Allahabad High Court
Shri Satendra Pal Singh vs Sri Dwarika Das And Others on 8 November, 2012
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 1. Case :- WRIT - A No. - 58850 of 2012 Petitioner :- Shri Satendra Pal Singh Respondent :- Sri Dwarika Das And Others Petitioner Counsel :- Rishi Chadha AND 2. Case :- WRIT - A No. - 58851 of 2012 Petitioner :- Shri Satendra Pal Singh Respondent :- Sri Dwarika Das And Others Petitioner Counsel :- Rishi Chadha 3. Case :- WRIT - A No. - 58852 of 2012 Petitioner :- Shri Satendra Pal Singh Respondent :- Sri Dwarika Das And Others Petitioner Counsel :- Rishi Chadha Hon'ble Sudhir Agarwal,J.
1. Heard Sri Rishi Chadha, learned counsel for the petitioner and perused the record.
2. In all these three writ petitions the issues of facts and law are common and, therefore, Sri Rishi Chadha, learned counsel for the petitioner, has addressed this Court by treating Writ Petition No. 58850 of 2012 as the leading case but covering all the three cases and the same are being decided by this common judgment.
3. Learned counsel for the petitioner assailing the impugned judgments dated 11.11.2003 and 28.07.2012 whereby both the courts below have passed decree for eviction of petitioner-tenant from the shop(s) in dispute on the ground of default in payment of arrears of rent, contended that the courts below have relied on an unregistered rent note for collateral purposes, i.e., for determining the rate of rent payable by petitioner though it being an unregistered document, could not have been relied on for any purposes including collateral purposes. He referred to the definition of "lease" in Section 2(16) of Indian Stamp Act, 1899 (hereinafter referred to as the "Act, 1899") and contended that even a unilateral document, namely, "Kubuliat" is included therein. The mere fact that the rent note was a unilaterally executed document, would make no difference in order to bring it within the ambit of definition of "lease" and, therefore, as required under Section 35 of Act, 1899 unless the document is duly stamped, it would not be taken into consideration for any purposes whatsoever. Reliance is placed on the Apex Court's decisions in Mohan Lal Vs. Anandibai and others, AIR 1971 SC 2177; M/s Bajaj Auto Limited Vs. Behari Lal Kohli, AIR 1989 SC 1806; Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, AIR 2009 SC 1489 and decisions of other High Courts in Ganpat Mal Dhariwal Vs. Sukhraj, AIR 2001 Raj. 372; Smt. Bidya Devi Vs. Commissioner of Income Tax, Allahabad and others, AIR 2004 Cal. 63; Ram Abatar Mahato Vs. Sm. Shanta Bala Dasi, AIR 1954 Cal. 207. He also attempted to distinguish decision of this Court in Nawal Kishore Varshney Vs. Xth Additional District Judge, 2012 ADJ(6) 645 relied by courts below and contended that therein the Hon'ble Court has simply observed that the document is unilaterally signed, would not qualify to be a "lease" though this finding and inference is in the teeth of Section 2(16) of Act, 1899 which defines "lease".
4. Having gone through the record and after giving my anxious thoughts to the submissions of learned counsel for the petitioner, I find myself unable to accept the same.
5. The contention of learned counsel for the petitioner is that a document, even if executed unilaterally, would qualify the definition of "lease" and unless registered it cannot be looked into at all. The definition of "lease" contained in Section 2(16) of Act, 1899, reads as under:
"2(16) "Lease" means a lease of immovable property, and includes also--
(a) a patta;
(b) a Kabuliyat or other undertaking in writing, not being a counterpart of a lease, to cultivate, occupy, or pay or deliver rent for, immovable property;
(c) any instrument by which tolls of any description are let;
(d) any writing on an application for a lease intended to signify that the application is granted;"
(emphasis added)
6. It cannot be doubted that definition of "lease" under Act, 1899 is for the purpose of attracting provisions of chargeability of duty on an "instrument" under the said Act. The term "instrument" is also defined in Section 2(14), which reads as under:
"2(14). "Instrument" includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or record;" (emphasis added)
7. Item 35 Schedule 1 of Act, 1899 provides the determination of duty on an "instrument", namely, "lease". For the moment I need not to doubt whether the "rent note" in dispute in the present case, copy whereof has been filed as Annexure-8 to the writ petition No. 58850 of 2012, may quality the definition of "lease" under Act, 1899 but that by itself would not mean that every instrument of "lease", unless registered, cannot be looked into at all. The implication of Act, 1899 is different than the Indian Registration Act, 1908 (hereinafter referred to as the "Act, 1908").
8. Argument before the court below was not that the instrument/document in question was not "stamped" or "properly stamped" but it appears that the argument was that document/ instrument having not been registered is not admissible and cannot be acted upon. Trial Court's judgment itself shows that the rent note was prepared on a stamp paper, as is evident from following:
"izfroknh us fdjk;sukek fu"iknu ds le;] mUgsa i<+dj vkSj mUgsa le>us ds ckn mu ij gLrk{kj fd;s FksA ;g fdjk;sukek izfroknh ds dgus ij rS;kj fd;s x;s FksA LVkEi isij Hkh izfroknh Lor% yk;k FkkA ;g dguk xyr gS fd izfroknh ls lkns dkxt ij gLrk{kj ysdj mUgsa fdjk;sukek esa ifjofrZr dj fn;k x;k gSA"
"Defendant had at the time of executing the rent deed put his signature thereon after going through the same and understanding contents thereof. This rent deed was prepared at the instance of the defendant. The stamp paper had also been brought by the defendant himself. It is wrong to say that signature of the defendant was taken on the blank paper that has been converted into the rent deed."
(English translation by the Court)
9. It shows that about sufficiency of stamp on the document in question, there was no dispute at all.
10. In fact even this argument that document being unregistered was not admissible in evidence, it appears was not taken before the courts below and what was argued thereat is that tenancy was created privately between the parties without any letter of allotment issued by competent authority, i.e., Rent Control and Eviction Officer (hereinafter referred to as the "RCEO") under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972"), therefore, such rent note/document executed between the parties is void ab initio. It is this argument which has been negatived by Revisional Court by relying on Apex Court's decision in Nutan Kumar Vs. Additional District Judge, 2002(2) ARC 645.
11. Before this Court, for the first time the argument about registration has been addressed. From the judgments of courts below this fact is evident. However the close scrutiny shows untenability of this submission. The rent note was not executed on a plain paper but on stamp paper. Sufficiency thereof cannot be examined hereat in absence of any factual issue raised before the court below, therefore, it cannot help the petitioner in any manner. Even otherwise nothing is placed before the Court that requisite stamps are not affixed.
12. Now the only question up for consideration would be, whether the rent note in question is compulsorily registrable and if not, what effect, it would have.
13. The issue of registration basically has been argued and various authorities cited at the bar by Sri Chadha also relates to question of registration of a document.
14. To go deeper direction of legal semantic thrown by learned counsel. First of all this Court would examine nature of document, and then whether it was required to be compulsorily registrable under the statute or not.
15. The document shows that a tenancy, at monthly rent of Rs. 60/- in the shop(s) in question, was created for a period of 11 months. This is evident from the very opening paragraph of rent note. It is a month to month tenancy starting from 1st August, 1973 and ending on the last date of the month thereafter.
16. Section 49 read with Section 17 of Act, 1908 (as amended in U.P.) thus will apply in the present case as amended in U.P. I may reproduce Section 17(1) and Section 49 of Act, 1908 (as amended in U.P.) as under:
"17. Documents of which registration is compulsory.-(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866(XX of 1866), or the Indian Registration Act, 1871 (VII of 1871, or the Indian Registration Act, 1877(III of 1877), or this Act came or comes into force, namely:-
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property;
(c) non-testamentary instruments, which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; and
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property.
(f) any other instrument required by any law for the time being in force, to be registered."
(emphasis added) "Section 49. Effect of non-registration of documents required to be registered.- No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882) or of any other law for the time being in force, to be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power or create any right or relationship, or
(c) be received as evidence of any transaction affecting such property or conferring such power or creating such right or relationship, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of part-performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882), or as evidence of any collateral transaction not required to be effected by registered instrument."
17. Section 17(1)(d) clearly shows that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent is compulsorily registrable. A lease/rent note of immovable property for a period less than one year is not compulsorily registrable. A document which is not compulsorily registrable cannot be ignored merely on the ground that it is not a registered document. In Moti Lal Vs. Smt. Nirmal Kumari, AIR 1986 All 270 this Court said that a rent note which is not required to be registered cannot be ignored merely on the ground that it is not a registered document.
18. The question about necessity of registration of a document which is unilateral like a Kabuliyat has been considered in Smt. Hawivan Begum Vs. Special Judge, Writ Petition No. 6529 of 1990, decided on 30.07.2012 and in para 8 of the judgement the Court said:
"8. The first question would be, in my view, nature of aforesaid document. Admittedly, it cannot be treated to be either a rent note or an agreement between the parties for the reason that such a document has necessarily to be a bilateral document. Apparently, it is a unilateral document said to have been written by respondent-tenant in favour of landlord acknowledging possession of property in question as also his consent to pay rent of the said property @ Rs.150/- per month in future on monthly basis. Nothing has been shown to this Court wherefrom it can be assumed that the said document need be registered."
19. Following this Court's decision in Moti Lal Vs. Smt. Nirmal Kumari (supra) and referring Smt. Hawivan Begum (supra), in Thakur Prasad and others Vs. Gopal Gaushala and Gopal Hindi Sanskrit Pathshala, Rasin and others, Writ Petition No. 63750 of 2011, decided on 04.09.2012, this Court in para 5 of the judgment, said:
"5. In the circumstances, the Courts below have not erred in relying on the lease deed in question which was not required compulsorily registerable having been executed only for a period of 11 months, as is evident from Clause 12 thereof i.e. Annexure 1 to the writ petition."
20. Now coming to various authorities cited at the bar. I find that in view of specific provisions available in U.P., these authorities lend no help to him.
21. Learned counsel for the petitioner has tried to distinguish the judgment of this Court in Nawal Kishore Varshney (supra) on the basis of authorities of certain other High Courts as also the Apex Court's decision in Avinash Kumar Chauhan (supra). This Court finds that the kind of leases required to be registered have to be looked into from the point of view of various statutes namely, Act, 1908, Transfer of Property Act, 1882 (hereinafter referred to as the "Act, 1882") read with the provisions of Act, 1899. Act, 1899 nowhere talks of the kinds of document required to be registered but it is confined to the scope of chargeability of duty on various documents. That is not the core issue need be looked into hereat. The Trial Court's judgment clearly shows that rent note was on stamp paper and whether same was sufficient or not, was never the issue either thereat or before here. Act 1908 and Act 1882, in respect to requirement of registration of leases, contains some State amendments made by U.P. Legislature.
22. In Section 107 of Act, 1882 there is an amendment by U.P. Act No. 57 of 1976 which came into force on 01.01.1977 and, therefore, Section 107 as amended in U.P. reads as under;
"107. Lease how made.--A lease of immoveable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.
All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee;
Provided that the State Government may from time to time, by notification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year, of for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession." (emphasis added)
23. Consistent with the aforesaid amendment made in Act, 1882, U.P. Legislature has also made amendment in Act, 1908, i.e., in Section 49 and Section 17(1), already reproduced above. It is in the light of these amended provisions the judgements have been referred to by this Court in Shyam Lal Vs. Vth Additional District Judge, 1989(1) ARC 267 and Nawal Kishore Varshney (supra). Since both the judgments are in the context of provisions relating to "lease" as admissible in State of U.P., and about their requirement of registration, the decisions of other High Courts and Apex Court arising out of different provisions cannot be said to be a binding precedent for the reason of apparent distinction in the relevant provisions. The State amendment has made a "rent note" unilaterally executed, of the kind in question, not compulsorily registrable and that being so it cannot be excluded from admitting for an evidence. The various authorities cited at the bar by Sri Chadha, therefore, apparently have no application in the present case. In absence to show that the document in question was required to be compulsorily registrable, it cannot be argued that it could not have been admitted as evidence.
24. Avinash Kumar Chauhan (supra) is a matter having arisen from Raipur (State of Chattishgarh). The Court found that admittedly the document was not adequately stamped. This is evident from para 18 of the judgment. Once a document is not duly stamped, the Court is empowered to pass order in terms of Section 35 of Act, 1899 and such a document would be admissible in evidence. It held that even for collateral purposes it can be admitted in evidence. The Court relied on Privy Council's decision in Ram Rattan Vs. Parmanand, AIR 1946 PC 51. It also referred to the provisions of Registration Act with regard to requirement of registration but the provisions pari materia to amendments introduced in Act, 1908 by State Legislature of Uttar Pradesh were not under consideration therein, hence the decision would not help petitioner in the present case where there is nothing on record to show that document in question was not adequately and sufficiently stamped.
25. In Ganpat Mal Dhariwal (supra) the question was, whether the document Exhibit A1 could be admitted in evidence though neither it was properly stamped nor registered. This is evident from para 29 of the judgment. The Court held that an unregistered document cannot be admitted in evidence even for collateral purposes. The Court relied on its earlier decision in Smt. Jamna Bai Vs. Tulsi Ram, AIR 1997 Raj 85 and Harshvardhan Singh Vs. Ranveer Singh, AIR 1997 Raj 211. It also relied on its decision in Smt. Keshar Vs. State of Rajasthan, 1996(1) Raj LR 576 in taking the view that Section 91 of Evidence Act excludes oral evidence in proof of terms of such agreement to sale which requires registration whereas Section 49 of Registration Act prohibits its receivability in evidence. The issue that the document in question, whether was registrable or not, was not in consideration and so far as sufficiency of stamp duty is concerned, that is not an issue in the present case.
26. Similarly Smt. Bidya Devi (supra) is a Division Bench decision of Calcutta High Court. The Court considered the scope of review and a situation when a matter should be remanded which is not at all an issue helpful for petitioner in the present case.
27. Ram Abatar Mahato (supra) is again a Division Bench judgment of Calcutta High Court. The Court took plea that a document which is a unilateral document is not admissible evidence as it would satisfy the definition of 'lease' under Act, 1882. The Court found that 'kabuliyat' a unilateral document was for a period of five years and, therefore, it was compulsorily registered under Section 17(1)(d) of Act, 1908. This is evident from para 4 of the judgment which says "in the present case, however, the kabuliyat executed by the lessee was unregistered and there-fore it does not come within the mischief of the third paragraph of Section 107. Accordingly it cannot be said that this kabuliyat is not a lease on the ground that it was not executed by both the lessor and the lessee. If it is a lease, it is a lease for a term exceeding one year because according to the recital which I have already quoted the lessee was taking settlement for a period of five years. It was, therefore, compulsorily registrable under Section 17(1)(d) of the Indian Registration Act . . . . . ."
28. There is one more aspect of the matter. It is contended that there is stipulation in the rent note that rent shall be revisable and increased after every five years. Meaning thereby that earlier part of stipulation that tenancy is only for 11 months, i.e., for a period of one year is not correct but it is a document creating lease rights for a period of more than one year and, therefore, it is compulsorily registrable. This Court is of the view that a document when specifically contemplates that tenancy has been created only for a limited period of 11 months, the conditions in the lease deed itself would not govern the period for which the lease rights have been created. In taking this view I am fortified by a judgment of Calcutta High Court in Boyd Vs. Kreig, 1890 ILR (17) Cal 548. Therein a lease was executed for a period of one year with a stipulation that tenant shall have an option of renewal for a further period of one year after expiry of initial period of one year. The Court held that this stipulation in the lease deed would not itself constitute as if the lease was granted for a period exceeding one year and, therefore, when a lease deed not exceeding one year is not required to be registered compulsorily, such a deed as above was also not compulsorily registrable. Applying the same reason in the present case also, I find that period for which tenancy rights created, are, specifically mentioned in the document that it is a period of 11 months. Rest of stipulations by itself would not confer a right upon a tenant to treat this document as if tenancy rights have been conferred for a period of more than 11 months. Such a document by itself cannot be termed a "lease" executed for a period exceeding one year.
29. One more argument advanced is that the Trial Court initially decided the matter in favour of petitioner but in appeal the judgment was set aside and the matter remanded. On remand almost all the issues have been decided otherwise. It is contended that an order of remand does not mean setting aside of findings of court below on all the issues and the Trial Court in recording a different findings from what was said earlier, has acted wholly illegally. Reliance is placed on Apex Court's decision in Mohan Lal Vs. Anandibai (supra).
30. The judgment could have helped the petitioner only if Trial Court's judgment is challenged in higher forum on certain specific issues and thereupon the matter is decided by Higher Court leaving certain issues untouched. In the present case entire judgment of Trial Court was challenged in SCC Revision No. 298 of 1998 and vide judgment dated 13.04.2000 the Revisional Court directed the Trial Court to decide the matter again on each and every issue separately observing that Trial Court has decided the matter by mixing up the issues in a wholly erroneous manner. The Revisional Court, therefore, had set aside the Trial Court's judgment in its entirety directing it to decide each and every issue again and, therefore, the Apex Court's judgment in Mohan Lal Vs. Anandibai (supra) would have no application which specifically says that findings on which the High Court is not called upon, would not be deemed to be set aside. The distinction, as pointed out, is clearly borne out from the observations made in para 9 of the judgment in Mohan Lal Vs. Anandibai (supra), which reads as under:
"9. Lastly, counsel urged that now that the suit has been remanded to the trial Court for reconsidering the plea of res-judicata the appellant should have been given an opportunity to amend the written statement so as to include pleadings in respect of the fraudulent nature and antedating of the gift deed Ext. P-3. These questions having been decided by the High Court could not appropriately be made the subject-matter of a fresh trial. Further, as pointed out by the High Court, any suit on such pleas is already time-barred and it would be unfair to the plaintiff-respondents to allow these pleas to be raised by amendment of the written statement at this late stage. In the order, the High Court has stated that the judgments and decrees and findings of both the lower courts were being set aside and the case was being remanded to the trial Court for a fresh decision on merits with advertence to the remarks in the judgment of the High Court. It was argued by learned Counsel that, in making this order, the High Court has set aside all findings recorded on all issues by the trial Court and the first appellate Court. This is not a correct interpretation of the order. Obviously, in directing that findings of both courts are set aside, the High Court was referring to the. points which the High Court considered and on which the High Court differed from the lower courts. Findings on other issues, which the High Court was not called upon to consider, cannot be deemed to be set aside by this order. Similarly, in permitting amendments, the High Court has given liberty to the present appellant to amend his written statement by setting out all the requisite particulars and details of his plea of res judicata, and has added that the trial Court may also consider his prayer for allowing any other amendments. On the face of it, those other amendments, which could be allowed, must relate to this very plea of res judicata. It cannot be interpreted as giving liberty to the appellant to raise any new pleas altogether which were not raised at the initial stage. The other amendments have to be those which are consequential to the amendment in respect of the plea of res judicata."
31. The decision in M/s Bajaj Auto Limited (supra) also has no application having been decided on specific provisions of Delhi Rent Control Act.
32. So far as other aspects are concerned, learned counsel for the petitioner could not dispute that the judgments of courts below contain concurrent findings of facts demonstrating default in payment of rent on the part of petitioner incurring liability to vacate the accommodation in question.
33. Sri Chadha could not point out any manifest error, legal or otherwise, in the impugned judgments/orders warranting interference so far as various issues considered by both the courts below.
34. The scope of judicial review in such matters where the orders of courts below are assailed before this Court in a writ petition under Article 226/227 of the Constitution is very limited. This power involves a duty on High Court to keep 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 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, resulting in grave injustice.
35. In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 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."
36. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 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 AIR 1951 Cal. 193, 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".
37. In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38, Court held that there is very limited scope under Article 227 of the Constitution. Even mere 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 i.e. when the Court comes to conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. 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.
38. For interference under Article 227, the finding of facts recorded by the Authority must be shown perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47).
39. It is well settled that power of judicial superintendence under Article 227 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: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr.,(1999) 2 SCC 143).
40. Power under Article 227 is not in the nature of appellate power 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 & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521).
41. In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82, the Court held that there is no justification for High Court to substitute its view for opinion of Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.
42. In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, AIR 2000 SC 931, the Court held that jurisdiction of High Court under Article 227 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 same are totally perverse.
43. In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, the Court observed that it is impermissible for a 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 awards passed by Tribunal. The findings of fact recorded by a fact finding authority, duly constituted for the purpose, ordinarily, should be considered to have become final. Same cannot be disturbed for 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 must not interfere.
44. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472, the Court said that High Court, in exercise of extraordinary powers under Article 227 of the Constitution, can neither re-appreciate evidence nor can substitute its subjective opinion to the findings of Authorities below.
45. Similar view has been reiterated in State of Maharashtra Vs. Milind & ors., (2001) 1 SCC 4; Extrella Rubber Vs. Dass Estate (P) Ltd., (2001) 8 SCC 97; and Omeph Mathai & ors. Vs. M. Abdul Khader, (2002) 1 SCC 319.
46. In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675, 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, 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. 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.
47. In Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, 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."
48. In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329, the Court said that power of interference under Article 227 is to be kept to the minimum to ensure that wheel of justice does not come to a halt and 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 AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650.
49. In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432, 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.
50. In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772, 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.
51. In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244, Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227.
52. In view thereof, I find no justification warranting interference with the orders/judgments impugned in these writ petitions.
53. Dismissed.
Order Date :- 8.11.2012 AK