ivil Appeal No 2279 of 1991
From the Judgment and Order dated 2791989 of the Bombay High Court in CRA No 500 of 1985
SC Birla for the Appellant
VN Ganpule SV Deshpande and Ms Priya Gupta for the Respondent
The Judgment of the Court was delivered by RAY J
We have heard learned counsel for the parties and we grant special leave
This appeal on special leave is directed against the judgment and order passed in Civil Revision Application No 500 of 1985 by the High Court of Judicature at Bombay Aurangabad Bench allowing the Revision setting aside the judgment and decree passed by the District Judge in Rent Appeal No 5 of 1984 confirming and allowing the judgment and order of the Additional Rent Controller Aurangabad in RC No ARC713
The matrix of the case is as follows The appellant landlord Chandmal So Sumermal Surana as plaintiff filed a suit for eviction of the respondent defendent Firm Ram Chandra  Vishwanath a commission agent firm from his shop bearing Municipal No 4 16 101 situated a Mondha Taluka District Aurangabad maharashtra under section 153aiii of the Hyderabad House Rent Eviction and Lease Control Act 1954 to be hereinafter to be referred to as the said Act on the ground inter alia that the respondent was the tenant of the said shop attached to the said house of the appellant landlord on the monthly rent of Rs50 per month and the tenancy commences from the Ist day of every month according to the English calendar that the landlord appellant required the suit shop for his own personal use as he intended to start commission agency and other business in the said shop that he terminated the tenancy of the respondency of the respondent by serving the two notices dated 2831969 and 8121970 and that the respondent did not vacate the suit premises hence the suit has been filed for eviction of the tenant respondent from the said premises
Shankarrao Marutirao Sonawane 735 one of the partners of respondent firm filed his written statement before the Additional Rent Controller accepting the ownership of the appellant and tenancy of the respondent at the rate of Rs 50 per month
He however denied the appellant s allegation that he required the suit premises for his personal use
According to the respondent the appellant is a member of Hindu joint family comprising of his father Sumermal his real brothers and appellant and as one of the partners of registered firm runs a kirana of commission agency shop under the name and style of Ms Rajmal Sumermal Surana
It has been further submitted that the appellant owns many houses and shops at Aurangabad and also runs a very big shop at Bhaji Bazar Aurangabad and is not entitled to evict
In the additional written statement it has been further stated that the appellant purchased the house from Balkrishna and brothers the firm Ramchandra and Vishwanath is a partnership firm registered under the Partnership Act one of the partners of the firm Ramchandra and Vishwanath is occupying the house as a permanent tenant since Samwat 2002
It has also been contended that the partners of the firm are not made parties to the eviction proceedings and hence the suit was not tenable
An additional issue was framed at the request of the appellant which was to the following effect Do defendant prove that he is permanent tenant and his claim is bona fide
 The trial court considering the evidences adduced on behalf of the defendant respondent held that the defendant failed to prove the claim of permanent tenancy of Ramchandra Madhavrao since Samvat 2002 over the suit premises and that the claim of permanent tenancy is not bona fide
This issue was thus answered in the negative
The Additional Rent Controller therefore held that the appellant is entitled to evict the respondent from the suit premises in view of the provisions of Section 152 vi of the said Act and therefore Made an order directing the tenant respondent to hand over vacant and peaceful possession of the said shop to the landlord appellant within a period of 30 days of the order though he negatived the plea of bona fide requirement of suit premises for his own occupation
The order was made on February 14 1984
Against this judgment and order the tenant respondent filed an appeal being Rent Appeal No 5 of 1984 under section 25 of the said Act in the court of 736 District Judge at Aurangabad
The learned District Judge confirmed the judgment and order of the Additional Rent Controller holding that the landlord failed to prove that he bona fide required the premises for personal use for starting new business
It was further held that so far as the claim of permanent tenancy there was no iota of evidence to support the tenant respondent s claim of permanent tenancy
It also held that the tenant respondent has put forth the claim of permanent tenancy to defeat the landlord appellant s right to claim possession of the premises and had there been any substance in the claim the tenant respondent would have produced evidence in support of it
Complete absence of evidence indicated that the claim is fake and not put forth bona fide
The learned District Judge therefore held that the tenant s claim of permanent tenancy was not bona fide and so upheld the finding of the Additional Rent Controller and granted three months  time to the tenant respondent to deliver possession of the suit premises to the landlord appellant
The tenant respondent feeling aggrieved filed an application for Revision under Section 26 of the said Act in the High Court at Bombay Aurangabad Bench being Civil Revision Application No 500 of 1985
The said Revision Application was allowed by the learned Single Judge setting aside the concurrent finding of the courts below holding inter alia that in the reply of the tenant to the notices sent by the landlord there was no semblance of a claim for permanent tenancy
It was further held that in the written submission there was no whisper about the claim of permanent tenancy
It is for the first time that in the additional written statement filed on behalf of the tenant the claim of permanent tenancy by one of the partners Ramchandra Madhavrao since Samwat 2002 was made
It has also been held that during the trial Shankarrao Marutirao Sonawane one of the partners of the respondent firm who has signed the written statement has not uttered a word in his examination in chief with regard to the question of permanent tenancy
It was therefore held that in these circumstances it is the duty of the Court in the interest of justice to interfere even with a concurrent finding of fact because on the record I find that there is not a single factor to come to the conclusion that the claim was mala fide or was not bona fide as is required by the statute
 The learned Single Judge therefore set aside the judgments of the courts below and allowed the Revision Application with costs throughout
It is against this judgment and order the instant appeal on 737 special leave has been filed by the landlord
It is convenient to set out hereinbelow the relevant provisions of Section 152vi of the said Act before proceeding to consider whether the High Court was justified in setting aside the judgment and order of the courts below Section 152vi A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section vi that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bona fide the Controller shall make an order directing the tenant to put the landlord in possession of the house and if the Controller is not so satisfied he shall make an order rejecting rejecting the application
 It is also pertinent to set out in this connection the provisions of Section 26 of the said Act Section 26 Notwithstanding anything contained in this Act or any other law for the time being in force an application for revision shall lie to the High Court from any final order passed on appeal by an appellate authority on the following grounds a that the original or appellate authority exercised a jurisdiction not vested in it by law or b that the original or appellate authority failed to exercise a jurisdiction so vested or c in following the procedure or passing the order the original or appellate authority acted illegally or with material irregularity
 There is no dispute regarding the submission made in para 9 of the additional written statement which is a part of the same written statement filed on behalf of the respondent by one of its partners Shankarrao Marutirao Sonawane to the effect that one of the partners 738 of the said firm Ramachandra Madhavrao is occupying the house as a permanent tenant since Samvat 2002
Admittedly on the basis of this additional written statement an additional issue No 1 was framed at the request of the landlord appellant whether the claim of permanent tenancy of Ramchandra Madhavrao was bona fide
It is evident from the provisions of Section 152vi as set out hereinbefore that if the tenant has claimed a right of permanent tenancy and that such claim was not bona fide the Controller shall make an order directing the tenant to put the landlord in possession of the house
The Additional Rent Controller as well as the District Judge considered carefully and minutely the evidences adduced on behalf of the tenant respondent and found that claim of permanent tenancy was not bona fide
Accordingly the courts below held that the tenant respondent was liable to be evicted from the suit premises on this ground alone and passed order for eviction from the suit premises
The jurisdiction of the High Court in revision against the order passed on appeal by the District Judge is a limited one and it is almost pari materia with the provisions of Section 115 of the Code Procedure
The High Court while exercising the revisional jurisdiction can interfere with the order passed on appeal by the appellate authority only on three grounds ie i where the original or appellate authority exercised a jurisdiction not vested in it by law or ii where the original or appellate authority failed to exercise a jurisdiction so vested or iii where in following the procedure or passing the order the original or appellate authority acted illegally or with material irregularity
It is evident from the averments made in para 9 of the additional written statement that one of the partners of the respondent firm Ramchandra Madhavrao occupied the said premises as a permanent tenant since Samvat 2002
This claim of permanent tenancy was held to be not bona fide by the original court as well as by the appellate authority on a consideration and appraisement of the evidences adduced on behalf of the tenant respondent and as such both the courts below passed order of eviction of the tenant respondent from the suit premises
These are admittedly concurrent findings of fact arrived at by the original and the appellate authority
Moreover these findings in any view of the matter whatsoever cannot be held to be either without jurisdiction nor it can amount to a failure to exercise jurisdiction vested with them nor it can be held to be made by the original or appellate authority illegally or with material irregularity
The revisional jurisdiction of the High Court under Section 26 of the said Act is confined strictly to the jurisdictional error or illegal exercise of jurisdiction
The finding of the High Court to the effect 739 that it was the duty of the Court in the interest of justice to interfere even with the concurrent finding of facts because on the records High Court found that there was not a single factor to come to the conclusion that the claim was mala fide or was not bona fide as required by the statute is entirely baseless and not in accordance with the provisions of Section 26 of the said Act which confers revisional jurisdiction on the High Court
It is pertinent to mention in this connection the decision in J Pandu vs R Narsubai It is a case under the AP Buildings lease Rent and Eviction Act 1960
Sub section 2vi of Section 10 of AP Buildings Lease Rent and Eviction which is similar to Section 152vi of the Hyderabad Houses Rent Eviction and Lease Control Act 1954 sets out two grounds of eviction viz 1 denial of title of the landlord without bona fides and 2 claim of permanent tenancy rights without bona fides
It was held that consequently either denial of title or claim of permanent tenancy without bona fides will itself be enough to attract Section 102vi
The order of eviction on this ground has therefore to be sustained
By reason of this conclusion alone the appeal can be dismissed
 In the case of Majati Subbarao vs PVKKrishna Rao deceased by Lrs it has been observed that the denial of title of the landlord by the tenant must be made in clear and in unequivocal terms
It was further observed that it is well settled that the court hearing a suit or appeal can take into account events which are subsequent to the filing of the suit in order to give appropriate relief or mould the relief appropriately
As we have stated hereinbefore that the claim of permanent tenancy by one of the partners Ramchandra Madhavrao has been clearly and unequivocally made in the additional written statement filed on behalf of the respondent
In such circumstances the provisions of Section 152vi of the said Act are applicable and an order of eviction can very well be passed on this ground alone
In the premises aforesaid the judgment and order passed in revision by the High Court is contrary to law as the High Court in exercise of its revisional jurisdiction interfered with the concurrent finding of fact arrived at by the original court as well as the appellate authority
The High Court should not have reversed the same in excise of its revisional jurisdiction under Section 26 of the said Act
We therefore set aside the judgment and order of the High Court and uphold the orders of the court below
The respondent is given three 740 months  time to vacate the suit premises on filing the usual undertaking that they will not induct anybody or transfer the same to any other person and they will go on paying the rent of the premises at the usual rate and will deliver vacant and peaceful possession of the suit premises on or before the expiry of the said period to the landlord appellant
In the facts and circumstances of the case the parties will bear their own costs
VPR Appeal allowed


Summary:
The appellants are HT electricity consumers of various categories in the State of Andhra Pradesh
The respondent State Electricity Board the Board by its orders BP Ms No 1014 dated 13121983 revised upwards the tariffs for various categories of consumers including HT categories 1 Industrial and II Non Industrial and by Memo No DECOMLIV225083I of the same date it revised upwards the electricity tariffs for highly power intensive industries falling under 644 HT Category III
Tariffs consisted of three parts
The said three categories of HT consumers fell in Part A HT consumers availing supply of electricity for irrigation and agricultural purposes were included in part B provided for miscellaneous and general charges
Tariffs were not revised for consumers availing HT supply for purposes of irrigation and agriculture falling in part B or LT supply for domestic cottage industries public lighting and small poultry farms units
Besides the energy charges the HT consumers included in Part A were also required to pay at different rates effective from 191982 an additional charge levied as fuel adjustment charges  and some amount as voltage surcharged  in accordance with the terms of the agreement entered into by the individual consumers with the Board
The writ petitions filed by the appellants challenging the said upward revision of the Electricity Tariffs were dismissed by the High Court upholding the revision of tariffs made by the respondent Board
Aggrieved the appellants preferred appeals by special leave to this Court
It was contended on behalf of the appellants that 1 the upward revision of tariffs by the State Electricity Board was invalid being made without prior consultation with the State Electricity Consultative Council as envisaged by section 16 of the  2 without specification of any surplus by the State Government the Board had no power to adjust its tariffs in a manner which resulted in generating any surplus 3 there is discrimination in recovery of the entire full cost adjustment from the HT consumers alone 4 the upward hike of the tariffs for the HT consumers including power intensive consumers was arbitrary and discriminatory inasmuch as it was not related to the cost of generation and was based on irrelevant factors and 5 and the Board had acted with profit motive losing its public utility character
Learned counsel representing the power intensive consumers also contended that in the absence of a clause relating to fuel cost adjustment in the GOs
issued in respect of the power intensive units they could not be governed by the clause of fuel cost adjustment made applicable to the HTtariffs
Dismissing the appeals this Court HELD 11 The power of fixation of tariffs in the Board is provided by section 49 of this Supply Act which requires the fixation of uniform 645 tariffs ordinarily having regard particularly to the specified factors and enables fixation of such tariffs for any person having regard to the factors expressly stated and any other relevant factors providing further that no unreasonable or undue preference shall be shown to any person by the Board in exercise of its powers of fixing the tariffs
section 59 requiring the Board to adjust the tariffs for the purpose of its finance is to be read along with section 49
667B C 668B C 12
The common premise for the purpose of the instant case that the revision of tariffs by the State Electricity Board is a question of policy may indicate that it would be open to the Consultative Council to advise the Board also on the question of revision of tariffs and if such advice is given then the Board must consider the same before taking the final decision
That however does not necessarily mean that where no such advice was taken from the Consultative Council or was rendered on account of the absence of any meeting during the relevant period it would necessarily render invalid the revision of tariffs made by the Board
664A B Though it is advisable to seek advice of the Consultative Council before revision of the tariffs yet failure to do so does not result in invalidation of the revised tariffs
This consequence appears to be the logical and reasonable view to take of the requirement of section 16 alongwith other provisions of the Act
666A B 13 The consequence of non compliance of section 16 is not provided and the nature of function of the Consultative Council and the force of its advice being at the best only persuasive it cannot be said that revision of tariffs without seeking the advice of the Consultative Council renders the revisions of tariffs invalid
664B C 14 It is also significant that the annual financial statement containing all particulars relating to revision of tariffs is required to be submitted to the State Government in February each year and the State Government is required after receipt of such statement to cause it to be laid on the table of the House or Houses of the State Legislature and the said statement is open to discussion therein
The Board is bound to take into consideration any comments made on the said statement in the State Legislature
The laying procedure  before the legislature effectively controls the exercise of the delegated power of the Board
Thus there is ample provision for discussion on the revised tariffs in the State Legislature with the Board being bound to take into consideration any comments made thereon
664C D 666A 646 Kerala State Electricity Board vs Ms SN Govinda Prabhu  Bros  Ors
   relied on
21 Mere generation of surplus by the Board as a result of adjusting its tariffs when the quantum of surplus has not been specified by the State Government after the 1978 amendment of section 59 of the Act cannot invite any criticism unless it is further shown that the surplus generated as a result of the adjustment of tariffs by the Board has resulted in the Board acting as a private trader shedding off its public utility character
If the profit is made not merely for the sake of profit but for the purpose of better discharge of its obligations by the Board it cannot be said that the public enterprise has acted beyond its authority
669C E 22 The general principle for the Boards finance indicated by section 59 is that prior to the 1978 amendment tariffs could be adjusted to avoid any loss but as a result of the shift made by the 1978 amendment the power could be exercised to generate a surplus and when the State Government specified the amount of surplus then the Board was bound to adjust the tariffs to ensure generation of the specified surplus
However generation of a reasonable surplus in any year of account without specification of the surplus amount by the State Government was not contra indicated in the provision inasmuch as the duty to generate a surplus was implicit with the added obligation to ensure generating surplus to the extent specified by the State Government when it was so specified by it
It cannot be accepted as a reasonable view that in the absence of specification of the surplus by the State Government the Board could not adjust its tariffs to generate even a reasonable surplus in any year of account
668E G 23 In the instant case the Board showed that the surplus resulting from upward revision of tariffs applicable to the HT consumers was for the purpose of better discharge of its other obligations under the Supply Act and in effect the same has merely resulted in a gradual withdrawal of the concessional tariffs provided earlier to the power intensive consumers which did not in its opinion require continuance of the concessional tariffs any longer
It was not proved that this assertion of the Board was incorrect or there was any reasonable basis to hold that the upward revision of tariffs applicable to HT consumers was merely with a desire to earn more profits like a private trader and not to generate surplus for utiliasation of the funds to discharge other obligations of the Board towards more needy consumers such as agriculturists or to meet the needs of expansion of the supply to deserving areas
669E G 647 31 The HT consumers including the power intensive consumers are known power guzzlers and in power intensive industries electricity is really a raw material
This category of consumers therefore forms a distinct class separate from other consumers like LT consumers who are much smaller consumers
There is also a rational nexus of this classification with the object sought to be achieved
Moreover the power intensive consumers have been enjoying the benefit of a concessional tariff for quite some time which too is a relevant factor to justify this classification
Placing the burden of fuel cost adjustment on these power guzzlers who had the benefit of concessional tariffs for quite some time and have also a better capacity to pay cannot therefore be faulted since the consumption in the power intensive industries accounts for a large quantity
670B C 32 It is not unreasonable to take the view that the thermal power has become costlier on account of the increase in fuel cost and could notionally be allocated to the consumption by HT and power intensive consumers and therefore the fuel cost adjustment is made applicable to them alone
671E F 41 The Court would not strike down the revision of tariffs as arbitrary unless the resulting surplus reaches such a height as to lead to the inevitable decision that the Board has shed its public utility character and is obsessed by the profit motive of private entrepreneur in order to generate a surplus which is extravagant
672A B 42 The surplus generated by the Board as a result of revision of tariffs during the relevant period cannot be called extravagant by any standard to render it arbitrary permitting the striking down of the revision of tariffs on the ground of arbitrariness nor is it discriminatory
It was pointed out on behalf of the Board that its action was based on the opinion of Rajadhyaksha Committee s report submitted in 1980 and the formula of fuel cost adjustment was on a scientific basis linked to the increase in the fuel cost
This is a possible view to take and therefore the revision of tariffs by the Board does not fall within the available scope of judicial review
672C D Kerala State Electricity Board vs Ms SN Govinda Prabhu and Bros  Ors   relied on
Shri Sitaram Sugar Company Limited  Anr
vs Union of India  Ors
   followed
648 5
It cannot be said that the term relating to fuel cost adjustment had no application to the power intensive consumers during the relevant period
The Memo dated 18111975 did not merely extend the non specified terms and conditions of supply  applicable to normal HT consumers to the power intensive consumers but also other charges which were merely illustrated by the words such as Misc
charges terms and conditions of supply not mention herein
This express provision in the said Memo clearly provided that except for the provision specifically made for power intensive consumers in respect of all other provisions the power intensive consumers were to be governed by the provisions by whatever name called applicable to the normal HT consumers
However in the bills issued to the power intensive consumers the terms relating to fuel cost adjustment was specifically indicated
673D H 674A Nav Bharat Ferro Alloys Ltd vs APSE Board Hyderabad AIR 1985 AP 299 approved