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2012 DIGILAW 43 (RAJ)

Firm Roop Prakash Enterprizes v. Vidhya

2012-01-03

ALOK SHARMA

body2012
Hon'ble SHARMA, J.—In this petition both under Articles 226 and 227 of the Constitution of India the petitioner has challenged the judgment dated 17th May, 2010 delivered by the Appellate Rent Tribunal, Jaipur partially upholding the order dated 14.2.2008 passed by the Rent Tribunal, Jaipur in Original Application No. 790/2004. The consequence of the judgment dated 17th May, 2010 is that the Original Application of the respondent landlord (hereinafter to be referred to as "the landlord") stands allowed and a certificate of possession issued against the petitioners tenants (hereinafter to be referred to as "the tenant"). 2. Facts of the case are that the landlord filed a Original Application under Section 9 of the Rajasthan Rent Control Act, 2001 (hereinafter to be referred to as "the Act of 2001") against the tenant, inter-alia, on the grounds of reasonable and bona-fide need, non-user, default in payment of monthly rent and arrears of rent. The Rent Tribunal allowed the Original Application and issued a certificate of possession in favour of the landlord on all the four counts. In the appeal laid by the tenant before the Appellate Rent Tribunal it was pointed out that the Rent Tribunal had erred in deciding the issues relating to default in payment of monthly rent and arrears of rent against the tenant in spite of the landlord having abandoned the same grounds before the Rent Tribunal. The Appellate Rent Tribunal set aside the findings of the Rent Tribunal against the tenant on account of default and arrears of rent but on consideration of the matter, sustained the order of the Rent Tribunal on account of reasonable and bona-fide need of the landlord and non-user of the tenanted premises by the tenant. 3. I have heard learned counsel for the petitioner and the respondents and perused the impugned judgment dated 17th May, 2010. 4. On the issue of reasonable and bona-fide need the learned Appellate Rent Tribunal has found that the landlord, a widow was herself living in a tenanted premises along with her `Jethani' (elder brother's wife), her two sons, daughter-in-law and also her own daughter who owing to disagreement with the husband was staying with her mother (landlord). The landlord was paying a rent of Rs. 3500/- per month for availing the tenanted premises. The landlord was paying a rent of Rs. 3500/- per month for availing the tenanted premises. It was also noted by the Appellate Rent Tribunal that the properties sold by the landlord had no relevance to the filing of the eviction petition in the year 2004 and it had come on record in the evidence of the landlord before the Rent Tribunal that the sales were compulsory sales to overcome the financial difficulties owing the death of the landlord's husband in 2002. The evidence of the landlord before the Rent Tribunal was also supported by her daughter Asha Daga who was staying with the landlord owing to her unhappy marriage and estrangement with the husband. The Rent Tribunal found no substance in the case of the tenant that the eviction petition was filed solely with the intent of having the tenant premises vacated not so much for bona fide need but for immediate sale thereof. The Appellate Rent Tribunal from the evidence on record, therefore, came to the conclusion that the Rent Tribunal had committed no error in holding that the tenanted premises were required for reasonable and bona fide need of the landlord. The Appellate Rent Tribunal has also taken into consideration the defence of the tenant that the tenanted premises only being 15x9 feet were not suitable for the residence of eight persons with whom the landlord allegedly stated that she wanted to stay after the premises were vacated. On the basis of the evidence led in the case including the evidence of the witnesses of the non-applicant, the Appellate Rent Tribunal came to the conclusion that there was no occasion to accept the submission of the tenant that the landlord could not utilized the premises for herself and for others. It was also noted that one Shanti Devi had also obtained a certification of possession in respect of another tenanted premises close to the tenanted premises in issue and in this view of the matter, it not could not be possibly argued that all the 8 persons presently living in a tenanted premises were going to share the tenanted room with the landlord, admeasuring 15x9 feet with the landlord. 5. The other ground which has prevailed with the Appellate Rent Tribunal is the ground of non-user of the tenanted premises. 5. The other ground which has prevailed with the Appellate Rent Tribunal is the ground of non-user of the tenanted premises. From the evidence on record, the Appellate Rent Tribunal has upheld the findings of the Rent Tribunal that there was no electricity connection in the tenanted premises for the last 7-8 years and this fact was admitted to by the tenant himself. The Appellate Rent Tribunal has come to a reasonable conclusion that the tenanted premises purportedly used for commercial purposes were quite apparently not being put to any such use where there was no electricity connection, more-so when the tenant had stated that the said premises were, allegedly being utilized inter-alia for manufacturing purposes. The Appellate Rent Tribunal further negatived the case of the tenant that the delay in laying a eviction petition, inter-alia, on the ground of non-user would entail waiver of the said ground. The judgment in the case of Pooranmal vs. Rehmand ( 1992(1) RLR 206 ) relied upon by the tenant to set up a case of waiver on the ground of non-user under the Act of 2001 was also rightly distinguished by the Appellate Rent Tribunal on the ground that the said case turned on its own facts where the landlord had not been able to prove non-user for a period of six months immediately prior to the laying of the eviction petition. It was also considered by the statutory tribunals that a decision by the landlord in an earlier point of time to enter into an agreement of sale for the tenanted premises to the landlord on which much reliance was placed by the tenant was a non requitur as admittedly the agreement to sale was not acted upon and the advanced amount of Rs. 10,000/- forfeited without any demur by the tenant and the tenant thus admittedly continued in occupation of the tenanted premises as a tenant and not otherwise. 6. Mr. Saransh Saini, counsel for the petitioner has vehemently re-agitated the same issues in the present petition as were unsuccessfully agitated before the Appellate Rent Tribunal. 7. Needless to say that the Appellate Rent Tribunal is the final statutory authority for determination of facts. 6. Mr. Saransh Saini, counsel for the petitioner has vehemently re-agitated the same issues in the present petition as were unsuccessfully agitated before the Appellate Rent Tribunal. 7. Needless to say that the Appellate Rent Tribunal is the final statutory authority for determination of facts. It is not for this Court in aproceedings under Articles 226 and 227 of the Constitution of India to allow re-agitation of questions of facts determined by the Appellate Rent Tribunal on the appreciation of evidence in the case. The contours of the exercise of writ jurisdiction under Articles 226 and 227 for the Constitution of India in respect of findings of fact are well settled by the Hon'ble Supreme Court. 8. In Management of Madurantakam Coop. Sugar Mills Ltd. vs. S. Viswanathan, reported in (2005) 3 SCC 197 the Hon'ble Supreme Court has held that where the findings of fact were not perverse nor otherwise based on no evidence or without jurisdiction, no interference by a writ Court with such findings was called for. Further, in the case of Shamshad Ahmed and others vs. Tilakraj Bajaj (deceased) through LRs and others, reported in (2008) 9 SCC 1 , the Hon'ble Supreme Court has held that even though the powers under Articles 226 and 227 of the Constitution are extensive yet a writ Court cannot review re-appreciate or reweigh the evidence upon which the determination of facts has been based by the lower court/tribunal and that the writ Court cannot definitely substitute its own decision for that of the Courts below. 9. In Mahavir Singh vs. Khiyali Ram, reported in (2009) 3 SCC 439 , the Hon'ble Supreme Court has held that a writ Court should not interfere with the findings of fact by the statutory authority and judicial review is only confined to determine as to whether the procedure settled by law has been complied with by the statutory authorities; whether the principles of natural justice have been complied with; whether the Court/tribunal/authority below has taken into consideration relevant factors in the course of adjudication; whether the authority/Court/tribunal has taken into consideration or was swayed by irrelevant factors and whether extraneous consideration vitiated the findings of facts and conclusions on law by the Court/ tribunal below. 10. 10. From the facts on record, I find that the Rent Tribunal as also the Appellate Rent Tribunal have come to fair, just and reasonable conclusions both ion the questions of reasonable and bona-fide need of the respondent landlord for the premises in issue as also on the findings non-user of tenanted premises by the landlord for a period of more than six months immediately prior to the laying of the application for eviction under Section 9 of the Rajasthan Rent Control Act, 2001. 11. Counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court rendered in the case of Pratap Rai Tanwani and another vs. Uttam Chand and another, reported in (2004) 8 SCC 490 to contend that the bona fide requirement of the landlord must have an element of need as opposed to mere desire or wish. Counsel has also relied upon a judgment of the Hon'ble Supreme Court in Kishore Kumar Khaitan and another vs. Praveen Kumar Singh, reported in (2006) 3 SCC 312 to contend that the jurisdiction of this Court under Article 227 of the Constitution of India ought to be invoked where the Court below comes to a finding of fact by asking itself a wrong question or approaches the question in an improper manner and that where the findings are arrived at improperly, taking into consideration irrelevant matters and over-looking relevant matters because such findings cannot be said to be within the jurisdiction of the Court/tribunal below and would thus be amenable under Article 226/227 of the Constitution of India. 12. The judgments relied upon by the counsel for the petitioner, in my considered view, are unexceptionable on the principles enunciated, one relating to the scope of the jurisdiction of this Court under Article 226 of the Constitution of India and the other with regard to the manner of determination of bona fide and reasonable need of the landlord. However, the said judgments are totally inapposite to the facts of the present case. However, the said judgments are totally inapposite to the facts of the present case. Counsel for the petitioner was unable to point out as to what irrelevant considerations had engaged the mind of the Rent Tribunal and the Appellate Rent Tribunal to vitiate the findings of facts nor was the counsel able to point out any relevant aspect of the matter/evidence on record which has been over-looked by the tribunals below to entail a question of jurisdiction requiring correction by this Court in exercise of powers under Articles 226 and 227 of the Constitution of India. Similarly, the counsel for the petitioner could not over come the specific findings of fact by the tribunals below that the landlord herself along with her married daughter estranged with the husband and others were living in a tenanted property. In this view of the matter the reference to the judgments of the Hon'ble Supreme Court by the counsel for the petitioner de hors the facts of the case was mechanical and without any due diligence to the facts of the case to assist this Court in coming to a correct conclusion on real and substantive issues. 13. This Court is dismayed by the manner in which the very salutary jurisdiction of writ Courts which has been conferred by the Constitution to aid and assist the citizens in seeking justice even against multiple findings of facts and conclusions on law is invoked in several cases. Writ proceedings under Article 226 or petition under Article 227 of the Constitution of India are not to be casually invoked as if a matter of right. The writ petition under Articles 226 and 227 of the Constitution of India, particularly against the findings of fact by multiple statutory authorities below should be filed with due care and consideration and not agitated as if by way of a further appeal. Writ jurisdiction against findings of fact should be and has to be very sparingly invoked and has to be stricter than the jurisdiction under Section 100 CPC where even civil second appeals are not maintainable without framing of substantial questions of law. It cannot be visualized that approaching a writ Court invoking its powers under Articles 226 and 227 of the Constitution of India against findings of fact on appreciation of evidence can be more casual and without limitations even as against the provisions of Section 100 CPC. 14. It cannot be visualized that approaching a writ Court invoking its powers under Articles 226 and 227 of the Constitution of India against findings of fact on appreciation of evidence can be more casual and without limitations even as against the provisions of Section 100 CPC. 14. Taking a conspectus of the facts of the case and considering the complete lack of merit of the writ petition, I would dismiss the petition with cost of Rs. 10000/- to be paid by the petitioner tenant to the respondent landlord. 15. Dismissed accordingly. 16. The stay application also stands dismissed.