Research › Search › Judgment

Uttarakhand High Court · body

2023 DIGILAW 177 (UTT)

Rajeev Rastogi v. Harimohan

2023-02-13

VIPIN SANGHI

body2023
JUDGMENT : The present petition, under Article 227 of the Constitution of India, has been preferred by the petitioners to assail the judgment and order dated 06.01.2022 passed by the Court of 7th Additional District Judge, Dehradun in Rent Control Appeal No. 7 of 2020. 2. By the impugned judgment, the said Appeal preferred by the landlords for release of their commercial property, in occupation of the petitioners, has been allowed, and the judgment passed by the learned Prescribed Authority / 1st Civil Judge (Senior Division), Dehradun in P.A. Case No. 22 of 2016 (Shri Harimohan and others vs. Shri Rajeev Rastogi and others) has been set aside. The aforesaid case before the Prescribed Authority was preferred by the landlords on the ground of bona fide needs of Kumari Shikha, daughter of late Mr. Jagmohan, who was 37 years of age and unmarried, on the ground that she desired to open a boutique in the premises in question to be able to earn her livelihood as she was not married, and had to fend for herself to meet her present needs and her needs in her old age. The said case was rejected by the Prescribed Authority while returning findings that there was suppression of facts and the bona fide need had not been made out. The Appellate Court has, however, reversed that judgment on appreciation of the evidence brought on record, and allowed the claim of the landlords. 3. The appellate judgment is a detailed and considered judgment, and the learned Additional District Judge has considered, in detail, all the aspects raised before him. 4. The cloak of Article 227 of the Constitution of India cannot be used to prefer an Appeal before the High Court, which, otherwise, is not maintainable as no statutory right of Appeal is created by the statute to assail an order of the Appellate Authority. 5. The law is well settled with regard to the scope of jurisdiction which a High Court exercises under Article 227 of the Constitution of India. The High Court cannot, at the drop of a hat, in exercise of its powers 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 the court or tribunal subordinate to it. The High Court cannot, at the drop of a hat, in exercise of its powers 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 the court or tribunal subordinate to it. The parameters for interference by High Courts in exercise of their power of superintendence under Article 227 of the Constitution of India have been laid down by the Supreme Court in a catena of decisions, including in the case of Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 . This jurisdiction is exercised by the High Court in order, only to keep tribunals and courts-subordinate to it, within the bounds of their authorities. Jurisdiction under Article 227 of the Constitution of India is exercised to ensure that courts and tribunals subordinate to the High Court exercise jurisdiction, which is vested in them and that they do not exceed their jurisdiction while, also, in cases where courts and tribunals decline to exercise jurisdiction, which is vested in them. The power of superintendence is exercised by the High Court in cases of patent perversity in the orders passed by the subordinate courts and tribunals, or where there has been a gross and manifest failure of justice, or basic principles of natural justice have been flouted. Under this jurisdiction, High Court cannot correct mere errors of law or facts, or act just because another view-than the one taken by the courts or tribunals subordinate to the High Court, appeals to the High Court. This jurisdiction is to be exercised very sparingly. I may take note of the decision of the Supreme Court in Shalini Shyam Shetty vs. Rajendra Shankar Patil (2010) 8 SCC 329 in this regard. 6. In the light of the aforesaid, the submission of the learned Senior Counsel for the petitioner is that the impugned judgment suffers from a patent perversity. He submits that while passing the impugned judgment in Appeal, the findings returned by the Trial Court have not been reversed. 6. In the light of the aforesaid, the submission of the learned Senior Counsel for the petitioner is that the impugned judgment suffers from a patent perversity. He submits that while passing the impugned judgment in Appeal, the findings returned by the Trial Court have not been reversed. He further submits that the Appellate Court has not examined the applicability of Rule 16(2)(a) of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972, which states that while considering an application for release under clause (a) of sub-section (1) of Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (which is applicable to the State of Uttarakhand) in respect of a building let out for purposes of any business, the Prescribed Authority shall also have regard to the fact inter alia that “the greater the period since when the tenant opposite party, or the original tenant whose heir the opposite party is, has been carrying on his business in that building, the less the justification of allowing the application;”. He further submits that the petitioners have been tenants in the premises in question for sixty years, and this aspect has not been considered by the Appellate Authority. He submits that in a similar case while entertaining a petition under Article 227 of the Constitution of India, this Court, in Shri Sukhvinder Singh vs. Baldev Verma Writ Petition (M/S) No. 2297 of 2012, decided on 22nd March, 2013, remanded the case back to the Appellate Authority for consideration of Rule 16(2)(a) of the aforesaid Rules. 7. I have considered the aforesaid submission of the learned Senior Counsel for the petitioners. I do not find any merit therein. First of all, there has to be a patent perversity in the impugned judgment, which is clearly missing in the facts of the present case. Secondly, it is not correct to say that the Appellate Authority has not considered the issue of comparative hardship in the light of Rule 16(2)(a) while passing the impugned judgment. 8. Mr. Kohli submits that the aspect of comparative hardship has been “wrongly considered”. 9. The aforesaid submission of Mr. Kohli is not open for examination by this Court in proceedings under Article 227 of the Constitution of India. 8. Mr. Kohli submits that the aspect of comparative hardship has been “wrongly considered”. 9. The aforesaid submission of Mr. Kohli is not open for examination by this Court in proceedings under Article 227 of the Constitution of India. The Appellate Authority has found the judgment rendered by the Prescribed Authority to be erroneous, and on that count, the same has been set aside. Therefore, it is not correct to say that the findings returned by the Prescribed Authority have not been disturbed. 10. For the aforesaid reasons, I find the petition to be not maintainable. The same is, accordingly, dismissed. 11. At this stage, Mr. Ashish Rastogi-petitioner No. 2, who is present in the Court, seeks time to vacate the premises considering the fact that he and his brother Rajeev Rastogi-petitioner No. 1 have been carrying-on their business in that premises for the last about six decades. He submits that he needs some time to dispose of the stocks lying in the shop and to deliver actual physical vacant and peaceful possession of the same to the respondent. Mr. Piyush Garg, learned counsel for the respondent, fairly does not oppose this prayer, and he has left it to the Court to determine as to what would be reasonable time to be granted to the petitioners to vacate the premises on appropriate terms. 12. Considering the facts of the case, the petitioners are granted one year’s time from today to hand-over peaceful and vacant possession of the premises in question to the respondent. This is subject to the following conditions:- (a) The petitioners shall, on their own, hand-over vacant and peaceful possession of the premises in their occupation to the respondent on or before 13.02.2024, without waiting for the respondent to initiate execution proceedings. (b) The petitioners shall pay use and occupation charges of the premises in their occupation at the rate of Rs. 10,000/- per month from 1st February, 2023 onwards. The petitioner No. 2 does not dispute that the premise is a large commercial property, and he has consented to make payment of the said amount. (c) The petitioners shall neither part with the possession of the premises in their occupation, nor sub-let the same to any other person, during the period of their occupation. (d) The petitioners shall not cause any harm to, or destroy the premises in their occupation. (c) The petitioners shall neither part with the possession of the premises in their occupation, nor sub-let the same to any other person, during the period of their occupation. (d) The petitioners shall not cause any harm to, or destroy the premises in their occupation. (e) All other usual terms and conditions as are generally prescribed shall, also be complied with by the petitioners. (f) Both the petitioners shall file their respective personal undertakings to this Court, undertaking to comply with the aforesaid conditions. 13. The affidavits of undertaking shall be filed before this Court by both the petitioners within one month from today, with a copy to the learned counsel for the respondent. Subject to filing of the same, time is granted to the petitioners to vacant and hand-over peaceful and vacant possession of the premises in question to the respondent uptill 13.02.2024.