Uttarakhand High Court
Manpreet Singh vs Ms Rehat Star Developers Private ... on 16 March, 2017
Author: Rajiv Sharma
Bench: Rajiv Sharma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 508 of 2015
Reserved on: March 01, 2017
Decided on: March 16, 2017
___________________________________________________
Shri Manpreet Singh ..... Petitioner
Versus
M/s Rehet Star Developers Pvt. Ltd. & others
...... Respondents
___________________________________________________
Mr. Siddharth Sah, Advocate for the petitioner.
Mr. Ramji Srivastava, Advocate for respondents.
Hon'ble Rajiv Sharma,J.
This petition is instituted against the judgment and order dated 09.10.2014, rendered by the Prescribed Authority/Civil Judge (Sr. Div.), Dehradun in P.A. Case No. 1 of 2013 and also judgment and order dated 11.02.2015, rendered by 2nd Additional District Judge, Dehradun in Rent Control Appeal No. 126 of 2014.
2. "Key facts", necessary for the adjudication of this petition are that the landlord/respondent no.1 has filed a release application against the petitioner and others on 01.01.2013, under Section 21 (1) (b) of U.P. Act No. 13 of 1972, seeking permission to reconstruct the property mentioned in the Schedule. The grounds taken for filing the release application was that the property in question has become dilapidated and requires reconstruction.
3. The application was contested by the tenant/petitioner. Learned Rent Comptroller allowed the application on 09.10.2014. The tenant filed an appeal bearing No. 126 of 2014, before the learned 2nd Additional District Judge, Dehradun. He dismissed the same on 11.02.2015. Hence, this petition.
24. It has come on record that the suit premises were extensively damaged due to fire, which broke out on 22.04.2012. The building was very old.
5. According to the landlord, the building was required to be demolished and thereafter reconstructed. According to the landlord, the building could not be constructed in a piecemeal.
6. The stand of the tenant throughout was that the building was not completely gutted and the same could be reconstructed in piecemeal.
7. The landlord has relied up the affidavit 20A and 75A, the Expert report reads as under:-
" The building is three storied & built about 80 or above years back, with karris & wooden supports to roof of bricks & lime coba. The walls are build with stone builders & bricks in lime mortar & lime plaster. The floors are also with tiles over lime coba. The joinery with wooden chowkhats & shutters & guard bars in windows. The roof & chajja projections are later supported with steel pipes & girders. The Karris & wooden supports are burnt & fallen of major part of bldg. structure causing danger to roof and whole structure. A places girders where inserted as support during years back looking at the condition of building. Which are also rusted/burnt to the extent that there Middle Flange, the main stiffener holding the complete load, have burnt out completely. Since carries have burnt out & fallen, the roof is just hanging, so much so that it has become dangerous and impossible to walk even. The roof slab have also sunken at many places.
The building is required to be demolished completely and rebuild as per norms of development authorities with RCC structure & adopting all precautionary measures immediately. Since the building is very old and is in dilapidated condition and as appears may not stand even one storm, earthquake or rainy season. If is not allowed to pull down and left to come down of its own like other HARITAGE BUILDINGS then it may cause great damages 3 even to the neighbouring structures and human life as well and may create much havoc then can be visualized shall also be carried out under supervision of very experienced personal to avoid any danger to workers."
8. The tenant has also placed on record, the report of the Expert prepared by Mr. Navneet Jain, it reads as under:-
" As there seems to be widen gaps inside the joints of structure so the complete building seems to be intact to earth showing no signs of displacement/damage to structure but if the property is not repaired/maintained without further delay then displacement/settlement is foundation may take place with the passage of time. There seems to be vertical cracks on the exterior main load bearing walls showing signs of collapse of wall which may cause failure/damage to the structure as shown in photo no.3. The partition/curtain/intermediary walls of the structure are also safe and has no signs of damage to the main building"
9. It is evident from the report 22A that the building is required to be demolished and rebuild as per the norms of the Development Authorities with RCC structure ny adopting all precautionary measures. If the building is not permitted to be demolished, then it would fall of its own and it may also cause great damages even to the neighboring structures and loss to the human life and property.
10. The reports 35A and 38A depicts the existing structure and its age. According to this report, the building is three storied. It was constructed 80 years back with wooden plank and wooden support. Wooden plank and wooden support were burnt. The additional support is also rusted and burnt. Roof is just hanging. It has become even dangerous and nearby roof is also sinking. The tenant has also admitted in his reply that the building was old and was burnt on 22.04.2012. The ceiling caught fire. Wooden planks were burnt and collapsed. The floor and rooms were also affected. Necessary precautions were taken.
411. Even in the report relied upon by the tenant, it has come that there seems to be vertical cracks on the exterior main load bearing walls showing signs of collapse of wall which may cause damage to the structure.
12. Sum and substance of the report relied upon by the tenant is that the building could be reconstructed without demolishing it.
13. The landlord has duly proved that the building is old and needs reconstruction after demolishing the old structure. The landlord has also proved that he has necessary resources.
14. Learned counsel appearing for the tenant has argued that the balance sheet is not produced by the landlord, however no steps have been taken by the tenant to get the same produced in the Court.
15. It has come in report of Mr. R.P. Sangal that the building is required to be demolished and reconstructed and it cannot be repaired. It has also come in report 66A that if the measures were not taken immediately there would be collateral damage. The Engineer submitted the report on behalf of the landlord has 50 years experience. The total expenditure to be incurred on reconstruction would be Rs.4913284.72/-. The maps were also placed on record.
16. It has also come on record that State Bank of Patiala was ready and willing to finance for the reconstruction of building.
17. In AIR 1978 Supreme Court 45, in the case of M/s India Pipe Fitting Co. Vs. Fakruddin M.A. Baker and another, their Lordships of the Hon'ble Supreme Court have held that power of superintendence cannot be invoked 5 to correct an error of fact. Their Lordships have held as under:-
"5.The limitation of the High Court while exercising power under Article 227 of the Constitution is well-settled. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset conclusions of facts however erroneous those may be. It is well-settled and perhaps too late in the day to refer to the decision of the Constitution Bench of this Court in Waryam Singh and Anr. v. Amarnath and Anr.: [1954]1SCR 565 where the principles have been clearly laid down as follows:
"This power of superintendence conferred by Article 227 is, as pointed out by Harries C.J. in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee AIR1951Cal193 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."
The same view was reiterated by another Constitution Bench of this Court in Nagendra Nath Bora and Anr. v. The Commissioner of Hills Division and Appeals, Assam and Ors.[1958]1SCR1240 Even recently in Bathut mal Raichand Oswal v. Laxmibai R. Tarta and Anr. : AIR1975SC1297 , dealing with a litigation between a landlord and tenant under Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, this Court relying on its earlier decisions observed as follows:
If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the Legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts."
18. In (2003) 6 SCC 675 in the case of Surya Dev Rai vs. Ram Chander Rai and others, their Lordships of the Hon'ble Supreme Court have held that jurisdiction under Article 227 is not available for correcting mere errors of fact or law. It is available only when:- (i) error is manifest and apparent on face of record. (ii) grave injustice or failure 6 of injustice has been occasioned. Their Lordships have held as under:-
"12. In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a Court which has jurisdiction over a subject-matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an Appellate Court and step into re-appreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court.
26. In order to safeguard against a mere appellate or revisional jurisdiction being exercised in the garb of exercise of supervisory jurisdiction under Article 227 of the Constitution, the courts have devised self-imposed rules of discipline on their power. Supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. The High Court may have regard to legislative policy formulated on experience and expressed by enactments where the Legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to be kept away from exercise of appellate and revisional jurisdiction in the hope of accelerating the conclusion of the proceedings and avoiding delay and procrastination which is occasioned by subjecting every order at every stage of proceedings to judicial review by way of appeal or revision. So long as an error is capable of being corrected by a superior court in exercise of appellate or revisional jurisdiction though available to be exercised only at the conclusion of the proceedings, it would be sound exercise of discretion on the part of the High Court to refuse to exercise power of superintendence during the pendency of the proceedings. However, there may be cases where but for invoking the supervisory jurisdiction, the jurisdictional error committed by the inferior court or tribunal would be incapable of being remedied once the proceedings have concluded.
38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:-
(1) Amendment by Act No. 46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.7
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules or procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any 8 suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annual or set aside the at, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
19. In (2004) 3 SCC 682 in the case of Ranjeet Singh Vs. Ravi Prakash, their Lordships of the Hon'ble Supreme Court have held that the High Court cannot act like an appellate court and reappreciate or re-evaluate the evidence while exercising certiorari or supervisory jurisdiction. Their Lordships have held as under:-
"4. Feeling aggrieved by the judgment of the Appellate Court, the respondent preferred a writ petition in the/High Court of Judicature at Allahabad under Article 226 and alternatively under Article 227 of the Constitution. It was heard by a 9 learned Single Judge of the High Court. The High Court has set aside the judgment of the Appellate Court and restored that of the Trial Court. A perusal of the judgment of the High Court shows that the High Court has clearly exceeded its jurisdiction in setting aside the judgment of the Appellate Court. Though not specifically stated, the phraseology employed by the High Court in its judgment, goes to show that the High Court has exercised its certiorari jurisdiction for correcting the judgment of the Appellate Court. In Surya Dev Rai v. Ram Chander Rai and Ors. - : AIR 2003 SC 3044 , this Court has ruled that to be amenable to correction in certiorari jurisdiction, the error committed by the Court or Authority on whose judgment the High Court was exercising jurisdiction, should be an error which is self-evident. An error which needs to be established by lengthy and complicated arguments or by indulging into a long- drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai (Supra) that the jurisdiction was not available to be exercised for indulging into re- appreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal. The High Court has itself recorded in its judgment that - "considering the evidence on the record carefully" it was inclined not to sustain the judgment of the Appellate Court. On its own showing, the High Court has acted like an Appellate Court which was not permissible for it to do under Article 226 or Article 227 of the Constitution."
20. In 1995 (1) Allahabad Rent Case, in the case of Ramesh Chandra and others Vs. IIIrd Additional District Judge, Aligarh and others, learned Single Judge has held that Dilapidated condition does not mean that building should be in imminent danger of falling down. Learned Single judge has held as under:-
"7. On record, however, there was a Commissioner's report, copy of which has been filed as Annexure 'F' which clearly goes to show that the shop on the ground floor had also badly shattered, its walls had cracked and plasters had given way. The learned Appellate Court rejected the Commissioner's report, despite itself holding that the building is out of repairs, 10 is made of Kakaiya bricks and its roof is supported by wooden planks, some of which are about half a century old and some which have also bent due to weight of the roof. In view of the above factual state of the building, this view of the learned Appellate Court cannot be sustained. The roof of the upper floor having already fallen, the walls having cracked at places, the plaster having given way and some of the supporting wooden planks having bent, the only conclusion possible is that the building have become dilapidated and does require demolition and re-construction. The contention that the building not having fallen during the past over a decade, there will arise a presumption of it not being dilapidated, is not correct because as already said above, the law does not required that a building should be in the imminent danger of falling, to be treated as a dilapidated one requiring re- construction. This view is fortified also by the principle laid down in this regard in Smt. Shanti Devi v. Ist Additional District Judge, Kanpur and others, reported in 1983 (1) ARC 20. In fact waiting for a building to get on the verge of collapse and then to allow its demolition and re-construction, will be putting human life itself in jeopardy and would be a negation of the basic principles of safety and security, underlying the provisions of Section 21 (1) (b) of the Act."
21. Accordingly, there is no merit in the petition and the same is hereby dismissed.
(Rajiv Sharma, J.) Jitendra