Shama Prashant
Raje Vs. Ganpatrao & Ors [2000] INSC 497 (27 September 2000)
G.B.PATTANAIK
, & SHIVARAJ V. PATIL PATTANAIK, J.
Leave
granted.
L.I.T.J
This appeal is by the tenant assailing the order of the learned Single Judge of
the Bombay High Court, at Nagpur Bench, as well as the judgment of the Division
Bench affirming the same. The Single Judge of the High Court in a Petition
under Articles 226 and 227 of the Constitution interfered with the judgment of
the Appellate Authority under the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949.
The question for consideration is whether in the facts and circumstances of the
present case the High Court was justified in interfering with the findings of
the Appellate Court under the Control order? The respondent-landlord filed an
application before the Rent Controller under Section 13(3) (ii), (iii) and (vi)
of the Rent Control Order seeking permission to determine the tenancy of the appellant,
inter alia on the ground that the tenant is a habitual defaulter and has
sub-let the premises and further, the landlord needs the premises for bona fide
use. The Controller, on the basis of the pleadings of the parties formulated
five issues and came to the conclusion that the tenant is a habitual defaulter;
the tenant has sub-let the premises to the Sewing Machine firm and the need of
the landlord is bona fide. With these conclusions the Controller granted
permission for determining the tenancy of the tenant under Section 13(3) (ii),
(iii) and (vi) of the Contrtol Order. On an appeal, being carried under Section
21 of the aforesaid order, the Collector and Additional District Magistrate,
who is the Appellate Authority, under the Control Order set aside the findings
of the Controller on all the three issues and came to hold that the tenant
cannot be held to be a habitual defaulter, that the landlord has failed to
establish that the tenant has sub-let the premises and that the bona fide need
has vanished as the need indicated in the application being for the business of
his son and the son died in the meantime. Consequently, the appeal was allowed
and the permission granted by the Controller was set aside. The landlord
assailed the legality of the order of the Appellate Authority by filing a Writ
Petition in the High Court. The learned Single Judge by judgment dated 26th
February, 1998, came to the conclusion that the Appellate Authority committed
error apparent on the face of the order in setting aside the finding of the
Controller on the question of habitual default by taking into consideration
that a sum of Rs.2,000/- had been sent by the tenant to the landlord by money
order and the said money order was refused. Though the money order form itself
do not indicate the period for which the money was being sent. The learned
Single Judge also came to hold that the default rent for the period September
1984 to November 1984 was paid in December only after the landlord obtained
Distress Warrant from the Civil Court and not on his own, and therefore, the
conclusion of the Appellate Authority under the Control Order is, on the face
of it, erroneous. So far as the finding of sub-letting is concerned, the
learned Single Judge considered the so-called agreement between the tenant and
the Singer/Merit Company, and on construction of the terms of agreement it was
found that the agreement though nomenclatured as a consignment dealership, but
is nothing but a subletting, particularly when the tenant/respondent stays at Dombivali
and it is the company which is in exclusive possession of the premises and
transacting the business giving the tenant a rent of Rs.1,500/- p.m. terming
the same to be commission. With these conclusions the learned Single Judge of
the High Court interfered with the order of the Appellate Authority and
affirmed the order of the Controller thereby granting permission to the
landlord under Clause 13(3) (ii) and (iii) of the Rent Control Order. The
tenant being aggrieved by the order of the learned Single Judge, approached the
Division Bench in appeal when the Division Bench agreed with the reasonings of
the learned Single Judge and did not find any reason to interfere with the
same. The Division Bench, however, took into consideration an additional factor
that the premises are under lock and key and not being used for 2 to 4 years.
Mr.
M.L. Verma, learned senior counsel, appearing for the tenant-appellant vehmently
contended that the High Court exceeded its jurisdiction under Articles 226 and
227 of the Constitution in interfering with the findings of fact arrived at by
the Appellate Authority under the Control Order by re-appreciating the
evidence, and therefore, the judgment of the High Court is liable to be set
aside. He also further contended that the conclusion of the High Court that the
plea of sub-letting has been established is contrary to the several decisions
of this Court in as much as to establish sub-letting it must be found that the
tenant has parted with the possession of the premise and such possession must
be backed by some consideration. In support of the aforesaid contention the
learned counsel placed reliance on the decision of this Court in Dipak Banerjee
vs.
Lilabati
Chakraborty (1987) 4 Supreme Court Cases 161, Others (1988) 3 Supreme Court
Cases 57, Gopal Saran vs.
Satyanarayana
- (1989) Supreme Court Cases 56, Delhi Stationers and Printers vs. Rajendra Kumar (1990) 2 Supreme Court Cases
331 and United Bank of India vs. Cooks and Kelvey Properties (P)
Limited - (1994) 5 Supreme Court Cases 9. So far as the question of habitual
default is concerned, Mr. Verma contends that the rent for the months of
September to November 1984 had been paid in December 1984 and Clause 9 of the
agreement of tenancy between the appellant and respondent entitles the tenant
to pay the rent within one month from the date of the notice received from the
landlord, and authorises the landlord to approach the Court of Law if the rent
over 3 months is not paid within one month of the notice in question, and this
being the position, the Lower Appellate Authority was fully justified in
holding that the tenant cannot be said to be a habitual defaulter and the High
Court committed serious error in interfering with the said finding. So far as
the default in payment of rent for the months of December 84 to March 85 is
concerned, Mr. Verma contends that the Lower Appellate Authority was justified
in taking into consideration the refusal of the landlord to the two money
orders sent, and the High Court, therefore, was in error in interfering with
the conclusion on fact of the Appellate Authority under the Control Order by
interfering with the same in exercise of its discretionary jurisdiction under
Article 226 of the Constitution.
Mr. Mohta,
the learned senior counsel appearing for the respondent, on the other hand
contended, that the parameter for exercise of jurisdiction by the High Court in
respect of the orders of an inferior Tribunal is well settled by catena of
decisions of this Court. Since the conclusion of the Appellate Authority in the
case in hand was based on mis-construction of certain documents and on mis-reading
of relevant materials by a cryptic order without even noticing the detailed
reasons given by the Controller, the learned Single Judge of the High Court was
fully justified in interfering with the conclusions of the Appellate Authority,
and as such, there is no error so far as the orders of the High Court are
concerned. According to Mr. Mohta, a bare reading of the judgment of the
learned Single Judge would indicate the apparent errors found by the High Court
with the Appellate Order of the District Collector, and therefore, the High
Court was well within its jurisdiction in interfering with the same.
In
view of the rival submissions we have carefully scrutinised the orders of the
Controller, that of the Appellate Authority under the Control Order and the
order of the learned Single Judge which has been affirmed by the Division
Bench. Undoubtedly, in a proceeding under Articles 226 and 227 of the
Constitution the High Court cannot sit in appeal over the findings recorded by
a competent Tribunal.
The
jurisdiction of the High Court, therefore, is supervisory and not appellate.
Consequently Article 226 is not intended to enable the High Court to convert
itself into a Court of Appeal and examine for itself the correctness of the
decision impugned and decide what is the proper view to be taken or order to be
made. But notwithstanding the same on a mere perusal of the order of an
inferior Tribunal if the High Court comes to a conclusion that such Tribunal
has committed manifest error by mis-construing certain documents, or the High
Court comes to the conclusion that on the materials it is not possible for a
reasonable man to come to a conclusion arrived at by the inferior Tribunal or
the inferior Tribunal has ignored to take into consideration certain relevant
materials or has taken into consideration certain materials which are not
admissible, then the High Court will be fully justified in interfering with the
findings of the inferior Tribunal. Then again the two questions on which the
Tribunal under the Rent Control Order were required to give finding, namely,
habitual defaulter and subletting are not pure questions of fact but can be
held to be mixed questions of fact and law. In this view of the matter, on
going through the Appellate order passed by the District Collector as well as
the order of the learned Single Judge, we are not in a position to hold that
the High Court exceeded the parameters prescribed for interference with the
findings of an inferior Tribunal. Under Clause 13(3) (ii) Controller has to be
satisfied that the tenant is habitually in errors with the rent. The expression
habitually would obviously connote some act of continuity.
Under
the Lease Deed dated 8.4.1982 between the landlord and the tenant Clause 4 made
it obligatory for the tenant to pay the rent before 10th day of each English
Calendar month, and under Clause 9 in the event of arrears of rent over 3
months is not paid then the landlord was entitled to give notice and then if
the matter is not settled within one month from the date of the notice then the
landlord is entitled to terminate the tenancy. Reading the aforesaid two
Clauses it would not be correct, as contended by Mr. Verma, learned senior
counsel appearing for the appellant, that under the agreement itself 4 months
period has been provided to enable the tenant to pay the rent. If a tenant,
notwithstanding the obligation of paying the rent by 10th day of each English
calendar month continuously makes a default of paying the rent for the first
month by two months thereafter, and pays the rent in similar manner, then he
must be held to be habitually in arrear with the rent in question. This being
the posititon, the fact that the rent for September to November 1984 was paid
in December only after the Distress Warrant was issued and that again from
December 1984 to March 1985 the rent had not been paid and were deposited
within the 10th of next month, as stipulated in the lease agreement would
constitute the tenant to be habitually in arrear within the meaning of Section
13(3) (ii) of the Control Order. The Appellate Authority under the Control
Order was obviously in error in interfering with the well reasoned conclusion
of the Controller on this score, and the High Court was fully justified in
correcting the said error by interfering with the finding of the lower
Appellate Authority on the question of applicability of Section 13(3) (ii) to
the case in hand. Similarly, on the question of subletting, there is no dispute
with the proposition that the two ingredients; namely, parting with the
possession and some consideration therefor, had to be established. The
conclusion of the lower Appellate Authority on this score was obviously on a mis-construction
of the document Exhibit N2 and the High Court, therefore, was entitled to
correct the error which was based upon a construction of the aforesaid
document. The different Clauses of the lease deed unequivocally indicates that
the sum of Rs.1,500/- p.m. was the consideration money for parting with the
possession of the premises and allowing the Singer Sewing Machine to do
business in the premises.
In the
aforesaid premises, we are unable to accept the contention of Mr. Verma,
learned senior counsel appearing for the appellant that the High Court
committed error in interfering with the finding of the Appellate Authority
under the Control Order by way of re-appreciating the evidence. In our
considered opinion, the High Court was fully justified in interfering with the
conclusion of the Appellate Authority and correcting the error of the said
Authority, as already stated. In the premises, as aforesaid, this appeal is
devoid of any merits and the same is dismissed accordingly. There will be no
order as to costs.
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