D. Rangarajan vs K.B.S. Maniam and Others

A.Y. Sakhare, J.—Present writ petition under Articles 226 and 227 of the Constitution of India challenges judgment and order dated 21st June, 1990 in Appeal No. 194 of 1989 of the Maharashtra State Co-operative Appellate Court, Bombay.

Facts relevant for the purpose of the present judgment are as under :

The suit property is flat No. 7, situated in ''Shankar Kunj'' Cooperative Housing Society, plot No. 213, Sion Road, Sion (East), Bombay- 400 022. Respondent No. 2 herein is the Co-operative Housing Society registered under the provisions of Maharashtra Cooperative Housing Society Act, 1960 (hereinafter referred to as Act for short). In or about October, 1963, flat No. 7 situated on the ground floor has been allotted to respondent No. 1 by virtue of his being a shareholder/member of the respondent No. 2 society, on the terms and conditions of tenancy as laid down under the bye-laws of the society. By a leave & licence agreement dated 1st April, 1967, the petitioner was permitted to occupy suit flat. The tenure of the said agreement was for 11 months. There are three more leave and licence agreements entered into by the petitioner and respondent No. 1. These agreements are dated 2nd May, 1968, 2nd May, 1970 and 1st July, 1971. The agreement dated 1st July, 1971 is annexed at page 51 to this petition. The said agreement is for 11 months and the said period expired oh 31st May, 1972. On 1st February, 1973 the Bombay Rent Act was amended and licencees were given status of deemed tenants. It is the case of the respondent Nos. 1 and 2 that after expiry of agreement dated 1st July 1971 the respondent No. 1 was requesting the petitioner to vacate the suit flat. However, for one reason or another, petitioner declined to vacate. Thereafter the letters and notices were exchanged between the parties and ultimately the respondent Nos. 1 and 2 filed Dispute u/s 91 of the Act. The said Dispute was filed on 31st October, 1981. The petitioner herein has also filed R.A. Declaratory Suit in the Court of Small Causes at. Bombay on 3rd March, 1981 and the said Declaratory Suit is pending.

In the dispute filed by the respondent Nos. 1 and 2 u/s 91 of the Act, prayer is made for possession on the ground that the petitioner has no legal right to occupy the suit flat. The Dispute proceeds on the basis that the agreement between the petitioner and respondent No. 1 was purely personal, for a short duration and occupation of the petitioner in the suit flat is contrary to the bye-laws, rules and regulations of the society. It was contended that the respondent No. 1 required the suit flat for his own use and occupation. Respondent Nos. 1 and 2 also further stated that due to afflux of time, the petitioner, herein, has lost his right, title and interest in the said flat and therefore respondent Nos. 1 and 2 are entitled for possession.

The petitioner herein by his written statement filed in the month of November, 1982 set up a claim of tenancy in view of the amended provisions of the Bombay Rent Act. The petitioner stated that even though the agreement dated 1st July, 1971 was for 11 months and it came to an end on 31st May, 1972 the petitioner''s occupation in the suit flat was continued on the basis of oral leave and licence agreement and that the petitioner was paying compensation which was duly accepted by the respondent No. 1, herein.

The parties led oral and documentary evidence in support of their respective submissions. The Co-operative Court by its judgment and award dated 29th May, 1989 held that the dispute is maintainable u/s 91 of the Act and that the petitioner is not a protected tenant under the Bombay Rent Act. The issue No. 9 is as under : "Does Opponent prove that he is protected tenant under the Rent Act? " Considering the evidence on this issue, the Co-operative Court has observed that the burden is upon the petitioner to prove that there was subsisting leave and licence agreement on 1st April, 1973, that the agreement dated 1st July, 1971 expired on 31st May, 1972, the said agreement is not renewed nor the parties have entered into a new written agreement nor the petitioner proved his case of oral agreement. The Co-operative Court has held that the leave and licence agreement was not subsisting on 1st February, 1973. The Co-operative Court passed an award directing the petitioner herein to hand over vacant and peaceful possession of the suit flat. Consequential orders are passed regarding mesne profits.

The decision of the Co-operative Court was challenged by the petitioner by way of Appeal No. 194 of 1989. The petitioner made grievance before the Appellate Court that findings recorded by the Cooperative Court about non subsisting of licence on 1st February, 1973 is incorrect, there is material on record which conclusively shows that there was subsisting leave and licence agreement on 1st February, 1973 and consequently, the petitioner must be extended protection of the amended provisions of the Bombay Rent Act. The Appeal Court considered the evidence and submission made before it and by its judgment and order dated 21st June, 1990 dismissed the appeal. The Appeal Court has recorded the finding that between April 1967 to May 1972 the parties have entered into written agreements, the petitioner even though educated, has not as a man of prudence renewed or obtained fresh agreement on expiry of the leave and licence agreement dated 1st July, 1971. The Appeal Court confirmed the order of delivery of possession of the suit flat but modified the order regarding mesne profits.

Mr. Naik, Advocate appearing in support of the petitioner strenuously contended that the judgments and orders passed by the Courts below are perverse as both the courts below have failed to take into consideration the documentary evidence on record. He submits that as the documentary evidence on record is not appreciated or considered this is a fit case to remit it back to the trial Court for fresh consideration. In the alternate, he submits that the petitioner has made out a case for interference by this Court under Article 226 and 227 of the Constitution of India and on the material on record it must be concluded that the licence was subsisting in the petitioner''s favour on 1st February, 1973. He submits that the respondent No. 1 with the intention to circumvent the provisions of Bombay Rent Act and also with an intention to profiteer insisted that the petitioner should execute the agreement of leave and licence dated 1st April, 1967 and subsequent three agreements. However, the petitioner is in exclusive use, occupation and possession of the suit flat on tenancy basis. Mr. Naik further contends that in view of the documents produced on record, finding recorded by the Courts below about the licence being not subsisting on 1st February 1973 deserves to be set aside.

Mr. Naik contends that on 3rd January, 1970 the petitioner was enrolled as a nominal member. Even though the leave and licence agreement dated 1st July, 1971 expired on 31st May, 1972 respondent No. 1 did not took any steps to take possession of the suit flat and for the first time the respondent sent a letter dated 24th/25th April, 1978 which shows that till that time the licence was subsisting. He also placed reliance upon the letters/notices exchanged between the parties which are dated 10th May, 1978, 15th February, 1979, 11th/8th March, 1979, 14th September, 1979, 13th October, 1979, 11th June, 1980, 31st August, 1980, 4th May, 1980 and 23rd September, 1980. Mr. Naik also relied upon the oral evidence, affidavit filed by the respondent No. 1 dated 28th October, 1982 in Appeal No. 467 of 1982 and that the petitioner has paid compensation to the respondent. No. 1 for use and occupation of the suit flat. Mr. Naik contended that the said evidence is not considered by the Co-operative Court as well as the Cooperative Appellate Court. Hence, the matter be remanded back or the finding be recorded in his favour that there was subsisting licence in his favour.

Mr. Punwani, learned Advocate appearing for respondent Nos. 1 and 2 drew my attention to the decisions of the Supreme Court :

Mrs Labhkuwar Bhagwani Shaha and Others Vs. Janardhan Mahadeo Kalan and Another,

AIR 1975 1297 (SC)

Mohd. Yunus Vs. Mohd. Mustaqim and Others, .

Placing reliance upon the aforesaid decisions, Mr. Punwani, advocate for respondent Nos. 1 and 2 contends that this Court under its writ jurisdiction under Article 227 of the Constitution of India cannot interfere with finding of facts like a Court of appeal. He contends that the question whether the petitioner had subsisting licence in his favour on 1st February, 1973 is essentially and purely question of facts and both the Courts below have answered the same against the petitioner herein. He further contends that supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution of India is limited to seeing that an inferior Court of Tribunal function within the limits of its authority and not to correct an error apparent on the face of record much less an error of law. The Apex Court in Babhutmal Raichand Oswal''s case cited supra has held as under:

It would, therefore, be seen that the High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate Court or tribunal. Its function is limited to seeing that the subordinate court or Tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and reappreciating it. What Morris, L.J. said in Rex v. Northumberland Compensation Appeal Tribunal 1952 1 All ER 122 in regard to the scope and ambit of certiorari jurisdiction must apply equally in relation to exercise of jurisdiction under Article 227. That jurisdiction cannot be exercised.

In the case of Mohd. Yunus v. Mohd. Mustaqim cited supra, the Apex Court has held as under:

The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited to seeing that an inferior Court or Tribunal functions within the limits of its authority" and not to correct an error apparent on the face of the record much less an error of law. In this case there was in our opinion no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.

With the assistance of Mr. Naik, I have gone through the letters/notices exchanged between the petitioner and respondent No. 1 and petitioner''s advocate and respondents advocate. These letters are on record. However, none of these letters are of any assistance to contend that there was subsisting leave and licence agreement nor upon reading the said notices/letters a finding can be arrived at that on 1st February, 1973 there was subsisting licence. In my judgment, the petitioner has failed to prove his case that there was subsisting licence on 1st February, 1973. The trial Court as well as the Appellate Court even though have not discussed in detail or made reference in detail to the aforesaid letters/notices, they have discussed other evidence on record and have come to the right conclusion that the petitioner has failed to establish that there was subsisting licence on 1st February, 1973. The Courts below on appreciation of relevant oral and documentary evidence on record have come to the conclusion that there was no continuation of the leave and licence agreement and that the petitioner has failed to prove his case that on 1st February, 1973 there was subsisting licence.

Mr. Naik contends that the leave and licence agreements were executed between the parties to circumvent the provision of Bombay Rent Act. The petitioner was inducted in the premises as tenant and therefore he is a tenant of the suit flat. The said submission cannot be accepted in view of the decision of the Division Bench of this Court in 73 B.L.R. 777 wherein it is held as under :

If an agreement, which is the subject matter of dispute before the Court, is admittedly entered into by the parties to circumvent the law then the petitioner should ipso facto be deprived of his right to any remedy at the hands of the Court and the maxim in pari deliclo, potior est conditio defendant is will be applicable.

The petitioner is also a party to the agreement and cannot be permitted to contend as tried to be contended by him.

Mr. Naik further contends that respondent No. 1 himself has admitted in the affidavit dated 28th October, 1982 filed in Appeal No. 467 of 1982 that the leave and licence agreement has come to an end on or after 31st May, 1972. He placed reliance upon the following sentences from the said affidavit.

The agreement of the leave and licence was continued till 30.5.1972 and the agreement was not renewed thereafter and the same came to an end on or after 30.5.1977, by afflux of time.

The affidavit in reply is filed by the respondent No. 1 to point out that there is a mistake in mentioning the date as 31st May, 1977 when it should have been 31st May, 1972. By reading the sentence as a whole, the explanation given by respondent No. 1 deserves to be accepted as the sentence clearly indicates that what the respondent wanted to state that the licence has come to an end on 31st May, 1972.

In view of the decisions of the Apex Courts, in my judgment, it will not be open for this Court to interfere with the finding of facts recorded by the Courts below, Even though both the Courts below have recorded the finding that the petitioner has failed to prove that there was subsisting licence, I have gone into the evidence on record to satisfy the legality and proprietary of the said findings and I find that both the Courts were justified in recording a finding that the petitioner has failed to prove that there was subsisting licence in his favour on 1st February, 1973.

Thus considering the evidence on record, judgments of the Courts below and the submissions made before me, in my judgment the Courts below have rightly come to the conclusion that the petitioner has failed to establish that there was subsisting licence in his favour on 1st February, 1973. Thus the award directing handing over vacant possession of the suit flat is legal. In the result the present writ petition deserves to be dismissed.

Rule is discharged with costs.

At this stage, Mr. Naik applies for continuation of the interim order. The interim order is continued till 14th August, 1997 on the condition that the petitioner will file an undertaking that he will not part with possession or create third party interest and that he will continue to pay the compensation as ordered.