Allahabad High Court
Annad Kumar vs Dinesh Kumar on 11 August, 2017
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR (Judgment reserved on 26.07.2017) (Judgment delivered on 11.08.2017) Court No. - 02 Case :- MATTERS UNDER ARTICLE 227 No. - 3853 of 2017 Petitioner :- Annad Kumar Respondent :- Dinesh Kumar Counsel for Petitioner :- Gaurav Sharma Counsel for Respondent :- Ashish Agrawal Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Prabhakar Awasthi holding brief of Sri Gaurav Sharma, learned counsel for the petitioner-defendant/tenant and Sri Ashish Agrawal, learned counsel for the respondent-plaintiff/ landlord.
2. This petition has been filed challenging the judgment dated 12.02.2014 in O.S. No.21 of 1998 (Dinesh Kumar Vs. Anand Kumar) passed by the Judge Small Causes Court/ Civil Judge (S.D.), Kasganj, (Kanshi Ram Nagar) and the judgment dated 09.03.2017 in S.C.C. Revision No.4 of 2014 (Anand Kumar vs. Dinesh Kumar) passed by the Additional District and Session Judge/ Fast Track, Court No.2, Kasganj.
FACTS:-
3. Undisputedly, the petitioner-defendant is a tenant of a shop situate in Mohalla Nathu Ram Bilram Gate, Kasganj of which the respondent-plaintiff is the landlord. Allegedly on account of default in part in payment of rent, a notice dated 24.06.1998 was issued by the respondent-plaintiff/ landlord to the petitioner-defendant/ tenant terminating tenancy and demanding arrears of rent and damages. According to the respondent-plaintiff/ landlord, the arrears of rent were not paid and the disputed premises was not vacated by the petitioner-defendant as demanded by notice date 24.06.1998. Consequently, the respondent-plaintiff filed O.S. No.21 of 1998, which was decreed by the impugned judgment and decree dated 12.02.2014. The Judge Small Causes Court framed seven issues. On issue Nos.1 and 5 relating to tenancy, the Trial Court held that the petitioner-defendant was the tenant in the disputed shop on a monthly rent of Rs.475/-. The Trial Court further held that the petitioner-defendant had defaulted in payment of rent. While deciding issue No.4 relating to bar of the provisions of U.P. Act No.13 of 1972, the Trial Court held that the provisions of U.P. Act No.13 of 1972 were not applicable for reason that the respondent-plaintiff has proved on the basis of Paper No.59-C/2 and the oral evidence that the shops have been constructed in the year 1992 since its assessment was made for the first time w.e.f. 01.04.1992. While deciding issue Nos.6 and 7 with respect to validity of notice and its service, the Trial Court came to the conclusion that the notice dated 24.06.1998 was validly served and thereafter the suit was filed after expiry of 30 days. The findings recorded by the Trial Court have been affirmed by the Revisional Court by judgment dated 09.03.2017 in S.C.C. Revision No.4 of 2014. Aggrieved with the impugned judgments dated 12.02.2014 and 09.03.2017, the petitioner-defendant/ tenant has filed the present petition under Article 227 of the Constitution of India.
SUBMISSIONS:-
4. Sri Prabhakar Awasthi submits that Paper No.59-C/2 is the only paper on the basis of which the respondent-plaintiff has tried to prove that the disputed shop was constructed after the cut off date provided in U.P. Act No.13 of 1972. He submits that this paper being merely a certificate issued by the Executive Officer, Nagarpalika Parishad, Kasganj certifying that for assessment the first valuation was done in the year 1988 which was made effective from 01.04.1992, is a document not admissible in evidence in view of provisions of Section 330 of U.P. Municipalities Act, 1916. He submits that the respondent-plaintiff has asserted in para-3 of the plaint that disputed shop is newly constructed and as such U.P. Act No.13 of 1972 is not applicable. Therefore, the onus was on him to prove this fact by leading admissible evidences. He submits that there was total failure on the part of the respondent-plaintiff to prove this allegation. The Court below has proceeded merely on the basis of an in-admissible evidence and surmises and presumption to hold that the disputed shop was constructed in the year 1988, i.e. after the cut off date provided in U.P. Act No.13 of 1972. To support his submissions, he also referred to provisions of Section 114 of the Evidence Act and relied upon a Full Bench judgment in the case of Durga Das Bhattacharya vs. Municipal Board, AIR 1962 (All) 277 (Para-42) to submit that the Paper No.59-C/2 not being the extract of the relevant Municipal Register, was not admissible in evidence. The Trial Court has shifted the burden upon the petitioner-defendant, which is impermissible in law. He further submits that since the entire arrears of rent was deposited by the petitioner-defendant/ tenant on the first date of hearing and as such the benefit of provisions of Section 20(4) of the U.P. Act No.13 of 1972 was available to him but the Courts below have committed a manifest error of law to ignore this important fact/ issue involved in the matter.
5. Sri Ashish Agarwal, learned counsel for the respondent-plaintiff submits that the cut off date for applicability of the provisions of U.P. Act No.13 of 1972 is provided in Section 2(2) read with explanation. Explanation (i) appended to Section 2(2) of the Act provides that construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction and in the case of a building subject to assessment the date on which the first assessment thereof comes into effect. He submits that a clear averment was made in paragraph-3 of the plaint that the shop is newly constructed and, therefore, U.P. Act No.13 of 1972 is not applicable. The averments of the plaint are supported by oral and documentary evidences, by filing Paper No.59-C/2, his own evidence of the plaintiff and the cross-examination of the petitioner-defendant. He submits that the petitioner-defendant could not lead any evidence to dispute the correctness of the evidence led by the respondent-plaintiff. He submits that even the entire rent in arrears was not deposited by the petitioner-defendant on the first date of hearing inasmuch as the rent was Rs.475/- per month while the petitioner-defendant deposited rent merely @ Rs.200/- per month and thus, even otherwise the default in payment of rent continued even after the first date of hearing.
DISCUSSION AND FINDINGS:-
6. I have carefully considered the submissions of learned counsel for the parties and perused the record.
7. The entire arguments of learned counsel for the parties is confined only to the following question:-
Whether under the facts and circumstances of the case, the respondent plaintiff could prove that the disputed shops were constructed after the cut off date 26.04.1985 as provided in Section 2(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.13 of 1972) and thus, the said U.P. Act No.13 of 1972 was not applicable with respect to the disputed property?
8. Undisputedly, respondent plaintiff is the owner and landlord of shop No.5 Lakshmi Takis Dilram Gate, Kasganj, District Etah of which the petitioner defendant was a tenant. Earlier, on account of default in payment of rent; respondent plaintiff issued notice dated 03/06.03.1995 to the petitioner defendant specifically stating therein that the shops are newly constructed and on which the provisions of U.P. Act No.13 of 1972 are not applicable. This notice was replied by the petitioner defendant by reply dated 05.04.1995 in which the fact of the shops being newly constructed and non-applicability of the provisions of U.P. Act No.13 of 1972 was not denied or disputed. In his reply, the petitioner-defendant merely disputed rate of rent stating that it was Rs.200/- per month and not Rs.475/- per month and rent of merely March, 1995 is in arrears. Subsequently, a notice dated 26.06.1998 was issued by the respondent plaintiff to the petitioner defendant specifically stating therein that the disputed shop was recently constructed on which the provisions of U.P. Act No.13 of 1972 were not applicable and the rent is in arrears since May, 1995 besides the water tax and house tax which have not been paid despite demand. By this notice, the arrears were demanded and the tenancy was terminated. It appears that since according to the respondent plaintiff, neither the arrears were paid nor the shop was vacated and as such he filed S.C.C. Case No.21 of 1998 in the Court of Judge/ Small Causes Court (Civil Judge, Senior Division), Etah.
9. In paragraphs-2, 3 and 7 of the plaint, the respondent plaintiff clearly stated that disputed shop is newly constructed and, therefore, the provisions of U.P. Act No.13 of 1972 are not applicable. The petitioner defendant is tenant at the rate of Rs.475/- per month besides water tax and house tax, which have not been paid and the arrears being claimed for three years from 01.11.1995 to 31.10.1998, comes to Rs.17,100/-. Respondent-plaintiff initiated proceedings for recovery of arrears of rent and damages and eviction of the petitioner-defendant from the disputed shop. The petitioner-defendant filed a written statement dated 18.03.2000 in which he stated that the construction of the disputed shop is old and provisions of U.P. Act No.13 of 1972 are applicable. It is stated that rate of rent was Rs.200/- per month, and, with house tax and water tax it comes to Rs.220/- per month. It was alleged in paragraphs-19, 20 and 21 that the respondent-plaintiff purchased goods from time to time from his shop which was adjusted against the rent and the balance was paid and the entire rent till February, 1997 has been received by the respondent plaintiff. For deposit of rent from 01.03.1997, the petitioner defendant has submitted a tender in the court for deposit of Rs.10422/- was made and thus he is entitled for the benefit of Section 20(4) of the U.P. Act No.13 of 1972. A replica was filed by the respondent plaintiff. In para-2 of the replica, the plaintiff respondent made a clear statement of fact that for the purposes of assessment inspection of the disputed shop was made by the Nagarpalika Parishad in the year 1988 and the first assessment was made effective from 01.04.1992 and, therefore, in view of provisions of Section 2(2) of the U.P. Act No.13 of 1972, the Act is not applicable. He also denied the allegation of purchase of goods from the shop of the petitioner defendant and the alleged adjustment towards rent. He further asserted that the shop was let out on monthly rent of Rs.475/- besides house tax and water tax which have not been paid by the defendant as aforesaid and total amount of Rs.19950/- including water tax and house tax is payable by the petitioner defendant.
10. The respondent plaintiff produced himself in evidence as PW-1 and also produced Sri Ashok Kumar and Shailendra Tiwari as P.W.-2 and P.W.-3. He filed registered postal receipts, carbon copy of notice dated 26.06.1998, rent receipts, certificate of Executive Officer, Nagarpalika Parishad being paper No.59-C-2, Photostat copy of letter being paper No.59-C/3, Photostat copy of notice dated 03/06.03.1995 and paper No.59-C/4. The petitioner defendant produced himself as witness in oral evidence as D.W.-1 and also produced one Surendra Kumar as D.W.-2. He filed tender challan form in evidence. No other documentary evidence was filed by him.
11. The P.W.-1 gave his evidence and was also cross-examined. In his evidence, he proved the rent receipts and the certificate filed in evidence which was obtained from Executive Officer, Nagarpalika Parishad. During the course of cross-examination, neither any question was put to him by the petitioner defendant with respect to the certificate of Executive Officer, Nagarpalika Parishad for assessment of house tax and water tax effective from the year 1992 nor any suggestion was made that the said paper is not genuine or incorrect or fraudulent. The P.W.-1 also completely denied the allegation of the petitioner defendant regarding payment of rent by way of adjustment of goods allegedly purchased by the respondent plaintiff from his shop.
12. The P.W.-2 Ashok Kumar, in his statement, supported the case of the respondent plaintiff regarding monthly rate of rent of Rs.475/- and denied any kind of alleged adjustment of rent as made by the petitioner defendant. The P.W.-2 was also cross-examined by the petitioner defendant. The P.W.-3 was also cross-examined who clearly stated that the disputed shops were constructed after construction of Lakshmi Takiz. He also proved the rental receipts.
13. The petitioner-defendant in his evidence as D.W.-1 reiterated his stand regarding payment of rent by way of adjustment and deposit of the balance amount of the rent of Rs.10422/- in court. He merely stated that the provisions of U.P. Act No.13 of 1972 are applicable with respect to the disputed shop. In paragraph-18 of his affidavit dated 26.04.2010, he stated that the certificate of the Executive Officer dated 16.02.2005 is wrong and it does not bear the signature of the Executive Officer. However, in his cross-examination, he shown total ignorance that in which year or month, the disputed shop was constructed and that for the first time, assessment was made in the year 1992. He admitted the respondent plaintiff to be the owner and landlord of the disputed shop. He stated that he lastly made payment to the respondent plaintiff in February, 1995. He stated that he took shop on rent in the year 1999. He reiterated his stand that the respondent-plaintiff was purchasing goods on credit from his shop which was adjusted in rent amount. However, in support, he could not produce any evidence. In his cross-examination in August, 2011 (relevant portion at page-85 of the present petition) he stated that "dukan ko bane huye lagbhag bees varsh ho gaye. Dukan kis san me banwai gai, mujhe yad nahi hai."
14. Considering the facts and evidences on the record, the learned Judge, Small Cause Court passed the impugned judgment dated 12.02.2014 and decreed the suit. He recorded findings of fact that the disputed shop was let out on rent to the petitioner-defendant on a monthly rent of Rs.475/- who defaulted in payment of rent after May, 1995. On the issue No.4, the stand taken by the petitioner defendant regarding adjustment of rent on account of credit purchase by the respondent plaintiff was disbelieved in the absence of any evidence. No books of accounts or other documentary evidence could be produced by the petitioner defendant to prove that any goods were purchased on credit by the respondent plaintiff which was adjusted towards rent. On issue No.4, the Trial Court recorded a finding of fact that the assessment was made by the Nagarpalika Parishad for the first time applicable from April, 1992 which could not be disproved by any documentary evidence by the petitioner defendant. It may also be noted that the P.W.-1 in his cross-examination, has stated that the shop was constructed in the year 1987. He also relied upon the cross-examination of D.W.-1, in which D.W.-1 stated that he is not aware that the assessment of the disputed shop was made for the first time in the year 1992. It was also found that the petitioner defendant could not prove that there were any other tenant in the disputed shop prior to his tenancy, Thus, the Trial Court recorded a finding of fact based on consideration of evidences that for the first time survey was made in the year 1988 and for the first time, the assessment was made effective from 01.04.1992. The notice was also found to be valid.
15. In revision being S.C.C.R. No.4 of 2014, the Revisional Court considered in detail the facts of the case and evidences on record and affirmed the finding recorded by the Trial court. Both the courts below have found that the provisions of U.P. Act No.13 of 1972 are not applicable with respect to the disputed shop and the petitioner defendant defaulted in payment of rent. The story of payment of rent by way of adjustment against alleged credit purchase of goods by the respondent plaintiff was disbelieved since it could not be proved by the petitioner defendant. By a detailed judgment, dated 09.03.2017, the Revision of the petitioner defendant was dismissed by the court of Additional District Sessions Judge/ Fast Track Court No.2, Kasganj.
16. The findings recorded by both the Courts below with respect to non-applicability of the provisions of U.P. Act No.13 of 1972 on the ground of construction of the disputed shop being subsequent to the cut off date as provided in Section 2(2) of the Act and the default in payment of rent by the petitioner defendant, are concurrent findings of fact based on consideration of relevant evidences on record and, therefore, it cannot be interfered with under Article 227 of the Constitution of India in view of the law laid down by this Court in the case of Ram Prasad Vs. Sudhir Chandra and two others in Matters Under Article-227 No.586 of 2016, decided on 03.02.2016.
17. In the case of Ram Prasad (supra), this Court held that a finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration or the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction shall be entitled to set aside the impugned order as being not legal or proper. However, to satisfy itself with regard to the correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its powers as an appellate power to re-appreciate or reassess the evidence for coming to a different finding on facts. This Court further observed that in exercise of supervisory jurisdiction under Article 227 of the Constitution, the Court would not sit in appeal on the concurrent finding of facts recorded by the Court below in determining the date of construction of the building in view of Section 2(2) of the Act No.13 of 1972.
Scope of Interference under Article 227 of the Constitution of India:-
18. Article 227 of the Constitution confers a supervisory jurisdiction on the High Courts over sub-ordinate courts. The scope of judicial review is limited and narrow. It is not to correct the errors in the orders of the courts below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority. Under this constitutional provision, a duty has been cast upon 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 they do it in a legal manner. 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. In Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215, (at Page-571), Hon'ble Supreme Court held as under:-
"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".
19. In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38, Hon'ble Supreme Court considered the scope of Article 227 and held that the scope is very limited. 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.
20. The High Court can interfere under Article 227 if the the finding of facts recorded by the Authority is found to be perverse or patently erroneous and de hors the factual and legal position on record, vide: 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).
21.Power under Article 227 of the Constitution 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, vide: 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).
22. This power is not in the nature of power of appellate power enabling the Court for re-appreciation of evidence. The Court cannot alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence vide: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521.
23. While exercising powers under Article 227, the High Court has no jurisdiction to substitute its view for the opinion of the Authorities/ Courts below vide: Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82. In the case of Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, AIR 2000 SC 931, 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 the findings or the findings are totally perverse.
24. In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, Hon'ble Supreme Court held that it is impermissible for the Writ Court to re-appreciate evidence liberally and to draw conclusions on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings recorded by the Tribunal should ordinarily be considered to have become final and it 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. As long as they are based upon some material which are relevant for the purpose, no interference is called for. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472, the Hon'ble Supreme 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 also been expressed by Hon'ble Supreme Court in the case of State of Maharashtra Vs. Milind & others., (2001) 1 SCC 4; Extrella Rubber Vs. Dass Estate (P) Ltd., (2001) 8 SCC 97; and Omeph Mathai & others. Vs. M. Abdul Khader, (2002) 1 SCC 319.
25. 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 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 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.
26. 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."
27. 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 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 AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650.
28. 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. 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. 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.
29. In the case of Gulshera Khanam vs. Oftab Ahmad, (2016) 9 SCC 414, Hon'ble Supreme Court considered the rent control matter and held that there was no justification on the part of the High Court to have probed into any factual issues again in depth by undertaking appreciation of evidence like a first appellate court and reversed the findings.
30. The judgment in the case of Durga Das Bhattacharya (supra) of the Full Bench of this Court is quite distinguishable on the facts of the present case, inasmuch as the controversy involved in the said case was as to whether the Municipal Board was competent to impose a charge of Rs.30/- for issue of every proprietor's license and of Rs.5/- for issue of every driver's license and whether impugned bye-laws are valid. No such controversy is involved in the present set of facts. Another judgment of this court in Sohan Veer Singh vs. Smt. Rehti Devi and others, 2009 (3) ARC 174, relied by learned counsel for the petitioner defendant does not help his case. In para-19 of the said judgment, the Court noted that on facts and the admission made by the defendant which finds corroboration from the Municipal Records.
31. The view taken by the courts below that the disputed shop is a new construction, is perfectly justified. In the present set of facts, oral and documentary evidences were led which proved that the shop was constructed in the year 1987/1988 which is subsequent to the cut off date provided in Section 2(2) of the U.P. Act No.13 of 1972.
32. Judgment in the case of Bharat Heavy Electricals Ltd. Vs. State of U.P. and others, 2003 All. CJ. 2204, (para-13), relied by the petitioner defendant does not support his case, inasmuch as the said case related to dispute between employer and employee. The said case involved a labour dispute and on facts of the case, Hon'ble Supreme Court held that it is not possible for us to hold that such concurrent findings recorded by the Labour Court and the High Court that the workmen were to be treated as the employee of the appellant, are either perverse or based on no evidence or untenable at all.
Conclusion:
33. In the present set of facts, concurrent findings of fact has been recorded by both the courts below based on consideration of oral and documentary evidences that the disputed shop was constructed in the year 1987/1988 and first assessment was made effective from the year 1992 and that the petitioner defendant defaulted in payment of rent. These findings are findings of fact based on consideration of material on record. The findings so recorded in the impugned judgment, do not suffer from any manifest error to warrant interference under Article 227 of the Constitution of India inasmuch as the petitioner defendant has completely failed to demonstrate that the findings are so perverse or so unreasonable that no Court could ever have reached them. The power under Article 227 is not in the nature of appellate power enabling High Court to re-appreciate evidence and to alter the conclusion reached by the court below merely on the ground of insufficiency of evidence. No evidence could be pointed by the petitioner defendant to demonstrate that the findings recorded by the Trial Court are perverse. Therefore, the supervisory jurisdiction under Article 227 cannot be invoked to interfere with the findings of fact recorded by the courts below. At any rate, as long as the findings are based upon some material which are relevant for the purpose, no interference can be made. Reference to various judgments of Hon'ble Supreme Court as made above would clearly indicate that no interference can be made on the facts of the present case.
34. In view of the aforesaid, I find no merit in this petition. Consequently, petition fails and is hereby dismissed.
Order Date :- 11.08.2017 NLY