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D. Jairaj Vs. Jeypore Sugar Co. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Tenancy
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 5 of 1977
Judge
Reported inAIR1978Ori78; 44(1977)CLT368
ActsOrissa House Rent Control Act, 1968 - Sections 2(5) and 7
AppellantD. Jairaj
RespondentJeypore Sugar Co. Ltd. and ors.
Appellant AdvocateB.L.N. Swamy, Adv.
Respondent AdvocateAddl. Standing Counsel, ;S.B. Nanda and ;J.K. Tripathy, Advs.
DispositionPetition dismissed
Cases Referred(Shaik Mohamed v. State of Madras). To
Excerpt:
.....ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - on his failure to do so, an application for his eviction under section 7 of the orissa house rent control act (hereinafter called the rent act) was filed before the house rent controller at rayagada. these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdiction......it had to be seen whether there was a transfer of interest by the landlord in favour of the tenant. the facts in this case were that new delhi municipal committee in the year 1945 built the central municipal market lodi colony which had 32 shops with residential flats on 28 of them. in april 1945 the committee in pursuance of a resolution invited tenders from intending bidders for those shops and premises. on receipt of tenders the highest bidders were allotted various shops on rent varying from rs. 135-8-0 to rs. 526 per mensem.the allottees occupied the shops and the premises in accordance with the allotments made by the committee and continued to pay the respective amounts. towards the end of 1952 however 30 of the occupants filed applications undersection 8 of the delhi and.....
Judgment:

Shankar, C.J.

1. In this petition under Articles 226 and 227 of the Constitution the petitioner-tenant has assailed the order of eviction passed against him in favour of O. P. No. 1, Jeypore Sugar Co. Ltd. (hereinafter called the Company).

2. The petitioner was an employee of the Company. He was in occupation of quarter No. 34 in a block consisting of 40 quarters at a monthly rental of Rs. 10. On 17-9-72 the services of the petitioner were terminated by the Company and he was asked to vacate the quarter. On his failure to do so, an application for his eviction under Section 7 of the Orissa House Rent Control Act (hereinafter called the Rent Act) was filed before the House Rent Controller at Rayagada. The grounds of eviction taken were that the petitioner was a wilful defaulter in payment of rent and that the quarter was required by the Company for its own use. The petitioner denied the subsistence of relationship of landlord and tenant between him and the Company, and also controverted the grounds on which his eviction was sought. The learned House Rent Controller negatived all the contentions of the petitioner and granted an order of eviction against him. Aggrieved by this the petitioner went up in appeal. By order dated 17-9-76 his appeal was dismissed. Hence this petition.

3. The only ground canvassed before us is that the petitioner was not a tenant of the Company and no order ofeviction could therefore be passed under Section 7 of the Rent Act.

4. The question was very seriously agitated before the courts below. While considering this aspect the learned appellate court in the impugned order on the basis of material on record observed:

'It is the specific case, of the appellant-opposite party that rent is payable for occupation of the quarter which is to be deducted from his monthly salary. Ext. 4 a reply sent by the appellant to the Manager of the petitioner-Company in reply to his notice dated 6-3-73 discloses that the appellant-opposite party has admitted his liability to pay usual rent for the quarter he is occupying. Therefore it is clear that the appellant during his occupation of the house was paying Rs. 10 per month as rent to the petitioner-company and admits his liability to pay the same.'

It was strenuously argued before us that use of the word 'rent' in the reply to the notice was not conclusive to determine the relationship between the parties and that the payment of Rs. 10 P.M. by the, petitioner, even though stated in Ext. 4 as rent, was in fact the license money. Reference in this connection was made to AIR 1962 SC 554 (H. S. Rikhy v. New Delhi Municipality) where it was held that the use of the word 'rent' in receipts was not conclusive to show that relation of landlord and tenant was created between the parties and that in deciding this question it had to be seen whether there was a transfer of interest by the landlord in favour of the tenant. The facts in this case were that New Delhi Municipal Committee in the year 1945 built the Central Municipal Market Lodi Colony which had 32 shops with residential flats on 28 of them. In April 1945 the Committee in pursuance of a resolution invited tenders from intending bidders for those shops and premises. On receipt of tenders the highest bidders were allotted various shops on rent varying from Rs. 135-8-0 to Rs. 526 per mensem.

The allottees occupied the shops and the premises in accordance with the allotments made by the Committee and continued to pay the respective amounts. Towards the end of 1952 however 30 of the occupants filed applications underSection 8 of the Delhi and Aimer Rent Control Act praying for fixation of standard rent in respect of the premises in their respective occupation. The Committeeraised a preliminay objection as to the maintainability of the applications on the ground that there was no relationship of landlord and tenant between the applicants and the Committee within the meaning of that Act. In support of their case of tenancy the applicants produced receipts issued by the Committee wherein the payments made by the applicants were acknowledged to have been received as 'rent'.

The Supreme Court held that there could be no letting without the premises forming the subject-matter of tenancy being transferred in favour of the ten-ant for his occupation and as in that case there was no transfer by the Committee under the Punjab Municipal Act there was no letting and therefore the mere description of the premium paid by the applicant in the receipts as rent was not conclusive to show that the relationship of landlord and tenant existed between the Committee and the applicants. This is not so here. There is nothing on the record to show that the quarter was not transferred in favour of the petitioner when obviously the possession was given to him, in consideration of his having agreed to pay rent therefor at the rate of Rs. 10. It is true that the Company constructed a block of quarters including the quarter occupied by the petitioner for use of its employees and even assuming that the Company would not give these quarters to any other than its employees, it was for the petitioner to show that in spite of his agreement to pay rent the transfer was short of tenancy and possession was given by way of licence only. It was urged before us that the quarter was given as a part of the conditions of service, but the appellate court while dealing with this aspect has said,

'There is no material on record to show that the houses of the petitioner-company were being occupied by its employees as part of the conditions of the services as contended by the learned Advocate for the appellant.'

5. The court further observed,

'It is significant to see that the O. P. W. 1 is the appellant-opposite party himself and nowhere he breathes a word in his evidence that the occupation of the quarters is a condition of service and therefore he occupied it as an employee and not as a tenant. It might be that the company has constructed a number of quarters for the benefit of its employeesand lets out its houses at reasonable rates.'

6. Reference was made by the learned counsel to AIR 1968 SC 175 (B. M. Lall v Dunlop Rubber Co.) where the difference between lease and license was pointed out and it was ruled that transaction in a given case was a lease if it granted an interest in the land, but was a license if it gave a personal privilege with no interest in the land. On the basis, of these observations a suggestion was made that in the instant case the Company had granted no interest in the house to the petitioner and his occupation was by way of personal privilege. The argument does not bear scrutiny in this case because no evidence was led to show that what was allowed by the Company was only a personal privilege to the petitioner. The undisputed facts are that the possession of the house was transferred to him, that in pursuance of this transfer he came to occupy the quarter, and that in consideration of the transfer he agreed to pay rent of Rs. 10 for the quarter. He was therefore, in the absence of evidence to the contrary, entitled in law to remain in occupation of the quarter so long as he paid the rent but of course subject to the law in force and the other conditions of grant. In the absence of any evidence showing that this grant was limited to be a license only, it cannot be said with these facets that it was not a lease,

7. The learned counsel for the landlord very vehemently argued that it was not for this Court in exercise of its jurisdiction under Article 226 either to reappraise evidence or to interfere with the findings of fact even if they be wrong much less make out a case for the petitioner for which he has led no evidence. He submitted that whether the petitioner was a licensee or a tenant was essentially a question of fact and as both the courts (that is, the House Rent Controller and the appellate court) after a consideration of material on the record have given their finding that the petitioner was not a licensee but a tenant that was an end of the matter and the question could not. be agitated again in these proceedings under Article 226. We see force in this submission. In AIR 1964 SC 477 (Syed Yakoob v. Radhakrishnan) scope of jurisdiction of the Court under Article 226 came for examination of the Supreme Court. It was held (at p. 479),

'The question about the limits of the jurisdiction of High Courts in issuing awrit of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without t giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealings with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised.'

In arriving at this conclusion the Court has taken into consideration its earlier decisions in (1955) 1 SCR 1104 : (AIR 1955 SC 233) (Hari Vishnu Kamath v. Ahmad Ishaque), 1958 SCR 1240 : (AIR 1958 SC 398) (Nagendra Nath v. Commissioner of Hills Division) and AIR 1960 SC 1168 (Kaushalya Devi v. Bachittar Singh). Even in the case of an error of law that can be corrected under Article 226, on page 180 of the same Report the Court has said.

'What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record.'

8. The learned counsel for the petitioner relied on the observations in para 7 of AIR 1976 SC 588 (Rattan Lal v. Vardesh Chandor) where the Court had said that before a landlord could institute proceedings for recovery of possession he had to make out his right (a) under the T. P. Act and (b) under the Rent Act. No exception can be taken to this position, but we do not see how this helps the petitioner. The petitioner has been found to be a tenant of the Company within the meaning of the Act and therefore the Company has been rightly found to be entitled to file the application under Section 7 of the Act. Reference was also made by the learned counsel to (1972) 38 Cut LT 625 (Union of India v. C. L. Adhikari) and AIR 1966 Mad 454 (Shaik Mohamed v. State of Madras). To our mind both these cases have no bearing on the controversy before us. In both these cases the premises had been allotted and on that footing the nature of relationship was found to be that of the licensor and licensee.

9. We therefore find no case for interference with the impugned orders under Article 226 of the Constitution.

10. In the result, this writ petition is dismissed, but we make no order as to costs.

Acharya, J.

I agree.


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