Andhra HC (Pre-Telangana)
Mohammed Abdul Hameed Khursheed vs Zulfikhar Ahmed And Two Others on 2 July, 2013
Equivalent citations: AIRONLINE 2013 AP 129, (2013) 5 ANDHLD 402
Author: A. Rajasheker Reddy
Bench: A. Rajasheker Reddy
THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY C.R.P.No.3636 of 2006 dated:02-07-2013 Mohammed Abdul Hameed Khursheed.. Petitioner Zulfikhar Ahmed and two others.. Respondents Counsel for petitioner : Sri L. Prabhakar Reddy Counsel for 1st respondent : Sri B. Nalin Kumar Counsel for 2nd respondent: Sri M.A. Mukheed <GIST: >HEAD NOTE: ?CASES REFERRED : 1) AIR 2004 SC 2049 2) AIR 2007 SC 1103 3) AIR 2007 SC 340(1) 4) (2001) 8 SCC 718 5) (2006) 11 SCC 67 6) (2007) 7 SCC 482 7) AIR 1997 SC 3760 8) 1996 (2) ALD 683 (D.B) 9) 2012 (4) ALD 385 (DB) 10) (1991) 1 SCC 343 11) AIR 1999 SC 2507 12) (2010) 6 SCC 257 13) (1993) 1 SCC 499 14) (1980) 4 SCC 259 THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY CIVIL REVISION PETITION No.3636 of 2006 ORDER:
This Civil Revision Petition is filed by the petitioner/plaintiff against the judgment and decree, dated 04.04.2006, in O.S.No.56 of 1998 on the file of the Andhra Pradesh Wakf Tribunal, Hyderabad (the Tribunal).
For the sake of convenience and to avoid ambiguity in the discussion, the parties will be referred to hereinafter as they were arrayed in the suit.
The plaintiff herein filed the above-mentioned suit for declaration that the construction made by the 1st defendant on the graveyard land is illegal, for perpetual injunction restraining the 1st defendant, his agents, henchmen, relatives and anybody claiming through him from interfering with the graveyard land of Bur Houz Goshamahal, Hyderabad, for mandatory injunction against the defendants for removal of the construction made on the graveyard land and to remove dumped material on it, for a money decree against defendant No.1 for illegally using the graveyard land by dumping the construction material on it and for costs of the suit.
With the following plaint averments:
There is an old graveyard called "Graveyard Burhouz", Goshamahal and it is registered as wakf and managed by the Muthawalli and the present Muthawalli is the plaintiff. At the eastern side of the graveyard abutting street, there was encroachment by the 1st defendant and he opened doors at the western side of his occupied house No.15-1-300 at about 169. aq. Yards of graveyard. The plaintiff complained against encroachment and opening of the doors and window in the graveyard land. But, the 2nd defendant has not taken any effective steps and neither the Municipal Corporation of Hyderabad nor the Police has protected from encroaching and opening the doors and thereby the 1st defendant has habitually become law breaker and trouble monger for the institution of the graveyard and it is managing affairs ignoring that the graveyard cannot be used for any other purpose against the tenements of Islam and feeling and sentiment of kith and kin of the buried. The 1st defendant as self styled leader of the locality people have won over the political parties and in fact made proposals for laying road and the water supply pipeline in the middle of the graveyard land against the interest of the institution. The 1st defendant and his henchmen made to attempt to make use of the open land of the graveyard for playground and they would have succeeded in their evil attempts, had the plaintiff been little lethargic. The 1st defendant started the construction of his occupied house No.15-1-300 which is on the encroached land of the graveyard without proper municipal permits and plans and without No Objection Certificate from the 2nd defendant abutting and encroaching the graveyard land during the first week of April, 1998. Immediately, the plaintiff has complained to the 2nd defendant, police and Municipal authorities, but they have not taken any action as per law. The Municipal authorities, particularly, the Assistant Town Planner, Circle No.II under the 3rd defendant have ignored their prime and foremost duty to implement the Municipal law and save the wakf land. The 1st defendant against the law and without any authority on 14.4.98 entered the graveyard and dumped the construction material on the graveyard open land by removing the boundary stones. The plaintiff has complained to the Police Inspector, Begum Bazar, Hyderabad, but the police has not taken any action as per law and did not launch prosecution against the 1st defendant. The 2nd defendant after great persuasion deputed their surveyor who made detailed survey of the graveyard and reported the matter to the higher authorities for their action. Thereupon, a notification u/s 54(1) of the Wakf Act, 1995 (for short 'the Act') issued and the time specified in the notice elapsed long back, except above notice, the 2nd defendant could not take any effective action to stop the construction made by the 1st defendant and protect the graveyard. Taking advantage of the situation and the lethargic attitude of the 2nd and 3rd defendants, the 1st defendant has speed up the construction work day and night and he intoxicated any support of anti-social elements and without minding the notice issued u/s 54(1) of the Act and by-passing the Municipal laws attempted to complete the construction work with an evil intention to cause loss to the institution. Hence, the suit.
The 1st defendant filed written statement contending that the plaintiff is not the present Muthawalli and one Sri Gulam Mohd. @ Iqbal used to manage the affairs of the graveyard. The plaintiff has fabricated a story of encroachment. There is no encroachment on any part of the graveyard nor any door has been opened on the western side of the House No.15-1-300. The extent of the house has also not correctly been stated and also boundaries and dimensions. He has never styled himself as leader nor has he ever proposed laying of roads and water pipelines at any site. The 2nd defendant has not issued No Objection Certificate nor there is any application to this effect by him. He has not dumped any construction material nor he removed any boundary stones at site. He is not aware of the proceedings of the VIII Asst. Judge, City Civil Court, Hyderabad nor is he aware of the complaint to the police. He is not aware of survey by the 2nd defendant and has not received any notice about the survey proceedings from the 2nd defendant.
The 2nd defendant also filed written statement contending that the graveyard land is a registered wakf property and also notified in A.P.Gazette No.44, dated 7.11.1985 and the plaintiff is the approved Muthawalli by the 2nd defendant. On receipt of representation, dated 15.4.98, from the plaintiff against the 1st defendant, it addressed a letter to the Asst. Town Planner requesting him to demolish the illegal structures and also not to allow anybody to carryout any construction in the graveyard. It has deputed the office surveyor for inspection and report and consequent on receipt of the report of the surveyor, it again addressed to the Commissioner, MCH vide letter dated 11.5.1998 marking copy to the Asst. Town Planner to demolish the unauthorized construction, but no action was taken, as such, in exercise of the powers conferred under the Act, it issued a show cause notice u/s 54/(1) of the Act for eviction of the encroached area by 12.5.1998. Since no reply was given by the 1st defendant and no cause shown within the stipulated period, in exercise of the provisions as contemplated u/s 54(3) of the Act, it has issued orders directing the 1st defendant for delivery of possession of the suit property to it. The 1st defendant has no authority or right over the suit property to carry out construction over the same as the suit property is a wakf property.
The 1st defendant also filed O.S.No.58 of 1998 against the plaintiff and others.
On the above pleadings, the following common issues were framed for trial:
1) Whether the suit is bad for non-compliance of notice u/s 89 of Wakf Act
2) Whether the suit is properly valued
3) Whether the plaintiff is entitled to be declared as the owner of the suit land
4) Whether the construction made by defendant No.1 over suit property and the same comes under purview of MCH Act
5) Whether the construction made by defendant No.1 over the suit property is liable to be demolished as prayed for
6) Whether the plaintiff is entitled for perpetual injunction against the defendants
7) To what relief The plaintiff got examined himself as P.W.1 and marked Exs.A.1 to A.37 on his behalf. On behalf of the defendants, D.Ws.1 to 4 were examined and Exs.B.1 to B.22 were marked. Exs.X.1 to X.3 were marked with consent.
The Tribunal, by common judgment, dated 04.04.2003, dismissed O.S.No.56 of 1998 filed by the petitioner and decreed O.S.No.58 of 1998 filed by the 1st respondent. Feeling aggrieved thereby, the petitioner filed C.R.P.Nos.2855 and 2827 of 2003 before this Court against the dismissal of O.S.No.56 of 1998 and decreeing of O.S.No.58 of 1998 respectively. Both the revisions were allowed through common order, dated 17.12.2003, and the matters were remitted back to the lower Tribunal with a direction to give opportunity to all the parties concerned inclusive of the Board to adduce further evidence, if any, relating to all the issues which had been settled between the parties and dispose of the matters, in accordance with law.
After remand, Ex.A.38 was marked on behalf of the plaintiff and D.Ws.5 and 6 were examined and Exs.B.23 to 26 were marked on behalf of the defendants.
The Tribunal, after considering the entire evidence, dismissed both the suits by common judgment dated 04.04.2006. Being aggrieved by the same, the petitioner filed the present revision against the dismissal of O.S.No.56 of 1998. While so, the 1st respondent has not filed any revision against the dismissal of O.S.No.58 of 1998.
Sri L. Prabhakar Reddy, learned counsel for the revision petitioner/plaintiff submitted that the evidence of P.W.1 and D.Ws.5 and 6 is sufficient enough for decreeing the suit. He contended that though several issues were framed, the Tribunal had not at all discussed them with reference to the evidence adduced and the documents marked, though there is a clear direction in the order passed by this Court in C.R.P.Nos.2827 and 2855 of 2003 to consider the evidence and dispose of the suits according to law. He further contended that the Tribunal disposed of the suit without any application of mind by taking some portions of evidence here and there instead of construing the entire evidence comprehensively for coming to a right conclusion and that the Tribunal did not answer the issues framed, as such, the order impugned in this revision is liable to be set aside. He further contended that under Section 83 (9) of the Act, this Court can examine the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other orders as it may think fit. He further contended that the scope of revision under Section 83(9) of the Act is very wide and even the evidence can be re- appreciated while examining the correctness, legality and propriety of such determination. He further contended that the Wakf Board had issued a notice u/s 54(1) of the Act dated 12.5.98 directing the 1st defendant to vacate the suit property and having received the notice, the 1st defendant had proceeded with the construction work and the Board also exercised its powers styling the 1st defendant as encroacher to remove the encroachments and deliver possession of the suit property to the plaintiff. He also contended that the Tribunal had not properly appreciated the scope and ambit of Section 83 of the Act and totally erred in holding that the plaintiff failed to establish his case by producing the record showing the extent of land attached to the Wakf Institution. In support of his contention that the scope of revision under Section 83(9) of the Act is as wide as appeal, he relied on the decisions in P.S. Pareed Kaka and others V. Shafee Ahmed Saheb1, G.L. Vijain V. K. Shankar2, Shahabad Co-operative Sugar Mills Ltd. V. Special Secretary to Govt. of Haryana Corp. and Ors.3 Kempaiah V. Lingaiah and others4 and Indian Airlines Ltd. V. Prabha D. Kanan5. The learned counsel also contended that it is a public property and the same should be protected as held by the Apex Court in the decision in A.A. Gopalakrishnan V. Cochin Devaswom Board and others6. It is also contended that the 1st respondent has not filed any revision against the dismissal of his suit in O.S.No.58 of 1998 which operates as resjudicata against him. He relied on the judgments in Ram Prakash V. Smt. Charan Kaur and another7, and Sri Chintala Satyanarayana V. Smt. Chintala Kistamma8.
Sri B. Nalin Kumar, learned counsel for the 1st respondent/1st defendant contended that the scope of the revision under the proviso to Section 83(9) of the Act is very limited, that this Court cannot interfere with the findings of fact arrived at by the Tribunal and that there cannot be any re-appreciation of both oral and documentary evidence available on record like in appeal as Section 83(9) of the Act clearly bars appeal against the decision of the Tribunal and only revision is provided, that too, to examine the correctness, legality or propriety of such determination. He further contended that this Court cannot extend the scope of revision and deal with it like an appeal, when the legislature itself has barred the provision for appeal. The learned counsel submitted that in all the decisions relied on by the petitioner, there was no bar of appeal in the relevant enactments dealt with therein, as in the present case. So, the decisions cited by the learned counsel for the petitioner have no application. He further submitted that the petitioner has not given any specific boundaries to the suit property and there is no identification as to how much extent of the graveyard is encroached. He contended that the evidence of P.W.1 and D.Ws.5 and 6 is inconsistent and the total area of the graveyard is also not correctly stated and the encroachment part is also not identified. He further contended that the boundaries given in the suit schedule and the boundaries as deposed by the witnesses are not tallying with each other. The so-called Exs.X.1 to X.3 are not binding on the 1st respondent, since no notice was issued to him while conducting the survey. He also contended that the notice issued by the Wakf Board under Section 54 of the Act is also very vague without any specific boundaries. He further contended that the suit cannot be decreed on the basis of Ex.X.2 which shows the extent of encroachment. He further contended that the findings given in O.S.No.58 of 1998 cannot be interfered with, since no revision is filed against the judgment and decree passed in the said suit. In support of his contentions, he relied on the decisions in Lanco Hills Technology Park Pvt. Ltd., Hyderabad V. Mahaboob Alam Khan and others9, Bhoolchand and another V. Kay Pee Cee Investments and another10, Shiv Sarup Gupta V. Dr. Mahesh Chand Gupta11, Speedline Agencies Vs. T. Stanes and Company Limited12, Rukmini Amma Saradamma V. Kallyani Sulochana and others13 and M/s. Sri Raja Lakshmi Dyeing Works and others V. Rangaswamy Chettiar14.
Sri M.A. Mukheed, learned counsel for the 2nd respondent/2nd defendant contended that the suit property was encroached by the 1st respondent, as such, they issued a notice to him by invoking the provisions of Section 54 of the Act and since the 1st respondent has not given any reply, they issued eviction proceedings and at that time, the 1st respondent filed O.S.No.58 of 1998 and obtained interim orders stalling their eviction proceedings. He submitted that the suit property is part and parcel of the graveyard notified as wakf and the Wakf Board also addressed several letters to the Municipal Corporation for demolishing the same, but no action was taken. He further submitted that had the 1st respondent not filed the aforestated suit and obtained interim orders, the 2nd respondent could have proceeded with the removal of encroachments under Section 54 of the Act. He further submitted that the 1st respondent has not challenged the eviction proceedings and only filed the suit for injunction and the suit was rightly dismissed by the Tribunal and having dismissed the suit for injunction filed by the 1st respondent, the Tribunal should have decreed O.S.No.56 of 1998 filed by the revision petitioner. He further submitted that the encroachment made by the 1st respondent is demarcated by the Surveyor in Ex.X.2, as such, the dismissal of O.S.No.56 of 1998 is erroneous.
P.W.1/revision petitioner deposed that he is the Muthawalli of the graveyard. Ex.A.1 is munthakab issued by the A.P.State Wakf Board and that defendant No.1 in O.S.No.56 of 1998 opened door and window on the eastern side of the house and he had reported the same to the Board and the Municipal Corporation and also to the police, but they did not take any action. Exs.A.2 and A.3 are the copies of letters sent to the wakf Board and the police. Ex.A.4 is the reply from HUDA and Ex.A.5 is the reply given to HUDA. Ex.A.6 is the certified copy of graveyard plan. He also deposed that the 1st defendant completely demolished the house bearing No.15-1-300 and also constructed a new house by encroaching on the site belonging to the graveyard and he gave a representation to the Board and Ex.A.7 is the copy of the said representation. Ex.A.8 is the representation given to the Assistant Town Planner. Ex.A.9 is the copy of the letter addressed to the police. Ex.A.10 is the copy of letter addressed to the Board. Ex.A.11 is the copy of letter addressed to the Station House Officer, Begum Bazaar P.S. Ex.A.12 is the copy of letter to the Addl. Commissioner, MCH, Hyderabad. Ex.A.13 is the office copy of letter to the Commissioner, MCH, Hyderabad. Ex.A.14 is the another letter complaining about the encroachment. Ex.A.15 is the copy of the proceedings and Exs.A.16 to 26 are the photos with negatives. Exs.A.27 to 29 are the copies of letter. Ex.A.30 is the Gazette Notification notifying the wakf property. Ex.A.31 is the representation. Ex.A.32 is the acknowledgment by the Quli Qutub Shah Urban Development Authority. Ex.A.33 is the representation given to the Chairman. Ex.A.34 is the copy of Ex.A.33 sent to the Deputy Director, Hyderabad. Ex.A.36 is the copy of complaint. Ex.A.37 is the application to Wakf Board for copies of Munthakab and other documents. Ex.A.38 is the certified copy of plan.
D.Ws.5 and 6, who were examined on behalf of the 2nd defendant, also supported the case of the revision petitioner/plaintiff. D.W.5, Md. Habeeb Uddin Ansari, Executive Officer, A.P.State Wakf Board, in his evidence stated that the graveyard situated at Gosha Mahal, Hyderabad, is notified wakf registered in the year 1350 fasli under A.P.Gazette No.45, dated 17.11.1985 and being looked after by the Muthawalli. He also stated that the suit property is a wakf property and the authority has no power to issue pattas and D.W.1 encroached over the property of graveyard. He further deposed that the Wakf Board directed the Surveyor to inspect the illegal constructions and encroachments by D.W.1 and submit a report and letter dated 15.08.1998 is addressed to the Asst. Town Planner, Hyderabad requesting to demolish the illegal constructions and not to carry out any further constructions. He further deposed that the Surveyor submitted his report after examining the site and the Wakf Board addressed a letter dated 11.05.1998 to the MCH to demolish the unauthorized constructions and that the Wakf Board issued a notice u/s 54(1) of the Act to D.W.1 on 12.05.1998 calling upon him to explain as to why he should not be evicted from the property which is encroached upon by him.
D.W.6 by name Md. Shujath Ali Khan, Surveyor in A.P. State Wakf Board, deposed that the graveyard situated at Gosha Mahal, Hyderabad, is notified wakf registered in the year 1350 fasli under A.P.Gazette No.45, dated 17.11.1985, and P.W.1 is the Muthawalli and on the instructions of the Chief Executive Officer, he inspected the graveyard and took measurements and prepared Ex.X.2 and found that D.W.1 has encroached over a portion of the graveyard. Ex.A.38 is the certified copy of the map of the graveyard. Ex.X.2 is the rough plan showing the graveyard Bur Houz Goshamahal, it is signed by the Surveyor on 2.5.1998 in red ink and it is mentioned that 169. sq. yards is illegally in occupation and unauthorized constructions are made.
D.W.1 deposed that he did not encroach into the site belonging to the graveyard. He filed Exs.B.1 to B.8 photos. Exs.B.9 and B.10 are the extracts of assessment of property tax for the year 1946-48. Ex.B.11 to B.13 are the extracts of assessment register for the years 1968-1973, 1973-1983 and 1982-1998. Ex.B.14 is the certified copy of plan issued by the Wakf Board. Ex.B.15 is the certified copy of munthakab relating to Bur Houz Graveyard. Exs.B.16 to 18 are the photos. Exs.B.19 to B.21 are the electricity bills. Ex.B.22 is the true copy of Gazette Notification. Ex.X.1 is the survey report. Ex.X.2 is the plan showing the Bur Houz graveyard, Goshamahal. Ex.X.3 is the inspection report of the Executive Officer of the Board, dated 13.5.1998.
Similarly, D.W.2 deposed that the 1st defendant is residing in the premises bearing No.15-1-300, Feel Khana and the houses were originally constructed by HEH, the Nizam and later on, handed over to the City Improvement Board and later they were taken over by the Housing Board and from the Housing Board, the Government acquired the same and issued pattas. The evidence of D.Ws.3 and 4 is to the effect that D.W.1 never encroached any portion of the property belonging to the graveyard.
Firstly, I will deal with the aspect of scope of interference under revisional jurisdiction with reference to Section 83(9) of the Act which reads as follows:
"No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal.
Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may conform, reverse or modify such determination or pass such other orders as it may think fit."
In P.S. Pareed Kaka case (1 supra), the Supreme Court in para 17 of its judgment held as under:
The High Court has jurisdiction to go into the legality or correctness of the decision which, in our view, includes the power to reappreciate evidence and that the High Court can interfere with the findings of fact also. This apart, the jurisdiction of the High Court under Section 50 is to examine the legality and correctness of the order of the trial Court. The examination as to the correctness involves appreciation of evidence and that the High Court can interfere if the finding of the Rent Controller is entirely improbable.
In G.L. Vijain case (2 supra), the Apex Court in para 14 of its judgment held as follows:
"There is furthermore no dispute that the High Court can exercise its inherent jurisdiction in appropriate cases. The revisional jurisdiction, however, in effect and substance is an appellate jurisdiction.
In Narinder Mohan Arya V. United India Insurance Co.Ltd. and others ((2006) 4 SCC 713), this Court observed:
"47. A revisional jurisdiction as is well known involves exercise of appellate jurisdiction. (See. Shankar Ramchandra Abhyankar V. Krishnaji Dattatreya Bapat and Nalakath Sainuddin V. Koori-kadan Sulaiman.)"
In Shahabad Co-operative Sugar Mills Ltd. Case (3 supra), the Apex Court held in paras 23 & 24 of its judgment as under:
"The revisional jurisdiction is akin to the appellate jurisdiction.
It would appear that their lordships of the Privy Council regarded the revisional jurisdiction to be a part and parcel of the appellate jurisdiction of the High Court. This is what was said in Nagendra nath Dey v. Suresh Chandra Dey, 59 Ind App 283 at p.287 (AIR 1932 PC 165 at p.167).
"There is no definition of appeal in the Code of Civil Procedure, but their Lordship have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term......."
In Kempaiah case (4 supra), the Apex Court held in para 4 of its judgment as follows:
"It has been held in Bhoolchand V. Kay Pee Cee Investments ((1991) 1 SCC 343) that the revisional powers of the High Court, under the Act, are wider than the powers conferred upon it under Section 115 of the Code of Civil Procedure. The High Court is not precluded to appreciate the evidence for arriving at the conclusion regarding the alleged reasonable bona fide requirement."
In Indian Airlines Ltd. Case (5 supra), the Supreme Court in paras 44 & 45 held as under:
"But, in a case of this nature although there is no provision for appeal, but even in a judicial review, the court may require the employer to produce the records, on a perusal whereof the court may come to a finding as to whether the order passed by the Board of Directors was bona fide or not.
A judicial review of such an order would be maintainable. In a case of judicial review, where no appeal is provided for, the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not confine its jurisdiction only to the known tests laid down therefor viz. illegality, irrationality, procedural impropriety. It has to delve deeper into the matter. It would require a deeper scrutiny."
In Lanko Hills Technology case (9 supra), the Division Bench of this Court held in para 15 of its judgment as follows:
"The scope of a revision petition under the proviso to sub-section (9) of Section 83 of the Wakf Act is to examine the correctness, legality or propriety of order passed by the Wakf Tribunal in relation to a dispute or other matter. It is not appellate jurisdiction stricto sensu nor original proceeding. If all the relevant aspects of law and facts are considered by the Wakf Tribunal, no exception can be taken thereto. Even if two views are possible from the evidence on record, the High Court may not interfere with the order of the Wakf Tribunal, unless it is ex facie relevant aspects or gave importance to irrelevant factors."
In Bhoolchand case (10 supra), the Apex Court held in para 6 of its judgment as under:
"However, the power of revision is not narrow as in S. 115 CPC but wider requiring the High Court to examine the impugned order for the purpose of satisfying itself as to the legality or correctness of such order or proceeding, which enables the High Court to 'pass such order in reference thereto as it thinks fit'. It is clear that the High Court in a revision under Section 50 of the Act is required to satisfy itself not only as to the legality of the impugned order or proceeding but also of its correctness. The. power of the High Court, therefore, extends to correcting not merely errors of law but also errors of fact. In other words, the High Court in a revision under Section 50 of the Act is required to examine the correctness of not only findings on questions of law but also on questions of fact. It is significant that the revision provided is directly against the trial Court's order and not after a provision of appeal on facts. All the same, the power in revision under Section 50 of the Act cannot be equated with the power of the Appellate Court under Section 107(2) of the Code of Civil Procedure which is the same as that of the original court; and the revisional power under Section 50 of the Act even though wide as indicated must fall short of the Appellate Court's power of interference with a finding of fact where the finding of fact depends on the credibility of witnesses, there being a conflict of oral evidence of the parties."
In Shiv Sarup Gupta case (11 supra), the Apex Court in para 11 of its judgment held as follows:
Section 25-B of Delhi Rent Control Act, 1958 finding its place in Chapter III-A of the Act was inserted into the body of the main Act by Act No.18 of 1976 with effect from 1-12-1975. It provides for a special procedure to be followed for the disposal of applications for eviction on the ground of bona fide need. Obviously, this ground for eviction of the tenant has been treated on a footing different from the one on which other grounds for eviction of the tenant stand. Section 25-B is a self-contained provision in the sense that remedy against an order passed by the Rent Controller thereunder is also provided by that provision itself. Sub-section (8) provides that no appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in Section 25-B; provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this Section is according to law (or not), call for the records of the case and pass such order in respect thereto as it thinks fit'. The phraseology of the provision as reproduced hereinbefore provides an interesting reading placed in juxtaposition with the phraseology employed by the Legislature in drafting Section 115 of the Code of Civil Procedure. Under the latter provision the exercise of revisional jurisdiction of the High Court is circumscribed by the subordinate court having committed one of the three errors, namely (i) having exercised jurisdiction not vested in it by law, or (ii) having failed to exercise a jurisdiction so vested, or (iii) having exercised its jurisdiction with illegality or material irregularity. Under the proviso to sub-section (8) of Section 25-B, the expression governing the exercise of revisional jurisdiction by the High Court is for the purpose of, satisfying if an order made by the Controller is according to law'. The revisional jurisdiction exercisable by the High Court under Section 25-B (8) is not so limited as is under Section 115, CPC nor so wide as that of an Appellate Court. The High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a Court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of 'whether it is according to law'. For that limited purpose it may enter into reappraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached that conclusion on the material available. Ignoring the weight of evidence, proceeding on wrong premise of law or deriving such conclusion from the established facts as betray the lack of reason and/or objectivity would render the finding of the Controller 'not according to law' calling for an interference under proviso to sub-section (8) of Section 25-B of the Act. A judgment leading to miscarriage of justice is not a judgment according to law. (See. Sarla Ahuja V. United India Insurance Co.Ltd., (1998) 8 SCC 119" (1998 AIR SCW 3451) and Ram Narain Arora V. Asha Rani, (1999 (1) SCC
141)."
In Speedline Agencies case (12 supra), the Apex Court in para 28 of its judgment held as follows:
"In a revision under Section 25 of the Act, the Court is exercising a restricted jurisdiction and not wide powers of the appellate court. In Sri Raja Lakshmi Dyeing Works V. Rangaswamy Chettiar ((1980) 4 SCC 259) (p.262 para 3) "3.... Therefore, despite the wide language employed in Section 25, the High Court quite obviously should not interfere with findings of fact merely because it does not agree with the finding of the subordinate authority. The power conferred on the High Court under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act may not be as narrow as the revisional power of the High Court under Section 115 of the Code of Civil Procedure but in the words of Untwalia, J., in Dattonpant Goalvarao Devakate V. Vithalrao Maruthirao Janagaval ((1975) 2 SCC 246), it is not wide enough to make the High Court a second court of first appeal.:
In Rukmini Amma Saradamma case (13 supra), the Supreme Court in paras 19 & 20 of its judgment held as under:
" 19. Therefore, the question would be whether in the context of this provision the High Court was right in re-appreciating the evidence and coming to a different conclusion In the impugned judgment in paragraph 7 the High Court observed:
"Under S. 20 of the Act though re-appreciation of the evidence as such is not called for, the pleadings and evidence have to be examined to satisfy the legality, regularity of the order of the lower authorities."
20. We are afraid this approach of the High Court is wrong. Even the wider language of S. 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report (Exts. C1 and C2 Mahazar). In our considered view, the High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word "propriety" it cannot mean that there could be a re- appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdiction."
In M/s. Sri Raja Lakshmi Dyeing Works case (14 supra), the Apex Court in paras 2 and 3 of its judgment held as follows:
"2. 'Appeal' and 'revision' are expressions of common usage in Indian statute and the distinction between 'appellate jurisdiction' and 'revisional jurisdiction' is well-known though not well defined, Ordinarily, appellate jurisdiction involves a rehearing, as it were, on law as well as fact and is invoked by an aggrieved person. Such jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeal under the Code of Civil Procedure, and under some Rent Acts in some States. Ordinarily again, revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without its being invoked by a party. The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to the revising tribunal within the bounds of their authority to make them act according to law, according to the procedure established by law and according to well defined principles of justice. Revisional jurisdiction as ordinarily understood with reference to our statutes is always included in appellate jurisdiction but not vice versa. These are general observations. The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute.
3. Section 23 of the Tamil Nadu Building (Less and Rent Control) Act, 1960, enables any person aggrieved by an order passed by the Controller to prefer an appeal to the appellate authority having jurisdiction. Section 25 provides that:
The High Court may on the application of any person aggrieved by an order of the appellate authority, call for and examine the record of appellate authority, to satisfy itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein and if, in any case it appears to the High Court that any such decision or order should be modified, annulled, reversed or remitted for reconsideration it may pass orders accordingly'.
The language of section 25 is indeed very wide. But we must attach some significance to the circumstance that both the expressions 'appeal' and 'revision' are employed in the statute. Quite obviously, the expression revision is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression 'appeal'. In fact it has to be noticed that under Section 25 the High Court calls for and examines the record of the appellate authority in order to satisfy itself. The dominant idea conveyed by the incorporation of the words to satisfy 'itself' under Section 25 appears to be that the power conferred on the High Court under Sec. 25 is essentially a power of superintendence. Therefore, despite the wide language employed in Section 25 the High Court quite obviously should not interfere with findings of fact merely because to does not agree with the finding of the subordinate authority. The power conferred on the High Court under Sec. 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act may not be as narrow as the revisional power of the High Court under Section 115 of the Code of Civil Procedure but in the words of Untwalia, J., in Dattopant Gopalvarao v. Vithalrao Marutirao (1975) 2 SCC 246: (AIR 1975 SC 1111) "it is not wide enough to make the High Court a second Court of first appeal".
In the decision in P.S. Pareed Kaka case (1 supra) cited by the learned counsel for the petitioner, The Apex Court, while dealing with the interference under revisional jurisdiction, held that the examination as to the correctness involves appreciation of evidence and that the High Court can interfere if the finding of the court below is entirely improbable. In G.L. Vijain case (2 supra), the Apex Court observed that the revisional jurisdiction, however, in effect and substance is an appellate jurisdiction. In Kempaiah case (4 supra), it is also observed that the revisional powers of the High Court are wider than the powers conferred upon it under Section 115 of CPC and the High Court is not precluded to appreciate the evidence for arriving at the conclusion. In Indian Airlines Ltd. Case (5 supra), it is observed by the Apex Court that in a case of judicial review, where no appeal is provided for, the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not confine its jurisdiction only to the known tests laid down therefor viz. illegality, irrationality, procedural impropriety and it has to delve deeper into the matter and it would require a deeper scrutiny. The Hon'ble Supreme Court in the above cases was interpreting the provisions regarding the scope of revisional power where there is no bar of appeal like the one provided in Section 83(9) of the Act, as such, the ratio laid down in the decisions may not be applicable to the present case, since Section 83(9) of the Act clearly provides that no appeal shall lie against any decision or order whether interim or otherwise given or made by the Tribunal. The bar of appeal provided in the Act itself makes all the difference while interpreting Section 83(9) of the Act. When the Legislature itself bars the provision for appeal, question of treating revision like appeal may not arise, as a result, appreciation of evidence like that of appeal is ruled out. In view of the same, the above decisions cited by the learned counsel for the petitioner, do not apply to the facts of the present case.
In the decision in Lanko Hills Technology case (9 supra) cited by the learned counsel for the 1st respondent, the Division Bench of this Court held that it is not appellate jurisdiction stricto sensu nor original proceeding. In Bhoolchand case (10 supra) also, the Apex Court held that revision provided under Section 50 of the Karnataka Rent Control Act, 1961 cannot be equated with the power of the appellate Court under Section 107(2) of CPC and that the revisional power under Section 50 of the said Act even though wide as indicated must fall short of the appellate court's power of interference with a finding of fact. In Shiv Sarup Gupta case (11 supra) also, the Apex Court, while interpreting Section 25-B(8) of the Delhi Rent Control Act (59 of 1958), held that the High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if were a Court of facts. In the said Act also, Section 25-B(8) bars provision for appeal or second appeal like the present case. In Speedline Agencies case (12 supra) and in M/s. Sri Raja Lakshmi Dyeing Works case (14 supra) also, the Supreme Court held that the power conferred on the High Court under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act may not be as narrow as the revisional power of the High Court under Section 115 of CPC, but it is not wide enough to make the High Court a second court of first appeal. Similarly, in Rukmini Amma Saradamma case (13 supra) also, the Apex Court held that the High Court was not right in re- appreciating the entire evidence as it had travelled far beyond the revisional jurisdiction and that the word 'propriety' cannot mean that there could be a re- appreciation of evidence.
In view of the above decisions, I hold that the scope of revisional jurisdiction under Section 83(9) of the Act is not like that of appeal, since the Legislature itself barred the appeal provision, but however, it is wider than the revisional jurisdiction under Section 115 of CPC. But for satisfying as to the correctness, legality or propriety of such determination, Court can examine the facts in each case whether the decision is entirely improbable and perverse and the Court below has followed the procedure contemplated under law.
Secondly, I will deal with the aspect of res judicata. In Ram Prakash case (7 supra), the Apex Court in para 2 of its judgment held as under:
"It would be obvious that since the claims of the petitioner and the respondents have arisen from the same cause of action and the finding of the appellate Court that damages had accrued to the respondents due to misfeasance or malfeasance having been allowed to become final, the decree which is subject matter of the special leave petition cannot be assailed. The self same question was directly in issue and was the subject matter of both the suits. The same having been allowed to become final, it cannot be gone into since the same had attained finality, the petitioner having not filed any appeal against the appeal dismissing the suit. In view of this situation, the High Court was right in concluding that the decree of dismissal of the suit against the petitioner would operate as res judicata under Section 11 of CPC in the appeal against which the petitioner has filed the second appeal."
In Sri Chintala Satyanarayana case (8 supra), the Division Bench of this Court in para 7 of its judgment held as follows:
"As already stated supra, the common issue in both the suits was whether the plaint schedule properties were self acquired properties of Agaiah or joint family properties The finding recorded in O.S.18/74, as well as the suit under appeal (O.S.73/76) was that the properties were self acquired properties of the husband of the defendant. In so far as this aspect is concerned, it is not open to the appellant-plaintiff to canvass the correctness of that finding. It is well settled that when two suits are tried together and disposed of by a common judgment and if only one appeal is filed against one of the suits, the judgment and decree in the other having attained finality cannot be disturbed in the appeal preferred against the other judgment (vide K.Krishnan V. T.T.Devasthanams (1995 (2) ALT 122 (D.B.)."
The decisions in Ram Prakash case (7 supra) & Sri Chintala Satyanarayana case (8 supra), wherein it is held that the finding which has become final cannot be reagitated in the appeal, also apply to the facts of the present case, since the 1st respondent has not challenged the dismissal of the other suit in O.S.No.58 of 1998.
Further, in A.A.Gopalakrishnan case (6 supra), the Supreme Court held that it is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.
Having gone through the evidence on record, the judgment of the Tribunal and the decisions relied on by both the learned counsel, I am thoroughly satisfied that the Tribunal has not considered the evidence on record with reference to the issues framed and the pleadings on record and the same needs interference within the scope of revisional jurisdiction under Section 83(9) of the Act. Though several issues were framed and several witnesses were examined, the evidence referred to above and the issues framed in the suit are not properly dealt with.
The Tribunal has not understood the scope of Section 83(5) of the Act. As per this Section, the Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908 while trying a suit or executing a decree or order. As per Sub- Section 7 of Section 83 of the Act, the decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil court.
When the issues are framed and evidence is led, the Tribunal should have adverted to the same and disposed of the suit by taking a comprehensive view of the matter, when once the matter is remanded back by observing that the earlier disposal is not as per law. I am of the view that the Tribunal has not dealt with the issues and the evidence in proper manner and the matter has to be again remanded back to the Tribunal. As the Tribunal has committed material irregularity, the same needs to be interfered within the scope of revisional jurisdiction under Section 83(9) of the Act.
I am conscious of the fact that once the matter was already remitted back, but as held in above decisions, I cannot re-appreciate the evidence afresh like in appeal with reference to the issues framed and decide the suit, as such, there is no other go except to remit the matter back to the Tribunal for its decision on merits by considering the evidence with reference to the issues framed. Since it is an old matter, time can be fixed for its disposal.
Accordingly, the Civil Revision Petition is allowed by setting aside the judgment and decree under revision and the matter is remanded back to the Tribunal for fresh disposal. The Tribunal is directed to dispose of the suit without being influenced by any of the observations made herein, in accordance with law, within a period of four (4) months from the date of receipt of a copy of this order. There shall be no order as to costs.
The order of status quo dated 11.08.2006 granted earlier in this appeal shall continue till disposal of the suit As a sequel, miscellaneous petitions, if any, pending in the civil revision petition shall stand disposed of.
_________________________ A. RAJASHEKER REDDY, J.
2nd July, 2013