Jharkhand High Court
Basant Prasad vs The State Of Jharkhand on 26 August, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No.1562 of 2021
With
I.A. No.2161 of 2021
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Basant Prasad .......... Petitioner.
-Versus-
1. The State of Jharkhand
2. The Commissioner, South Chotanagpur Division, Ranchi.
3. The Deputy Commissioner, Ranchi.
4. The Rent Controller-cum-Sub Divisional Magistrate,
Sadar, Ranchi.
5. M/s. Kavee Enterprises Private Ltd., Main Road, Ranchi.
.......... Respondents.
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Anil Kumar, Sr. Advocate
Ms Chandana Kumari, Advocate
For the State : Mr. Mihir Kunal Ekka, A.C. to S.C.V
For the Res. No.5 : M/s Pandey Neeraj Roy and
Rohit Ranjan Sinha, Advocates
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Order No.07 Date: 26.08.2021
1. This case is taken up through video conferencing.
2. The present writ petition has been filed for quashing the order dated
08.03.2021 passed by the Commissioner, South Chotanagpur Division,
Ranchi-respondent no.2 in Ranchi JBC Revision Case No.25/2019,
whereby the said revision case filed by the petitioner has been
dismissed and the order dated 23.09.2019 passed by the Deputy
Commissioner, Ranchi- respondent no.3 in JBC Appeal No.74R-
15/2016-17 as well as the order dated 30.09.2016 passed by the Rent
Controller-cum-Sub Divisional Magistrate, Sadar, Ranchi- respondent
no.4 in JBC Case No. 32/2015 have been affirmed.
3. The factual background of the case, as stated in the writ petition, is
that Shop no.1, Ground Floor, Kashmir Vastralaya Complex, Municipal
Holding Nos.670 & 671, Ward no.14 within Ranchi Municipal
Corporation, Situated at Main Road, P.S - Lower Bazar, District - Ranchi
(hereinafter referred as the said shop) was leased in favour of the
petitioner by the respondent no.5. The respondent no.5 initially filed
JBC Case No.32/2015 under section 19(1)(a)(c)(d) and (e) of the
Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011
(hereinafter to be referred as ' the Act, 2011') before the respondent
no.4, praying inter alia, to evict the petitioner from the shop premises
and to hand over the vacant possession of the same to it and further
to pass a decree of arrears of rent amounting to Rs.2,52,000/- plus
Rs.1,47,000/- for the period from August , 2010 to 1st May, 2015 as
well as mesne profits by way of penalty @ Rs.500/- per day with effect
from 01.08.2013 onwards till the actual payment. The respondent
no.5, however, further prayed that since the Act, 2011 itself bars the
claim of arrears of rent beyond a period of previous three years, hence
the claim of arrears of rent was made only for the period from May,
2012 to April, 2015 along with mesne profits by way of penalty as
stated above and the cost of the suit. The respondent no.4 issued
notice to the petitioner and pursuant to the said notice, he appeared
and filed written statement stating therein that the suit was not
maintainable in the said form. The respondent no.4 allowed the case
in favour of the respondent no.5 vide order dated 20.07.2015,
directing the petitioner to handover vacant possession of the said shop
to the respondent no.5 within 15 days. The petitioner challenged the
said order before the respondent no.3 by filing an appeal being JBC
Appeal No.21R-15/2015-16 which was allowed vide order dated
23.09.2015 and the case was remanded to the respondent no.4 to pass
a fresh order on the basis of evidences brought by both the parties.
The respondent no.4 again passed the order dated 30.09.2016 for
eviction of the petitioner under section 19(1)(d)(e) and for payment of
arrears of rent for three years amounting to Rs.2,52,000/- under
section 27 of the Act, 2011 and damage charge @ Rs.500/- per day
according to the lease deed was also directed to be paid in addition to
the monthly rent until handing over the vacant possession of the
premises in question to the respondent no.5. Being aggrieved with the
said order, the petitioner preferred an appeal under Section 36 of the
Act, 2011 before the respondent no.3 being JBC Appeal No.74 R
15/2016-17. In the meantime, the respondent no.5 filed execution
case being M.P. Case No.6 of 2017 before the respondent no.4 for
execution of order dated 30.09.2016 passed in JBC Case No. 32 of
2015. The respondent no.3 after hearing the parties dismissed the said
appeal on 23.09.2019, upholding the order passed by the respondent
no.4.Thereafter, the petitioner filed revision being Ranchi JBC Revision
Case No.25/2019 before the respondent no.2 which was also dismissed
and the orders passed by the respondent nos.3 and 4 were affirmed.
Hence, the present writ petition.
4. The learned senior counsel for the petitioner submits that the
purported notices dated 03.08.2013 and 19.09.2013 sent by the
respondent no.5 were not in accordance with the provision of section
16 of the Transfer of Property Act and thereby tenancy was never
determined after expiry of the period of lease. The Rent Controller-
respondent no.4 ought to have held that even after expiry of lease,
the respondent no.5/landlord received monthly rent of the suit
premises and thereby the petitioner/tenant became month to month
tenant of the suit premises. The appellate court while passing the
impugned order failed to consider section 19 of the Act, 2011, wherein
there is no provision for granting damage charge to the landlord
(respondent no.5) @ Rs.500/- per day. The appellate court ought to
have held that the order passed by the respondent no.4 was not in
accordance with law inasmuch as granting damage to respondent
no.5/landlord was illegal. It is further submitted that the respondent
no.4 misdirected itself in not considering Exts.-C to C/24 and D to D/30
as well as respective postal receipts, showing remittance of monthly
rent by postal money order and thereby wrongly held that the
petitioner had defaulted in payment of monthly rent. The respondent
no.4, in fact, misdirected itself in deciding the issue relating to default
of payment of rent against the petitioner without considering the
evidences led by him and hence the said finding is liable to be set
aside. The petitioner has filed a title suit being T.S No. 125 of 2014,
seeking relief to protect him from unlawful eviction and illegal
dispossession from the shop premises, however, all the learned courts
below failed to discuss the said fact while passing the impugned
orders. None of the courts below appreciated that the issue relating to
default in making payment of rent was already decided by the
appellate court in JBC Appeal No. 21R 15 of 2015-16 in favour of the
petitioner and, thereby they committed illegality in deciding the said
issue against the petitioner, which was barred by the principles of res
judicata.
5. The learned counsel for the respondent no.5 submits that the
respondent no.5 did not receive rent from the petitioner after expiry
of the lease period, as would be evident from the order dated
30.09.2016 passed by the respondent no.4 in J.B.C. Case no.32 of
2015. It is also submitted that the petitioner failed to controvert the
concurrent finding of fact arrived at by the courts below and as such,
there is no ground to interfere with the impugned orders in exercise of
the writ jurisdiction under Article 227 of the Constitution of India. It is
further submitted that admittedly the term of the lease had expired on
31.07.2013 and as such the petitioner has no legal right to continue
with the possession of the said shop.
6. Heard learned counsel for the parties and perused the materials
available on record including the impugned orders.
7. Before coming to the merit of the contention of the petitioner, it would
be relevant to refer few judgments of the Hon'ble Supreme Court,
wherein the scope of interference with the order of the courts/tribunal
by the writ court under Article 227 of the Constitution of India has
been explained.
8. In the case of Gulshera Khanam Vs. Aftab Ahmad, reported in
(2016) 9 SCC 414, the Hon'ble Supreme Court has held as under:-
"33. Likewise, when we peruse the impugned judgment, we find, as
rightly urged by the learned counsel for the appellant, the High Court
did not keep in mind the aforesaid principle of law laid down by the
Constitution Bench in [Hindustan Petroleum Corpn. Ltd. v. Dilbahar
Singh, (2014) 9 SCC 78] so also the principle laid down by this Court
in relation to exercise of jurisdiction under Article 227 of the
Constitution of India in [Surya Dev Rai v. Ram Chander Rai, (2003) 6
SCC 675] , while deciding the writ petition and proceeded to decide
like the first appellate court. The High Court as is clear from the
judgment probed all factual aspects of the case, appreciated evidence
and then reversed the factual findings of the appellate court and the
prescribed authority. This, in our view, was a jurisdictional error, which
the High Court committed while deciding the writ petition. In other
words, the High Court, in our view, should have confined its inquiry to
examine as to whether any jurisdictional error was committed by the
first appellate court while deciding the first appeal. It was, however,
not done.
34. In our considered opinion, the question in relation to the bona fide
need of the appellant's daughter to expand the activities of running
the clinic was rightly held by the prescribed authority and the first
appellate court in the appellant's favour by holding the appellant's
need to be bona fide and genuine. We find no ground on which the
High Court could have upset the concurrent finding on this question in
its writ jurisdiction under Article 227, which is more or less akin to
revisional jurisdiction of the High Court. The High Court also failed to
hold that findings of the two courts were so perverse to the extent that
any judicial person could ever reach to such conclusion or that the
findings were against any provision of law or were contrary to
evidence adduced, etc."
9. In the case of State (N.C.T. of Delhi) Vs. Navjot Sandhu @
Afshan Guru & Ors., reported in (2003) 6 SCC 641 the Hon'ble
Supreme Court held as under:-
"28. 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".
10. It, thus, emerges that concurrent findings of fact arrived at by the
subordinate courts/tribunals should not be interfered in exercise of writ
jurisdiction under Article 227 of the Constitution of India, which is more
or less akin to revisional jurisdiction of the High Court unless findings
of the courts are perverse to the extent that any judicious person can
never reach such a conclusion or that the findings are against any
provision of law or are contrary to evidence adduced, etc. The power
of judicial superintendence, under Article 227, must be exercised
sparingly only to keep subordinate courts and tribunals within the
bounds of their authority and not to correct mere errors.
11. The respondent no.4, while allowing the case filed by the respondent
no.5 for eviction of the petitioner, took into consideration the
petitioner's own statement that the respondent no.5 had refused to
accept the rent from the month of August, 2013 and the rent sent
through money order was also returned. It was held by the respondent
no.4 that the petitioner failed to produce any evidence to show that
the respondent no.5 had accepted the rent from him even after expiry
of the lease period, which was valid till 31.07.2013. So far as passing
of the order of payment of arrears of rent is concerned, the respondent
no.4 held that though the petitioner claimed that after the expiry of
the term of lease deed, the conditions of the lease deed was orally
changed, yet the petitioner failed to show any evidence that any
change was made in the condition of the lease deed as also he failed
to bring on record any evidence regarding payment of rent since July,
2008. Thus, the petitioner was found to be a defaulter in making
payment of rent since July 2008. However, since the respondent no.5
had claimed the arrears of rent only for the period of three years i.e.
from May, 2012 to April, 2015 amounting to Rs.2,52,000/- along with
mesne profits by way of penalty @ Rs.500/- per day with effect from
01.08.2013 onwards till the actual payment, he was held liable for
payment of the said arrears of rent as well as the damage charge @
Rs.500 per day as stipulated in the lease deed till the eviction of the
petitioner from the shop in question.
12. The respondent no.3 also dismissed the appeal, observing that the
term of the lease had admittedly ended on 31.07.2013 and thereafter
notices were issued to the petitioner on 30.08.2013 and 12.09.2013,
calling upon him to vacate the said shop, which disclosed the intention
of the respondent no.5 that he did not want to continue the lease and
as such the remittance of rent through money order did not suggest
that the lease was automatically renewed.
13. The respondent no.2 dismissed the revision holding that the petitioner
failed to produce any fact/evidence so as to interfere with the order of
the respondent nos.3 and 4. It was also observed that mere fact of
receiving rent after expiry of the lease period cannot establish the
landlord-tenant relationship and that Title Suit No.125 of 2014 filed by
the petitioner was already dismissed.
14. It, thus, appears that the courts below have consistently held that the
term of the lease had already expired and the petitioner failed to show
any document in support of his claim that subsequent to the expiry of
the lease, the condition of the lease was modified and the respondent
no.5 had consented for continuation of the lease. The courts below
further followed the legal principle that mere fact of acceptance of rent
does not entitle the tenant to continue the tenancy.
15. The Hon'ble Supreme Court in the case of C. Albert Morris Vs. K.
Chandrasekaran and Others, reported in (2006) 1 SCC 228,
has held as under:-
"26. Though the arguments of the learned Senior Counsel appearing
for the appellant are attractive on the first blush yet on a careful
reconsideration of the same, it has no merits. The judgments cited by
the learned Senior Counsel appearing for the appellant are not only
distinguishable on facts but also on law. Much argument was advanced
on the receipt of the rent by the landlord after the cancellation of the
lease. The consensus of judicial opinion in this country is that a mere
continuance in occupation of the demised premises after the expiry of
the lease, notwithstanding the receipt of an amount by the quondam
landlord, would not create a tenancy so as to confer on the erstwhile
tenant the status of tenant or a right to be in possession. In this
context, we may refer to the judgment of this Court in Raptakos Brett
& Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184]. In para 13 of the
said judgment, this Court held as under: (SCC p. 200)
"13. In view of the aforesaid settled legal position, it must be
held that on the expiry of the period of lease, the erstwhile
lessee continues in possession because of the law of the land,
namely, that the original landlord cannot physically throw out
such an erstwhile tenant by force. He must get his claim for
possession adjudicated by a competent court as per the
relevant provisions of law. The status of an erstwhile tenant
has to be treated as a tenant at sufferance akin to a
trespasser having no independent right to continue in
possession."
28. In the case of Bhawanji Lakhamshi v. Himatlal Jamnadas
Dani [(1972) 1 SCC 388] this Court observed as under: (SCC pp. 391-
92, para 9)
"9. The act of holding over after the expiration of the term
does not create a tenancy of any kind. If a tenant remains in
possession after the determination of the lease, the common-
law rule is that he is a tenant on sufferance. A distinction
should be drawn between a tenant continuing in possession
after the determination of the term with the consent of the
landlord and a tenant doing so without his consent. The
former is a tenant at sufferance in English law and the latter
a tenant holding over or a tenant at will. In view of the
concluding words of Section 116 of the Transfer of Property
Act, a lessee holding over is in a better position than a tenant
at will. The assent of the landlord to the continuance of
possession after the determination of the tenancy will create
a new tenancy. What the section contemplates is that on one
side there should be an offer of taking a new lease evidenced
by the lessee or sub-lessee remaining in possession of the
property after his term was over and on the other side there
must be a definite consent to the continuance of possession
by the landlord expressed by acceptance of rent or otherwise.
In Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy
Warden [AIR 1949 FC 124] the Federal Court had occasion to
consider the question of the nature of the tenancy created
under Section 116 of the Transfer of Property Act and
Mukherjea, J., speaking for the majority said, that the
tenancy which is created by the 'holding over' of a lessee or
under lessee is a new tenancy in law even though many of the
terms of the old lease might be continued in it, by implication;
and that to bring a new tenancy into existence, there must be
a bilateral act. It was further held that the assent of the
landlord which is founded on acceptance of rent must be
acceptance of rent as such and in clear recognition of the
tenancy right asserted by the person who pays it. Patanjali
Sastri, J., in his dissenting judgment, has substantially agreed
with the majority as regards the nature of the tenancy
created by Section 116 of the Transfer of Property Act, and
that is evident from the following observations:
'Turning now to the main point, it will be seen that the section
postulates the lessee remaining in possession after the
determination of the lease which is conduct indicative, in
ordinary circumstances, of his desire to continue as a tenant
under the lessor and implies a tacit offer to take a new
tenancy from the expiration of the old on the same terms so
far as they are applicable to the new situation, and when the
lessor assents to the lessee so continuing in possession, he
tacitly accepts the latter's offer and a fresh tenancy results by
the implied agreement of the parties. When, further, the
lessee in that situation tenders rent and the lessor accepts it,
their conduct raises more readily and clearly the implication
of an agreement between the parties to create a fresh
tenancy.' "
43. In our opinion, any right which the dealer has over his site was the
right which he had acquired in terms of the lease. When that lease
expired and when the landlord declined to renew the same and also
called upon the erstwhile tenant to surrender possession, the erstwhile
lessee could no longer assert that he had any right to the site. His
continued occupation of something which he had no right to occupy
cannot be regarded as source of a right to the land of which he himself
was not in lawful possession. As observed by this Court in M.C.
Chockalingam v. V. Manickavasagam [(1974) 1 SCC 48] litigious
possession cannot be regarded as lawful possession. As rightly pointed
out by the Division Bench of the High Court the right referred to in this
rule has necessarily to be regarded as right which is in accordance with
law and the right to the site must be one which is capable of being
regarded as lawful. We have already referred to Bhawanji
Lakhamshi v. Himatlal Jamnadas Dani [(1972) 1 SCC 388] wherein this
Court held that the act of holding over after the expiration of the term
does not create a tenancy of any kind. A new tenancy is created only
when the landlord assents to the continuance of the erstwhile tenant
or the landlord agrees to accept rent for the continued possession of
the land by the erstwhile tenant. The contention of Mr L.N. Rao that
the landlord's assent should be inferred from the conduct of the
landlord who had filed the suit for ejectment, but did not pursue the
same, has no force. This suit was withdrawn with liberty to file a fresh
suit on the same cause of action, liberty for which the Court has
granted. The possession of this site by the erstwhile lessee does not
ripen into a lawful possession merely because the landlord did not
proceed with the suit for ejectment at that time, but reserved the right
to bring such a suit at a later point of time. That cannot amount to an
assent on his part to the continued occupation of the land under cover
of a right asserted by the erstwhile lessee. The words "right to the site"
in Rule 153(1)(i) must, therefore, in our opinion, be given their full
meaning and the effect that unless the person seeking a licence is in a
position to establish a right to the site, he would not be entitled to hold
or have his licence renewed. We have already rejected the contention
of Mr L.N. Rao that the appellant tenant is a statutory tenant for the
reasons recorded earlier. The lease deed is very clear as to what was
leased. The lease was of vacant land. That is evident from the recitals
in the plaint, legal notice, lease deed, etc. It is, therefore, not in dispute
that the lease of land is not covered by the statute, the Pondicherry
Buildings (Lease and Rent Control) Act, 1969 in force extending
protection to the tenants."
16. In the present case, learned senior counsel for the petitioner has
assiduously contended that the respondent no.5 received rent after
expiry of the term of the lease deed and as such the petitioner/tenant
became month to month tenant of the shop premises. Though the
petitioner has failed to prove before the courts below that the
respondent no.5 ever accepted the rent remitted by him, yet even if
the said fact is taken to be true, the Hon'ble Supreme Court in the
aforesaid judgments has held that mere acceptance of rent does not
confer the erstwhile tenant the status of a tenant and right to continue
with the possession. Applying the same principle, the courts below
rejected the plea of the petitioner and passed the impugned orders,
which do not require any interference by this Court in exercise of the
power of superintendence under Article 227 of the Constitution of
India. The argument made by the learned senior counsel for the
petitioner that the courts below have wrongly appreciated the facts
cannot be accepted, rather it appears that they have appropriately
discussed the evidences and passed the order of eviction against the
petitioner and for payment of arrears of rent with penalty as stipulated
in the lease deed.
17. In view of the aforesaid legal and factual position, I do not find any
ground to interfere with the impugned orders passed by the
respondent no.2, affirming the orders of the respondent no.3 and 4.
18. The writ petition is, accordingly, dismissed.
19. I.A No. 2161 of 2021 is also dismissed.
(Rajesh Shankar, J.)
Sanjay/AFR
