1 (WP4742.94) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4742 OF 1994 Sharad Gangaram Bhagwat ) residing at Sanmitra Housing ) Society, Shivaji Vidyapith Road ) “B” Ward, Kolhapur ) ....Petitioner (Orig. Deft.No.2(B)) V/s 1. Haribhau Tukaram Satpute ) age 67, Occ:Business, residing at ) CTS No. 304 “C” Ward, Shivaji ) Market, Kolhapur ) ) 2. Shashikala Gangaram Bhagwat, ) Occ: household, residing at 39/3 ) Behadewadi, Deccan Gymkhana, ) Pune ) ) 3. Nalini Gangaram Bhagwat, ) Occ: household, residing at ) 13166/3, Govt. Colony, Bandra, ) Bombay. ) ) 4. Rajani Gangaram Bhagwat, ) Occ: household, residing at ) 491 “E” Ward, Shahupuri, ) Kolhapur. ) ) 5. Dilip Gangaram Bhatwat, ) Occ: Service, R/at 2, Krittika-B, ) Sector 5, Srushthi Complex, Mira ) Dist. Thane 401104. ) ...Respondents Mr. R.S. Apte, Senior Counsel with Mr. N.R. Bubna for the Petitioner. 2 (WP4742.94) Mr. G.R. Rege i/b Mrs. Shakuntala Mudbidri for Respondent No.1. CORAM: V. M. KANADE, J. DATE : 9th August, 2011 ORAL JUDGMENT:- 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel appearing on behalf of the Respondent No.1. 2. Petitioner is original Defendant No.2(B) and the Respondent is original Plaintiff. For the sake of convenience parties shall be referred to as “Plaintiff” and “Defendant”. 3. Plaintiff filed a suit against Defendant for eviction on various grounds under the Bombay Rent Act. One of the grounds in the suit was of bona fide requirement. It was alleged in the plaint that the suit premises was required for the purpose of starting business on behalf of his son who was unemployed. It was contended in the plaint that the son of the Plaintiff wanted to start business of selling chappals. Trial Court decreed the suit on the ground of bona fide requirement. The said judgment and order is confirmed by the lower Appellate Court. Being aggrieved by the said judgment and order, Petitioner has preferred this Writ Petition under Article 227 of the Constitution of India. 3 (WP4742.94) 4. It is firstly submitted that in the evidence it had come on record that the Plaintiff was not having good relations with his son and his son was staying separately. It is submitted that this being the position, the contention of the Plaintiff that he required the suit premises bona fide was not correct. Secondly, it is submitted that the Plaintiff has number of premises in his possession in the same area. The learned Counsel for the Petitioner invited my attention to the finding recorded by both the courts below on this issue. 5. On the other hand, the learned Counsel appearing on behalf of the Respondent No.1 submitted that the Courts below had given cogent reasons after taking into consideration the entire evidence on record and held that the bona fide requirement was established by the Plaintiff and that no hardship would be caused to the Defendant if the decree was passed. He submitted that it had come on record that the Defendant had five premises in the same locality and no attempt was made by him to purchase another premises in the said area. 6. After having heard both the Counsel at length, in my view, no case is made out for interfering with the concurrent finding of fact recorded by both the Courts below. Both the Courts below have given cogent reasons while recording the finding that the requirement of Plaintiff was bonafide. The Apex Court in its recent judgment in Shalini Shyam Shetty 4 (WP4742.94) and another vs. Rajendra Shankar Patil1 has observed in para 62 as under:- 62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 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 Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, 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. 1 2010(6) Mh.L.J.661 5 (WP4742.94) (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 Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (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 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 6 (WP4742.94) Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. 7 (WP4742.94) (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.” This being the position, in view of the ratio of the judgment of the Apex Court in the aforesaid case, it will not be possible to substitute the view taken by the lower courts and set aside the finding of fact. Writ Petition is, therefore, dismissed. 8 (WP4742.94) 7. The learned Counsel for the Petitioner submits that the Petitioner would like to approach the Apex Court. Hence, decree not to be executed for a period of 12 weeks. 8. The learned Counsel for the Respondents submits that this Court may direct the Petitioner to give an undertaking that if the Supreme Court does not entertain the SLP, Petitioner shall hand over possession within a particular period of time. Such a direction cannot be given by this Court and Respondents will have to execute the decree in the event Supreme Court does not entertain the SLP which would be filed by the Petitioner. 9. Writ Petition is accordingly disposed of. (V.M. KANADE, J.) 9 (WP4742.94)