Parikshat Suri and ors. Vs. Ashok Kohli and anr. - Court Judgment

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tenancy - eviction - conflicting statement - petitioner/landlord filed eviction petition against respondents on ground of personal requirement, non payment of rent and sub-letting - trial court granted decree in favour of petitioner - appeal by respondents - allowed - hence, present revision by petitioner - held, there was clear evidence that property had been in exclusive enjoyment of respondent no. 2 who was not tenant of petitioner - it is proved from documents and evidence that there is requirement of premises for business purpose - there is also conflicting statement of respondents as to who was maintaining account - impugned order of appellate court is set aside - revision allowed - 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 tenant's contention about the availability of the office space in the adjoining premises was rejected by the rent controller on the principle that the landlord was the best judge for directing his needs and there was nothing mala fide about the landlord requiring his own premises for carrying on the business, which he was admittedly doing from new delhi. the law is too well established to require any special mention that the tenant cannot dictate to the landlord as to how the property shall be put to use or the landlord shall better not venture into unviable business. the exclusive occupation of a person other than the tenant could well be explained in cases where such person other than the tenant in possession could explain that it was on behalf of the tenant or as an employee of the tenant or as a person associated in the business as a partner of such tenant. the manner of association with the business of a tenant could also be explained best by producing records which would show that the tenant continued having a control over the business and that the person, who was shown to be in the occupation was merely an employee or a person, who was the manager looking after the affairs on behalf of the tenant. the landlord would be the best judge of his requirement; the propositions made are too well established that do not require elaboration by reference to case laws on the subject, as cited by learned senior counsel.k. kannan, j.1. the above case was in the regular board and on mention being made that there was an urgent need for premises and that the case might be taken up, it was posted for hearing among the regular cases today on 20.05.2009. the case was called for in the morning and after ascertaining that both parties were ready, it was passed over for hearing at 1.45 p.m. throughout the entire stage of proceedings when counsel for the revision petitioner was making submissions, there had been no representation on behalf of the respondent to state that the respondent's counsel was not ready and at the conclusion of the arguments, an adjournment was sought on behalf of the respondent. the case has been instituted before the rent controller in the year 1997 and i find that there is no justification for a plea on behalf of the tenant to seek for an adjournment when the case is in the regular board for final hearing. i reject the plea for an adjournment and proceed to hear and dispose of the civil revision on the basis of records and on the basis of submissions made by learned senior counsel for the revision petitioner.2. the petition for eviction was filed on three grounds namely non-payment of rent, personal requirement of the landlord to the premises and on the ground of subletting by the 1st respondent in favour of the 2nd respondent. on payment of rent before the rent controller at the first hearing, the grounds that survived for consideration were the personal necessity for the building as contended by the landlord and subletting. the rent controller upheld the contention of the landlord and granted an eviction. the appellate court reversed the decision on both counts and the landlord is the party before this court as a revision petitioner assailing the judgment of the appellate authority.3. the manner of requirement as disclosed in the petition was that the property had been allotted by the chandigarh administration for purpose of establishing the business in which the petitioner had already established business namely of printing and publication of law journal called 'the lahore law times'. the contention of the landlord was that after the allotment, property had been let out to the tenant and he had himself established his business at new delhi and the petitioner was contemplating to expand the business operations, invest in new machineries by applying modern techniques of printing and that he was finding it difficult to carry on with the operations in new delhi and the constant travels at his old age was costing him dearly. the property, according to him, was necessary for his bona fide occupation of continuing the business, which he was carrying on from new delhi although he had his own office at chandigarh. the other ground of eviction was the subletting, which according to the landlord, the tenant, who was the 1st respondent was guilty of, by handing over the exclusion possession of the property to his own brother, the 2nd respondent, who had started using the property as automotive service station. this, according to him, had been done without the written consent of the landlord and hence was actionable.4. the rent controller found the need of the landlord to be genuine, having regard to the fact that the landlord was admittedly in the business of publication and sale of law journals and that the property which the landlord already was in occupation of in the adjoining premises, after eviction of his earlier tenant m/s novopan was using it as an office and the property in his occupation being not sufficient, the requirement as given out by the landlord for carrying on the business was fully justified. the tenant's contention about the availability of the office space in the adjoining premises was rejected by the rent controller on the principle that the landlord was the best judge for directing his needs and there was nothing mala fide about the landlord requiring his own premises for carrying on the business, which he was admittedly doing from new delhi. a copy of the site plan has also been filed and exhibited in evidence that showed that the office premises with the landlord was in occupation of was part of the whole property that had been allotted to him. the reference is made by the learned senior counsel to this document to show that the property in the occupation of the landlord is only the office portion and it will not possible to establish a printing press in such an office premises.5. on the ground of subletting also, the rent controller found that the tenant had been served with the court's summons not at the demised premises but elsewhere where he was running a business in automotive parts while the 2nd respondent, who was the tenant's brother had been served with notice at the demised premises. he also took notice of the fact that having regard to the property had been shown to be in the exclusive possession of the 2nd respondent, the 2nd respondent was bound to explain his conduct and his possession by giving evidence that he was not independently carrying on the business and that he was merely taking care of the premises on behalf of his brother. the tenant-1st respondent had given evidence that the accounts were with his brother who is a chartered accountant, while the 2nd respondent said that the 1st respondent alone had knowledge of all the affairs of the company and the accounts were with him. the conflicting views relating to who was maintaining accounts in relation to the premises was also taken up as one of the reasons for the rent controller to come to the conclusion that the subletting as urged by the landlord had been established and directed eviction.6. the appellate authority reversed the decision on a special pleading on behalf of the tenant that the publications of the petitioner were not shown to be increasing in any way and that there was no need for landlord to require a larger portion when he had the benefit of occupation of a portion of the property, which the other tenant m/s novopan had vacated. while reversing the decision of the rent controller on the question of subletting, the appellate authority found that there was no proof by the landlord to show that there was any consideration for the transfer and no clear evidence was available to establish that there was a case of subletting.7. learned senior counsel appearing for the revision petitioner submits that in a case where the landlord was admittedly carrying on the business in printing and publication of law journals and when it was also an admitted case that the property had been allotted by the chandigarh administration only for establishing a printing press, the requirement of the landlord ought to have been found as bona fide when it was shown that the landlord was not in occupation of any premises other than the place which he was occupying in the adjoining premises for office purpose and the designated use of the property being printing press, the landlord's requirement ought to have been upheld. he assails particularly the reasoning of the appellate authority that printing journals was not a lucrative business 'after the computer business had been accepted as a substitute' and since the landlord had not placed on record the proof of journals he had been printing and selling every year were in wide circulation or popular among lawyers, it could not be taken that the expansion of business was required in the fashion sought for by the landlord. i find myself unable to subscribe to any such reasoning that a landlord requiring his premises for his business must show that the business which he has been running over a period is lucrative. persons in the business of publication do not always do the job as a business, although, it may incidentally turn out to be one. a publishing house that has established a journal in the year 1922 could also have his own other reasons to continue the journal as a passion and as a service to the legal fraternity. if the existing business is an admitted fact the need cannot be discounted or the bona fides cannot be doubted by a court by saying that the business is not lucrative and therefore, it shall not be worthwhile for the landlord to ask for vacation of the premises. the courts shall not join issues on the commercial wisdom of the landlord for the type of business that a person is occupied in, so long as there is nothing illegal about it or no imaginary grounds are made. the law is too well established to require any special mention that the tenant cannot dictate to the landlord as to how the property shall be put to use or the landlord shall better not venture into unviable business. the reasoning adopted by the appellate court for reversing the finding of the rent controller is wholly unacceptable and i have no hesitation to find that the appellate authority was grossly in error in rejecting the landlord's plea for requirement of the premises and reversing the decision of the rent controller on a brazenly untenable reasoning.8. even as regards the plea of subletting, it shall be borne in mind that all the landlord is required to show is that a person other than his own tenant is in occupation of the whole or in part of the premises and the tenant had parted with such possession either in whole or in part to another person, who was not a privy to contract of tenancy. such an evidence is seldom direct and the sub-tenancy itself being invariably a covert act, only the circumstances and the nature of evidence should come in aid of the court to either accept or reject a plea of sub-tenancy. the exclusive occupation of a person other than the tenant could well be explained in cases where such person other than the tenant in possession could explain that it was on behalf of the tenant or as an employee of the tenant or as a person associated in the business as a partner of such tenant. the manner of association with the business of a tenant could also be explained best by producing records which would show that the tenant continued having a control over the business and that the person, who was shown to be in the occupation was merely an employee or a person, who was the manager looking after the affairs on behalf of the tenant. the nearness of relationship between the tenant or sub-tenant or the alleged sub-tenant by themselves do not have any relevance. the fact that the 2nd respondent is a brother of the 1st respondent by itself cannot lead to any presumption that such a person, was merely looking after the affairs of his brother. indeed, it could have been proved to do so, if it were the truth. as i have already pointed out, the respondents no. 1 and 2 have varying versions regarding who had the accounts for running of the business, each one trying to say that other was holding the accounts as a cause for non-production of the documents. the 1st respondent again, in this case, has admittedly a business in automotive parts elsewhere in another sector in chandigarh and the only manner in which he could explain the possession of the 2nd respondent was that his brother was looking after the business on his behalf. there were admittedly workmen at the business where property was situate and payment of salary or procurement of materials could all afford documentary evidence. if there was a scope for explaining the 1st respondent's continuance of interest in the business, which was being carried on at the property, that opportunity was not availed by the tenant. on the other hand, there was clear evidence that the property had been in exclusive enjoyment of the 2nd respondent who was not the tenant of the landlord.9. learned senior counsel appearing for the petitioner has submitted several decisions of the hon'ble supreme court and of this court on the issue of personal requirement of the landlord. i do not propose to refer to them except to state the emerging proposition of law:(i) that while establishing case of the bona fides of requirement, the tenant cannot dictate terms or question the bona fides of the landlord. the landlord would be the best judge of his requirement;(ii) that the rent controller cannot begin with the presumption that there was lack of bona fides of the requirement of the landlord.(iii) that the landlord would have complete freedom to decide nature of business which he would carry on.10. while adverting to the proposition on subletting, learned senior counsel refers to decisions that hold:(i) a sub-tenancy is invariably a secret arrangement and the court will only look to the conduct of the parties in evidence to determine whether the case of sub-tenancy is true or not and the exclusive possession of the sub-tenant is established or not;(ii) production of records may have an important bearing on the nature of enjoyment of a tenant or a sub-tenant and adverse inference could be drawn against the person, who has the custody of records which can establish his own control and disprove that another person who was said to be a sub-tenant had no connection with such business.the propositions made are too well established that do not require elaboration by reference to case laws on the subject, as cited by learned senior counsel.11. learned senior counsel for the petitioner also refers me to a subsequent event of the chandigarh administration taking action for resumption of the property on the ground that the original allotted user namely, of establishing printing press has been changed without due authorization for establishing an automobile service station. the document of notice of the chandigarh administration has been filed as annexure p-l along with cm. no. 5830 of 2007. i direct the application to be taken on record but however, 1 do not find any relevance to the same, having regard to the fact that the petition is not founded on change of user of the premises as a ground of eviction. learned senior counsel would make reference to this document only to show that there was a personal need for him to use the property for the very same purpose for which it was allotted to him. the consideration of this document has no bearing to the issues involved in the revision and i have kept the document out of reckoning in the matter of adjudication.12. the order of the appellate authority, is under the circumstances set aside and the civil revision is allowed with costs assessed at rs. 5,000/-.