HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No. 1953/2010 [ENTITY] son of Shri Suresh Chand Khinvsara, resident of A.M.C. No. 7/10, Sardar Patel Marg, Ajmer. Petitioner Versus 1. [ENTITY], Ajmer 2. [ENTITY]. 3. Smt. [ENTITY] wife of Shri Amarnath Bhargava, resident of 1A/10, Sardar Patel Marg, Ajmer. 4. Smt. [ENTITY] wife of Shri Narendra Malik and daughter of Late Shri Amar Nath Bargava, resident of 1A/10, Sardar Patel Marg, Ajmer. 5. [ENTITY] son of Late Shri Amar Nath Bargava, resident of 1A/10, Sardar Patel Marg, Ajmer mentally retarded through his natural guardian (mother) Smt. [ENTITY] wife of Shri Amarnath Bhargava, resident of 1A/10, Sardar Patel Marg, Ajmer. 6. Smt. [ENTITY] daughter of Late Shri Amar Nath Bhargava, resident of 1A/10, Sardar Patel Marg, Ajmer. Respondents For Petitioner(s) : Mr. [ENTITY], Adv. With Mr. [ENTITY], Adv. For Respondent(s) : Mr. [ENTITY], Adv. HON'BLE MR. JUSTICE [ENTITY] Order reserved on 11.04.2019 Order pronounced on 10.05.2019 ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (2 of 21) [CASE NUMBER]] 1. The petitioner by way of this writ petition challenges the judgment dated 21.04.2007 passed by the Rent Tribunal Ajmer and the judgment dated 21.12.2009 passed by the Rent Appellate Tribunal whereby the appeal preferred by the petitioner against the judgment dated 21.04.2007 was upheld. 2. The brief facts which required to be considered are that the petitioner is a tenant of two shops situate at A.M.C. No.7/10, Sardar Patel Marg, Ajmer belonging to the landlords-respondent Nos.3 to 6. The same was taken on rent on 10.10.2001 and a rent note was executed. An application under [SECTION] of the [ACT] (hereinafter referred to as 'the Act of 2001') was filed before the Rent Tribunal alleging that the petitioner-tenant has not paid rent for the period from 01.07.2005 to 31.10.2005. A registered notice has been sent on 03.11.2005 which was received by him on 05.11.2005, however the rent was not deposited within a period of 30 days from the date of notice. It was submitted that the rent was also not deposited in the bank account which was known to the tenant. A notice was sent by the tenant on 09.01.2006 which was received by the landlord- applicant on 14.01.2006 wherein it was mentioned that the petitioner-tenant had deposited a sum of Rs.44,390/- as the rent for the month of July to September 2005 @ 7245/- and for the month of October @7475/- and rent for November and December 2005 @ 7590/- in the account of the landlord on 12.12.2005 vide cheque and thus there has been a default of non-payment of rent for more than 4 months after the period of notice and 30 days thereafter in terms of the provisions of [SECTION] of the Act of 2001 and thus therefore liable to be evicted. ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (3 of 21) [CASE NUMBER]] The tenant submitted reply to the application and pointed out that no bank account has been mentioned in the notice and thus the mandatory provisions of the Act has not been complied with as soon as the account number was sent, the rent was deposited to the bank on the very next date and no default has been committed by the petitioner-tenant. It was also further submitted that the notice was not in accordance with the order passed by the Rent Tribunal in the [CASE NUMBER] filed by the landlord under [SECTION] of the Act for revision of rent. The respondent-landlord filed rejoinder to the reply and it was stated that the bank account number was already informed to the petitioner-tenant vide its earlier notice dated 29.09.2003 which was given for the purpose of revision of rent and the Tribunal while receiving rent had also mentioned it in its order dated 08.12.2003. It was also stated that the petitioner had deposited the rent in the bank account earlier and a receipt dated 08.01.2004 was produced in evidence. 3. Considering all the aspects the Rent Tribunal vide its order dated 21.04.2007 proceeded to hold that the petitioner-tenant had committed default in terms of [SECTION] of the Act of 2001 and was therefore liable to be evicted. It proceeded to hold that the account number had already been known to the tenant and therefore there was no necessity to again mention the account number in the notice. The Appellate Tribunal confirmed the said order in appeal preferred by the petitioner holding that there was no requirement to submit the account number in the notice. The petitioner thereafter filed the present writ petition and vide order dated 12.03.2010, the writ petition was admitted and the effect and operation of the orders passed by the Rent Tribunal as well as ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (4 of 21) [CASE NUMBER]] the [ENTITY] was stayed and thus the petitioner continued to remain in the rented premises. 4. Counsel for the petitioner in the present writ petition has raised new grounds stating that the tenancy of the premises was admittedly from the 10th of October 2001 and as the tenancy starts from 10.10.2001, the notice served upon the petitioner vide Exhibit-4, was erroneous and contrary to the terms of the tenancy. Further arguing on the said count, learned counsel has taken this Court to the notice dated 03.11.2005 wherein the alleged default is started from 01.07.2005 to 31.10.2005. Learned counsel has also taken this Court to the order dated 08.12.2003 passed under [SECTION] of the Act of 2001 whereby the Rent Tribunal had revised the rent to Rs.6,900/- holding the revision to be effected from 10.10.2001. It is thus his submission that if the tenancy is treated from 10th of each month, then the notice dated 03.11.2005 cannot be said to be for the period of 4 months default and was thus contrary to the provisions of [SECTION] of the Act of 2001. 5. Learned counsel also submits that as per the provisions of the [ACT], the rent note was not duly registered. Learned counsel further submits that in terms of [SECTION] of the Act of 2001, the tenant is required to pay the rent by 15th day of the month next following the month for which the rent is payable. The notice as contemplated under II proviso to [SECTION] can only be given demanding arrears of rent when the period of payment of the same had expired. Accordingly it is submitted that the notice given prior to the last date of payments of the rent, it is invalid notice, 30 days would only given for payment of rent after the notice has been given. Thus for the ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (5 of 21) [CASE NUMBER]] month of October, 2005, the petitioner was entitled to the payment the of rent uptil 15.11.2005 and the landlord could have given only notice after 15.11.2005 and the petitioner was entitled to pay the rent within 30 days after the receipt of the notice. Since the notice was given in the present case on 03.11.2005, the same was invalid. It is further submitted that as the petitioner was entitled to deposit the rent uptil 03.11.2005 a period of 30 days is counted from 15.11.2005 then the petitioner was entitled to deposit the rent on or before 15.12.2005 and as the petitioner had deposited the rent prior to 15.12.2005 i.e. 12.12.2005 the same will be treated as a valid deposit and the petitioner cannot be said to have committed the default. Learned counsel further submits that the courts below have committed a perversity in holding that it was not necessary for mentioning the bank account under II Proviso to [SECTION] of the Act of 2001 as the bank account was already intimated to the tenant earlier. It is submitted that though the tenant had earlier deposited the rent in the bank account, the respondent No.3 had opted for payment of rent in cash and the same was personally paid to the respondent in cash. Once the landlord stopped taking rent personally it was necessary for the landlord to have intimated the bank account and the landlord cannot take benefit by creating circumstances as in order to make a ground for an eviction. During the course of argument, learned counsel for the petitioner has also argued that the rent note could not have been relied upon as the same was not registered and duly stamped. 6. Learned counsel has relied on the judgment of the Supreme Court in the case of [ENTITY] Versus Managing Committee, Dr. [ENTITY] (Co-education) Higher Secondary ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (6 of 21) [CASE NUMBER]] School and others, [PRECEDENT], to submit that the plea not specifically raised before the subordinate Tribunals or Administrative Authorities, can be raised for the first time in the High Court, if the plea goes to the root of the question and has also relied on [PRECEDENT], [PRECEDENT] urging that new plea can be raised. Learned counsel further submits that as the period of rent note had expired, the petitioner had become a statutory tenant and the terms and conditions of the rent note would not be applicable on the petitioner and the provisions of the Act of 2001 shall apply. In support thereof, he relied on [PRECEDENT] [PRECEDENT]. 7. As regards the unregistered lease deed, the petitioner has relied on [PRECEDENT], [PRECEDENT], [PRECEDENT], [ENTITY] and Anr. (Defendants-Appellants Vs. [ENTITY] And Anr. (Plaintiffs-Respondents), to submit that the unstamped deed is not admissible. He also relied on [PRECEDENT], to submit that the unstamped deed is not admissible for any purpose. It is also submitted that the objections regarding inadmissibility of document can be taken up at any stage and relies on [PRECEDENT], [PRECEDENT]. 8. Per contra, learned counsel appearing for the respondent has submitted that the only plea in defence taken up by the petitioner, ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (7 of 21) [CASE NUMBER]] both before the Rent Tribunal as well as before the [ENTITY], was with regard to non furnishing of the account number in terms of the proviso II to [SECTION] of the Act of 2001, no other plea was taken before both the courts below and it is submitted that the proceedings in the writ petition are not to be decided as an appeal. It is further been submitted that the order dated 08.12.2003 has not been correctly mentioned by the petitioner in this writ petition. While earlier deciding the revision of rent by the order dated 12.08.2003, the Rent Tribunal had specifically mentioned the bank account number of the respondent-landlord and thus there was no requirement to again submit the bank account number to the petitioner-tenant in the notice however petitioner concealed that part of order while quoting order dated 08.12.2003. Further, while answering to the pleas which have been taken up before this Court, learned counsel submits that while the rent deed was from 10.10.2001, however in the rent deed itself it has been mentioned that the receipt of rent shall be given on 1st of the month. It is also submitted that the first receipt of the rent, received by the respondent specifically mentions of the rent for period from 10 th October to 30th November. Learned counsel submits that as there was no such argument raised before the Rent Tribunal or before the [ENTITY], fact regarding the tenancy having been shifted from 10th of the month to 1st of the each month was not a subject matter of contest and is being answered as the same has been raised for the first time before this Court. Copy of the first receipt has also been placed on record alongwith the reply to the present writ petition. ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (8 of 21) [CASE NUMBER]] Learned counsel for the respondent has also produced the rent note which was duly signed between the parties and submits that in the rent note itself it was also mentioned that the receipts for the rent shall be given for advance rent on 1 st date of the month and thus the rent note also intended to keep the tenancy from 1st day of the month. Therefore, in the circumstances the notice sent to the petitioner was in order and cannot be said to be in any manner contrary to the provisions of the Act of 2001. Learned counsel has also pointed out from the notice that a specific mention has been made for demand of payment of rent for the period from 01.07.2005 to 09.10.2005 and enhanced rent by 5% from 10.10.2005 in terms of the revision of rent order as per [SECTION]. 9. Learned counsel for the respondent has further submitted that provisions of [SECTION] of the Act of 2001 would not applicable for examining a case of eviction on default in terms of [SECTION], both the provisions are independent of one another and the period as provided under [SECTION] would not be applicable for the purpose of considering the default in terms of [SECTION] of the Act. It is further submitted that no such argument was neither taken up by the petitioner before Rent Tribunal or in appeal nor the same has been taken as a ground in the writ petition thus petitioner cannot be allowed to raise ground which have not been taken as a defence before the Tribunals. A new plea of defence not being part of the written statement/reply cannot be taken up in the writ proceedings. The provisions of [ACT] apply for disposal of the application under the [ACT]. 10. Learned counsel for the respondent has relied on [PRECEDENT] [ENTITY] (deceased) through legal ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (9 of 21[PRECEDENT], to submit that the account number was not required to be conveyed once the same was already conveyed and informed to the tenant earlier. Learned counsel further relies on 2015 (1) DNJ Raj. 408 [PRECEDENT] Rashid Khan Vs. The [ENTITY], (District & Sessions Judge), Dholpur & Anr., AIR 1967 SC 1078 Mrs. [PRECEDENT] [PRECEDENT] [PRECEDENT]. Vs. [ENTITY]., (2010) 8 SCC 329 [PRECEDENT] [PRECEDENT] [PRECEDENT] The Estralla Rubber Vs. Dass Estate (P) Ltd., [PRECEDENT] and 2013 (2) [PRECEDENT] [ENTITY] & Anr. 11. Before examining the aforesaid submissions raised at bar from both the sides, it would be appropriate for this Court to consider the various provisions of the Act of 2001, which reads as under:- "[SECTION] Payment and remittance of rent by tenant:- (1) Unless agreed otherwise every tenant shall pay the rent by the fifteenth day of the month next following the month for which the rent is payable. (2) Every tenant who makes a payment on account of rent shall be entitled to obtain a receipt of the ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (10 of 21) [CASE NUMBER]] amount paid duly signed by the landlord or his duly authorised agent. (3) A tenant may make payment to the landlord or his duly authorised agent, by the any of the following methods:- by personal payment, by cash, by Cheque or Bank Draft, or by payment in the bank account a may be specified by the landlord, or by remitting through postal money order. (4) The landlord shall disclose to the tenant his bank account number and name of the bank in the same municipal area, in the rent agreement or by a notice sent to him by registered post, acknowledgement due. [SECTION] Eviction of tenants- Notwithstanding anything contained in any other law or contract but subject to other provisions of this Act, Rent Tribunal shall not order eviction of tenant unless it is satisfied that,- (a) the tenant has neither paid nor tendered the amount of rent due from him for four months: Provided that the ground under this clause shall not be available to the landlord if he has not disclosed to the tenant his bank account number and name of the bank in the same municipal area, in the rent agreement or by a notice sent to him by registered post, acknowledgement due: Provided further that no petition on the ground under this clause shall be filed unless the landlord has given a notice tot he tenant by registered post, acknowledgement due, demanding arrears of rent and the tenant has not made payment of arrears of rent within a period of thirty days from the date of service of notice; Explanation:- For the purposes of this clause, the rent shall be deemed to have been tendered when ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (11 of 21) [CASE NUMBER]] the same is remitted through money order to the landlord by properly addressing the same; or" 12. From the perusal of the aforesaid provisions, it is thus apparent that the landlord has a right to initiate proceedings for eviction in terms of [SECTION] upon the tenant for not tendering or depositing the arrears of rent within a period of 30 days from the date of service of notice. However, the provisions of [SECTION] would apply provided the tenant has been disclosed the bank account number of the landlord and the name of the bank. The said disclosure must be either in the rent agreement or by a notice sent to him by a registered post. The 1 st proviso to [SECTION] is independent of the II proviso to [SECTION] and lays down two conditions which are required for maintaining an application under [SECTION]. While as per the 1 st proviso the landlord must disclose the bank account number and name of the bank to the tenant by way of mentioning the same in the rent agreement or by a notice to him by a registered post while the II proviso speaks about landlord giving a notice to the tenant demanding arrears of rent and the tenant has not made payment of arrears of rent within a period of 30 days from the date of service of commencing. Thus a notice for payment of arrears of rent does not require to mention the account number and name of the bank account if it has already been disclosed to the tenant by a separate notice or mentioned in the rent agreement. In view thereof, considering the facts of the case, the Rent Tribunal vide its order dated 08.12.2003 had mentioned of the account number where the tenant was required to deposit the rent as revised by the Tribunal. While it is noticed that the petitioner has concealed the said part of the order dated 08.12.2003 and not ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (12 of 21) [CASE NUMBER]] completely quoted the order in his writ petition, the respondent has placed on record the order alongwith his reply and it mention of the account number of the landlord in HDFC Bank Account No.2051000013120, where the amount was to be deposited. Thus the condition of the 1st proviso to [SECTION] stood fulfilled when the notice for revision of rent was given to the petitioner by the landlord-respondent and the Tribunal mentioned it in order while receiving the rent. 13. In [ENTITY] (deceased) through legal heirs Vs. Smt. Kailash Bai (supra), the Coordinate Bench of this Court has observed with regard to a similar case as under:- "8. In so far as the findings recorded by learned Rent Tribunal and the [ENTITY] on the question of default is concerned, admittedly when the first notice was served by the respondent-landlord on the petitioners-tenant on 27.04.2007 conveying her bank account number, mere fact that default of four months period was not committed by that time, cannot be a reason to overlook the bank account number, which stood conveyed to the petitioners-tenant. Even if therefore in the subsequent notice when the default of four months had already committed the bank account was not conveyed, the requirement of law contained in [SECTION] of the [ACT], the bank account number should be conveyed on the ground of default, the requirement of conveying the bank account number after default of four months stood substantially complied with " In view of this Court, therefore, the argument which was taken up as a defence before the Rent Tribunal as well as before ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (13 of 21) [CASE NUMBER]] the [ENTITY] is found to be without any basis and the Rent Tribunal as well as the [ENTITY] have rightly rejected the same. 14. The next question regarding whether there was a default of more than four months or not is essentially a question of fact and the findings on the said question of fact have been arrived at by both the Rent Tribunal as well as by [ENTITY], which do not therefore require to be interfered with in writ proceedings. 15. It is a settled position of law that the Court in writ jurisdiction would not interfere with the findings of fact as held by the Apex Court in [PRECEDENT] (supra), the view taken by the Apex Court in the said case has been consistently followed in AIR 1951 SC 215 [ENTITY] & Anr. Versus Amarnath & Anr., 254, and also in [PRECEDENT]. (supra), [PRECEDENT]. Vs. [ENTITY]. (supra), [PRECEDENT] (supra). 16. In [PRECEDENT] (supra), wherein the Supreme Court formulated the various aspects where the Court may interfered under [SECTION], reads as under:- "49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under [SECTION] of the [ACT] may be formulated: (a) A petition under [SECTION] of the [ACT] is different from a petition under [SECTION]. The mode of exercise of power by ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (14 of 21) [CASE NUMBER] under these two Articles is also different. (b) In any event, a petition under [SECTION] cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under [SECTION] and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under [SECTION] of the [ACT], interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the [ACT] Bench of this Court in [ENTITY] (supra) and the principles in [ENTITY] (supra) have been repeatedly followed by subsequent [ACT] Benches and various other decisions of this Court. (e) According to the ratio in [ENTITY] (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (15 of 21) [CASE NUMBER]] a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised." 17. The submission of learned counsel for the petitioner that he can raised a new plea at this stage of writ which have not been taken up before both the Tribunal and Appellate Forum below is misconceived. The plea taken up by the petitioner in the writ petition which ought to have been taken up before as a defence before the Rent Tribunal or before the [ENTITY] but were not pressed into service, shall be deemed to have been waived. It is a settled principle of law that a litigant is expected to take up all his submissions before the Court which examines the question of fact. The new plea of the tenancy having been commenced from 10th of the month instead of 1st of the month is a pure question of fact. While the respondent has satisfied this Court that the tenancy was to commence from 1 st month and the 1st rent receipt mentions of paying the rent from 10 th October to 30th November and the other receipts placed by the petitioner himself, shows that the rent was tendered 1st, 3rd, 7th and various dates i.e. prior to 10th of the month, it also shows that the pleading was not taken before the Rent Tribunal and the [ENTITY] as such a plea was baseless and frivolous. ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (16 of 21) [CASE NUMBER]] Similarly, the submissions raised with regard to [SECTION] of the Act of 2001, is found to be baseless. [SECTION] is a condition of payment and remittance of rent by a statutory tenant. The petitioner has not taken up a plea before the Rent Tribunal or before the [ENTITY] that the petitioner was a statutory tenant. Even otherwise, a condition of rent note, which has been agreed upon between the parties, would be relevant and understood to be agreed upon even after the expiry of the said period of rent deed and a different condition other than the agreement would not apply as is apparent from [SECTION]. 18. That apart, a look at [SECTION] of the Act reflects that a landlord is entitled for eviction if the condition is found to be satisfied as provided under [SECTION]. In a similar conditions, the Apex Court in [PRECEDENT] (supra), held as under:- "4. If the conditions of [SECTION] are satisfied, the tenant cannot claim any protection from eviction under the Act. By tendering the arrears of rent after the expiry of the one month from the service of the notice under [SECTION], he cannot claim the protection under [SECTION]. It is immaterial whether the tender was made before or after the institution of the suit. In a case falling within [SECTION], the tenant must be dealt with under the special provisions of [SECTION], and he cannot claim any protection from eviction under the general provisions of [SECTION]." In view of the aforesaid, the contentions of the petitioner are incorrect. ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 12:32:03 AM) (17 of 21) [CASE NUMBER]] 19. The judgment cited by the learned counsel for the petitioner
[ENTITY] Versus Managing Committee, Dr. [ENTITY] (Co-education) Higher Secondary School and others (supra) were on different facts. The Supreme Court in the said case held as under:-
"12. In the facts of the case, there was not only a reasonable apprehension in the mind of the appellant about the bias of one of the members of the enquiry committee, namely, the said Shri [ENTITY] but such apprehension became real when the said Shri [ENTITY] appeared as a witness against the appellant to prove the said charge and thereafter proceeded with the enquiry proceeding as a member of the enquiry committee to upheld the correctness of his deposition as a Judge. The learned Single Judge considering the aforesaid facts came to the finding that the participation of Shri [ENTITY] as a member of the enquiry committee has vitiated the enquiry proceeding because of flagrant violation of the principles of natural justice. Unfortunately, the Division Bench set aside such judgment of the learned Single Judge and dismissed the Writ Petition improperly, to say the least, on a technical ground that plea of bias of Shri [ENTITY] and his acting as a Judge of his own case by being a member of the enquiry committee was not specifically taken before the Deputy Commissioner and also before the appellate authority, namely, the Commissioner by the appellant and as such the said plea should not be allowed to be raised in writ proceedings, more so, when the case of prejudice on account of bias could be waived by the person suffering such prejudice. Generally, a point not raised before the Tribunal or administrative authorities may not be allowed to be raised for the first time in the writ proceeding, more ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (18 of 21) [CASE NUMBER]] so when the interference in the writ jurisdiction which is equitable and discretionary is not of course or must as indicated by this Court in [PRECEDENT] particularly when the plea sought to be raised for the first time in a writ proceeding requires investigation of facts. But if the plea though not specifically raised before the subordinate Tribunals or the administrative and quasi-judicial bodies is raised before the High Court in the writ proceeding for the first time and the plea goes to the root of the question and is based on admitted and uncontroverted facts and does not require any further investigation into a question of fact, the High Court is not only justified in entertaining the plea but in the anxiety to do justice which is the paramount consideration of the Court, it is only desirable that a litigant should not be shut out from raising such plea which goes to the root of the list involved. The aforesaid view has been taken by this Court in a number of decisions and a reference may be made to the decisions in [PRECEDENT]; The [PRECEDENT]. In our view, the learned Single Judge has very rightly held that the Deputy Commissioner was under an obligation to consider the correctness and propriety of the decision of the Managing Committee based on the report of the enquiry committee which since made available to him, showed on the face of it that Shri [ENTITY] was included and retained in the inquiry committee despite objection of the appellant and the said Shri [ENTITY] became a witness against the appellant to prove one of the charges. It is really unfortunate that the Division Bench set aside the decision of the learned Single Bench by taking recourse to technicalities that the plea of bias on account of ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (19 of 21) [CASE NUMBER]] inclusion of Shri [ENTITY] in the enquiry committee and his giving evidence on behalf of the department had not been specifically taken by the appellant before the Deputy Commissioner and the Commissioner. The Division Bench has also proceeded on the footing that as even apart from Charge No. 12, the Deputy Commissioner has also considered the other charges on consideration of which along with Charge No. 12, the proposed order of dismissal was made, no prejudice has been caused to the appellant. Such view, to say the least, cannot be accepted in the facts and circumstances of the case. The learned Single Judge, in our view, has rightly held that the bias of Shri [ENTITY], one of the members of the enquiry committee had percolated throughout the enquiry proceeding thereby vitiating the principles of natural justice and the findings made by the enquiry committee was the product of a biased and prejudiced mind. The illegality committed in conducting the departmental proceedings has left an indelible stamp of infirmity on the decision of the Managing Committee since affirmed by the Deputy Commissioner and the Commissioner. The observation of [ENTITY], C.J. in [ENTITY]'s case ([PRECEDENT]) (ibid) may be referred to in this connection (Para 11):
"Where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent an loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior court or Tribunal or first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (20 of 21) [CASE NUMBER]] which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play, the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or Tribunal of first instance, even if an appeal to another inferior Court or Tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex-facie was a nullity for reasons aforementioned."
However, this Court does not find that the plea taken by the petitioner has any basis nor it can be said that it goes to the root of the case. The case before the Supreme Court in [ENTITY] was relating bias of the Administrative Authorities in matter relating to departmental enquiry and the applicability of principles of natural justice while the proceedings before the Rent Tribunal and the [ENTITY] are treated to be judicial proceedings as provided under [SECTION] of the Act of 2001. It is noticed that both the courts have not relied upon the rent note and therefore the oral submissions of learned counsel regarding the rent note being unregistered and unstamped would have no application as the rent note has been only looked into for collateral purposes. This Court is of firm view that in writ petition new plea regarding question of fact cannot be examined is beyond scope of writ jurisdiction.
20. In view of the above, submissions and grounds raised before this Court which were not raised before the courts below are found to be wholly frivolous and baseless. The petitioner has also concealed from the Court the complete order dated 08.12.2003 ([CASE NUMBER] has been filed in this matter. Please refer the same for further orders) (21 of 21) [CASE NUMBER]] and on that basis alone the writ petition deserves to be dismissed. The writ petition is found to be without merits as above, accordingly, the same is dismissed with cost of Rs.25,000/- to be paid to the respondent.
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