Jayant Kumar Chauhan vs State Of Jharkhand
2021 Latest Caselaw 4312 Jhar

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    W.P. (C) No.1184 of 2021
                               With
                      I.A. No.4724 of 2021
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     Jayant Kumar Chauhan                            .......... Petitioner.
                             -Versus-

1. State of Jharkhand, through the Chief Secretary, Government of Jharkhand, Ranchi.

2. Commissioner, South Chotanagpur Division, Ranchi-cum-Revisional Authority under the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011, Ranchi.

3. Deputy Commissioner, Ranchi, the Appellate Authority under the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011.

4. Sub Divisional Magistrate-cum-House Rent Controller, Ranchi.

5. Harbindar Singh

6. Gagandeep Singh .......... Respondents.

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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR

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     For the Petitioner :         Mr. Rohit Roy, Advocate
     For the State        :       Mr. Lav Kumar Tiwary, A.C. to G.P.I
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     Order No.05                                     Date: 22.11.2021

1. The present writ petition has been filed for quashing the order dated 16.07.2019 passed by the House Rent Controller-cum-Sub-Divisional Magistrate, Ranchi-respondent no.4 in JBC Case No.13 of 2017, whereby the petition dated 26.10.2018 filed by the petitioner under Order VII rule 11 read with Order XIV rule 2(2) CPC has been dismissed. Further prayer has been made for quashing the order dated 21.12.2020 passed by the Commissioner, South Chotanagpur Division, Ranchi-cum-revisional authority-respondent no.2 in JBC Revision Case No.23 of 2019-20, whereby the said revision has been dismissed.

2. The factual background of the case, as stated in the writ petition, is that the petitioner is the owner and occupier of a residential flat, measuring an area of 2104 sq. ft. (super built up area) identified as flat no.502, situated at 5th floor of a multi-storeyed apartment in the name and style of Amaltash Residency Estate, Phase II, Modi Compound, Hazaribagh Road, P.O & P.S Lalpur, District Ranchi by virtue of a registered deed of sale dated 11.02.2009 being Deed No. 1577/1346. Since the business premises of the petitioner and the respondent nos.5 and 6 were in the same shopping complex, they were known to each other. The petitioner and his son obtained loan from ICICI Bank, Lalpur Branch, Ranchi to the tune of Rs.1,05,00,000/- and they were always under threat of declaration of their loan account as

NPA. At the said juncture, the respondent nos.5 and 6 approached the petitioner and his elder son- Paresh Chauhan for lending a sum of Rs.1,05,00,000/- to meet financial liabilities of their company, namely, M/s Jayant Gas Company and also offered that the said flat along with other adjoining flat identified as flat no.503 of the same building owned by the petitioner and his son be kept with them as collateral security till full and final repayment was made. It was further offered that the petitioner and his son would have to keep on paying interest @ Rs.50,000/- per month i.e. both of them would have to pay Rs.25,000/- each per month. The petitioner accepted the said proposal of the respondent nos.5 and 6 mutually agreeing that the aforesaid sum would be returned within a period of two years by arranging funds from the sale of immovable properties situated in other States and in the meantime, the petitioner and his son would keep on repaying portion of the sum so advanced in instalments but would jointly pay a sum of Rs.50,000/- per month continuously as interest till full and final repayment. However, in the meantime due to some pressure from the respondent nos.5 and 6, the petitioner agreed to execute and register a deed of sale in respect of the aforesaid two flats owned by him as a security for such transaction. It was agreed by both the parties that the flats would be re-conveyed to the petitioner after the entire amount was repaid. The petitioner and his son were induced by the respondent nos.5 and 6 to put their signature on plain papers, non-judicial stamp paper and four blank cheques each, misrepresenting that the plain papers were necessary for agreement with loan provider bank with which the respondent nos. 5 and 6 promised to manage themselves as the said bank was their tenant. However, the said blank papers were used by the respondent no.5 and 6 to manufacture a lease deed and a leave and licence agreement. The petitioner and his son kept on paying Rs.50,000/- as interest to the respondent no.5 and 6 and also paid portion of the principal amount intermittently as per instruction of the said respondents, however, the respondent nos.5 and 6 sent legal notice dated 23.01.2017 falsely claiming themselves to be owners of the suit property i.e. flat no.502. On receipt of the said notice, the petitioner instituted a suit for cancellation of the sale deed. The respondent nos.5 and 6 also filed a case before the respondent no.4 under Section 21 read with 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'), which was registered as JBC Case No. 13 of 2017. The petitioner appeared in the said case and sought leave under section 21(4) of the Act, 2011 to contest the said proceeding. The petitioner also filed an application under Order VII rule 11 read with Order XIV rule 2(2) of the CPC raising a preliminary objection as to the jurisdiction of the respondent no.4 to adjudicate a dispute arising out of a leave and licence agreement which can only be adjudicated under the provisions of the Indian Easement Act by a civil court of competent jurisdiction. However, the respondent no.4 vide order dated 16.07.2019 dismissed the petition filed by the petitioner under Order VII rule 11 read with Order XIV rule 2(2) of the CPC. Being aggrieved by the said order, the petitioner was advised to prefer an appeal before the appellate authority-respondent no.3, however, office of the said authority did not accept the memo of appeal on the ground that the said interlocutory order is not appealable rather a revision would lie under section 37 of the said Act against the same. Thereafter, the petitioner preferred a revision petition before the respondent no.2, which was registered as JBC Revision Case No.23/2019-20. The said revision petition was dismissed vide order dated 21.12.2020 passed by the respondent no.2, observing that the revision was not maintainable on the ground of availability of alternative remedy of appeal. Hence, the present writ petition.

3. Learned counsel for the petitioner submits that the impugned orders dated 16.07.2019 and 21.12.2020 are wholly erroneous, unjustified and against the provisions of law. It is submitted that in view of the admitted pleadings, the proceeding initiated on the basis of leave and license agreement is not maintainable under the Act, 2011. The respondent no.4 has erred in dismissing the petition filed under Order VII rule 11 read with Order XIV rule 2(2) of the CPC. The said court committed an error by misinterpreting the pleadings as well as the leave and license agreement dated 01.11.2016. It is further submitted that the impugned order dated 21.12.2020 passed by the respondent no.2 being a non-speaking one also cannot sustain in law. The respondent no.2 has erred in dismissing the revision preferred by the petitioner on the ground of availability of alternative remedy of filing appeal particularly when the appellate authority had already refused to entertain the appeal. It is also submitted that purported sale deeds are only paper transactions without any consideration or delivery of

possession and there is no question of tenancy or execution of leave and license agreement as claimed by the respondent nos.5 and 6. Though the respondent nos.5 and 6 have sought eviction on various grounds, which do not attract trial under the special procedure of section 21 of the Act, 2011, yet the same has been tried under the special procedure which is causing great prejudice to the petitioner. It is further submitted that the signature of the petitioner and his son were obtained on blank papers by misrepresentation and subsequently the same were converted into a lease agreement dated 14.03.2016 and a leave and license agreement dated 01.11.2016.

4. Heard the learned counsel for the parties and perused the materials available on record. The petitioner has sought challenge to the order passed by the respondent no.4, dismissing the petition filed by the petitioner under Order VII rule 11 read with Order XIV rule 2(2) of CPC, as well as the order passed by the respondent no.2, dismissing the revision filed by the petitioner against the said order of the respondent no.4.

5. It transpires from the record that the respondent nos.5 and 6 preferred a petition under Section 21 read with Section 19(1)(a)(c)(d)(e) of the Act, 2011 in the court of respondent no.4, seeking a decree of eviction against the petitioner from flat no.502. On notice, the petitioner appeared and filed a petition under Order VII rule 11 read with Order XIV rule 2(2) of CPC, claiming that there was no tenant and landlord relationship between the petitioner and the respondent no.5 and 6 and since the last agreement dated 01.11.2016 was in the nature of leave and license, the respondent no.4 had no jurisdiction to entertain the petition filed for eviction of the petitioner, as the respondent no.4 could only adjudicate the dispute arising between the landlord and the tenant under the Act, 2011. The respondent no.4 in the impugned order has referred the judgment of the Hon'ble Supreme Court rendered in the case of C.M Beena & Another Vs. P.N.

Ramachandra Rao (Civil Appeal No.1548 of 1999). In the said judgment, it has been held that difference between a 'lease' and 'licence' is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. In a licence, only a right to use the property in a particular way or under certain terms is given to the occupant while the owner retains

the control or possession over the premises. It has further been held that use of the terms like 'lease' or 'licence', 'lessor' or 'licensor', 'rent' or 'licence fee' is not by themselves decisive of the nature of the right created by the document. An effort should be made to find out whether the deed confers a right to possess exclusively coupled with transfer of a right to enjoy the property or what has been parted with is merely a right to use the property while the possession is retained by the owner. The conduct of the parties before and after the creation of relationship is of relevance for finding out their intentions.

6. In the present case, the respondent no.4 has observed in the order dated 16.07.2019 that earlier one lease agreement was executed on 14.03.2016 for a period of five months, which was effective till 13.08.2016 and, thereafter, in reply to the legal notice sent by the respondent nos.5 and 6, the petitioner requested for three months' time to vacate the premises and only thereafter the leave and licence agreement dated 01.11.2016 was executed, which was in continuation to the earlier lease agreement. It was thus concluded that the said leave and licence agreement was actually a lease agreement.

7. Here, it would be appropriate to refer few judgments of the Hon'ble Supreme Court, wherein 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 DevRai v. Ram ChanderRai, (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 Vs. Navjot Sandhu, 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. Thus, the finding of fact arrived at by the courts/tribunals should not be interfered while exercising the writ jurisdiction under Article 227, which is more or less similar to revisional jurisdiction of the High Court unless finding of the court/tribunal is so perverse that any judicial person cannot reasonably reach such a conclusion or that the finding is against any provision of law or is contrary to the evidence adduced. The power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep the subordinate courts and tribunals within the four corners of their authority and not for mere correction of errors.

11. I have gone through clause 1.2 of the Leave and License Agreement dated 01.11.2016, which reads under:-

"1.2 The Licensee being in need of a place for residing alongwith his family had approached the Licensors with a request to permit the Licensee for allowing him to continue to reside in the Licensed Premise (Earlier Lease Agreement was effective from 14.03.2016 till 13.08.2016) on leave and licence basis, which is already under the possession of the Licensee; for another short period of 11 months."

12. The aforesaid clause explicitly provides that the agreement was executed authorizing the petitioner to continue to use the said premises for residence purpose, the possession of which was already with the petitioner and was not transferred by the said agreement. Thus, the respondent no.4 has rightly held that the Leave and License agreement was in continuation of the earlier lease. Moreover, the purpose of licence is to transfer only right to use the property in a

particular way or under certain terms but the owner retains the control or possession of the same. However, in the present case the possession of the premises was handed over to the petitioner at the time of execution of lease agreement dated 14.03.2016 itself and by the present agreement in the nomenclature of "leave and licence agreement", the earlier lease was extended for another 11 months.

13. One of the arguments of learned counsel for the petitioner is that the respondent no.2 has wrongly dismissed the revision preferred by the petitioner on the ground of availability of alternative remedy of appeal, since the appellate authority had already refused to entertain the appeal. This court is of the view that since the petitioner has challenged maintainability of the eviction proceeding before the respondent no.4 and for the reasons as aforesaid this court has already observed that the respondent no.4 has rightly held that the "leave and licence agreement" was actually the continuation of the "lease agreement", the said argument of petitioner is not of much relevance at this stage. Moreover, the said suit was filed for eviction of the petitioner on the ground of personal necessity for which special procedure has been prescribed under section 14 of the Act, 2011 to shorten the period of limitation. The language used in section 14 would itself suggest that in a case where the landlord requires his/her own premises for bona fide and personal necessity, it should be treated as a separate class so that the landlord can reap the fruits of decree for eviction in the quickest possible time. So far as the other grounds of attack to the eviction proceeding are concerned, this court does not find it appropriate to comment on the same at this stage, as the petitioner will have ample opportunity to defend the eviction proceeding before the respondent no.4 by raising all such points.

14. The writ petition is, accordingly, dismissed.

15. I.A. No.4724 of 2021 also stands disposed of.

(Rajesh Shankar, J.) Sanjay/