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Satyapriya Mohapatra Vs. Ashok Pandit and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberOriginal Jurn. Case No. 1312 of 1980
Judge
Reported inAIR1985Ori187
ActsOrissa House Rent Control Act, 1968 - Sections 7; Constitution of India - Article 226; Bihar and Orissa Estate Manual, 1919 - Rule 20
AppellantSatyapriya Mohapatra
RespondentAshok Pandit and ors.
Appellant AdvocateG.C. Rout, Adv.
Respondent AdvocateS.S. Basu, Adv. (for No. 1) and ;J.R. Dash, Adv. (for No. 2)
DispositionApplication dismissed
Cases ReferredBharat Sasmal v. Addl. Sessions Judge
Excerpt:
.....new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - in this case there was, in our opinion, no error of law much less an error apparent on the face of the record, there was no failure on the part of the learned subordinate judge to exercise jurisdiction nor did he act in disregard of principle of natural justice......the impugned orders passed by the original and the appellate authorities under the orissa house rent control act, 1967 (for short, the 'act') allowing an application made by ashok pandit (opposite party no. 1) for eviction of thepetitioner from the house belonging to the former in the city of cuttack which had been let out to baikuntha bihari acharya (opposite party no. 2) on a monthly rent of rs. 75/- in the year 1963 and which had illegally been sublet by the opposite party no. 2 to the present petitioner. eviction had been sought by the opposite party no. 1 on the grounds of illegal subletting of the house taken on rent by the opposite party no. 2 in favour of the petitioner, wilful default in the payment of rent and requirement of the house by the opposite party no. 1 for.....
Judgment:

Behera, J.

1. The petitioner has made this application under Articles 226 and 227 of the Constitution challenging the impugned orders passed by the original and the appellate authorities under the Orissa House Rent Control Act, 1967 (for short, the 'Act') allowing an application made by Ashok Pandit (Opposite Party No. 1) for eviction of thepetitioner from the house belonging to the former in the city of Cuttack which had been let out to Baikuntha Bihari Acharya (Opposite party No. 2) on a monthly rent of Rs. 75/- in the year 1963 and which had illegally been sublet by the opposite party No. 2 to the present petitioner. Eviction had been sought by the Opposite Party No. 1 on the grounds of illegal subletting of the house taken on rent by the Opposite Party No. 2 in favour of the petitioner, wilful default in the payment of rent and requirement of the house by the Opposite Party No. 1 for the purpose of repairs. The petitioner had challenged these grounds and had also contended before the House Rent Controller that the Opposite Party No. 1 has no locus standi to make the application as his father had let out the house to him and in addition, the State Government was a necessary party to the proceeding as a part of the land in question on which the house stood was Khasmahal land belonging to the State which had been leased out in favour of the father of the Opposite Party No. 1 until 1973 whereafter neither the father of the Opposite Party No. 1 nor the latter had any right or interest in the land. The petitioner's case was that since 1963, he alone had been staying in the house paying rent to the landlord although the receipts were being issued in the name of the Opposite Party No. 2. A case was sought to be made out by him that in Mar. 1972, there had been an agreement for sale with respect to the disputed house with the landlord Motilal Pandit and the petitioner had paid Rs. 5,000/-as an advance towards the consideration money. The Opposite Party No. 2, who had been given the house on rent, as stated by the Opposite Party No. 1, had supported the case of the latter.

2. Both the sides led oral and documentary evidence. On a consideration of the materials placed before him, the House Rent Controller accepted the case of the Opposite Party No. 1, rejected the contentions raised by the petitioner and passed the impugned order of eviction (Annexure-1). The petitioner preferred an appeal and it was dismissed by the appellate authority as per Annexure-2.

3. We have heard Mr. G.C. Rout, the learned counsel for the petitioner and Mr. S. S. Basu, the learned counsel for the Opposite Party No. 1. Mr. Rout has taken on behalf of the petitioner the same grounds which hadbeen taken before and negatived by the appellate authority. He has, in addition, taken additional grounds with regard to the non-impletion of the State as a party and with regard to the prejudice caused to the petitioner for return of some documents to the opposite party No. 1 prior to the date of hearing which were not on the record when the matter was heard. Mr. Basu has contended that concurrent findings have been recorded by the two authorities on questions of facts after rejecting some legal contentions raised on behalf of the petitioner and no new grounds not taken before the appellate authority can now be taken in a certiorari proceeding. He has submitted that there is no ground for intereference by this Court in its writ jurisdiction.

4. The Opposite Party No. 1 undoubtedly was competent to institute the case for eviction as the evidence did warrant a conclusion, as found by the original and the appellate authorities, that the land in question with the house had fallen to his share in the partition. The petitioner has taken a ground that after the expiry of the period of lease in 1973, the Opposite Party N. 1 had no right or interest in the land on which the house stood and therefore, he could not maintain a case for eviction. The same contention had been raised and negatived by the appellate authority on the basis of the principles laid down by this Court in ILR 1976 Cut 1392 Republic of India v. Prafulla Kumar Samal. It has been held therein that a leasehold estate in the Khasmahal land is heritable and transferable with a right of renewal. It has also been held that the right of lease in respect of such land is in no way different from that which one has in his own private land. The lessee's right in the Khasmahal land being heritable and transferable, the lessee can create a permanent right of tenancy in his holding. In view of these propositions of law enunciated in the aforesaid reported case, the contention raised on behalf of the petitioner in this regard could not prevail and had not been accepted by the appellate authority.

5. Placing reliance on a reported case of this Court in (1979) 1 Cut WR 94 : (AIR 1979 Orissa 101) Surajbali Ram v. Dhani Ram, Mr. Rout for the petitioner has contended that an authority under the Act is not empowered to decide complicated questions of title. Thiscontention cannot also prevail, as has rightly been submitted by Mr. Basu. No complicated questions of title were involved in the instant case and the Opposite Party No, 1, who had derived right over the interest in the house and was thus the landlord within the meaning of the Act, had sought for eviction on some of the grounds enumerated in the Act.

6. We see no justifiable reason as to why the State should have been made a party to the proceeding, as contended before us on behalf of the petitioner basing on the principles laid down by this Court in (1982) 53 Cut LT 451 : (AIR 1982 Orissa 167) South-Eastern Roadways v. Satyanarayan. In that case, of the co-owners, one wanted eviction and some did not. The case before us is not of that type. That apart, as we notice from the appellate order, this objection had not been taken at the hearing of the appeal and should not now be entertained in a certiorari proceeding. In this connection, reference may be made to the view taken by this Court in (1983) 56 Cut LT 175 : 1984 Lab IC 125 District Transport Manager (Administration), Orissa State Road Transport Corporation, Baripada v. Presiding Officer, Labour Court, Orissa in which reliance had been placed on the principle laid down by the Supreme Court in AIR 1981 SC 1862 Sohan Singh v. General Manager, Ordnance Factory, Khamaria, Jabalpur.

7. Although an objection had been raised before the House Rent Controller that the authorised agent of the Opposite Party No. 1 has no locus standi to make the application, no such ground had been taken, as now taken before us, before the appellate authority. Even otherwise, in view of what has been found by the House Rent Controller in this regard, we find no reason to accept this contention.

8. We also see no justification to accept the contention raised on behalf of the petitioner that in the absence of the evidence of the Opposite Party No. 1 his case was not to be accepted. In the case of Chinta Narayanamma v. Kholi Sahu, AIR 1982 Orissa 183 : (1982) 54 Cut LT 159, to which our attention has been invited at the hearing, this Court has held, referring to and adopting the view taken by the Bombay High Court in AIR 1981 Bom 1 Nanalal Goverdhandas and Co. v. Smt. Somaratbai Lilachand Shah, that if eviction ofa tenant is sought on the ground of personal requirement, adverse inference would be drawn from the non-examination of the landlord. In the instant case, eviction had not been sought for the occupation or use of the opposite party No. 1, any member of his family or of any person or persons for whose benefit the house had been held by the opposite party No. 1, but on three other grounds referred to above. We may add that this ground had not been taken before the appellate authority.

9. Mr. Rout has strenuously urged that the principles of natural justice have been violated and the petitioner has been prejudiced by the return of some documents to the Opposite Party No. 1 by the appellate authority prior to the date fixed for the hearing without notice to the petitioner and without affording an opportunity to hear him. It has, however, been brought to our notice at the hearing that due notice of the application made by the Opposite Party No. 1 for return of the documents had been given to the petitioner and it cannot be said that no reasonable opportunity had been afforded to him to submit before the appellate authority that the documents ought not to be returned. From a perusal of the impugned order of the appellate authority, we notice that no ground whatsoever had been taken at the hearing of that appeal in this regard and in the absence of any grievance made before the appellate authority, we cannot assume that the petitioner has been prejudiced by the return of some documents to the Opposite Party No. 1. No question arises of violation of the principles of natural justice.

10. Concurrent findings of facts of competent authorities giving cogent reasons therefor are not open to challenge unless such findings are perverse and based on no evidence. See AIR 1983 SC 535 Mrs. Labhkumar Bhagwani Shah v. Janardhan Mahadeo Kalan. In certiorari proceedings, the High Court does not sit as an appellate authority and it is not to review the evidence and arrive at an independent finding, as observed by the Supreme Court in 1983 UJ (SC) 297 : '(AIR 1983 SC 454), Bhagat Ram v. State of Himachal Pradesh. As has been held by the Supreme Court in AIR 1975 SC 1297 Babhutmal Raichand Oswal v. Laxmibai R. Tarte, the power of superintendence of the High Court is limited to see that the subordinate Courts or Tribunals function within the limits of theirauthorities. It cannot correct some errors of fact by examining the evidence and reappreciating it. In AIR 1984 SC 38 Mohd. Yunus v. Mohd. Mustaqim, it has been held(at p. 40) :

'A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227.

The supervisory jurisdiction conferred on the High court under Article 227 of the Constitution is limited to seeing that an inferior Court or Tribunal functions within the limits of its authority and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record, there was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principle of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decisions.'

These principles of law have been referred to and followed by this Court in (1984) 57 Cut LT 368 : (1984 Cri LJ 1389) Bharat Sasmal v. Addl. Sessions Judge, Puri.

11. There has been no jurisdictional error in the instant case nor has there been violation of the principles of natural justice. No error of law has been committed. No finding has been passed apparently on the basis of an error of the record. We find that none of the contentions raised on behalf of the petitioner can prevail. The decisions taken by the House Rent Controller and the appellate authority are not to be interfered with by this Court in its writ jurisdiction.

12. In the result, the writ application is dismissed leaving the parties, in the circumstances of the case, to bear their own costs of this proceeding.

Mohapatra, J.

13. I agree.


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