Rajasthan High Court - Jodhpur
Learned Single Bench Erred While ... vs Hardeep Singh And In Case Of Achutananda ... on 19 August, 2015
Author: Govind Mathur
Bench: Govind Mathur
-1-
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
J U D G M E N T
(1)D.B. Civil Special Appeal (Writ) No.168/2013
(Ram Prakash v. Shashi Bala Bajitpuria & Ors.)
(2)D.B. Civil Misc. Application No.135/2015
(Ram Prakash v. Shashi Bala Bajitpuria & Ors.)
Date of Judgment :: 19th August, 2015
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
HON'BLE MISS JUSTICE JAISHREE THAKUR
Mr. R.R.Nagori, Senior Advocate, assisted by
Mr. Alkesh Agarwal, for the appellant.
Mr. Hemant Jain, for the respondents.
(In DB Civil Special Appeal (Writ) No.168/2013)
Mr. Hemant Jain, for the applicant.
Mr. R.R.Nagori, Senior Advocate, assisted by
Mr. Alkesh Agarwal, for the respondents.
(In DB Civil Misc. Application No.135/2015)
....
BY THE COURT : (PER HON'BLE MATHUR,J.)
REPORTABLE This appeal is before us to examine correctness of the judgment dated 21.2.2013 passed by learned Single Bench in SB Civil Writ Petition No.1040/2007.
Succinctly, facts of the case are that while adjudicating an application preferred under Sections 6 and 9 of the Rajasthan Rent Control Act, 2001 (hereinafter referred to as 'the Act of 2001'), the Rent Tribunal on basis of the pleadings framed following issues:-
1.Whether a western opening shop measuring 8 x 17 feet at shopping complex No.6, Swami Dayanand Marg, Sriganganagar is rented to non-applicant Ram Prakash son of Aaidan -2- since 11.5.1989 with a rent of Rs.1850/- in which he is working in the name of 'Vishal Jewelers'?
2.Whether the applicant desires to start the business of boutique and beauty parlour at the rented premises and she is having reasonable and bonafide necessity of the rented premises?
3.Whether partial eviction from the rented premises measuring 8 x 17 feet is not possible?
4.Whether revised rent of the rented premises can be determined as Rs.4208/- as per Section 6 of the Rajasthan Rent Control Act?
5.Whether the rented premises was taken on rent for the affairs of the firm 'Vishal Jewelers' and 'Vishal Jewelers' being not impleaded as party, the application deserves to be rejected?
6.Whether during the course of tenancy the rent was enhanced time to time and, therefore, as per Section 6 the applicant is not entitled for revision of rent?
7.Whether the applicant started the business earlier in the name of Shashi Beauty Parlour and closed that being failed to run?
8.Whether the family of the applicant has started business in the name of Bajitpuria Jewelers near the rented premises and, therefore, applicant applicant is not in need of the shop rented?
9.Whether the applicant is having two constructed shops at 23, Shankar Colony, Sriganganagar and, therefore, she is not in need of rented premises?
10.Whether as a consequent to eviction of the rented premises the non-applicant shall suffer more comparative hardship and inconvenience than to the applicant as his business shall be finished and he will loose his credibility?-3-
11.Whether a sum of Rs.16,266/- has been paid by the non-
applicant twice and if so he is entitled to get that amount adjusted?
12.Relief?
The Rent Tribunal by the judgment dated 19.5.2006 decided the issues No.1 and 5 in favour of the respondent- applicant (landlord) and against the appellant non- applicant (tenant). The issue No.2 was decided against the respondent-applicant and in favour of the appellant non- applicant. The issues No.7, 8 and 9 were decided in favour of the appellant non-applicant and against the respondent- applicant. While deciding the issue No.4 the Tribunal revised the rent as Rs.3317/- as on 31.3.2003 and further declared the applicant entitled for enhancement of the rent by 5% every year and further by including the total enhanced rent with original rent after a period of 10 years and then to enhance that by 5% every year. The issue No.11 was decided against the appellant non-applicant and in favour of the respondent-applicant. The issues No.3 and 10 were not adjudicated being not available as grounds for eviction or otherwise under the Act of 2001.
The Tribunal as a consequent to determination of the issues in the terms above rejected the application under Section 9 but granted the application seeking revision of rent as per Section 6 of the Act of 2001. The applicant landlord assailed validity of the judgment dated 19.5.2006 before the Appellate Rent Tribunal by way of filing an appeal which also came to be rejected vide the judgment dated 13.11.2006. The Appellate Rent Tribunal -4- while maintaining the conclusions arrived by the Rent Tribunal for the issues No.1, 2, 3, 4, 6, 7, 8, 9 and 10 reversed the finding pertaining to the issues No.5 and 11. The Appellate Rent Tribunal decided these issues against the respondent-applicant and in favour of the appellant non-applicant.
The respondent applicant preferred a petition for writ before Single Bench of this Court to challenge the order dated 13.11.2006 passed by the Appellate Rent Tribunal, Sriganganagar and the judgment dated 19.5.2006 passed by the Rent Tribunal. Learned Single Bench did not choose to examine the findings of the Rent Tribunal as well as the Rent Appellant Tribunal in order of the issues framed but examined the bonafide necessity of the respondent-applicant and held that "mere statement of the landlady unrebutted by the tenant or anybody else that she wants to set up her business again in the ground floor and front side shop in the disputed shop, was sufficient to grant the eviction decree in summary trial envisaged under Section 21 of the Act of 2001". While giving finding as above, learned Single Bench also held that "Tribunals below have gone out of their bounds and that is why the need to invoke the jurisdiction under Article 227 of the Constitution of India arose in the present case and is required to be invoked in favour of the petitioner-landlady in view of settled legal position to the contrary as was noticed by the learned Tribunals below".
While accepting the writ petition, learned Single Bench set aside the judgments passed by the Appellate Rent -5- Tribunal as well as the Rent Tribunal and directed the appellant non-applicant to hand over peaceful and vacant possession of the suit shop to the respondent-applicant on or before 31.12.2013 and shall also pay mesne profit @ Rs.5000/- per month for use and occupation of suit shop commencing from March, 2013 till the date of handing over the vacant and peaceful possession. Learned Single Bench further ordered that "The arrears of mesne profit shall be cleared within three months from today and the respondent- tenant will further continue to pay the mesne profits each month by 15th day of the next succeeding month or in advance to the petitioner landlady till the vacant possession is handed over to the petitioner landlady and in case there is any default in payment of mesne profit, the period of ten months aforesaid for eviction shall stand reduced and the decree of eviction would become executable forthwith. The respondent-tenant shall also clear, if not already paid and all the arrears of the rent or mesne profit within three months from today, otherwise the amount shall bear simple interest @ 9% p.a. and the executing Court may quantify such amount and recover the same as a money decree. The amount already deposited, may be disbursed to the petitioner landlady forthwith. The respondent-tenant shall also not sub-let, assign or part with the possession of the suit shops or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same, if so created, would be treated as void. The respondent-tenant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made -6- clear that if the peaceful and vacant possession of the suit shop is not handed over or rent or mesne profits are not paid to the petitioner-landlady, on or before the period of ten months from today i.e. 31.12.2013, besides the expeditious execution of the decree in normal course, the petitioner-landlady shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this order be sent to both the Rent Tribunals and both the parties concerned forthwith."
To challenge legality, validity and propriety of the judgment passed by learned Single Bench, this appeal is before us.
The submissions advanced on behalf of the appellant are that :-
1.learned Single Bench erred while altering the concurrent findings of fact given by the Tribunals below about bonafide and reasonable necessity of he landlord to have rented premises;
2.without prejudice to the above the material available on record indicates that the respondent applicant is having simple desire to get the appellant respondent evicted from the rented premises and not a reasonable and bonafide need;
3.learned Single Bench failed to appreciate that as per Section 9(i) of the Act of 2001 no order for eviction of tenant can be passed unless getting satisfied that the -7- premises is required reasonably and bonafidely by the landlord for the use or occupation of himself or his family or for the use of occupation of any person for whose benefit the premises is held. The Court has neither examined reasonability nor the bonafide need for eviction; and
4.learned Appellate Rent Tribunal decided the issue No.5 in favour of the appellant non-applicant and as per that the tenancy was in favour of 'Vishal Jewelers' and in absence of that no application under Section 9 of the Act of 2001 could have been maintained, but the learned Single Bench ordered for eviction without examining the issue aforesaid.
While contesting the appeal, learned counsel for the respondent non-applicant submits that the bonafide need of the premises to the applicant is apparent in view of the fact that she is having expertise in running a beauty parlour and she desires to involve herself in that business by opening a parlour at a place of her choice. Learned Single Bench rightly held that the choice of place is exclusively within the domain of landlord and such desire with choice of place to establish business constitutes a reasonable and bonafide need. Without prejudice to it, by submitting a miscellaneous application it is stated that the respondent non-applicant has shifted his business to some other premises and, therefore, occupation of the premises aforesaid is absolutely unwarranted and undesirable, and as per Section 9(j) of the Act of 2001, if the tenant has built or acquired vacant possession of or -8- has been allotted suitable premises adequate for his requirement, then a certificate for eviction must be given.
Heard learned counsels.
The first submission of learned counsel for the appellant non-applicant is that learned Single Bench erred while altering the concurrent findings of fact about bonafide need and reasonable necessity of the landlord to have rented premises. It is submitted that no error much less error on law or jurisdictional error was committed by the Tribunals below, therefore, the supervisory jurisdiction available to High Court under Article 227 of the Constitution of India should have not been invoked. A Single Bench of this Court in State of Rajasthan v. P.W.D. Karamchari Sangh and another, reported in RLW 1998(3) Raj 1555, while examining the scope of Article 227 of the Constitution of India, held as under:-
"(7). As stated earlier, this petition is labelled speaking it is a petition under Article 227 of the Constitution of India, the scope of which is very narrow and limited. In Mohd.
Yunus's case (supra) the Apex Court has clearly held that even an error on law cannot be corrected by the High Court in exercise of powers under Article 227 of the Constitution. However, learned counsel Shri Vyas relied upon the latest Supreme Court decision of Balwinder Kaur vs. Hardeep Singh and in case of Achutananda Baidya vs. Prafullya Kumar Gayen & Ors., which have been considered by the Division Bench of this Court in case of Smt. Tara Devi vs. Smt. Sudesh Chaudhary and, submitted that this court can interfere with the impugned order passed by the Tribunal in -9- exercise of powers under Article 227 of the Constitution of India. In Tara Devi's case (supra) the matter was arising out of the election petition, where the lower court placed the burden of proof on the elected candidate about her age on the date of election and without placing reliance on the evidence in school record as to her age, the orders were passed, which was challenged before the High Court in a petition under Article 227 of the Constitution of India. On facts of that case the Court was fully convinced that it was a fit case to exercise powers under Article 227 of the Constitution of India and accordingly it interfered with the order. In a recent decision in case of Achutananda Baidya's case (supra) the Supreme Court has once again explained the scope of Article 227 of the Constitution of India and the jurisdiction of the High Court. In that case also the Apex Court held on facts of that case that the High Court was justified in interfering with the order of appellate court that there was no agreement for reconveyance of the alienated land on ground that the appellate court's finding was made without considering evidence on record. The Apex Court further held that if the evidence on record in respect of a question of fact is not at all considered and without reference to such evidence, the finding of fact is arrived at the appellate court or Tribunal then such finding must be held to be perverse. That is not the case here in this petition.
(8). In Balwinder Kaur's case (supra) the Apex Court has also explained the scope of Article 227 of the Constitution of India and the powers of the High Court. There cannot be any quarrel with the principle laid down by the Supreme Court. The power and duty of the High Court under Article 227 of the Constitution is essential to ensure that the courts and Tribunals, inferior to the High Court have done what they were required to
- 10 -
do. This Court can interfere and exercise its powers under Article 227 of the Constitution of India only in such cases :-
(i)Erroneous assumption or acting beyond its jurisdiction.
(ii)Refusal to exercise jurisdiction.
(iii)Error of law apparent on the record as distinguished from a mere mistake of law.
(iv)Arbitrary or capricious exercise of authority or discretion.
(v)A patent error in procedure, and there is a perverse finding which is based on no evidence or material, or resulting in manifest injustice."
We are in absolute agreement with the law laid down by learned Single Bench in the case of the State of Rajasthan v. P.W.D. Karamchari Sangh (supra).
In the case in hand learned Rent Tribunal after examining the entire evidence available on record arrived at the conclusion that the applicant though is having a desire to get the tenant evicted from the rented premises but failed to establish any reasonable and bonafide necessity. While arriving at this conclusion learned Tribunals below noticed that just before filing the application under Section 9 of the Act of 2001 a shop adjacent to the rented premises was utilised by the family members of the applicant to run a business in the name of Bajitpuria Jewelers. If the applicant had any bonafide need then the shop aforesaid would have been used by her for starting boutique and beauty parlour. It was also noticed that the applicant concealed a fact that earlier she started the business of beauty parlour on first floor of
- 11 -
the same building and closed that being failed to run successfully. The Tribunals further noticed that two other shops are available with applicant at Shankar Colony to run her business and this fact was taken into consideration to examine reasonability as required under Section 9(i) of the Act of 2001 for eviction of a tenant from rented premises. Learned Single Bench instead of examining jurisdictional error, arbitrary or capricious exercise of authority or discretion, patent error in procedure, and perverse finding said to be based on no evidence or manifest injustice in the judgments passed by the Rent Tribunal and Appellate Rent Tribunal, examined the entire issue by confining it to the choice of a landlord about the place suitable to meet his/her need though this was not even the issue for consideration. Learned Single Bench in our considered opinion invoked the supervisory jurisdiction as per Article 227 of the Constitution of India without having necessary eventualities to do so.
It shall also be pertinent to mention that the requirements of the Rajasthan Rent Control Act, 2001 for eviction of a tenant from rented premises are given under Section 9 and as per clause (i) a landlord is required to establish its reasonable and bonafide need for the premises. The reasonable and bonafide necessity is different than the choice of place to run business. The choice of place follows to reasonable and bonafide need, therefore, the first requirement that was to be considered by learned Single Bench was about reasonable and bonafide need of the applicant for the premises in question. As a matter of fact in the case in hand learned Single Bench has
- 12 -
not examined findings arrived by the Tribunals below on basis of the evidence available about reasonable and bonafide need of the premises, but reversed the same on the count that the landlord is having a unbridled right to choose a place for business. At the cost of repetition we would like to state that the choice of place have to follow a reasonable and bonafide necessity and a landlord, if desires a premises, then he/she must set out his/her need for the premises and must establish that the need is bonafide one. Under Section 9(i) of the Act of 2001 in addition to bonafide need, a landlord is also required to establish reasonability of his claim. In the case in hand the Rent Tribunal with the aid of evidence concluded that the applicant failed to establish reasonability in making his claim and that came to be affirmed by the Rent Appellate Tribunal. The Tribunals for the purpose relied upon availability of a shop just adjacent to the rented premises and two other shops in Shankar Colony. The Tribunals also noticed that the applicant concealed the fact about starting of a business of same nature in earlier years and closure of that. Without examining correctness of these findings, no occasion was there for learned Single Bench to alter the same on basis of the concept that the landlord is the best chooser for place of his/her use.
An important aspect of the case is that whether any writ could have been issued by learned Single Bench for eviction of the rented premises without examining the issue No.5 framed by the Rent Tribunal? The issue No.5 was about maintainability of application under Section 9 of the Act of 2001 without impleading 'Vishal Jewelers' as party
- 13 -
respondent. The Appellate Rent Tribunal decided the issue aforesaid against the applicant and in favour of the appellant-respondent. The finding of the Appellate Rent Tribunal deserves to be quoted and that is as under:-
"श र मपक श क बय न स यह भ पकट ह त ह कक
व दगसत दक न क च पत हई दक न म श मत शश ब ल
क पररव रव ल" न बज तपररय जवलस% क न म स अपन
वयवस य प रमभ ककय ह और यदद व सतव म श मत शश
बल क अपन बयट
, - प ल%र क वयवस य करन क ललय
दक न क/ आवशयकत ह त त व दगसत दक न क च पत
दक न म अपन वयवस य प रमभ ककय ज सकत थ
अनयथ श ग5ग नगर म श5कर क ल न म उसक द दक न
भ ह न बत य ह जजनम स एक दक न भ ख ल- ह न
बत य ह तथ एक दक न ककर य पर द- हई ह न बत य ह।
ऐस दश म अप ल थ< द र पसतत क/ गई स कय स यह
पकट नह-5 ह त ह कक व सतव म श मत शश बल क
अपन बय,ट- प ल%र क वयवस य करन क ललय व दगसत
दक न क/ यक@य@ तथ सदभ वन प,वक
% ननज आवशयकत
ह कय"कक यदद उसक द र प,व% म 8-9 वर% प,व% प रमभ ककय गय वयवस य ब5द नह-5 ककय ज कर ल, रख ज त तथ उस पररसर क/ बज य वह वत%म न म मDज,द दक न म अपन वयवस य प रमभ करन क/ इचG ज दहर करत त इस यक@य@ एव5 सदभवन पव , क % ननज आवशयकत अवशय म न ज सकत थ । परनत उसन सवय5 न अपन पनतपर-क म इस ब त क सपष रप स सव क र ककय ह कक उसक द र 8-9 वर% प,व% म बय,ट- प ल%र क वयवस य प रमभ ककय गय थ ज नह-5 लन क क रण ब5द ककय गय ह तथ इस ब त क/ पषM एन० ए० ड० । श र मपक श क बय न स भ प,णत % य
- 14 -
ह त ह। जस कक इस स5ब5ध म और भ षवसतत Q षवव न ककय ज क ह। ऐस दश म षवद न अध नसथ अचधकरण न षवव द बबनद स5० 2 अप ल थ< क षवरद तथ पतयथ< क पक म तय करन म ककस पक र क/ तदट नह-5 क/ ह।
13. अब जह 5 तक पतयथ< द र पसतत क/ गई पनत-आपषVय"
क पश ह, पतयथ< क षवद न अचधव@ द र सव%पथम यह आपषV उठ ई गई ह कक व सतव म व दगसत दक न श र मपक श क वयक@गत रप स ककर य पर नह-5 द- गई थ बजYक फम% षवश ल जवलस% क ककर य पर द- गई थ , जजस पकक र नह-5 बन य गय ह। ऐस दश म अप ल थ< क/ तरफ स पश ककय य प थ%न -पत लन य गय नह-5 थ । इस समबनध म द न" पक द र पसतत क/ गई स कय क स5य@ रप स षवशलरण एव5 म,Yय 5कन करन स यह पकट ह त ह कक एन० ए० ड०। श र मपक श न अपन बय न म सपM रप स बत य ह कक व दगसत दक न व सतव म उस ककर य पर नह-5 द- ज कर फम% षवश ल जवलस% क ककर य पर द- गई तथ फम% क/ तरफ स ह- उसक द र समय-समय पर ककर य अद ककय ज त रह ह। एन० ए० ड०। श र मपक श क इस कथन क/ पज\ट सव5य ए० ड० । श मत शश ब ल क बय न स भ पण , त % य ह त ह जजसन अपन बय न म यह तथय सपM रप स सव क र ककय ह कक व दगसत दक न फम% ह अथव एकल सव लमतव क/ फम% ह, उसक पत नह-5।
इसक अल व अप ल थ< द र पतयथ< क पक म ज रस द ज र- क/ गई ह , उसम भ ककर यद र क नम श र मपक श नह-5 ललख ज कर षवश ल जवलस% ह- ललख गय ह, जजसस भ यह भल-भ 5नत पकट ह त ह कक व दगसत दक न श र मपक श क ककर य पर नह-5 द- गई, बजYक षवश ल जवलस% क ककर य पर द- गई थ तथ ननषव%व द रप
- 15 -
स षवश ल जवलस% क पकक र नह-5 बन य गय ह। इसललय
अप ल थ< क/ तरफ स पश ककय गय प थ%न पत लन
य गय नह-5 थ ।"
(Emphasis added by us)
In view of the finding aforesaid the application under Section 9 of the Act of 2001 was not at all maintainable. Admittedly the finding aforesaid has not been examined and on affirmation of that finding no order of eviction under Section 9 of the Act of 2001 could have been given, hence, the writ issued and the directions given are ill-founded.
For the reasons given above, this appeal deserves acceptance. Accordingly, the same is allowed. The judgment impugned passed by learned Single Bench dated 21.2.2013 is set aside. In view of the fact that we have not examined merits of the findings arrived by the Rent Tribunal as well as Appellate Rent Tribunal, therefore, the writ petition is remanded for its adjudication afresh by learned Single Bench.
So far as miscellaneous application preferred by the landlord is concerned, that is based on entirely a different ground which is required to be adjudicated in a fresh application by examining with the aid of necessary evidence. The application, therefore, deserves to be rejected with liberty to the applicant to agitate the same by way of filing a separate application, if advised by taking recourse under Section 9 of the Act of 2001.
- 16 -
No order to costs.
(JAISHREE THAKUR),J. (GOVIND MATHUR),J.
kkm/ps.