Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 4957 of 2018 Petitioner :- Brahma Prasad Pandey Respondent :- Prashant Mathur Counsel for Petitioner :- Abhishek Srivastava,Vishal Shukla Counsel for Respondent :- Ajay Kumar Singh,Ashish Kumar Singh,Pramod Jain
Hon'ble Mrs. Sunita Agarwal,J.
Heard Shri Anil Tiwari, learned Advocate appearing on behalf of the petitioner and Shri Pramod Jain, learned counsel for the respondent-landlord.
The present petition has been filed against the orders passed by the Prescribed Authority as also the Appellate Authority in PA case No.14 of 2007 (Prashant Mathur v. Brahma Prasad Pandey).
The said case has been filed under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.13 of 1972) for release of the tenanted accommodation in House No.2-B, Muir Road, Allahabad, comprises of one room, Verandah and common latrine, which is in occupation of the petitioner as tenant. Both the Courts below have recorded categorical finding of fact on the bonafide need of the landlord and the comparative hardship of the parties.
The findings returned by the courts below on bonafide need of the landlord are being challenged in the present petition with the submission by Shri Tiwari, learned counsel for the petitioner, that the intention of the landlord in moving the release application was malafide inasmuch as, the house in question namely House No.2- B, Muir Road, Allahabad comprises of 16 rooms out of which, 8 rooms are in occupation of five tenants. The said fact was duly asserted by the petitioner but there has been no consideration by the Prescribed Authority. No finding, whatsoever, has been returned on the said issue.
Moreover, during the pendency of the rent appeal before the District Judge, the landlord had sold a portion of the house in question (namely House No.2-B, Muir Road, Allahabad) vide sale deed dated 23.3.2018. The said fact was not disclosed by the landlord before the Appellate Authority and has been brought in the present petition to assail the findings recorded by the Appellate Court regarding affirmation of the bonafide need of the landlord, which is to be taken into consideration as a subsequent event.
Submission is that the fact that the landlord himself sold a portion of the house in question vide sale deed dated 23.3.2018 during the pendency of the release proceedings, itself makes it clear that he does not need tenanted accommodation for his personal need. The undertaking given by the landlord before the Prescribed Authority in the affidavit that he would use the tenanted accommodation for his personal need and would not let out the same to any other tenant, therefore, is proved false. The bonafide need of the landlord stands frustrated by the subsequent event of execution of the sale deed.
Learned counsel for the respondent-landlord, on the other hand, submits that the sale deed dated 23.3.2018 (page 153 of the paper book) is executed for sale of a portion of House No.2-B, Muir Road, Allahabad which is an open piece of land. The said sale, therefore, would not hit the need set up by the landlord for the accommodation-in-question for his residential and professional requirement. The tenanted accommodation is needed by the landlord for expansion of his Advocate's chamber as also to use a portion thereof as a guest room for his visiting relatives.
The courts below have recorded a categorical finding after perusal of the material on record that the accommodation possessed by the landlord is not sufficient for his personal need. Submission is that the findings returned by the two courts below cannot be interfered on the fact of execution of the sale deed which is for a portion of the appurtenant land of the house in question.
Considering the submissions of learned counsel for the parties and having perused the record, the findings returned by the courts below on the ground of bonafide need are concurrent. It is settled law that the concurrent findings returned by the two courts below cannot be interfered lightly in exercise of the powers of supervisory powers under Article 227 of the Constitution of India. There is no challenge to the findings on comparative hardship returned by the courts below.
In so far as the submission of learned counsel for the petitioner with regard to 8 rooms being in possession of five tenants is concerned, suffice it to note that the fact that the landlord did not proceed against other tenants seeking their eviction from the tenanted accomodation would be of no relevance, inasmuch as, it is the choice of the landlord to identify a portion of the tenanted accommodation and to proceed for eviction against one of the several tenants. It is not the case of the petitioner that out of 8 rooms in occupation of five tenants, few are available in vacant state.
As far as the second submission of learned counsel for the petitioner of the need set up by the landlord having been frustrated on the ground of execution of the sale deed dated 23.3.2018, it is noteworthy that the said sale deed is for sale of an open piece of land.
It may be clarified that the power under Article 227 of the Constituion is limited inamsuch as it is not appealable but supervisory. It is not justified for the High Court to substitute its view for the opinion of the courts below. It, therefore, cannot interfere in the finding of facts recorded by the courts below unless there is no evidence to support findings or the findings are totally perverse.
In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675, it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby.
In Jasbir Singh Vs. State of Punjab (2006) 8 SCC 294, the Apex Court said:
"...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions."
In a recent decision in the case of Jacky v. Tiny alias Antony and others AIR 2014 SC 1615, the Apex Court has held as under :-
"We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well-recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well- known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well- recognized constraints. It cannot be exercised like a "bull in a china shop", to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice."
Thus, for the above discussion, the challenge made to the orders passed by the Prescribed Authority and the Appellate Authority in allowing the release application under Section 21 (1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.13 of 1972) cannot be entertained.
At this stage, learned counsel for the petitioner submits that the execution proceedings are going on before the Prescribed Authority, the petitioner may be granted reasonable time to vacate the house in question..
On the said submission, it is directed:-
(1) The petitioner shall furnish undertaking in the form of affidavit within a period of one week before the Prescribed Authority that he shall vacate the premises in question on or before 31.8.2018 and shall handover peaceful possession of the accommodation in question to the respondent-landlord.
(2) In case of failure of the petitioner in furnishing the undertaking as directed above or to vacate the accommodation in question within the time given above, it would be open for the respondent- landlord to proceed for execution before the Prescribed Authority.
Subject to the above observations and directions, the writ petition is dismissed.
Order Date :- 27.7.2018 Jyotsana