Rajasthan High Court - Jaipur
Mahendra Kumar Jain vs Appellate Rent Tribunal And Ors on 10 May, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 1953/2010
Mahendra Kumar Jain son of Shri Suresh Chand Khinvsara,
resident of A.M.C. No. 7/10, Sardar Patel Marg, Ajmer.
----Petitioner
Versus
1. Appellate Rent Tribunal, Ajmer
2. Rent Tribunal, Ajmer.
3. Smt. Shail Bhargava wife of Shri Amarnath Bhargava, resident
of 1A/10, Sardar Patel Marg, Ajmer.
4. Smt. Priti Malik wife of Shri Narendra Malik and daughter of
Late Shri Amar Nath Bargava, resident of 1A/10, Sardar Patel
Marg, Ajmer.
5. Puneet Bhargava son of Late Shri Amar Nath Bargava,
resident of 1A/10, Sardar Patel Marg, Ajmer mentally retarded
through his natural guardian (mother) Smt. Shail Bhargava wife
of Shri Amarnath Bhargava, resident of 1A/10, Sardar Patel
Marg, Ajmer.
6. Smt. Pritam Bhargava daughter of Late Shri Amar Nath
Bhargava, resident of 1A/10, Sardar Patel Marg, Ajmer.
----Respondents
For Petitioner(s) : Mr. Ajeet Bhandari, Adv. With
Mr. Jitendra Mishra, Adv.
For Respondent(s) : Mr. Puru Malik, Adv.
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Order reserved on 11.04.2019
Order pronounced on 10.05.2019
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1. The petitioner by way of this writ petition challenges the
judgment dated 21.04.2007 passed by the Rent Tribunal Ajmer
and the judgment dated 21.12.2009 passed by the Rent Appellate
Tribunal whereby the appeal preferred by the petitioner against
the judgment dated 21.04.2007 was upheld.
2. The brief facts which required to be considered are that the
petitioner is a tenant of two shops situate at A.M.C. No.7/10,
Sardar Patel Marg, Ajmer belonging to the landlords-respondent
Nos.3 to 6. The same was taken on rent on 10.10.2001 and a rent
note was executed. An application under Section 9 of the
Rajasthan Rent Control Act, 2001 (hereinafter referred to as 'the
Act of 2001') was filed before the Rent Tribunal alleging that the
petitioner-tenant has not paid rent for the period from 01.07.2005
to 31.10.2005. A registered notice has been sent on 03.11.2005
which was received by him on 05.11.2005, however the rent was
not deposited within a period of 30 days from the date of notice. It
was submitted that the rent was also not deposited in the bank
account which was known to the tenant. A notice was sent by the
tenant on 09.01.2006 which was received by the landlord-
applicant on 14.01.2006 wherein it was mentioned that the
petitioner-tenant had deposited a sum of Rs.44,390/- as the rent
for the month of July to September 2005 @ 7245/- and for the
month of October @7475/- and rent for November and December
2005 @ 7590/- in the account of the landlord on 12.12.2005 vide
cheque and thus there has been a default of non-payment of rent
for more than 4 months after the period of notice and 30 days
thereafter in terms of the provisions of Section 9 of the Act of
2001 and thus therefore liable to be evicted.
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The tenant submitted reply to the application and pointed
out that no bank account has been mentioned in the notice and
thus the mandatory provisions of the Act has not been complied
with as soon as the account number was sent, the rent was
deposited to the bank on the very next date and no default has
been committed by the petitioner-tenant. It was also further
submitted that the notice was not in accordance with the order
passed by the Rent Tribunal in the case No.46/2003 filed by the
landlord under Section 6 of the Act for revision of rent.
The respondent-landlord filed rejoinder to the reply and it
was stated that the bank account number was already informed to
the petitioner-tenant vide its earlier notice dated 29.09.2003
which was given for the purpose of revision of rent and the
Tribunal while receiving rent had also mentioned it in its order
dated 08.12.2003. It was also stated that the petitioner had
deposited the rent in the bank account earlier and a receipt dated
08.01.2004 was produced in evidence.
3. Considering all the aspects the Rent Tribunal vide its order
dated 21.04.2007 proceeded to hold that the petitioner-tenant
had committed default in terms of Section 9(a) of the Act of 2001
and was therefore liable to be evicted. It proceeded to hold that
the account number had already been known to the tenant and
therefore there was no necessity to again mention the account
number in the notice. The Appellate Tribunal confirmed the said
order in appeal preferred by the petitioner holding that there was
no requirement to submit the account number in the notice. The
petitioner thereafter filed the present writ petition and vide order
dated 12.03.2010, the writ petition was admitted and the effect
and operation of the orders passed by the Rent Tribunal as well as
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the Appellate Rent Tribunal was stayed and thus the petitioner
continued to remain in the rented premises.
4. Counsel for the petitioner in the present writ petition has
raised new grounds stating that the tenancy of the premises was
admittedly from the 10th of October 2001 and as the tenancy
starts from 10.10.2001, the notice served upon the petitioner vide
Exhibit-4, was erroneous and contrary to the terms of the tenancy.
Further arguing on the said count, learned counsel has taken this
Court to the notice dated 03.11.2005 wherein the alleged default
is started from 01.07.2005 to 31.10.2005. Learned counsel has
also taken this Court to the order dated 08.12.2003 passed under
Section 6 of the Act of 2001 whereby the Rent Tribunal had
revised the rent to Rs.6,900/- holding the revision to be effected
from 10.10.2001. It is thus his submission that if the tenancy is
treated from 10th of each month, then the notice dated
03.11.2005 cannot be said to be for the period of 4 months
default and was thus contrary to the provisions of Section 9 of the
Act of 2001.
5. Learned counsel also submits that as per the provisions of
the Rajasthan Stamp Act 1998, the rent note was not duly
registered. Learned counsel further submits that in terms of
Section 5 of the Act of 2001, the tenant is required to pay the rent
by 15th day of the month next following the month for which the
rent is payable. The notice as contemplated under II proviso to
Section 9 (a) can only be given demanding arrears of rent when
the period of payment of the same had expired. Accordingly it is
submitted that the notice given prior to the last date of payments
of the rent, it is invalid notice, 30 days would only given for
payment of rent after the notice has been given. Thus for the
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month of October, 2005, the petitioner was entitled to the
payment the of rent uptil 15.11.2005 and the landlord could have
given only notice after 15.11.2005 and the petitioner was entitled
to pay the rent within 30 days after the receipt of the notice. Since
the notice was given in the present case on 03.11.2005, the same
was invalid. It is further submitted that as the petitioner was
entitled to deposit the rent uptil 03.11.2005 a period of 30 days is
counted from 15.11.2005 then the petitioner was entitled to
deposit the rent on or before 15.12.2005 and as the petitioner had
deposited the rent prior to 15.12.2005 i.e. 12.12.2005 the same
will be treated as a valid deposit and the petitioner cannot be said
to have committed the default. Learned counsel further submits
that the courts below have committed a perversity in holding that
it was not necessary for mentioning the bank account under II
Proviso to Section 9 (a) of the Act of 2001 as the bank account
was already intimated to the tenant earlier. It is submitted that
though the tenant had earlier deposited the rent in the bank
account, the respondent No.3 had opted for payment of rent in
cash and the same was personally paid to the respondent in cash.
Once the landlord stopped taking rent personally it was necessary
for the landlord to have intimated the bank account and the
landlord cannot take benefit by creating circumstances as in order
to make a ground for an eviction. During the course of argument,
learned counsel for the petitioner has also argued that the rent
note could not have been relied upon as the same was not
registered and duly stamped.
6. Learned counsel has relied on the judgment of the Supreme
Court in the case of Rattan Lal Sharma Versus Managing
Committee, Dr. Hari Ram (Co-education) Higher Secondary
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School and others, AIR 1993 Supreme Court 2155, to submit
that the plea not specifically raised before the subordinate
Tribunals or Administrative Authorities, can be raised for the first
time in the High Court, if the plea goes to the root of the question
and has also relied on AIR 1992 Supreme Court 1616, Joint
Council of Bus Syndicate and others Vs. Union of India and
Others,, urging that new plea can be raised. Learned counsel
further submits that as the period of rent note had expired, the
petitioner had become a statutory tenant and the terms and
conditions of the rent note would not be applicable on the
petitioner and the provisions of the Act of 2001 shall apply. In
support thereof, he relied on (1996) 1 Supreme Court Cases
243 Kuldeep Singh Versus Ganpat Lal And Anr and 1980 (1)
SCC 185 Biswabani Pvt. Ltd. Vs. Santosh Kumar Dutta.
7. As regards the unregistered lease deed, the petitioner has
relied on 1968 RLW 334, Madan Lal Versus Noor Mohamad,
AIR 1974 Rajasthan 178, Banwarilal Sharma V. Ram
Swaroop, ILR (1954) Raj. 570, Rameshwar and Anr.
(Defendants-Appellants Vs. Rameshwar And Anr.
(Plaintiffs-Respondents), to submit that the unstamped deed is
not admissible. He also relied on (2009) 2 SCC 532, Avinash
Kumar Chauhan Versus Vijay Krishna Mishra, to submit that
the unstamped deed is not admissible for any purpose. It is also
submitted that the objections regarding inadmissibility of
document can be taken up at any stage and relies on 2003 (8)
SCC 752, R.V.E. Venkatachala Gounder Versus Arulmigu
Viswesaraswami & V.P. Temple and others.
8. Per contra, learned counsel appearing for the respondent has
submitted that the only plea in defence taken up by the petitioner,
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both before the Rent Tribunal as well as before the Appellate Rent
Tribunal, was with regard to non furnishing of the account number
in terms of the proviso II to Section 9 of the Act of 2001, no other
plea was taken before both the courts below and it is submitted
that the proceedings in the writ petition are not to be decided as
an appeal. It is further been submitted that the order dated
08.12.2003 has not been correctly mentioned by the petitioner in
this writ petition.
While earlier deciding the revision of rent by the order dated
12.08.2003, the Rent Tribunal had specifically mentioned the bank
account number of the respondent-landlord and thus there was no
requirement to again submit the bank account number to the
petitioner-tenant in the notice however petitioner concealed that
part of order while quoting order dated 08.12.2003. Further, while
answering to the pleas which have been taken up before this
Court, learned counsel submits that while the rent deed was from
10.10.2001, however in the rent deed itself it has been mentioned
that the receipt of rent shall be given on 1st of the month. It is also
submitted that the first receipt of the rent, received by the
respondent specifically mentions of the rent for period from 10 th
October to 30th November. Learned counsel submits that as there
was no such argument raised before the Rent Tribunal or before
the Appellate Rent Tribunal, fact regarding the tenancy having
been shifted from 10th of the month to 1st of the each month was
not a subject matter of contest and is being answered as the same
has been raised for the first time before this Court. Copy of the
first receipt has also been placed on record alongwith the reply to
the present writ petition.
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Learned counsel for the respondent has also produced the
rent note which was duly signed between the parties and submits
that in the rent note itself it was also mentioned that the receipts
for the rent shall be given for advance rent on 1 st date of the
month and thus the rent note also intended to keep the tenancy
from 1st day of the month. Therefore, in the circumstances the
notice sent to the petitioner was in order and cannot be said to be
in any manner contrary to the provisions of the Act of 2001.
Learned counsel has also pointed out from the notice that a
specific mention has been made for demand of payment of rent
for the period from 01.07.2005 to 09.10.2005 and enhanced rent
by 5% from 10.10.2005 in terms of the revision of rent order as
per Section 6 (3).
9. Learned counsel for the respondent has further submitted
that provisions of Section 5 of the Act of 2001 would not
applicable for examining a case of eviction on default in terms of
Section 9, both the provisions are independent of one another and
the period as provided under Section 5 would not be applicable for
the purpose of considering the default in terms of Section 9 of the
Act. It is further submitted that no such argument was neither
taken up by the petitioner before Rent Tribunal or in appeal nor
the same has been taken as a ground in the writ petition thus
petitioner cannot be allowed to raise ground which have not been
taken as a defence before the Tribunals. A new plea of defence not
being part of the written statement/reply cannot be taken up in
the writ proceedings. The provisions of CPC apply for disposal of
the application under the Rent Control Act, 2001.
10. Learned counsel for the respondent has relied on 2017 (1)
RLW 198 (Raj.) Ladoo Lal Jain (deceased) through legal
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heirs Versus Smt. Kailash Bai, to submit that the account
number was not required to be conveyed once the same was
already conveyed and informed to the tenant earlier. Learned
counsel further relies on 2015 (1) DNJ Raj. 408 Jagdish
Kapoor Vs. Mohan Singh (Dead) Through Lrs & Anr., 2005
(1) RLW Raj. 519 Rashid Khan Vs. The Appellate Rent
Tribunal, (District & Sessions Judge), Dholpur & Anr., AIR
1967 SC 1078 Mrs. Manorama S. Masurekar Vs. Mrs.
Dhanlaxmi G. Shah and Another, (1997) 3 SCC 679 Satish
Kumar Vs. Zarif Ahmed & Ors., (2010) 5 SCC 510 Mohd.
Shahnawaz Akhtar & Ors. Vs. First Additional District
Judge, Varanasi & Ors., (2010) 8 SCC 329 Shalini Shyam
Shetty Vs. Rajendra Shankar Patil, (2003) 3 SCC 524
Sadhana Lodh Vs. National Insurance Company Ltd. & Anr.,
(2010) 9 SCC 385 Jai Singh and Ors. Vs. Municipal
Corporation of Delhi, (2001) 8 SCC 97 The Estralla Rubber
Vs. Dass Estate (P) Ltd., (1975) 1 SCC 858 Bathutmal
Raichand Oswal Vs. Laxmibai R. Tarta and 2013 (2) DNJ
(Raj.) 527 Raisa (Smt) Vs. Gulam Rasul & Anr.
11. Before examining the aforesaid submissions raised at bar
from both the sides, it would be appropriate for this Court to
consider the various provisions of the Act of 2001, which reads as
under:-
"Section 5:- Payment and remittance of rent
by tenant:- (1) Unless agreed otherwise every
tenant shall pay the rent by the fifteenth day of the
month next following the month for which the rent is
payable.
(2) Every tenant who makes a payment on account
of rent shall be entitled to obtain a receipt of the
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amount paid duly signed by the landlord or his duly
authorised agent.
(3) A tenant may make payment to the landlord or his
duly authorised agent, by the any of the following
methods:-
by personal payment, by cash, by Cheque or
Bank Draft, or by payment in the bank account a may
be specified by the landlord, or by remitting through
postal money order.
(4) The landlord shall disclose to the tenant his bank
account number and name of the bank in the same
municipal area, in the rent agreement or by a notice
sent to him by registered post, acknowledgement
due.
Section 9:- Eviction of tenants-
Notwithstanding anything contained in any other
law or contract but subject to other provisions of this
Act, Rent Tribunal shall not order eviction of tenant
unless it is satisfied that,-
(a) the tenant has neither paid nor tendered
the amount of rent due from him for four months:
Provided that the ground under this clause shall
not be available to the landlord if he has not disclosed
to the tenant his bank account number and name of
the bank in the same municipal area, in the rent
agreement or by a notice sent to him by registered
post, acknowledgement due:
Provided further that no petition on the ground
under this clause shall be filed unless the landlord has
given a notice tot he tenant by registered post,
acknowledgement due, demanding arrears of rent and
the tenant has not made payment of arrears of rent
within a period of thirty days from the date of service
of notice;
Explanation:- For the purposes of this clause,
the rent shall be deemed to have been tendered when
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the same is remitted through money order to the
landlord by properly addressing the same; or"
12. From the perusal of the aforesaid provisions, it is thus
apparent that the landlord has a right to initiate proceedings for
eviction in terms of Section 9 (a) upon the tenant for not
tendering or depositing the arrears of rent within a period of 30
days from the date of service of notice. However, the provisions of
Section 9 (a) would apply provided the tenant has been disclosed
the bank account number of the landlord and the name of the
bank. The said disclosure must be either in the rent agreement or
by a notice sent to him by a registered post. The 1 st proviso to
Section 9 (a) is independent of the II proviso to Section 9 (a) and
lays down two conditions which are required for maintaining an
application under Section 9(a). While as per the 1 st proviso the
landlord must disclose the bank account number and name of the
bank to the tenant by way of mentioning the same in the rent
agreement or by a notice to him by a registered post while the II
proviso speaks about landlord giving a notice to the tenant
demanding arrears of rent and the tenant has not made payment
of arrears of rent within a period of 30 days from the date of
service of commencing. Thus a notice for payment of arrears of
rent does not require to mention the account number and name of
the bank account if it has already been disclosed to the tenant by
a separate notice or mentioned in the rent agreement.
In view thereof, considering the facts of the case, the Rent
Tribunal vide its order dated 08.12.2003 had mentioned of the
account number where the tenant was required to deposit the rent
as revised by the Tribunal. While it is noticed that the petitioner
has concealed the said part of the order dated 08.12.2003 and not
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completely quoted the order in his writ petition, the respondent
has placed on record the order alongwith his reply and it mention
of the account number of the landlord in HDFC Bank Account
No.2051000013120, where the amount was to be deposited. Thus
the condition of the 1st proviso to Section 9 stood fulfilled when
the notice for revision of rent was given to the petitioner by the
landlord-respondent and the Tribunal mentioned it in order while
receiving the rent.
13. In Ladoo Lan Jain (deceased) through legal heirs Vs.
Smt. Kailash Bai (supra), the Coordinate Bench of this Court
has observed with regard to a similar case as under:-
"8. In so far as the findings recorded by learned
Rent Tribunal and the Appellate Rent Tribunal on
the question of default is concerned, admittedly
when the first notice was served by the
respondent-landlord on the petitioners-tenant on
27.04.2007 conveying her bank account number,
mere fact that default of four months period was
not committed by that time, cannot be a reason
to overlook the bank account number, which stood
conveyed to the petitioners-tenant. Even if
therefore in the subsequent notice when the
default of four months had already committed the
bank account was not conveyed, the requirement
of law contained in Section 9(a) of the Rajasthan
Rent Control Act, 2001, the bank account number
should be conveyed on the ground of default, the
requirement of conveying the bank account
number after default of four months stood
substantially complied with......."
In view of this Court, therefore, the argument which was
taken up as a defence before the Rent Tribunal as well as before
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the Appellate Rent Tribunal is found to be without any basis and
the Rent Tribunal as well as the Appellate Rent Tribunal have
rightly rejected the same.
14. The next question regarding whether there was a default of
more than four months or not is essentially a question of fact and
the findings on the said question of fact have been arrived at by
both the Rent Tribunal as well as by Appellate Rent Tribunal, which
do not therefore require to be interfered with in writ proceedings.
15. It is a settled position of law that the Court in writ
jurisdiction would not interfere with the findings of fact as held by
the Apex Court in (1975) 1 SCC 858 Bathutmal Raichand
Oswal Vs. Laxmibai R. Tarta (supra), the view taken by the
Apex Court in the said case has been consistently followed in AIR
1951 SC 215 Waryam Singh & Anr. Versus Amarnath &
Anr., 254, and also in Sadhana Lodh Vs. National Insurance
Company Ltd. & Anr. (supra), Mohd. Shahnawaz Akhtar &
Ors. Vs. First Additional District Judge, Varanasi & Ors.
(supra), Shalini Shyam Shetty Vs. Rajendra Shankar Patil
(supra).
16. In Shalini Shyam Shetty Vs. Rajendra Shankar Patil (supra),
wherein the Supreme Court formulated the various aspects where
the Court may interfered under Article 227, reads as under:-
"49. On an analysis of the aforesaid decisions of
this Court, the following principles on the
exercise of High Court's jurisdiction under Article
227 of the Constitution may be formulated:
(a) A petition under Article 226 of the
Constitution is different from a petition under
Article 227. The mode of exercise of power by
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High Court under these two Articles is also
different.
(b) In any event, a petition under Article 227
cannot be called a writ petition. The history of
the conferment of writ jurisdiction on High
Courts is substantially different from the history
of conferment of the power of Superintendence
on the High Courts under Article 227 and have
been discussed above.
(c) High Courts cannot, on the drop of a hat, in
exercise of its power of superintendence under
Article 227 of the Constitution, interfere with the
orders of tribunals or Courts inferior to it. Nor
can it, in exercise of this power, act as a Court of
appeal over the orders of Court or tribunal
subordinate to it. In cases where an alternative
statutory mode of redressal has been provided,
that would also operate as a restrain on the
exercise of this power by the High Court.
(d) The parameters of interference by High
Courts in exercise of its power of
superintendence have been repeatedly laid
down by this Court. In this regard the High
Court must be guided by the principles laid
down by the Constitution Bench of this Court in
Waryam Singh (supra) and the principles in
Waryam Singh (supra) have been repeatedly
followed by subsequent Constitution Benches
and various other decisions of this Court.
(e) According to the ratio in Waryam Singh
(supra), followed in subsequent cases, the High
Court in exercise of its jurisdiction of
superintendence can interfere in order only to
keep the tribunals and Courts subordinate to it,
`within the bounds of their authority'.
(f) In order to ensure that law is followed by
such tribunals and Courts by exercising
jurisdiction which is vested in them and by not
declining to exercise the jurisdiction which is
vested in them.
(g) Apart from the situations pointed in (e) and
(f), High Court can interfere in exercise of its
power of superintendence when there has been
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a patent perversity in the orders of tribunals
and Courts subordinate to it or where there has
been a gross and manifest failure of justice or
the basic principles of natural justice have been
flouted.
(h) In exercise of its power of superintendence
High Court cannot interfere to correct mere
errors of law or fact or just because another
view than the one taken by the tribunals or
Courts subordinate to it, is a possible view. In
other words the jurisdiction has to be very
sparingly exercised."
17. The submission of learned counsel for the petitioner that he
can raised a new plea at this stage of writ which have not been
taken up before both the Tribunal and Appellate Forum below is
misconceived. The plea taken up by the petitioner in the writ
petition which ought to have been taken up before as a defence
before the Rent Tribunal or before the Appellate Rent Tribunal but
were not pressed into service, shall be deemed to have been
waived. It is a settled principle of law that a litigant is expected to
take up all his submissions before the Court which examines the
question of fact. The new plea of the tenancy having been
commenced from 10th of the month instead of 1st of the month is a
pure question of fact. While the respondent has satisfied this
Court that the tenancy was to commence from 1 st month and the
1st rent receipt mentions of paying the rent from 10 th October to
30th November and the other receipts placed by the petitioner
himself, shows that the rent was tendered 1st, 3rd, 7th and various
dates i.e. prior to 10th of the month, it also shows that the
pleading was not taken before the Rent Tribunal and the Appellate
Rent Tribunal as such a plea was baseless and frivolous.
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Similarly, the submissions raised with regard to Section 5 of
the Act of 2001, is found to be baseless. Section 5 is a condition
of payment and remittance of rent by a statutory tenant. The
petitioner has not taken up a plea before the Rent Tribunal or
before the Appellate Rent Tribunal that the petitioner was a
statutory tenant. Even otherwise, a condition of rent note, which
has been agreed upon between the parties, would be relevant and
understood to be agreed upon even after the expiry of the said
period of rent deed and a different condition other than the
agreement would not apply as is apparent from Section 5.
18. That apart, a look at Section 9 of the Act reflects that a
landlord is entitled for eviction if the condition is found to be
satisfied as provided under Section 9 (a). In a similar conditions,
the Apex Court in Mrs. Manorama S. Masurekar Vs. Mrs.
Dhanlaxmi G. Shah and Another (supra), held as under:-
"4. If the conditions of sub-s. (3) (a) are
satisfied, the tenant cannot claim any protection
from eviction under the Act. By tendering the
arrears of rent after the expiry of the one
month from the service of the notice under sub-
s. (2), he cannot claim the protection under
sub-s. (1). It is immaterial whether the tender
was made before or after the institution of the
suit. In a case falling within sub-s. (3) (a), the
tenant must be dealt with under the special
provisions of sub-s. (3) (a), and he cannot
claim any protection from eviction under the
general provisions of sub-s. (1)."
In view of the aforesaid, the contentions of the petitioner are
incorrect.
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19. The judgment cited by the learned counsel for the petitioner
Rattan Lal Sharma Versus Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School and others (supra) were on different facts. The Supreme Court in the said case held as under:-
"12. In the facts of the case, there was not only a reasonable apprehension in the mind of the appellant about the bias of one of the members of the enquiry committee, namely, the said Shri Maru Ram but such apprehension became real when the said Shri Maru Ram appeared as a witness against the appellant to prove the said charge and thereafter proceeded with the enquiry proceeding as a member of the enquiry committee to upheld the correctness of his deposition as a Judge. The learned Single Judge considering the aforesaid facts came to the finding that the participation of Shri Maru Ram as a member of the enquiry committee has vitiated the enquiry proceeding because of flagrant violation of the principles of natural justice. Unfortunately, the Division Bench set aside such judgment of the learned Single Judge and dismissed the Writ Petition improperly, to say the least, on a technical ground that plea of bias of Shri Maru Ram and his acting as a Judge of his own case by being a member of the enquiry committee was not specifically taken before the Deputy Commissioner and also before the appellate authority, namely, the Commissioner by the appellant and as such the said plea should not be allowed to be raised in writ proceedings, more so, when the case of prejudice on account of bias could be waived by the person suffering such prejudice. Generally, a point not raised before the Tribunal or administrative authorities may not be allowed to be raised for the first time in the writ proceeding, more (D.B. SAW/853/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (18 of 21) [CW-1953/2010] so when the interference in the writ jurisdiction which is equitable and discretionary is not of course or must as indicated by this Court in A.M. Allison v. State of Assam, AIR 1957 SC 227 particularly when the plea sought to be raised for the first time in a writ proceeding requires investigation of facts. But if the plea though not specifically raised before the subordinate Tribunals or the administrative and quasi-judicial bodies is raised before the High Court in the writ proceeding for the first time and the plea goes to the root of the question and is based on admitted and uncontroverted facts and does not require any further investigation into a question of fact, the High Court is not only justified in entertaining the plea but in the anxiety to do justice which is the paramount consideration of the Court, it is only desirable that a litigant should not be shut out from raising such plea which goes to the root of the list involved. The aforesaid view has been taken by this Court in a number of decisions and a reference may be made to the decisions in A.S. Arunachalam Pillial v. Southern Roadways Ltd. and Anr. 1960 SC 1191; The Cantonment Board, Ambala v. Pyarelal, (1965) 3 SCR 341 : (AIR 1966 SC 108). In our view, the learned Single Judge has very rightly held that the Deputy Commissioner was under an obligation to consider the correctness and propriety of the decision of the Managing Committee based on the report of the enquiry committee which since made available to him, showed on the face of it that Shri Maru Ram was included and retained in the inquiry committee despite objection of the appellant and the said Shri Maru Ram became a witness against the appellant to prove one of the charges. It is really unfortunate that the Division Bench set aside the decision of the learned Single Bench by taking recourse to technicalities that the plea of bias on account of (D.B. SAW/853/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (19 of 21) [CW-1953/2010] inclusion of Shri Maru Ram in the enquiry committee and his giving evidence on behalf of the department had not been specifically taken by the appellant before the Deputy Commissioner and the Commissioner. The Division Bench has also proceeded on the footing that as even apart from Charge No. 12, the Deputy Commissioner has also considered the other charges on consideration of which along with Charge No. 12, the proposed order of dismissal was made, no prejudice has been caused to the appellant. Such view, to say the least, cannot be accepted in the facts and circumstances of the case. The learned Single Judge, in our view, has rightly held that the bias of Shri Maru Ram, one of the members of the enquiry committee had percolated throughout the enquiry proceeding thereby vitiating the principles of natural justice and the findings made by the enquiry committee was the product of a biased and prejudiced mind. The illegality committed in conducting the departmental proceedings has left an indelible stamp of infirmity on the decision of the Managing Committee since affirmed by the Deputy Commissioner and the Commissioner. The observation of S.R. Das, C.J. in Mohd Nooh's case (AIR 1958 SC 86) (ibid) may be referred to in this connection (Para 11):
"Where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent an loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior court or Tribunal or first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner (D.B. SAW/853/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (20 of 21) [CW-1953/2010] which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play, the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or Tribunal of first instance, even if an appeal to another inferior Court or Tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex-facie was a nullity for reasons aforementioned."
However, this Court does not find that the plea taken by the petitioner has any basis nor it can be said that it goes to the root of the case. The case before the Supreme Court in Rattan Lal Sharma was relating bias of the Administrative Authorities in matter relating to departmental enquiry and the applicability of principles of natural justice while the proceedings before the Rent Tribunal and the Appellate Rent Tribunal are treated to be judicial proceedings as provided under Section 21 of the Act of 2001. It is noticed that both the courts have not relied upon the rent note and therefore the oral submissions of learned counsel regarding the rent note being unregistered and unstamped would have no application as the rent note has been only looked into for collateral purposes. This Court is of firm view that in writ petition new plea regarding question of fact cannot be examined is beyond scope of writ jurisdiction.
20. In view of the above, submissions and grounds raised before this Court which were not raised before the courts below are found to be wholly frivolous and baseless. The petitioner has also concealed from the Court the complete order dated 08.12.2003 (D.B. SAW/853/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (21 of 21) [CW-1953/2010] and on that basis alone the writ petition deserves to be dismissed. The writ petition is found to be without merits as above, accordingly, the same is dismissed with cost of Rs.25,000/- to be paid to the respondent.
(SANJEEV PRAKASH SHARMA),J Ramesh Vaishnav /86 (D.B. SAW/853/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) Powered by TCPDF (www.tcpdf.org)