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2009 DIGILAW 22 (PNJ)

Madhu Behal v. Rishi Kumar

2009-01-07

K.KANNAN

body2009
Judgment K.Kannan, J. 1. I. Grounds of consideration : Of the three grounds of eviction namely i) non-payment of rent ii) sub- letting iii) bona fide requirement of the landlord, only two grounds sans the ground of non-payment of rent remain for consideration, especially after the tenant rendered the rent at first hearing. The grounds found favour that both the Rent Controller and the Appellate Authority and the tenant that faces eminent prospect of eviction is the revision petition before this Court. II. Difference between lease and license : 2. Even before adverting to the merits of the claim, as regards the grounds, the revision petitioner contends that the property in dispute is governed by a document under Ex.A-2 which refers to a transaction of leave and licence and consequently the provisions of Rent Control Act are not applicable. The counsel for the petitioner places reliance on the judgment of the Supreme Court in Delta International Ltd. v. Shyam Sunder Ganeriwala, 1999(2) RCR(Civil) 471 : 1999(1) RCR(Rent) 447 : AIR 1999 SC 2607 which states that when the agreement specifically recited the nature of transaction as licence and parties were conscious that the document if treated as a lease it would be illegal to create a sub-lease, the agreement would have to be regarded as `leave and licence and not as `lease. The Supreme Court was laying down the law while considering the relevant provisions under the West Bangal Premises Tenancy Act, 1956. This decision assumes significance in the context of the maintainability of the petition by a landlord that only if there was a relationship of landlord and tenant and if the character of the first defendant in possession was that as licensee the petition itself could not have been entertained. This aspect has been considered both by the trial Court as well as the Appellate Court by directing attention to the law in its correct prospective. It is never a nomenclature in the document that would govern the decision when the issue is put to test as to whether a document as a `lease or a `licence. The essential feature that distinguishes a lease from licence is always a transfer of interest in the demised property in a transaction of lease while a licensee does not involve any such transfer of interest. The essential feature that distinguishes a lease from licence is always a transfer of interest in the demised property in a transaction of lease while a licensee does not involve any such transfer of interest. The further notable distinction is that the lease is heritable while license is personal to the grantee. The legal possession of the property is inevitably transferred to a tenant under lease while in a transaction of license the legal possession continues with the licensee and the licensee has a mere right of user of the premises in a particular fashion mentioned under the document. Apart from these distinctions, there is another aspect which is the most predominant consideration namely the intention of the parties. III. Application of relevant parameters shows the transaction as lease : 3. The Courts below have considered that the possession of the property had been actually handed over to the first respondent and rents had also been paid and receipts issued as `rent. More significantly, the document itself referred to a "licensee" as a person that includes his heirs and assigns. The heritability of the property held in possession by the license is anathema to consider the document as a transaction of license. The exclusive possession of the property with no form of control by the landlord and the heritability of the property are sufficient ingredients to discern that it is only a case of lease and not a licence. The considerations that have weighed with the Rent Controller and the Appellate Authority, in my view, are unassailable and the case could not have been thrown out at the threshold in the manner sought for by the revision petitioner. Indeed such an argument cannot be canvassed by the revision petitioner, since they were not the original licensees themselves. It was the contention that the husband of the first revision petitioner and his brother who was the first respondent before the Rent Controller were joint lessees and on the death of her husband the lease hold right survived to his wife and children. Having regard to a specific contention put forward by the revision petitioner that they were claiming the rights through the deceased husband of the first revision petitioner, the plea of license just cannot stick. IV. Consideration of the ground of sub-letting : 4. Having regard to a specific contention put forward by the revision petitioner that they were claiming the rights through the deceased husband of the first revision petitioner, the plea of license just cannot stick. IV. Consideration of the ground of sub-letting : 4. As regards the plea of sub-letting, the contention of the revision petitioner is that there was an admission by the landlord in his evidence that in respect of yet another shop at door No. 1 there had been a joint tenancy in favour of the first respondent and the deceased husband of the second respondent before the Rent Controller and that even in respect of Ex.A-2, although the document had been executed in favour of the first respondent the deceased husband of the second respondent has also signed as a witness. His contention was that brothers were in joint possession of the property and the first respondent had never lost his possession of the property to be guilty of sub-letting in the manner canvassed by the landlord. Two facts stand out to give a lie to the contention of the revision petitioners. If in respect of shop No. 1, there could be a lease in favour of both the fast respondent and his brother and in respect of shop No. 2 which is the petition mentioned premises, there was a document in favour of first respondent only, by necessary implication, it must mean that the document was meant to favour only the first respondent. Again, if the husband of the second respondent could sign as a witness, there was no reason why he was not also made a party to the document as a beneficiary under the same instrument. The contention of a joint lease in their favour ought to therefore fail on this line of reasoning. 5. The other basis that spells out the contention of the petitioners is that they admitted that there were income tax assessments and accounts independently for the husband of the first revision petitioner and for the first respondent in the rent control petition. The documentary evidence which could have clearly shown the joint entitlement to the business which was run in shop No. 2 would have been the best possible evidence to bolster their claim. The documentary evidence which could have clearly shown the joint entitlement to the business which was run in shop No. 2 would have been the best possible evidence to bolster their claim. However, no such evidence was produced and as stated above, it was admitted that separate returns had been filed by the first respondent and the husband of the second respondent. Even apart from these twin considerations on the issue of sub-letting, the conduct of the first respondent before the Rent Controller in not even entering the contest but remaining ex parte clearly spelt out his own lack of interest. No doubt, it is true that the first respondent examined himself as a witness on the side of the respondents but he had no reason to give as to why he had not filed a statement in express words affirming that although, the tenancy was in his favour, it was meant to be for the benefit of himself and his brother also. His own lack of interest is also evident from the fact that the evidence in cross-examination was that he was not aware of the notice of eviction issued by the counsel for the landlord and the reply that had been issued in his name by the counsel was not issued at his instructions. Evidently, respondent Nos. 2 and 3 themselves had prepared a reply in the name of the first respondent since they had their own axe to grind to explain away the case of subletting. 6. The counsel for the revision petitioner contends that there is no proof of any rent as having been received by the first respondent as sub-lessee from respondent Nos. 2 to 4. Sub-letting is invariably a device in secrecy and in a legal regime that prohibits sub-tenancy without a written consent of the landlord, the question of sub-letting itself could be decided only by reference to the conduct of the parties and the evidence regarding the exclusivity of the sub tenants possession. There is ample evidence to show that the admitted possession of respondent Nos. 2 and 3 were really in their own right and could not be held to be in joint possession with the first respondent before the Rent Controller. The finding regarding sub-tenancy rendered by the two Courts below is absolutely justified. V. Consideration of the ground of personal requirement : 7. 2 and 3 were really in their own right and could not be held to be in joint possession with the first respondent before the Rent Controller. The finding regarding sub-tenancy rendered by the two Courts below is absolutely justified. V. Consideration of the ground of personal requirement : 7. Even as regards the bona fide requirement of the landlord, the trial Court as well as Appellate Court have considered the issue from the factual perspective and have come to the conclusion that the statutory requirements had been established that there had been no other property available for running the business and they had allowed the adjacent property to remain vacant and without letting it out only in order to secure eviction of this premises to make a larger construction for starting the business. The conduct of the landlord in retaining the adjacent property vacant without letting it out to others for the sake of obtaining eviction of the mentioned property also for better commercial exploitation has been properly rendered by due consideration of relevant facts. The respective decisions of the Rent Controller and the Appellate Authority accord with law and facts and there is no ground to interfere in revision. VI Conclusion : 8. Learned counsel for the petitioner seeks time for vacating the premises. Having regard to the fact that the revision petitioners claim that they have been doing the business for several years and that they would require some time to re-locate themselves for livelihood, I accede to the request for time for vacating the premises and grant nine months from the date of the passing of the order. The eviction is accordingly ordered and revision petition is dismissed subject to the time of vacation as nine months.