The Supreme Court on Friday passed the directions to restore the possession of a “booth” to the original allottee after 25 years of litigation. The Court has directed the Estate Officer, Chandigarh Administration shall ensure that the appellant is immediately put in possession of the premises of Booth No -186.
A bench headed by Justices Ashok Bhushan & R. Subhash Reddy has restored the judgment passed by the First Appellate Court in 1996, in favour of the original allottee, the appellant-plaintiff in the present case. It was the case of the appellant that by allotment letter dated 20.06.1972 issued by the Estate Officer, Chandigarh Administration he was allotted a ‘booth’ after he had surrendered his temporary ‘stall’.
The allotment specifically provided that appellant-plaintiff has no right to transfer his rights directly or indirectly. He was also restrained from subletting the premises or any part thereof. The building was leased out for cattle poultry feed and for no other purpose. The appellant entered into a partnership deed dated 18.12.1976 with respondent, Ved Prakash for carrying out the business of cycle repairing etc. The appellant’s case was that by notice dated 04.10.1979, the respondent dissolved the partnership and thereafter he became an employee of the appellant in the booth.
Later, the Estate Officer, Chandigarh passed an order dated 09.09.1980/15.04.1982 terminating the hire-purchase agreement of the ‘booth’ on the ground that the premises was being used in contravention of the allotment letter dated 20.06.1972. The appellant Madan Mohan Singh challenged the same before the Chief Administrator. Another application was also filed by the respondent Ved Prakash claiming to be the occupier of the premises.
The Estate Officer passed the eviction order on 09.02.1984, under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
The above order was challenged by the respondent Ved Prakash before the Additional District Judge, Chandigarh and in the same appeal the Appellant Madan Mohan also appeared. The appeal was dismissed in 1985. However, the appellate Court observed that ‘Booth’ in question belonged to the Appellant Madan Mohan Singh and the respondent, Ved Prakash was in possession as an employee of the appellant.
In another appeal which was filed by the respondent Ved Prakash against the order of the Estate Officer by which it had cancelled the Hire-Purchase agreement between the appellant and respondent, before the Chief Administrator, Chandigarh Administration. The Chief Administrator had restored the premises to the hirer-the appellant and the respondent- Ved Prakash was also held as a servant of the hirer. The appellant failed to take the possession of the Premises (the booth) had filed the Civil appeal. He had sought mandatory injunction against the defendant directing the defendant to restore the possession of the booth to the appellant.
The defendant also took the ground in his written statement that he had taken the said booth on rent from the plaintiff since 1976, on a monthly rent of Rs 450/- per month. The trial court accepted the said partnership deed.
Again, the Order of Trial Court was challenged by the appellant Madan Mohan Singh before the First Appellate Court. In 1996, by its order the First Appellate Court granted the decree of mandatory injunction to the appellant- plaintiff.
The First appellate Court had held that there was no material to come to the conclusion that the defendant was a tenant. It said that the findings of the trial court on the question of tenancy were held to be based on surmises and conjectures. It had held that there was no presumption of landlord and tenant. The First Appellate Court also noticed that the defendant had no Proof regarding the payment to the appellant and he had also not produced the account books before the Court.
Against the said order of the First Appellate Court, the defendant had filed the Second appeal which was allowed by the High Court. Aggrieved by the said order the appellant-plaintiff had moved the Supreme Court.
The Apex Court has noted in its order that the Chief Administrator had restored the allotment of the booth to hirer, Madan Mohan Singh. The Chief Administrator also after considering the arguments of the parties came to the conclusion that Ved Prakash was a servant of the hirer.
“The above observation and finding of the Chief Administrator cannot be wished-away by the defendant as irrelevant,”
-said the Apex Court.
The Top Court noted that the Chief Administrator had held that there is no justification to deprive the hirer of the Booth. In view of the order of Chief Administrator dated 13.03.1986, the appellant-plaintiff was clearly entitled to the possession and user of the Booth but when the possession was not handed over by the defendant to the appellant, he had to file the suit for mandatory injunction.
The Apex Court also held that the defendant failed to prove the tenancy to the said premises.
“The categorical finding recorded by the trial court is that the defendant failed to prove any documents pertaining to the tenancy. The tenancy is a relationship which is created between two parties. The agreement of tenancy can be both by writing or oral. Even if there is oral agreement of tenancy, the Court has to look into the circumstances and intention of the parties and other material to conclude as to whether there was any tenancy or not. The present is not a case where the defendant claimed any rent agreement,”
-said the Court.
The Supreme Court said “When the parties signed a document and entered into a partnership deed, they cannot wish away the consequences which flow from the signing of deed.”
“The plaintiff having categorically denied the tenanacy and there being no evidence with regard to the tenancy, we do not find any error in the judgment of the First Appellate Court that defendant was not a tenant of the premises. We do not find any error in the judgment of the First Appellate Court holding that defendant was not a tenant of the premises,”
-held by the Supreme Court.
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The Supreme Court said that both the trial court and the High Court have erred in not taking in consideration Clause 12 and finding of the Chief Administrator in its order dated 04.03.1986. “The finding of the Chief Administrator dated 04.03.1986 which was passed after the order of the Estate Officer cannot be wished away by the defendant nor can be ignored while deciding the question as to whether the premises were sublet to the defendant or not,” it said.
The Court directed the Estate Officer, Chandigarh Administration to ensure that the appellant is immediately put in possession of the premises of Booth No.186. “It shall be open for the appellant to take appropriate proceedings to recover the damages and mesne profit for the use of premises by the defendant,” it said.
Read the Judgment here;