Civil Appeal No 10043 of 1983
From the Judgment and Order dated 751982 of the Cal cutta High Court in Appellate Decree TNo
673 of 1982
AK Ganguli BS Chauhan SC Ghosh and T Sridharan for the Appellant
Gobind Mukhoty Arvind Minocha and Mrs Veena Minocha for the Respondent
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
This is an appeal by special leave from the judgment and order of the High Court of Calcutta dated the 7th May 1982 dismissing the second appeal and passing a decree for eviction
The High Court refused to interfere with the concurrent findings of facts inter alia on sub letting
The main question here in this appeal is whether in fact there was any sub letting
The respondent is the owner of the premises No P 71 CIT Road Scheme No iv M Calcutta and the appellant was a tenant at a monthly rent of Rs200 plus service charge Rs50 according to English Calendar Month
It is alleged that the appellant was in arrear of rent for long time
For the purpose of this appeal as the decree was not passed on the ground of default it is not necessary to go into detail regarding the correctness of that allegation
The ground on which the suit proceeded and which resulted in this appeal is whether the delendant had sublet or parted with the possession of two rooms out of four to Lalit Mohan Biswas and he has established tailoring business there
Therefore sub letting without the written consent of the landlord either the whole or part of the building in violation of section 683 131a of West Bengal Premises Act 1956 hereinafter called the Rent Act  and user for non residential purpose of tailoring the premises let out for residential purposes in violation of section 131h of the Rent Act are two offences alleged against the tenant
There was one Mritunjoy Mukherjee who opened a Music School there for more than four months prior thereto without the written consent of the landlord
Mr Mritunjoy Mukherjee is no longer in the pic ture and his case was not pressed any further
The main contention was whether the premises in question was sub let to Lalit Mohan Biswas who had established some tailoring business or not
There was evidence before the learned trial court and it is material in view of the con tentions urged on the question of sub letting to set out the same of the plaintiff the respondent herein who gave evidence and stated as under I am the owner of the suit property
The defendant is a tenant at a monthly rental of Rs250 payable according to English Calendar Month
The defendant is a defaulter since July 1977
The defendant sub let one room to Lalit Mohan Biswas in December 1976
The sub tenant has established tailoring business there
Customers visit his tailoring shop
Another room was sub let to Mritunjoy Mukher jee who opened a Music School there
 It was further stated that notice had been given for terminating the tenancy
It was further stated in the evidence as under My wife Lilabati Chakraborty is the owner of the suit property
I do not know how much rent is collected by the defendant from the sub tenants
I am not aware of the profits made by the sub tenant
The defendants pay sum of
Rs200 plus Rs 50 as service charge
The defendant paid the arrear rents by instal ments
I am at present receiving rents from the defendant
It is not a fact that Lalit Mohan Biswas is not a sub tenant and trades on behalf of the defendant
 It appears that a suggestion was made that Lalit Mohan Biswas was not a sub tenant which was denied by the wit ness
There was however no suggestion that Lalit Mohan Biswas was in exclusive possession of any part of the prem ises in question
Sree Lalit Mohan Biswas did not give evidence in the witness box
684 There was also evidence that a sewing machine was used by Lalit Mohan Biswas who owned the machine was not clear
From this evidence as above the learned trial judge came to the conclusion that there was evidence of a sewing machine being used
The learned judge also came to the conclusion that Lalit Mohan Biswas wasoccupying the suit premises for tailoring business and he further came to the conclusion that it was for defendant to establish that Lalit Mohan Biswas had not been inducted as a sub tenant the moment his physical presence in the house was proved
According to learned trial judge the character and the conduct of the tenant suggested that he had sub let portion of the premises and it is for the tenant to prove that he had given shelter to a helpless man
It was further in evidence that Lalit Mohan Biswas was doing some sewing work for the tenant and he was also doing some independent works for others and it did come out in the evidence that he used to take meals with the tenant
The evidence of the tenant was that Lalit Mohan Biswas was allowed to occupy part of the premises due to pity and charity and further he was sewing in the house without any rent
He did some work for the tenant and his family members and for others
On this evidence the learned trial judge in the absence of the evidence of Lalit Mohan Biswas drew the inference that there was sub tenancy in favour of Lalit Biswas
There was an appeal to the Addition al District Judge Alipore and he discussed the evidence and upheld the said finding
There was a further appeal before the High Court and the High Court also did not interfere with the findings of the Courts below
In the premises the question arises whether the High Court was right in law
It is true that in second appeal no court and in the instant case the High Court should not interfere with the concurrent findings of facts
It was rightly pointed out and it is well settled law by this Court not to interfere with the concurrent findings of facts
This was reiterated by this Court in Smt
Krishnawati vs Shri Hans Raj  where this Court observed that on the concurrent finding of the fact where no question of law arises the High Court should not interfere
It was further high lighted before us that the question of sub tenancy in a situation like the present is an inference drawn from a certain conduct
But in order to prove tenancy or sub tenancy two ingredients had to be established first ly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must be in lieu of payment of some compensation or rent
In Associated Hotels of India Ltd Delhi vs SB Sardar Ranjit Singh  this Court reiterated that on the question whether the occupier of a separate apartment in a 685 premises was a licensee or a tenant the test was whether the landlord had retained control over the apartment
Nor mally an occupier of an apartment in a hotel was in the position of licensee as the hotel keeper retains the general control of the hotel including the apartment
But it is not a necessary inference of law that the occupier of an apart ment in a hotel is a tenant
A hotel keeper may run a first class hotel without sub letting any part of it
Where the hotel keeper retained no control over the apartment the occupier was in the position of a tenant
The question in this case is whether the alleged sub tenant was in exclusive possession of the part of the prem ises and whether the tenant had retained no control over that part of the premises
There is no evidence on the fact that the alleged sub tenant was in exclusive occupation of any part of the premises over which the tenant had not retained any control at all
On this aspect neither was there any pleading nor any evidence at all
No court gave any finding on this aspect at all
In that view of the matter one essential ingredient necessary for a finding the case of sub tenancy has not been proved
If that is so the trial court the first appellate court and the High Court were in error in holding that the sub tenancy was proved
Our attention is drawn to this Court s decision in Sachindra Nath Shah vs Santosh Kumar Bhattacharya AIR where paying guests were occupying a portion of the premises this Court reiterated that finding of fact regarding those persons would not be interfered with
But where the finding has been arrived at without finding the basic facts it cannot be sustained
There is another aspect of the matter ie the payment of rent for sub tenancy or consideration for sub tenancy
Undoubtedly the alleged sub tenant rendered certain services to the tenant but can the same be considered as rent under the Rent Act Section 141 of the said Act prohibits sub tenancy and it was pointed out before us that receipt of service in lieu of the occupation of a part of the premises as a Iicensee did not amount to payment or receipt of rent
Sub tenancy as such is not defined in the Act
The sub tenancy under the is governed by section 105 of the said Act and it defines sub leases as a lease of immovable property as a transfer of right to enjoy such property made for a certain time express or implied
or in perpetuity in consideration of a price paid or promised or of money a share of crops service or any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms
686 There is no clear evidence in the instant case as to what kind of sewing Lalit Mohan Biswas used to perform for the tenant on the other hand he did perform some work which could be considered to be in lieu of his right to occupy the portion of the premises if so this may be sub lease in terms of section 105 of the 
But is it in lieu of consideration as contemplated under the Rent Act
The question is whether in the context of the provisions of Rent Act can services be consideration for sub tenancy In other words whether in view of the provisions of the Rent Act services can be a good or any consideration for sub lease is the question
We are of the opinion that it cannot be
See in this connection section 4 of the Rent Act and the different sub sections of that section section 5 especially section 5b
These enjoin that excess over fair rent to be irrecoverable put restric tion on claim demand or receipt of premium or other consid eration
Section 8 is also relevant in this connection see also section 9
Sections 2h and 2d also indicate money consideration
Section 13j and section 13i cannot be anything but money
Section 171 and section 172 and 17B also militate against the concept that services in lieu of money can be consideration
It is however not possible to accept that services in lieu of the right of occupation would amount to receipt of rent under the Rent Act to create sub tenancy
This frustrates and defeats the purpose of the Rent Act
Take for instance a case where a person renders services to the landlord in lieu of rent but this will completely erode the provisions of Rent Act and defeat the claims for services
Work performed by sub tenants and the wages paid by doing certain kind of services may be in lieu of rent as in the case of Agricultural Tenancies
But in urban area in civilized time that cannot be so
The Rent Act 1956 cannot be fitted into a position where the serv ices can be rendered in exchange of the right of occupation
This question arose in England in the case of Barnes  Another vs Barratt and another
 There the defendants occupied part of the house which was let to C
The defendants had exclusive use of three rooms and a kitchen while C had similar use of two rooms
The bathroom was shared
In return for their use of the above mentioned accommodation the defendants cleaned part of the house cooked for him and paid electricity gas and fuel bills for the whole of the house
On more than one occasion C refused to accept any payment of rent
The arrangement continued from 1951 until C s death in February 1969
The interests of C were then surrendered to the plaintiffs who were the landlords
The plaintiffs claimed possession of the whole house
The county court judge ruled that the defend ants were tenants within the protection of the Rent Acts and were not licensees since the services rendered by defendants according to the 687 county court judge constituted rent
The court of appeal in England held that the defendants were granted personal privilege of occupation and not tenancy
It was further held that even if there was a tenancy the Rent Acts did not apply to it because there was no agreed monetary quantifi cation of the rent nor any agreed method of quantification
Sachs LJ
observed at page 484 of the report as follows That the rendering of services can constitute rent at common law is well settled but whether it can when there has been no quantification of their value constitute rent under the Rent Acts is a different question
It was answered 45 years ago in Hornsby vs Maynard  by a Divisional Court particularly experienced in dealing with the manifold problems then regularly being raised by the Increase of Rent and Mortgage Interest Re strictions Act 1920 the Act from which so much of the later rent legislation is derived
 The Lord Justice further observed at page 485 as follows However if one turns to look at the struc ture of the Rent Acts as a whole it is equal ly clear that their provisions with regard to rent restriction can only in practice be operated if that interpretation is correct
The effective basis of the restrictions turns on there being quantified sums to which the provisions of the Acts can apply
 The structure of the Rent Act in the instant case as indicated above would also indicate that
We hold therefore that second ingredient rent agreed was not there
And as such on the case pleaded and proved there could not have been any sub tenancy
It is true that normally this Court is too reluctant to interfere with the concurrent findings of fact
But if the essential ingredients necessary for finding of a fact have not in fact been found by the Courts below then this Court is bound to examine the question where injustice or wrong is done
In Ms Variety Emporium vs VRM Mohd Ibrahim Naina  Chandrachud CJ observed that con current findings of lower courts have relevance on the question whether Supreme Court should exercise its jurisdic tion under Article 136 of the Constitution to review a particular decision
That jurisdiction has to be exercised sparingly
But that cannot mean that injustice must be perpetuated because it has been done
two or three 688 times in a case
The burden of showing that a concurrent decision of two or more courts or Tribunals is manifestly unjust lies on the appellant
But once that burden is dis charged it is not only the right but the duty of the Su preme Court to remedy the injustice
As there is no finding of exclusive possession nor of any payment of money in exchange of the user of part of the premises the finding of subletting cannot in law be upheld
As the sewing machine in question was used as a part of the apparatus of the appellant in the facts of this case it could not be said to have been used separately or independ ently and cannot constitute a change of user as defined in section 131h of the Rent Act
We are unable to sustain the findings of the High Court and the courts below on the basis of the pleadings and evidence
The appeal is therefore allowed
The judgment and order of the High Court and the Courts below are set aside and the claim for ejectment is dismissed
But the justice of the case demands increase of rent
The appellant has been in occupation of the premises in question since 1972 at a monthly rent of Rs250 per month
In the present standard this is wholly inadequate for the premises in question we direct that the appellant shall go on paying at least Rs350 per month from 1887
If the standard rent is more than Rs350 then the respondent will be at liberty to make any application for increasing the rent before the appropriate authority
Arrears if any must be paid by 31887
There will be however no order as to costs
This Court records its appreciation to Sree Amul Gan guly learned counsel for the appellant and Sree Gobind Mukhoty learned counsel for the respondent for the valuable assistance rendered to this Court
NPV Appeal allowed


Summary:
The landlord respondent filed a suit against the appel lant tenant for contravention of Section 131a of West Bengal Premises Act 1956 for sub letting without his writ ten consent by parting with the possession of two rooms out of the four rooms of the premises in question to the sub tenant who had established a tailoring business therein
The trial court held that there was evidence of a sewing machine being used that the sub tenant was occupying the suit premises for tailoring business and that it was for the tenant to establish that the sub tenant had not been induct ed as a sub tenant and that he had given shelter to a help less man
In the absence of the evidence of the sub tenant the trial court drew the inference that there was sub tenan cy
The first appellate court upheld the finding of the trial court and the High Court in appeal did not inter fere with the findings of the courts below
In the appeal before this Court it was contended that the question of sub tenancy in a situation like the present case is an inference to be drawn from a certain conduct and that the question was whether the sub tenant was in exclu sive possession of the part of the premises or whether the tenant had retained no control or that part of the premises
681 Allowing the appeal this Court HELD 1
In order to prove tenancy or sub tenancy two ingredients had to be established firstly the tenant must have exclusive right of possession or interest in the prem ises or part of the premises in question and secondly that right must be in lieu of payment of some compensation or rent
684G 21 In view of the provisions of Rent Act services cannot be consideration for sub lease
686B 22 Services in lieu of the right of occupation would not amount to receipt of rent under the Rent Act to create sub tenancy
Work performed by sub tenants and the wages paid by doing certain kind of services may be in lieu of rent as in the case of Agricultural Tenancies
But in urban area in civilised time that cannot be so
The Rent Act 1956 cannot be fitted into a position where the services can be rendered in exchange of the right of occupation
687D E 3
In the second appeal no court should interfere with the concurrent findings of fact
684F Normally this court is too reluctant to interfere with the concurrent findings of fact
But if the essential ingre dients necessary for finding of a fact have not in fact been found by the courts below then this court is bound to exam ine the question where injustice or wrong is done
That jurisdiction has to be exercised sparingly but that cannot mean that injustice must be perpetuated because it has been done two or three times in a case
The burden of showing that a concurrent decision of two or more courts or tribu nals is manifestly unjust lies on the appellant but once that burden is discharged it is not only the right but the duty of the Supreme Court to remedy the injustice
687F 688A In the instant case as there is no finding of exclusive possession nor of any payment of money in exchange of the user of the part of the premises the finding of subletting cannot in law be upheld
As the sewing machine in question was used as a part of the apparatus of the appellant in the facts of this case it could not be said to have been used separately or independently and cannot constitute a change of user as defined in Section 131h of the Rent Act
688B C Justice of the case demands increase of rent
The appellant has been in occupation since 1972 at a monthly rent of Rs250
By present 682 standards this is wholly inadequate
The appellant shall pay at least Rs350 per month from 1st August 87
If the standard rent is more then the respondent will be at liber ty to apply for increasing the rent
688D Smt
Krishnawati vs Shri Hans Raj   Associated Hotels of India Ltd Delhi vs SB Sardar Ranjit Singh   Sachindra Nath Shah vs Santosh Kumar Bhattacharya AIR 1987 SC 409 Barnes  Another vs Barratt and another and Ms Variety Emporium vs VRM Mohd Ibrahim Naina AIR 1985 SC
207 referred to