1. Heard Sri P.K.Sinha, learned counsel for the petitioner and Sri A.K.Gupta, learned counsel appearing for all the respondents in Writ Petition No.6307 of 2010 and for respondents No.1/1 to 1/5 in Writ Petition No.13936 of 2010.
2. Both these matters involve common question of fact and law and therefore have been heard together and are being decided by this common judgment.
3. The dispute relates to House No.88/346, Humayun Bagh, Chamanganj, Kanpur Nagar consisting of two rooms, verandah, kitchen, store room and latrine situated on the ground floor of the said building. The petitioner was the sole defendant impleaded in the said application. The application was registered as rent case no.58 of 2007. The said application was allowed by Prescribed Authority vide judgment and order dated 16.5.2009 (Annexure 3 to the writ petition) and the rent appeal no.57 of 2009 filed by the petitioner has been dismissed by appellate court i.e. Additional District Judge, Court No.10, Kanpur vide judgment dated 17.12.2009. The writ petition no.6307 of 2010 (hereinafter referred to as first petition") has arisen out of these two orders passed in the proceedings initiated under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972").
4. The Writ Petition No.13936 of 2010 (hereinafter referred to as "second petition") also relates to the same accommodation. However, the proceedings herein have arisen out of SCC Suit No.1147 of 1981 initiated by Sri Rahmat Ullah Khan (now deceased and substituted by his legal heirs i.e. the respondents). The suit for eviction was filed against Smt. Bismillah Begum, mother of petitioner, who has now been substituted after the death of her mother on the ground of default in payment of rent. The eviction suit was filed under Section 20(2)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") by determining tenancy in respect to the accommodation in question. It was decreed by trial court i.e. Small Cause Court, Kanpur Nagar vide judgment dated 28.4.2008 and its revision has been dismissed by revisional court vide judgment dated 17.12.2009.
5. Sri P.K.Sinha learned counsel for the petitioner contended that once eviction suit was already pending, it was wholly mala fide on the part of respondents to initiate parallel proceedings for release of accommodation in question by filing application under Section 21(1)(a) of Act, 1972 and this itself was sufficient reason for non suiting them in the proceedings under Section 21(1)(a) of Act, 1972.
6. Assailing the judgment arising out of proceedings under Section 20(2)(a) of Act 1972, it is contended that petitioner was not residing in the accommodation in question as tenant but her mother had acquired the status of owner and therefore entire proceedings initiated against petitioner treating her or her mother as tenant, is wholly illegal and without jurisdiction.
7. It is, however, not in dispute that a document termed as "Thekanama" was executed on 8.2.1955 for a period of three years after transferring the title of property in dispute vide sale deed dated 8.2.1955 to the respondents-landlord. Pursuant to the said Thekanama, erstwhile owner Smt. Rahiman @ Raimo, who changed her status as a lessee paid rent to the purchaser. Thereafter, mother of petitioner filed a suit for repurchase of property in dispute seeking relief of specific performance i.e. Suit No.249/58 but it was dismissed on 24.2.1964. The first appeal no.286 of 1964 was also dismissed and the judgment ultimately attained finality after dismissal of second appeal no.2376 of 1969 by this Court vide judgment dated 17.9.1979.
8. The document executed between the parties creating lease rights clearly stipulates payment of rent @ Rs.40 per month. Since rent was not paid by Smt. Bismillah Begum i.e mother of petitioner from 8.11.1955 to 7.8.1980, a notice was issued on 8.8.1980 demanding rent and determining tenancy on account of default in payment of rent. The notice was served on 14.8.1990. Thereafter S.C.C. Suit was filed claiming arrears of rent which were within the period of limitation as also decree for eviction.
9. Learned counsel for the petitioner submitted that execution of Thekanama resulted in cession of relationship of landlord and tenant but the status became that of prospective verdor and vendee hence eviction proceedings under Section 20(2) were wholly without jurisdiction and placed reliance on this Court's decision in Abdul Salam Qureshi Vs. VIIIth Additional District Judge, Meerut & Ors., 2008(1) ARC 517. It is further contended that where there is a dispute of title, Small Cause Court could not have proceeded to decide the matter and ought to have returned the plaint for presentation in regular court.
10. However, I find no force in the submission. It is admitted that Smt. Rahiman @ Raimo executed sale deed on 8.2.1955 in favour of Rahmatullah Khan (father of respondents) as a result whereof title of building in dispute stood transferred to Sri Rahmatullah Khan. There is another document executed on 8.2.1955 called to be a fixed term lease (Thekanama), a copy whereof is on record as Annexure 1 to the writ petition. It clearly mentions that for a period of three years, lessee shall pay monthly rent of Rs.40/- to the lessor. This document confers lease rights upon erstwhile lessee for a period of three years with a clear stipulation that after expiry of period, lessor shall be entitled to recover possession of leased out property. There was another stipulation therein that in case seller pay back consideration within a period of three years and certain expenses and money spent by purchaser towards repair, the seller would be entitled to get the property back. It is this part of the document dated 8.2.1955 (alleged Thekanama) which is said to have conferred a right of repurchase upon the purchaser Smt. Rahiman @ Raimo. This condition could not be observed within three years by erstwhile seller. After death of Smt. Rahiman @ Raimo, her daughter Smt. Bismillah Begum (now deceased) filed suit for specific performance on 7.2.1958 seeking specific performance of the contract of reconvenance dated 8.2.1955. The suit was dismissed and as already said, these proceedings attained finality after dismissal of appeal by Apex Court vide judgment dated 21.01.1998 (copy of judgment is on record as Annexure 2 to the second writ petition). In the meantime the petitioner continued to occupy accommodation in question, though, as alleged by respondents, no rent was paid since November, 1955. The suit for eviction was filed in 1981.
11. One of the contention of learned counsel for the petitioner is that cause of action at the best if had accrued in November, 1955 the suit filed in 1981 is apparently barred by limitation.
12. The contention is thoroughly fallacious. Default in payment of rent every month gives a fresh cause of action. The liability of payment of rent every month is perpetual and therefore in such a case it is a perpetual cause of action. The petitioner's lease rights which were for a fixed term initially vide reconvenance dated 8.2.1955. After expiry of that term the petitioner having continued to hold property in question, becomes a statutory tenant governed by rent statute of 1947 i.e. U.P. Temporary Control of Rent and Eviction Act, 1947 (hereinafter referred to as "Act 1947"). The landlord obviously could not have been evicted by petitioner or her predecessor in interest except in accordance with procedure and grounds available in Act, 1947. Since judicial proceedings on the question of reconveyance were already pending before the Courts, it appears that the then landlord did not find any reason of hurry to initiate ejectment proceedings.
13. After dismissal of second appeal by this Court, in September, 1979 the landlords, in their wisdom, decided to initiate ejectment proceedings and served notice upon petitioner tenant in August, 1980. By no stretch of imagination it can be said that these proceedings are barred by limitation. The reconveyance document had ceased to be effective after expiry of the period within which right of reconveyance was conferred upon petitioner's predecessor in interest and therefore they continued to be statutory tenant after expiry of fixed term lease on the basis of month to month tenancy. The decision in Abdul Salam Qureshi (supra) has no application for the reason that there was no sale deed in existence. The title had transferred. There were two deeds, one agreement of sale of entire house and thereafter a Thekanama. It is in these circumstances the Court has said that status of prospective purchaser became that of vender and vendee which is not the case here. The question of title in Abdul Salam Qureshi (supra) at all was never involved in the matter for the reason that sale deed was admittedly not executed and at no point of time there was any substantial dispute regarding status of the petitioner or her predecessor in interest vis a vis their title. Hence it is a different case. The petitioner had got executed a sale deed and not an agreement to sale.
14. In these circumstances I find no error apparent on the face of record in the impugned judgments warranting interference. The court below have rightly said that it is not the case where the predecessor in interest ought to have been treated to be that of a trespasser or unauthorised occupant. The petitioner continued to occupy premises in question as a statutory tenant by virtue of provision of Act, 1947 and subsequently that of Act, 1972. Hence ejectment proceedings initiated against petitioner are absolutely just, valid, and in accordance with law.
15. Coming to the first petition wherein application under Section 21(1)(a) of Act, 1972 has been allowed, learned counsel for the petitioner could not show any manifest error in the findings recorded by Courts below holding need of respondent-landlord genuine and bona fide and also adjudicating issue of comparative hardship in their favour.
16. 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.
17. 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.
18. In D. N. Banerji Vs. P. R. Mukherjee, AIR 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."
19. 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".
20. 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.
21. 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).
22. 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).
23. 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).
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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."
31. 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.
32. 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.
33. 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.
34. 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.
35. In view thereof, I find no justification warranting interference with the orders impugned in both the writ petitions.
36. Both the writ petitions are accordingly dismissed.
37. Interim order, if any, stands vacated.
Order Date :- 21.11.2012 KA