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Jai Singh and Ors. vs. Municipal Corporation of Delhi dated 2010-09-23

 

                                                1

                                            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
 
 
 

                     JUDGMENT

 
 
SURINDER SINGH NIJJAR, J.
 

1.   In 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].
 
 
 

2.   Heard 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 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 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.
 
 
 

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 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.".

 
 
 
 

5.   The order passed by the ARC was upheld by the

 
ARCT with the following observations:
 
 
 

     "15. After 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-

     letting."
 
 
 
 

6.   The High Court set aside the concurrent findings

 
recorded by the ARC and ARCT with the following
 
observations:
 
 
 

     "The orders 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."


                                                     5

 
 
 
 

7.   The 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
 

Co. [West] Vs. Inder Singh & Ors. [AIR 1986 SC 1564],

 
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 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 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

     passing of the order. In Badlu and another Vs.

     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 the application.

     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 ordered

     accordingly."

 
 
 
 

9.   Mr. 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 India.

 

      5. Even on facts, the findings are contrary 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

                                                     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
 
Singh Vs. Raghbir Singh & Anr. [1999 (7) SCC 263];
 
Bharat Sales Ltd. Vs. Life Insurance Coropration of
 

India [1998 (3) SCC 1] and on jurisdiction of the High

 
Court under Article 227 of the Constitution of India,
 
Estralla Rubber Vs. Dass Estates (P) Ltd. 2001 (8)
 
SCC 97.
 
 
 

11.   Mr. Ahmad, in reply submits that the sub-tenant

 
DTC, cannot be permitted to plead a case which even the
 
tenant could not have pleaded.

                                                   11

 
 
 
 

12.   We have anxiously considered the submissions of

 
the learned counsel.
 
 
 

13.   Before 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.
 
 
 

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 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
 
lis.
 
 
 

15.    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 plan attached.
 
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 eviction.
 
 
 

16.   Both 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.
 
 
 

17.   Taking 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."

 
 
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


                                                     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.

 
 
 

19.     Thereafter, 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.
 
 
 

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


                                                 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."

 
 

     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

                                                    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

       predecessor-in-interest".

 
 

21.    We 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 dilated upon.
 
 
 

22.   We 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. "

 
 
Following the 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 accordingly dismissed."

 
 

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

     withdrawn.

        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 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

 
            orders.
 
     (ii)   The MCD was bona fide prosecuting a case in
 

            the wrong court, due to mistake of law.


                                                  29
 
 

23.   We 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 coordinate bench.
 
 
 

24.   It 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.
 
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.   Undoubtedly, 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
 
discussed in the case of The Estralla Rubber Vs. Dass
 
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.
 

26.   We are of the opinion the High Court traveled

 
beyond the well defined contours of its jurisdiction under
 
Article 227 of the Constitution of India.
 

27.   We, 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.

                                                 35

 
 
 
 

                      ...................................J.

                      [B.Sudershan Reddy]

 
 
 
                      ...................................J.

                      [Surinder Singh Nijjar]

 
New Delhi;
September 23, 2010.

 

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