Rajendra Diwan Vs. Pradeep Kumar Ranibala & Anr-10/12/2019

SUPREME COURT OF INDIA JUDGMENTS

State Legislature lacked legislative competence to enact Section 13(2) of the Rent Control Act. We, therefore, declare Section 13(2) of the Rent Control Act ultra vires the Constitution of India, null and void and of no effect.

SUPREME COURT OF INDIA

Rajendra Diwan Vs. Pradeep Kumar Ranibala & Anr.

[Civil Appeal No. 3613 of 2016]

[C.A. No. 10214 of 2016 and C.A. No. 3051 of 2017]

ACT: Section 13(2) of the Chhattisgarh Rent Control Act, 2011

FROM:Rent Control Tribunal at Raipur

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D. Sasi Kumar Vs. Soundararajan-23/09/2019

SUPREME COURT OF INDIA JUDGMENTS

RENT CONTROL: If as on the date of filing the petition the requirement subsists and it is proved, the same would be sufficient irrespective of the time-lapse in the judicial process coming to an end.

ACT: Sections 10(3)(a)(iii) and 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960

SUPREME COURT OF INDIA

D. Sasi Kumar Vs. Soundararajan

[Civil Appeal Nos. 7546-7547 of 2019 arising out of SLP (Civil) Nos. 12365-66 of 2019]

A.S. Bopanna,J.

1. Leave granted.

2. The appellant herein was the petitioner before the Principal District Munsif/Rent Controller in the petition seeking eviction of the respondent therein. The said proceedings resulted in an appeal filed by the appellant herein before the Rent Control Appellate Authority (subCourt) which upheld the decision of the Rent Controller. Against the said concurrent orders the respondent herein approached the High Court of Judicature at Madras in the Civil Revision Petition. The High Court reversed the concurrent decisions, which is assailed by the appellant herein. Since the rank assigned to the parties is different in the various proceedings, for the sake of convenience and clarity the appellant herein who was the original petitioner before the Rent Control Court would be referred to as the ‘landlord’, while the respondent therein would be referred to as the ‘tenant’.

3. The brief facts are that the landlord contending to be the owner of the petition schedule premises had filed the petition under Sections 10(3)(a)(iii) and 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (‘Act’, 1960′ for short) seeking for an order to direct the tenant to vacate and deliver the peaceful possession of the petition schedule property to the landlord. The manner in which the landlord had become the owner of the property based on a partition deed dated 24.02.1997 was referred. The tenant was in occupation of the premises for nonresidential purpose on a monthly rental of Rs.600/-.

The landlord contended that the premises is bonafide required by him for setting up a garment shop and in that regard had further contended that since the premises requires alterations to be made in that regard, the landlord also intended to demolish the existing structure and put up a construction suitable for his purpose. The tenant had appeared and opposed the said petition by filing his objection statement, denying the entire case of the landlord including his claim to ownership over the property as well as the jural relationship. It was contended that the intention of the landlord is only to secure higher rent and as such the claim cannot be considered as a bonafide requirement.

4. The Rent Control Court on having taken note of the rival contentions had framed two points for its consideration. The entire consideration revolved on the claim made by the landlord for own use and occupation as also the alternate premises available to the tenant. In order to establish the claim, the landlord examined himself as PW1 and marked the documents at Exhibits P1 to P5. The tenant, on the other hand, examined three witnesses and relied upon the documents at Exhibits R1 to R9. The Court of the Rent Controller on analysing the documents and the evidence of the parties arrived at the conclusion that the claim as put forth by the landlord is established and accordingly on allowing the petition had directed eviction of the tenant by granting two months time to vacate.

5. The tenant claiming to be aggrieved was before the Appellate Authority in the statutory appeal provided under Section 23 of the Act, 1960. The Appellate Authority having adverted to the contentions has reappreciated the oral as well as the documentary evidence. In that background making detailed reference to the legal position from the decisions cited before it had upheld the order dated 19.01.2011 passed by the Rent Control Court and had dismissed the appeal. Against such concurrent orders the tenant approached the High Court in the Civil Revision Petition. The High Court once again referring to the evidence and the conclusion reached by the courts below had differed from the same and accordingly allowed the petition by holding that the bonafide requirement as claimed by the landlord had not been proved. It is in that view the landlord claiming to be aggrieved is before this Court in this appeal.

6. Heard Shri R. Balasubramanium, learned senior counsel appearing for the landlord and Shri R. Gopalakrishnan, learned counsel for the tenant and perused the appeal papers.

7. At the outset it is to be taken note that the Civil Revision Petition before the High Court is not to be considered as in the nature of an appeal. The scope of consideration is only to take note as to whether there is any perversity in the satisfaction recorded by the original Court, namely, the Rent Controller and in that light as to whether the Appellate Authority under the statute has considered the aspect in the background of the evidence to arrive at the conclusion to its satisfaction. The reappreciation of the evidence in the Civil Revision Petition to indicate that another view is possible would not arise. To that extent, a perusal of the impugned order indicates that the High Court in fact has proceeded as if the entire evidence required reappreciation by it. In that background what is necessary to be taken note at this juncture is as to whether the Rent Controller has considered the matter in its correct perspective by satisfying himself of the bonafide claim, as required under Section 10(3)(e) of the Act, 1960 and the hardship if any to the tenant as contemplated under the proviso thereto.

8. In the instant case what is necessary to be taken note is that the tenant despite being in possession and knowing the ownership of the property and also paying the rent, has sought to urge a contention denying the jural relationship. The said aspect has been taken note by the Rent Controller and taking into consideration the partition deed dated 24.02.1997 and further taking into account the fact that the rent was being paid, has answered the said issue in favour of the landlord. Insofar as the requirement of the premises by the landlord the evidence as tendered has been taken note. In that regard the claim put forth is that the landlord intends to run a garment shop for which the premises is required and he also intends to demolish and reconstruct.

It is no doubt true that in an appropriate case when eviction is sought under Section 14(1)(b) of the Act, in proof thereof the approved plan for construction and financial capacity to construct is to be established. However, in the instant facts it is noticed that the eviction sought is not just for demolition and construction but is also for the bonafide use to set up a garment shop. The landlord, in that direction had also contended that the shop would require alteration and, in that view, he has decided to demolish and reconstruct. When that be the case even if not demolished and reconstructed the requirement of the premises is to run a garment shop even if it be by altering the premises to that extent. In that circumstance the eviction was also sought under Section 10(3)(a)(iii) of the Act, 1960.

9. Since the tenant was running a metal shop, the fact that the premises was suitable for running a garment shop cannot be in dispute. That apart what is also to be kept in view is, apart from the bonafide requirement of the landlord the consideration relating to hardship of the tenant, even if kept in view, in the instant case the Rent Controller has referred to the cross-examination of the tenant who was examined as RW1 wherein he has admitted that he has two buildings as business places in addition to the business being run in the petition schedule premises. Though he states that one floor is used as a godown and the other is in the name of his wife, the fact remains that he is running the business in the other shop for the benefit of his family.

In that circumstance when the need of the landlord was weighed in the background of the fact that the tenant had another premises wherein he is carrying on the business the Rent Controller as a statutory authority under the Act was of the opinion that the evidence available on record would be sufficient and recorded the satisfaction as provided under Section 10(3)(e) of the Act, 1960 and arrived at the conclusion that the landlord requires the premises for his bonafide occupation. Such conclusion while being taken note by the Appellate Authority has also received a similar consideration. In that light the nature of findings as recorded by the High Court is not appropriate in the facts and circumstance of the present case.

10. It is no doubt true that as observed by the High Court the plan for construction and the financial capacity to construct has not been placed as evidence. However, as already indicated above, the nature of the requirement as stated by the landlord would be for running a garment shop which in any event could be run in the premises as it exists with minor alterations though the desire of the landlord is also to demolish and reconstruct. Therefore, in that circumstance the mere nonproduction of the approved plan or the documents to indicate financial capacity at this juncture cannot be held fatal in the instant facts. That apart as indicated above, the need of the landlord while being examined has been weighed in the background of the fact that the tenant owns two other premises and no hardship will be caused. Though the High Court has in that regard also recorded that no documentary evidence is placed, the fact of possession of alternate premises has been admitted by the tenant in his cross-examination. There can be no better proof than admission.

11. Further the High Court has also erroneously arrived at the conclusion that the bonafide occupation as sought should be not only on the date of the petition but it should continue to be there on the date of final adjudication of rights. Firstly, there is no material on record to indicate that the need as pleaded at the time of filing the petition does not subsist at this point. Even otherwise such conclusion cannot be reached, when it cannot be lost sight that the very judicial process consumes a long period and because of the delay in the process if the benefit is declined it would only encourage the tenants to protract the litigation so as to defeat the right. In the instant case it is noticed that the petition filed by the landlord is of the year 2004 which was disposed of by the Rent Controller only in the year 2011.

The appeal was thereafter disposed of by the Appellate Authority in the year 2013. The High Court had itself taken time to dispose of the Revision Petition, only on 06.03.2017. The entire delay cannot be attributed to the landlord and deny the relief. If as on the date of filing the petition the requirement subsists and it is proved, the same would be sufficient irrespective of the time-lapse in the judicial process coming to an end. This Court in the case of Gaya Prasad vs. Pradeep Srivastava, (2001) 2 SCC 604 has held that the landlord should not be penalised for the slowness of the legal system and the crucial date for deciding the bonafide requirement of landlord is the date of application for eviction, which we hereby reiterate.

12. Therefore, in the present facts the bonafide requirement as claimed by the landlord stands established. The learned counsel for the tenant as an alternative submission had sought for sufficient time to vacate and handover the vacant possession if the tenant was required to vacate the premises, which also needs to be addressed in the order.

13. In the result the order dated 06.03.2017 passed by the High Court in CRP (NPD) No. 3754/2013 and MP No. 1/2013 is set aside. The order dated 19.01.2011 passed by the Principal District Munsif/Rent Controller, Vellore, Vellore District in Rent Control Original Petition No.43/2004 is restored. Taking into consideration all aspects, the tenant is granted time till 31.01.2021 to vacate and handover vacant possession of the premises to the landlord subject to the undertaking being filed in four weeks, wherein it be undertaken to voluntarily vacate and handover possession on or before 31.01.2021, without creating any thirdparty rights or damage to the property. The rents shall also be paid without default.

14. Accordingly, the appeals are allowed with no order as to costs. All pending applications shall stand disposed of.

J. (R. BANUMATHI)

J. (A.S. BOPANNA)

New Delhi,

September 23, 2019

What is the meaning of word “himself”

Once the families of Jagdish Kishore and Ram Kishore are considered as included in the expression “himself”, the accommodation with the petitioner is wholly insufficient. There are as many as five grand children who are required to be married. I am informed that out of these five, one has already been married in June this year. If I excluded from consideration Maheshwari even then the accommodation remains insufficient for such a large family.

(1982) 22 DLT 381 : (1983) 1 RCJ 352 : (1982) 2 RCJ 352 : (1982) 2 RCR(Rent) 569 : (1982) 2 RentLR 278

DELHI HIGH COURT

SINGLE BENCH

( Before : Yogeshwar Dayal, J )

GHANDU LAL GUPTA — Appellant

Vs.

SRI RAM NAGAR — Respondent

Civil Revision Appeal No. 363 of 1980

Decided on : 04-08-1982

Delhi Rent Control Act, 1958 — Section — 14(1), 14(1)(e) — Ejectment of tenant

JUDGMENT

Yogeshwar Dayal, J.

(1) This revision petition is directed against the order of Additional Rent Controller, Delhi dated 15th July, 1977 dismissing the application filed by the petitioner for ejectment of the respondent.

(2) The Petition itself was filed by the petitioner for ejectment of the respondent inter alias on the allegations that the petitioner is the owner of the premises ; the premises had been let out to the respondent for residential purposes only and that the petitioner requires the premises bona fide for his residence and the residence of his family members dependent upon him. It was alleged in the petition that the family of the petitioner consists of himself, his wife, three sons, six daughters, three daughter-in-laws, five grand-daughters, six grand-sons. It was also stated that all the six daughters are married and they often visit with their husbands and stay with the petitioner, Along with their children for several days. Two of the grand-sons were stated to be 25 and 21 years and they were alleged to be married very soon. It was further stated that two grand-daughters of the petitioner are students of Higher Secondary. It was also stated that the petitioner has only five rooms, two verandahs, one store, two kitchens, one Miani and the present residential ac

(3) The plea of the respondent-tenant was that the petitioner is not the owner ; that the premises were not let for residential purposes and were let both for residential cum-commercial purpose. It was denied that the premises are required bona fide by the petitioner. It was alleged that the petitioner has got sufficient accommodation in the building, It was also stated that the petitioner owns a residential house in Multan Nagar, Delhi, which is at a distance of about 7 kilometer from Shakti Nagar. It was alleged that the said house compromises of three big rooms, one store, kitchen and tin shed and the petitioner let out one room for nonresidential purposes and the remaining portion is lying vacant. It was also alleged that Ram Kishore, son of the petitioner, owns a house at Faridabad and both the aforesaid houses are available with the petitioner. It was also pleaded that one of the sons of Ram Kishore, Anil Kumar is putting up permanently at Palwal.

(4) In the replication the petitioner reiterated his ownership as well as the letting purpose being residential. Regarding the house at Multan Nagar it was stated that it is not suitable because it is far away from the present accommodation. It was further stated that the petitioner and his sons with their respective families arc residing in the house in suit from the very beginning and the petitioner cannot afford nor would like any of his sons to go such a distance place to accommodate the respondent specially in his old age. It was also stated that the petitioner needs the company of his sons and their children to look after him and his business which is being run at Shakti Nagar. It was denied that Shri Anil Kumar s/o Ram Kishore is staying at Palwal or that Shri Ram Kishore owns any house in Faridabad. It was stated that the petitioner and his sons have a joint Hindu Family, though on account of large family members they have three kitchens.

(5) The learned trial Court found that the petitioner was the owner and the premises were let for residential purposes only. The learned trial Court further found that the petitioner has got three major sons namely Shri Ram Kishore, Shri Jagdish Kishore and Shri Naval Kishore. The learned trial Court also found that Nawal Kisliore is having common kitchen with his father while Rain Kishore and Jagdish Kishore are having separate kitchen though living in the same premises. The learned trial Court also found that the house at Multan Nagar is not suitable for the petitioner.

(6) The learned Additional Rent Controller in view of the finding that two of the sons of the petitioner have separate kitchens excluded their need from consideration. The learned trial Court also found that the accommodation in possession of the petitioner is more than sufficient for himself and the third son i.e. Nawal Kishore and his family and accordingly dismissed the application for eviction.

(7) It will be noticed that the family of Jagdish Kishore consists of himself, his wife and four children three sons and one married daughter. The sons are aged about 23 years, 21 years and 19 years. The family of the second son Ram Kishore consists of himself, his wife and five children. Three sons are of marriageable age i.e. 28 years, 25 years and 21 years. He has two daughters aged 23 years and 19 years.

(8) It will thus be noticed that in the disputed premises four couples are staying, namely; petitioner Sh. Chandhu Lal Gupta ; three sons and their wives. There are as many as 12 grand children. Out of 12 grand children nine are majors. The accommodation with the petitioner on the ground floor consists of three rooms of the sizes: 13.9 X 13.10″ 8.6’Xl2′ and 8.6′ X 12′. Besides these three rooms there arc four small room which are described as stores. Two of the stores are of the sizes 7′ X6.6′ each and one store is of the size 7′ X 6′. Besides the other room called store is of the size 8 3′ X 7.9′. There is also a tin-shed of the size 10.7″ on the ground floor. Besides there is a W.C , a bath room and the kitchen on the ground floor. The accommodation on the first floor with the petitioner is of three rooms. Two rooms being of the sizes of 12.9′ X 9.3′ each and one room of the size of 14’X 7′. Besides there is a verandah on the ground floor as well as on the first floor.

(9) The case of the landlord-petitioner was that he and his son Nawal Kishore are occupying the accommodation on the ground floor whereas two other sons Ram Kishore and Jagdish Kishore are occupying two of the rooms on the first floor (one room each) and the third room measuring 12.9’X9.3′ is in occupation of one Shri Maheshwari, who is a friend of his son and is staying there without paying any rent.

(10) As I had noticed earlier the learned Additional Rent Controller took the view that because two sons Ram Kishore and Jagdish Kishore are having separate kitchens from the father, Therefore, the need of these members cannot be considered as they are independent of his father and not dependent on him.

(11) It will be noticed that the premises from which the eviction is sought consists of only one room measuring 13.10″ X 13.9′ and a kitchen measuring 7′ X 6′. There is also another room measuring 6.41″ X 7′. The tenant is also having a small tin-shed on the first floor.

(12) It will be noticed that if the need of Jagdish Kishore and Ram Kishore has to be considered then the accommodation with the landlord is wholly insufficient.

(13) The point thus which arises in this petition is whether the need of these two sons and their families should be considered or not.

(14) Clause (e) of the proviso to Sub-section (1) of Section 14 reads as under:-

“14.(1) Notwithstanding anything to the contrary in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant : Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:- (e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation.”

(15) Under this clause the landlord can apply for ejectment of tenant for residence for himself or for any member dependent on him. The question is what is the meaning of word “himself”. It has been held in a catena of authorities that the term “himself” does not mean the landlord alone. “Himself” includes all his members of the family living with him normally. (Reference may be made to the decision of Sachar, J. in the matter reported as J.L. Mehta Vs. Hira Devi, , and to the decision of the Division Bench of this Court in the matter reported as AIR 1981 Delhi 151 : Govind Dass and others v. Kuldip Singh. In J.L Mehta v. Hira Devi (supra) Sachar, J .has referred to numerous other cases in which this view was taken).

(16) It is not denied that from the very beginning two other sons namely Jagdish Kishore and Ram Kishore have been living in this very house. As the family multiplied, instead of one kitchen there became three kitchens. Very often it becomes very difficult for one house-wife to cook meals for three families. It is not very easy to engage servant. It is very often that one family has more than one kitchen for the sake of convenience. The sons do not cease to be the part of the family merely because they are having separate kitchens in the same building. Once the families of Jagdish Kishore and Ram Kishore are considered as included in the expression “himself”, the accommodation with the petitioner is wholly insufficient. There are as many as five grand children who are required to be married. I am informed that out of these five, one has already been married in June this year. If I excluded from consideration Maheshwari even then the accommodation remains insufficient for such a large family.

(17) The result is that the order of learned Additional Rent Controller dated 15th July, 1977 is set aside and the application filed by the petitioner for ejectment of the respondent is accepted and an order for eviction is passed against the respondent on the grounds contained in clause (e) to the proviso to Sub-section (1) of Section 14 of the Act.

(18) The respondent is, however, allowed six months time to vacate the premises.

__________________________________

Cases Referred

J.L. Mehta Vs. Hira Devi, (1970) 6 DLT 484 : (1971) RLR 70
Counsel for Appearing Parties

Tenanted premises can be used for another purpose than agreed in absence of negative covenant-SC

SEPTEMBER 18, 2018: The petition for eviction filed by the Landlord under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 was dismissed by the Rent Controller. The judgment of the Rent Controller was affirmed in appeal by the Appellate Authority, Faridabad and in revision by the High Court of Punjab and Haryana at Chandigarh. Aggrieved thereby the landlord filed appeal befote the Supreme Court .

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The legal position of sub-tenant under Indian Law

  1. In the case of Associated Hotels of India Ltd., Delhi vs. S. B. Sardar Ranjit Singh, AIR 1968 SC 933,Apex Court held that when eviction is sought on the ground of subletting, the onus to prove subletting is on the landlord. It was further held that if the landlord prima facie shows that the third party is in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.
  2. In Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb Kadri and Others, (1987) 3 SCC 538, this Court held that in a case where a tenant becomes a partner of a partnership firm and allows the firm to carry on business in the demised premises while he himself retains legal possession thereof, the act of the landlord does not amount to subletting. It was held that whether there is genuine partnership or not must be judged in the facts of each case in the light of the principles applicable to partnership.
  3. While dealing with the mischief contemplated under Section 14(1)(b) of the Delhi Rent Control Act, 1958 providing for eviction on the ground of subletting, this Court in the case of Jagan Nath (Deceased) through LRs. vs. Chander Bhan and others, (1988) 3 SCC 57, held:

    “The question for consideration is whether the mischief contemplated under Section 14(1)(b) of the Act has been committed as the tenant had sublet, assigned, or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord. There is no dispute that there was no consent in writing of the landlord in this case. There is also no evidence that there has been any subletting or assignment. The only ground perhaps upon which the landlord was seeking eviction was parting with possession. It is well settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the. tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of Section 14(1) of the Act. Even though the father had retired from the business and the sons had been looking after the business, in the facts of this case, it cannot be said that the father had divested himself of the legal right to be in possession. If the father has a right to displace the possession of the occupants, i.e., his sons, it cannot be said that the tenant had parted with possession”

  4. The question whether the tenant has assigned, sublet or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord within the meaning of Section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, fell for consideration in Gopal Saran vs. Satyanarayana, (1989) 3 SCC 56, This Court held :

    “sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party. In this connection, reference may be made to the decision of this Court in Shalimar Tar Products Ltd. vs. H.C. Sharma ((1988) 1 SCC 70) where it was held that to constitute a sub-letting, there must be a parting of legal possession, i.e., possession with the right to include and also right to exclude others and whether in a particular case there was sub-letting was substantially a question of fact. In that case, a reference was made at page 77 of the report to the Treatise of Goa on Landlord and Tenant, 6th edn., at page 323, for the proposition that the mere act of letting other persons into possession by the tenant, and permitting them to use the premises for their own purposes, is not, so long as he retains the legal possession himself, a breach of covenant. In paragraph 17 of the report, it was observed that parting of the legal possession means possession with the right to include and also right to exclude others. In the last mentioned case, the observations of the Madras High Court in Gundalapalli Rangamannar Chetty vs. Desu Rangiah (AIR 1954 Mad 182) were approved by this Court in which the legal position in Jackson vs. Simons ((1923) 1 Ch 373) were relied upon. The Madras High Court had also relied on a judgment of scrutton L.J. in Chaplin vs. Smith ((1926) 1 KB 198) of the report where it was said :

    He did not assign, nor did he underlet. He was constantly on the premises himself and kept the key of them. He did business of his own as well as business of the company. In my view he allowed the company to use the premises while he himself remained in possession of them.

     

  5. A three-Judge Bench of this Court in Parvinder Singh vs. Renu Gautam and others, (2004) 4 SCC 794 commented upon the device adopted by tenants many a time in creating partnership as a camouflage to circumvent the provisions of the Rent Control Act. The following observations are worth noticing :

    “The rent control legislations which extend many a protection to the tenant, also provide for grounds of eviction. One such ground, most common in all the legislations, is sub-letting or parting with possession of the tenancy premises by the tenant. Rent control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rack-renting. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appearance of partnership while in effect what has come into existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnership. Merely because a tenant has entered into a partnership he cannot necessarily be held to have sub-let the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant.

    A person having secured a lease of premises for the purpose of his business may be in need of capital or finance or someone to assist him in his business and to achieve such like purpose he may enter into partnership with strangers. Quite often partnership is entered into between the members of any family as a part of tax planning. There is no stranger brought on the premises. So long as the premises remain in occupation of the tenant or in his control, a mere entering into partnership may not provide a ground for eviction by running into conflict with prohibition against sub-letting or parting with possession. This is a general statement of law which ought to be read in the light of the lease agreement and the law governing the tenancy. There are cases wherein the tenant sub-lets the premises or parts with possession in defiance of the terms of lease or the rent control legislation and in order to save himself from the peril of eviction brings into existence, a deed of partnership between him and his sub-lessee to act as a cloak on the reality of the transaction. The existence of deed of partnership between the tenant and the alleged sub-tenant would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession or interest in tenancy premises by the tenant in favour of a third person. The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction………”

     

  6. In yet another decision, a three-Judge Bench of this Court in Mahendra Saree Emporium (II) vs. G. V. Srinivasa Murthy, (2005) 1 SCC 481 considered earlier decisions, few of which have been referred above, while dealing with a matter relating to sub-letting of the premises within the meaning of Section 21(1)(f) of Karnataka Rent Control Act, 1961 and observed as follows :

    “The term “sub-let” is not defined in the Act – new or old. However, the definition of “lease” can be adopted mutatis mutandis for defining “sub-lease”. What is “lease” between the owner of the property and his tenant becomes a sub-lease when entered into between the tenant and tenant of the tenant, the latter being sub-tenant qua the owner-landlord. A lease of immovable property as defined in Section 105 of the Transfer of Property Act, 1882 is a transfer of a right to enjoy such property made for a certain time for consideration of a price paid or promised. A transfer of a right to enjoy such property to the exclusion of all others during the term of the lease is sine qua non of a lease. A sub-lease would imply parting with by the tenant of the right to enjoy such property in favour of his subtenant. Different types of phraseology are employed by different State Legislatures making provision for eviction on the ground of sub-letting. Under Section 21(1)(f) of the old Act, the phraseology employed is quite wide. It embraces within its scope sub-letting of the whole or part of the premises as also assignment or transfer in any other manner of the lessee’s interest in the tenancy premises. The exact nature of transaction entered into or arrangement or understanding arrived at between the tenant and alleged sub-tenant may not be in the knowledge of the landlord and such a transaction being unlawful would obviously be entered into in secrecy depriving the owner-landlord of the means of ascertaining the facts about the same. However still, the rent control legislation being protective for the tenant and eviction being not permissible except on the availability of ground therefor having been made out to the satisfaction of the Court or the Controller, the burden of proving the availability of the ground is cast on the landlord i.e. the one who seeks eviction. In Krishnawati vs. Hans Raj ((1974) 1 SCC 289) reiterating the view taken in Associated Hotels of India Ltd. vs. S. B. Sardar Ranjit Singh ((1968) 2 SCR 548) this Court so noted the settled law (SCC p. 293, para 6) :

    “(The onus to prove sub-letting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.”

    Thus, in the case of sub-letting, the onus lying on the landlord would stand discharged by adducing prima facie proof of the fact that the alleged sub-tenant was in exclusive possession of the premises or, to borrow the language of Section 105 of the Transfer of Property Act, was holding right to enjoy such property. A presumption of sub-letting may then be raised and would amount to proof unless rebutted. In the context of the premises having been sub-let or possession parted with by the tenant by adopting the device of entering into partnership, it would suffice for us to notice three decisions of this Court. Murlidhar vs. Chuni Lal (1970 Ren CJ 922) is a case where a shop was let out to a firm of the name of Chuni Lal Gherulal. The firm consisted of three partners, namely, Chuni Lal, Gherulal and Meghraj. This partnership closed and a new firm by the name of Meghraj Bansidhar commenced its business with partners Meghraj and Bansidhar. The tenant-firm was sought to be evicted on the ground that the old firm and the new firm being two different legal entities, the occupation of the shop by the new firm amounted to sub-letting. This Court discarded the contention as “entirely without substance” and held that a partnership firm is not a legal entity; the firm name is only a compendious way of describing the partners of the firm. Therefore, occupation by a firm is only occupation by its partners. The two firms, old and new, had a common partner, namely, Meghraj, who continued to be in possession and it was fallacious to contend that earlier he was in possession in the capacity of partner of the old firm and later as a partner of the new firm. The landlord, in order to succeed, has to prove it as a fact that there was a sub-letting by his tenant to another firm. As the premises continued to be in possession of one of the original tenants, Meghraj, then by a mere change in the constitution of the firm of which Meghraj continued to be a partner, an inference as to sub-letting could not be drawn in the absence of further evidence having been adduced to establish sub-letting. In Helper Girdharbhai vs. Saiyed Mohd. Mirasaheb Kadri ((1987) 3 SCC 538) the tenant had entered into a partnership and the firm was carrying on business in the tenancy premises. This Court held that if there was a partnership firm of which the appellant was a partner as a tenant, the same would not amount to sub-letting leading to forfeiture of the tenancy; for, there cannot be a subletting unless the lessee parted with the legal possession. The mere fact that another person is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease. Thus, the thrust is, as laid down by this Court, on finding out who is in legal possession of the premises. So long as the legal possession remains with the tenant the mere facturn of the tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to sub-letting. In Parvinder Singh vs. Renu Gautam ((2004) 4 SCC 794) (Para 8) a three-Judge Bench of this Court devised the test in these terms (SCC p. 799, para 8) :

    “If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of subtenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant”.”

     

  7. In Nirmal Kanta (Dead) Through L.Rs. vs. Ashok Kumar and another, (2008) 7 SCC 722, this Court held thus :

    “What constitutes sub-letting has repeatedly fallen for the consideration of this Court in various cases and it is now well-established that a sub-tenancy or a sub-letting comes into existence when the tenant inducts a third party stranger to the landlord into the tenanted accommodation and parts with possession thereof wholly or in part in favour of such third party and puts him in exclusive possession thereof. The lessor and/or a landlord seeking eviction of a lessee or tenant alleging creation of a sub-tenancy has to prove such allegation by producing proper evidence to that effect. Once it is proved that the lessee and/ or tenant has parted with exclusive possession of the demised premises for a monetary consideration, the creation of a subtenancy and/or the allegation of sub-letting stands established.”

    28. The legal position that emerges from the aforesaid decisions can be summarised thus :

    (i) In order to prove mischief of sub-letting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.

    (ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to sub-letting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the Court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.

    (iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.

    (iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.

    (v) Initial burden of proving sub-letting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.

    (vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.

     

  8. In State through Special Cell, New Delhi vs. Navjot Sandhu alias Afshan Guru and others, (2003) 6 SCC 641 this Court explained the power of the High Court under Article 227 thus :

    “Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”.”

    The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447; State of Maharashtra vs. Milind and others (2001) 1 SCC 4, Ranjeet Singh vs. Ravi Prakash, (2004) 3 SCC 682, came to be considered by this Court in the case of Shamshad Ahmad and others vs. Tilak Raj Bajaj (Deceased) through L.Rs. and others, (2008) 9 SCC 1 and this Court held :

    “Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a Court of appeal or a Court of error. It can neither review nor re-appreciate, nor re-weigh the evidence upon which determination of a subordinate Court or inferior Tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior Court or Tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts and inferior Tribunals within the limits of law.”

 

Sub-tenancy under the West Bengal Premises Tenancy Act 1997

West Bengal Premises Tenancy Act 1997

26. Creation and termination of sub-tenancy to be notified. – (1) Where after the commencement of this Act, any premises is sublet, either in whole or in part, by the tenant with the previous consent in writing or the landlord, the tenant and every sub-tenant to whom the premises is sublet, shall give notice to the landlord in the prescribed manner of the creation of the sub-tenancy within one month from the date of such subletting and shall, in the prescribed manner, notify the termination of such subtenancy within one month of such termination.

(2) Where before the commencement of this Act, the tenant has, with or without the consent of the landlord, sublet any premises either in whole or in part, the tenant and every sub-tenant to whom the premises has been sublet, shall give notice to the landlord of such subletting in the prescribed manner [within two years of the commencement of this Act] and shall, in the prescribed manner, notify the termination of such sub-tenancy within one month of such termination.

(3) Where in any case referred to in sub-section (2), there is no consent in writing of the landlord, and the landlord denies that he gave any oral consent, the Controller shall, on an application made to him in this behalf either by the landlord or by the sub-tenant within two months of the date of receipt of the notice of subletting by the landlord or the issue of the notice by the sub-tenant, as the case may be, by order, declare that the interest of the tenant in so much of the premises as has been sublet shall cease and that the sub-tenant shall become a tenant directly under the landlord from the date of the order. The Controller shall also fix the rents payable by the tenant and the sub-tenant to the landlord from the date of the order. Rent so fixed shall be deemed to be the fair rent for the purposes of this Act.


Court Cases

  1. In the case of Associated Hotels of India Ltd., Delhi vs. S. B. Sardar Ranjit Singh, AIR 1968 SC 933, Apex Court held that when eviction is sought on the ground of subletting, the onus to prove subletting is on the landlord. It was further held that if the landlord prima facie shows that the third party is in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.
  2. In Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb Kadri and Others, (1987) 3 SCC 538, this Court held that in a case where a tenant becomes a partner of a partnership firm and allows the firm to carry on business in the demised premises while he himself retains legal possession thereof, the act of the landlord does not amount to subletting. It was held that whether there is genuine partnership or not must be judged in the facts of each case in the light of the principles applicable to partnership.
  3. While dealing with the mischief contemplated under Section 14(1)(b) of the Delhi Rent Control Act, 1958 providing for eviction on the ground of subletting, this Court in the case of Jagan Nath (Deceased) through LRs. vs. Chander Bhan and others, (1988) 3 SCC 57, held:“The question for consideration is whether the mischief contemplated under Section 14(1)(b) of the Act has been committed as the tenant had sublet, assigned, or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord. There is no dispute that there was no consent in writing of the landlord in this case. There is also no evidence that there has been any subletting or assignment. The only ground perhaps upon which the landlord was seeking eviction was parting with possession. It is well settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the. tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of Section 14(1) of the Act. Even though the father had retired from the business and the sons had been looking after the business, in the facts of this case, it cannot be said that the father had divested himself of the legal right to be in possession. If the father has a right to displace the possession of the occupants, i.e., his sons, it cannot be said that the tenant had parted with possession”
  4. The question whether the tenant has assigned, sublet or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord within the meaning of Section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, fell for consideration in Gopal Saran vs. Satyanarayana, (1989) 3 SCC 56, This Court held :“sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party. In this connection, reference may be made to the decision of this Court in Shalimar Tar Products Ltd. vs. H.C. Sharma ((1988) 1 SCC 70- where it was held that to constitute a sub-letting, there must be a parting of legal possession, i.e., possession with the right to include and also right to exclude others and whether in a particular case there was sub-letting was substantially a question of fact. In that case, a reference was made at page 77 of the report to the Treatise of Goa on Landlord and Tenant, 6th edn., at page 323, for the proposition that the mere act of letting other persons into possession by the tenant, and permitting them to use the premises for their own purposes, is not, so long as he retains the legal possession himself, a breach of covenant. In paragraph 17 of the report, it was observed that parting of the legal possession means possession with the right to include and also right to exclude others. In the last mentioned case, the observations of the Madras High Court in Gundalapalli Rangamannar Chetty vs. Desu Rangiah (AIR 1954 Mad 182) were approved by this Court in which the legal position in Jackson vs. Simons ((1923) 1 Ch 373) were relied upon. The Madras High Court had also relied on a judgment of scrutton L.J. in Chaplin vs. Smith ((1926) 1 KB 198) of the report where it was said :He did not assign, nor did he underlet. He was constantly on the premises himself and kept the key of them. He did business of his own as well as business of the company. In my view he allowed the company to use the premises while he himself remained in possession of them.

     

  5. A three-Judge Bench of Supreme Court in Parvinder Singh vs. Renu Gautam and others, (2004) 4 SCC 794 commented upon the device adopted by tenants many a time in creating partnership as a camouflage to circumvent the provisions of the Rent Control Act. The following observations are worth noticing: “The rent control legislations which extend many a protection to the tenant, also provide for grounds of eviction. One such ground, most common in all the legislations, is sub-letting or parting with possession of the tenancy premises by the tenant. Rent control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rack-renting. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appearance of partnership while in effect what has come into existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnership. Merely because a tenant has entered into a partnership he cannot necessarily be held to have sub-let the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant.A person having secured a lease of premises for the purpose of his business may be in need of capital or finance or someone to assist him in his business and to achieve such like purpose he may enter into partnership with strangers. Quite often partnership is entered into between the members of any family as a part of tax planning. There is no stranger brought on the premises. So long as the premises remain in occupation of the tenant or in his control, a mere entering into partnership may not provide a ground for eviction by running into conflict with prohibition against sub-letting or parting with possession. This is a general statement of law which ought to be read in the light of the lease agreement and the law governing the tenancy. There are cases wherein the tenant sub-lets the premises or parts with possession in defiance of the terms of lease or the rent control legislation and in order to save himself from the peril of eviction brings into existence, a deed of partnership between him and his sub-lessee to act as a cloak on the reality of the transaction. The existence of deed of partnership between the tenant and the alleged sub-tenant would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession or interest in tenancy premises by the tenant in favour of a third person. The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction………”

     

  6. In yet another decision, a three-Judge Bench of Supreme Court in Mahendra Saree Emporium (II) vs. G. V. Srinivasa Murthy, (2005) 1 SCC 481 considered earlier decisions, few of which have been referred above, while dealing with a matter relating to sub-letting of the premises within the meaning of Section 21(1)(f) of Karnataka Rent Control Act, 1961 and observed as follows :“The term “sub-let” is not defined in the Act – new or old. However, the definition of “lease” can be adopted mutatis mutandis for defining “sub-lease”. What is “lease” between the owner of the property and his tenant becomes a sub-lease when entered into between the tenant and tenant of the tenant, the latter being sub-tenant qua the owner-landlord. A lease of immovable property as defined in Section 105 of the Transfer of Property Act, 1882 is a transfer of a right to enjoy such property made for a certain time for consideration of a price paid or promised. A transfer of a right to enjoy such property to the exclusion of all others during the term of the lease is sine qua non of a lease. A sub-lease would imply parting with by the tenant of the right to enjoy such property in favour of his subtenant. Different types of phraseology are employed by different State Legislatures making provision for eviction on the ground of sub-letting. Under Section 21(1)(f) of the old Act, the phraseology employed is quite wide. It embraces within its scope sub-letting of the whole or part of the premises as also assignment or transfer in any other manner of the lessee’s interest in the tenancy premises. The exact nature of transaction entered into or arrangement or understanding arrived at between the tenant and alleged sub-tenant may not be in the knowledge of the landlord and such a transaction being unlawful would obviously be entered into in secrecy depriving the owner-landlord of the means of ascertaining the facts about the same. However still, the rent control legislation being protective for the tenant and eviction being not permissible except on the availability of ground therefor having been made out to the satisfaction of the Court or the Controller, the burden of proving the availability of the ground is cast on the landlord i.e. the one who seeks eviction. In Krishnawati vs. Hans Raj ((1974) 1 SCC 289) reiterating the view taken in Associated Hotels of India Ltd. vs. S. B. Sardar Ranjit Singh ((1968) 2 SCR 548) this Court so noted the settled law (SCC p. 293, para 6) :“(The onus to prove sub-letting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.”

    Thus, in the case of sub-letting, the onus lies on the landlord would stand discharged by adducing prima facie proof of the fact that the alleged sub-tenant was in exclusive possession of the premises or, to borrow the language of Section 105 of the Transfer of Property Act, was holding right to enjoy such property. A presumption of sub-letting may then be raised and would amount to proof unless rebutted. In the context of the premises having been sub-let or possession parted with by the tenant by adopting the device of entering into partnership, it would suffice for us to notice three decisions of this Court. Murlidhar vs. Chuni Lal (1970 Ren CJ 922) is a case where a shop was let out to a firm of the name of Chuni Lal Gherulal. The firm consisted of three partners, namely, Chuni Lal, Gherulal and Meghraj. This partnership closed and a new firm by the name of Meghraj Bansidhar commenced its business with partners Meghraj and Bansidhar. The tenant-firm was sought to be evicted on the ground that the old firm and the new firm being two different legal entities, the occupation of the shop by the new firm amounted to sub-letting. This Court discarded the contention as “entirely without substance” and held that a partnership firm is not a legal entity; the firm name is only a compendious way of describing the partners of the firm. Therefore, occupation by a firm is only occupation by its partners. The two firms, old and new, had a common partner, namely, Meghraj, who continued to be in possession and it was fallacious to contend that earlier he was in possession in the capacity of partner of the old firm and later as a partner of the new firm. The landlord, in order to succeed, has to prove it as a fact that there was a sub-letting by his tenant to another firm. As the premises continued to be in possession of one of the original tenants, Meghraj, then by a mere change in the constitution of the firm of which Meghraj continued to be a partner, an inference as to sub-letting could not be drawn in the absence of further evidence having been adduced to establish sub-letting. In Helper Girdharbhai vs. Saiyed Mohd. Mirasaheb Kadri ((1987) 3 SCC 538) the tenant had entered into a partnership and the firm was carrying on business in the tenancy premises. This Court held that if there was a partnership firm of which the appellant was a partner as a tenant, the same would not amount to sub-letting leading to forfeiture of the tenancy; for, there cannot be a subletting unless the lessee parted with the legal possession. The mere fact that another person is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease. Thus, the thrust is, as laid down by this Court, on finding out who is in legal possession of the premises. So long as the legal possession remains with the tenant the mere facturn of the tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to sub-letting. In Parvinder Singh vs. Renu Gautam ((2004) 4 SCC 794) (Para 8) a three-Judge Bench of this Court devised the test in these terms (SCC p. 799, para 8) :

    “If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of subtenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant”.”

     

  7. In Nirmal Kanta (Dead) Through L.Rs. vs. Ashok Kumar and another, (2008) 7 SCC 722, Supreme Court held thus :“What constitutes sub-letting has repeatedly fallen for the consideration of this Court in various cases and it is now well-established that a sub-tenancy or a sub-letting comes into existence when the tenant inducts a third party stranger to the landlord into the tenanted accommodation and parts with possession thereof wholly or in part in favour of such third party and puts him in exclusive possession thereof. The lessor and/or a landlord seeking eviction of a lessee or tenant alleging creation of a sub-tenancy has to prove such allegation by producing proper evidence to that effect. Once it is proved that the lessee and/ or tenant has parted with exclusive possession of the demised premises for a monetary consideration, the creation of a subtenancy and/or the allegation of sub-letting stands established.”28. The legal position that emerges from the aforesaid decisions can be summarised thus :

    (i) In order to prove mischief of sub-letting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.

    (ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to sub-letting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the Court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.

    (iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.

    (iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.

    (v) Initial burden of proving sub-letting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.

    (vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.

     

  8. In State through Special Cell, New Delhi vs. Navjot Sandhu alias Afshan Guru and others, (2003) 6 SCC 641 Supreme Court explained the power of the High Court under Article 227 thus :

    “Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”.”

    The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447; State of Maharashtra vs. Milind and others (2001) 1 SCC 4, Ranjeet Singh vs. Ravi Prakash, (2004) 3 SCC 682, came to be considered by this Court in the case of Shamshad Ahmad and others vs. Tilak Raj Bajaj (Deceased) through L.Rs. and others, (2008) 9 SCC 1 and this Court held :

    “Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a Court of appeal or a Court of error. It can neither review nor re-appreciate, nor re-weigh the evidence upon which determination of a subordinate Court or inferior Tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior Court or Tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts and inferior Tribunals within the limits of law.”


 

 

Recovery of the possession under West Bengal Premises Tenancy Act 1997

Law Library

West Bengal Premises Tenancy Act-1997

6. Protection of tenant against eviction – (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, no order or decree for the recovery of the possession of any premises shall be made [by the Civil Judge having jurisdiction] in favour of the landlord against the tenant, [except on a suit being instituted by such landlord] on one or more of the following grounds :-

(a) where the tenant has sublet, assigned or otherwise parted with the possession of whole or any part of the premises without obtaining the consent in writing of the landlord or the tenant has used the premises for a purpose other than that for which it was let out without obtaining the consent in writing of the landlord;

(b) where the tenant has made default in payment of rent for three months within a period of twelve months, or for three rental periods within a period of three years where the rent is not payable monthly;

(c) where the premises is required by the landlord for the purpose of building or rebuilding or for making substantial addition or alteration thereto and such building or rebuilding or substantial addition or alteration cannot be carried out without the premises being vacated;

(d) where the landlord or any person, for whose benefit the premises is held, reasonably requires the premises for his own occupation and the landlord or such person is not in possession of any suitable accommodation within the same Municipal Corporation or Municipality or in any other area within ten kilometres from such premises where this Act extends;]

(e) where the tenant has given notice to quit but has failed to deliver vacant possession of the premises to the landlord in accordance with such notice;

(f) where the tenant or any person residing in the premises let out to the tenant has done any act contrary to the provisions of clause (m), clause (o) or clause (p) of section 108 of the Transfer of Property Act, 1882;]

(g) where the tenant has been using the premises or any part thereof or allowing the premises or any part thereof to be used for immoral or illegal purpose;

(h) where the tenant is guilty of any act of waste or of any negligence or default resulting in material deterioration of the condition of the premises;

(i) where the tenant or any person residing in the premises let out to the tenant has been guilty of conduct which is a nuisance or causes annoyance to the neighbours including the landlord;

(j) where the tenant has acquired or constructed, or has been allotted, a house or flat, provided a moratorium for one year is allowed for vacating the premises.

[Explanation. – This clause shall not apply to premises let out for non-residential purpose and used for commercial purpose;]

(k) where the landlord is a member of the Armed Forces of the Union of India and requires it for occupation of his family and produces a certificate of the prescribed authority referred to in section 7 of the Indian Soldiers (Litigation) Act, 1925, that he is serving under special conditions within the meaning of section 3 of that Act or is posted in a non-family area;

(l) where the tenant, or his spouse, or son, or daughter, or parent, or the widow of his predeceased son, who is dependent on him, does not reside in the premises [ten months] and keeps the premises under lock and key.

(2) Where a landlord has acquired his interest in the premises by transfer, no [suit] for the recovery of possession of the premises on the ground of requirement for building or rebuilding or addition or alteration or requirement for own occupation shall be instituted by the landlord before the expiration of a period of one year from the date of acquisition of such interest.

(3) Where the landlord requires the premises on the ground of building or rebuilding or addition or alteration or for his own occupation and [the Civil Judge] is of the opinion that such requirement may be substantially satisfied by ejecting the tenant or a sub-tenant from a part of the premises and allowing the tenant or the sub-tenant to continue in occupation of the rest of the premises, then, if the tenant or the sub-tenant agrees to such occupation, [the Civil Judge] shall pass a decree accordingly and fix the proportionate rent for the portion remaining in the occupation of the tenant or the sub-tenant. The rent so fixed shall be deemed to be the fair rent for the purposes of this Act. If the tenant does not agree, but the sub-tenant agrees, to such occupation, no decree or order for ejectment shall be passed against the sub-tenant who shall become, with effect from the date of the decree or order, a tenant directly holding under the landlord.

(4) Notwithstanding anything in any other law for the time being in force, no [suit] for the recovery of possession (of any premises on any of the grounds as aforesaid, except on the ground mentioned in clause (e) of sub-section (1), shall be instituted by the landlord unless he has given to the tenant one month’s notice expiring with a month of the tenancy.

(5) Notwithstanding anything contained in this Act or in any other law for the time being in force, no suit or proceeding shall be instituted by the landlord within two years from the date of commencement of this Act for recovery of possession of any premises to which the provisions of the West Bengal Premises Tenancy Act, 1956 did apply but the provisions of this Act do not apply.

7. When a tenant can get the benefit of protection against eviction – (1) (a) On a suit being instituted by the landlord for eviction on any of the grounds referred to in section 6, the tenant shall, subject to the provisions of sub-section (2) of this section, pay to the landlord or deposit with the Civil Judge all arrears of rent, calculated at the rate at which it was last paid and upto the end of the month previous to that in which the payment is made together with interest at the rate of ten per cent per annum.

(b) Such payment or deposit shall be made within one month of the service of summons on the tenant or, where he appears in the [suit] without the summons being served upon him, within one month of his appearance.

(c) The tenant shall thereafter continue to pay to the landlord or deposit with [the Civil Judge] month by month by the 15th of each succeeding month, a sum equivalent to the rent at that rate.

(2) If in any [suit] referred to in sub-section (1), there is any dispute as to the amount of the rent payable by the tenant, the tenant shall, within the time specified in that sub-section, deposit with [the Civil Judge] the amount admitted by him to be due from him together with an application for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of the application, the Civil Judge shall, having regard to the rate at which rent was last paid and the period for which default may have been made by the tenant, make, as soon as possible within a period not exceeding one year, an order specifying the amount, if any, due from the tenant and, thereupon, the tenant shall, within one month of the date of such order, pay to the landlord the amount so specified in the order:

Provided that having regard to the circumstances of the case, an extension of time may be granted by [the Civil Judge] only once and the period of such extension shall not exceed two months.

(3) If the tenant fails to deposit or pay any amount referred to in sub-section (1) or sub-section (2) within the time specified therein or within such extended time as may be granted, [the Civil Judge shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the [suit].

(4) If the tenant makes deposit or payment as required by sub-section (1) or sub-section (2), no order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant, shall be made by [the Civil Judge], but he may allow such cost as he may deem fit to the landlord:

Provided that the tenant shall not be entitled to any relief under this sub-section if, having obtained such relief once in respect of the premises, he again makes default in payment of rent for four months within a period of twelve months or for three successive rental periods where rent is not payable monthly.


Flora Elias Nahoum & Ors. Vs. Idrish Ali Laskar [SC 2018 JANUARY]

KEYWORDS:- RENT CONTROL-eviction suit- subletting-

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DATE :-January 25, 2018-

  • If one ground of eviction is held made out against the tenant, that ground is sufficient to evict the tenant from the suit premises.
  • The sin qua non for proving the case of the sub-letting is that the tenant has either whole or in part transferred or/and parted with the possession of the tenanted premises in favour of any third person without landlord’s consent.

SUPREME COURT OF INDIA

Flora Elias Nahoum & Ors. Vs. Idrish Ali Laskar

[Civil Appeal No.4189 of 2007]

Abhay Manohar Sapre, J.

1. This appeal arises from the final judgment and final order/decree dated 07.07.2005 passed by the High Court of Calcutta in F.A. No.416 of 1984 whereby the Division Bench of the High Court dismissed the eviction suit filed by the appellants against the respondent and set aside the decree for eviction passed by the Trial Court in their favour and against the respondent.

2. In order to appreciate the issues involved in this appeal, it is necessary to set out the facts in detail herein-below.

3. The appellants are the plaintiffs (landlords) whereas the respondent is the defendant (tenant) in the eviction suit out of which this appeal arises.

4. The appellants (plaintiffs) are the owners/landlords of one shop (room) bearing premises No.1, Hartford Lane, Calcutta (hereinafter referred to as “the suit shop”), which was originally owned by Late Nahoum Elias and Miss Resmah Nahoum. The present appellants are the successors-in-interest of the suit shop. They had let out the suit shop to one – Alfajuddin Laskar on a monthly rent of Rs.40/-. In the suit shop, Alfajuddin Laskar used to do the business of sale of eggs under the name

“24, Parganas Egg Stores”.

5. Alfajuddin Laskar expired in 1976. The respondent being his son became the tenant of the appellants on same terms and conditions. The respondent, however, closed his father’s business of selling of eggs and started his tailoring business under the name “New India Tailors” in the suit shop.

6. In 1978, the appellants filed an Eviction Suit against the respondent under the provisions of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as “the Act”. The eviction was claimed on four grounds, viz., default in payment of monthly rent, bona fide need, sub-letting and lastly, making of unauthorized construction in the suit shop by the respondent.

7. The respondent filed the written statement and denied all the four grounds. Parties adduced their evidence. The Trial Court, by order dated 30.01.1984, partly decreed the suit. It was held that so far as the grounds relating to default of rent and bona fide need are concerned, both are not made out whereas the other two grounds, namely, sub-letting and making of unauthorized construction in the suit shop, both stood made out against the respondent.

8. In this view of matter, the appellants’ suit was decreed in part against the respondent and the decree for eviction on the ground of sub-letting and unauthorized construction made by the respondent in the suit shop was passed. The respondent was granted six months’ time to vacate the suit shop and handover its vacant possession to the appellants.

9. Being aggrieved by the said order, the respondent filed appeal before the High Court at Calcutta. The appellants, however, did not file any cross appeal or cross-objection against that part of the order by which two grounds, viz., default in payment of rent and bona fide need were held not made out. The judgment of the Trial Court thus became final to that extent.

10. Therefore, the only question before the High Court was whether the Trial Court was justified in decreeing appellants’ suit on the grounds of sub-letting and making of unauthorized construction in the suit shop.

11. In other words, the question was whether the Trial Court was right in holding that the ground of sub-letting and making of unauthorized construction in the suit shop was made out.

12. The High Court, by impugned judgment, allowed the respondent’s appeal and dismissed the appellants’ eviction suit. The High Court held that no ground of either sub-letting or an unauthorized construction was made out, hence, the suit was liable to be dismissed in its entirety. It was accordingly, dismissed.

13. Against this judgment, the landlords felt aggrieved and filed this appeal by way of special leave in this Court.

14. Heard Ms. Daisy Hannah, learned counsel for the appellants and Mr. Zakiullah Khan, learned senior counsel for the respondent.

15. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside of the impugned judgment, we restore that of the Trial Court and, in consequence, decree the appellants’ suit in part, as indicated below.

16. There can be no dispute to the legal proposition that even if the landlord is able to make out only one ground out of several grounds of the eviction, he is entitled to seek the eviction of his tenant from the suit premises on the basis of that sole ground which he has made out under the Rent Act.

17. In other words, it is not necessary for the landlord to make out all the grounds which he has taken in the plaint for claiming eviction of the tenant under the Rent Act. If one ground of eviction is held made out against the tenant, that ground is sufficient to evict the tenant from the suit premises.

18. As mentioned above, the Trial Court held that the appellants were able to make out two grounds for respondent’s eviction, namely, sub-letting and unauthorized construction made by him in the suit shop. The High Court, accordingly, reversed the findings on these two grounds and dismissed the suit.

19. We consider it proper to examine first, the ground of sub-letting with a view to find out as to whether the plaintiffs (appellants) were able to make out this ground against the respondent. In other words, let us first examine as to whether the Trial Court was right or the High Court was right on this issue.

20. In order to examine, whether the ground of sub-letting is made out or not, it is necessary to see as to how this ground was pleaded and sought to be proved by the parties.

21. The appellants, in Para 4 of the plaint, pleaded the case of sub-letting as under:

“4. The defendant after acquiring right of tenancy in respect of the said shop room after his father’s death, wrongfully transferred possession of the said shop room to one Joynal Mallick evidently for creating a sub-tenant in his favour in respect of the suit shop room without obtaining the permission and consent of the plaintiffs.”

22. The respondent, in reply to Para 4 of the plaint, gave the following reply in Para 9 of his written statement as under:

“9. The defendant denies the allegations made in paragraph 4 of the plaint and in particular denies the allegations that he has transferred possession of the shop under his tenancy to one Joynal Mullick or anybody as falsely alleged.”

23. It is clear from the perusal of the pleadings that the case of the appellants was that the respondent has sub-let and parted with possession of the suit shop to one Joynal Mullick without appellants’ consent.

24. So far as the respondent is concerned, he simply denied the appellants’ case in para saying that he has not sub-let the suit shop to anyone, 10 much less to Joynal Mullick, as claimed by the appellants.

25. The respondent examined himself as witness No.1 and examined Joynal Mullick as witness No.2.

26. In examination-in-chief, the respondent changed his stand and said that he has not sub-let the suit shop to Joynal Mullick but he is in his employment. This is what he said: “It is not a fact that I sublet the shop room in suit to one Jainal Mullick. Jainal Mullick is in my employment.”

27. The respondent further in his cross-examination again changed his stand and in answer to a specific question put to him as to whether he has employed any person in his tailoring business said “no”. This was his reply:- “No. In the tailoring business I have no employee but the work is done on contract basis.”

28. The respondent then in answer to another question put to him as to how many persons work for you on contract basis in his tailoring business, his reply was- four persons and out of four, Joynal Mullick and Jahangir Mullick were his employees. This is what he said:- “Najrul Islam and Sayed, Volunteers – Besides these persons there are two other persons who look after the business in my absence. They are Jainal Mullick and Zahangir Mullick volunteers. These two persons are my employee.”

29. The respondent then was asked another question, viz., Did he disclose the name of any of his employee while submitting the declaration form under the Shops and Establishment Act, his reply was “no”. This is what he said:- “I am the owner of the tailoring shop. Volunteers – fresh declaration has been submitted about 10/12 days back. In that declaration I have not declared that these two persons Jainal and Zahangir are my employees.”

30. The respondent was then asked last pointed question – whether Joynal Mullick is doing business in the suit shop. To this, his reply was that Joynal Mullick is his business partner. This is what he said:- “I obtained the trade license from the Corporation of Calcutta for the business carried in the shop showing Jainal Mullick and Zahangir Mullick as my partners in the business. It is not a fact that Jainal and Zahangir are not my employees.”

31. Joynal Mullick then in his evidence said that he is an employee of the respondent for the last 7/8 years and whatever the respondent (his owner) tells him to do, he does it while sitting in the suit shop. He stated that, in his presence, the respondent had constructed “Macha” in the suit shop. He said that he joined the business under the name “New India Tailor”.

32. Keeping in view the statements of the respondent and Joynal Mullick, the question arises as to whether a case of sub-letting and parting of possession of the suit shop in favour of Joynal Mullick, whether whole or in part, is made out.

33. Section 13(1)(a) of the Act deals with the ground of sub-letting and provides that where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the landlord transfers, assigns or sublets in whole or in part the premises held by him, then it is a ground for the tenant’s eviction from the tenanted premises.

34. In our considered opinion, keeping in view the pleadings and the nature of the evidence adduced by the parties, the ground of sub-letting, as contemplated under Section 13(a) ibid, is made out. This we say for the following reasons.

35. In the first place, we find that the respondent (tenant), since inception, was taking inconsistent stand on the question of sub-letting.

36. To begin with, he denied having sub-let the suit shop to anyone in his written statement. Then, contrary to what he alleged in the written statement, he said in his examination-in-chief that Joynal Mullick was his employee. Then, again contrary to this statement, he said, in next breath, that Joynal Mullick is his partner in tailoring business.

37. So far as Joynal Mullick is concerned, he admitted that he has been sitting in the suit shop for the last 7/8 years but he has been sitting in a capacity as an “employee” of the respondent.

38. In our opinion, the contradictory stand of the respondent and that too without any evidence clearly leads to an inference that the respondent was unable to prove, in categorical terms, as to which capacity, Joynal Mullick was sitting in the suit shop – whether as an “employee” or a “business partner” or in any “other capacity”.

39. It seems that the respondent was not sure as to what stand he should take to meet the plea of sub-letting. He, therefore, went on changing his stand one after the other and could not prove either.

40. In our view, since the respondent had admitted the presence of Joynal Mullick in the suit shop, the burden was on him to prove its nature and the capacity in which he used to sit in the suit shop.

41. In other words, if Joynal Mullick was the respondent’s employee then, in our view, he should have proved it by filling a declaration form, which he had submitted under the Shops and Establishment Act to the authorities. But it was not done. Rather he admitted that he did not disclose the name of Joynal Mullick in the declaration form. That apart, the respondent could have proved this fact by filing payment voucher, or any other relevant evidence to show that Joynal Mullick was his employee and that he used to sit in the suit shop in that capacity only. It was, however, not done.

42. Second, if Joynal Mullick was a partner of the respondent in the tailoring business then the respondent could have proved this fact by filing a copy of the partnership deed. However, he again failed to produce the copy of partnership deed. In this way, he failed to prove even this fact.

43. Now so far as the appellants are concerned, they appear to have discharged their initial burden by pleading the necessary facts in Para 4 and then by proving it by evidence that firstly, they let out the suit shop to the respondent and secondly, the respondent has sub-let the suit shop to Joynal Mullick, who was in its exclusive possession without their consent.

44. In a case of sub-letting, if the tenant is able to prove that he continues to retain the exclusive possession over the tenanted premises notwithstanding any third party’s induction in the tenanted premises, no case of sub-letting is made out against such tenant.

45. In other words, the sin qua non for proving the case of the sub-letting is that the tenant has either whole or in part transferred or/and parted with the possession of the tenanted premises in favour of any third person without landlord’s consent.

46. This Court in Bharat Sales Ltd. vs. Life Insurance Corporation of India (1998) 3 SCC 1, while dealing with the case of sub-letting succinctly explained the concept of sub-letting and what are its attributes.

47. Justice Sagir Ahmad, speaking for the Two Judge Bench, held as under:

“4. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property.

It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease.

It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let.”

48. In our considered opinion, the aforesaid principle of law fully applies to the case at hand against the respondent due to his contradicting stand and by admitting Joynal Mullick’s presence in the suit shop but not being able to properly prove the nature and the capacity in which he was sitting in the suit shop.

49. In view of the foregoing discussion, we have formed an opinion that the appellants were able to prove the case of sub-letting against the respondent.

50. We cannot thus concur with the reasoning and the conclusion arrived at by the High Court and instead prefer to agree with the conclusion of the Trial Court insofar as it relates to the ground of sub-letting. In view of this, it is not necessary to examine the other ground relating to making of unauthorized construction by the respondent in the suit shop.

51. In the result, the appeal succeeds and is allowed. The impugned judgment is set aside and that of the Trial Court is restored.

52. The respondent is, however, granted three months’ time to vacate the suit shop, subject to the respondent filing in this Court a usual undertaking that he will deposit the entire arrears of rent up to the date as per the agreed rate within one month and will also deposit the mesne profits for a period of three months up to the date of vacation in advance at the agreed rate and would vacate the suit shop on or before 30.04.2018.

[R.K. AGRAWAL]

 [ABHAY MANOHAR SAPRE]

New Delhi;

January 25, 2018

Smt. Syed Sughra Zaidi Vs. Laeeq Ahmad (D) through LRS. & Ors [SC 2017 December]

KEYWORDS:- EVICTION SUIT- TENANCY-registered rent agreement-renewal of lease deed

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The courts below did not properly appreciate that after service of eviction notice on 09.04.1979 continuance of respondents’ possession in the demised premises had become illegal. The High Court did not appreciate that the respondents have sub-let the property to third party and are earning huge profits by simply paying a meager rent of Rs.800/- per month. The respondents-tenants cannot squat on the property and make a profit for themselves at the cost of the appellant-landlord

DATE: December 06, 2017

ACTS: Section 20(4) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972

HISTORY: Appeal arises out of the judgment dated 09.10.2009 passed by the High Court of Allahabad in Revision Petition No.543 of 1989 dismissing the revision petition filed by the original plaintiff/landlord thereby affirming the judgment of the trial court dismissing the ejectment suit of the plaintiff/landlord.

The suit property was let out to the respondents-tenants by a registered rent agreement dated 12.08.1968 for a period of ten years on rent @ Rs.750/- per month. There was a specific term in the rent agreement which envisaged renewal of the rent agreement by execution of a separate rent agreement for a further period of five years at enhanced rent from Rs. 750/- to Rs.800/- per month. The lease was not renewed and thereafter the landlord issued a notice to the respondents-tenants on 09.04.1979 seeking vacant possession of the suit property on account of determination of lease due to efflux of time.

SUPREME COURT OF INDIA

Smt. Syed Sughra Zaidi Vs. Laeeq Ahmad (D) through LRS. & Ors.

[Civil Appeal No. 20915 of 2017 arising out of SLP (C) No.27765 of 2010]

R. BANUMATHI, J.

1. Leave granted.

2. This appeal arises out of the judgment dated 09.10.2009 passed by the High Court of Allahabad in Revision Petition No.543 of 1989 dismissing the revision petition filed by the original plaintiff/landlord thereby affirming the judgment of the trial court dismissing the ejectment suit of the plaintiff/landlord.

3. Brief facts of the case are that the suit property No.37(old), 17 and 18 (new numbers) situated at Beli Bazar, Meerut was let out by the original plaintiff/landlord (Nazar Mohammad Zaidi) to the original defendants (Abdul Qayuum and Hazi Anvaruul Haq) by way of registered rent agreement dated 12.08.1968 for a period of ten years at the rent of Rs.750/- per month. There was a specific term in the rent agreement which envisaged renewal of the rent agreement by execution of a separate registered agreement for a further period of five years at enhanced rent from Rs.750/- to Rs.800/- per month. After expiry of the original term of lease, landlord (Nazar Mohammad Zaidi) filed ejectment suit in SCC Suit No. 2 of 1981 for eviction of defendants/tenants inter alia on the pleas:-

(i) that the period of lease has expired; the defendants/tenants have failed to get the fresh lease deed executed at the enhanced rent of Rs.800/- per month;

(ii) the defendants/tenants have put up construction of shops in the suit premises and let out the same to third party in violation of the terms of the rent agreement; and

(iii) default in payment of rent and municipal tax by the defendants.

4. Respondents-tenants contested the suit stating that they have taken every possible step to get the lease deed renewed for a further period of five years and also sent the rent @ Rs.800/- per month as per the terms of the lease deed dated 12.08.1968 to the original plaintiff who refused to receive the same. The tenants further pleaded that the entire arrears of rent, damages along with interest etc. have been deposited in the court under Section 20(4) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short ‘U.P. Act 13 of 1972’) and the suit for eviction is liable to be dismissed.

5. Upon consideration of the pleadings and evidence, the trial court framed eleven issues and dismissed the suit on the ground that the plaintiff/landlord has not been able to establish any of the grounds for eviction specified under Section 20 of the U.P. Act 13 of 1972. Insofar as the issue of construction by defendants/tenants allegedly in violation of terms of rent agreement was concerned, the trial court held that the construction was in consonance with the terms of the rent agreement and there was nothing in the rent agreement which restricted the right of defendants/tenants to raise construction in the premises.

So far as non-renewal of the rent agreement is concerned, the trial court held that there was reluctance on the part of the plaintiff/landlord to renew the rent agreement. The trial court further held that there was no default in payment of rent and the tenants continued paying the rent even after lapse of lease period at the enhanced rate of rent. Being aggrieved, the plaintiff/landlord approached the High Court by way of revision and the same came to be dismissed by the impugned order.

6. Mr. V. Shekhar, learned senior counsel for the appellant contended that the lease deed dated 12.08.1968 was for a fixed period of ten years and it can further be extended for five years on executing fresh deed and since the defendants-tenants failed to get any fresh deed executed, their continuance in possession had become illegal after service of legal notice for eviction. It was further contended that the courts below failed to appreciate that the respondents defaulted many times in payment of rent and payment of house tax to municipality and even on the plea under Section 20(4) of the U.P. Act 13 of 1972, the tenants defaulted in regularly depositing the admitted amount and therefore, the respondents-tenants are liable to be evicted.

7. Reiterating the findings of the High Court and the trial court, the learned counsel for respondents-tenants submitted that the courts below recorded concurrent findings that every possible step was taken by the respondents-tenants and it was the plaintiff-landlord who Page No. 4 of 12 failed to renew the rent agreement and the concurrent findings so recorded cannot be interfered with.

8. Upon consideration of the rival contentions and materials on record, the question falling for consideration is whether after expiry of the lease period and the determination of the tenancy whether the respondents-tenants can continue in possession of the suit property, when the lease was not renewed?

9. The suit property was let out to the respondents-tenants by a registered rent agreement dated 12.08.1968 for a period of ten years on rent @ Rs.750/- per month. There was a specific term in the rent agreement which envisaged renewal of the rent agreement by execution of a separate rent agreement for a further period of five years at enhanced rent from Rs. 750/- to Rs.800/- per month. The lease was not renewed and thereafter the landlord issued a notice to the respondents-tenants on 09.04.1979 seeking vacant possession of the suit property on account of determination of lease due to efflux of time.

10. The trial court was of the view that there was no violation of the terms of the lease deed as they had put in sufficient efforts in getting the rent agreement renewed. For arriving at such conclusion, the trial court and the High Court placed reliance upon Ex. A-18 (13.06.1978) a notice allegedly issued by the plaintiff’s advocate Gulzar Mohd. intimating the tenants that they are willing to renew the lease as per the terms of the rent agreement provided the tenants pay enhanced rent @ Rs.800/- per month. This piece of evidence was categorically denied by the landlord. The trial court did not keep in view the denial of the appellant-landlord regarding issuance of Ex. A-18 notice (13.06.1978).

In the light of denial of issuance of Ex. A-18 notice, it was necessary to adduce evidence to prove that Ex. A-18 notice was actually issued on instructions by the landlord. The burden was upon the respondents-tenants to prove that the said notice was issued by advocate Gulzar Mohd. on the instructions of the landlord. The trial court pointed out that the respondents-tenants had taken steps to examine the said advocate; but he had not appeared before the court.

From the materials on record, it is not known as to what steps were taken by the tenants to examine the said advocate Gulzar Mohd. The trial court, in our view, could have very well exercised its power under Order XVI Rule 14 CPC and summoned the said advocate as witness. In the absence of examination of the said advocate Gulzar Page No. 6 of 12 Mohd., the trial court ought not to have placed reliance upon Ex. A-18 notice alleged to have been issued on the instructions of the landlord.

11. Ex. A-18 notice (13.06.1978) is said to have been issued on the instructions of the landlord. As pointed out earlier, the landlord issued eviction notice on 09.04.1979 seeking vacant possession of the premises. If really Ex. A-18 notice dated 13.06.1978 was issued at the instance of the landlord offering to renew the lease, there was no requirement of issuance of eviction notice on 09.04.1979 calling upon the respondents-tenants to hand over the vacant possession of the suit property. The courts below erred in ignoring landlord’s denial of issuance of Ex. A-18 notice (13.06.1978) and non-examination of advocate Gulzar Mohd. The High Court was not right in holding that the respondents-tenants have taken steps to get renewal of rent agreement and there was reluctance only on the part of the landlord. Be it noted, the tenants have not approached the court to get renewal of lease agreement beyond 12.08.1978.

12. As pointed out earlier, on 09.04.1979, the landlord issued a notice to the respondents-tenants seeking vacant possession of the demised premises on account of determination of lease due to efflux of time. After lapse of lease period, if a lessee continues in possession of the demised premises in absence of an assent by lessor, then he is a tenant by sufferance and exposes himself to be sued for ejectment at any time without any prior notice or demand of possession.

13. The term in the lease agreement for renewal of lease deed does not ipso facto extend the tenure or term of the lease. So far as the clause for renewal in the lease deed is concerned, it was held in Delhi Development Authority v. Durga Chand Kaushish (1973) 2 SCC 825 that such covenant only entitled a lessee to obtain a fresh lease in accordance with and in due satisfaction of the law governing the making of leases. In the absence of renewal of rent agreement, in our considered view, the possession of the respondents-tenants in the demised premises has become unlawful and they are liable to be evicted.

14. Yet another ground for eviction is construction of shops in the suit premises by the tenants and sub-letting the same in violation of terms of rent agreement. Though, there is a clause in the rent agreement enabling the tenants to put up construction, there is no clause in the lease agreement permitting the tenants to transfer his interest of tenancy to third party.

It is the case of the appellant that in violation of the rent agreement, Anwar Ul Haq who was one of the original tenants, transferred his interest of tenancy in favour of third respondent Mohd. Ilyas alias Chaman. The appellant-landlord specifically denied that such transfer of interest in the tenancy was with the consent of the original landlord. On the other hand, the respondents-tenants in support of their claim submitted that such transfer of interest in tenancy had taken place with the consent and knowledge of the original landlord, relied upon Exs. A1 to A7 which are the receipts said to have been signed by the original landlord issuing to Mohd. Ilyas alias Chaman as one of the tenants. In view of specific denial by the appellant-landlord that they have permitted such transfer of interest, the receipts Exs. A1 to A7 ought to have been proved by adducing evidence. The respondents-tenants, though relied upon the said documents, had not taken steps to prove those documents.

15. On those issues, the courts below recorded findings that the rent agreement nowhere prohibited any of the tenants from transferring their interest in tenancy and therefore, there was no violation of any of the terms of the rent agreement. In noting so, the trial court lost sight of the fact that in the rent agreement, parties specifically incorporated clause (9), permitting sub-letting by tenants. Had the parties agreed to create or transfer of interest in the tenancy in favour of third party, they would have added a specific term in that regard in the rent agreement. Though, sub-letting of the premises for commercial purpose was agreed to by the original parties, transfer of interest in tenancy leading to creation of third party interest in the suit property could not have been done in the absence of a specific term in the rent agreement.

Thus, the respondents-tenants are liable to be evicted on the ground of violation of terms of rent agreement by transfer of interest in tenancy to respondent No. 3 – Mohd. Ilyas alias Chaman.

16. So far as the default in payment of rent and the deposit arrears of rent by the defendants and whether the respondents are entitled to the benefits of Section 20(4) of the U.P. Act 13 of 1972, the courts below recorded concurrent findings that Section 20(4) of the U.P. Act 13 of 1972 has been complied with. According to the appellant-landlord, the respondents have failed to regularly deposit the rent in the trial court and there was no compliance of Section 20(4) of the U.P. Act 13 of 1972. Since we have held that the respondents-tenants are liable to be evicted on the ground of non-renewal of rent agreement and determination of tenancy and transfer of tenancy right in violation of terms of rent agreement, we are not proposed to go into the ground of default in payment of rent and compliance of Section 20(4) of the U.P. Act 13 of 1972.

17. The courts below did not properly appreciate that after service of eviction notice on 09.04.1979 continuance of respondents’ possession in the demised premises had become illegal. The High Court did not appreciate that the respondents have sub-let the property to third party and are earning huge profits by simply paying a meager rent of Rs.800/- per month. The respondents-tenants cannot squat on the property and make a profit for themselves at the cost of the appellant-landlord and the judgment of the High Court cannot be sustained.

18. In the result, the impugned judgment is set aside and this appeal is allowed. The respondents-tenants and the sub-tenants inducted by them and any other person claiming through them are directed to hand over vacant possession of the suit premises within a period of one year from today, failing which the respondents-tenants and their sub-tenants or other persons claiming through them shall be liable for contempt of Court in addition to other proceedings. No order as to costs.

 [KURIAN JOSEPH]

 [R. BANUMATHI]

Rai Brij Raj Krishna and Another Versus Messrs. S. K. Shaw and Brothers [SC 1951 FEB]

Keywords: Rent Control-Jurisdiction

Capture

The Act has entrusted the Controller with a ‘jurisdiction, which includes the jurisdiction to determine whether there is non-payment of rent or not, as well as the jurisdiction, on finding that there is non-payment of rent, to order eviction of a tenant. Therefore, even if the Controller, may be assumed to have wrongly decided the question of non-payment of rent, which by no means is clear, his order cannot be questioned in a civil Ct.

Rai Brij Raj Krishna and Another Versus Messrs. S. K. Shaw and Brothers

(Before : Saiyid Fazl Ali, Mehr Chand Mahajan, B. K. Mukherjea And N. Chandrasekhara Aiyar, JJ.)

ALTERNATIVE CITATION : AIR 1951 SC 115 : (1951) SCR 145

Civil Appeal No. 88 of 1950, Decided on : 02-02-1951.

Civil Procedure Code, 1908—Section 9—Rent control Legislation—Effect of—Order of eviction passed by the Rent Controller on account of non-payment of rent—The Rent Controller vested with jurisdiction to decide the question of non payment under the Act—Error in deciding the question cannot confer jurisdiction on the civil Court—The decision of Rent Controller cannot be questioned in civil Court.

  • When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exist and if they exercise the jurisdiction without its existence, what they do may be questioned and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the Legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned, it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.


(SUPREME COURT OF INDIA)

JUDGMENT

Fazl Ali, J—This is an appeal from a judgment and decree of the H. C. of Judicature at Patna reversing the appellate decree of a Subordinate Judge in suit instituted by the resps. The facts of the case are briefly these. The resps. have been in occupation as a monthly tenant of several blocks of premises belonging to the applts. at a monthly rental of ` 112. The rent for the months of March, April and May, 1947 having fallen into arrears, they remitted it along with the rent for June, on 28-6-1947, by means of two cheques. As the applts did not accept the cheques, on 4-8-1947, the resps. remitted the amount subsequently by postal money order. On 12-8-1947, the applts. maintaining that there was non-payment of rent and hence the resps. were liable to be evicted, under S. 11 (1) (a), Bihar Building (Lease, Rent and Eviction) Control Act, 1947 (III [3] of 1947), applied to the House Controller for the eviction of the resps. from the premises. Section 11 (1) (a) of the Act runs as follows:

“Notwithstanding anything contained in any agreement or law to the contrary and Subject to the provisions of S. 12, where a tenant is in possession of any building, he shall not be liable to be evicted therefrom, whether in execution of a decree or otherwise, except-

(a) in the case of a month to month tenant, for non-payment of rent or breach of the conditions of the tenancy, or for subletting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment;”

2. On 30-8-1947, the resps. whose money order had in the meantime been returned by the applts. deposited the rent up to the month of June in the Office of the House Controller. Notwithstanding this deposit, the House Controller passed an order on 10th November, directing the eviction of the resps. by 10-5-1948, and holding that they had trade themselves liable to eviction by reason of non-payment of rent. The order of the House Controller was upheld by the Comr. on appeal on 27-4-1948, and there upon the resps. filed the present suit in the Patna Munsif’s Ct. for a declaration that the order of the Controller dated 10-11-1947 was illegal, ultra vires and without jurisdiction. The suit was dismissed by the Munsif and his decree was upheld on appeal, but the H. C. decreed the suit holding that the order of the Rent Controller was without jurisdiction. The applts. were thereafter granted leave to appeal by the H. C. and they have accordingly preferred this appeal.

3. The H. O. has delivered a somewhat elaborate judgment in the case, but it seems to us that the point arising in this appeal is a simple one. The main ground on which the resps. have attacked the order of eviction passed by the House Controller is that in fact there was no non-payment of rent, and since no eviction can be ordered under the Bihar Act unless non-payment is established, the House Controller had no jurisdiction to order eviction. On the other hand, one of the contentions put forward on behalf of the applts is that there was non-payment of rent within the meaning of that expression as used in the Act, since the rent was not paid as and when it fell due. It was pointed out that the rent for the month of March became due in April and the rent for April became due in May, but no step was taken by the resps. to pay the arrears until 28-6-1947. It appears that at the inception of the tenancy, the resps. had paid one month’s rent in advance, and it had been agreed between them and the applts that the advance rent would be adjusted whenever there was default in payment of rent for full one month. It was however pointed out that the advance payment could be adjusted only for one month’s rent, but, in the present case, the rent for three months had become due, and since in a monthly tenancy the rent is payable from month to month, the rent for each month becoming due in the subsequent month, non-payment of that rent at the proper time was sufficient to attract the provisions of S. 11 (1) (a) of the Act. The applts. also raised a second contention, namely, that having regard to the scheme of the Act, the House Controller was fully competent to decide whether the condition precedent to eviction had been satisfied, and once that decision had been arrived at, it could not be questioned in a civil Court. This contention was accepted by the first two Ct, and the first appellate Ct. dealing with it observed as follows:

“But the Buildings Control Act has authorised the Controller to decide whether or not there is non-payment of rent and it is only when he is satisfied that there has been non- payment of rent then he assumes jurisdiction. If the question of jurisdiction depends upon the decision of some fact or point of law and if the Ct. is called upon to decide such question then such decision cannot be collaterally impeached (vide Girwar Narayan v. Kamla Prasad, 12 Pat. 117. In my opinion when the Controller assumed the jurisdiction on being satisfied that there was non-payment of rent and proceeded to pass an order of eviction I think the civil Ct, can have no jurisdiction to challenge the validity of such order.”

4. The H. C. did not accept this view, and after referring to S. 111, T. P. Act, proceeded to propound its own view in these words:

“Regard being had to the circumstances in which the Act under consideration was enacted and its object, as stated in the preamble as being “to prevent unreasonable eviction of tenants” from buildings, it would seem that the expression “non-payment of rent” in S. 11 in the context in which it is used must be given an interpretation which would have the effect of enlarging the protection against determination of a tenancy enjoyed by a tenant under the ordinary law. The Legislature, therefore, by enacting that a tenant shall not be liable to be evicted “except for non payment of rent’’ should be held to have intended to protect a tenant from being evicted from and building in his possession for being a defaulter in payment of rent, if he brings into Ct. all the rent due from him before the order of his eviction comes to be passed.

* * * * *

If, as contended for on behalf of the resps S. 11 of the Act were to be construed as entitling a landlord to apply for eviction of a tenant on the ground of irregular payment of rent amounting to “non-payment of rent’’ and as empowering the Controller to determine as to whether irregular payment of rent amounts to non-payment of rent within the meaning of sub.-s- (1) of S. 11, and sub.s. (3) of S. 18 were to be construed as making the decision of the Controller on this question of law a final one, it will appear that not only this Act will have conferred a right upon the landlord very much in excess of the right that he enjoys under the ordinary law in the matter of determination of tenancies, but that it will have conferred very much larger power on the Controller than that possessed by the Civil Cts. under the ordinary law in the matter of passing decrees for eviction of tenants. The principle of law and equity on which relief against forfeiture for “non payment of rent” is based, will have been completely abrogated, and the protection of a tenant in possession of a building instead of being enlarged will have been very much curtailed. A construction of these provisions, which is calculated to bring about these consequences, cannot and is not in accordance with the circumstances to which this Act was intended to apply and indeed cannot be accepted. The contention of Mr. Lalnarain Sinha on behalf of the resp. that the circumstances disclosed in the petn. raised the question for determination by the Controller whether a case of non-payment of rent in law was established, and his decision of that question, even if wrong in law, is not liable to be questioned in the Civil Ct. must be overruled.”

5. It seems to its that the view taken by the High Court is not correct. Section 11 begins with the words “Notwithstanding anything contained in any agreement or law to the contrary,” and hence any attempt to import the provisions relating to the law of transfer of property for the interpretation of the section would seem to be out of place. Section 11 is a self-contained section and it is wholly unnecessary to go outside the Act for determining whether a tenant is liable to be evicted or not, and under what conditions he can be evicted. It clearly provides that a tenant is not liable to be evicted except on certain conditions, and one of the conditions laid down for the eviction of a month to month tenant is non-payment of rent. sub-section (3) (b) of S. 11 provides that the

“Controller shall, if he is satisfied that the claim of the landlord is bona-fide, make an order directing the tenant to put the landlord in possession of the building”

And if he is not so satisfied he shall make an order rejecting the appln. Section 16 empowers the Controller to make enquiries and inspections and to summon and enforce the attendance of witnesses and compel the production of documents, in the same manner as is provided in C. P. C. Section 18 provides that any person aggrieved by an order passed by the Controller may within 15 days of the receipt of such order by him, prefer an appeal to the Comr. of the Division, and it also prescribes the procedure for the hearing of the appeal. Sub-s- (3) of this section states that

“the decision of the Comr. and subject only to such decision, an order of the Controller shall be final, and shall not be liable to be questioned in any Ct. of law whether in a suit or other proceeding by way of appeal or revision. “

The Act thus sets up a complete machinery for the investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends, and it expressly makes his order final and subject only to the decision of the Comr. The Act empowers the Controller alone to decide whether or not there is nonpayment of rent, and his decision on that question is essential before an order can be passed by him under S. 11. Such being the provisions of the Act, we have to see as to whether it is at all possible to question the decision of the Controller on a matter which the Act clearly empowers him to decide. The law on this subject has been very lucidly stated by Lord Esher, M. R. in The Queen v. Commissioner for Special Purposes of the Income-tax, (1888) 21 Q. B, D. 313, (57 L. J. Q. B. 513), in these words ;

“When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exist and if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the Legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.”

6. On the same line are the following observations of Sir James Colville in Colonial Bank of Australasia v. Willan, (1874) L. R. 5 P. C. 417, (43 L. J. P. C. 39), Which is a case dealing with the principles on which a writ of certiorari may be issued:

“Accordingly, the authorities.. .. . established that an adjudication by a Judge having jurisdiction over the subject-matter is, if no defects appears on the fact of it, to be taken as conclusive of the facts stated therein; and that the Court of Queen’s Bench will not on certiorari quash such an adjudication of the ground that any such fact, however, essential, has been erroneously found.”

7. There can be no doubt that the present case falls within the second category mentioned by Lord Esher, because here the Act has entrusted the Controller with a ‘jurisdiction, which includes the jurisdiction to determine whether there is non-payment of rent or not, as well as the jurisdiction, on finding that there is non-payment of rent, to order eviction of a tenant. Therefore, even if the Controller, may be assumed to have wrongly decided the question of non-payment of rent, which by no means is clear, his order cannot be questioned in a civil Ct. It Seems to us that on this short ground this appeal must succeed, and we accordingly allow the appeal, set aside the judgment and decree of the High Court and restore the decree of the Cls. below. The applts. will be entitled to costs throughout.


Counsel for the Parties:

Shri Baldev Sahay. Senior Advocate (Shri T.K.Prasad, Advocate, with him) instructed by Shri R.C. Prasad, Agent-for Applts.

Shri N. C. Chatterjee, Senior Advocate (Shri H. J. Umrigar, Advocate, with him) instructed by Shri S. P. Verma, Agent -for Respts.