Ajai Kumar Garg & Others v. Vith A. D. J. , Bareilly & Others
2012-11-30
SUDHIR AGARWAL
body2012
DigiLaw.ai
Sudhir Agarwal, J.— 1. Heard Sri Udyan Nandan, learned counsel for the petitioner and perused the record. 2. The writ petition is directed against the judgment and order dated 22.8.1991 passed by Small Cause Court, Bareilly in SCC Suit No.89 of 1986 decreeing the suit and directing for ejectment of petitioner- tenants from accommodation in question and revisional judgment and order dated 29.11.1999 passed by VIIIth Additional District Judge, Bareilly dismissing petitioners' SCC Revision No.45 of 1991. 3. The dispute relates to a residential house i.e. No.406-A/1, Kunwarpur (Shivpuri) Bareilly. Sri Manohar Lal Garg (since deceased and now substituted by his legal heirs) was the tenant in the house in dispute and Sri Harish Chandra Saxena (since deceased and now substituted by his legal heirs) was owner and landlord thereof. A suit for ejectment of tenant was filed by landlord on the ground of material alteration and disfigurement etc. of residential accommodation in question. The suit was contested by the tenant denying any material alteration etc. The Trial Court appointed an Advocate Commissioner to inspect disputed building who submitted report on 11.10.1989 (Annexure 3 to the writ petition). 4. Though aforesaid Advocate Commissioner was appointed on an application filed by tenant himself but since report submitted by Advocate Commissioner went against him, the tenant himself filed objection thereto but the Trial Court rejected objection and approved Commissioner's report and made part of record. The Trial Court has considered the question whether there was any material alteration etc. in respect to property in dispute and has recorded findings against petitioners. Accordingly, it has decreed the suit and said findings have been confirmed by Revisional Court. 5. It has come on record that there were two rooms, roof whereof was demolished and tenant constructed a new room merging both the rooms. The factum about laying down a new lintel has been confirmed by Advocate Commissioner in his report. 6. Learned counsel for the petitioners submitted that even if aforesaid construction made is accepted, that would not constitute to either diminish value of property in dispute or will result in its disfigurement so as to attract any ground under Section 20(2)(c) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972"). He also contended that there is no pleading or evidence about diminishing value or disfigurement and therefore, impugned orders are wholly illegal. 7.
He also contended that there is no pleading or evidence about diminishing value or disfigurement and therefore, impugned orders are wholly illegal. 7. However, I find no force in the submission. It has been specifically pleaded by landlord that entire roof was demolished and thereafter a new lintel has been laid which has also resulted in merging of two rooms into one. The fact that entire roof was demolished and there is an alteration in respect to number of roof so as to create a single room after making a permanent construction is itself sufficient to show that building in dispute has been disfigured and has diminished value unless it is shown otherwise by the tenant. 8. In Ashok Kumar and others Vs. Additional District Judge, Bareilly and others, 1993(1) ARC 181 this Court in para 11 has observed: "11. These are the cases where the partition wall was raised. It was a construction and the question was whether such constructions amounted to diminishing its value or utility or it disfigured the building. They were not the cases where certain constructions were demolished. In a case where the constructions are demolished and there is no justificable reason to demolish any portion of the building, it is for the tenant to establish that it has not diminished or likely to diminish the value, utility of the building or disfigured it. The case where the building or any portion of it is in such a dilapidated condition that the tenant has to remove the same, the position may be different but to demolish any portion of the building for his own purposes shall reduce the utility and the value of property. The value of the shop to the extent of value of the wall removed by the tenant is diminished. Further in case there are two shops and intervening wall is removed, the existence of two shops is reduced into one shop and their utility as two shops are affected." 9. The Court relied on an earlier decision of Hon'ble N.D. Ojha, J. (as His Lordship then was) in Nanak Chand Vs. Om Prakash and others, 1983(2) ARC 135 where the partition wall intervening two shops was removed.
The Court relied on an earlier decision of Hon'ble N.D. Ojha, J. (as His Lordship then was) in Nanak Chand Vs. Om Prakash and others, 1983(2) ARC 135 where the partition wall intervening two shops was removed. This Court held: "When a partition wall was constructed between the two shops belonging to co-owners with the result that respondent No. 1 became the owner and landlord of the shop in dispute exclusively and ceased to have any connection with the adjoining shop there can be no manner of doubt that the removal of the petitioner wall which converted two independent shops into one single unit would come within the purview of structural alteration in the building. Likewise, if the partition wall between the two shops were removed there seems to be no doubt that the value of the shop at any rate, to the extent of the value of the wall removed by the tenant apparently diminished. Thus, it was clearly a case where provisions of Section 20(2)(c) of the Act were attracted." 10. Similar observations came to be made in a case arising out of Section 3(c) of U.P. Temporary Control of Rent and Eviction Act, 1947 in Kishan Lal Vs. Ram Babu, 1970 ALJ 1154 where the Court held: ". . . . . even though by pulling down the partition wall between two shops front of the structure might not have changed, still the structure involved in the case had gone an important change and by demolishing the partition wall the tenant altered two different accommodations and converted them into one accommodation and that amounted to material alteration and the tenant was liable for ejectment on that ground" 11. Looking to the aforesaid authorities as also facts of present case, findings recorded by Court below do not warrant any interference at all as it cannot be said that the same suffers from any manifest illegality etc. so as to justify interference of this Court in writ jurisdiction. 12. Findings of fact have been recorded by the Court below and in absence of anything contrary to record no interference is called for under Article 226/227 of Constitution of India. Under Article 227 of the Constitution, in supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow.
12. Findings of fact have been recorded by the Court below and in absence of anything contrary to record no interference is called for under Article 226/227 of Constitution of India. Under Article 227 of the Constitution, in supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority. 13. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes. 14. In D. N. Banerji Vs. P. R. Mukherjee, AIR 1953 SC 58 the Court said: "Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere." 15. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 : "This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193 , to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors". 16. In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38 the Apex Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution.
16. In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38 the Apex Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice. 17. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895 ; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746 ; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896 ; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576 ; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300 ; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749 ; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47 ). 18. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341 ; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70 ; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171 ; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr., (1999) 2 SCC 143 ). 19. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence.
Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171 ; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr., (1999) 2 SCC 143 ). 19. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521 ). 20. In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82 , the Hon'ble Apex Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution. 21. In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, AIR 2000 SC 931 , the Hon'ble Supreme Court held that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse. 22. In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245 , the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere. 23. In Union of India Vs.
At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere. 23. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472 , the Hon'ble Apex Court held that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below. 24. Similar view has been reiterated in State of Maharashtra Vs. Milind & ors., (2001) 1 SCC 4 ; Extrella Rubber Vs. Dass Estate (P) Ltd., (2001) 8 SCC 97 ; and Omeph Mathai & ors. Vs. M. Abdul Khader, (2002) 1 SCC 319 . 25. In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675 , it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby. 26. In Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, the Court said: "...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary.
The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions." 27. In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329 , the Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650. 28. In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432 , Apex Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction. 29. In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772 , the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. 30. In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244 , Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227. 31. In view of the aforesaid, I find no justification warranting interference with the orders impugned in this writ petition. 32. Dismissed. 33. Interim order, if any, stands vacated. _____________