Dipak
Banerjee Vs. Smt. Lilabati Chakraborty [1987] INSC 190 (30 July 1987)
MUKHARJI,
SABYASACHI (J) MUKHARJI, SABYASACHI (J) OZA, G.L. (J) CITATION: 1987 AIR 2055
1987 SCR (3) 680 1987 SCC (4) 161 JT 1987 (3) 454 1987 SCALE (2)239
CITATOR
INFO : D 1988 SC 514 (1) D 1988 SC1845 (21)
ACT:
Constitution
of India, 1950: Article 136--Concurrent findings of fact--Normally no
interference--Where essential ingredients necessary for finding of a fact--Not
found by courts below--Court bound to interfere.
West
Bengal Premises Act, 1956: Section 13(1)(a)--Sub-letting without written
consent of landlord--Essential ingredients to be established-Services in lieu
of right of occupation--Whether amount to receipt of rent so as to create
sub-tenancy.
HEADNOTE:
The
landlord-respondent filed a suit against the appellant-tenant for contravention
of Section 13(1)(a) of West Bengal Premises Act, 1956 for sub-letting without
his writ- ten consent by parting with the possession of two rooms out of the
four rooms of the premises in question to the sub- tenant who had established a
tailoring business therein. The trial court held that there was evidence of a
sewing machine being used, that the sub-tenant was occupying the suit premises
for tailoring business, and that it was for the tenant to establish that the
sub-tenant had not been inducted as a sub-tenant and that he had given shelter
to a help- less man. In the absence of the evidence of the sub-tenant, the
trial court drew the inference that there was sub-tenancy.
The
first appellate court upheld the finding of the trial court, and the High Court,
in appeal, did not interfere with the findings of the courts below.
In
the appeal before this Court, it was contended that the question of sub-tenancy
in a situation like the present case is an inference to be drawn from a certain
conduct, and that the question was whether the sub-tenant was in exclusive
possession of the part of the premises or whether the tenant had retained no
control or that part of the premises.
681
Allowing the appeal, this Court,
HELD:
1. In order to prove tenancy or sub-tenancy, two ingredients had to be
established, firstly, the tenant must have exclusive right of possession or
interest in the premises or part of the premises in question and secondly, that
right must be in lieu of payment of some compensation or rent. [684G]
2.1
In view of the provisions of Rent Act, services cannot be consideration for
sub-lease. [686B]
2.2
Services in lieu of the right of occupation would not amount to receipt of rent
under the Rent Act to create sub-tenancy. Work performed by sub-tenants and the
wages paid by doing certain kind of services may be in lieu of rent as in the
case of Agricultural Tenancies. But in urban area in civilised time that cannot
be so. The Rent Act, 1956 cannot be fitted into a position where the services
can be rendered in exchange of the right of occupation. [687D, E]
3.
In the second appeal, no court should interfere with the concurrent findings of
fact. [684F] normally, this court is too reluctant to interfere with the
concurrent findings of fact. But if the essential ingredients necessary for
finding of a fact have not in fact been found by the courts below then this
court is bound to examine the question where injustice or wrong is done. That
jurisdiction has to be exercised sparingly but, that cannot mean that injustice
must be perpetuated because it has been done two or three times in a case. The
burden of showing that a concurrent decision of two or more courts or tribunals
is manifestly unjust lies on the appellant but once that burden is discharged,
it is not only the right but the duty of the Supreme Court to remedy the
injustice. [687F, 688A] In the instant case, as there is no finding of
exclusive possession nor of any payment of money in exchange of the user of the
part of the premises the finding of subletting cannot in law be upheld. As the
sewing machine in question was used as a part of the apparatus of the appellant
in the facts of this case it could not be said to have been used separately or
independently and cannot constitute a change of user as defined in Section
13(1)(h) of the Rent Act.
[688B-C]
[Justice of the case demands increase of rent. The appellant has been in
occupation since 1972 at a monthly rent of Rs.250. By present 682 standards,
this is wholly inadequate. The appellant shall pay at least Rs.350 per month
from 1st August, 87. If the standard rent is more, then the respondent will be
at liberty to apply for increasing the rent. [688D] Smt. Krishnawati v. Shri
Hans Raj, A.I.R. 1974 S.C. 280;
Associated
Hotels of India Ltd. Delhi v. S.B. Sardar Ranjit Singh, [1968] 2 SCR 548;
Sachindra Nath Shah v. Santosh Kumar Bhattacharya, A.I.R. 1987 SC 409; Barnes
& Another v. Barratt and another, [1970] 2 All E.R. 483 and M/s Variety
Emporium v. V.R.M. Mohd. Ibrahim Naina, A.I.R. 1985, SC. 207, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 10043 of 1983.
From
the Judgment and Order dated 7.5.1982 of the Calcutta High Court in Appellate
Decree T.No. 673 of 1982. A.K. Ganguli, B.S. Chauhan, S.C. Ghosh and T.
Sridharan for the Appellant. Gobind Mukhoty, Arvind Minocha and Mrs. Veena
Minocha for the Respondent.
The
Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an
appeal by special leave from the judgment and order of the High Court of
Calcutta dated the 7th May, 1982 dismissing the second appeal and passing a
decree for eviction. The High Court refused to interfere with the concurrent
findings of facts, inter alia, on sub-letting. The main question here in this
appeal is whether in fact there was any sub-letting. The respondent is the
owner of the premises No. P-71, C.I.T. Road, Scheme No. (iv) M, Calcutta and
the appellant was a tenant at a monthly rent of Rs.200 plus service charge Rs.50
according to English Calendar Month. It is alleged that the appellant was in
arrear of rent for long time. For the purpose of this appeal as the decree was
not passed on the ground of default it is not necessary to go into detail
regarding the correctness of that allegation. The ground on which the suit
proceeded and which resulted in this appeal is whether the dependant had sublet
or parted with the possession of two rooms out of four to Lalit Mohan Biswas
and he has established tailoring business there. Therefore, sub-letting without
the written consent of the landlord either the whole or part of the building in
violation of section 683 13(1)(a) of West Bengal Premises Act, 1956
(hereinafter called the 'Rent Act') and user for non-residential purpose of
tailoring the premises let out for residential purposes, in violation of
section 13(1)(h) of the Rent Act are two offences alleged against the tenant.
There was one Mritunjoy Mukherjee who opened a Music School there for more than
four months prior thereto without the written consent of the landlord. Mr.
Mritunjoy Mukherjee is no longer in the picture and his case was not pressed
any further.
The
main contention was whether the premises in question was sub-let to Lalit Mohan
Biswas who had established some tailoring business or not. There was evidence
before the learned trial court and it is material in view of the contentions
urged on the question of sub-letting to set out the same, of the plaintiff, the
respondent herein who gave evidence and stated as under:- "I am the owner
of the suit property. The defendant is a tenant at a monthly rental of Rs.250
payable according to English Calendar Month. The defendant is a defaulter since
July, 1977. The defendant sub-let one room to Lalit Mohan Biswas in December,
1976. The sub-tenant has established tailoring business there. Customers visit
his tailoring shop.
Another
room was sub-let to Mritunjoy Mukherjee, who opened a Music School there."
It was further stated that notice had been given for terminating the tenancy.
It was further stated in the evidence as under:- "My wife Lilabati
Chakraborty is the owner of the suit property. I do not know how much rent is
collected by the defendant from the sub- tenants. I am not aware of the profits
made by the sub-tenant. The defendants pay sum of. Rs.200 plus Rs. 50 as
service charge. The defendant paid the arrear rents by instal- ments. I am at
present receiving rents from the defendant. It is not a fact that Lalit Mohan
Biswas is not a sub-tenant and trades on behalf of the defendant." It
appears that a suggestion was made that Lalit Mohan Biswas was not a
sub-tenant, which was denied by the witness. There was however no suggestion
that Lalit Mohan Biswas was in exclusive possession of any part of the prem-
ises in question. Sree Lalit Mohan Biswas did not give evidence in the witness
box.
684
There was also evidence that a sewing machine was used by Lalit Mohan Biswas,
who owned the machine was not clear.
From
this evidence as above the learned trial judge came to the conclusion that
there was evidence of a sewing machine being used. The learned judge also came
to the conclusion that Lalit Mohan Biswas was, occupying the suit premises for
tailoring business and he further came to the conclusion that it was for
defendant to establish that Lalit Mohan Biswas had not been inducted as a
sub-tenant the moment his physical presence in the house was proved. According
to learned trial judge the character and the conduct of the tenant suggested
that he had sub-let portion of the premises and it is for the tenant to prove
that he had given shelter to a helpless man. It was further in evidence that
Lalit Mohan Biswas was doing some sewing work for the tenant and he was also
doing some independent works for others and it did come out in the evidence
that he used to take meals with the tenant. The evidence of the tenant was that
Lalit Mohan Biswas was allowed to occupy part of the premises due to pity and
charity and further he was sewing in the house without any rent. He did some work
for the tenant and his family members and for others. On this evidence the
learned trial judge, in the absence of the evidence of Lalit Mohan Biswas, drew
the inference that there was sub-tenancy in favour of Lalit Biswas. There was
an appeal to the Addition- al District Judge, Alipore and he discussed the
evidence and upheld the said finding. There was a further appeal before the
High Court and the High Court also did not interfere with the findings of the
Courts below.
In
the premises the question arises whether the High Court was right in law. It is
true that in second appeal no court, and in the instant case the High Court
should not interfere with the concurrent findings of facts. It was rightly
pointed out and it is well-settled law by this Court not to interfere with the
concurrent findings of facts. This was reiterated by this Court in Smt.
Krishnawati v. Shri Hans Raj, A.I.R. 1974 S.C. 280 where this Court observed
that on the concurrent finding of the fact where no question of law arises, the
High Court should not interfere. It was further high-lighted before us that the
question of sub- tenancy in a situation like the present, is an inference drawn
from a certain conduct. But in order to prove tenancy or sub-tenancy two
ingredients had to be established, first- ly the tenant must have exclusive
right of possession or interest in the premises or part of the premises in
question and secondly that right must be in lieu of payment of some
compensation or rent. In Associated Hotels of India Ltd.
Delhi
v. S.B. Sardar Ranjit Singh, [1968] 2 SCR 548 this Court reiterated that on the
question whether the occupier of a separate apartment in a 685 premises was a
licensee or a tenant, the test was whether the landlord had retained control
over the apartment. Normally an occupier of an apartment in a hotel was in the
position of licensee as the hotel-keeper retains the general control of the
hotel including the apartment. But it is not a necessary inference of law that
the occupier of an apartment in a hotel is a tenant. A hotel-keeper may run a
first class hotel without sub-letting any part of it. Where the hotel-keeper
retained no control over the apartment, the occupier was in the position of a
tenant.
The
question in this case is whether the alleged sub- tenant was in exclusive
possession of the part of the premises and whether the tenant had retained no
control over that part of the premises. There is no evidence on the fact that
the alleged sub-tenant was in exclusive occupation of any part of the premises
over which the tenant had not retained any control at all. On this aspect
neither was there any pleading nor any evidence at all. No court gave any
finding on this aspect at all. In that view of the matter one essential
ingredient necessary for a finding, the case of sub-tenancy has not been
proved. If that is so, the trial court, the first appellate court and the High
Court were in error in holding that the sub-tenancy was proved.
Our
attention is drawn to this Court's decision in Sachindra Nath Shah v. Santosh
Kumar Bhattacharya, A.I.R. 1987 SC 409 where paying guests were occupying a
portion of the premises, this Court reiterated that finding of fact regarding
those persons would not be interfered with. But where the finding has been
arrived at without finding the basic facts, it cannot be sustained.
There
is another aspect of the matter, i.e., the payment of rent for sub-tenancy or
consideration for sub-tenancy.
Undoubtedly
the alleged sub-tenant rendered certain services to the tenant but can the same
be considered as rent under the Rent Act? Section 14(1) of the said Act
prohibits sub- tenancy and it was pointed out before us that receipt of service
in lieu of the occupation of a part of the premises as a Iicensee did not
amount to payment or receipt of rent.
Sub-tenancy
as such is not defined in the Act. The sub- tenancy under the Transfer of
Property Act, 1882 is governed by section 105 of the said Act and it defines
sub-leases as a lease of immovable property as a transfer of right to enjoy
such property, made for a certain time, express or implied. or in perpetuity,
in consideration of a price paid or promised, or of money, a share of crops,
service or any other thing of value, to be rendered periodically or on
specified occasions to the transferor by the transferee, who accepts the
transfer on such terms.
686
There is no clear evidence in the instant case as to what kind of sewing Lalit
Mohan Biswas used to perform for the tenant, on the other hand, he did perform
some work which could be considered to be in lieu of his right to occupy the
portion of the premises, if so this may be sub- lease in terms of section 105
of the Transfer of Property Act. But is it in lieu of consideration as contemplated
under the Rent Act. The question is, whether in the context of the provisions
of Rent Act, can services be consideration for sub-tenancy? In other words
whether in view of the provisions of the Rent Act services can be a good or any
consideration for sub-lease is the question. We are of the opinion that it
cannot be. See in this connection section 4 of the Rent Act, and the different
sub-sections of that section, section 5, especially section 5(b). These enjoin
that excess over fair rent to be irrecoverable, put restriction on claim,
demand or receipt of premium or other consideration. Section 8 is also relevant
in this connection, see also section 9. Sections 2(h) and 2(d) also indicate
money consideration. Section 13(j) and section 13(i) cannot be anything but
money. Section 17(1) and section 17(2) and 17B also militate against the
concept that services in lieu of money can be consideration. It is however not
possible to accept that services in lieu of the right of occupation would
amount to receipt of rent under the Rent Act to create sub-tenancy. This
frustrates and defeats the purpose of the Rent Act. Take for instance a case
where a person renders services to the landlord in lieu of rent but this will
completely erode the provisions of Rent Act and defeat the claims for services.
Work performed by sub-tenants and the wages paid by doing certain kind of
services may be in lieu of rent as in the case of Agricultural Tenancies. But
in urban area in civilized time that cannot be so. The Rent Act, 1956 cannot be
fitted into a position where the services can be rendered in exchange of the
right of occupation.
This
question arose in England in the case of Barnes & Another v. Barratt and
another., [1970] 2 All E.R. 483.
There
the defendants occupied part of the house which was let to C. The defendants
had exclusive use of three rooms and a kitchen while C had similar use of two
rooms. The bathroom was shared. In return for their use of the above mentioned
accommodation the defendants cleaned part of the house, cooked for him and paid
electricity, gas and fuel bills for the whole of the house. On more than one
occasion C refused to accept any payment of rent. The arrangement continued
from 1951 until C's death in February, 1969. The interests of C were then surrendered
to the plaintiffs who were the landlords. The plaintiffs claimed possession of
the whole house. The county court judge ruled that the defend- ants were
tenants within the protection of the Rent Acts, and were not licensees, since
the services rendered by defendants, according to the 687 county court judge
constituted rent. The court of appeal in England held that the defendants were
granted personal privilege of occupation and not tenancy. It was further held
that even if there was a tenancy, the Rent Acts did not apply to it, because
there was no agreed monetary quantification of the rent nor any agreed method
of quantification.
Sachs
LJ. observed at page 484 of the report as follows:- "That the rendering of
services can constitute rent at common law is well settled but whether it can,
when there has been no quantification of their value, constitute rent under the
Rent Acts is a different question. It was answered 45 years ago in Hornsby v.
Maynard, [1925] 1 KB 514, by a Divisional Court particularly experienced in
dealing with the manifold problems then regularly being raised by the Increase
of Rent and Mortgage Interest (Restrictions) Act 1920, the Act from which so
much of the later rent legislation is derived." The Lord Justice further
observed at page 485 as follows:- "However, if one turns to look at the
structure of the Rent Acts as a whole, it is equally clear that their
provisions with regard to rent restriction can only, in practice, be operated
if that interpretation is correct.
The
effective basis of the restrictions turns on there being quantified sums to
which the provisions of the Acts can apply." The structure of the Rent Act
in the instant case, as indicated above would also indicate that. We hold
therefore that second ingredient, rent agreed was not there. And as such on the
case pleaded and proved there could not have been any sub-tenancy.
It
is true that normally this Court is too reluctant to interfere with the
concurrent findings of fact. But if the essential ingredients necessary for
finding of a fact have not in fact been found by the Courts below then this
Court is bound to examine the question where injustice or wrong is done. In M/s
Variety Emporium v. V.R.M. Mohd. Ibrahim Naina, A.I.R. 1985, SC. 207.
Chandrachud, C.J. observed that con- current findings of lower courts have
relevance on the question whether Supreme Court should exercise its
jurisdiction under Article 136 of the Constitution to review a particular
decision. That jurisdiction has to be exercised sparingly. But, that cannot
mean that injustice must be perpetuated because it has been done. two or three
688 times in a case. The burden of showing that a concurrent decision of two or
more courts or Tribunals is manifestly unjust lies on the appellant. But once
that burden is discharged, it is not only the right but the duty of the Supreme
Court to remedy the injustice. As there is no finding of exclusive possession
nor of any payment of money in exchange of the user of part of the premises the
finding of subletting cannot in law be upheld.
As
the sewing machine in question was used as a part of the apparatus of the
appellant in the facts of this case it could not be said to have been used
separately or independently and cannot constitute a change of user as defined
in section 13(1)(h) of the Rent Act.
We
are unable to sustain the findings of the High Court and the courts below on
the basis of the pleadings and evidence. The appeal is, therefore, allowed. The
judgment and order of the High Court and the Courts below are set aside and the
claim for ejectment is dismissed. But the justice of the case demands increase
of rent. The appellant has been in occupation of the premises in question since
1972 at a monthly rent of Rs.250 per month. In the present standard this is
wholly inadequate for the premises in question; we direct that the appellant
shall go on paying at least Rs.350 per month from 1.8.87. If the standard rent
is more than Rs.350 then the respondent will be at liberty to make any
application for increasing the rent before the appropriate authority. Arrears,
if any, must be paid by 31.8.87. There will be, however, no order as to costs.
This
Court records its appreciation to Sree Amul Ganguly, learned counsel for the
appellant and Sree Gobind Mukhoty, learned counsel for the respondent for the
valuable assistance rendered to this Court.
N.P.V.
Appeal allowed.
Back