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Madhya Pradesh High Court · body

1958 DIGILAW 175 (MP)

Nanaklal Hajarilal v. Bank of Nagpur

1958-07-23

P.K.TARE

body1958
ORDER P.K. Tare, J This petition under Article 226 of the Constitution of India, has been filed by the Petitioners-tenants against the order dated 30th November, 1957 passed by Shri R.P. Mishra, Additional Collector, Durg in revenue appeal No. 67-7112 of 1957-58 arising out of the order dated 12-9-1957 passed by Shri Saligram Dubey, Rent Controller, Durg in Revenue Case No. 33-71/2 of 1956-57. The first Respondent, the Bank of Nagpur purchased the houses belonging to the Petitioners by sale-deed dated 24-12-1955, for a consideration of Rs. 40,000. In accordance with the sale-deed, the first Respondent was placed in possession of the premises, except a portion regarding which, an agreement of the game date was executed by the Petitioners in favour of the Bank. By the said agreement, the Petitioners undertook to vacate some portion of the premises, in which their effects had been kept, by the end of the month namely December, 1955. As regards the other house located in ward No. 14, known as Appapura, the Petitioners agreed to vacate the same by Diwali of the year 1956. The agreement also recited that the Bank had permitted the Petitioners to occupy a portion of the house in ward No. 14 on the specific condition, that it would be vacated by the Diwali of the next year or in case the Bank sold the house in the meantime, the Petitioners would vacate it at the time of the sale. However, the Bank in its application for permission to determine the tenancy did not rely on the provisions of Clause 13(1)(b) of the C.P. and Berar Letting of Houses and Rent Control Order 1949. The grounds that were urged before the Rent Controller were: (i) Arrears of rent more than 3 months as contemplated by Clause 13(3)(i) (ii) Sub-letting a part of the premises without the written permission of the landlord in contravention of Clause 13(3)(iii). (iii) Bonafide need of the employees of the Bank for residence contemplated by Clause 13(3)(vi). On behalf of the landlord, two witnesses namely, (A. W. 1) Ramchandra, agent of the Durg Branch of the Bank was examined. Another witness namely (A. W. 2) Suganchand, a business man, who scribed (EX. A. 1) the sale deed, was also examined. On behalf of the tenants the second Petitioner Badrinarayan was examined. On behalf of the landlord, two witnesses namely, (A. W. 1) Ramchandra, agent of the Durg Branch of the Bank was examined. Another witness namely (A. W. 2) Suganchand, a business man, who scribed (EX. A. 1) the sale deed, was also examined. On behalf of the tenants the second Petitioner Badrinarayan was examined. For the present, it is not necessary for me to examine the oral evidence of the parties, but I shall deal with the findings of the Rent Control authorities with regard to their legality. The learned Rent Controller held that as the sub-tenancy of Gyarsilal existed prior to the execution of the sale deed, the Petitioners could not be said to have sub-leased in contravention of Clause 13(3)(iii) of the Rent Control Order. The another sub-tenant was alleged to be one Kewal Ramani. As regards this alleged sub-tenant, the Rent Controller held that the landlord failed to prove that the tenants ever accepted any rent from Kewal Ramani. Therefore, the Rent Controller negatived the contention of the Bank regarding the question of sub-lease. As regards the ground of arrears for more than 3 months, the Rent Controller directed that all arrears of rent be cleared of by November, 1957. As regards the question of bona fide need of the residence of the Bank employees, the Rent Controller held that the Bank was in possession of other buildings, which could be given to the said employees. The Rent Controller also observed that a portion of the building had been let out to other persons. Therefore, the Rent Controller rejected the landlord's application for grant of permission to determine the tenancy. Against the said refusal, the landlord, namely, the Bank filed an appeal before the Additional Collector, who held that if the tenants had not deposited the arrears of rent as directed by the Rent Controller, the rent Controller ought to give permission to determine the tenancy. The Additional Collector, directed the Rent Controller to pass an order to that effect, if the arrears were not cleared. The Additional Collector, directed the Rent Controller to pass an order to that effect, if the arrears were not cleared. As regards the question of sub-tenancy, the Additional Collector held that as the alleged sub-lessees were in occupation of the portion of the house without the written permission of the landlord, that by itself would raise a prima facie presumption that the persons concerned were living in an unauthorized manner and the onus to prove that they were not sub-lessees would be on the tenant. In my opinion no such presumption can be drawn under any provision of the law. Of course the Rent Controller is always free to draw an inference of sub-tenancy from the evidence on record. But an inference would be altogether a different matter. The learned Counsel for the first Respondent, the Bank, suggested that the word presumption was used by the Additional Collector probably under a misapprehension. I do not think that the word was used under any such misapprehension. The very fact that the Additional Collector placed the burden on the tenant to prove the negative, namely, the non-existence of a sub-tenancy, indicated that he had used the word prima facie 'presumption' with full realisation of the fact that under such circumstances the presumption ought to be drawn against the tenant. The Additional Collector was clearly in error in holding that any such presumption could be drawn. Of course, in a case of sub-tenancy, it would be difficult for the landlord to prove the sub-tenancy, if the ten ant and the sub tenant colluded. But the landlord can prove whatever facts he can and under any particular circumstances the Rent Control authorities can certainly draw the inference of sub-tenancy on the facts of a particular case. But the finding as it is, is not justifiable, as it is based upon a misapprehension of the law. Coming to the next question relating to the bona fide need of the Bank employees for the purpose of residence, it would be a matter for interpretation as to what would be bona fide need. But the finding as it is, is not justifiable, as it is based upon a misapprehension of the law. Coming to the next question relating to the bona fide need of the Bank employees for the purpose of residence, it would be a matter for interpretation as to what would be bona fide need. In case where a legal entity, as an incorporated company is the landlord, it would be a question to be considered in some appropriate case, whether the employees of the company could be considered to be dependents of the company for the purpose of bona fide residence and whether their need of residence could be considered to be a bona fide need of the company. However, I do not decide that matter in the present case, as the present case is concluded on the third question namely arrears of rent. The direction given by the learned Additional Collector, as regards the grant of permission, in case the arrears had not been cleared of by 22-11-1957, was perfectly correct and legal. The Additional Collector himself could have fixed a fresh time for clearance of the said arrears. There are cases of this Court to the effect that not only the Rent Controller, but also the appellate authority, can extend time for payment of the arrears as and when found necessary. The first Respondent, in the return, has stated that the said arrears have not been cleared of even till today. The said fact not controverted by the Petitioners, nor by their counsel at the time of argument. However, the learned Counsel for the Petitioners stated that if this case were to be remanded to the Rent Controller, he would have the power to extend time for payment of the arrears. This suggestion completely ignores the powers of this Court exerciseable under Article 226 of the Constitution of India. This is not an appellate Court, which could remand the case for any particular purpose. Under the prerogative powers, this Court can certainly quash or correct the orders of a Special Tribunal or can issue orders or directions, which may be found necessary in any particular case. In my opinion that stage of extension of time by the Rent Control Authorities contemplated under Clause 13(3)(1) of the Rent Control Order is already passed. Under the prerogative powers, this Court can certainly quash or correct the orders of a Special Tribunal or can issue orders or directions, which may be found necessary in any particular case. In my opinion that stage of extension of time by the Rent Control Authorities contemplated under Clause 13(3)(1) of the Rent Control Order is already passed. I cannot merely send back the case to the Rent Controller for considering whether time should further be extended. Moreover, I find that the view taken by the Rent Controller, as also the Additional Collector, in the matter of arrears of rent under Clause 13(3)(i) of the Rent Control Order was correct and legal. Therefore, I must uphold that part of the order of the Rent Control Authorities. Consequently there is no occasion for sending back the case to the Rent Control Authorities for consideration of the question of extention of time. For the reasons aforesaid, this petition fails and is dismissed. The order of the Additional Collector is upheld, though for different reasons. The parties shall bear their own costs. The security deposited be refunded to the Petitioners. Petition dismissed.