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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