Bombay High Court
Bhairulal Balmukund Verma vs Poonamchand Kasturchand Sancheti And ... on 25 April, 1995
Equivalent citations: 1996(2)BOMCR267, 1995 A I H C 5696, 1997 BOMRC 270, (1996) 2 MAH LJ 866, (1996) 2 BOM CR 267
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT R.M. Lodha, J.
1. By this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the Order dated 31-3-1989 passed by the Resident Deputy Collector, Buldana, where by he set aside the order passed by the Rent Controller on 30-3-1988.
2. Brief facts of the case are that the present petitioner Bhairulal Balmukund Verma (for short 'the landlord') made an application under Clause 13(3)(ii), (iii) and (vi) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (for short 'the Rent Control Order') against respondent No. 1 Poonamchand (for short 'the tenant') and Mangilal Kisanlal Khatti (for short 'the alleged sub-tenant'). It was inter-alia averred in the application by the landlord that he was the owner of the property situated on Plot No. 6, Sheet No. 19, Station Road, Malkapur, and he had let out two shops in the said property, the details of which have been given in the application, to the tenant on monthly rent of Rs. 81/- with effect from 24-1-1973. According to the landlord, the tenant was a habitual defaulter and he has sub-let some portion of the premises to the alleged sub-tenant on the monthly rent of Rs. 75/- and that the premises in question were required by the landlord for his two sons.
3. The tenant filed the written statement and denied the allegations made in the application. It was inter-alia submitted by the tenant that he was a monthly tenant of the premises in question and he has been paying rent regularly and, therefore, it was wrong to say that he was a habitual defaulter. The tenant denied that he has inducted the alleged sub-tenant or that he was receiving rent of Rs. 75/- from him. The tenant also denied the need set out by the landlord. In his specific pleas, the tenant set up the case that he was in possession of the shops in question since 1953 and not from 24-1-1973 as alleged by the landlord. The tenant also averred that the tailoring machine used by the alleged sub-tenant was owned by him and the said work was complimentary to the cloth business, which the tenant has been carrying on his disputed premises. The tenant also averred that the alleged sub-tenant is using the said machine since 1953 and he has no separate business. According to the tenant, he gets the stitching job work done through the alleged sub-tenant. The alleged sub-tenant also contested the claim of the landlord and denied the averments made in the application. In the written statement it was averred by him that he was not the sub-tenant and was not paying any rent to the tenant. According to him, the sewing machine belonged to the tenant and it was in existence since 1953 and it was complimentary to cloth business of the tenant and he was stitching the clothes for the tenant. Certain amendments were carried out in the pleadings by the parties.
4. The Rent Controller recorded the evidence of the parties. The landlord examined himself and also examined one Vijay Pandurang Nemade and Bhagwan Vishnu Jadhav. On the other hand, the tenant examined himself and also produced the Certificate of the Shops and Establishments Act issued by the Municipal Council, Malkapur.
5. The Rent Controller after hearing the parties, granted permission to the landlord to determine the tenancy under Clause 13(3)(iii) of Rent Control Order, vide order dated 30-3-1988. The tenant as well as the alleged sub-tenant challenged the order passed by the Rent Controller on 30-3-1988 by filing appeal, whereby permission was granted to the landlord to determine he tenancy of the tenant under Clause 13(3)(iii) of the Rent Control Order. The Appellate Authority heard the learned Counsel for the parties and by an order dated 31-3-1989 allowed the appeal, set aside the order passed by the Rent Controller to the extent permission was granted under Clause 13(3)(iii) of the Rent Control Order, and thus the application filed by the landlord seeking permission to determine the tenancy of the tenant, came to be dismissed.
6. I have heard the learned Counsel for the parties and perused the impugned order as well as the relevant documents.
7. Shri Ingle, the learned Counsel for the landlord argued that once it has been found that a person other than the tenant was in occupation of the premises in question or a portion thereof, burden lies on the tenant to establish that person who is occupying the premises or a portion thereof, was not a sub-tenant, because these facts would be in the special knowledge of the tenant. The learned Counsel for the petitioner also argues that even if the tenant has permitted the sub-tenant to use the premises, the sub-tenancy would be deemed to have been proved and it was not necessary for the landlord to prove that the tenant was recovering any amount from the alleged sub-tenant. In support of his contention, the learned Counsel for the petitioner relies on the decision of this Court in Dattatraya v. Narayandas and another, 1974 Mah.L.J. 251.
8. On the other hand, Smt. V.A. Naik, the learned Counsel for the respondents, would strenuously urged that it is established on record that the alleged sub-tenant has been working on the sewing machine since 1954 and it is admitted by the landlord that at no point of time till 1986 when the present application for determining the tenancy was filed, no objection was ever raised by the landlord. The learned Counsel for the respondents also referred to the cross-examination of the landlord, wherein he admitted that the sewing machine has been kept in the shop as a compliment to the business being carried on by the tenant and also that no notice was sent by him to the tenant that he had inducted the alleged sub-tenant. Smt. Naik also contended that the landlord has not proved that the tenant was recovering any rent from the alleged sub-tenant.
9. The learned Counsel for the respondents, thus contended that the tenant is admittedly carrying on his business in the disputed premises and merely because the alleged sub-tenant was working on one sewing machine, it cannot be said that the tenant has parted with legal possession of that portion, where the sewing machine was kept by the alleged sub-tenant. In support of her contention, the learned Counsel for the respondents has relied upon the decision of the Apex Court in M/s. Shalimar Tar Products Ltd. v. H.C. Sharma and others, , Jagan Nath v. Chander Bhan and others, A.I.R. 1988 S.C. 136, and M/s. Delhi Stationers and Printers v. Rajendra Kumdar, .
10. The tenant in his written statement has set out a clear case that he was in possession of the disputed premises since 1953 and the said sewing machine was also in the shop since 1953, on which the alleged sub-tenant has been stitching the clothes. It is the clear case of the tenant that he has not let, out any portion of the premises in question to the alleged sub-tenant and the sub-tenant was not doing any separate business and rather the tenant was getting the stitching job work done through the alleged sub-tenant. In this background, if the deposition of the landlord is seen, it would appear that in his cross-examination the landlord has admitted that the alleged sub-tenant was doing the tailoring business since 1954 in the shop and he did not make any enquiry. He has also admitted that the sewing machine is kept in the shop as complimentary to the business of cloth which is run by the tenant. The landlord has also admitted that he has not issued any notice to the tenant that he has inducted the alleged sub-tenant. The landlord also does not say that any amount of rent is being paid by the alleged sub-tenant to the tenant.
11. On the basis of this evidence of the landlord himself, it cannot be said that the tenant has parted with legal possession of the portion of the premises in question to the alleged sub-tenant. On the other hand, it is apparent that though the alleged sub-tenant has been working on the sewing machine since 1954, at no point of time the landlord ever objected or given notice to the tenant. It is not disputed that the tenant has been carrying on his business in clothes in the disputed premises. The landlord's grievance is that the tenant has permitted the alleged sub-tenant to use the premises and by permitting the alleged sub-tenant to use the portion of the premises, the tenant is covered under the mischief of Clause 13(3)(iii) of the Rent Control Order.
12. Clause 13(3)(iii) of the Rent Control Order reads as under :
"13(1) xx xx xx
(2) xx xx xx
(3) If after hearing the parties the Controller is satisfied -
(i) xx xx xx
(ii) xx xx xx
(iii) that the tenant has without the written permission of the landlord sub-let the entire premises or any portion thereof."
13. Strong reliance is placed by the learned Counsel for the petitioner on the decision in Dattatraya v. Narayandas and another, (cited supra) wherein this Court observed thus -
"10. Now, for the purpose of Clause 13(1), the word 'tenant' clearly indicates a lessee, for it postulates a landlord determining the lease. That further follows that the protection afforded by Clause 13(3) is available to a proper lessee as such and not to any occupant or licensee. But when we come to the ground upon which the satisfaction of the Rent Controller depends in Item (iii) the word is not that a tenant has created a 'sub-tenant', but that state of affairs contemplated is that the tenant has without the written permission of the landlord has 'sub-let' the entire house or any portion thereof. The word 'sub-let' itself has not been defined by the order and must be understood in its own ordinary meaning. The word 'let' means, among other things, to allow, permit, suffer, to grant to a tenant or hirer (see Chambers Twentieth Century Dictionary page 755 Edn. 1972). It is thus indicative that a lessee may grant the premises to a hirer who may not be a tenant but still be within the mischief of sub-clause (3)(iii). A tenant who enjoys the property under lease alone is sought to be protected and a construction which would prohibit inducting persons upon the premises appears to be necessary to give effect to the very purpose underlying the provision; otherwise, the landlord who is prohibited from determining the lease will have no remedy against such a tenant who lets in licensees and recovers monies from them. It is well-known that prior to the enactment of this order, the landlord could determine the lease of such a monthly tenant by resorting to quit notice. Nothing more was required. Therefore, while construing the grounds enumerated in the Order, a construction which will suppress the mischief and further the remedy should alone be adhered to. Looking to the context, therefore, I am inclined to hold that the word 'sub-let' is of wider amplitude and takes in the letting even to licensees or their occupation at the instance of the tenant either for some consideration like rent or premium and if such induction is without the written permission of the landlord, the requirements of sub-clause (3)(iii) will be fully answered."
14. The learned Single Judge of this Court in Dattatraya's, case (cited supra) has held that the word 'sub-let' is of wider amplitude and takes in the letting even to licensees or their occupation at the instance of the tenant either for some consideration like rent or premium and if such induction is without the written permission of the landlord, the requirements of sub-clause (3)(iii) will be fully answered.
15. In M/s. Shalimar Tar Products Ltd. v. H.C. Sharma and others, (cited supra), the Supreme Court has held that in order to constitute sub-letting there must be parting of the legal possession by the lessee, and parting of legal possession means possession with the right to include and also right to exclude others.
16. Mere user by other person is not parting with possession so long as the tenant retains the legal possession himself, and this position has been reiterated by the Apex Court in Jagan Nath v. Chander Bhan and others, cited supra. The Apex Court in the said judgment thus held-
"6. 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 lessee 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 had a right to displace the possession of the occupants, i.e. his sons, it cannot be said that the tenant had parted with possession. This Court in Smt. Krishnawati v. Hans Raj, had occasion to discuss the same aspect of the matter. There two persons lived in a house as husband and wife and one of them who rented the premises allowed the other to carry on business in a part of it. The question was whether it amounted to sub-letting and attracted the provisions of sub-section (4) of section 14 of the Delhi Rent Control Act. This Court held that if two persons live together in a house as husband and wife and one of them who owns the house allows the other to carry on business in a part of it, it will be in the absence of any other evidence a rash inference to draw that the owner has let out that part of the premises. In this case if the father was carrying on the business with his sons and the family was a joint Hindu family, it is difficult to presume that the father had parted with possession legally to attract the mischief of section 14(1)(b) of the Act."
17. The legal position and meaning of the expression "sub-letting" again came up for consideration before the Apex Court in M/s. Delhi Stationers and Printers v. Rajendra Kumdar, (cited supra) and the Supreme Court thus held -
"5. Under section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act'), the tenant is liable to be evicted, if he has assigned, sub-let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord. Sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party and the said right must be in lieu of payment of some compensation or rent. Parting of the legal possession means possession with the right to include and also a right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy or parting with possession, see Gopal Saran v. Satya Narayana, , supra."
18. The Supreme Court has thus consistently held that 'sub-letting' means transfer of exclusive right to enjoy the rented property or portion thereof in favour of the third party and the said right must be in lieu of payment of some compensation or rent, and mere occupation is not sufficient to infer either sub-tenancy or parting with possession. Applying the aforesaid Principle to the facts and circumstances of the present case, it would be apparent that the landlord has miserably failed to prove that there was any transfer of exclusive right to respondent No. 2 to enjoy the property or a portion thereof let out to the tenant and that the tenant was recovering any payment of compensation or rent. The landlord has also failed to prove that there was any parting with possession of the premises in question or a portion thereof to respondent No. 2 (alleged sub-tenant), much less that there was legal parting with possession of any portion of the premises in question by the tenant. The tenant has been carrying on the cloth business in the disputed premises and he has complete control over the entire premises and there is no evidence that the alleged sub-tenant respondent No. 2 has any right to exclude the tenant from the premises in question or a portion thereof. Moreover, it is established on record that the alleged sub-tenant has been using the sewing machine and doing the tailoring work thereon since 1954 and for about 32 years till filing of the present application, the landlord never objected or raised any grievance. The Appellate Authority has considered the entire evidence on record in right perspective and no error of fact or of law can be said to have been committed by the Appellate Court in holding that the landlord has failed to establish the ground under Clauses 13(3)(iii) of the Rent Control Order and, therefore no permission can be granted to the landlord under the said clause.
19. As observed above, though in Dattatraya's case (cited supra), the learned Single Judge of this Court has taken the view that the word 'sublet' in Clause 13(3)(iii) takes in the letting even to licensees or their occupation at the instance of the tenant, the said view cannot be said to be a good law in view of the decisions of the Apex Court in M/s. Shalimar Tar Products Ltd. v. H.C. Sharma, cited supra and Jagan Nath v. Chander Bhan and others, cited supra and M/s. Delhi Stationers and Printers v. Rajendra Kumdar, cited supra, and to that extent, the judgment reported in 1974 Mah.L.J. 251, Dattatraya v. Narayandas and others, shall be deemed to have been impliedly overruled.
20. Consequently, there is no merit in the writ petition and the same is liable to be dismissed and is dismissed accordingly with no order as to costs