Shantilal Manilal Shah Vs. State of Maharashtra and Others - Court Judgment

Excerpt:
- - order 1. the only ground urged by the learned counsel for the petitioner in the present writ petition is that the rent controller, akola as well as the resident deputy collector (appellate authority), akola have committed serious error of law in dismissing the petitioner's application under clause 13(3)(iii) of the c. 4. the rent controller, akola by the order dated 28th august 1986 held that the petitioner has failed to prove that he was landlord of the house and that the respondent no. 5. dissatisfied with the order dated 28-8-1986 dismissing the petitioner's application under clause 13(3)(iii) of the rent control order, 1949, the petitioner preferred appeal under section 21 of the rent control order, 1949 before the resident deputy collector, akola (appellate authority). the.....order1. the only ground urged by the learned counsel for the petitioner in the present writ petition is that the rent controller, akola as well as the resident deputy collector (appellate authority), akola have committed serious error of law in dismissing the petitioner's application under clause 13(3)(iii) of the c. p. & berar letting of premises & rent control order, 1949 (for short, the 'rent control order, 1949') and holding that the respondent no. 2, the tenant, by entering into partnership in firm, mahalaxmi medical & general stores in which the respondent no. 2 claims to be partner, has not sub-let the premises and subjected himself to the mischief under clause 13(3)(iii) of the rent control order, 1949. 2. brief facts of the case are that the petitioner filed an application on.....

Judgment:
ORDER

1. The only ground urged by the learned counsel for the petitioner in the present writ petition is that the Rent Controller, Akola as well as the Resident Deputy Collector (Appellate Authority), Akola have committed serious error of law in dismissing the petitioner's application under clause 13(3)(iii) of the C. P. & Berar Letting of Premises & Rent Control Order, 1949 (for short, the 'Rent Control Order, 1949') and holding that the respondent No. 2, the tenant, by entering into partnership in firm, Mahalaxmi Medical & General Stores in which the respondent No. 2 claims to be partner, has not sub-let the premises and subjected himself to the mischief under Clause 13(3)(iii) of the Rent Control Order, 1949.

2. Brief facts of the case are that the petitioner filed an application on 21-8-1987 under Clause 13(3)(iii) of the Rent Control Order before the Rent Controller, Akola seeking permission to serve quit notice on the tenant/respondent No. 2 for having sub-let the premises to the respondent No. 3. It was alleged by the petitioner in his application that he was owner/landlord of the double-storeyed house bearing 268, Ward No. 24, Malipura Chowk, Akola and the respondent No. 2 herein was tenant of block premises on the ground floor of the said house on monthly rent of Rs. 75/-. According to the petitioner, the tenancy commences from the 1st day of each month and ends on the last day thereof. The petitioner alleged in his application that the tenant has sub-let the premises in question to the respondent No. 3 herein without his written consent and the business in the disputed premises is run in the name and style of Mahalaxmi Medical and General Stores, Akola.

3. A joint Written Statement was filed by the respondents 2 and 3 herein before the Rent Controller and the allegations made in the application were denied. It was submitted by them that there was no sub-letting at all. According to them, the respondent No. 2 took the premises on rent in the year 1983 andhe entered into partnership with the respondent No. 3 and some other persons for running the business in the name of Mahalaxmi Medical and General Stores in which the respondent No. 2 was partner and, therefore, he never parted with possession of the rented premises and the respondent No. 3 herein was not the sub-tenant. Mere creation of partnership with some other persons by the tenant in which he was partner, did not amount to subletting, according to the respondents 2 and 3 herein and, therefore, the application filed by the petitioner was wholly misconceived and liable to be dismissed.

4. The Rent Controller, Akola by the order dated 28th August 1986 held that the petitioner has failed to prove that he was landlord of the house and that the respondent No. 2 herein has sublet the disputed premises to the respondent No. 3 herein and consequently, dismissed the application filed by the petitioner.

5. Dissatisfied with the order dated 28-8-1986 dismissing the petitioner's application under Clause 13(3)(iii) of the Rent Control Order, 1949, the petitioner preferred appeal under Section 21 of the Rent Control Order, 1949 before the Resident Deputy Collector, Akola (Appellate Authority). The Appellate Authority also after hearing the parties, concurred with the findings recorded by the Rent Controller, Akola and held that the petitioner has failed to prove subtenancy and, therefore, no ground under Clause 13(3)(iii) of the Rent Control Order, 1949 has been made out by the petitioner. Consequently, the Resident Deputy Collector, Akola vide his order dated 24-7-1987 dismissed the appeal and upheld the order passed by the Rent Controller, Akola.

6. It appears that the petitioner preferred a review application under Clause 21(2)(a) of the Rent Control Order, 1949 before the Appellate Authority and the said review application was also dismissed by the order dated 31-10-1988.

7. The learned Counsel for the petitioner has not challenged the finding of fact recorded by the Rent Controller as well as the Appellate Authority that the petitioner has failed to prove that he was landlord of the house. As stated above, the only argument advanced by the learned Counsel for the petitioner in support of the petitioner is that the respondent No. 2 herein by entering into partnership with the respondent No. 3 and carrying on business in the name and style of Mahalaxmi Medical and General Stores, Akola in the disputed premises, has created subtenancy in favour of the Firm and, therefore, made himself liable under Cl. 13(3)(iii) of the Rent Control Order, 1949.

8. The Rent Controller as well as the Appellate Authority have examined the evidence on record and on appreciation of the said evidence, have arrived at a finding of fact that Mahalaxmi Medical and General Stores is a partnership concern in which respondents Nos. 2, 3 and two others are partners. Thus, the findings recorded by both the Authorities below are that the respondent No. 2 herein continues to be the partner in Mahalaxmi Medical and General Stores, Akola and has not parted with possession of the disputed premises.

9. The whole thrust of the argument of the learned Counsel for the petitioner is based on a decision of Nagpur High Court in the case of Tansukhdas Chhaganlal v. Smt. Shambai AIR 1954 Nag 160, wherein it has been held that the lone tenant if allows the other persons to enter into partnership along with himself to carry on business in the rented premises, he has certainly brought himself within the purview of the law prohibiting subletting except with the permission of the landlord. It is, no doubt, true that Tansukh-das's case (supra) relates to the same provisions of Clause 13(3)(iii) of the Rent Control Order, 1949.

10. The legal position is no more res integra and the Apex Court in Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri, : [1987]3SCR289 has held that if there was such a partnership firm in which tenant was partner, the same would not amount to subletting leading to forfeiture of the tenancy. The Apex Court affirmed the view of the Gujarat High Court in Mehta Jagjivan Venechand v. Doshi Venechand Harakchand, : AIR1972Guj6 , wherein it was held that mere fact that tenant entered into a partnership and allowed the premises being used for the benefit of partnership does not constitute assignment of subletting in favour of the partnership firm entitling landlord to recover possession. The Supreme Court in Helper Girdharbhai's case : [1987]3SCR289 (supra), thus, held :--

'.....It is true that since after 4th of October, 1960 the partnership firm was carrying on business in the premises in question. It is well settled that if there was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to subletting leading to the forfeiture of the tenancy. For this proposition see the decision of the Gujarat High Court in case of Mehta Jagjivan Venechand v. Doshi Venechand Harakchand, : AIR1972Guj6 . Thakkar, J. of the Gujarat High Court as the learned Judge then was, held that the mere fact that tenant entered into a partnership and allowed the premises being used for the benefit of partnership docs not constitute assignment or subletting in favour of the partnership firm entitling a landlord to recover possession. This view is now concluded by the decision of this Court in Madras Bangalore Transport Co. (West) v. Inder Singh : AIR1986SC1564 .'

11. In view of the legal position settled by the Apex Court in Helper Girdharbhai's case : [1987]3SCR289 (supra), the view of the Nagpur High Court in Tansukhdas's case AIR 1954 Nag 160 cannot be said to lay down the correct position of law and stands impliedly overruled by the judgment of the Apex Court in Helper Girdharbhai's case (supra).

12. To prove the ground of subletting under Clause 13(3)(iii) of the Rent Control Order, 1949, the landlord has to establish that the tenant has parted with whole or portion of the rented premises to the sub-tenant and that sub-tenant is paying rent to the tenant in chief. If the sole tenant entrees into a partnership to run a business in the rented premises along with other persons in the name of the partnership firm, it cannot be said that the tenant has parted with possession of the rented premises to the partnership firm in which he is partner, to his exclusion, because as a partner in the partnership concern, the tenant continues to remain in possession of the rented premises and, therefore, one of the necessary ingredients of subletting that the tenant has parted with possession exclusively to the partnership firm to his exclusion, remains absent and, therefore, it cannot be said that the tenant has subjected himself to the mischief of sub-letting within the meaning of Clause 13(3)(iii) of the Rent Control Order, 1949. The conclusions arrived at by the Rent Controller as the Appellate Authority that the respondent No. 2 herein by entering into partnership with others and carrying on business in the name of Mahalaxmi Medical and General Stores has not parted with possession and cannot be said to have sub-let the premises within the meaning of Clause 13(3)(iii) of the Rent Control Order, 1949, do not call for any interference by this Court in writ jurisdiction under Article 226 of the Constitution of India.

13. No other point was raised.

14. Consequently, this writ petition has no force and is dismissed with no order as to costs. Rule is discharged.

15. Petition dismissed.