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TMI Blog2010 (9) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Desh Bandhu Gupta Road, Karol Bagh, New Delhi. 3. In 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 ₹ 3500/-. DTC has sublet/assigned the premises in favour of respondent No.1, Municipal Corporation of Delhi [for short "MCD"] and parted with 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. 4. The ARC by an order dated 11th November, 1989, upon consideration of the rival contentions, held: "19. Admittedly 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 ₹ 3500/- as rent to responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 another. Thus it cannot be said that it was a case of sub-letting under any circumstances. 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." 8. The 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 observations: "The respondent 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the material on record. 10. On 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 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 ₹ 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercised 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 would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice. 14. In 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to construction and ownership of the depot by 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." 18. Thereafter, 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 to pay 10% p.a. of the entire cost of the building. GNIT were to execute a ten year lease. Rent of ₹ 350 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 20. It 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary details and these need not be repeated here any further." ARCT thereafter 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 government and the superstructure was built around May, 1948 by predecessor-in-interest of respondents 1 to 3 and an amount of ₹ 3,500/- per month was agreed to be paid being a fair return against the investment made towards construction of superstructure". The submission that ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion 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 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. " Following the aforesaid order, RCSA No: 17/2001 & CMs 74-75/2001 filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 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 and laches. Proceedings under 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 12.3.2001. However, the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia. 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 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. In such 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. 25. Undoubted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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