Shri Narhar D. Sakhwalkar and ors. Vs. Shri Suresh Lahoti, - Court Judgment

Excerpt:
- maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared by supreme court under article 141 of the constitution of india. said observations/directions are issued in exercise of powers under article 142 of the constitution and also have no application to the cases relating to appointments and are restricted to the cases relating to admissions. the protection, if any, to be granted in the fact and circumstances of case would depend upon exercise of discretion by supreme court under article 142 of the constitution. said powers under article 142 of constitution is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. - as inspite of assurance, the deceased tenant failed to vacate the premises.anoop v. mohta, j.1. the petitioners now l.rs. of original (deceased) tenants have filed the present writ petition as both the courts after considering the material and the evidence on record granted the decree of possession in favour of respondent nos. 1 and 2 landlords on the ground that the petitioners / tenants have created/ assigned interest/ tenancy in favour of original defendant / here respondent nos. 3 and 4 in the suit property.2. the case of the landlords-respondents for possession of the premises on the ground of bonafide need and unauthorized permanent structure, was rejected. there is no further challenge made against other concurrent findings. the only challenge is made by original tenants/ now legal heirs, with regard to the subletting. there is no challenge made even by the sub-tenants respondent nos. 3 and 4.3. in the present case, the original tenant (deceased) was doing business of grocery and stationery shop in the suit premises. he was monthly tenant of the earlier landlord. the respondents / landlords purchased the said property and therefore, being owner/ landlords filed the case for possession on various grounds. some time in the year 1981, the deceased tenant closed the business. the deceased alonwith his son and defendant nos. 3 and 4 opened a new cloth shop in the said premises. it was without permission of the landlord. as inspite of assurance, the deceased tenant failed to vacate the premises. the first notice exhibit 47, was issued on 31/03/1981. the said notice was replied below exhibit 49. the respondents/ landlords, therefore, issued a notice on dated 24/03/1983 to vacate the premises, which was received by the deceased tenant. the said notice was also replied. there was no reference made about any partnership deed or partnership business. earlier also notice was issued on 31/03/1983. the suit was filed on 07/03/1984. in this background, therefore, the basic contention based upon the partnership deed between the deceased tenant his son and respondent nos. 3 and 4 dated 5th april, 1981 is unacceptable. it is clear that the said partnership was created after the demand from time to time made by the landlord and admittedly, after first termination notice as referred above. the partnership deed as observed by the court below is a camouflaged to cover up the case of assignment/ transfer of interest or property by deceased tenant in favour of respondent nos. 3 and 4.4. as noted, there was no reference to creation of any partnership though contract of partnership with the defendants stated to be of 05/04/1981. in this background, both the courts right in holding that such partnership deed and reliance on the partnership deed cannot be conclusive evidence about the valid partnership between defendant no. 1 and defendant nos. 2 to 4 prior to the first termination notice.5. another aspect is that the deceased tenant and his son as per this partnership deed have 20% share of the profits and the losses. as per this agreement the possession remained with the deceased tenant and his son also. the basic business and control of this shop is of defendant nos. 3 and 4. the monetary claim which petitioners entitled to get is not more than rs. 250/- p.m. the partnership was at will. the tenants having once closed the earlier business, to start a new business and accordingly entered into partnership only for 20% profits or losses and given 80% profits and losses to defendant nos. 3 and 4, as rightly observed by the courts below, is quite unnatural. the main control of the business of the firm was with respondent nos. 3 and 4. the deceased tenant did not know even the pros and cons of the closed business and he was not aware of stock in trade, books of accounts and even day to day affairs of the firm. he was even never participated in the business. it is not the case made out by the tenant that the rent receipt was in the name of firm or there was any liability to pay the rent. there is nothing even to suggest that the partnership firm was liable to pay the rent. there is nothing even to show that defendant no. 2 looks after the business. his interest is only of 10%. as noted, basic 80% of the profits and losses are to be utilized by defendant nos. 3 and 4.6. in this background the reliance of the petitioners' counsel on amar nath agarwalla v. dhillon transport agency : air2007sc2402 , is of no assistance, as in that case there was existing partnership which was changed and new partners were inducted with original tenant who continued in legal possession of the premises as a partner of newly formed firm.7. in the present case, the partnership itself, as recorded by both the courts created after the first termination notice was sent on the ground of sub-tenancy. there was no whisper of such partnership by the deceased tenant. the facts and circumstances are totally distinct and distinguishable. therefore, merely because the legal possession remained with the tenant as contended, based upon the said partnership deed, in the facts and circumstances of the case, and as when there is nothing to show that the deceased tenant or his son was actually doing the business in the said premises, and on the contrary there is an ample evidence to show that respondent nos. 3 and 4 are doing the business and earning 80% profits and losses out of the said partnership deed, itself shows that the interest was transferred / assigned and the sub-tenancy was created.8. in this background, the decisions of the apex court in mahendra saree emporium (ii) v. g.v. srinivasa murthy : air2004sc4289 and parvinder singh v. renu gautam and ors. : air2004sc2299 , are of no assistance to support his case to interfere with the findings so arrived at by the courts below ordering the decree of possession against the petitioners on the ground of sub-tenancy.9. in the present case, in my view also as the tenant was not actually associated with the partnership business and not retained the use and control of the tenancy premises with him and practically parted with the possession of the suit premises and indirectly collecting the amount for the sub-tenancy by entering into such partnership deed and agreement to conceal the real intention of sub-tenancy. such nature of transaction in the present facts and circumstances of the case, and as observed by both the courts, supports the case of landlord respondent even as per parvindar singh (supra).10. as the findings were arrived at by the courts below within the framework of law and the record as there is no perversity. therefore, there is no reason to interfere and reappreciate the concurrent finding of facts arrived at by both the courts (bathutmal raichand oswal v. laxmibai r. tarta and anr. : air1975sc1297 )11. resultantly, the petition is dismissed. rule discharged. no costs.