Laxminarayan S/O Motilal Gupta vs Bhagwandas S/O Bhagonelal Sahu ...
2004 Latest Caselaw 1078 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner - tenant challenges the order of Resident Deputy Collector dated 21-10-1988 passed in Appeal under provisions of C.P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as "Rent Control Order" for short), granting permission to terminate the tenancy on the ground of sub-tenancy and the subsequent order dated 30-6-1990 passed in Review proceedings by the Resident Deputy Collector, Amravati.

2. The facts in brief are that the present respondent No. 1 - Bhagwandas owns one house No. 184 in Ward No. 52 of Amravati. Sometimes in the year 1984, he filed Revenue Case No. 108/71(2)/84-85 and contended that the present respondent No. 2 - Chhotelal is his monthly tenant of one room in the said house. He stated that the rent is Rs. 60 per month and that Chhotelal has sub-let the said room to the present petitioner, who was non-applicant No. 2 before the Rent Controller. He has further stated that the room was let out to Chhotelal for the purposes of godown and Chhotelal in turn has sub-let it for the purposes of residence. Therefore, he moved application and sought permission to terminate tenancy of Chhotelal and present petitioner under Clause 13(3)(iii) and (iv) of the Rent Control Order. It appears that Chhotelal did not appear before the Rent Controller and Rent Controller proceeded ex-parte. The present petitioner filed his written statement and he denied that Chhotelal was the original tenant or that he is sub-tenant. The petitioner in his written statement stated that he is the only original tenant. He admitted the rent of Rs. 60 per month. He further denied that the premises was let out for godown purposes and there is any change of user.

3. Both the parties appear to have adduced evidence and the present respondent No. 1 - Landlord produced a receipt book containing 12 counter foils of Rent Receipts. The Rent Controller found that the said counter foils bear signatures of respondent No. 2 - Chhotelal and respondent No. 1 - Bhagwandas. However, he found that insofar as description of Suit house is concerned, on counter foils, it is mentioned that it is House No. 181 and further found that the application presented before it is for House No. 184, Ward No. 52. The Rent Controller, therefore, held that Rent receipts produced before it do not relate to the house involved in the application and therefore, observed that the Landlord has failed to prove his case of sub-letting. The Rent Controller further observed that there is no evidence about the fact that the suit room was let out for godown purpose and that there was any change of user thereof. The Rent Controller, therefore, vide its order dated 26-11-1987 dismissed the application of respondent No. 1 - Landlord on both counts.

4. Respondent No. 1 - Landlord thereafter filed Revenue Appeal No. 142/7(2)/87-88 Amravati, before Resident Deputy Collector, Amravati. The Resident Deputy Collector heard both the parties and thereafter by order dated 21-10-1988 found that insofar as case of change of user under Clause 13(3)(iv), there is absolutely no evidence on record to show that the Suit room was initially let out for godown purposes. Therefore, the appellate authority upheld the order of Rent Controller insofar as this part of order is concerned. However, in para 4 of its order, the appellate authority found that though the counter foils carry a different House number, the counter foils bore signature of tenant Chhotelal and that of Landlord Bhagwandas. It further found that the application relates to house in which Chhotelal is tenant and he has chosen to remain absent in Rent Control Proceedings. In this background, the appellate authority found that mere entering wrong number of house in counter foils does not affect the validity of those counter foils and the Rent Controller could not have rejected those rent receipts outright. It further found that the Rent Controller could not have decided issue of sub-tenancy only on the basis of mention of wrong house number in the counter foils. However, the appellate authority thereafter observed that the absence of respondent No. 2- Chhotelal in Rent Control Proceedings, the counter foils and notice on record amply prove that there is a sub-tenancy. It, therefore, proceeded to set aside this part of order passed by the Rent Controller and held that sub-tenancy under Clause 13(3)(iii) is proved by the Landlord.

5. It appears that against this order, present petitioner filed a Review Application under Clause 21(2)(a) of C.P. and Berar Letting of Houses and Rent Control Order, 1949, before Resident Deputy Collector, Amravati. In the said Review application, the petitioner has expressly quoted in Marathi the statements accepted in his cross-examination by the Landlord - Bhagwandas to buttress the contention that plea of sub-tenancy is also not proved. The appellate authority (different officers) considered this Review application on 30-9-1990 and found that his predecessor has elaborately discussed all points of sub-tenancy looking to the facts and evidence of the case. The Reviewing Authority i.e. Resident Deputy Collector further found that on the face of record, no new facts or changed circumstances have been brought on record by the petitioner - tenant before it. It, therefore, directed not to interfere with the order passed by its predecessor and rejected the review application. The present petition thus came to be filed challenging the orders of appellate authority and the order of Reviewing authority.

6. This Court on 14-10-1991 issued Rule in the matter and protected the possession of the petitioner - tenant.

7. I have heard Shri Ashish Bang, Advocate holding for Shri J. T. Gilda, Advocate for the petitioner and Ms. Revati Deshmukh, Advocate holding for Mrs. V. A. Naik, Advocate for respondent No. 1.

8. Advocate Shri Bang, after taking me through the relevant observations contained in both the orders has contended that there is absolutely no discussion on the sub-tenancy aspect of the matter by the appellate authority and the appellate authority has not recorded any finding in relation to parting of possession by Chhotelal in favour of present petitioner and further receipt of any consideration by Chhotelal as a consideration of such parting. He relies upon the judgment of this Court in the case of Bhairulal v. Poonamchand, reported in 1996(2) Mh.L.J. 866 in support of this contention. He further points out that thus without any application of mind, the appellate authority has granted permission to respondent No. 1 - Landlord under Clause 13(3)(iii) mechanically and when this aspect has been pointed out to Reviewing Authority with the admissions of Landlord relevant in this respect, the Reviewing Authority has refused to consider the legal requirements of the issue and has not appreciated the fact of admissions of respondent No. 1 - Landlord. He contends that Reviewing Authority can correct not only errors of law but also can correct errors of facts when such manifest errors are pointed out to it. He relies upon the judgment in the case of Mahendrabhai v. Vasant, reported in 1996(1) Mh.L.J. 339, for this purpose.

9. Advocate Ms. Revati Deshmukh, appearing for respondent No. 1 -Landlord contends that the appellate authority has correctly appreciated the facts and found that respondent No. 2 - Chhotelal, against whom the allegations of sub-tenancy were made, chose to remain absent in the proceedings and the Rent Controller, therefore, proceeded ex-parte. Chhotelal did not deny the contentions made by the present respondent No. 1 - Landlord. This material along with the fact that rent receipts in relation to suit room are issued by respondent No. 1 -Landlord regularly in the name of Chhotelal and the admitted fact on record that Chhotelal is not in possession but present petitioner is in possession are sufficient to show that there is sub-tenancy and the appellate authority has committed no error in arriving at said conclusion. She contends that this conclusion has been reached by the appellate authority on the basis of valid material which is available on record and therefore, refusal of Reviewing Authority to interfere in the matter is just and proper.

10. A perusal of ruling in the case of Bhairulal v. Poonamchand reported in 1996(2) Mh.L.J. 866, particularly paras 17 and 18 show that in order to prove sub-letting, the Landlord has to prove transfer of exclusive right to enjoy the property in favour of third party and such transfer must be in lieu of payment of some compensation or rent. The relevant observations as contained in these paras are reproduced below :

"17. The legal position and meaning of the expression "sub-letting" again came up for consideration before the Apex Court in Delhi Stationers and Printers v. Rajendra Kumar (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 Narayan, (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 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 to 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."

11. If the present case is considered in the light of these requirements, it is apparent that respondent No. 1 - Landlord has not shown as to how and in what manner Chhotelal parted with possession and inducted present petitioner as his sub-tenant. The consideration received by Chhotelal from Laxminarayan for said transfer is also neither pleaded nor pointed out at any time during the pendency, of the proceedings before the appellate authority or before any Reviewing proceedings. In the absence of this vital material, it was not permissible to the appellate authority to reach the finding of sub-tenancy and to hold that the petitioner is sub-tenant of Chhotelal, as already observed by this Court in the decision quoted. Mere occupation of a person of particular premises is not sufficient to establish the plea of sub-tenancy. Viewed in this background, it is apparent that the appellate authority has not considered the very vital material which is required to be looked into before reaching the conclusion of subtenancy. There is thus error apparent on the face of record.

12. The Review Application itself shows that the tenant pointed out to the Reviewing Authority that present respondent No. 2 Chhotelal is brother-in-law (wife's brother) of respondent No. 1 - Landlord. The said cross-examination further shows that the Landlord has accepted that Chhotelal is not his tenant and further he has prepared rent receipts in the name of Chhotelal. These admissions therefore, clearly show that the landlord has made use of Chhotelal to prejudice the rights of present petitioner. The landlord has also admitted in his cross-examination that there are total two tenants and second tenant is Mahadeorao. It is admitted by him that Mahadeorao is paying him Rs. 60/- per month as rent and he is not being issued any rent receipts. Making capital out of these admissions, the advocate for the petitioner argues that respondent No. 1 - landlord did not issue any rent receipts and that petitioner is real tenant, he maintained counter foils in the name of his brother-in-law and on the strength of counter foils, has come up with the false case of sub-letting. It is not necessary for this Court to go into all these controversies as the legal requirements for reaching the conclusion of sub-tenancy are not proved by respondent No. 1- landlord. However, when all this material was placed before the Reviewing Authority, the Reviewing Authority should have considered this material and could not have refused to and should have looked into it. The reliance placed by the Advocate for the petitioner in the case of Mahendrabhai v. Vasant (supra) for this purpose is apposite. The relevant observations clarifying the law on the point are contained in para 10 of said ruling and the said observations are reproduced below :

"The power of the review under the aforesaid clause cannot be said to be restricted to correction of errors of law apparent on the face of record of such like errors. In deserving cases it is open to the Reviewing Authority to exercise the power of review where gross errors of fact or facts are apparent. Such errors of fact may have occasioned either by misreading of relevant pleadings or evidence or overlooking or ignoring of material pleading or evidence or taking into account extraneous consideration and such error of fact or errors of facts have resulted in manifest injustice. It is true that every error in the garb of review cannot and should not be corrected nor the Reviewing Authority would hear the review application as an appeal against its own order, but at the same time the power of review under Clause 21(2-a) cannot be confined to correction of errors of law. The power of review under Clause 21(2-a) though normally and ordinarily should not be exercised in a routine manner, but there are no limitations and restrictions on the Reviewing Authority to exercise its power to correct its findings of fact which are patently erroneous and have resulted in failure of justice."

13. Thus, on the basis of this position in law, it is clear that the Reviewing Authority has refused to exercise jurisdiction available to it and the learned appellate authority has acted with material irregularity in overlooking the absence of important ingredients in the matter of sub-tenancy. The impugned orders at Annexures "B" and "D" to this petition are, therefore, unsustainable. The same are, therefore, quashed and set aside. The permission granted to respondent No. 1-landlord to terminate the tenancy of petitioner on the grounds of subtenancy is thus quashed and set aside.

14. Writ Petition is allowed. Rule is made absolute in above terms. There shall be no order as to costs.