1. Heard Sri M.A. Siddiqui, Advocate, for petitioner and Sri Manish Tandon, Advocate, appearing for respondents 3 and 4 who are landlords of accommodation in question namely House No. 99/11, Beconganj, Kanpur, Kanpur.
2. Respondent-landlords filed application i.e. Rent Case No. 60 of 1995 under Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") seeking release of premises in question on the ground of personal need. The same was allowed by Prescribed Authority by order dated 27.5.1996 and the Rent Appeal of petitioner has been rejected by appellate Authority i.e. 16th Addl. District Judge, Kanpur Nagar vide judgment dated 28.2.1998. Both these orders have been assailed in this writ petition.
3. Learned counsel for petitioner submitted that the respondent-landlords had alternative sufficient accommodation with them and, therefore, the Courts below have committed patent error in considering comparative hardship of landlord to be more pressed qua petitioner. This finding is illegal. It is said that respondent-landlords were already residing in House No. 97/255, Talaq Mohal, Kanpur and, therefore, they had an accommodation available for residence though petitioner has no other accommodation.
4. It is however, evident from the findings recorded by both the Courts below that House No. 97/255 was rented premises and the Courts below have observed that it would be highly unjust to landlord that he should be compelled to reside in a rented accommodation but his own accommodation should not be allowed to be released. This factor was taken into consideration by Courts below while determining comparative hardship, in my view rightly.
5. The further contention that landlords have another accommodation owned by them has been disbelieved by Courts below observing that the tenant placed nothing on record to prove his above contention. Courts below have taken into consideration peculiar facts of the case that families of landlord and tenants, both are sufficiently big and though tenant is occupying a part of premises in question and not entire premises, however, in order to accommodate entire family of landlord, entire accommodation is needed by them.
6. Where landlord himself is residing in a rented accommodation, this fact itself is relevant to prove the genuity of need of accommodation owned by landlord. (See: Jogendra Singh Bajaj (Dr.) and others Vs. 4th Addl. District Judge, Saharanpur and another 2005 (1) ARC 394).
7. While comparing the comparative hardship, point of view of landlord cannot be examined from point of view of of tenant since later obviously would be subjective having his own interest and cannot realise real problem of landlord in such matters. The Courts below have also observed that the entire building being quite old was not in good condition. Regarding availability of accommodation with landlord, tenant's contention has not been found proved by both the Courts below and those findings have not been shown perverse or contrary to record before this Court.
8. Moreover, nothing has been shown to demonstrate that tenant made any case that he will not be able to get any alternative accommodation in case release application is allowed or that he made genuine efforts to get another accommodation and such failure on the part of tenant has been held sufficient to decide question of hardship against the tenant, as is evident from Apex Court's decision in Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada AIR 2003 SC 2713.
9. While considering comparative hardship, there cannot be a rule of thumb to determine the same in a particular manner. It is cumulative effect of all the factors in connection with landlord and tenant, both, which shall determine as to whose hardship is more. Mere fact that a tenant would be ousted from premises by itself cannot be treated a hardship since this is the natural consequence if a decree of eviction is passed or an application for release is allowed. This fact that tenant will be ousted from accommodation in question if release application is allowed or decree of eviction is passed is wholly irrelevant to consider question of hardship and has been held so in Mst. Bega Begum and others Vs. Abudl Ahad Khan (dead) by Lrs. And others (1979) 2 SCR 1. In fact each party has to prove its relative advantages or disadvantages and entire onus cannot be thrown on landlord-plaintiff to prove that lesser disadvantages will be suffered by defendants and that they were remediable. The owner of a property cannot be denied eviction and compelled to live poorly merely to enable the tenant to carry on his living in the accommodation in question at the cost of the landlord. Tenant shall not dictate the terms to landlord as to how and in what circumstances he should live. Here the choice and decision of landlord has to be considered provided it is bona fide and genuine.
10. Learned counsel for petitioner during the course of argument stated that landlords have admitted to own another accommodation but when questioned could not show such admission before this Court.
11. Both the Courts below have recorded concurrent findings of fact and unless these findings are shown perverse or contrary to record resulting in grave injustice to petitioner, in writ jurisdiction under Article 226/227, this Court exercising restricted and narrow jurisdiction would not be justified in interfering with the same.
12. Under Article 227 of the Constitution, in supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority.
13. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.
14. In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 the Court said:
"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere."
15. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 :
"This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors".
16. In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38 the Apex Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice.
17. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47).
18. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr.,(1999) 2 SCC 143).
19. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521).
20. In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82, the Hon'ble Apex Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.
21. In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, AIR 2000 SC 931, the Hon'ble Supreme Court held that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse.
22. In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere.
23. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472, the Hon'ble Apex Court held that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below.
24. Similar view has been reiterated in State of Maharashtra Vs. Milind & ors., (2001) 1 SCC 4; Extrella Rubber Vs. Dass Estate (P) Ltd., (2001) 8 SCC 97; and Omeph Mathai & ors. Vs. M. Abdul Khader, (2002) 1 SCC 319.
25. 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.
26. In Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, the 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."
27. In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329, the Court said that power of interference under Article 227 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. The above authority has been cited and followed in Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650.
28. In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432, Apex Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction.
29. In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772, the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority.
30. In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244, Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227.
31. In view thereof, I find no justification warranting interference with the orders impugned in this writ petition.
32. Dismissed.
Dt. 30.7.2012 PS Hon'ble Sudhir Agarwal, J.
Sole petitioner having died, this is the application seeking substitution of his legal heirs.
Heard.
Allowed.
Let substitution be carried out during the course of the day.
Dt. 30.7.2012 PS-11365/98 (Substitution Application)