Mahendra Singh Gehlot Vs. Rajendra Kumar Soni and ors - Court Judgment

-1- SB Civil Writ Petition No.442/2011 Mahendra Singh Gehlot v. Rajendra Kumar Soni & Ors. Date of Order ::

11. h September, 2013 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. K.S.Rathore, for the petitioner. Mr. Gopal Raj Singhvi, for the respondent. .... By judgment dated 24.2.2010 learned Rent Appellate Tribunal, Jodhpur rejected the appeal preferred by the petitioner giving challenge to the judgment dated 3.11.2007 passed by Rent Tribunal, Jodhpur in Original Application No.99/2006. Being aggrieved by the same this petition for writ is preferred. Briefly stated, facts of the case are that the petitioner preferred an Original Application before Rent Tribunal, Jodhpur with assertion that respondent is tenant at the shop situated at Sojati Gate, Jodhpur and is making making payment of rent in a tune of Rs.1155/- per month. The rented premises is required being having reasonable and bonafide necessity as the petitioner desires to have an office for starting property dealing business. It was further stated that the petitioner has also filed a civil suit before the competent court to get his tenant in other shop adjacent to the shop in question evicted and after having both the shops vacant he will establish an office by removing partition wall existing in between the two shops. -2- The petitioner also came forward with reasonable and bonafide necessity with assertion that his son is a Cardiac Surgeon and his daughter-in-law is having Masters Degree in Gynecology and both are acquiring further education at Bangalore. They want to go for further education in their specialities at America and United Kingdom. To meet the expenses he want to earn money by involving himself in the business of sale and purchase of immovable property. In written, the tenant accepted tenancy but denied bonafide necessity of the landlord as claimed for. As per the tenant, the landlord was having no knowledge of the property dealing business and he desires only to get rented premises vacant. On basis of the pleadings the Tribunal framed two issues as follows:- 1.Whether the applicant is having any reasonable and bonafide necessity for the disputed premises for his own business? 2.Relief? The Tribunal after examining the entire evidence rejected the application by arriving at the conclusion that the applicant is having no bonafide necessity of the rented premises. In appeal, the applicant appellant urged that the Tribunal patently erred by not appreciating the evidence available on record relating to bonafide need of the rented premises by the petitioner to run his own business. The Appellate Tribunal after reappreciating the evidence affirmed the finding given by the Tribunal and also arrived -3- at the conclusion that the applicant is having alternative accommodation where he can start his business. While challenging the judgments passed by the Rent Appellate Tribunal and the Rent Tribunal the argument advanced by counsel for the petitioner is that his son Dr. Rajeev and daughter-in-law Dr. Prabha has applied to number of medical institutions in United States of America and Great Britain for their admission to super-speciality and they may join any big institution in the countries aforesaid. They would need money to undertake their studies and as such the petitioner being an elder of the family is required to provide money to them for the purpose and as such he have to indulge himself in some business. The business of property dealing being quite flourishing is an appropriate business to earn money. The Tribunals below failed to appreciate this aspect of the matter. According to the applicant the Tribunal had no authority to examine expertise of the petitioner in the business of property dealing as that is not required necessarily at the time of initiating the business being can be acquired after starting the business concerned. To substantiate this aspect reliance is placed upon the judgment of this Court in Rishi Kumar Govil v. Maqsoodan & Ors., reported in 2007 (3) RLW 2454.It is asserted that as a matter of fact the Tribunal should have taken into consideration the fact that whether the landlord was bonafidely desirous for business or not. This argument too is substantiated by placing reliance upon the judgment of Hon'ble Supreme Court in Raj Kumar Khaitan v. B.B.Jubeda Khatoon & Ors., reported in AIR 199.SC 576.-4- Per contra, the stand of learned counsel for the tenant is that admittedly the applicant is having an alternative accommodation in a very prominent locality named Sardarpura, where he is residing too. The son and daughter-in-law of the applicant are residing at Bangalore and no details are given about the money required by them to undertake further studies in super-specialities. It is asserted that as per Section 9(i) of the Rajasthan Rent Control Act, 2001 the court is required to examine bonafide necessity of the landlord to have rented premises and that in no manner can be reduced only to necessity. In the instant case both the Tribunals below after examining the entire evidence available on record arrived at the conclusion that the petitioner utterly failed to establish his bonafide need of the rented premises. As such mentioning of simple necessity or need is immaterial. Heard counsel for the parties, considered the rival contentions and examined the record available. The case of the petitioner is for eviction of the tenant from rented premises on having bonafide necessity to run a business of property dealing to earn money to assist his children, who desire to undertake studies in super- specialities. Learned Tribunal while not accepting the bonafide necessity of the landlord to have rented premises considered several aspects including (1)availability of adequate alternative accommodation; (2)no adequate material placed on record to establish need of money to assist -5- children; and (3)the genuineness of the bonafide need shown. It is not at all in dispute that the petitioner is having an alternative premises in his exclusive possession situated at equally important location. The size of plot available at alternative place is 325 square yards. No adequate reason is given by the petitioner as to how that premises is not suitable for his use. True it is, that what business is required to be acquired and which is the place appropriate for such business, are the factors absolutely within the domain of the person who is claiming his bonafide necessity. However, the adjudicating forum is required to examine truth of the bonafide necessity and while doing so it can very well examine the issues relating to suitability of the place, availability of alternative accommodation. The Tribunal also examined the expertise of the petitioner applicant in the business of the property dealing. As a matter of fact from perusal of the orders impugned it appears that the Tribunals noticed primary knowledge of the business in which the petitioner want to involve himself but he failed to satisfy that. The Tribunals found that the petitioner was not having even primary knowledge of the business of property dealing. The petitioner failed to convey even primary knowledge of the business concern. These factors are required to be examined to assess reasonability and bonafideness as claimed. It is also relevant to notice that no details are given relating to the assistance sought for higher studies of the children of the petitioner applicant. -6- In the case in hand, the Tribunals below found that the petitioner applicant who is in the age of about 64 years was having no fundamental knowledge about the business of property dealing. He is also having an adequate alternative accommodation at equally prime location. He failed to satisfy the assistance desired by his children to undertake higher studies and the petitioner is required to meet the expenses. The findings given by the Tribunal are based on adequate appreciation of the evidence available on record and in such findings this Court while exercising powers under Article 227 of the Constitution of India is not required to interfere. Hon'ble Supreme court in Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, reported in 2010(8) SCC 329.while examining scope of the interference by the High Court in Rent Control matters while exercising powers under Article 227 of the Constitution of India, held as under:- 49.(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, within the bounds of their authority'. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a -7- patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article -8- 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article 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. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality. The instant one is a case which is not within the parameters those may warrant interference of this Court while exercising powers under Article 227 of the Constitution of India. Having considered the entire matter -9- from different aspects I do not find any wrong with the findings arrived by the Tribunals below. No interference, therefore, is warranted. The writ petition is dismissed accordingly. ( GOVIND MATHUR ),J.

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