Kerala Sugar Agencies vs Jose and Another

Thomas, J.—This Original Petition has been referred to a Division Bench by Sankaran Nair, J. as the learned Judge doubted the correctness of the decision in Karthiyani v. Venkitachala Iyer (1) 1986 KLT 81. The ratio of the said decision is that a revisional authority u/s 20 of the Kerala Buildings (Lease and Rent Control) Act (for short ''the Rent Control Act'') has no power to collect evidence except for the limited purpose of enabling it to effectively exercise its revisional function.

Facts of this case are simple. Petitioner is the tenant of a building which is on the ground floor of an edifice. Landlord filed an application for the eviction on the ground that he needs the building for his own residential use. Rent Control Court upheld the ground and ordered eviction. But, appellate authority reversed the finding mainly for two reasons. First is that the building (which is used by the tenant as a godown) is a non-residential one situate in a commercial area. Second is that the landlord has no bona fides in claiming it for his residential use since he did not occupy the first floor of the building which fell vacant in 1974, three years before institution of this proceeding. In revision, District Judge issued a commission on the motion of the landlord to ascertain whether the first floor could have been used for residential purpose. Commission report in the District Court was marked as Ext. C-1. Learned District Judge set aside the judgment of the appellate authority and restored the order passed by the Rent Control Court holding that the landlord bona fide needs this building for his residential use. Factors which considerably weighed with the District Judge are that the landlord has been residing in rented buildings and that the building involved in this case is the only building owned by him; and that only slight modifications or additions would be sufficient to make this building residential. District Judge found that there is uncontroverted evidence to show that first floor of the building as such could not be used for residential purpose.

This Original Petition has been filed under Article 227 of the Constitution, in challenge of the aforesaid order of the District Court.

Subsequent to the reference order passed by Sankaran Nair, J. and before we heard arguments in this Original Petition, two other Division Benches of this Court have considered the decision in Karthiyani''s case 1986 KLT 81. In one of them Anandan v. Soumini (2) 1991 (1) KLT 53, Bhat, J. (as he then was) and Ramakrishnan, J. did not approve the ratio in Karthiyani''s case 1986 KLT 81. But the other Division Bench (Varghese Kalliath and Manoharan, JJ.) in Gouthaman v. Lohithakshan (3) 1992 (1) KLT 92 has affirmed the ratio laid down in Karthiyani''s case 1986 KLT 81. However, it has to be pointed out that the earlier Division Bench decision in Anandan''s case 1991 (1) KLT 53 was not referred to in the later decision Gouthaman''s case 1992 (1) KLT 92 presumably because the decision would not have been brought to the notice of their lordships in Gouthaman''s case 1992 (1) KLT 92.

At the first blush, we thought that we should refer this case to a Full Bench in view of apparent divergence of opinions expressed by two different Division Benches of this Court. Shri N. Viswanatha Iyer, Counsel for the Petitioner urged before us that there is no need to refer this case to a larger Bench since the observations made by the Division Bench in Anandan''s case 1991 (1) KLT 53 (cited supra) regarding the ratio in Karthiyani''s case 1986 KLT 81 are only obiter dicta and hence the subsequent Division Bench decision (Gouthaman''s case 1992 (1) KLT 92 holds the field.

The Division Bench in, Anandan''s case 1991 (1) KLT 53 (cited supra) was called upon to consider the question whether revisional authority u/s 20 of the Rent Control Act has jurisdiction to permit amendment of the pleading. When the revision was pending before the District Court in that case an application was moved for incorporating a plea that landlord''s daughter is a dependent on him and that she had no other house of her own separate residence, but the District Judge dismissed the application on the ground that revisional Court has no jurisdiction to permit such amendment. In paragraph 3 of the decision Anandan''s case 1991 (1) KLT 53 the Bench formulated the question for consideration like this:

We are considering only the question of jurisdiction and power of the District Court to allow amendment. We do not propose to go into the merits of the amendment, application which was not considered by the District Court.

It was only incidental to the aforesaid consideration that the Bench proceeded to consided the ratio in Karthiyani''s case 1986 KLT 81 because Counsel for the Respondents in that case referred to the said decision also. Legal position involved in Karthiyani''s case 1986 KLT 81 did not directly arise before the Bench in Anandan''s case 1991 (1) KLT 53. Hence, we have no doubt that the observations in the said decision regarding the ratio in Karthiyani''s case 1986 KLT 81 are nothing but obiter dicta. The Editor''s note in the report appearing in 1991 (1) KLT 53 that "1986 KLT 81-Overruled" must therefore stand corrected especially in view of the fact that the decision in Karthiyani''s case 1986 KLT 81 has been affirmed by the "Division Bench in Gouthaman''s case 1992 (1) KLT 92.

Shri T.L. Anandasivan, advocate for the Respondent/landlord made a plea for reconsideration of the principle laid down in Karthiyani''s case 1986 KLT 81 as affirmed by the Division Bench in Gouthaman''s case 1992 (1) KLT 92. The reasoning in Anandan''s case 1991 (1) KLT 53 is that "either the revisional Court has power to receive additional evidence or it has no power; if it has no power, it cannot be said that additional evidence can be received even for the purpose of scrutiny to enable discharge of the revisional function". Power of revisional authority Under Rent Control Act cannot be cloistered into either of the two watertight compartments. Even if revisional Court has any power to receive evidence, we do not find any difficulty to envisage limitations being imposed on such power. Another reasoning was based on the Supreme Court decision in State of Kerala Vs. K.M. Charia Abdullah and Co., . The Supreme Court in the said decision considered the amplitude of the powers of a revisional authority under the Madras General Sales Tax Act, 1939. u/s 11(1) of the said Sales Tax Act, an appeal is provided to such authority as may be prescribed and Sub-section (4) provided that every order passed in appeal under this section shall, subject to the powers of revision conferred by Section 15, be final. Section 12 of the Sales Tax Act conferred power on the Board of Revenue "to call for and examine the record of any order passed or proceeding recorded by any authority ...for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such proceeding and may pass such order in reference thereto as it thinks fit". The proposition advanced before the Supreme Court was that revisional Court must "in all cases be restricted to the record maintained by the officer subordinate to him and can never make enquiry outside that record". It was in the aforesaid context that Supreme Court made it clear that "power to pass such order as the revising authority thinks fit may, in some cases, include power to make or direct such further enquiry as the Deputy Commissioner may find necessary for rectifying the illegality or impropriety of the order or irregularity in the proceedings". This is precisely the ratio laid down in Karthiyani''s decision (1) 1986 KLT 81 though Cheria Abdulla''s decision (4) State of Kerala Vs. K.M. Charia Abdullah and Co., was not referred to in the judgment. Taking additional evidence or making further records at the revisional stage can be justified only if it serves the purpose of enabling the revisional authority to effectively exercise revisional powers. Except for the aforesaid function revisional forum cannot be converted into evidence collecting forum. In our view, the legal position stated in Karthiyani''s. case 1986 KLT 81 as affirmed by the Division Bench in State of Kerala Vs. K.M. Charia Abdullah and Co., (cited supra) does not require any reconsideration.

Shri T.L. Anantasivan then alternatively contended that though learned District Judge made a reference to Ext. C-1 Commission report that was not the premise on which learned District Judge has interfered with the judgment of the appellate authority. He also contended that the Commission report was referred to by the District Judge only for the limited purpose of exercising revisionals jurisdiction.

Learned District Judge has highlighted two aspects in his order. First is, the version of P.W. 1 (landlord) that first floor of the building was not suitable for residence has not been challenged in cross-examination at all. Second is that the landlord has to resort to buildings taken on rent from Ors. for his residential purpose and the building involved in this case is the only building which the landlord has as his own. We have no doubt that, on the said facts, learned District Judge would have interfered with the order of the appellate authority even without the aid of the Commission report. We do not think that by making a mere reference to Ext. C-1 report, the order of District Judge has been vitiated. In other words, no reasonable man would have come to the conclusion arrived at by the appellate authority on those facts and hence interference with it at the revisional stage would have been justified even without making recourse to the issue of a Commission.

Be that as it may, the question now to be considered is whether we should interfere in exercise of powers under Article 227 of the Constitution. It is not every error that would occasion interference in the exercise of discretionary jurisdiction under Article 227. Unless injustice has resulted in, High Courts will not normally reverse or annul the order, while exercising the powers under Article 226 or 227 of the Constitution. This principle has been well settled. In D.N. Banerji Vs. P.R. Mukherjee and Others, Supreme Court has observed that "unless there was any grave miscarriage of justice or flagrant violation of law" High Courts should refrain from interfering under Article 226 or 227 of the Constitution. Sabhyasaji Mukherjee, J. (as the learned Chief Justice then was) quoted from the decision in Waryam Singh and Another Vs. Amarnath and Another, and observed that power of superintendence conferred by Article 227 is 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". (vide Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram, . His Lordship reiterated the same principle in Venkatlal G. Pittie and Another Vs. Bright Bros. (Pvt.) Ltd., . No injustice has resulted by the revisional order rendered by the District Judge. We hold so.

We are not inclined to interfere with the impugned order. Accordingly we dismiss this Original Petition.