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








           CIVIL APPEAL NO.8233 OF 2010

        [Arising out of SLP [C] No.16995 of 2009]

Jai Singh and Ors.                          .. Appellants
Municipal Corporation of Delhi            ..Respondents
and Anr.



           CIVIL APPEAL NO. 8234 OF 2010

         [Arising out of SLP [C] No.1925 of 2008]

Municipal Corporation of Delhi               .. Appellant
Sh. Jai Singh and Ors.                    ..Respondents



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



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


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


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



     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-


6.   The High Court set aside the concurrent findings

recorded by the ARC and ARCT with the following

     "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."



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



     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

     "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



     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



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



         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


      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



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


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.



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



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


would depend on the peculiar facts of each case, with the
sole objective of ensuring that there is no miscarriage of

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

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


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


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


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


      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

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



       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


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



   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


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


       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



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

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



           Court in CM (M) No.31 of 2001 reads as


     "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.


     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

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



     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


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

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

            the wrong court, due to mistake of law.


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


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 :-



     "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

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



     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


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.




                      [B.Sudershan Reddy]


                      [Surinder Singh Nijjar]

New Delhi;
September 23, 2010.


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