TMI Blog2004 (8) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... 961, hereinafter, the '1961 Act' or the 'Old Act', for short. It is not disputed that the premises were taken on rent under Lease Deed dated 16.12.1968 executed by Jugraj, father of Indrachand. The business in the name and style of M/s Mahendra Saree Emporium was always conducted by Indrachand, who was minor on 16.12.1968 when the tenancy commenced. Later the business has been converted into a partnership business. Indrachand's two brothers, one brother's wife and one uncle's son are included in the partnership. According to the landlord, the tenant has unlawfully sublet the premises. According to him, the premises were for an individual's business and entering into partnership amounts to a ground for eviction under Section 21(1)(f) of the 1961 Act which provides for the tenant being evicted if the tenant has unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein . The learned Rent Controller found the ground for eviction not made out and directed the eviction petition to be dismissed. The landlord preferred a revision under sub-Section (1) of Section 50 of the 1961 Act. A learned Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act does not apply shall as from the date of commencement of the Act stand abated. (3) Except as otherwise provided in section 69 and in sub-section (2) of this section, provisions of section 6 of the Karnataka General Clauses Act, 1899 (Karnataka Act III of 1899), shall so far as may be applicable in respect of repeal of the said enactment, and sections 8 and 24 of the said Act shall be applicable as if the said enactment had been repealed and re-enacted by this Act. It is not disputed that the area of the suit premises, which are non-residential in nature, exceeds 14 sq.metres and, therefore, in view of the provisions contained in clause (g) of sub-section (3) of Section 2 of the 1999 Act, the provisions of the 1999 Act do not apply to the suit premises. On May 1, 2002 a Bench (Coram of two) of this Court formed an opinion that if the premises would have been one to which the 1999 Act is applicable, then under Section 70(2)(b) the hearing would have continued and the case disposed of in accordance with the provisions of the New Act but that was not the case here and, therefore, the case attracted the applicability of Section 70(2)(c) and hence directed the proceedings to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders shall continue to remain available for execution in the same manner as if saved although any application for execution was not actually pending at the commencement of 1999 Act. This is the reasonable interpretation which can be placed on clause (a) of sub-Section (2) of Section 70 of the 1999 Act; else the provision runs the risk of being declared void under Article 14 of the Constitution as arbitrary and discriminatory. It will be reasonable to read clause (a) to include therein the decrees or orders passed before 31.12.1999 as pending in execution inasmuch as they were awaiting execution when the New Act came into force. (iii) All cases or proceedings other than those in which decrees or orders have already been passed or which are pending at the stage of trial, appeal or revision and which were initiated under the 1961 Act are covered by clauses (b) and (c). Such cases are divisible into two categories: a) Premises to which 1999 Act applies: The cases and proceedings initiated under the 1961 Act in respect of such premises to which the 1999 Act is also applicable, shall continue to be heard and disposed of whether at the stage of trial (subject to the provisions conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion make such interpretation more reasonable and sensible. (iv) To all such cases as are not specifically covered by Section 69 and sub-Section (2) of Section 70 of the 1999 Act, sub-Section (3) of Section 70 expressly provides for being governed by Sections 6, 8 and 24 of the Karnataka General Clauses Act, 1899. By making such provision, the legislature has saved such residuary category of cases and proceedings from the operation of the 1999 Act and allowed them to be governed by the 1961 Act. That would have been the position of law even if sub-Section (3) of Section 70 of the 1999 Act would not have been expressly enacted. The next question is as to the applicability of the provisions contained in clauses (b) and (c) of sub-section (2) of Section 70 of the New Act to the proceedings pending before this Court in exercise of the jurisdiction conferred by Article 136 of the Constitution of India. It was submitted by Shri A. Subba Rao, the learned counsel for the appellant that the expression 'cases and proceedings' should be so interpreted as to hold that on commencement of the New Act, the case itself, i.e. the proceedings for eviction of tenant, initiated by land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of India and others AIR 1987 SC 386 and the recent decision of this Court in Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675. In Surya Dev Rai's case (supra), this Court has on a review of several authorities held that any legislation subordinate to the Constitution cannot whittle down, much less take away the jurisdiction and powers conferred on the constitutional courts of the country. Shri A. Subba Rao, the learned counsel for the appellant, submitted that Section 70 of the New Act legislatively enacts the doctrine of statutory abatement as distinguished from abatement of civil proceedings by death or otherwise caused by an event or happening which is non-statutory. Reliance was placed on a series of four decisions, namely, Ram Adhar Singh Vs. Ramroop Singh and others (1968) 2 SCR 95, Chattar Singh and others Vs. Thakur Prasad Singh (1975) 4 SCC 457, Satyanarayan Prasad Sah and others Vs. State of Bihar and another (1980) Supp. SCC 474 and Mst. Bibi Rahmani Khatoon and others Vs. Harkoo Gope and others (1981) 3 SCC 173. All these cases deal with statutory abatement consequent upon a notification under the State Consolidation of Holding legislation having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court under Section 13A(a) of the Act. It was further held that in view of the connotation of the word proceeding as given under the Explanation to Section 13A it is impermissible to extend the meaning of the word proceeding to include an application for special leave under Article 136 of the Constitution. The collocation of the words, suit, appeal or application for revision in the Explanation to denote proceeding would go to show that suits, regular appeals therefrom, as provided under the ordinary law, and applications for revision alone are intended. It is inconceivable that if the legislature had intended to include within the ambit of proceeding an application for special leave under Article 136 of the Constitution it would have omitted to mention it in express terms. Their Lordships opined that under the scheme of the Act it was reasonable to hold that the legislature clearly intended to include only the hierarchy of appeals under the Civil Procedure Code and not an appeal or a petition under Article 136 of the Constitution. Fazal Ali, J., in his concurring opinion, held that if the intention was to extend the benefit to appeals for special leave it should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lease is sine qua non of a lease. A sub-lease would imply parting with by the tenant of a right to enjoy such property in favour of his sub- tenant. Different types of phraseology are employed by different State Legislatures making provision for eviction on the ground of sub-letting. Under Section 21(1)(f) of the Old Act, the phraseology employed is quite wide. It embraces within its scope sub-letting of the whole or part of the premises as also assignment or transfer in any other manner of the lessee's interest in the tenancy premises. The exact nature of transaction entered into or arrangement or understanding arrived at between the tenant and alleged sub-tenant may not be in the knowledge of the landlord and such a transaction being unlawful would obviously be entered into in secrecy depriving the owner-landlord of the means of ascertaining the facts about the same. However still, the Rent Control Legislation being protective for the tenant and eviction being not permissible except on the availability of ground therefor having been made out to the satisfaction of the Court or the Controller the burden of proving the availability of the ground is cast on the landlord, i.e. t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the constitution of the firm of which Meghraj continued to be a partner, an inference as to subletting could not be drawn in the absence of further evidence having been adduced to establish subletting. In Helper Girdharbhai Vs. Saiyed Mohmad Mirasaheb Kadri Ors. (1987) 3 SCR 289, the tenant had entered into a partnership and the firm was carrying on business in the tenancy premises. This Court held that if there was a partnership firm of which the appellant was a partner as a tenant, the same would not amount to sub-letting leading to forfeiture of the tenancy; for there cannot be a sub-letting unless the lessee parted with the legal possession. The mere fact that another person is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease. Thus, the thrust is, as laid down by this Court, on finding out who is in legal possession of the premises. So long as the legal possession remains with the tenant the mere factum of the tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to sub- letting. In Parvinder Singh Vs. Renu Gautam Ors., (2004) 4 SCC 794, a thre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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