Jai Singh & Ors.
Vs. M.C.D. & ANR.  INSC 770 (23 September 2010)
REPORTABLE IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.8233 OF
2010 [Arising out of SLP [C] No.16995 of 2009] Jai Singh and Ors. .. Appellants
VERSUS Municipal Corporation of Delhi ..Respondents and Anr.
WITH CIVIL APPEAL NO.
8234 OF 2010 [Arising out of SLP [C] No.1925 of 2008] Municipal Corporation of
Delhi .. Appellant VERSUS Sh. Jai Singh and Ors. ..Respondents
this special leave petition, the petitioners have challenged the judgment of
the Delhi High Court in a Writ petition under Article 227 of the Constitution
of 2 India, CM (M) No.516 of 2007, dated 23rd March, 2009, whereby the High
Court has quashed and set aside the order passed by the Additional Rent Control
Tribunal ["ARCT" for short] dated 12th March, 2001, upholding the
order passed by the Additional Rent Controller ["ARC" for brevity].
counsel. Leave granted.
The facts, as noticed
by the High Court, are that the appellants are claiming themselves to be the
landlords in respect of premises constructed on the plot of land No.2, Block B,
transport area of Jhandewalan Estate, Desh Bandhu Gupta Road, Karol Bagh, New
the eviction petition, it was stated that the premises were let out to
respondent No.2, Delhi Transport Corporation [for short "DTC"], on a
monthly rental of Rs.3500/-. DTC has sublet/assigned the premises in favour of
respondent No.1, Municipal Corporation of Delhi [for short "MCD"] and
parted with 3 possession in favour of MCD without the written consent of the
appellants. Therefore, both DTC and MCD were liable for eviction. The High
Court has noticed the sequence of events since the transport services were
being run by Gwalior Northern India Transport Company (for short
"GNIT") to the time when DTC stepped into its shoes. The appellants
claimed that the tenancy of the premises was with DTC. MCD had, however,
claimed that the legal possession was retained by MCD; rent was being paid by
MCD to DTC.
ARC by an order dated 11th November, 1989, upon consideration of the rival
it is respondent No.2 (MCD) who is in possession of the premises in question.
It is also admitted that respondent No.2 (MCD) pays a sum of Rs.3500/- as rent
to respondent No.1 (DTC) by way of cheques. It is not the case of the
respondent that any written consent of the petitioners was obtained in this
regard. Therefore, it has to be held that respondent no.1 (DTC) has either
sublet, assigned or otherwise parted with the possession of the tenanted
premises illegally to respondent No.2 (MCD). It is well settled that in
voluntarily (sic) transfers are also included 4 with the meaning of
sub-letting etc. in Section 14(1)(b) DRC Act.".
order passed by the ARC was upheld by the ARCT with the following observations:
having heard up the matter in all its possible aspects I do not find any
infirmity or illegality in the finding of the learned trial court by holding
that there exists relationship of landlord and tenant between the parties and
since the exclusive possession of the premises was handed over by the erstwhile
tenant to the Municipal Corporation of Delhi, i.e., respondent No.2 which is
itself a separate and independent legal entity, it amounts to sub-
High Court set aside the concurrent findings recorded by the ARC and ARCT with
the following observations:
passed by learned ARC and the learned ARCT categorically show that neither the
learned ARC nor learned ARCT has devolved upon the facts of the case and nor
had even considered the concept of tenancy and sub tenancy in this case in the
peculiar circumstances of this case."
High Court held that this is not a case of sub- letting as Delhi Transport
Services (for short "DTS"), Delhi Transport Undertaking (for short
"DTU"), MCD and DTC were the creation of statute. The premises had
come to them after it was acquired by Union of India (UOI) from GNIT on
nationalization of the business.
There was no parting
with possession by DTC to MCD, therefore, it was not sub-letting. The DTC was
incorporated in lieu of DTU as a separate company to facilitate running of
transport business. Mere payment of Rs.3500/- per month by MCD to DTC does not
show sub-letting or parting with possession. Relying on a judgment of this
Court in Madras Bangalore Transport the High Court has held that:
"In the case in
hand, the situation, is much better. The alleged original tenant GNIT stood
acquired by a Legislative Act and the premises went to DTS. DTS was converted
to DTU and DTU was further converted into DTC. The premises remained in
occupation of the same entity which changed its form from one to 6 another.
Thus it cannot be said that it was a case of sub-letting under any
The orders passed by
learned ARC and learned ARTC are liable to be set aside for non application of
law and non consideration of facts at all."
objection raised by the appellants to the entertainment of the petition under
Article 227, on the ground of laches, has been rejected with the following
in this case has strongly objected to entertaining the petition on the ground
of limitation. The petitioner has filed this petition under Article 227 of the
Constitution of India. In exercise of this power, interfering with the orders
of the Court of Tribunal has to be done where this Court finds that there was a
serious dereliction of duty and blatant violation of the fundamental principles
of law and justice and where, the order caused grave injustice and needs to be
corrected. Although the petitioner herein had not been vigilant in prosecuting
the appeal below but that cannot prevent his Court from correcting the patent
illegality writ large on the face of the orders of the ARC and Tribunal below.
Both the ARC and ARCT passed orders without considering the facts of the case
in a very mechanical manner. Neither the learned ARC nor learned ARCT had taken
into account the sequence of facts brought before them regarding acquisition of
the entire assets of GNIT and conversion of DTS to DTU and then to DTC by the
Legislative Act and the order has 7 been passed merely on the ground that
amount of Rs.3500/- was being remitted by the MCD to DTC. The Courts below did
not even consider the issue as to who was the tenant and how MCD became the
sub-tenant of respondent once the premises was owned by Union of India and the
leasehold rights of the entire land vested in Union of India. This Court can
set aside the findings and the orders of the Tribunal below if there was no
evidence at all to justify the findings and the findings were perverse. The
order can also be set aside if no reasonable or prudent person can possibly
come to such a conclusion despite the fact that the petition was not brought
before this Court by the petitioner soon after the Shiv Charan and Others
[(1980) 4 SCC 401], Supreme Court observed that the delay caused in prosecuting
the case in bona fide and good faith in wrong court due to mistake of law or
facts can be condoned, I, therefore, consider that petition is not liable to be
dismissed on the ground of delay, nor learned ARCT was justified in dismissing
Learned ARCT went
wrong in dismissing the application of the petitioner for condonation of delay.
The order of learned ARCT on this count also is liable to set aside. It is
Altaf Ahmad, learned senior counsel appearing for the appellants submits :
1. The exercise of
power under Article 227 of the Constitution of India, by the High 8 Court, in
the peculiar facts of this case was improper.
2. The petition was
liable to be dismissed on the ground of delay and laches alone.
3. Even otherwise,
the High Court exceeded its jurisdiction by acting as an appellate court.
4. The High Court
erroneously decided the question of ownership of the premises which was not
even an issue in the proceedings, under Article 227 of the Constitution of
5. Even on facts, the
findings are contrary to the material on record.
the other hand, Ms. Madhu Tewatia, learned counsel appearing for the
respondents submits that the High Court was fully justified in exercising its
jurisdiction under Article 227 of the Constitution to correct the patent,
factual and legal errors committed by ARC and 9 ARCT. She has emphasised the
entire history of transformation of GNIT into DTC. According to the learned
counsel, there was no landlord and tenant relationship between the predecessor
of the appellants and GNIT. The payment of Rs.3500/- per month was a misnomer.
The plot vested in the Government under the agreement dated 23rd April, 1948,
therefore, GNIT was incompetent to transfer any perpetual lease to Bharat
Singh. The amount of Rs.3500/- was being paid to Bharat Singh as compensation
for the amount spent by him on behalf of GNIT for construction of the depot.
She further submits that the land vested in DDA, i.e., Government. Therefore,
Rent Controller had no jurisdiction. In any case, the appellants have failed to
prove that there has been any parting with possession, without the written
consent of the landlord. The ARC and ARCT ignored vital documents in concluding
that there has been subletting by DTC to MCD. In fact, MCD has retained the
legal possession all along. The payment of Rs.3500/- was only being routed
through DTC, as a 10 matter of convenience. On the question of delay and
laches, it is submitted that the High Court had converted the RCSA to a
petition under Article 227. The delay has been condoned as the MCD had been
bona fide pursuing the wrong legal remedy. The High Court in a petition under
Article 227 of the Constitution of India had the jurisdiction to undo the
injustice caused to the MCD by the orders of ARC and ARCT. In support of her
submissions, learned counsel relied on a number of judgments of this Court,
viz. , on subletting: Resham India [1998 (3) SCC 1] and on jurisdiction of the
High Court under Article 227 of the Constitution of India, SCC 97.
Ahmad, in reply submits that the sub-tenant DTC, cannot be permitted to plead a
case which even the tenant could not have pleaded.
have anxiously considered the submissions of the learned counsel.
we consider the factual and legal issues involved herein, we may notice certain
well recognized principles governing the exercise of jurisdiction by the High
Court under Article 227 of the Constitution of India.
Undoubtedly the High
Court, under this Article, has the jurisdiction to ensure that all subordinate
courts as well as statutory or quasi judicial tribunals, exercise the powers
vested in them, within the bounds of their authority. The High Court has the
power and the jurisdiction to ensure that they act in accordance with well
established principles of law. The High Court is vested with the powers of
superintendence and/or judicial revision, even in matters where no revision or
appeal lies to the High Court. The jurisdiction under this Article is, in some
ways, wider than the power and jurisdiction under Article 226 of the
Constitution of 12 India. It is, however, well to remember the well known
adage that greater the power, greater the care and caution in exercise thereof.
The High Court is, therefore, expected to exercise such wide powers with great
care, caution and circumspection. The exercise of jurisdiction must be within
the well recognized constraints. It can not be exercised like a `bull in a
china shop', to correct all errors of judgment of a court, or tribunal, acting
within the limits of its jurisdiction. This correctional jurisdiction can be
exercised in cases where orders have been passed in grave dereliction of duty
or in flagrant abuse of fundamental principles of law or justice. The High
Court cannot lightly or liberally act as an appellate court and re-appreciate
the evidence. Generally, it can not substitute its own conclusions for the
conclusions reached by the courts below or the statutory/quasi judicial
tribunals. The power to re-appreciate evidence would only be justified in rare
and exceptional situations where grave injustice would be done unless the High
Court interferes. The exercise of such discretionary power 13 would depend on
the peculiar facts of each case, with the sole objective of ensuring that there
is no miscarriage of justice.
our opinion, the High Court in this case, has traveled beyond the limits of its
jurisdiction under Article 227 of the Constitution. Both ARC and ARCT had acted
within the limits of the jurisdiction vested in them. The conclusions reached
cannot be said to be based on no evidence. All relevant material has been taken
into consideration. Therefore, there was hardly any justification for the High
Court to undertake an investigation into issues which did not even arise in the
appellants had filed a simple eviction petition before the ARC, under Section
14(1)(b) of Delhi Rent Control Act, 1958 (in short "DRC Act"). They
had stated that DTC was their tenants in premises as the entire plot No.2 with
the construction thereon at Jhandewalan 14 known as Karol Bagh Depot, as per
Monthly rent was
stated to be Rs.3500/-. It was claimed that DTC has sublet the premises to MCD,
without permission of the landlord. Therefore, both DTC and MCD were liable for
DTC and MCD took identical pleas. Their defence was that the appellants are
neither the owners nor the landlords of the demised premises. They claimed that
Late Bharat Singh (LBS) had agreed to construct the depot for and on behalf of
GNIT. He was receiving Rs.3500/- p.m. for the money spent on construction.
Therefore, the term
rent is a misnomer. Allegations of subletting were denied. The business of GNIT
was nationalized and taken over by the government vide agreement dated 23rd
April, 1948. The plot was mutated in the name of Government of India.
Thereafter, Delhi Road Transport Corporation Act, 1950, was enforced.
Under this Act, Delhi
Transport Services (DTS) was established. From then the onward DTS was in 15
occupation and started paying the rent of Rs.3500/- till the enactment of DMC
Act, 1957. Under this Act, the transport service in Delhi was given to Delhi
Transport Undertaking (DTU), which was made a wing of MCD.
Since then MCD
started releasing Rs.3500/- to LBS through its wing, DTU. After the death of
LBS, the amount has been paid to the appellants, without any objection. On
passing of Delhi Road Transport Laws (Amendment) Act, 1971, Delhi Transport
Corporation, came into existence as a statutory body. But the possession of the
demised premises remained with MCD.
As DTC had taken the
place of DTU, the rent amount, thereafter, was routed through DTC. Therefore,
there was no subletting. In any event, since the property vests in Government
of India, Delhi Rent Control Act would not be applicable.
into consideration the aforesaid claims of the parties, the ARC concluded that
there is no dispute with regard to construction and ownership of the depot by
16 LBS. The appellants are successors of LBS. The issues as crystallized by the
ARC are as follows:- "(i) The tenant has sublet, assigned or otherwise
parted with possession.
(ii) It may be in
respect of the whole or any part of the premises.
(iii) Such subletting
etc has taken place on or after the 9th day of June, 1952.
(iv) Such subletting
etc has taken place without obtaining the consent in writing of the landlord.
(v) The first and the
foremost ground that requires to be seen is whether relationship of landlord
and tenant exist between the petitioners and respondent No.1 or not."
Thereafter in Para 9
ARC observes :- "Whether relationship of landlord and tenant was
contemplated or not is the most important fact which has to be seen."
ARC proceeds to consider the implications of the agreement dated 10th November,
1944, wherein LBS agreed to develop the plot of land. He is referred to as the
prospective purchaser. The lease with GNIT was provided for, LBS was to pay all
taxes. GNIT had 17 to pay 10% p.a. of the entire cost of the building.
GNIT were to execute
a ten year lease. Rent of Rs.3500/- was regularly paid. The ARC noticed that
Government of India had moved the Rent Controller, New Delhi for fixation of
fair rent in June, 1950. The Rent Controller, after conducting an enquiry had
fixed the agreed rent as the fair rent. An appeal against the order of Rent
Controller, New Delhi dated 26th December, 1950 was dismissed by the learned
District Judge at Delhi by an order dated 3.5.1951. Not only this, ARC notices
that during the course of present proceedings, rent was deposited in court for
the period 1.4.93 to 30.11.93, by DTC. Therefore, they can not now be permitted
to say that MCD is the tenant, in possession. In such circumstances, the ARC
held that DTC has sublet the premises to MCD.
MCD challenged the aforesaid order before the ARCT in RCA No.9 of 2001. The
aforesaid appeal was beyond limitation by 431 days. It 18 appears that even
though the ARCT did not find any substance in the reasons given by the MCD for
seeking condonation of delay, the appeal was still considered on merits. ARCT
discussed at length the negligent attitude of the MCD in pursuing the
proceedings in the court of ARC. Ultimately, the ARC was left with no
alternative but to proceed against the MCD ex-parte on 25th of August, 1999.
It was observed by
the ARCT that the delay was wholly unjustified as well as wholly unexplained.
We may notice the
observations made by the ARCT which are as follows:
"Now, looking to
the appellant's stand through another angle, I find that the appellant and
respondent/DTC are both governmental organization and it does not stand to mind
that respondent/DTC or its representative would not intimate the appellant/MCD
about its not being represented to some advocate or about its having been
proceeded ex-parte. The case was admittedly on last state and it appears that
the appellant took chance and stayed out of the scene and has now come up with
this hopelessly delayed appeal with a cock and bull story which does not seem
to be any way bonafide, reasonable and acceptable to mind. Strangely enough,
the appellant even did not disclose in the application as to on 19 which date
or month, the court bailiff had gone to the demises premises, and this lengthy
delay of about 431 days (or 393 days after excluding the time taken in
obtaining the certified copies) has remained completely unexplained. The
application for seeking condonation of delay, thus, is found to be without any
sufficient or reasonable ground and needs to be dismissed. Order as such with
the dismissal of the appellant is application for condonation of delay - this
appeal meets the same fate."
Having observed as
such, the ARCT considered the appeal on merits on the assumption that the
application of MCD for condonation of delay has been allowed, though it had not
been allowed. The ARCT thereafter considered the entire gamut of facts and
circumstances in detail. The ARCT noticed the submissions made by the learned
counsel for the MCD and considered each submission in detail.
was submitted that ARC had failed to distinguish the three expressions: sublet,
assigned and otherwise parted with possession. This was answered as follows:
"I feel that the
submissions made by learned counsel Sh.Chachra do not gather any support 20
from the records because the learned ARC has dealt with insufficient details of
the needed requirements and it was only thereafter that he came to a conclusion
of the respondent/DTC having sublet, assigned or otherwise parted with the
possession of the demised premises in favour of this appellant. For attracting
the applicability of a ground of eviction u/s 14(1)(b) of the Act, it has
either to be direct circumstance of subletting which ordinarily may not be
possible to be detected since it is, in most cases, a secret deal between the
tenant and the alleged sub-tenant or it is the assignment where under the
tenant has to divest himself of all the rights that he had as a tenant or
parting with possession which circumstances postulates the parting with legal
possession also i.e. the tenant surrenders his legal right of are-entry to the
premises. This mischief of Section 14(1)(b) of the Act is complete if any of
the three expressions gets established. It is certainly no necessary and nor
has it been so held by any of the pronouncements of any superior courts that
pleadings on this aspect must state in specific terms that it either sublet or
assignment or parting with possession. In case a party succeeds in establishing
the first expression sublet the to my mind. It goes to establish that even the
other two expressions assignment and parting with possession stand proved
because the moment a tenant indulge a third person as his tenant (sub-tenant)
qua the demised premises-he (tenant) squarely assigns and also parts with
possession in both ways as he divests himself of all the rights as he had as a
tenant and part with possession to delivering and only physical possession but
also fully surrendering his legal possession over the tenanted premises.
The impugned judgment
did discuss evidence with a clear angle that the appellant had been 21 parting
rent of Rs.3,500/- per month to respondent / DTC every month. The respondent
DTC was admittedly not in possession any way of the demised premises as the
appellant's own stand on this point is admittedly the same. In case, the first
expression sublet has been established, almost in an admitted style, through
various acts admitted documents and stands taken in various court proceedings,
the other two expressions would also go hand in hand and the Ld. ARC was not
any way required to state as to under which of the three expressions, parties
case felt Evidence or specific admissions through deeds and conduct find duly
discussed through various admitted or proved documents and these negates the
plea of the appellant that the evidence had not been discussed by the Ld. Trial
Court. I feel the impugned judgment carries all these necessary details and
these need not be repeated here any further."
considered in detail the relationship of landlord and tenant between LBS and
various statutory entities, in succession. The transformation of GNIT, through
DTS to DTC was duly noticed, and dilated upon. It was noticed that DTC which
was a government undertaking, was a successor in interest of a private
transport company. It was further noticed that the "land underneath the
superstructure / the demised premises might or might not belong to the 22
government and the superstructure was built around May, 1948 by
predecessor-in-interest of respondents 1 to 3 and an amount of Rs.3,500/- per
month was agreed to be paid being a fair return against the investment made
towards construction of superstructure". The submission that Rs.3,500/-
per month was paid as compensation for construction of the superstructure was
considered and rejected with the observations :- "The submission of
appellant's Ld. Counsel that the amount was agreed to be paid only with a vie
to compensate the predecessor-in- interest of respondents 1 to 3 and was not
the rental of the super-structure does not seem to be carrying any weight and
to my mind this submission cannot stand because the moment, we speak of
compensation - it indicates to some specific amount of a specific period by
which the liability would be deemed to have been discharged. It never means a
flowing steam of payments to continue till infinity. It has got to be the
rental only and it was also to understand, taken and acted upon by the parties as
is clearly and unambiguously indicated from the admitted stand of
respondent/DTC. The respondent / DTC had in its written statement admitted this
amount as rent though at other point it denied it being so. Really, respondent
/ DTC could not suppress the truth and at times, it honestly leaned towards it
and described this sum of Rs.3,500/- as monthly rental. Paras(a), (f) and (k)
of brief facts of the written statement of 23 respondent/DTC clearly reflect
the above stand. In para (e), the words used are and would give it on rental
basis to GNIT. The words used in para (f) are that Sh. Bharat Singh constructed
a depot on plot No. 2 and rented out the same structure to GNIT at a monthly
rental of Rs.3,500/-. Para (k) states...
and the GNIT company
continued paying a rent of Rs.3,500/- per month to Sh. Bharat Singh for the
amount he had invested on the super-structure and also for the amount he had
financed to GNIT company. These terms are no misnomers and actually they pump
out the real intent of the parties under which respondent / DTC started making
payments of monthly rentals to respondents 1 to 3 their
have been constrained to make elaborate reference to the orders of ARC and ARCT
only to demonstrate that High Court was not justified in observing that there
has been `serious dereliction of duty' or that there has been `blatant
violation of the fundamental principles of law and justice' by the ARC and
ARCT. We also cannot accept the observations of the High Court that both ARC
and ARCT have considered the facts in a very mechanical way, or that the orders
passed by ARC and ARCT exhibited any patent illegality writ large on the face
of the orders. We also do not agree that 24 the ARC and ARCT ignored the
sequence of events through which GNIT was substituted by DTC. The entire
sequence of metamorphosis of GNIT into DTC have been elaborately explained and
are of the considered opinion that the High Court ought not to have exercised
the extra ordinary jurisdiction under Article 227 of the Constitution in the
peculiar circumstances of this case. We may briefly indicate the reasons for
saying so:- (i) Initially the appellants filed a petition for eviction against
DTC and MCD. They had clarified that MCD has been impleaded only to avoid
multiplicity of proceedings.
(ii) Decree of
eviction was passed. DTC lost in appeal, lost in RCSA in the High Court.
However, the High
Court clarified it shall have no bearing on the appeal filed by MCD. The order
dated 31/01/2001, passed by the High 25 Court in CM (M) No.31 of 2001 reads as
under:- "There is a concurrent findings of facts and law against the
petitioner. It is not for this Court to substantiate for judgment over the
judgment of the Court below through the proceedings under Article 227 of the
Constitution of India. Dismissed.
I am informed that
the MCD has challenged the impugned order before the Rent Control Tribunal.
Dismissal of this petition shall have no bearing on the determination of the
Appeal filed by the MCD. "
aforesaid order, RCSA No: 17/2001 & CMs 74-75/2001 filed by the MCD was
also dismissed vide order dated 03/09/2004, with the following observations:-
"It appears that the order of the Additional Rent Controller was
challenged before the Tribunal, which order has been adjudicated upon by other
bench of this court which uphold the order of the Additional Rent Controller.
In view of the matter, I see no reason to entertain this appeal. SAO 17/2001 is
In our opinion the
aforesaid order was unexceptional since the pleas taken by the DTC and 26 MCD
before the Additional Rent Controller were identical. Therefore, it was in
fitness of things that the subsequent coordinate bench also dismissed the
appeal filed by MCD. The aforesaid order was however recalled without any
justification with the following observations:- "Heard counsel for the
parties and have gone through the order dated September 03, 2004 as also
January 30, 2001. It appears to me that while disposing of RCSA 17/2001
reference has been made purely CM(M) 31/2001. What escaped notice was that the
order dated January 30, 2001 in CM(M) would have no bearing on the
determination of the appeal by the Municipal Corporation of Delhi."
Thereafter MCD, moved
CM 4639/2007 with the prayer that the appeal be treated as a petition under
Article 227 of the Constitution of India as the appeal is not maintainable. The
application was disposed off by the following order dated 30/3/2007:-
"Counsel for the appellant has moved CM No: 4639/2007 praying that this
appeal be treated as a petition under Article 227 of the Constitution of India
as the appeal is not maintainable. He further submits that the appellant should
file a fresh petition under Article 227 of the Constitution of India or 27
under any other law if the same is permissible under law. On instruction from
the respondent who is present in Court, counsel will not proceed with the
execution petition for a period of 15 days from today. Subject to this
condition as prayed by counsel for the appellant RCSA 17/01 is dismissed as
CM 4639/07 also
stands disposed off."
A perusal of the
aforesaid order clearly shows that the application was disposed off on the
statement made by the learned counsel for MCD that the appellant (MCD) should
file a fresh petition under Article 227 of the Constitution of India if the
same is permissible under law. (emphasis supplied) Therefore, the aforesaid
order cannot be treated as an order passed by the High Court permitting MCD to
file a petition under Article 227 of the Constitution of India.
However using the
aforesaid order of the High Court as an excuse, MCD filed the petition under
Article 227 of the Constitution of India on 09/04/2007, being CM (Main) No.
57/2007, challenging the order which was passed by the ARC dated 11/11/1989 and
the order passed by 28 ARCT dated 12/3/2001. At this stage, in our opinion,
the High Court failed to bestow proper attention to the objections taken by the
appellants to the maintainability of the writ petition on the ground of delay
Article 227 can be initiated in the absence of the availability of an
alternative efficacious remedy. In the present case, MCD had consciously
withdrawn RCSA which had been filed under Section 39(1) of the Delhi Rent
Control Act. The appeal had been filed against the order of the ARCT dated
objection on the ground of delay and laches was brushed aside by the High Court
on two wholly untenable grounds, i.e:- (i) The orders passed by the ARC and
ARCT suffered from patent illegality on the face of the orders.
(ii) The MCD was bona
fide prosecuting a case in the wrong court, due to mistake of law.
are of the opinion that the High Court committed a patent error of jurisdiction
in entertaining the writ petition under Article 227 of the Constitution which
was unconscionably belated. Both reasons stated by the High Court in support of
its conclusions, are contrary to the facts on the record.
It must be remembered
that in these proceedings, the pleas raised by the DTC and MCD before the ARC
as well as the ARCT were identical. The order passed by the ARCT has been
upheld by a coordinate bench of the High Court. The RCSA No: 17/2001 filed by
MCD on identical grounds was thus dismissed by a subsequent coordinate bench.
That was indeed in conformity with the high traditions, procedures and
practices established by the courts to maintain judicial discipline and
decorum. The underlying principle being, to avoid conflicting views taken by
coordinate benches of the same court. Except in compelling circumstances, such
as where the order of the earlier bench can be said to be per incurium, in
that 30 it is passed in ignorance of an earlier binding precedent/ statutory or
constitutional provision, the subsequent bench would follow the earlier
appears that the entire proceedings adopted by MCD after the dismissal of the
RCSA - CM(M) No.31 of 2001, on 31.1.2001 were a subterfuge to avoid the
execution proceedings in a decree which had become final between the parties.
In the application seeking conversion of RCSA No: 17/2001 to a petition under
Article 227 of the Constitution of India, it was categorically stated by MCD
that the aforesaid RCSA was not maintainable. The aforesaid statement is a
clear admission that the appeal filed by the MCD did not involve a substantial
question of law. It is apparent from the fact that under Section 39(1) of the
DRC Act subject to the provisions of sub-section (2), an appeal lies to the
High Court from an order made by the ARCT. Sub- section (2) provides as under
:- 31 "No appeal shall lie under sub-section (1), unless the appeal
involves some substantial question of law."
Having made an
admission that no substantial question of law was raised in the RCSA,
withdrawal of the same could not possibly have been used as a justification for
filing a petition under Article 227 of the Constitution of India. If the RCSA
was devoid of any substantial question of law, the petition under Article 227,
based on the same facts, would be equally devoid of any substantial question of
law. This categoric admission of the MCD was ignored by the High Court whilst
recording the finding that the orders of ARC and ARCT were passed "in
blatant violation of fundamental principles of law and justice." This
apart in the peculiar facts of this case, noticed above, it could not be held
that MCD had been bona fide prosecuting a case in the wrong court. It was
seeking a remedy provided under Section 39(1) of DRC Act. Even this appeal was
filed beyond limitation. It was delayed by 431 days. In the meantime possession
of a part of the premises had 32 already been taken by the appellants. Inspite
of the objections having been raised to the maintainability of a writ petition
under Article 227 of the Constitution of India, they were rejected by the High
Court with the observations noticed in the earlier part of the judgment.
circumstances, in our opinion, it was wholly inappropriate for the High Court
to entertain the writ petition under Article 227 of the Constitution of India.
the High Court has the power to reach injustice whenever, wherever found. The
scope and ambit of Article 227 of the Constitution of India had been Estate (P)
Ltd., [(2001) 8 SCC 97] wherein it was observed as follows:
"The scope and
ambit of exercise of power and jurisdiction by a High Court under Article 227
of the Constitution of India is examined and explained in a number of decisions
of this Court. The exercise of power under this article involves a duty on the
High Court to keep inferior courts and tribunals within the bounds of their
authority and to see that they do the duty expected or required of them in a
legal manner. The High Court is not vested 33 with any unlimited prerogative
to correct all kinds of hardship or wrong decisions made within the limits of
the jurisdiction of the subordinate courts or tribunals. Exercise of this power
and interfering with the orders of the courts or tribunals is restricted to
cases of serious dereliction of duty and flagrant violation of fundamental principles
of law or justice, where if the High Court does not interfere, a grave
injustice remains uncorrected. It is also well settled that the High Court
while acting under this article cannot exercise its power as an appellate court
or substitute its own judgment in place of that of the subordinate court to
correct an error, which is not apparent on the face of the record. The High
Court can set aside or ignore the findings of facts of an inferior court or
tribunal, if there is no evidence at all to justify or the finding is so
perverse, that no reasonable person can possibly come to such a conclusion,
which the court or tribunal has come to."
In our opinion, the
High Court committed a serious error of jurisdiction in entertaining the writ
petition filed by MCD under Article 227 of the Constitution of India in the
peculiar circumstances of this case. The decision to exercise jurisdiction had
to be taken in accordance with the accepted norms of care, caution,
circumspection. The issue herein only related to a tenancy and subletting.
There was no lis
relating to the ownership of the land on 34 which the superstructure or the
demised premises had been constructed. The whole issue of ownership of plot of
land No:2, Block-B, transport area of Jhandewalan Estate, Desh Bandhu Gupta
Road, Karol Bagh, New Delhi is the subject matter of a civil suit being Suit
No: 361 of 1980 in the High Court of Delhi. The High Court, therefore, ought
not to have given any opinion on the question of ownership.
are of the opinion the High Court traveled beyond the well defined contours of
its jurisdiction under Article 227 of the Constitution of India.
therefore, allow this appeal and set aside the impugned judgment and order.
Civil Appeal No. 8234
of 2010 @ Special Leave Petition (C) No.1925 of 2008 :
1. Leave granted.
2. In view of the
judgment in Civil Appeal No.8233 of 2010 @ SLP (C) No. 16995 of 2009, this
appeal becomes infructuous and is dismissed as such.
[Surinder Singh Nijjar]