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2016 DIGILAW 1817 (HP)

D. K. Aggarwal v. Pankaj Sharma

2016-08-30

SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. As prayed for, both these petitions were taken up for hearing together and as such are being disposed of by a common judgment. 2. Respondent Pankaj Sharma, hereinafter referred to as the landlord, owns a building, within the municipal limits of Shimla. He filed four separate petitions, seeking ejectment of four different tenants, on the ground that the premises were required to carry out building work at the instance of the Local Authority, being one of the grounds specified under the provisions of Section 14(3)(c) of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the Act). 3. Significantly, in the case of Ansar Azim, one of the tenants, against whom ejectment was sought on similar grounds, petition came to be rejected by this Court, in terms of judgment dated 29.12.2005, passed in CR No. 166 of 2005, titled as Pankaj Sharma v. Ansar Azim. Such findings came to be affirmed, with the dismissal of the Special Leave Petition, by the Hon’ble Supreme Court of India in SLP (Civil) No. 11774/2006, titled as Pankaj Sharma v. Ansar Azim, on 8.1.2008. 4. Similar petition filed on identical grounds, against another tenant Madan Lal Garg also came to be dismissed, which order also came to be accepted by the landlord. 5. However, in relation to the remaining two petitions, so filed against tenants D.K. Aggarwal, succeeded by his legal heirs, and N.C. Sareen, succeeded by his legal heirs, the Rent Controller allowed the petitions for ejectment, in terms of orders dated 2.7.2005, passed in Case No. 36/2 of 2001, titled as Pankaj Sharma v. D.K. Aggarwal; and dated 26.10.2007, passed in Rent Petition No. 26/2 of 2001, titled as Pankaj Sharma v. N.C. Sareen. 6. Findings of fact stand affirmed by the lower Appellate Authority, in terms of the impugned judgments, dated 22.4.2006, passed in Civil Misc. Appeal No. 113-S/14 of 2005, titled as D.K. Aggarwal v. Pankaj Sharma; and dated 27.11.2009, passed in Civil Misc. Appeal No. 73-S/14 of 2007, titled as Vishal Sareen & another v. Pankaj Sharma. Hence, these petitions filed under the provisions of Section 24(5) of the Act. 7. The scope of interference in a petition, filed under sub-section (5) of Section 24 of the Act, is now well settled. Appeal No. 73-S/14 of 2007, titled as Vishal Sareen & another v. Pankaj Sharma. Hence, these petitions filed under the provisions of Section 24(5) of the Act. 7. The scope of interference in a petition, filed under sub-section (5) of Section 24 of the Act, is now well settled. This Court in Civil Revision No. 154 of 2004, titled as Yog Raj Sood v. Smt. Sunita Kaushal & another, decided on 1.6.2016, has observed as under: “28. For the purpose of convenience and ready reference sub-Section (5) of Section 24 of the Act is extracted as under:- “Vesting of Appellate Authority on officers by the State Government. Section 24 … … … … (5) The High Court may, at any time, on the application of the aggrieved party or on its own motion call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceeding and may pass such order in relation thereto as it may deem fit.” [Emphasis supplied] 29. A Full Bench of this court in Vinod alias Raja vs. Smt. Joginder Kaur, 2012 (3) Him. L. R. (FB) 1401 has held the right of appeal to be a statutory right, not to be circumscribed by the delegatee/State Government. 30. The order of the authority attaches finality not to be called in question in any Court of law, except by the High Court in exercise of its revisional jurisdiction which can be either on an application filed by an aggrieved party or suo motu by the Court. The court can call for and examine the records for “satisfying itself” about the “legality and propriety” of the “order” or the “proceedings”. The High Court may pass orders as it may “deem fit”. 31. Now what is the scope of such revisional jurisdiction and the extent of the power which the court can exercise is now well settled by a five-Judge Bench of the apex Court reported in Hindustan Petroleum Corporation Limited vs. Dilbahar Singh, (2014) 9 SCC 78 . The findings can be summarized as under: (i) The term ‘propriety’ would imply something which is legal and proper. The findings can be summarized as under: (i) The term ‘propriety’ would imply something which is legal and proper. (ii) The power of the High Court even though wider than the one provided under Section 115 of the Code of Civil Procedure is not wide enough to that of the appellate Authority. (iii) Such power cannot be exercised as the cloak of an appeal in disguise. (iv) Issues raised in the original proceedings cannot be permitted to be reheard as a appellate Authority. (v) The expression “revision” is meant to convey the idea of much narrower expression than the one expressed by the expression “appeal”. The revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the CPC but certainly it is not wide enough to make the High Court a second court of first appeal. While holding so the Court reiterated the view taken in Dattonpant Gopalvarao Devakate vs. Vithalrao Maruthirao Janagawal, (1975) 2 SCC 246 . (vi). The meaning of the expression “legality and propriety” so explained in Ram Dass vs. Ishwar Chander, (1988) 3 SCC 131 was only to the extent that exercise of the power is not confined to jurisdictional error alone and has to be “according to law”. (vii) Whether or not the finding of fact is according to law or not is required to be seen on the touch stone, as to whether such finding of fact is based on some legal evidence or it suffers from any illegality like misreading of the evidence; overlooking; ignoring the material evidence all together; suffers from perversity; illegality; or such finding has resulted into gross miscarriage of justice. Court clarified that the ratio of Ram Dass (supra) does not exposit that the revisional power conferred upon the High Court is as wide as an appellate power to reappraise or reassess the evidence for coming to a finding contrary to the findings returned by the authority below. (viii) In exercise of its revisional jurisdiction High Court shall not reverse findings of fact merely because on re-appreciation of the evidence it may have a different view thereupon. (ix) The exercise of such power to examine record and facts must be understood in the context of the purpose that such findings are based on firm legal basis and not on a wrong premise of law. (ix) The exercise of such power to examine record and facts must be understood in the context of the purpose that such findings are based on firm legal basis and not on a wrong premise of law. (x) Pure findings of fact are not to be interfered with. Reconsideration of all questions of fact is impermissible as Court cannot function as a Court of appeal. (xi) Even while considering the propriety and legality, high Court cannot re-appreciate the evidence only for the purposes of arriving at a different conclusion. Consideration of the evidence is confined only to adjudge the legality, regularity and propriety of the order. (xii) Incorrect finding of fact must be understood in the context of such findings being perverse, based on no evidence; and misreading of evidence. 32. The Court was dealing with the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, T. N. Buildings (Lease and Rent Control) Act, 1960 and Haryana Urban (Control of Rent and Eviction) Act, 1973. The incongruity in the decisions rendered by the apex Court in Rukmini Amma Saradamma vs. Kallyani Sulochana, (1993) 1 SCC 499 and Ram Dass (supra) was the backdrop in which the Constitution Bench was called upon to decide the scope of the revisional jurisdiction and the expression “legality and propriety” provided in the relevant statues. The essential question being as to whether in exercise of such powers, the revisional authority could re-appreciate the evidence or not. Finally the Court answered the reference by making the following observations:- “43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on re-appreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.” [Emphasis supplied] 8. For the purpose of ready reference, relevant statutory provision, entitling the landlord to seek ejectment of the tenant, at the time of filing of the present petitions, was as under: “14(3)c). For the purpose of ready reference, relevant statutory provision, entitling the landlord to seek ejectment of the tenant, at the time of filing of the present petitions, was as under: “14(3)c). in the case of any building or rented land, if he requires it to carry out any building work at the instance of the Government or local authority or any Improvement Trust under some improvement or development scheme or if it has become unsafe or unfit for human habitation or is required bona fide by him for carrying out repairs which cannot be carried out without the building or rented land being vacated or that the building or rented land is required bona-fide by him for the purpose of building or re-building or making thereto any substantial additions or alterations and that such building or re-building or addition or alteration cannot be carried out without the building or rented land being vacated.” 9. The landlord could have got the building/premises vacated (a) if it was required to carry out building work at the instance of the Government/local authority/improvement trust or development scheme, (b) if it had become unsafe and unfit for human habitation, (c) was required bona-fide for carrying out repairs, which could not be carried out without the building being vacated, (d) the building was required bona-fide for the purpose of building/ rebuilding or making thereto any substantial additions or alterations, which cannot be carried out without the building being vacated. 10. Petitions stand filed only on ground (a) (supra), for the reason that a notice stands issued by the Local Authority for carrying out repairs of the building, which is unsafe for human habitation. The purported notice dated 24.5.1985 stands issued by the Municipal Corporation, in exercise of its power under the provisions of sub-section (2) of Section 272 of the Himachal Pradesh Municipal Corporations Act, 1979. 11. Now significantly, the said notice never came to be proven on record in accordance with law. It merely stands exhibited by Vinod Sood (PW-4) (in Civil Revision No. 63 of 2006), who is categorical that the file pertaining to the issuance of the said notice is neither available nor can be produced. Mere exhibiting of a document would not ipso facto prove contents thereof, for it was incumbent upon the landlord to have either produced the relevant record or examined the person who had issued such notice. Mere exhibiting of a document would not ipso facto prove contents thereof, for it was incumbent upon the landlord to have either produced the relevant record or examined the person who had issued such notice. Hence, factum of contents of such notice stand unestablished. Hence, the ground on which ejectment was sought cannot be said to have been established in accordance with law. 12. That the building is unsafe and unfit for human habitation is neither pleaded nor a proven ground for ejectment. 13. Significantly, in the case of N.C. Sareen, judgment rendered in the case of Ansar Azim (supra) was brought to the notice of the Authority below. Not only certified copy was produced but also the witness testified with regard thereto. And yet the Court below failed to take notice, and without even considering its binding effect, allowed the petition for ejectment. 14. Hence, from the record, it cannot be said that the tenants can be ejected for the reason that repairs are necessarily required to be carried out, on the asking of the municipal authorities, the only ground on which ejectment is sought. By allowing the petitions, with respect to only two tenants, an incongruous and inequitable situation has arisen, more so, when ejectment was sought on the very same ground and with a similar set of evidence. It is here that the Authorities below erred in correctly appreciating the evidence. Hence, the findings recorded are grossly erroneous and perverse, which have resulted into miscarriage of justice. Findings returned by the authorities below cannot be said to be legal, proper or based on settled principles of law. 15. It stands clarified that the petitions stand decided by a common judgment, only on the asking of learned counsel for the parties, in view of the fact that the evidence was identical and the point involved similar. 16. Hence, the present petitions are allowed and the impugned orders dated 2.7.2005, passed in Case No. 36/2 of 2001, titled as Pankaj Sharma v. D.K. Aggarwal; and dated 26.10.2007, passed in Rent Petition No. 26/2 of 2001, titled as Pankaj Sharma v. N.C. Sareen, as affirmed by the lower Appellate Authority vide orders dated 22.4.2006, passed in Civil Misc. Appeal No. 113-S/14 of 2005, titled as D.K. Aggarwal v. Pankaj Sharma; and dated 27.11.2009, passed in Civil Misc. Appeal No. 113-S/14 of 2005, titled as D.K. Aggarwal v. Pankaj Sharma; and dated 27.11.2009, passed in Civil Misc. Appeal No. 73-S/14 of 2007, titled as Vishal Sareen & another v. Pankaj Sharma, respectively, are set aside. Present petitions stand disposed of, so also pending applications, if any.