Pala Ram and anr. Vs. Om Dutt - Court Judgment

Excerpt:
- administrative law - government contract: [vijender jain, c.j., rajive bhalla & sury kant, jj] government contract rejection of highest bid challenge as to held, state has no dominus status to dictate unilateral terms and conditions when it enters into contract. its actions must be reasonable, fair and just in consonance with rule of law. as a necessary corollary thereto, state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. the state is free to enter into a contract just like any other individual and the contract shall not change its legal character merely because other party to contract is state. though no citizen possesses a legal right to compel state to enter into a contract, yet latter can neither pick and choose any person arbitrarily for entering into such agreement nor can it discriminate between persons similarly circumstanced. similarly, where breach of contract at hands of state violates fundamental rights of a citizen or its refusal to enter into a contract is contrary to statutory provisions or public duty, judicial review of such state action is inevitable. likewise, if state enters into a contract in consonance with article 299 rights of the parties shall be determined by terms of such contract irrespective of fact that one of the parties to it is a state or a statutory authority. for these precise reasons the equitable doctrine of promissory estoppel has been made applicable against the government, as against any other private individual, even in cases where no valid contract in terms of article 299 was entered into between the parties. hence, if government makes a representation or a promise and an individual alters his position by acting upon such promise, the government may be required to make good that promise and shall not be allowed to fall back upon the formal defect in the contract, though subject to well known limitations like larger public interest. the state, thus, has no dominus status to dictate unilateral terms and conditions when it enters into contract and its actions must be reasonable, fair and just and in consonance with rule of law. as a necessary corollary thereto state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. -- consumer protection act, 1986 [c.a. no. 68/1986]. articles 14 & 300a: government contract noon-acceptance of highest bid held, it does not result in taking away right to property of highest bidder highest bid, per se, unless it is accepted by competent authority, and consequential sale certificate is issued, does not grant the highest bidder right to property of type which is protected under article 300a right to property is limited to confer highest bidder the right to challenge action of appropriate authority in refusing to accept highest or other bids. [air 1984 p&h 282 (fb) explained] articles 14 & 226: government contract rejection of highest bid held, highest bidder has locus standi to maintain writ petition and assail action of state government or its authorities by contending that his bid has been turned down for arbitrary, illegal or perverse reasons however in such matters, heavy onus would like on petitioner bidder to establish his allegations as state action shall always be presumed to be in accordance with law - the appellate authority allowed the appeal of the landlord primarily on the ground that the tenant, who had taken the plea of partnership between him and bhajan lal did not bring on record the partnership deed as well as books of account which could prove partnership and in absence of production of said documents, inference of sub tenancy can be drawn. battas, advocate, learned counsel for the petitioners, made a reference to the statement of witnesses including that of aw-5 anil kumar son of the landlord as well as the statement of rw-1 pala ram, tenant and contended that the tenant in this case has not parted with the possession and, therefore, subletting is not proved. sarin, senior advocate, learned counsel for the landlord contended that the tenants having taken the plea of partnership, it was upon them to prove the partnership and they having failed to prove the same, the order of ejectment was rightly passed by the appellate authority. however, in the present case, as noticed earlier, i find that the landlord has failed to prove that bhajan lal is in exclusive possession of the premises in dispute rather, the evidence is to the contrary.v.k. jhanji, j.1. this is tenants' revision directed against the order of the appellate authority whereby the appeal of the landlord was allowed and the order of the rent controller dismissing the ejectment petition of the landlord, was set aside.2. ejectment of the tenants was sought on various grounds including that of sub-letting by pala ram to his brother bhajan lal. in the petition, it was claimed that the premises in dispute being residential are required by the landlord for the residence of his son as his son did not possess any other accommodation within the municipal limits. it was also pleaded that pala ram has sublet the premises to bhajan lal without the written consent of the landlord. petitioners in their written statement denied that the premises in dispute are residential or the same were required by the landlord for the residence of his son. the ground of sub-letting was also denied.3. the rent controller, of appreciation of the evidence on record, found that since the inception of the tenancy, premises were being used for the purpose of business and, therefore, cannot be got vacated on the ground of personal necessity. otherwise also, the rent controller was of the view that the accommodation in possession of the landlord was sufficient and ejectment of tenants cannot be ordered on that score. the ground of subletting was also found against the landlord. landlord preferred appeal before the appellate authority. in appeal, only the ground of subletting was challenged. the appellate authority allowed the appeal of the landlord primarily on the ground that the tenant, who had taken the plea of partnership between him and bhajan lal did not bring on record the partnership deed as well as books of account which could prove partnership and in absence of production of said documents, inference of sub tenancy can be drawn. consequently, the order of ejectment was passed against the tenant. petitioners have challenged the order of the appellate authority in this civil revision.4. mr. r.k. battas, advocate, learned counsel for the petitioners, made a reference to the statement of witnesses including that of aw-5 anil kumar son of the landlord as well as the statement of rw-1 pala ram, tenant and contended that the tenant in this case has not parted with the possession and, therefore, subletting is not proved.5. on the other hand, mr. m l. sarin, senior advocate, learned counsel for the landlord contended that the tenants having taken the plea of partnership, it was upon them to prove the partnership and they having failed to prove the same, the order of ejectment was rightly passed by the appellate authority.6. after hearing the learned counsel for the parties, i am of the view that the order of the appellate authority cannot be sustained and this civil revision deserves to succeed.7. landlord in his petition alleged that the premises in dispute were sub let to bhajan lal by his brother pala ram. this averment was specifically denied by the petitioners who in their written statement took up the plea that in the demised premises business is being carried on by them under the name and style of m/s. pala ram bhim sen of which pala ram, bhajan lal and other brothers, namely, tilak raj and bhim sen are the partners. it is true that, the landlord, in support of his case, examined as many as six witnesses, with regard to sub-letting only the landlord, when appeared as aw-6, stated that the premises have been sub-let by pala ram to bhajan lal. this part of the statement of the landlord cannot be accepted for the reason that his son anil kumar, when appeared as aw-5, admitted in his cross-examination, that since from the time of his attaining discretion petitioners have been working in the shop in dispute in which they are carrying on the business. in the light of the admission made by the son of the landlord, it cannot be said that pala ram has divested himself of the legal right to be in possession. otherwise also, in order to prove partnership, tenant has brought on the record, ex. r-1. certificate of registration of firms issued by the registrar of firms, punjab, for showing that the firm m/s. pala ram bhim sen stands registered with the registrar of firms, he also proved on record exhibit r-2, form 'a' maintained by the registrar of firms under section 59 of the indian partnership act in which names of the partners of the firm are mentioned. one of the partners shown is bhajan lal alongwith pala ram and bhim sen. these two documents show that the firm was registered on 10-6-1971. tenant pala ram, when appeared as rw-1, had brought with him copy of the partnership deed and he so stated in his statement. landlord did not cross-examine him on this aspect of the matter nor objected for not bringing on record copy of the partnership deed though the tenant, in absence of partnership deed, has not been able to strictly prove the partnership between him and bhajan lal, yet no presumption can be drawn that in absence of partnership deed, the premises have been sub-let by the tenant to his brother bhajan lal. the onus to prove sub-tenancy is always on the landlord if the landlord prima facie shows that the alleged tenant is in exclusive possession of the premises and the tenant retains no control over any part of the premises, and sub-letting is for some consideration, it would be then for the tenant to rebut the evidence. in view of the statement of aw-5 anil kumar, in the present case, it cannot be said that the tenant has sub-let the premises. as long as control over the premises is kept by the tenant and the business run in the premises is of the tenant, sub-letting flowing from the presence of a person other than the tenant in the shop, cannot be assumed. the allegation that premises have been sub-let to a person has to be proved as a fact by the landlord. mere presence of another person or his own brother within the premises, sub-letting cannot be presumed.8. mr. m. l sarin, senior advocate, learned counsel for the respondent made a reference to :-(i) mangat ram v. om parkash, (1962) 64 p. l. r. 30. (ii) kishan chand v kundan lal, (1967) 69 p. l. r. 57.(iii) kastur chand v gujjar mal, 1977 (2) r. c. j. 297.(iv) shah phoolchand lalchand v. parvathi bai, (1989) 1 s. c. c. 556. to contend that production of partnership deed is a must to prove partnership and further partnership deed must also show essential elements of the partnership as contained in section 4 of the partnership act. he also made reference to :-(i) chatan dass mahajan v. mohinder nath, 1978 (1) r. c. r. 69;(ii) darshan kumar v brij lal, 1984 (1) r. c. r. 299;(iii) prem kumar v. yash paul, 1986 (1) r. c. r. 299.to contend that there can be sub-letting by a brother to his brother.9. there is no dispute about these propositions of law. it is true that wherever a third person is in exclusive possession and a plea of partnership is raised by the tenant, then it is for the tenant to prove partnership. subletting can be there if a subtenant, who happens to be a brother is in exclusive possession, then it would be for the tenant to prove in what capacity the brother is in occupation of the premises. however, in the present case, as noticed earlier, i find that the landlord has failed to prove that bhajan lal is in exclusive possession of the premises in dispute rather, the evidence is to the contrary. both the brothers are carrying on the business in the premises and the tenant, at no stage, lost control over the premises or parted with possession thereof.10. as a result thereof, this civil revision is allowed, the order of the appellate authority is set aside and, in consequence, the ejectment petition filed by the landlord stands dismissed with no order as to costs.