Rajasthan High Court - Jaipur
Shailendra Kumar vs Rent Appellate Tribunal Ors on 20 June, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. Civil Writ Petition No. 6969/2012. Shailendra Kumar Vs. Rent Appellate Tribunal, Jaipur & ors. Date of Order : 20 June, 2012. HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr SS Hora, for the petitioner. Mr Resham Bhargava, for the respondents. BY THE COURT:
REPORTABLE The petitioner tenant has filed this writ petition against the order dated 20th August, 2010 (Annex.7) passed by the Rent Tribunal, Jaipur; in Application No. 628/2006 (Jagjeet Kaur Vs. Shailendra Prasad) whereby the same was allowed and also the order dated 5.4.2012 passed by the Rent Appellate Tribunal, Jaipur in Appeal No. 181/2010 (Shailendra Kumar Vs. Jagjeet Kaur) which had been dismissed. Therefore, the petitioner has prayed that the aforesaid orders passed by the Rent Tribunal, Jaipur as well as the Rent Appellate Tribunal, Jaipur be quashed and set aside.
2. The brief facts, for the purpose of adjudication of the present controversy, are that on 18.9.1989, a rent agreement was entered into between Smt. Lajwanti wife of Shei Ajeet Singh and the mother-in-law of respondent No.3 wherein it was agreed that the petitioner would be a tenant in one of the shops situated in south-west corner of the property. Subsequently, on the death of Sardar Ajeet Singh division of the said property took place and Sardar Harbhajan Singh, husband of respondent No.3 who was one of the sons of Sardar Ajeet Singh got his share in the property, the portion in which the petitioner was running his shop as a tenant. Later on in the year 1996, Sardar Harbhajan Singh also died leaving behind, respondent No.3, and a daughter. After the marriage of the daughter, respondent No.3 had been living alone in her portion of the property, since the year 1996.
The petitioner had issued a notice to the respondent on 26.8.2004 stating that the receipt of rent be given to him or the bank account number may be provided so that the petitioner can deposit the rent amount in the bank. In response to the said notice on 10.9.2004, the respondent had informed that since there is a need for more space, the petitioner should vacate the premises. Subsequently on 5.7.2005, respondent No.3 filed an application under Section 6 and 9 of the Rent Control Act, 2001 for eviction of the suit premises on the ground of bona fide necessity. The matter then proceeded and both sides had produced evidence. On conclusion of the proceedings on 20.8.2010, the learned Rent Tribunal allowed the application filed by respondent No.3 and ordered that the land lord shall be entitled for vacant possession of the suit premises within six months. Further, that the land lord shall be entitled to the revised rent of the suit premises since 5.7.2005.
3. Being aggrieved of the order dated 20.8.2010 passed by the Rent Tribunal, the petitioner preferred an appeal before the Rent Appellate Tribunal, Jaipur, primarily on the ground that the land lord does not have any bona fide necessity of the suit premises. It was also averred in the appeal that as there was no new circumstances after a period of 8 years which led to initiation of action for eviction of the suit premises by respondent No.3. The learned Rent Appellate Tribunal, Jaipur however dismissed the appeal filed by the petitioner holding that the space in which the respondent No.3 is residing, is not sufficient for her and that there was no illegality in the order passed by the Rent Appellate Tribunal on 28.8.2010 and the same was affirmed. Hence this writ petition under Article 226 and 227 of the Constitution of India has been filed against the impugned orders passed by both the tribunals below.
4. The learned counsel for the petitioner has submitted that the orders passed by both the tribunals are illegal and arbitrary and as such the same deserves to be quashed and set aside. Further, it has been submitted that the learned Tribunal has wrongly passed the impugned orders without appreciating the facts and circumstances of the case as well as the evidence on record which reflects that there was no reasonable and bona fide necessity for respondent No.3 to have the suit premises vacated and it was mere desire for the same on her part. It is also submitted that both the Tribunals had erred in not appreciating the fact that the demand of the land lord was malafide which was reflected from the circumstances of the case, and therefore, the impugned orders are bad in the eye of law and are liable to be quashed in toto. The learned counsel for the petitioner has submitted that plea of reasonable and bona fide necessity should be based on actual need and not merely on the desire or need of the land lord which is evasive and whimsical. It is also submitted that the learned court below had erred in not appreciating the principles of law as laid down by the apex Court in respect of bona fide necessity. In the last, the learned counsel for the petitioner has submitted that the findings arrived at by both the courts below are neither correct nor based on proper appreciation of evidence on record. The learned counsel for the petitioner has placed reliance on the case of (i) Mohd. Safi Vs. Additional District & Sessions Judge (VII), Allahabad & ors., (1977) 2 SCC 226; (ii) Variety Emporium Vs. VRM Mohd. Ibrahim Naina, (1985) 1 SCC 251; (iii) Shama Prashand Raje Vs. Ganpatrao & ors., (2000) 7 SCC 522 and (iv) Deena Nath Vs. Pooran Lal, (2001) 5 SCC 705.
5. The learned counsel for respondent No.3 has, on the other hand, supported the orders impugned passed by both the Tribunals and has submitted that there is no illegality or infirmity in the same so as to call for any interference by this Court in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India. He has further submitted that the learned Tribunals have thoroughly considered the evidence on record and has concurrently come to a finding that the land lord did have a reasonable and bona fide necessity of the suit premises and accordingly the orders for eviction have been rightly passed in her favour. It is also submitted that respondent No.3, the land lady was having a mere small portion of house wherein a partition had been made so as to run a retail shop and a PCO. Consequently, she was not having an adequate portion for her residence. Even if a visitor had to come to meet the land lady, he was made to sit in the petty shop. Therefore, it was on account of the difficulties being faced by the land lord and the reasonable and bona fide necessity which she had for the suit premises that the learned Tribunals have rightly accepted the request and ordered that the tenant should be evicted from the portion rented to him. Therefore, the counsel for the respondent has submitted that both the Tribunals have not committed any error and this Court be pleased not to exercise its extraordinary jurisdiction under the Constitution, wherein the scope of judicial review is very limited. The counsel for the respondent has placed reliance on the case of, (1) Koyilerian Janaki & ors Vs. Rent Controller (Munsiff) Cannanore & ors., (2000) 9 SCC 406; (2) Laxmikant Revchand Bhojwani & Anr. Vs. Pratapsingh Mohansingh Pardeshi, (1995) 6 SCC 576; (3) Ouseph Mathai & ors. Vs. M. Abdul Khadir, (2002) 1 SCC 319; (4) Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram, (1986) 4 SCC 447; (5) Jamnabai Ramchandra Vadekar Vs. Modern Auto & Machinery Agency, (2000) 10 SCC 573; (6) Ganpat Ladha Vs. Sashikant Vishnu Shinde, (1978) 2 SCC 573; (7) Bathutmal Raichand Oswal Vs. Laxmibai R. Tarta & Anr., (1975) 1 SCC 858; (8) R.C. Tamrakar & Anr. Vs. Nidi Lekha, (2001) 8 SCC 431; (9) Akhileshwar Kumar & ors. Vs. Mustaqim & ors., (2003) 1 SCC 462; (10) Govinda Prasad Vs. Bangali, 1996 (3) WLC (Raj.) 607; (11) Narhari Soma Bai Vs. Vitthal Das, 1999 (1) RCR 83; (12) Maheshwari Samaj Vs. Mohan Singh RLR 1984 35; (13) Champa Lal Vs. Amar Chand & anr., 2009 (2) CDR 992 (Raj.); Hanso Devi Vs. Shri Mool Chand, 2006 WLC (Raj.) UC 486; and Mohabbey Ali Vs. Tej Bahadur & ors., 2009 (76) ALW 531.
6. After thoroughly considering the material on record filed by the petitioner along with the writ petition which includes all the documents which were there before the learned Rent Tribunal such as the application under Sections 6 and 9 of the Act of 2001; copies of statements of the witnesses produced by the respective parties etc., this Court is of the considered opinion that the present case is not of a nature where any interference is called for in exercise of extraordinary powers vested with this Court under Article 227 of the Constitution of India. Moreover, the eviction of the suit premises in the present case has been sought mainly on the ground of reasonable and bona fide necessity of the land lord which has been looked into by both the courts below after properly appreciating and analyzing the statements of witnesses produced by both the sides and have concurrently arrived to a finding in this regard. The learned Tribunals have gone into details in respect of the premises which the respondent No.3 is having and the genuine difficulties being faced in her day to day working. She had to run simultaneously her petty shop to earn livelihood and also to have a portion with regard to her residence. There had not been any space to attend the visitors and her relatives so as to have them sit in the residential portion and they were to be kept in the part of premises which was meant for the shop. On consideration of the facts of the present case as well as the evidence on record, it cannot be said that the demand for more space by the land lord is not bona fide or that it is merely a desire or wish on her part. Both the Tribunals have considered in detail the material on record and have arrived to a concurrent finding of fact in respect of the bona fide necessity of the land lord and the suit premises for her use. There is nothing on record so as to establish any mala fide on the part of respondent No.3, in initiating the proceedings for eviction.
7. It is a settled principle of law that for a bona fide requirement, the land lord is the best judge as to what his requirements are and neither the tenant nor the court may endeavour to say as to how the land lord should adjust himself. It is equally settled that once a land lord proves his bona fide upto the objective satisfaction of the Court on facts, the choice of accommodation which would satisfy his requirements should be left to land lord's subjective choice. Even the Court cannot impose its own choice. In the present case, both the Tribunals have come to a concurrent finding in respect of bona fide requirement of premises by the land lord. It is a settled principle that the bona fide necessity is a finding of act. In the instant case, despite of a specific query having been made by the court to the learned counsel for the petitioner, he was unable to point out any perversity in the findings arrived at by both the Tribunals below. Consequently, this Court in exercise of extraordinary powers under Article 227 of the Constitution of India cannot interfere in the findings of fact arrived at by both the Tribunals below.
8. Coming to another aspect of the present case with regard to the limited scope which is left to this Court while exercising powers under Article 227 of the Constitution of India in respect of concurrent findings arrived at by both the Tribunals, an aspect which has been much emphasized by learned counsel for the respondent, this Court is of the considered opinion that it is a settled principle of law since long that the powers under Article 227 of the Constitution are neither akin to appellate powers or revisional powers. Moreso, when the proceedings in the present case arises under the Act governing the land lord and tenant relationship and their dispute, it does not provide for any second appeal or revision to the High Court. The purpose behind providing such a remedy is to give finality to the orders passed under the Act. The power under Article 227 is exercisable when it is found by the High Court that due to a certain grave error, an injustice has been caused to a party. The said jurisdiction of the High Court is limited only to seeing that the subordinate courts functions within the limits of its authority and does not extend to correction of mere error of fact by examining the evidence and reappreciating an error of fact that can be corrected only by a superior court in exercise of statutory powers as a court of law. Therefore, the High Court cannot be anxious in exercising its jurisdiction under Article 227 of the Constitution of India to convert itself into a court of appeal.
9. About half a century ago, the Constitution Bench of the Hon'ble Supreme Court in the case of Negendra Nath Bora Vs. Commissioner Of Hills, AIR 1958 SC 398 has laid down that the powers under Article 227 is limited to seeing that the courts of law function within the limits in its authority or jurisdiction. The said principle was then followed in the case of Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895 wherein the Hon'ble Supreme Court in Para 12 held that:
... jurisdiction conferred (under Article 227) is not by any means appellate in its nature for correcting errors in the decisions of subordinate courts or tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority ...
Similarly, in the case of Mohd. Yunus Vs. Mohd. Mustaqim, (1983) 4 SCC 566, the Hon'ble Supreme Court, in Para 7, observed as under:
7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited `to seeing that an inferior court or tribunal functions within the limits of its authority', and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him nor in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an appellate court or tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decisions.
10. Later on in the case of Laxmikant Revchand Bhojwani Vs. Pratapsing Mohansingh Pardeshi, (1995) 6 SCC 576, the Hon''ble Supreme Court had again observed, in Para 9 that:
9. ... The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.
11. The larger Bench of the Hon'ble Supreme Court in Rena Drego Vs. Lalchand Soni, (1998) 3 SCC 341 had made it abundantly clear that the High Court cannot interfere with the finding of fact recorded by the subordinate court or the tribunal while exercising its jurisdiction under Article 227. Its function is limited to seeing that the subordinate court or the Tribunal functions within the limits of its authority. It cannot correct mere error of fact by examining evidence and re appreciating it.
Therefore, ever since the year 1958, it is a consistent principle of law that the limited jurisdiction of the High Court under Articles 227 of the Constitution of India cannot be exercised to interfere with finding of fact by setting aside the judgments of the court below on merits.
12. In view of the settled principle of law with regard to limited scope which this Court has under the constitution of India, particularly when the Rent Control Act, 2001 does not provide for any second appeal or revision before the High Court and after having carefully gone through the orders passed by both the tribunals, this Court is of the opinion that no interference whatsoever is called for in the orders/ judgments passed by them and the same deserves to be affirmed by this Court.
13. This Court has also gone through the material on record, particularly the evidence produced by both the parties so as to ascertain and to be satisfied that by the orders of both the Tribunals, if any grave injustice has been caused to the petitioner but after having given my anxious and thoughtful consideration to the matter, the conclusion arrived at by this Court is in the negative. Therefore, the case in hand is not a fit one for this Court to exercise its extraordinary powers under the Constitution looking to the nature of the case as well as the findings arrived at by both the tribunals below.
14. Consequently, the relief sought by the petitioner deserves to be rejected and the writ petition is dismissed as being devoid of merits. As the writ petition is dismissed, the stay application is also dismissed.
(RAGHUVENDRA S. RATHORE),J.
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