Ashok Kumar Sindhi vs Satish Chandra Srivastava and Another

Sudhir Agarwal, J.—Writ petition is directed against the order dated 15.4.2011 passed by Rent Control and Eviction Officer, Kanpur Nagar (hereinafter referred to as "R.C.E.O.") declaring vacancy in shop situated at 108/165, Rambagh, Sisa Mau, Kanpur Nagar owned by Sri Satish Chandra Srivastava, respondent No. 1, and the order dated 27.9.2011 rejecting petitioner''s application dated 18.5.2011 for review of earlier order and the revisional order dated 4.8.2012 passed by Addl. District Judge, Court No. 15, Kanpur Nagar dismissing petitioner''s revision. The facts in brief, as borne out from record, are that the aforesaid shop was initially allotted to petitioner, Ashok Kumar Sindhi, vide R.C.E.O.''s order dated 4.1.1993 (Annexure-2 to writ petition). The allotment order also shows at that time address of petitioner at 105/43, Premnagar, Kanpur Nagar. Petitioner commenced his business of Cloths under the name and style "Ashok Suits Palace". Respondent No. 1 in 2007 made a complaint that petitioner has shifted to Chennai. He has his own residential accommodation thereat and doing independent separate business at Chennai. The shop in question is now occupied by one Chander Kumar who is doing business in the name and style of "Divya Collection". Therefore, there is a deemed vacancy u/s 12(1)(b) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972").

The R.C.E.O. directed for inspection of the shop in question. It was inspected by Rent Control Inspector (hereinafter referred to as "R.C.I.") who submitted report on 18.11.2008. He verified the fact that shop is being run in the name and style of "Divya Collection", engaged in business of sale of "fancy shalvar suits and dress" etc. At the time of visit of Inspector, Sri Chander Kumar was there and on enquiry he said that he is servant of Sri Ashok Kumar Sindhi, the petitioner. Subsequently Sri Chander Kumar called Sri Ashok Kumar Sindhi who also endorsed the statement of Sri Chander Kumar. However, the landlord who was also present at the time of inspection informed that Sri Ashok Kumar Sindhi is doing his business at Chennai having shifted thereat in 2007 and presently the shop is being run by Sri Chander Kumar, who is not a family member of Ashok Kumar Sindhi.

The R.C.I. also referred to in his report dated 18.11.2008 that Ashok Kumar Sindhi and Chander Kumar both submitted their pre-written statement through their counsels in the office reiterating their stand as taken earlier. The R.C.I., however, confirmed vacancy at the premises stating that there is violation of Section 13 of Act, 1972 by Sri Ashok Kumar Sindhi and that a vacancy has occurred vide Sections 12(1)(a) and (b) of Act, 1972.

The notices were issued by R.C.E.O. to the parties and thereafter he passed order on 15.4.2011 declaring vacancy in the premises in question vide Sections 12(1)(a) and (b) and Section 13 of Act, 1972. In the order he referred to that petitioner could not show as to when earlier firm in the name of "Ashok Suits Palace" was closed and when new firm under the title "Divya Collection" was established. He also could not show his relation with the new firm. He also failed to show that Sri Chander Kumar was his servant. The R.C.E.O. referred to registration of "M/s. Divya Collection" with Labour Authority, namely, Addl. Labour Commissioner on 5.11.2008 and forwarding of rent for the period 1.10.2007 to 31.1.2008 by Sri Chander Kumar.

Petitioner, thereafter, filed an application for review/revocation of the said order but the same was rejected by R.C.E.O. vide order dated 27.9.2011 upholding his earlier order of declaring vacancy.

Petitioner preferred Rent Revision No. 77 of 2011 against both the aforesaid orders passed by R.C.E.O. but the said revision has been rejected by revisional court vide judgment dated 4.8.2012.

Learned senior counsel for petitioner firstly submitted that revisional court has referred to Section 12(3) of Act, 1972 to hold that after declaration of vacancy the position of revisionist was that of unauthorized occupant and said that Section 12(3) has no application to the present case.

Having gone through the entire revisional order as also the orders passed by R.C.E.O., I find that the vacancy has been deemed under Sections 12(1)(a) and (b). Subsection (4) of Section 12 of Act, 1972 clearly declares that if the tenant has ceased to occupy the premises within the meaning of sub-section (1), for the purposes of Chapter III the premises shall be deemed to be vacant. Apparently the mention of Section 12(3) in the revisional order in the last paragraph is a typing mistake. The entire order has to be read in the light of dispute raised before the revisional court and also in the light of the order of R.C.E.O. It is evident that revisional court considered the question In the light of the facts whether vacancy has occurred under Sections 12(1)(a) and (b) or not. Para 3 of the order clearly shows that there was an argument raised on behalf of petitioner that Section 12(1)(a) and (b) and Section 12(3) of Act. 1972 are not applicable to the premises in question since it is a non-residential accommodation. So far as Section 12(3) is concerned, there is no doubt about it that the same has no application to a non-residential accommodation but so far as Sections 12(1)(a) and (b) is concerned, once the court below has recorded a finding that the premises in question was occupied by a person who is not the family member of the tenant, a deemed vacancy will arise unless the tenant can show that occupation of third person is not independent and tenant''s relationship with the nonresidential accommodation as such has not ceased, in substance, and in effect. For a mere typing mistake by mentioning of Section 12(3) which apparently has no application in the present case the substance borne out from impugned orders cannot be held to be of no consequences.

The learned counsel for petitioner next submitted that it was incumbent upon the landlord to prove that new business was being run by a third person and not by the petitioner.

In my view the submission is thoroughly misconceived. Once it is admitted that petitioner was initially running his business in the name and style of "Ashok Suits Palace", and, admitted also about settling at Chennai, the initial burden of landlord would stood discharged and the onus would shift upon the tenant to prove that the ongoing business at Kanpur is still being run by him particularly when the title and name of firm/business at Kanpur was also changed to "Divya Collection" almost simultaneously. It was, thus, Incumbent upon petitioner to show that the new firm or business was in effect, was his proprietorship or partnership. This fact admittedly could have been in the personal knowledge of petitioner. He could have adduced evidence to prove it instead of a bare statement on affidavit. He admits the change of title but failed to place any document to show that he has any connection with the new firm, namely "Divya Collection". Neither it is shown that the said business was registered as a Proprietor firm of the petitioner nor any other document has been shown to establish petitioner''s connection with M/s. Divya Collection.

The Bank account placed on record on page 66 of paper book shows that account No. 713906011000025 was opened on 10.8.2007 in the name of "M/s. Divya Collection". Again on page 65 it shows that another account with different account No., i.e., 713906011000088 was opened on 26.2.2009. The reason for opening of new account in August. 2007 and then again another new account in February, 2009 is not clear. No attempt has been made to explain its reason. Moreover there is nothing to show that the aforesaid account has anything to do with petitioner. The name of petitioner is admittedly not mentioned in any of the aforesaid account/statements. Copies of income tax returns filed alongwith writ petition also do not show petitioner''s connection with M/s. Divya Collection.

In nutshell it can be said that there is no document on record to suggest or to show petitioner''s relation with the new business M/s. Divya Collection.

On the contrary it is not disputed that rent was sent by money order to landlord for the period of 2007-2008 under the signatures of Sri Chander Kumar. It is in these circumstances, the R.C.E.O. in his order dated 15.4.2011 has recorded a finding that all these facts show that in September, 2007 petitioner handed over possession of shop in question to Sri Chander Kumar, and, with an Intention to hide the aforesaid fact has been depositing rent u/s 30 of Act, 1970. The R.C.E.O. in the above circumstances passed the order under Sections 12(1)(a) and (b) read with Section 13 of Act, 1972. In the revisional order, reference to Section 12(3) if read with reference to R.C.E.O.''s order it would be clear that it is a mistake since it ought to have been Section 13 which is mentioned in R.C.E.O.''s order.

Sri Jafar Naiyer, learned senior advocate appearing for petitioner, could not show that in the aforesaid orders of R.C.E.O. there is any mention of Section 12(3) of Act, 1972. He, however, placed reliance in support of his submissions on the following authorities:

Fazalur Rehman Vs. XIIth Additional District Judge, Kanpur Nagar and others, .

Achal Misra Vs. Rama Shanker Singh and Others, .

Harbans Lal Vs. Jagmohan Saran, .

Smt. Kiran Goel Vs. IInd Additional District Judge and Others, .

Having gone through all the above authorities, I do not find that any of above authorities would help him in any manner, in the facts and circumstances of the case where the petitioner has miserably failed to show his connection with the shop at Kanpur running in the style of Divya Collection since 2007.

This Court finds that concurrent findings of facts have been recorded by both the courts below and nothing has been placed on record to show the said findings perverse. Even in this writ petition residential address of petitioner has been shown differently inasmuch in the affidavit he has given his address as 119/135. Darshanpurwa, Kanpur Nagar, which is the address of petitioner contained in voter''s Identity Card issued to him In March, 2007, i.e., before the date when R.C.E.O. has recorded a finding that possession of premises in question was given to Sri Chander Kumar, i.e., September, 2007. In the vakalatnama filed before this Court, petitioner has given his residential address of the shop itself though it is admitted that in the shop there is no residential arrangement.

In view of the above facts and circumstances and discussions, I do not find any error apparent on the face of record in the orders impugned in this writ petition warranting interference in exercise of writ Jurisdiction under Article 226/227 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.

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.

In D.N. Banerji Vs. P.R. Mukherjee and Others, , 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.

A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and Another Vs. Amarnath and Another, 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, , 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.

In Mohd. Yunus Vs. Mohd. Mustaqim and Others, , 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.

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 etc. Vs. Mahendra Nath Ghughu, ; Rukumanand Bairoliya Vs. The State of Bihar, ; Gujarat Steel Tubes Ltd. and Others Vs. Gujarat Steel Tubes Mazdoor Sabha and Others, ; Laxmikant Revchand Bhojwani and Another Vs. Pratapsing Mohansingh Pardeshi Deceased through his Heirs and Legal Representatives, ; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel and others, ; Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, and Virendra Kashinath Ravat and Another Vs. Vinayak N. Joshi and Others, ).

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: Mrs. Rena Drego Vs. Lalchand Soni, Etc., : Chandra Bhushan (Deceased) by Lrs. Vs. Beni Prasad and Others, ; Smt. Savitrabai Bhausaheb Kevate and Others Vs. Raichand Dhanraj Lunja, and M/s. Savita Chemicals (Pvt.) Ltd. Vs. Dyes and Chemical Workers Union and Another, ).

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 and Others Vs. Himmat Singh Chahar, ).

In Ajaib Singh Vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Another, , 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 Article 226/227 of the Constitution.

In Mohan Amba Prasad Agnihotri and Others Vs. Bhaskar Balwant Aher (D) Through I.Rs., , 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.

In Indian Overseas Bank Vs. I.O.B. Staff Canteen Workers'' Union and Another, , 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 cannot interfere.

In Union of India and Others Vs. Rajendra Prabha and Another, , 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.

Similar view has been reiterated in State of Maharashtra Vs. Milind and Others, ; M/s. Estralla Rubber Vs. Dass Estate (Pvt.) Ltd., and Ouseph Mathai and Others Vs. M. Abdul Khadir, .

In Surya Dev Rai Vs. Ram Chander Rai and Others, , 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, , 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.

In Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, , 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, and Bandaru Satyanarayana Vs. Imandi Anasuya and Others, .

In Abdul Razak (D) through L.Rs. and Others Vs. Mangesh Rajaram Wagle and Others, , 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.

In TGN Kumar Vs. State of Kerala and Others, , 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.

In The Commandant, 22 Battalion, CRPF Srinagar, C/o 56/APO and Others Vs. Surinder Kumar, , Apex Court referring to its earlier decision in Union of India and Others Vs. R.K. Sharma, , 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.

In view of above, I find no justification warranting interference with the orders impugned in this writ petition. Dismissed.