1. Heard Sri M.K. Gupta, learned counsel for petitioner and Sri Rishi Chadha, learned counsel for respondents.
2. This writ petition is directed against the order dated 24.9.2011 passed by Small Causes Court/Prescribed Authority, Aligarh in U.P.U.B. Case No. 1 of 2007 accepting Release Application of Smt. Nasim Aijaz, widow of Late Prof. Aijazuddin Ahmad (the respondent-landlady) filed under Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") directing petitioner-tenant to handover vacant possession of house in question to respondent-landlady within one month; and the judgment and order dated 19.3.2012 passed by Addl. District Judge, Court No. 3, Aligarh dismissing petitioner's appeal i.e. U.P.U.B. Appeal No. 12 of 2011 and confirming Trial Court's judgment and order dated 24.9.2011.
3. It is contended that respondent-landlady own a House No. I-760, Palam Vihar, Gurgaon and had no intention to shift and stay at Aligarh in the accommodation in question. Release Application was filed with an intention to sell the house and the Courts below have committed patent error by misconstruing the relevance, impact and consequences of aforesaid facts. It is also contended that comparative hardship lie in favour of petitioner, who has a big family consisting of eight persons including sons and daughters, while the respondent-landlady is getting family pension, residing in her own house and, therefore, the judgments and orders impugned in this writ petition are liable to be set aside.
4. Before considering the above submissions, certain facts in brief, as borne out from record, would help the Court not only to understand the dispute but also for adjudication of this writ petition and in considering whether there is a manifest error of law causing great injustice to petitioner, by Courts below, in passing the impugned judgments warranting interference in writ petition filed under Article 226/227 of Constitution of India. This Court need not to remind itself that scope of judicial review in such matters is extremely limited. 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.
5. 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.
6. 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."
7. 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".
8. 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.
9. 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).
10. 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).
11. 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).
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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."
19. 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.
20. 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.
21. 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.
22. 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.
23. In the context of exposition of law referred to above, I would refer the facts of the case in brief and thereafter consider the submissions advanced by learned counsel for parties.
24. The dispute relates to House No. 4/1356 (Old No. 4/634) situated at Sir Syed Nagar, Civil Lines, Aligarh. Its monthly rent initially was Rs. 1,000/- inclusive of all taxes which was enhanced to Rs. 1,100/- per month, then Rs. 1,200/- per month and then Rs. 1,500/- per month. It was owned by Prof. Aijazuddin Ahmad, husband of respondent-landlady. Prof. Aijazuddin Ahmad initially worked in the Geography Department of Aligarh Muslim University from 1962 to 1972 and thereafter joined Jawahar Lal Nehru University, New Delhi in 1972 and retired therefrom from the position of Professor in 1997. Petitioner, a student of Prof. Ahmad, was let out the disputed building sometimes in 1989-90. Exact date of letting out of house is not mentioned but in the written statement dated 1.7.2008 filed by petitioner-tenant before the Prescribed Authority, he has claimed tenancy for the last more than 18 years which takes it to 1989 or 1990. The monthly rent of the disputed building came to be enhanced to Rs. 1,500/- per month. According to landlady, the monthly rent excluded municipal taxes and it was so enhanced with effect from January 1997. It has also not been disputed that petitioner was/is serving in the Department of Geography, Aligarh Muslim University. Presently he is working as Professor thereat.
25. Prof. Ahmad though attained the age of superannuation in 1992 while serving at Jawahar Lal Nehru University, New Delhi but was granted extension for five years and, therefore, retired in January, 1997.
26. It is said that respondent's husband wanted to settle at Aligarh in his own house and was requesting the petitioner-tenant to vacate the premises but he did not. He also proved to be a bad paymaster. Besides regular rent, house tax, water tax etc. were also not paid by him and instead by filing an application under Section 30 (1) under Act, 1972 vide Misc. Case No. 33 of 1999, he deposited rent in the Court of Civil Judge (Junior Division) Koil, Aligarh, pursuant to Court's order dated 27.4.2000.
27. Since Prof. Ahmad did not get the accommodation in dispute vacated at the time of requirement in 1997, he shifted in a rented accommodation in Gurgaon for sometimes and when he was to vacate the said rented house, another accommodation was arranged by his children in Gurgaon itself where he shifted. Respondent-landlady's husband died in June, 2006 whereafter petitioner-tenant committed default in payment of rent. The landlady sent a notice dated 26.12.2006 demanding arrears of rent and also for his termination of tenancy. Notice was contested by petitioner-tenant by submitting reply dated 22.1.2007.
28. After the death of respondent's husband, her family comprises of herself, two sons and two daughters. One son Naved, aged about 45 years, now is married. One daughter Romi is also married who is presently aged about 36 years and another daughter Sayma (married) is aged about 41 years. Another son was unmarried at that time when respondent filed application under Section 21 (1) (a) of Act, 1972.
29. The respondent-landlady decided to shift to her own house at Aligarh after the death of her husband, filed release application dated 2.1.2007 under Section 21 (1) (a) of Act, 1972 before Prescribed Authority/ Civil Judge (Senior Divisor), Aligarh. Petitioner-tenant contested the same by filing written statement. His case was that landlady has no intention to shift to Aligarh being in advanced age of 65 years, at that time, and residing in her own house at 1-760, Palam Vihar, Gurgaon, Haryana under constant care of his family (sons who are employed and well settled in Delhi Circle), she has a house at Gurgaon, a big one, highly modern, double story having sufficient accommodation for landlady and her family; her husband Prof. Ahmad retired from the post of Senior Professor, Jawahar Lal Nehru University, New Delhi and respondent-landlady is getting handsome pension of Rs. 18,000/- per month at that time (i.e. at the time when written statement was filed i.e. 1.7.2008). This is besides other retiral dues which Prof. Ahmad must have received after his retirement. He also alleged that the respondent-landlady is intending to sell the house in question and such an offer was made vide letter dated 24.11.2003 and such an attempt was made through other independent persons like Prof. Saeed Siddiqui, Mr. Ateeq Rehmani and others. The petitioner has agreed to purchase the house but thereafter Prof. Ahmad (at that time he was alive) backed out. The application for release has been filed only with an intention to get better price of property. It is also alleged that landlady intended to take forcible possession of building in question which compelled petitioner to file Original Suit No. 416 of 2000 in the Court of Civil Judge (Junior Division) which was decreed on 20.8.2004. Petitioner also disputed claim of respondent-landlady for succeeding the building in question pursuant to will dated 12.6.2002, said to have been executed by Prof. Ahmad, contending that no such information was given to him by Prof. Ahmad; in any case, he (petitioner) is not disputing the title or ownership of landlady on the building in question.
30. The Trial Court has recorded a finding that there is a relationship of landlady and tenant between the respondent and petitioner and this issue has not been raised before this Court.
31. Coming to the question of bona fide need, the Prescribed Authority has found that admittedly the landlady owned a house at Palam Vihar, Gurgaon (Haryana) and was residing therein. She got possession of the said building from the developers and builders, namely, M/S Ansal Properties and Industries in June 1996. However, he has disbelieved the allegation of the petitioner that respondent made an attempt to conceal the factum of owning the aforesaid accommodation at Gurgaon and that landlady is residing thereat since long which shows that her claim of bona fide need of building in dispute is ingenuine, dishonest and unreasoned. The Trial Court has found that neither there is any concealment nor the landlady is guilty of any dishonest, ingenuine pleadings or conduct. The landlady's address of Gurgaon was mentioned in her Release Application itself. She had not stated in the Release Application that she own no other residential accommodation except the building in dispute at Aligarh. The correspondence which she or her husband had made with petitioner-tenant also contained address of I-760, Palam Vihar, Gurgaon. During the course of argument also it was stated before the Trial Court that the house at Gurgaon was constructed by respondent-landlady with the help of her sons. Petitioner also knew this fact that landlady resides at Gurgaon since long and, therefore, the question of concealment of this fact does not arise. He (the Trial Court) also found that landlady had fortified her stand that after retirement of Prof. Ahmad, they initially shifted in a rented accommodation and photocopies of two receipt Paper No. 60C/18 which could not be controverted by the petitioner. These findings are concurred by Appellate Court also.
32. Moreover there was another letter Paper No. 33 filed by petitioner-tenant himself, i.e. copy of Prof. Ahmad's letter dated 15.6.1997 wrote to petitioner-tenant, wherein Prof. Ahmad has given his address as I-764, Palam Vihar, Gurgaon which was different from the house owned by respondent-landlady. These facts also could not be disputed by petitioner-tenant.
33. The Trial Court has also referred to an agreement dated 26.10.1990 in which he has stated to vacate the premises as and when he would be required to do so. The petitioner-tenant claim that it was obtained forcibly by the then landlord.
34. There are other evidences also which have been discussed by the Trial Court showing that on several occasions Prof. Ahmad attempted to come, stay and reside in the accommodation in question and also attempted to keep his belongings therein but petitioner-tenant on various grounds including illness of his wife, sought time to vacate premises and got it extended from time to time and ultimately failed to honour his words. Trial Court, therefore recorded a finding that landlord after retirement and occupying own accommodation at Gurgaon was throughout eager, willing and desired honestly to settle at Aligarh, in his own house, but since it was not vacated by petitioner, he could not accomplish his earnest and real requirement. Even this aspect has found affirmance in appeal also. Hence on all these facts, the findings are concurrent.
35. So far as the case set up by the petitioner-tenant about the attempt made by landlord for sale of building in question, the same has been disbelieved by Trial Court. It has recorded a finding that need of landlady is bona fide. In this regard, Trial Court has also believed landlady's contention that her husband was eagerly trying to settle at Aligarh but for want of vacant accommodation in question, he could not do so. After his death, landlady is feeling insecure at Gurgaon since his sons for their own assignments used to stay out of house for long times and there is no other relation of landlady at Gurgaon or Delhi to take her care and, therefore, she wants to shift at Aligarh where other relatives are residing. Here also the Appellate Court has confirmed the approach and view of Trial Court.
36. On the question of comparative hardship also, Trial Court has recorded a finding in favour of landlady. The Appellate court has also confirmed all the findings of Trial Court vide its judgement dated 19.3.2012.
37. Sri M.K. Gupta, Advocate, vehemently contended that once a person is residing in one of the most advanced, modern urban area like Gurgaon and that too for the last more than a decade, it is beyond imagination that such a person would shift to a place like Aligarh. Therefore, neither need of respondent-landlady is genuine nor the question of comparative hardship can be decided in her favour particularly when she has her own house at Gurgaon wherein she is residing for the last more than a decade and, therefore, the impugned orders are liable to be set aside. He contended that landlady, in fact, did not require the accommodation in question but it is only a desire which lacks honest, sincere, natural and real intention. He placed reliance on Apex Court's decision in Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta AIR 1999 SC 2507.
38. Having given my anxious thoughts to all these arguments, I unfortunately find myself unable to subscribe to his (Mr. Gupta's) view. In my view, it is not a fit case warranting interference. The concurrent findings have been recorded by both the Courts below and learned counsel for petitioner has miserably failed to show any error apparent therein showing anything perverse or contrary to record warranting interference.
39. Petitioner himself has filed a copy of letter dated 15.9.2003 (Annexure 9 to writ petition) which he admits was a part of record before the Courts below. This is a letter sent by respondent-landlady and addressed to Vice-Chancellor, Aligarh Muslim University, Aligarh. She sought therein appointment with Vice-Chancellor in connection with the property in dispute. It states that house in question was given in possession of petitioner in February, 1990. The initial permission was given for a brief period since the respondent was planning to shift from Delhi to Aligarh on retirement of her husband in 1992 but when Prof. Ahmad was given extension for five years, shifting in 1992 could not be materialized. Subsequently when he retired, petitioner refused to vacant the house. Hence planning to settle at Aligarh could not be given shape. She also said that despite her best efforts to pursue petitioner-tenant, there was no outcome. She also complained about various litigious actions taken by petitioner-tenant which included of sending his lawyer to meet respondent-landlady at her residence in Gurgaon. She also complained about her illness i.e. serious problems of spinal column, cervical as well as in lumbar region. She requested the Vice-Chancellor to intervene in the matter to protect her from further harassment. She also expressed her desire that petitioner-tenant should either vacate the premises or may purchase the same.
40. This shows the kind of harassment the landlady faced with the attitude of petitioner-tenant and her desperation and frustration. In any case this letter also supports that it is not for the first time the story of settling at Aligarh was set up by the respondent-landlady in release application. On the contrary, this letter shows her intention to settle at Aligarh relates back to more than a decade. For one or the other reason, however, the things could not be concretised. After death of landlady's husband her efforts to settle at Aligarh, in the light of various facts and circumstances as discussed by the Courts below, cannot be said to be a mere desire instead of an honest, sincere, real and genuine requirement and intention.
41. The Apex Court's decision in Shiv Sarup Gupta (supra) relies on its earlier decision in Ram Dass Vs. Ishwar Chander AIR 1988 SC 1422 observing that need of landlord should be genuine and honest, conceived in good faith. The landlord's desire for "possession", however honest it might otherwise be, has inevitably a subjective element in it and that, that desire to become a "requirement" in law must have the objective element of a "need". Therefore, words 'need' and require' both denote a certain degree of want with a thrust within demanding fulfilment. The Court observed that "requirement" is not a "mere desire". The degree of intensity contemplated by 'requires' is much more higher than in "mere desire". A "requirement" in the sense of felt need, is an outcome of a sincere, honest desire, in contra-distinction with a mere pretence or pretext to evict a tenant. Thus a desire when is found to be sincere, honest, real and natural, it satisfies the term "requires" and cease to be a mere pretext or pretence to seek eviction of tenant.
42. Both the Courts below have found the respondent-landlady's desire answering the above requirement and not a mere pretence or pretext. This finding has not been shown to be perverse to this Court also. I, therefore, find no good reason to take a different view.
43. Another decision cited by Sri Gupta, i.e. N. Eswarl Vs. K. Swarajya Lakshmi (2009) 9 SCC 678 to show, when a persons is living elsewhere for a long time and that too in old age, it cannot be said that she/he would be genuinely shifting to another place. The aforesaid judgment I do not find apply to the facts of this case inasmuch therein the landlady was residing for 31 years, and, at the age of 70 years, without there being anyone to look after her, claimed that she intends to settle at Hyderabad which was not found genuine by the Trial Court and the said judgment was confirmed by Appellate Court also but High Court intervened and reversed the judgments of Courts below which has not found favour of Apex Court and it restored the Trial and Appellate Court's judgment.
44. In the present case neither the landlady is residing for such a long time at Gurgaon nor she intends to come to a place where nobody is there to look after her. On the contrary, it is positive case of landlady that she has most of her relatives at Aligarh to look after her, while at Gurgaon her two sons, residing with her, used to stay out for long period in connection with their professional assignments and, therefore, there remains nobody in the house to look after her. Therefore, the above judgment has no application to the facts of this case.
45. In the totality of facts and circumstances, I do not find any reason to interfere with the impugned judgments and orders.
46. Writ petition lacks merit. Dismissed. No costs.
Dt. 23.8.2012 PS