Full Judgment Text
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PETITIONER:
DIPAK BANERJEE
Vs.
RESPONDENT:
SMT. LILABATI CHAKRABORTY
DATE OF JUDGMENT30/07/1987
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
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 appel-
lant-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 induct-
ed 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-tenan-
cy.
The first appellate court upheld the finding of the
trial court, and the High Court, in appeal, did not inter-
fere 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 exclu-
sive 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
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ingredients had to be established, firstly, the tenant must
have exclusive right of possession or interest in the prem-
ises 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 ingre-
dients necessary for finding of a fact have not in fact been
found by the courts below then this court is bound to exam-
ine 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 tribu-
nals 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 liber-
ty 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.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10043
of 1983.
From the Judgment and Order dated 7.5.1982 of the Cal-
cutta 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
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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 delendant 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 pic-
ture 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 con-
tentions 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 Mukher-
jee, 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."
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It appears that a suggestion was made that Lalit Mohan
Biswas was not a sub-tenant, which was denied by the wit-
ness. 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. Nor-
mally 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 apart-
ment in a hotel is a tenant. A hotel-keeper may run a first
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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 prem-
ises 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 restric-
tion on claim, demand or receipt of premium or other consid-
eration. 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
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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 serv-
ices 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 quantifi-
cation 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 (Re-
strictions) 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 struc-
ture of the Rent Acts as a whole, it is equal-
ly 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.
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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 jurisdic-
tion 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 dis-
charged, it is not only the right but the duty of the Su-
preme 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 independ-
ently 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 Gan-
guly, 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.
689