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2019 DIGILAW 1536 (RAJ)

Arjun Das v. Mandir Shri Sirah Bihari G.

2019-05-16

SANJEEV PRAKASH SHARMA

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JUDGMENT : Sanjeev Prakash Sharma, J. 1. By way of this writ petition, the petitioner-tenant has prayed for setting aside the judgment and order dated 14/12/2018 passed by the learned Appellate Rent Tribunal, Jaipur Metropolitan, Jaipur whereby the learned Appellate Rent Tribunal while dismissing the appeal of the petitioner-tenant has affirmed the order dated 02/09/2016 passed by the learned Rent Tribunal, Jaipur whereby it, while allowing the application filed by the respondent-landlord under Section 9 of the Rent Control Act, 2001, has issued possession certificate as against the petitioner tenant. 2. Brief facts which have culled out from the writ petition are that the petitioner was a tenant by inheritance of the respondent landlord. The premises in question was let out to the petitioner's father late Shri Giriraj Prasad Mali on 01/04/1963 and thereafter on death of Shri Giriraj Prasad Mali, the tenancy devolved on the petitioner's mother Smt. Bhagwani Devi and her two sons namely Murlimanohar and petitioner-Arjun Das. 3. An application was moved by the respondent-landlord before the learned Rent Tribunal seeking eviction of the rented premises under Section 9 of the Act of 2001 on the ground of default in payment of rent and on account of alternative accommodation having been available to the petitioner as mother of the petitioner has purchased part of Plot No. 3, Ganesh Colony at Bas Badanpura, Jaipur and has constructed two floors with assertion that the petitioner and his family members are living in the aforesaid house. Both the brothers and their mother Smt. Bhagwani Devi were impleaded as the non-petitioners in the application moved by the trust of the temple Shri Saras Bihari Ji through the sole trustee. 4. The learned Rent Tribunal vide its order dated 02/09/2016 decided the issue No. 1 in favour of the respondent-landlord holding that there was an alternative accommodation having been made available to the petitioner-tenant which is double storied. With regard to issue No. 2 relating to default, the learned Rent Tribunal decided the same in favour of the petitioner-tenant holding that there was no default committed. With regard to issue No. 2 relating to default, the learned Rent Tribunal decided the same in favour of the petitioner-tenant holding that there was no default committed. As regards the third issue with regard to the premises having been used for commercial purposes instead of residential and therefore, there has been change of use, the learned Rent Tribunal decided the issue in favour of the petitioner-tenant holding that there has been no change of use of the rented premises and that even at the time of the petitioner's father, the work of manufacturing of 'Patasi' at the rented premises was going on. 5. On the basis of having decided the issue No. 1 in favour of the respondent-landlord, the learned Rent Tribunal allowed the application where after appeal was preferred by Murli Manohar, elder brother of the petitioner and the petitioner as well as the respondent-landlord by filing three appeals which came to be decided by the learned Appellate Rent Tribunal vide judgment dated 14/12/2018. All the three appeals were rejected and the order passed by the learned Rent Tribunal dated 02/09/2016 was upheld. Thus, the issue with regard to alternative accommodation has been upheld by the learned Appellate Rent Tribunal. 6. Learned counsel for the petitioner-tenant submits that merely because mother of petitioner-tenant has purchased the plot, it cannot be said that the premises was available with the petitioner. It has come on record that the petitioner's mother Smt. Bhagawani Devi expired on 12/04/2004 and brother of the petitioner had filed separate reply and submitted that Plot No. 3 had been purchased from his own income and was thus his self acquired property and therefore, the brother of the petitioner namely; Murli Manohar had shifted to his own plot and the petitioner was occupying the rented premises since long with his family. Counsel for the petitioner-tenant thus submits that so far as alternative accommodation is concerned, the same cannot be said to be available to the petitioner who is a tenant after death of his mother on the rented premises individually. Learned counsel has relied on Anandi D. Jadhav (Dead) by Lrs. Counsel for the petitioner-tenant thus submits that so far as alternative accommodation is concerned, the same cannot be said to be available to the petitioner who is a tenant after death of his mother on the rented premises individually. Learned counsel has relied on Anandi D. Jadhav (Dead) by Lrs. v. Nirmala Ramchandra Kore & Ors., 2000 (1) R.C.R. (Rent) 442 : (2000) 3 SCC 703 as well as B.R. Mehta v. Atma Devi and Ors., 1987 (2) R.C.R. (Rent) 464 : (1987) 4 SCC 183 to submit that alternative accommodation was not available and the ground as provided under Section 9(j) of the Act of 2001 could not have been pressed into service for passing the decree of eviction. 7. Per-contra, learned counsel for the respondent-landlord while supporting the orders passed by the learned Rent Tribunal as well as the Appellate Rent Tribunal, submits that the findings arrived at by Rent Tribunal and Appellate Rent Tribunal are concurrent findings of facts which need not be interfered. He relies on the judgment passed by the Apex Court in Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, 2011 (1) R.C.R. (Rent) 1 : 2010 (2) WLC (SC) Civil 457. 8. After hearing learned counsel for both the parties, this Court finds that there are concurrent findings arrived at by both i.e. the Rent Tribunal as well as Appellate Rent Tribunal that the alternative accommodation i.e. the house built was on the property in name of mother of the petitioner-tenant and thus both the brothers had equal right on the property and it was a double storied house and it can be said that alternative suitable accommodation was available to the petitioner. 9. Section 9(j) of the Act of 2001 provides as under:- "9. Eviction of tenants:-Notwithstanding, anything contained in any other law or contract but subject to other provisions of this Act, the Rent Tribunal shall not order eviction of tenant unless it is satisfied that,- (a)................. (b)................ (c)................ (d)................ (e)................ (f)................ (g)............... (h)............... (i)................ (j) The tenant has built or acquired vacant possession of or has been allotted suitable premises adequate for his requirement;" 10. As the aforesaid ground requires pure findings of fact, the same would not be interfered by this Court in writ jurisdiction. The law cited by learned counsel for the petitioner in Anandi D. Jadhav (Dead) by Lrs. v. Nirmala Ramchandra Kore & Ors. As the aforesaid ground requires pure findings of fact, the same would not be interfered by this Court in writ jurisdiction. The law cited by learned counsel for the petitioner in Anandi D. Jadhav (Dead) by Lrs. v. Nirmala Ramchandra Kore & Ors. (supra), is distinguishable on facts. In that case, the courts below had given a concurrent finding that respondents No. 2 and 3 had built house for which the first respondent did not contribute any money. However, in the present case, both the courts have not accepted the submission of brother of the petitioner that the house was built from his own source of income alone and held the property as of mother of the both the brothers. 11. In B.R. Mehta v. Atma Devi and Ors. (supra), the facts were again different from the facts of the present case. In that case, a premise had been allotted to the wife by the Government and the court had observed that the premises occupied by the wife cannot be said to be matrimonial home and the respondent does not have statutory and legal right to enjoy the premises allotted to the wife as a Government Servant. 12. In the present case, however, it has come on record that the house is in the name of mother who did not during her lifetime divide the property or be quested it in favour of brother of the petitioner and therefore, the learned Rent Tribunal as well as Appellate Rent Tribunal have reached to the conclusion that the petitioner has a statutory right in the property available to him. Thus on facts, the judgment cited by learned counsel for the petitioner would not apply. 13. In the case of Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil (supra), as relied upon by learned counsel for the respondent-landlord, the scope of Article 226 and 227 of the Constitution of India was considered and the Apex Court laid down following principles:- "62. 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 High Court under these two Articles is also different. The mode of exercise of power by 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 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. (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 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. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India & others, reported in 1997 (2) S.C.T. 423 : (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article 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. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality." 14. In view of above, this Court does not find any reason to interfere with the concurrent findings of fact arrived at by both the courts below. 15. The writ petition is accordingly dismissed. The petitioner shall vacate the premises forthwith.