Sewji Kutchi and Another vs Bajrang Agarwala

Das, C.J.—This is an application for the issue of a writ in respect of an order passed by the Commissioner of Chota Nagpur Division dated 26-7-1954. The relevant facts are these. One Bajrang Agarwala, opposite party before us, filed an application u/s 11, Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, for eviction of the present petitioner 1 from a house which the present petitioner occupied in the town of Jharia. The grounds on which the opposite party asked for eviction were two in number. The first ground, on which the opposite party asked for an order of eviction, was that he as the landlord required the building for his own occupation. The second ground was that the present petitioner 1 had sublet a portion of the house without the consent of the landlord to another person, namely, first to petitioner 2 and then to a person called Velji Thacker. The learned Rent Controller of Dhanbad, who dealt with the application of the opposite party in the first instance, did not accept the ground that the opposite party required the house for his own occupation. With regard to the second ground, namely, that a portion of the house had been sublet by petitioner 1, the Rent Controller held that there was sub-letting, but with the implied consent of the then landlord, one Sashi Bala Dasi.

I may state here that the house originally belonged to Sashi Bala Dasi. In December 1948, Sashi Bala Dasi sold the house to the present opposite Party. On the findings (1) that the land-lord did not require the house for his personal use and (2) that the subletting was with the consent of Sashi Bala Dasi, the learned Rent Controller dismissed the application of the present opposite party. Then, there was an appeal to the learned Additional Deputy Commissioner of Dhanbad.

The learned Additional Deputy Commissioner affirmed the findings of the learned Rent Controller and dismissed the appeal. Then, there was an application in revision to the Commissioner of Chota Nagpur Division. The learned Commissioner came to the following finding''s: (1) that petitioner 1 had first sublet a portion of the house to a firm named Shantilal Narsi prior to 1944; then in 1950 or 1952 Shanti Lal Narsi left that portion of the house and it was sublet to Velji Thacker who was a relation of petitioner 1; (2) that to the aforesaid subletting there was no implied consent by Sashi Bala Dasi; and (3) that thouh the first subletting was prior to the enactment of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, the subsequent subletting in favour of Velji Thacker was after the coming into force of the said Act.

On these findings, the learned Commissioner held that the opposite party was entitled to an order of eviction under Clause (a) of Sub-section (1) of Section 11 of the said Act. He, accordingly, allowed the application in revision by his order dated 26-7-1954. It is in respect of this order that the present application for the issue of a writ has been made. The petitioner has asked for a writ quashing the said order of the Commissioner.

It is necessary, first, to read Clause (a) of Sub-section (1) of Section 11 of the Act. That clause is in these terms

"Notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of Section 12, where a tenant is in possession of any building he shall not be liable to be evicted therefrom, whether in execution of a decree or otherwise, except (a) in the case of a month to month tenant, for non-payment of rent or breach of the conditions of the tenancy, or for sub-letting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment;"

The argument of learned Counsel for the petitioners is that there was no subletting in law in this case and the learned Commissioner was wrong in holding that there was sub-letting prior to 1944 in favour of Shantilal Narsi and in 1950 or 1952 in favour of Velji Thacker. Learned Counsel for the petitioners wishes to bring the present case within the principle of those cases which have been characterised as "speaking order" cases. It is necessary, therefore, to consider, first, the scope of these "speaking order" cases.

As pointed out by the Supreme Court in -- Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, , the question, came up for consideration in -- ''Rex. v. Northumberland Compensation Appeal Tribunal'' 1951-1 K. B. 711 (B). It was held in that case that when a Tribunal made a "speaking order" and the reasons given in that order in support of the decision were bad in law, ''certiorari'' could be granted. It was, however, pointed out that throughout all the cases dealing with "speaking orders", there was one governing rule; ''certiorari'' is only available to quash a decision for error of law ''if the error appears on the face of the record''. The position was thus summed up by Morris, L. J.

"It is plain that ''Certiorari'' will not issue as the cloak of an appeal in disguise. It does not lie in order to bring an order or, decision for rehearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an order or decision'', or irregularity, or absence of, or excess of, jurisdiction where shown."

In T.C. Basappa Vs. T. Nagappa and Another, , the principle was stated in the following observations;

"An error in the decision or determination itself may also be amenable to a writ of ''certiorari'' but it must be a manifest error apparent on the face of the proceedings e. g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by ''certiorari'' but not a mere wrong decision."

Now, we have to consider in this case whether there is any error apparent on the face of the record. Learned Counsel for the petitioners has argued that the learned Commissioner came to the erroneous finding that there was subletting by petitioner 1, first, prior to 1944 and then in 1950 or 1952. The question which we have to consider is whether in arriving at this finding the Commissioner committed an error apparent on the face of the record.

In my opinion, it is impossible to say, in the circumstances of this case, that any apparent or manifest error was committed by the learned Commissioner in arriving at his finding. It is worthy of note that both before the Rent Controller and the Additional Deputy Commissioner the present petitioner himself proceeded on the footing that there was subletting; taut the petitioner relied on the implied, consent of Shrimati Sashi Bala Dasi.

The learned Commissioner has rightly pointed out that the petitioner had admitted that there was sub-letting by him. There has been some argument before us as to whether the enquiry report of the Supply Inspector on this point was admissible in this case. In my opinion, it is unnecessary to consider that question. Assuming that the enquiry report of the Supply Inspector, which showed that petitioner 1 had sublet a portion of the house to Shantilal Narsi on payment of rent, was not admissible in evidence, there is still the admission of the petitioner himself that he had sublet a portion, of the house, first, to Shantilal Narsi and then to Velji Thacker.

Moreover, as laid down in -- Rai Brij Raj Krishna and Another Vs. S.K. Shaw and Brothers, , it was really for the tribunals under the Bihar Buildings (Lease, Rent and Eviction) Control Act to determine whether in fact there was subletting or not, and a finding arrived at by those tribunals must be taken as conclusive, unless some defect''s appear on the face of the record. Fazl Ali, J, (as he then was), who gave the leading decision of the Supreme Court in Rai Brij Raj Krishna and Another Vs. S.K. Shaw and Brothers, , referred to the observations of Sir James Colville in Colonial Bank of Australasia v. William 1874 PC 417 (E). The observations were made in connection with a case dealing with the principles on which a writ of ''certiorari'' may be issued. The observations were;

"Accordingly, the authorities ...... establish that an adjudication by a Judge having jurisdiction over the subject-matter is, if no defects appear on the face of it, to be taken as conclusive of the facts stated therein, and that the Court of Queen''s Bench will not on certiorari quash such an adjudication on the ground that any such fact however essential, has been erroneously found".

Applying that principle in the present case, it must be held that there is no apparent or manifest error in the finding which the learned Commissioner had arrived at, namely, that there was subletting by petitioner 1, first, in favour of Shantilal Narsi and then in favour of Velji Thacker.

On the question of implied consent, the learned commissioner has pointed out that the circumstance from which the consent is to be implied, namely, the circumstance that Sashi Bala Dasi enhanced the rent of the house to Rs. 18/-was not contemporaneous with the sub-letting. The first sub-letting took place sometime prior to 1944 and the rent was enhanced sometime in 1946. The learned Commissioner has also referred to certain other circumstances which go against the hypothesis of implied consent of the landlord. We are not sitting in appeal over the decision of the learned commissioner. Whether the learned Commissioner was right or wrong in arriving at his finding on the question of implied consent is not a matter which can be investigated into by us. We are merely concerned to see whether there is any manifest or apparent error. I am unable to agree with learned Counsel for the petitioners that there is any manifest or apparent error in the finding) of the learned Commissioner that there was no implied consent of the landlord to the sub-letting, in the present case.

The third point which has been urged before us on behalf of the petitioners is the following. It has been submitted that the lease in favour of petitioner 1 was granted more than twenty years ago and u/s 108, T. P. Act, the lessee namely, petitioner 1 had the right to give a sub-lease. The argument is that such a right which was a part or incident of the tenancy was not taken away by Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. It has been argued that Section 11 should be so interpreted as to save the right to sub-lease by the lessee under leases which were granted prior to 1944, This argument fails in my opinion, to give effect to the ''non obstante'' clause of Section 11. That clause makes it clear that notwithstanding anything contained in any agreement or law to the contrary, a tenant in possession of any building shall not be liable to be evicted unless certain conditions are fulfilled. Therefore, Section 11 in express words overrides such law as is contrary to Section 11. Apart, however, from this consideration, it is worthy of note that the finding of the learned Commissioner, right or wrong, is that there was a second subletting in favour of Velji Thacker, after the coming into force of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. The second subletting being after the coming into force of the said Act will undoubtedly be hit by Section 11 of the Act.

Then, there is another way of looking at this question. The point with regard to subletting, which Mr. Chatterji has urged on behalf of the petitioners, is at best an arguable point on which there may be some difference of opinion. Mr. Chatterji referred us to the English decision in -- ''Norman v. Simpson 1946 1 KB 158 (F). That decision considered the meaning of the expression "lawfully sublet" occurring in Sub-section (3) of Section 15, Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. The decision shows that of the three Judges, two took one view & Du Paroq L. J. took another view. Therefore, it is clear that the point which Mr. Chatterji has raised is at best an arguable point and cannot be said to involve an error apparent on the face of the record.

For the reasons given above, I have reached the conclusion that the petitioners have failed to make out any case for the issue of a writ in this case. The application, accordingly, fails and dismissed with costs. Hearing fee Rs. 64 only.

Kanhaiya Singh, J.

I agree.