature of quashing the judgment, decree and order dated 30.09.2015 passed by the Prescribed Authority/Small Cause Judge, Gorakhpur in P.A. Case no.21 of 2012 (Syed Mahmood Ali Vs. Manzoor Alam) and the judgment, decree and order dated 20.01.2018 passed by Additional District Judge/Special Judge E.C. Act, Gorakhpur in Rent Appeal No.7 of 2015 (Manzoor Alam Vs. Syed Mahmood Ali) and dismiss the release application filed by the applicant respondent.
Facts
3. Briefly stated facts of the present case are that undisputedly plaintiff-respondent is the owner and landlord of disputed shop situate in Mohalla - Miya Bazar, Bank Road, City Gorakhpur. In the said shop the father of the defendant-petitioner was tenant since the year 1955. After his death the tenancy was succeeded by the defendant-petitioner. According to the defendant-petitioner he is a tenant at a monthly rent of Rs.275/- while according to the plaintiff-respondent he is tenant at a monthly rent of Rs.875/-. The family of the plaintiff-respondent/landlord consists of his wife and five sons. The first, second and fourth son are employed. The fifth son is unmarried. The third son, Syed Akhtar Mahmood, is also married and he has two children. The plaintiff-respondent has filed the release application being P.A. Case No.21 of 2012 (Syed Mahmood Ali Vs. Manzoor Alam) setting up the bonafide need of the disputed shop for establishing business by his third son, namely, Syed Akhtar Mahmood, who has experience in furniture trade. Evidences were led by the parties before the Prescribed Authority who passed the impugned judgment dated 30.9.2015 allowing the release application on the finding that the plaintiff-respondent is in bonafide need of the disputed shop and comparative hardship is in his favour. He also recorded a finding of fact that the defendant-petitioner has not made any effort to search for any alternative accommodation rather he took the stand that there is high premium in the locality for taking a shop on rent, therefore, he can not take another shop on rent. Aggrieved with the judgment dated 30.9.2015 passed by the Prescribed Authority/Judge Small Cause Court, Gorakhpur, the defendant-petitioner filed a Rent Appeal No. 07 of 2015 (Manzoor Alam Vs. Syed Mahmood Ali) which has been dismissed by the impugned judgment dated 20.1.2018, passed by the Additional District Judge/Special Judge E.C. Act, Gorakhpur. Aggrieved with these two judgments, the defendant-petitioner has filed the present petition under Article 227 of the Constitution of India.
Submissions
4. Learned counsel for the defendant-petitioner submits that both the courts below have not considered the evidences of the defendant-petitioner on the question of bonafide need and comparative hardship. The findings on the question of bonafide need and comparative hardship have been recorded by the courts below without consideration of the evidences on record and, therefore, both the judgments deserve to be set aside. Alternatively, he submits that if the Court comes to the conclusion that the impugned judgments have been passed in accordance with law then some time may be granted to enable the defendant-petitioner to vacate the disputed shop.
5. Learned counsel for the plaintiff-respondent submits that the plaintiff has established bonafide need for the disputed shop. He submits that it is the admitted case of the defendant-petitioner that the third son of the plaintiff-respondent has no shop to run his business independently and that he (third son) has experience of furniture trade. It has not been disputed that the aforesaid third son is married and his family consists of self, wife and two children. The defendant-petitioner has not made any effort for search of an alternative accommodation. The findings recorded by the courts below are findings of fact based on consideration of relevant evidences on record and, therefore, the impugned judgments can not be interfered with under Article 227 of the Constitution of India.
6. I have carefully considered the submissions of learned counsel for the parties and perused the record of the petition before me.
Discussion and Findings
7. It is admitted to the parties that the plaintiff-respondent is the owner and landlord of the disputed shop of which the defendant-petitioner is the tenant. Thus, there is no dispute of landlord-tenant relationship with respect to the disputed shop.
8. The plaintiff-respondent has filed the release application for bonafide need of the disputed shop for establishing his son Syed Akhtar Mahmood to start his independent business of furniture who has experience in furniture trade. The defendant-petitioner has led the evidence of Ashraf Masood Alam who admitted that the third son of the plaintiff-respondent does the work of furniture supply and he used to conduct his aforesaid activity from the furniture shop of his father i.e. the plaintiff. The evidence of the aforesaid Asharaf Masood Alam has been heavily relied before me by learned counsel for the defendant-petitioner. This evidence, as aforesaid; itself shows that it is admitted to the defendant-petitioner that the plaintiff-respondent has a furniture shop from which his third son Syed Akhtar Mahmood is conducting his business of furniture supply on order. Thus, it is admitted to the defendant-petitioner that the third son of the plaintiff-respondent has no independent shop and that he has experience in furniture trade. Therefore, the need as set up by the plaintiff-respondent for the disputed shop for starting furniture business by his third son is a bonafide need. The findings recorded by the Prescribed Authority as well by the Appellate Court on the question of bonafide need is a finding of fact based on consideration of relevant evidences on record. Both the courts below have deeply gone into the question of bonafide need and recorded the findings on this issue after due consideration to the relevant evidences. Under the circumstances, these findings of fact can not be interfered with.
9. So far as the question of comparative hardship is concerned, I find that both the courts below have well considered the question of bonafide need. The courts below have recorded concurrent findings of fact based on consideration of relevant materials on record that the comparative hardship is in favour of the plaintiff-respondent. A finding has also been recorded that the defendant-petitioner has not made any effort for search of an alternative accommodation. It has also been observed that the defendant-petitioner has contended that in the locality premium for taking a shop on rent is very high and, therefore, he can not arrange it. The stand so taken does not establish comparative hardship in favour of the defendant-petitioner. No perversity in the findings of fact recorded by the courts below could be pointed out by learned counsel for the defendant-petitioner.
10. In view of the above discussion, I do not find any grave error of law or perversity in the findings recorded by the courts below that the plaintiff-respondent is in bonafide need of the disputed shop and comparative hardship is in his favour. Thus, the impugned judgments releasing the shop in question do not suffer from any manifest error of law.
Scope of Article 227 of the Constitution of India
11. The Article 227 of the Constitution of India reads as under:
"227. Power of superintendence over all courts by the High Court (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provisions, the High Court may-
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause ( 2 ) or clause ( 3 ) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces."
12. The superintendence of power of 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. This power can not be exercised to influence the subordinate judiciary to pass any order or judgment in a particular manner. 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.
13. In T.G.N. Kumar Vs. State of Kerala and others1 (para 21), Hon'ble Supreme Court referred to its earlier decision in S.Palani Velayutham & Others VS. District Collector, Tirunvelveli, Tamil Nadu & Others2 (para 19) and quoted the observations that the Courts should avoid the temptation to become authoritarian. In their anxiety to do justice, the courts have gone overboard, which results in injustice, rather than justice. It is said that all power is trust and with greater power comes greater responsibility. The power under Article 227 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. Thus, the power is restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be caused unless the High Court interferes. For interference under Article 227, the findings of fact recorded by the Court or Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. The power cannot be exercised 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. This power is not in the nature of appellate power enabling re-appreciation of evidence. The conclusions reached by the competent authority can not be altered merely on the ground of insufficiency of evidence. The High Court can not substitute its view for the opinion of the Authorities/ Courts below in proceedings under Article 227. The finding of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The findings can not 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. As long as the findings are based upon some material relevant for the purpose, no interference is called for. Re-appreciation of evidence is not permissible under Article 227 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.
14. While examining the scope of Article 227 of the Constitution of India, Hon'ble Supreme Court has laid down similar principles in D. N. Banerji Vs. P. R. Mukherjee3 ; Waryam Singh and another Vs. Amarnath and another4; Mohd. Yunus v. Mohd. Mustaqim and Ors.5; Nibaran Chandra Bag Vs. Mahendra Nath Ghughu6; Rukmanand Bairoliya Vs. the State of Bihar & ors.7; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors.8; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi9 ; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors.10 ; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors.11 ; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors.12 ; Rena Drego Vs. Lalchand Soni & ors.13; Chandra Bhushan Vs. Beni Prasad & ors.14, ; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja15 ; Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr.16 ; Union of India & ors. Vs. Himmat Singh Chahar17; Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd.18; Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer19; Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union20 ; Union of India Vs. Rajendra Prabhu21; Maharashtra Vs. Milind & ors.22 ; Extrella Rubber Vs. Dass Estate (P) Ltd.23; Omeph Mathai & ors. Vs. M. Abdul Khader24; Surya Dev Rai Vs. Ram Chander Rai and others25 ;Jasbir Singh Vs. State of Punjab26 ; Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil27 ; Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another28; Bandaru Satyanarayana Vs. Imandi Anasuya29 ; Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others30 ; Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar31 ; Union of India Vs. R.K. Sharma32 .
15. In Ram Kishan Fauji vs State of Haryana33 (para 38) Hon'ble Supreme Court followed its earlier decision in the case of In Radhey Shyam and another v. Chhabi Nath and others34 as under:
"In the ultimate eventuate, the three-Judge Bench answered the reference as follows:-
"29.1. Judicial orders of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution.
29.2. Jurisdiction under Article 227 is distinct from jurisdiction under Article 226.
29.3. Contrary view in Surya Dev Rai 2003(6) is overruled."
16. In Ajay Singh Vs. State of Chhatisgarh35, Hon'ble Supreme Court held as under (paras 1 and 24):
1. Performance of judicial duty in the manner prescribed by law is fundamental to the concept of Rule of Law in a democratic State. It has been quite often said and, rightly so, that the judiciary is the protector and preserver of Rule of Law. Effective functioning of the said sacrosanct duty has been entrusted to the judiciary and that entrustment expects the courts to conduct the judicial proceeding with dignity, objectivity and rationality and finally determine the same in accordance with law. Errors are bound to occur but there cannot be deliberate peccability which can never be countenanced. The plinth of justice dispensation system is founded on the faith, trust and confidence of the people and nothing can be allowed to contaminate and corrode the same. A litigant who comes to a court of law expects that inherent and essential principles of adjudication like adherence to doctrine of audi alteram partem, rules pertaining to fundamental adjective and seminal substantive law shall be followed and ultimately there shall be a reasoned verdict. When the accused faces a charge in a court of law, he expects a fair trial. The victim whose grievance and agony have given rise to the trial also expects that justice should be done in accordance with law. Thus, a fair trial leading to a judgment is necessitous in law and that is the assurance that is thought of on both sides. The exponent on behalf of the accused cannot be permitted to command the trial as desired by his philosophy of trial on the plea of fair trial and similarly, the proponent on behalf of the victim should not always be allowed to ventilate the grievance that his cause has not been fairly dealt with in the name of fair trial. Therefore, the concept of expediency and fair trial is quite applicable to the accused as well as to the victim. The result of such trial is to end in a judgment as required to be pronounced in accordance with law. And, that is how the stability of the creditability in the institution is maintained.
24. In Achutananda Baidya v. Prafullya Kumar Gayen and others 1997(5) SCC76 a two- Judge Bench while dealing with the power of superintendence of the High Court under Article 227 has opined that the power of superintendence of the High Court under Article 227 of the Constitution is not confined to administrative superintendence only but such power includes within its sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure that the courts and tribunals, inferior to High Court, have done what they were required to do. Law is well settled by various decisions of this Court that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice.
(Emphasis supplied by me)
17. In view of the above discussion, I do not find any merit in this petition. Consequently, the petition fails and is hereby dismissed.
18. After this order was dictated in open Court, learned counsel for the defendant-petitioner has stated that the defendant-petitioner undertakes to vacate the disputed shop within six months and shall handover its vacant and peaceful possession to the plaintiff-respondent within the said period. He, therefore, submits that for a period of six months no coercive action may be taken against him.
19. Learned counsel for the plaintiff-respondent opposes the request.
20. Considering the aforesaid statement of learned counsel for the defendant-petitioner, it is provided that if the defendant-petitioner submits an undertaking as aforesaid, before the Prescribed Authority within four weeks from today alongwith a certified copy of this order and deposits a sum of Rs.10,000/- towards use and occupation of the disputed shop for the period from today till 30th June 2018, then in that event no coercive action shall be taken against the defendant-petitioner to dispossess him from the disputed shop till 30.06.2018.
21. In the event of failure either to submit the undertaking and to deposit the aforesaid amount within the stipulated period, the protection as given above shall automatically stand vacated. In the event the defendant-petitioner does not vacate and handover the vacant and peaceful possession of the disputed house to the plaintiff-respondent/landlord on or before 30th June 2018 then in that event the plaintiff-respondent/landlord shall be entitled to initiate appropriate proceedings against the defendant-petitioner/tenant including the proceedings for contempt.
22. With the aforesaid observations, this petition is dismissed.
Order Date :- 29.1.2018/vkg