Smt. Jagannathidevi Wd/O Sewaram ... vs Mukandilal Ramavatar And 2 Ors.
2005 Latest Caselaw 317 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. The landlady has filed present petition under Articles 226 and 227 of Constitution of India challenging the reversing judgment of Appellate Authority under C.P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as Rent Control Order). She moved application before the House Rent Controller at Akola and sought permission to terminate the tenancy of respondents under Clauses 13(3)(ii)(vi)(viii) and (ix) of said Rent Control Order. The Rent Controller by his order dated 15th October 1990 was pleased to grant permission only under Clauses (ii) and (vi) and rejected permission under the other clauses. This order was challenged by respondents/tenants by filing appeal under Clause 21 of Rent Control Order and the Appellate Authority by its order dated 14th January 1992 was pleased to allow said appeal. Clause (ii) deals with tenants being habitual defaulter while Clause (vi) deals with bona-fide need/requirement of landlord.

2. Relevant allegations in relation to Clause 13(3)(ii) as contained in the application of landlady, in brief are that the premises were given on rent for fixed period from 1/6/1983 till 30/4/1984. The rent for period of 11 months was fixed at Rs. 5500/- and it was to be paid in advance. It is further mentioned that a Civil Suit was filed for getting the premises vacated as at the relevant time the provisions of Rent Control Order were not applicable and said Suit was withdrawn in view of subsequent decision of Bombay High Court striking down the exemption given to the houses constructed on sites lying vacant on or after 1951. It is mentioned that the tenants did not pay the rent regularly and deposited certain amounts in court only after court orders. The schedule showing the manner of payment was also filed along with the application. It was further mentioned that landlady wants to start business of hardware i.e. sale of iron, steel, old and new corrugated sheets, English roof tiles etc. It was mentioned that she has necessary financial arrangement and does not have any other premises vacant for doing said business. It was mentioned that premises of another tenant were also sought for the same purpose and proceedings against them were pending before the Appellate Authority under Rent Control Order. The written statement filed by tenants is that of total denial.

3. Rent controller considered this controversy and found that rent for the year 1984-85 was paid, according to tenant, to one Shri Prakash & that there was dispute between parties in relation to his authority to accept such rent and therefore, gave benefit of doubt to the tenant. Considering the schedule of payment of rent, said Rent Controller concluded that rent paid is irregular and sometimes it was paid in advance while on other occasions it was paid late and on some occasions it was paid to Court or through money order. It found that municipal taxes were also not paid for two years. It thereafter considered Suit before Civil court and found that it was withdrawn and expressed that due to said case rent was not paid in time and then drew a conclusion that tenant was habitual defaulter. Insofar as bonafide need of landlady is concerned, it found that there are no malafides and if the other tenant vacated, landlady would need those premises for godown. It found that though tenant made an attempt to show that landlady was not in a position to do the business, no substantial material was brought on record before it for that purpose. It found that the subsequent event that landlady became owner of liquor shop had got no bearing on the matter.

4. The Appellate Authority made reference to the evidence on record and found that the contract for payment of rent in advance was not at all proved and the person who was examined on behalf of landlady could not prove that tenant was habitual defaulter. In so far as bonafide need is concerned, it found that landlady is old, uneducated and not doing any business personally. It further found that two shop blocks had become available to landlady but the same were not utilised by her for her business and were let out. Appellate Authority therefore, found that need is not genuine. In view of these findings the Appellate Authority allowed the appeal.

5. I heard Advocate B.N. Mohta for the petitioner landlady & Advocates B.G. Lohiya & R.S. Agrawal for the tenants.

6. Advocate Mohta contended that the Appellate Authority erred in interfering with the findings of fact recorded by Rent Controller. It is his argument that the Appellate Authority has not given any reasons while disagreeing with the findings of lower authority and thus, has failed to discharge its obligation as Appellate Authority in accordance with law. He has read out both the judgments in support of his contention. Advocates Lohiya & Agrawal for tenants stated that the Appellate Authority has recorded adequate reasons and, perusal of those reasons reveal non application of mind by the Rent Controller. He contends that the Rent Controller ignored relevant vital material and said error is corrected in appeal. He further states that Writ Petition itself has become infructuous in view of repeal of House Rent Control Order 1949 by Maharashtra Rent Control Act (referred to as Maharashtra Act hereafter). He relies upon provisions of Section 58(2) of Maharashtra Act and states that said provision only saves pending proceedings and its Sub-clause (b) makes it further clear that the provisions of Rent Control Order are to remain in force only for the purposes of decision of pending matters against which appeals will be required to be filed in future. He states that under Clause 21(2) of Rent Control Order, the order of Appellate Authority, subject to review is final. He, therefore, contends that in view of repeal of Rent Control Order, the appellate order has attained finality and as provisions of Rent Control Order are not available now to govern the relationship between parties, the petition has become infructuous and deserves to be dismissed. He has relied upon various judgments in support of his contention. Advocate Mohta has refuted this argument and he states that supervisory/writ jurisdiction available to this Court is not taken away by said repeal and it cannot be taken away by any Act of State Legislature. He also relies upon a judgment of this Court in support.

7. As already stated above the Rent Controller found that Civil suit was pending and it was withdrawn and on account of it, rent might not have been paid within time. If this finding of Rent Controller is considered, it is apparent that the Rent Controller has found a reason for not paying the rent within time. The Appellate Authority has considered the evidence of witness Prabhudayal and has found that in cross examination he admitted that he was not present at the time of agreement. He admitted that the suit shop was in occupation of tenants since 1976 and he did not know anything about their rent payment record for that period or talk that took place between the tenants and Shri Mohankumar ( original owner & son of landlady) at that time. He also admitted that he was not aware whether tenants paid the rent for period 1/5/1984 to 31/3/1985. He also did not know anything about the money orders sent thereafter. He could not say whether rent was not being accepted because of pendency of Civil suit and he was not aware when rent was paid or the period to which it related. It is in view of these admissions that the Appellate Authority has reversed the findings of Rent Controller. Schedule filed before Rent Controller by itself can not prove attitude of tenant & even if presumed to be entirely correct, is grossly insufficient to base any such finding. The admissions given by Prabhudayal are vital and reveal that the landlady could not prove mental habit of tenant to show that he is habitual defaulter. It is not shown to this Court that the discussion and findings are perverse in any manner. It is thus clear that the Rent Controller ignored relevant material and that error has been rectified by the Appellate Authority. I don't find anything on record to enable me to interfere with said findings of Appellate Authority in writ jurisdiction.

8. The Appellate Authority has found that the need expressed by landlady was not genuine. Though one of the reasons given therefor by it that suit premises ad measuring 8 feet x 10 feet cannot be used for such shop is not proper, still the Appellate Authority has found that the guest house business was required to be closed down by landlady for want of assistance of a person to conduct it. The Appellate Authority has further found that witness for landlady admitted that two shops were let out between last four to seven years by the landlady and has, therefore, found that if need was genuine, the said shop blocks could have been occupied by landlady. Again nothing has been pointed out to this Court to hold that these reasons mentioned by Appellate Authority are in any way perverse or erroneous. Though in writ petition a ground in this respect has been taken and it has been alleged that when those premises were let out present petitioner/landlady was not the owner and her son Mohankumar was owner, no such arguments are advanced and no material in support thereof is brought to the notice of this Court. It is therefore, apparent that the findings of Appellate Authority are based upon evidence and as such cannot be interfered with in writ jurisdiction.

9. This brings me to consider the argument of tenant about effect of Maharashtra Rent Control Act on proceedings under Rent Control Order which are pending in the High Court. The contention of learned Counsel for tenants is that the present petition is rendered infructuous. In this respect he has invited attention to the judgment of this Court in the case of Gangdas v. Harshvardhan, reported at 2003(1) Mh.L.J. 203. In this case, High Court has recorded a finding in paragraph 13 that Maharashtra Act is not applicable to open sites and after considering provisions of its Section 58, it has been held that no such proceedings for eviction were pending and therefore, Transfer of Property Act would be applicable. In paragraph 14, a finding has been recorded that as proceedings for fixation of fair rent were pending before Rent Controller on the date of commencement of Maharashtra Act, because of Section 46 of the Maharashtra Act; Rent Control Order would be applicable to those proceedings. Section 58(2) itself vide its Clause (a) provides that all applications, suits other proceedings under the Rent Control Order pending on the date of commencement of Maharashtra Act shall be continued and disposed of in accordance with Rent Control Order as if it has continued in force and Maharashtra Act has not been passed. In view of permission granted by Maharashtra Act to prosecute the proceedings pending under Rent Control Order by Clause (b) of Section 58 provision for appeal is also continued. It is difficult to accept the contention that if the Rent Controller and Appellate Authority is permitted to decide the proceedings, aggrieved party cannot approach High Court in writ jurisdiction. If arguments of tenants are accepted, it would be denying a citizen right to approach this Court. If constitutional powers can be exercised in relation to matters which are still pending before authorities, it is clear that said powers can also be exercised in writ petitions which are already pending before this court. It is to be noticed that the Appellate Authority will be deciding the "lis" between parties as per law and, thereafter, this Court will only be finding out whether said decision is sustainable in its writ jurisdiction. The repeal of Rent Control Order cannot divest this Court of its Constitutional power and the right of citizen cannot be taken away thereby. Learned counsel Shri Mohta for the petitioner-landlady has invited attention to Division Bench ruling of the then Nagpur High Court between Bajranglal Nandlal v. ADC Akola, reported at 1953 N.L.J. in paragraph 8 the Division Bench observed that though Rent Control Order makes the order of Additional Deputy Commissioner conclusive, but said fact cannot derogate from the powers conferred on High Court by Constitution itself which is supreme law of the land. It is further observed that no limitation can be placed upon constitutional powers of High Court by any law made after commencement of the Constitution. In between Suryadev Rai v. Sandhyadevi Rai while considering the effect of amendment to Section 115 of the Code of Civil Procedure upon the jurisdiction of High Court, the Hon'ble Apex Court has observed thus:

"32. The principles deducible, well-settled as they are, have been well summed up and stated by a two-Judges Bench of this Court recently in State through Special Cell, New Delhi v. Navjot Sandhu Alshan Guru and Ors., . This Court held:

(i) the jurisdiction under Article 227 cannot be limited or lettered by any Act of the State Legislature;

(ii) the supervisory jurisdiction is wide and can be used to meet the ends of justice, also to interfere even with interlocutory order;

(iii) the power must be exercised sparingly, only to move subordinate courts and Tribunals within the bounds of their authority to see that they obey the law. The power is not available to be exercised to correct mere errors (whether on the facts or laws) and also cannot be exercised "as the cloak of an appeal in disguise".

10. I find that the arguments sought to be canvassed by tenants are therefore misconceived. Advocate Shri Lohiya for respondents/tenants also pointed out the ruling of this Court reported at 2002 (Supp.) Bom. C.R. 658 between Somchand Sankharia v. Singh Light House and Anr. I find that the arguments advanced are considered at length by this Court in said judgment and I do not find any reason to distinguish it in its application to Vidarbha area. Learned counsel tried to contend that Section 7 of Bombay General Clauses Act, 1904, was applicable in the facts considered in this ruling because Section 3(3) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, expressly made a provision therefor after its expiry. He argues that C.P.& Berar Rent Control Act or Rent Control Order, does not contain any such provision. However, I find that this is not a distinguishing feature at all and there is nothing in Section 58(2) of Maharashtra Act to show that Section 7 of Bombay General Clauses Act, will not be applicable. I also do not find that Section 58 through its various clauses and sub-clauses demonstrate an intention not to save the proceedings which are pending in writ petition at the instance of landlord as authorities below did not grant permission in his favour and, hence, no right accrued in his favour. Such intention can not be even read into Section 58 in view of the ruling of Apex Court mentioned above. In view of detailed discussion in above judgment of Singh Light House (supra), I find that it is not necessary to dwell any further on this argument. Learned advocate for tenants has also invited my attention to the unreported judgment dated 27th July 2004 in Second Appeal No. 44 of 1985 (Nathamal Kothecha v. Bindraj Burad) and also to the order of Hon'ble Apex Court passed in SLP (Civil) 12332/2004 on 7th January 2005. However, in view of the findings recorded above, I find that the said judgment is not relevant here. Issue there was whether provisions of Rent Control Order would continue to apply to open sites after the amendment extending it to such sites was withdrawn by subsequent amendment and this Court has held that it would not apply after the subsequent amendment. Here, what falls for consideration is effect of Section 58(2) of Maharashtra Act in the light of Section 7 of Bombay General Clauses Act on supervisory/writ jurisdiction of this Court. I do not find any substance in the arguments of learned advocate for tenants in this respect and these arguments are therefore rejected.

11. No case is made out for interference in view of the findings recorded by the Appellate Authority. Hence, Writ Petition fails and is dismissed accordingly. Rule discharged. There shall be no orders as to costs.