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2017 DIGILAW 370 (RAJ)

UMESH JHAMB v. APPELLATE RENT TRIBUNAL, BIKANER

2017-02-01

GOPAL KRISHAN VYAS, KAILASH CHANDRA SHARMA

body2017
JUDGMENT : 1. The appellant/tenant has preferred this special appeal under Rule 134 of the Rajasthan High Court Rules, 1952, against the judgment dated 22.11.2016 passed by learned Single Judge in SBCWP No.3901/2015 - Umesh Jhamb v. Appellate Rent Tribunal, Bikaner & Ors., whereby the writ petition preferred by the appellant, assailing the order of learned Appellate Rent Tribunal, Bikaner, was dismissed. 2. In the instant appeal, the appellant has sought following relief(s) : "It is, therefore, most humbly and respectfully prayed that record of the case may kindly be called for and the present Special Appeal may kindly be allowed and the impugned judgment dated 22.11.2016 (Annexure-1) passed in SB CW No.3901/2015 by the Hon'ble Single Judge may kindly be set aside and the reliefs claimed in the writ petition may kindly be allowed in to. Any other order, which this Hon'ble Court deems fit, just and proper in the facts and circumstances of this case, may kindly be passed in favour of the Appellant." 3. Mr. S.S. Ladrecha, learned counsel appearing on behalf of respondent No.3/landlord raised preliminary objection with regard to maintainability of the special appeal against the judgment passed in writ petition filed under Article 227 of the Constitution of India, in view of judgment rendered by this Court (Jaipur Bench) in the case of Hindustan Petroleum Corporation Ltd. v. M/s. Shyam Narain Mehra & Ors. (D.B.S.A.W. No.345/2015) decided on 29.07.2015, in which the Division Bench of this Court after considering number of judgments held that special appeal under Rule 134 (i) of the Rajasthan High Court Rules, 1952 against the judgment or final judgment or final order (not being a Judgment passed in the exercise of appellate Jurisdiction in respect of a decree or order made in the exercise of appellate Jurisdiction by a Court subject to the superintendence of the High Court and not being an order made in the exercise of revisional Jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence or in the exercise of criminal Jurisdiction) of one Judge of the High Court. The Rule is more than clear that where the High Court had exercised the power of superintendence in a writ petition, which is vested in it under Article 227 of the Constitution of India, in a matter arising out of the orders of the Rent Tribunal and Appellate Rent Tribunal in a landlord-tenant dispute, the exercise of power would be under Article 227 and not under Article 226, as in the case of power under Article 226 of the Constitution, the High Court, in view of the pronouncements of the Supreme Court in Shalini Shyam Shetty v. Rajendra Shankar Patil and Jacky v. Tiny Alias Antony and ors. could not have entertained such prayers under Article 226 of the Constitution. 4. Therefore, in view of said judgment, this appeal may kindly be dismissed as not maintainable. 5. Per contra, learned counsel appearing on behalf of petitioner while giving reply to the preliminary objection raised by learned counsel for the respondent No.3, submitted that in view of judgment passed by Division Bench of this Court in DBSAW No.702/2016 - Jabbar Singh & Ors. v. Appellate Rent Tribunal, Jodhpur Metropolitan & Ors. (Decided on 17.10.2016) and the judgment of Hon'ble Apex Court in the case of Radhey Shyam & Ors. v. Chhabi Nath & Ors. reported in AIR 2015 SC P.3269, the instant appeal is maintainable. In the said judgment, the Hon'ble Apex Court held that scope of Article 227 is different from Article 226 and jurisdiction under Article 227 was distinct from the jurisdiction under Article 226 of the Constitution, therefore, the order of Tribunal cannot be treated to be an order of civil court. It is also argued that the order of Tribunal can be challenged under Article 226 of the Constitution, hence, in view of aforesaid judgments, this appeal is maintainable. 6. It is also argued that the order of Tribunal can be challenged under Article 226 of the Constitution, hence, in view of aforesaid judgments, this appeal is maintainable. 6. After hearing the learned counsel for the parties upon maintainability of this special appeal, it emerges from that the judgment impugned dated 22.11.2016 was passed by the learned Single Judge in writ petition filed under Article 226/227 of the Constitution of India, because the matter was firstly decided by the Rent Tribunal, against that an appeal was filed before the Appellate Rent Tribunal, under the provisions of Rajasthan Rent Control Act, 2001, (for brevity, hereinafter referred to as 'Act of 2001') which is special law enacted for the purpose of deciding the disputes in between the landlord and tenant. 7. After decision by the Appellate Rent Tribunal, the only remedy available, is to file a writ petition under Article 227 of the Constitution of India because no further remedy is available under the said Act. 8. In the case of Hindustan Petroleum Corporation Ltd. (DBSAW No.345/2015), which was filed before the Division Bench assailing the judgment of Division Bench, in which the learned Single Judge decided the writ petition under Article 227 of the Constitution of India arising out from landlord tenant dispute decided by the Rent Tribunal and Appellate Rent Tribunal under the Act of 2001. The Division Bench of this Court decided the preliminary objection with regard to maintainability of special appeal and gave following verdict, which reads as infra :- "15. We have considered the submissions and find that there is a clear bar of filing intra-court Special Appeal under Rule 134(i) of the Rules of 1952, against the judgment or final order (not being a Judgment passed in the exercise of appellate Jurisdiction in respect of a decree or order made in the exercise of appellate Jurisdiction by a Court subject to the superintendence of the High Court and not being an order made in the exercise of revisional Jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence or in the exercise of criminal Jurisdiction) of one Judge of the High Court. The Rule is more than clear that where the High Court had exercised the power of superintendence in a writ petition, which is vested in it under Article 227 of the Constitution of India, in a matter arising out of the orders of the Rent Tribunal and Appellate Rent Tribunal in a landlord-tenant dispute, the exercise of power would be under Article 227 and not under Article 226, as in the case of power under Article 226 of the Constitution, the High Court, in view of the pronouncements of the Supreme Court in Shalini Shyam Shetty v. Rajendra Shankar Patil (supra) and Jacky v. Tiny Alias Antony and ors. (supra), could not have entertained such prayers under Article 226 of the Constitution. 16. The legal position, In view of the judgments of the Supreme Court in Shalini Shyam Shetty v. Rajendra Shankar Patil (supra) and Jacky v. Tiny Alias Antony and ors. (supra), is now settled and thus, since the appeal is not a matter of right and can be filed only if there is a statutory provision, the intra-court Special Appeal against the order of learned Single Judge passed in exercise of the power of superintendence under Article 227, is not maintainable, in view of Rule 134(i) of the Rules of 1952, which clearly bars the filing of Special Appeal against the judgment of the High Court rendered in exercise of power under Article 227 of the Constitution. 17. The Special Appeal is held to be not maintainable, and is accordingly dismissed." 9. Upon perusal of the above judgment, it is obvious that in above special appeal, the Division Bench considered the preliminary objection in the light of Rule 134 (i) of the Rules of 1952 and held that special appeal against the judgment passed by learned Single Judge in the dispute arising out from the judgment of Rent Tribunal and Appellate Rent Tribunal is not maintainable. The said judgment dated 29.07.2015 has become final. 10. In the judgment of Division Bench of this Court in the case of DBSAW No.702/2016 - Jabbar Singh & Ors. v. Appellate Rent Tribunal, Jodhpur Metropolitan & Ors. (Decided on 17.10.2016), it is nowhere laid down that special appeal is maintainable, therefore, the said judgment is not applicable in this case. 11. So far as judgment rendered in the case of Radhey Shyam & Ors. v. Chhabi Nath & Ors. v. Appellate Rent Tribunal, Jodhpur Metropolitan & Ors. (Decided on 17.10.2016), it is nowhere laid down that special appeal is maintainable, therefore, the said judgment is not applicable in this case. 11. So far as judgment rendered in the case of Radhey Shyam & Ors. v. Chhabi Nath & Ors. (supra) is concerned, the controversy was altogether different. Neither Rule 134 (i) of the Rules of 1952 was under consideration, nor the matter was decided in the light of Rule 134 (i) of the Rules of 1952, under which special appeal lies. 12. In view of above, following the judgment of this Court in the case of Hindustan Petroleum Corporation Ltd. (supra), the instant special appeal is hereby dismissed.