# Harish Chandra Agrawal v. III Additional District Judge, Agra and another

- **Citation:** (2005) 1 ILRA 173
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-09-23
- **Case number:** Civil Misc. Writ Petition No. 3467 of 1986
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harish-chandra-agrawal-v-iii-additional-district-judge-agra-and-another-40346
- **Pages:** 6

## Headnote

Constitution
of
India-Art.
226-Writ
Jurisdiction-Exercise of Guidelines for
interference-Only
if
findings
are
perverse.

Held: Para 9

A bare reading of paragraph 38, Subpara (8) of the aforesaid judgment
clearly shows that it clearly prescribes
the guidelines for interference by this
Court in exercise of power under Article
226 of the Constitution of India. On the
question of finding being perverse, it
should
have
considered
the
entire
evidence on record, according to learned
counsel for the petitioner, but I do not
agree with the contention of learned
counsel for the petitioner that the
findings arrived at by the appellate
authority were either perverse, or suffer
from the manifest error or law, so as to
warrant any interference by this Court in
exercise of power under Article 226 of
the Constitution of India.
Case law discussed:
2001 (1) ARC 352
1984 (2) ARC 208
1980 ARC 381
(2003) 6 SCC 675

## Text

http://www.allahabadhighcourt.nic.in
1All] Anil Kumar Prajapati V. Addl. Managing Director, U.P.S.R.T.C., Lucknow & others 173
before the selection committee at the time
of interview and not later on. If the
selection committee allows the benefit of
certificate and documents submitted at
subsequent stage, the spirit of the
selection being conducted on the basis of
interview shall be frustrated. Since the
petitioner did not produce his original
degree at the time of interview, therefore,
the respondents rightly did not consider
for awarding benefit to the candidature of
the petitioner.

10. I do not find any illegality and
infirmity in the order dated 16.7.2001
passed by the Chief Manager (Karmik) of
the Corporation, therefore, the petitioner
is not entitled to any relief as prayed for.

The writ petition is accordingly
dismissed.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2004

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 3467 of 1986

Harish Chandra Agrawal
...Petitioner
Versus
III Additional District Judge, Agra and
another

 ...Respondents

Counsel for the Petitioner:
Sri B.D. Mandhyan
Sri S.C. Mandhyan
Sri Vinod Sinha

Counsel for the Respondents:
Sri B.P. Agarwal
Sri Dinesh Tewari
S.C.

Constitution
of
India-Art.
226-Writ
Jurisdiction-Exercise of Guidelines for
interference-Only
if
findings
are
perverse.

Held: Para 9

A bare reading of paragraph 38, Subpara (8) of the aforesaid judgment
clearly shows that it clearly prescribes
the guidelines for interference by this
Court in exercise of power under Article
226 of the Constitution of India. On the
question of finding being perverse, it
should
have
considered
the
entire
evidence on record, according to learned
counsel for the petitioner, but I do not
agree with the contention of learned
counsel for the petitioner that the
findings arrived at by the appellate
authority were either perverse, or suffer
from the manifest error or law, so as to
warrant any interference by this Court in
exercise of power under Article 226 of
the Constitution of India.
Case law discussed:
2001 (1) ARC 352
1984 (2) ARC 208
1980 ARC 381
(2003) 6 SCC 675

(Delivered by Hon'ble Anjani Kumar, J.)

Heard learned counsel appearing on
behalf of the parties.

1. The petitioner-tenant aggrieved
by the order dated 11th February, 1986,
passed by III Additional District Judge,
Agra, copy whereof is annexed as
Annexure-'IV' to the writ petition,
approached this Court by means of
present writ petition under Article 226 of
the Constitution of India, whereby the
appeal filed by the respondent-landlord
under Section 22 of the U.P. Act No. 13
of 1972 was allowed by the appellate
Court.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
174

2. In short, the facts of the present
case are that the contesting respondentlandlord
filed an application
under
Section 21 (1)(a) of the Act, here-in-after
referred to as the 'Act', for release of the
accommodation in question, namely, two
shops numbered as 1/7/6 and 1/V/12 on
the ground of bonafide requirement of the
landlord. The prescribed authority on the
basis of the pleadings of the parties and
evidence adduced before it arrived at the
conclusion that the need of the landlord
cannot be said to be bonafide and thus the
tilts of the comparative hardship does not
arise in favour of the landlord, therefore
the application of the landlord was
rejected by the prescribed authority vide
his order dated 25th September, 1980,
copy whereof is annexed as Annexure-
'III' to the writ petition.

3. Aggrieved thereby the landlordcontesting respondent preferred an appeal
as contemplated under Section 22 of the
Act before the appellate authority. The
appellate authority by the order impugned
in the present writ petition set aside the
order passed by the prescribed authority
and allowed the application of the
landlord, which was rejected by the
prescribed authority and appeal was
allowed. Thus, this writ petition.

4. Learned counsel appearing on
behalf of the petitioner-tenant argued that
the order of the prescribed authority is an
order, which is not an order of affirmance,
therefore the appellate authority should
have considered the entire evidence on
record and also the subsequent facts,
which came into existence during the
pendency of the appeal and if the same is
taken
into
account,
particularly
considering the requirement after the
application was filed, namely, opening of
a show-room for display and sale of the
products of the self factory made of the
landlord, which admittedly has been
closed down during the pendency of the
appeal, the need itself vanished. For this
purposes Sri Mandhyan, learned counsel
appearing on behalf of the petitionertenant relied upon a single Judge decision
of this Court reported in 1984 (2) A.R.C.,
208 Ranjeet Singh Vs. Ganeshi Lal
Gupta and others and further laid
emphasis of another decision of learned
single Judge of this Court reported in
1980 A.R.C., 381 Devi Charan Vs.
Third
Addl.
District
Judge,
Muzaffarnagar and others. On the
strength of the aforesaid decisions,
learned counsel for the petitioner further
contended that in view of the discussion
and the law laid down in the aforesaid two
decisions, the appellate authority should
have remanded back the matter before the
prescribed authority to be decided afresh.
Learned counsel for the petitioner tried to
assail the findings arrived by the appellate
authority by citing instances here and
there that the findings arrived at by the
appellate authority suffer from such
errors, which can be termed as manifest
error of law, which need to be corrected
by this Court in exercise of power under
Article 226 of the Constitution of India.

5. On the other hand, learned
counsel appearing on behalf of the
contesting
respondent-landlord
relied
upon a recent decision of the apex Court
reported in 2001 (1) A.R.C., 352 Gaya
Prasad
Vs.
Pradeep
Srivastava.
Paragraphs 10, 15 and 17 of the aforesaid
judgement relied upon by learned counsel
for the landlord is reproduced below:

"10. We have no doubt that the
crucial date for deciding as to the bona
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1All] Harish Chandra Agarwal V. III A.D.J., Agra and another
175
fide of the requirement of the landlord is
the date of his application for eviction.
The antecedent days may perhaps have
utility for him to reach the said crucial
date of consideration. If every subsequent
development during the post-petition
period is to be taken into account for
judging the bona fides of the requirement
pleaded by the landlord there would
perhaps be no end so long as to
unfortunate situation in our litigative slow
process system subsists. During 23 years
after the landlord moved for eviction on
the ground that his son needed the
building, neither the landlord nor his son
is expected to remain idle without doing
any
work,
lest,
joining
any
new
assignment or starting any new work
would be at the peril of forfeiting his
requirement to occupy the building. It is
a stark reality that the longer is the life of
the litigation the more would be the
number of developments sprouting up
during the long interregnum. If a young
entrepreneur decides to launch a new
enterprise and on that ground he or his
father seeks eviction of a tenant from the
building, the proposed enterprise would
not
get
faded
out
by
subsequent
development
during
the
traditional
lengthy longevity of the litigation. His
need may get dusted, patina might stick
on its surface, nonetheless the need would
remain intact. All that is needed is to eras
the patina and see the gloss. It is
pernicious, and we may say, unjust to shut
the door before an appellant just on the
eve of his reaching the finale, after
passing through all the previous levels of
the litigation, merely on the ground that
certain developments occurred pendente
lite. Because the opposite party succeeded
in prolonging the matter for such unduly
long period."

6. The relevant portion of Paragraph
15 of the aforesaid judgment relied upon
by learned counsel for the landlord is
reproduced below:

"15. The judicial tardiness, for which
unfortunately our system has acquired
notoriety, causes the lis to creep through
the line for long years from the start to the
ultimate termini, is a malady afficiting the
system. During this long interval many
events are bound to take place which
might happen in relation to the parties as
well as the subject-matter of the lis. If the
cause of action is to be submerged in such
subsequent events on account of the
malady of the system it shatters the
confidence of the litigant, despite the
impairment already caused."

7. The relevant portion of Paragraph
17 of the aforesaid judgment relied upon
by learned counsel for the landlord is
reproduced below:

"17. Considering all the aforesaid
decisions, we are of the definite view that
the
subsequent
events
pleaded
and
highlighted by the appellant are too
insufficient to overshadow the bona fide
need concurrently found by the fact
finding Courts."

8. The aforesaid decision is covered
with the recent pronouncement of the
apex Court in a case reported in (2003) 6
Supreme Court Cases, 675 Surya Dev
Rai Vs. Ram Chander Rai and others.
The relevant paragraph 38 of the aforesaid
judgment is reproduced below:
"38. Such like matters frequently
arise before the High Courts. We sum up
our conclusion in a nut shell, even at the
risk of repetition and state the same as
hereunder:
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
176
(1) Amendment by Act 46 of 1999 with
effect from 1.7.2002 in Section 115 of the
Code of Civil Procedure cannot and does
not affect in any manner the jurisdiction
of the High Court under Articles 226 and
227 of the Constitution.

(2) Interlocutory orders, passed by the
Courts subordinate to the High Court,
against which remedy of revision has
been excluded by C.P.C. Amendment Act
46 of 1999 are nevertheless open to
challenge in, and continue to be subject
to, certiorari and supervisory jurisdiction
of the High Court.

(3) Certiorari, under Article 226 of the
Constitution is issued for correcting gross
errors
of
jurisdiction
i.e.
when
a
subordinate court is found to have acted
(i) without jurisdiction - by assuming
jurisdiction where there exists none, or
(ii) in excess of its jurisdiction - by over
stepping or crossing the limits of
jurisdiction, or (iii) acting in flagrant
disregard of law or the rules of procedure
or acting in violation of principles of
natural justice where there is no procedure
specified, and thereby occasioning failure
of justice.

(4) Supervisory
jurisdiction
under
Article 227 of the Constitution is
exercised for keeping the subordinate
courts within bounce of their jurisdiction.
When a subordinate court has assumed a
jurisdiction which it does not have or has
failed to exercise a jurisdiction which it
does have or the jurisdiction though
available is being exercised by the court
in a manner not permitted by law and
failure of justice or grave injustice has
occasioned thereby, the High Court may
step
into
exercise
its
supervisory
jurisdiction.
(5) Be it a writ of certiorari or the
exercise of supervisory jurisdiction, none
is available to correct mere errors of fact
or
of
law
unless
the
following
requirements are satisfied: (i) the error is
manifest and apparent on the face of the
proceedings such as when it is based on
clear ignorance or utter disregard of the
provisions of law, and (ii) a grave
injustice or gross failure of justice has
occasioned thereby.

(6) A patent error is an error which is
self evident i.e. which can be perceived or
demonstrated without involving into any
lengthy or completed argument or a longdrawn process of reasoning. Where two
inferences are reasonably possible and the
subordinate court has chosen to take one
view, the error cannot be called gross or
patent.

(7) The power to issue a writ of
certiorari and supervisory jurisdiction are
to be exercised sparingly and only in
appropriate cases where the judicial
conscience of the High Court dictates it to
act lest a gross failure of justice or grave
injustice should occasioned. Care, caution
and circumspection need to be exercised,
when any of the above said two
jurisdictions is sought to be invoked
during the-pendency of any suit or
proceedings in a subordinate court and the
error though calling for correction is yet
capable of
being corrected
at the
conclusion of the proceedings in an
appeal or revision preferred there against
and entertaining a petition invoking
certiorari or supervisory jurisdiction of
the High Court would obstruct the smooth
flow and/or early disposal of the suit or
proceedings. The High Court may feel
inclined to intervene where the error is
such, as, if not corrected at that very
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1All] Harish Chandra Agarwal V. III A.D.J., Agra and another
177
moment, may become incapable of
correction at a later stage and refusal to
intervene would result in travesty of
justice or where such refusal itself would
result in prolonging of the lis.

(8) The High Court in exercise of
certiorari or supervisory jurisdiction will
not convert itself into a court of appeal
and
indulge
in
reappreciation
or
evaluation of evidence or correct errors in
drawing inferences or correct errors of
mere formal or technical character.

(9) In practice, the parameters for
exercising jurisdiction to issue a writ of
certiorari and those calling for exercise of
supervisory jurisdiction are almost similar
and the width of jurisdiction exercised by
the High Courts in India unlike English
Courts
has
almost
obliterated
the
distinction between the two jurisdictions.
While exercising jurisdiction to issue a
writ of certiorari, the High Court may
annul or set aside the act, order or
proceedings of the subordinate courts but
cannot substitute its own decision in place
thereof.
In
exercise
of
supervisory
jurisdiction the High Court may not only
give suitable directions so as to guide the
subordinate court as to the manner in
which it would act or proceed thereafter
or afresh, the High Court may in
appropriate cases itself make an order in
suppression or substitution of the order of
the subordinate court as the court should
have made in the facts and circumstances
of the case. "

9. A bare reading of paragraph 38,
Sub-para (8) of the aforesaid judgment
clearly shows that it clearly prescribes the
guidelines for interference by this Court
in exercise of power under Article 226 of
the Constitution of India. On the question
of finding being perverse, it should have
considered the entire evidence on record,
according to learned counsel for the
petitioner, but I do not agree with the
contention of learned counsel for the
petitioner that the findings arrived at by
the
appellate
authority
were
either
perverse, or suffer from the manifest error
or law, so as to warrant any interference
by this Court in exercise of power under
Article 226 of the Constitution of India.

10. In this view of the matter, this
writ petition has no force and is liable to
be dismissed. Lastly, it is submitted by
learned counsel appearing on behalf of the
petitioner that since the petitioner is
carrying
on
business
from
the
accommodation in question, he may be
granted some reasonable time to vacate
the premises in question to the landlord.
Considering the facts and circumstances
of the case and also in the interest of
justice, I direct that the order of eviction
against the petitioner-tenant, namely, the
order passed by the appellate authority,
shall not be executed till 31st December,
2005, provided:

(i) the petitioner-tenant shall furnish an
undertaking within three weeks' from
today before the prescribed authority to
the effect that he will handover peaceful
vacant possession of the premises in
question to the landlord on or before 31st
December, 2005;

(ii) the
petitioner-tenant
further
undertakes to pay the entire arrears of rent
and damages, if the same has not already
been paid, to the landlord at the rate of the
rent within three weeks' from today and
continue to pay the rent/damages in first
week of each succeeding month, so long
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
178
he remains in possession or till 31st
December, 2005, whichever is earlier; and

(iii) in the event of default of any of the
conditions aforementioned, it will be open
to the landlord to execute the order passed
by the appellate authority.

11. Except for the modification,
referred to above, this writ petition has no
force and is accordingly dismissed. The
interim order, if any, stands vacated.

Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.09.2004

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE K.N. OJHA, J.

Civil Misc. Writ Petition (Tax) No.1502 of
2002

Arvind Kumar Gupta

...Petitioner
Versus
Tax Recovery Officer NOIDA and others

 ...Respondents

Counsel for the Petitioner:
Sri R.P. Agarwal
Sri S.P. Gupta

Counsel for the Respondents:
Sri Bharat Ji Agrawal
Sri Shambhu Chopra

Income Tax Act, Ss. 179, 220 (2)-
Applicability-Notice
to
show
cause
against issue of warrant of arrest issue
on 26.3.2002-wherious order under S.
179 passed on 29.5.2003-Hence notice,
held, illegal-order passed under S. 179,
held, contrary to law-Hence quashed.

Held: Para 18 & 19
As already mentioned hereinbefore that
there was no order under Section 179 of
the Act when the notice to show cause
as to why the warrant of arrest be not
issued to the petitioner was issued. The
notice to show cause as to why warrant
of arrest be not issued had been issued
on 26.3.2002 whereas the order under
Section 179 of the act has been passed
on 29.5.2003. Thus, the notice dated
26.3.2002 is itself illegal and without
jurisdiction
and
is
hereby
quashed.
Further, it is an admitted case of the
Income
Tax
Department
that
the
petitioner was made a director only on
3rd April, 1993 and the outstanding tax
dues of respondent No.3 relates to
Assessment Years 1983-84 to 1990-91
and 1992-93 i.e. when the petitioner was
not even a director of the respondent
No.3, thus, the recourse to Section 179
(1) of the Act could not have been taken
at all. Moreover, it is also an admitted
position
that
the
respondent
No.3
became a deemed public company under
the provisions of Section 43-A of the
Companies Act, 1956 with effect from
9th February, 1992. Thus, in view of the
decision of the Apex Court in the case of
M.
Rajamoni
Amma
(supra)
the
outstanding tax dues of respondent No.3
which relates prior to 9th April, 1992 can
not be recovered under Section 179(1) of
the Act from the petitioner.

In view of the foregoing discussion, we
are of the considered opinion that the
order passed under Section 179 of the
Act is contrary to the well settled
principles
discussed
above
and
therefore, cannot be sustained. It is
hereby quashed. However, it will be
open to the Income Tax Department to
recover the outstanding amount of tax
from the company or its directors who
were there at the relevant time.
Case law discussed:
(1990) 183 ITR 143 (Bom)
(1992) 195 ITR 873 (SC)
(1998) 232 ITR 306 (AP)
(1999) 238 ITR 127 (Guj)
(1988) 172 ITR 1 (Bom)
(2002) 253 ITR 139