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Haji Ahmed Haji Ibrahim Vs. Hadu Subudhi and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberOriginal Jur. Case No. 1171 of 1970
Judge
Reported inAIR1972Ori239; 38(1972)CLT546
ActsOrissa House Rent Control Act, 1958 - Sections 7(2); Constitution of India - Article 226
AppellantHaji Ahmed Haji Ibrahim
RespondentHadu Subudhi and anr.
Appellant AdvocateG. Rath and ;A.K. Rao, Advs.
Respondent AdvocateB.M. Patnaik, ;S.P. Raju, Advs. and ;Adv. General
DispositionPetition allowed
Cases Referred(Kasi Rout v. Mahammad Saleh
Excerpt:
.....finding that the petitioner does not require the room in good faith for his occupation a pure finding of fact? 7(2) the landlord may, subject to the provisions of this act, apply to the controller for an order directing the tenant to put him in possession of the house, if he requires the house in good faith for the occupation or use of himself, any member of his family or of any person or persons for whose benefit, the house is held by him'.this sub-section has received judicial construction in three important bench decisions of this court in (1965) 31 cut lt 331, (jammula narasimhulu v. the concept of 'good faith' takes within its sweep the absence of an idea to receive. (v) whether the landlord requires the house in good faith is always a question of fact. to the aforesaid summary..........wholesaler to have a show room.10. while examining the needs ofthe petitioner for a show room, the learned judge said in paragraph 8 of his judgment that the petitioner has already evicted one y. surya rao two years back from the middle room which is lying vacant. he observed:'in such circumstances there appears to be no justification whatsoever for the petitioner to pick up the disputed room for the purpose of opening a show room'.the house belongs to the petitioner. it is open to him to exercise option as to what room he would use as a show room. he knows his own needs and the same cannot be controlled by the courts in giving a direction as to in what manner he should have his needs.that apart, the petitioner's case is that he would remodel all the three rooms in the front of.....
Judgment:

G.K. Misra, C.J.

1. The petitioneris the landlord and the Opposite Party No. 1 is the tenant. The petitioner's case as mentioned in the application for eviction may be stated in short. The disputed house consists of a room abutting the main road. Just adjacent to it there are two other rooms. The three rooms are in the front of the main business premises of the petitioner. These three rooms located side by side had been rented out by the petitioner long back at a time when they were not considered necessary for business purposes. The petitioner originally constituted a partnership firm. Recently it has been reconstituted by separate allocation of business. Haji Ahmed Ibrahim, one of the partners, got the business of the firm at Berhampur to his share. The volume and turnover of the business considerably increased in recent years with consequential expansion of the staff and the records. The petitioner has agencies of several standard commodities and articles, one of them being the agency of cloths of Buckingham and Carnatic Mills.

The said Mills insisted upon having a show-room where different varieties of stocks are to be exhibited for publicity. In the absence of a show-room the petitioner had apprehension that the agency with the Mills may be cancelled. The petitioner had also to provide space for accommodation of the increased staff and records. Out of the three rooms in the front, opposite party No. 1 is in occupation of the western room and the eastern room is in possession of one Harimohan Sahu as a tenant to evict whom an application had been filed before the House-rent Controller out of which O.J.C. No. 828 of 1970 arises. The room is necessary for convenient management of business in its entirety. The petitioner wanted to remodel the room by amalgamating it with other available space of the main portion so that the entire area may be available for business. With this end in view the petitioner had filed H.R.C. Case No. 14 of 1961 which was ultimately dismissed. The present application has been filed as the petitioner is in difficulty in improving his business without obtaining possession of the room.

In the written statement filed by opposite party No. 1 the averments in the application for eviction were denied.

By his order (Annexure 1) dated 13-3-1970 the House-rent Controller dismissed the application for eviction. The petitioner filed an appeal and the Additional District Magistrate (Judicial) by his order (Annexure 2) dated 14-5-1970 dismissed the same. The writ application has been filed under Articles 226 and 227 of the Constitution for issuing a writ of certiorari to quash Annexure 2.

2. On behalf of the petitioner Mr. Rath contends that the concurrent finding of fact of both the authorities that the room was not required in good faith for the business of the petitioner is liable to be quashed on account of an error of law apparent on the face of the record. The error of law consists in the fact that the conclusion of the A. D. M. (J) is in disregard of the correct construction of Section 7 (2) of the Orissa House Rent Control Act, 1958 (hereinafter to be referred to as the Act) and the said conclusion can be corrected by a writ of certiorari.

Mr. Patnaik for opposite party No. 1, on the other hand, contends that the High Court has no jurisdiction to issue a writ of certiorari to quash a pure finding of fact which is based on evidence.

Both the contentions require careful examination.

3. The following questions arise for consideration.

(i) Is the concurrent finding that the petitioner does not require the room in good faith for his occupation a pure finding of fact?

(ii) Can the High Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution quash such a finding if it has been arrived at in disregard of the relevant statutory provision?

4. In 1970 Ren CJ 34 = (AIR 1969 NSC 186), (Smt. Kamla Soni v. Rup Lal Mehra) the Supreme Court held that thequestion whether on the facts proved the requirement of the landlord is bona fide is a finding on a mixed question of law and fact. Thus the concurrent finding in this case is not a pure finding of fact but is a mixed question of law and fact.

5. Section 7 (2) of the Act runs thus:

'7(2) The landlord may, subject to the provisions of this Act, apply to the Controller for an order directing the tenant to put him in possession of the house, if he requires the house in good faith for the occupation or use of himself, any member of his family or of any person or persons for whose benefit, the house is held by him'.

This sub-section has received judicial construction in three important Bench decisions of this Court in (1965) 31 Cut LT 331, (Jammula Narasimhulu v. Kotini Sitaram), 34 Cut LT 277 = (AIR 1968 Orissa 113), (Manakarani Hazra v. Mohinder Singh Jaggi) & O. J. C. No. 1038 of 1969 (Orissa), (Kasi Rout v. Mahammad Saleh) we may sum up our conclusions taken in the aforesaid decisions:

(i) The word 'require' involves something more than a mere wish and must at least involve some element of need.

(ii) The onus is on the landlord to show certain circumstances or facts proving some need or necessity.

(iii) The statute, however, does not insist that a need must be an absolute one. It is not necessary for the landlord to prove that he would be thrown to the streets unless he gets the accommodation.

(iv) The need of the landlord must be an honest one. It would not be the outcome of an oblique motive or false pretence. A requirement which is not capricious or unfair or absurd would be reasonable. The concept of 'good faith' takes within its sweep the absence of an idea to receive.

(v) Whether the landlord requires the house in good faith is always a question of fact. The Court is entitled to look to every relevant fact or circumstance affecting the landlords and their position. The nature and character of the landlords' accommodation at the time when they are asking for the relief of possession and the scope, size and character of their requirement are all relevant factors that the Court might consider in that context. To the aforesaid summary a further element may be added that the landlord is the best judge of his own requirement. If it is not the outcome of an oblique motive or false pretence the same is not to be tested by a very rigorous standard requiring the landlord to establish the case beyond reasonable doubt. The onus would be discharged by weighing the balance of probabilities.

6. We would now examine the power and jurisdiction of this Court in issuing a writ of certiorari. A number of decisions have been cited on either side. It is not necessary to refer to all of them as the principles enunciated in AIR 1964 SC 477, (Syed Yakoob y. K.S. Radhakrishnan) are all pervasive and have not been departed from in any subsequent decision. The principle on the basis of which the appellate judgment is assailed is to be found in paragraph 8 of the judgment which runs thus:

'It is of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. x x x'

7. It is necessary now to examine whether the judgment of the A. D. M. (J) was alive to the legal concept inhering in Section 7 (2) of the Act or whether he acted in ignorance of or in disregard of the same. With this object in view, some of the findings recorded by the learned A. D. M. (J) vitiating his ultimate conclusion may be noticed.

8. One of his findings is that a Showroom for a wholesaler is not an absolute necessity (see paragraph 6 of the judgment). Such a finding evinces an error of law apparent on the face of the record as has already been pointed out in paragraph 5 (iii) of this judgment.

9. In paragraph 7 of his judgment the learned A.D.M. (J) formulated a proposition in the following words:

'Apart from the fact that the petitioner has failed to Prove that his Principal has insisted upon having a show room, the necessity of a show room by Wholesaler has not at all been established in this case'.

The learned Judge appears to be of the view that a wholesaler does not require a show room. The proposition worded in broad terms is an absurdity. It is open to a wholesaler to have a show room to give an idea of the goods in which wholesale transaction is being carried on.He concludes paragraph 7 of his judgment by saving:

'Further, it is common knowledge that the advertisement or publicity part is generally carried on by the retailers rather than by the wholesalers'.

Asain, the proposition is too widely stated. Even accepting that such a view is correct, it does not exclude a particular wholesaler to have a show room.

10. While examining the needs ofthe petitioner for a show room, the learned Judge said in paragraph 8 of his judgment that the petitioner has already evicted one Y. Surya Rao two years back from the middle room which is lying vacant. He observed:

'In such circumstances there appears to be no justification whatsoever for the petitioner to pick up the disputed room for the purpose of opening a show room'.

The house belongs to the petitioner. It is open to him to exercise option as to what room he would use as a show room. He knows his own needs and the same cannot be controlled by the courts in giving a direction as to in what manner he should have his needs.

That apart, the petitioner's case is that he would remodel all the three rooms in the front of which the middle room is already in his possession through an eviction proceeding and he wants to have both the western and eastern rooms by evicting opposite party No. 1 and Harimohan.

11. In paragraph 9 of his Judgment the learned Judge observed:

'But mere evidence of increase in the turnover will not prove the requirement of more space'.

One can even go to the length of sayingthat more space may be required even without the turnover increasing. If the turnover has increased and the petitioner wants more space it is not for the court to reason out and say that more space is not necessary. The jurisdiction of the Controller and the appellate authority lies only in examining whether the eviction is resorted to with an ulterior motive and not for the real purpose of having more space. The court has no jurisdiction to go into the question of adequacy or sufficiency of the need. If some need exists it is for the owner to exercise his option and get possession of the house to fulfil the need.

12. In paragraph 9 the learned A. D. M. (J) also observed:

'The filing of the previous case is also an indication how the landlord is intent upon getting the tenant evicted somehow or other'.

This reasoning is wholly irrelevant and should not have been taken into consideration. Merely because the previous proceeding of the landlord failed, any subsequent proceeding for eviction cannot be said to have been initiated with an oblique motive. The house belongs to the landlord and from time to time he can ask for eviction provided he satisfies the court that the requirement is in good faith. The previous proceeding does not constitute res judicata against a subsequent proceeding.

13. Some of the findings of the learned Judge have been examined by us to show that he recorded his conclusion in complete ignorance or disregard of the relevant statutory provision. In his judgment he did not refer to Section 7 (2) of the Act and did not give an analysis as to how his mind was working in appreciating the various elements involved in the section.

14. On the aforesaid analysis we are satisfied that the learned A. D. M. (J) committed an error of law apparent on the face of the record. His conclusion is plainly inconsistent with the relevant statutory provision.

15. We are alive to the fact that! in exercise of our jurisdiction under Articles 226 and 227 of the Constitution the High Court does not function as an appellate authority. If the finding of fact is based on some evidence keeping the correct legal approach in view, the same cannot be disturbed by the High Court to reach a different conclusion.

As has already been stated, the conclusion of the learned A. D. M. (J) that the petitioner does not require the house bona fide is a mixed question of law and fact. Some of the findings recorded by him on different aspects of the matter evince that he acted in ignorance of the true legal concept inhering in Section 7 (2) of the Act explained in several decisions of this Court. His judgment is liable to be quashed by a writ of certiorari.

As various pieces of evidence have to be examined in the light of the true legal concept explained by us, the case is to go back to the A. D. M. (J) for disposal in accordance with law. None of our observations incidentally made with a view to show that he did not properly appreciate the correct legal position should influence him in scanning the evidence.

16. In the result, the writ application is allowed. Annexure 2 is quashed and a writ of certiorari be accordingly issued. The case would go back to the A. D. M. (J) for disposal in accordance with law and the observation made above. He would dispose of the case within three months from today with intimation to this Court. The records be sent backat once. There will be no order as to costs.

Panda, J.

17. I agree.


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