Bombay High Court
Narayanlal Bansilal Deceased ... vs Bright Brothers And Ors. on 7 February, 1979
JUDGMENT
V.S. Deshpande
1. These two Special Civil Applications by the tenants, are directed against the same judgment of the Appellate Bench dated 14-6-1975 in suit for eviction and arrears of rent etc., under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, thereinafter referred to as "the Rent Act").
2. A spacious godown was let out to the tenant for manufacturing plastics. The tenant had no remove the manufacturing plant to Bhandup with the increase in its volume of work in terms of the policy of the Municipal Corporation. The plastic manufacturing process through a sister concern, is still carried on by the tenant in a part of the premises and the remaining part is used for office and storing purposes. Some permanent structures are, also alleged to have been raised by the tenant for this purpose. Eviction is claimed, therefore, on grounds, amongst others, of the tenant having (1) changed the purpose of the users and (2) raised permanent structures on the premises, making themselves liable to eviction under section 13(1)(a) and (b) of the Rent Act. Both the courts concurrently found that the tenant had raised such permanent structure and as such was liable to eviction under section 13(1)(b) of the Rent Act. On the question of the change of the purpose of user, the two courts differed in their conclusions. According to the trial Court, using the premises incidentally for officers and storing, after transfer of its manufacturing plant to Bhandup did not involve any change of purpose of the lease. The Appellate Bench, on the other hand, held that the premises are dominently and mainly used for offices and storing in contravention of the terms of the lease and as such the tenant had committed a breach of Clause (o) of section 108 of the Transfer of Property Act by the change of the purpose of the user. Further the question of such change of user needs be destructive or injurious does not appear to have been raised. The Appellate Court thus held tenant liable to eviction both under Clauses (a) and (b) of section 13(1) of the Act and thus confirmed the decree for eviction. Landlord's claim for rent and other monetary dues is upheld in part and rejected in part.
3. When the matter was taken up for hearing before one of us (Naik, J.), Mr. Advani the learned Advocate for the tenant contended that mere change of the purpose of user does not amount to breach of Clause (o) of section 108 of the Transfer of Property Act to attract liability for eviction under section 13(1)(a) of the Rent Act unless such change is found to be destructive or injurious to the property. In support of this, he relied on the judgment of Chandurkar, J. in the case of Dattatray R. Sankpal v. Gulabrao P. Bhovale, dated 15th October, 1977 in Special Civil Application No. 89 of 1976. The learned Judge followed the judgment of V.S. Desai, J. dated 23-8-1968 in Ishwaribai Jamnadas v. Narottamdas V. Mody, in Special Civil Application No. 431 of 1966. The landlord on the other hand relied on the judgment of Rege, J. in the case of Chhagan Chhotu Dalwale v. Kanakmal Bhagwandas, dated 17th January, 1975 in Special Civil Application No. 1559 of 1971 and contended that prohibited change of user need not be destructive or injurious to the leased property to attract the said Clause (o) and section 13(1)(a) of the Rent Act. Hence this reference to the Division Bench to resolve this conflict.
4. Section 13(1)(a) may be conveniently quoted at this stage :
"13(1) Notwithstanding anything contained in this Act but subject to the provisions of sections 15 and 15-A, a landlord shall be entitled to recover possession of any premises if the Court is satisfied. (a) that the tenant has committed any act contrary to the provisions of Clause (o) of section 108 of the Transfer of Property Act, 1882."
The only question is whether the tenant commit's a breach of Clause (o) by merely changing the purpose of the user of the leased premises, or no such breach can be said to have been committed unless such change of user is proved to be 'destructed or permanently injurious' to the leased property.
5. Clause (o) of section 108 of the Transfer of Property Act, breach of which renders the tenant so liable to eviction, reads as follows :
"the lessee may use the property and its products (in any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased or fell or sell timber, pull down or damage buildings belonging to the lessor or work mines or quarries not open when the lease was granted, or commit an other act which is destructive or permanently injurious thereto."
6. Section 108 deals with rights and liabilities of both the lessor and lessee. This clause is aimed at protecting the leased property from waste or damage and, also some other interests of the landlord therein by placing restrictions on certain acts of the user of the property. The clause consists of two parts divided by the semi colon. First part contains a positive injunction requiring the tenant to use the property with prudence as if it were his own. Second part contains negative injunctions as to the acts of user. Firstly, he is prohibited from using the property for a purpose other than that for which it was leased. Secondly, he is prohibited from felling or selling its timber. Thirdly, he is prohibited from pulling down or damaging the buildings of the lessors. Fourthly, he is prohibited from working mines or quarries, which were not open when the lease was granted. Fifthly, he is prohibited from committing any other act which is destructive or permanently injurious thereto. Answer to the question posed earlier clearly depends on whether concluding words of Clause (o) viz. "which is destructive or permanently injurious" thereto govern and qualify only the proceeding fifth act or the said words also govern and qualify earlier other four prohibited acts.
7. Mr. Thacker, learned Advocate appearing for the landlords, contend that concluding words of Clause (o) are aimed at furnishing general description of the residuary fifth unspecified prohibited category of acts and it can have no bearing or controlling effect on the earlier four such specified categories. He relied on the judgment of Rege, J. in Chhagan's case (supra). In the case before Rege, J. the tenant had started business in 3/4th of the portion of the house let out for residential purpose to him. There was no evidence that such a change was destructive or injurious to the property. The learned judge distinguished the earlier decision of V.B. Desai, J. in Ishwaribai's case and held that mere such change of purpose of the user amounted to the breach of Clause (o) and attracted section 13(1)(a) of the Rent Act.
8. It will, be, firstly, noticed that the five categories of the prohibited acts under the second part of the Clause (o) are distinct in nature and independent of each other. Secondly, first four categories are self-descriptive. The conducting words are obviously intended to furnish identity of the fifth category of undescribed "any other act". Thirdly, all the five categories of these acts are separated by comas and disjunctive "Or" restricting the application of the descriptive concluding wording to the last category and disconnecting it from the earlier other four categories.
9. Fourthly and more importantly the concluding words do not fit in with the description of either of these earlier four categories. Then mere change of user by itself ordinarily cannot involve any destructive and injurious, effect on the property. In case it involves alteration or removal of structures, the same will be covered by third category of pulling down or damaging the property. This strongly militates against the concluding words having any reference to the first prohibited category of acts of change of user. The second prohibited category cover both the acts viz. of felling and selling the timber. The act of falling the timber conceivably in a given case may amount to be destructive or permanently injurious to the property leased. It is, however, difficult to conceive how the act of selling, which must necessarily follow the act of felling, by itself can ever be so destructive or permanently injurious to the property. Thus it is difficult to see, any relevance or occasion, to qualify the prohibition as to pulling down or damaging the buildings by the expression "destructive or permanently injurious" when the same happens to be merely its specie in minor from and inclusive in the qualifying genius itself. This expression equally sounds out of tune with the prohibition against working mines which were not open at the time of lease. The concluding portion of the clause is thus wholly inapt to the context of the first four categories of the prohibition acts.
10. Clause (k) of section 13(1) to which our attention was drawn by Mr. Advani an also furnish some clue in this behalf. This clause enables the landlords to evict his tenant when the premises are found to have been not used by him continuously for six months, without any reasonable cause. However, change of purpose of the user from the one for which the lease is granted, also amounts to non-user in terms of this clause. We have already seen how one of the injunctions in Clause (o) of the Transfer of Property Act, breach of which makes the tenant liable to eviction under Clause (a) of this very section 13(1) also prevents the tenant from changing the purpose of user, of the premises. The requirements of the change of the purpose of the user, unless Clause (k) cannot be different from the one made so actionable under Clause (a) of the same sub-section of section 13. And yet Clause (k) neither incorporates Clause (o) of section 106 of the Transfer of Property Act, nor its concluding portion, nor any thing analogous to it, to make it an ingredient of the objectionable change of user. In other words, liability of the tenant of eviction under Clause (k) in the event of his having changed the purpose of the user, is not contemplated to be conditional on such change being destructive or injurious in any manner. To assume it to be so under Clause (a) of section 13(1) under the suggested interpretation of Clause (o) of section 108 of the Transfer of Property Act, will introduce an anomaly and make Clause (k) of section 13(1) of the Rent Act, unworkable and virtually a dead letter where the landlord happens to rely on the same set of acts for eviction.
11. Ishwaribai's case (supra) can be illustrative of this anomy. The Appellate Court therein had granted decree for eviction by reference to both Clause (a) and (k) of section 13(1) of the Rent Act on the finding of there being a change of the purpose of the user. Supposing it were a case of change of user from residential to the commercial purpose, it could have been actionable under Clause (k) of section 13(1) of the Rent Act, even according to Desai, J.'s view, of the change of user, and yet not actionable under Clause (o) of section 13(1) of the Rent Act for want of proof of its being destructive or injurious in terms of his interpretation of Clause (o). Tenant could defeat the landlord's claim any insisting that the facts attract Clause (a) and not (k) of section 13(1) of the Rent Act. Legislature could never have intended to introduce such self-defeating conceptions. It will be reasonable to assume that, while enacting Clauses (a) and (k) of section 13(1) of the Rent Act. Legislature also had identical requirements of the change of the purpose of the user in view. This fortifies our interpretation of Clause (o) of section 108 of the Rent Act and runs counter to the one suggested by Mr. Advani.
12. It is thus clear to us that the concluding words of the clause, can have only reference and governing or qualifying effect, on the residuary prohibitory category just preceding the said words. So looked at, the prohibited act of using the property for some other purpose than for what it was leased out, by itself will constitute the breach of Clause (o) without being destructive or permanently injurious thereto. We find ourselves in agreement with th views of Rege, J. in this behalf.
13. Mr. Advani the learned Advocate for the tenant, relied on the judgment of Chandurkar, J., in Dattatray's case (supra) and also on the judgments in Keshvaji v. Sulochanabai, , UPO Naing v. Burmah Oil Co. Ltd., A.I.R. 1929 P.C. 108, Mamomad Umar v. Manilal, IX Guj.L.R. 104. Unreported judgments of Vaidya, J. in Shah Bharulal Ghashiram v. Raghunath Parushuram Jadhav, dated 3rd April, 1972 in Special Civil Application No. 186 of 1968 and that of V.S. Desai, J. in Ishwaribal Jamnadas v. Dr. Narottamdas Mody, dated 23rd August, 1968, in Special Civil Application No. 431 of 1966 distinguished by Rege, J. in Chhagan's case (supra).
14. Coming first to the Privy Council decision in UPO Naing's case, whose decisions are still entitled to great weight, the plaintiff, appellant therein, had himself obtained the lease of the property from the Government for winning oil therefrom. He in turn assigned his leasehold rights to the defendant on payment of certain royalties to him. The process of sinking oil wells gave rise to the release of the gas and the same was availed of by the defendant for his benefit without paying any additional compensation. The appellant, therefore, filed a suit for such compensation for this uncontemplated use of the gas. The trial Court decreed the suit but the High Court dismissed its holding that the plaintiff himself did not have any property in the gas, his lease being confined to the rights in the oil. The Privy Council also affirmed this finding in appeal. Appellant alternatively appears to have also claimed compensation on the basis of the breach of the prohibitions under Clause (o) of section 108 of the Act. This claim was also over-ruled in the following words.
"A further argument was based upon the provisions of section 108 sub-section (o), T.P., Act, 1882, which provides that the lessee of property must not use the property for a purpose other than that for which it was leased. In their Lordship's judgment is not necessary exhaustively to discuss the limits of that provision, but there seems to be nothing inconsistent with its terms in the use of gas which is necessarily set free by reason of the sinking of the oil well for the respondents damage or any injury to the property leased. For those reasons, their Lordship's are of opinion that the appeal fails and should be dismissed with costs, and they will humbly advise his Majesty accordingly."
The law laid down in this brief but pithy passage is liable to be misunderstood if the distinction between acts of using the premises for the purpose of the lease and other incidental acts such as of using gas in the process of so using the premises for such purpose is ignored. As seen earlier, of the five prohibited acts under the second part of Clause (o), only one covers the act of using the premises for a different purpose while other prohibited acts do not involve any such change of purpose. The statement in the above passage that the gas used got "necessarily" set free in the process of sinking wells for winning oil, is intended to emphasis that this process of using the gas, far from involving any change of the purpose of the lease is the inevitable result of using it for the agreed purpose. This is virtually rejecting the appellants alternate case that use of gas involved any change of the purpose of the lease and so amounted to the breach of the clause. And yet the lease did not contemplate the act of production or the use of the gas. The act could at best fall under the residuary fifty category of the clause. But it cannot be held to have been prohibited unless it is found to be destructive or injurious. It is in this content that the use of the gas was found, not to be inconsistent with the term of the clause, taking note of its not being damaging or injuries. It would be wrong to assume that this passage seeks to indicate the scope of this clause beyond what is stated above, when, as expressly indicated, the Privy Council found 'it unnecessary' to exhaustively 'discuss the limits of that provisions'. In facts, the finding as to the use of gas not being injurious or damaging, made it unnecessary for the Privy Council to further consider if assumed change of purpose, without its being so damaging and injuries would or would not amount to breach of the said Clause (o).
15. In Ishvaribai's case (supra) it was found that the tenant was using the premises for storing the motor can instead of the cotton bales for which purpose, the lease was granted. The question was if this involved any change of the purpose of the user for which lease was granted and such a change of user amounted to breach of Clause (o) of section 108 of the Transfer of Property Act to attract Clause (a) as also Clause (k) of section 13(1) of the Rent Act. V.S. Desai, J. set aside the decree for eviction passed by the Appellate Court holding that the act did not involve any change of purpose of the user and therefore, neither of the Clause (a) or (k) or section 13(1) of the Rent Act was attracted. The learned Judge observed.
"Under section 6 of the Rent Act, the broad classes of purposes or the users of the premises to which the rented premises may be put, are specified as for residence, education, business, trade or storage. The actionable ground contemplated by section 13(1)(a) by its reference to Clause (o) of section 108 of the Transfer of Property Act is a change of purpose or user from one kind of user to another from amongst the several users as are specified in section 6 of the Rent Act, except the cases whereby a specific restrictive convenient in the lease the user is still further restricted".
16. With his finding, there was the end of the case. Even so the learned Judge did make the following observations preceding the above passage.
"The change of purpose contemplated by Clause (o) of section 108 of the Transfer of Property Act is change from user of one kind to another involving waste, alterations, destructions, or damage of the property, etc. or amounting to an act of nuisance. A change of user, which does not involve any such element, will not amount to a breach of section 108(o) of the Transfer of Property Act".
17. The passage no doubt supports Mr. Advani and does furnish good basis for the contrary view. This passage assumes, as if all these objections acts, govern the injunction against using the property for any purpose other than for which the lease thereof was granted. Such an assumption is ill founded being in total disregard of the nature of the different such Acts. Their different effect and their shades and the degree of evils involved therein. Broadly speaking, Clause (o) does appear to have been aimed at preventing waste, destruction of the leased property and acts of nuisance against the same. But on the face of it each clause deals with different act involving different degree of waste or damage. There is also no warrant to mesne that the clause is not aimed at achieving something also, when the words to do indicate. We have already analysed this provision earlier and indicated how the second part of it deals with different and independent categories of prohibited acts. These prohibitory Acts can be further divided into two categories of prohibited Acts. These prohibitory Acts can be further divided into two categories. Part of second category, and third and fifth categories seek to preserve the integrity of the property against waste and damage, while first, fourth and part of the second categories appear to have been aimed at preventing enrichment of the tenant at the cost of the landlord. The above observations of the learned Judge may be true partly with regard to the first category, but not necessarily true of the second.
18. With respect, this does not, thus appear to us to be correct interpretation of Clause (o). We are unable to trace any words in this clause to support the conclusion of the learned Judge that the change of the purpose of the user contemplated under this clause, necessarily involves any waste, alteration, destruction or damage, or act of nuisance and that any change of the purpose of the user without any such element, cannot amount to breach of the clause. Prevention of waste and destruction of the leased property may be one of the many legislative intents. However, there is no warrant or basis to excluded lesser evils such as, preventing mere change of the purpose of user, selling of the timber, and working hidden mines, involving no such element of waste, etc. necessarily from the legislative intent when the express wording, as analysed above so indicates.
19. Some support to these observations can be traced in the commentary on Transfer of Property Act by Mulla's (sixth edition) under heading of 'Waste' at page 727 and the heading 'Diversion to different use' at page 778. Firstly these observation appear to have been based on English cases, which is turn are based on principles of common law and equity. It is well settled that these cases are of limited help in the interpretation of the positive provision in any Indian Act.
20. Reliance on the judgment of Wailkinson v. Regers, 1864(2) D.B.C.J. & D. 62, placed by the learned author does not appear to be strictly correct. In junction against the tenant's defendant was refused in this case not because the breach by the tenant was technical but because the tenant was not at all found guilty of any breach of the convenient, viz. of not using the premises for shop premises. The proviso to the relevant clause enable the tenant to use it for shop purpose also if any other neighbouring tenant started to using his premises for such commercial purposes. It was found that neighbouring tenant did use his premises for such shop without effecting structural changes, though by the time of the action such use was stopped. Our reading of the Privy Council decision in UPO Naing's case also differs from the learned authorities for the reasons discussed.
21. Mr. Advani has not drawn our attention to any English or Indian authority or principles to support the above view of the learned Judges. We have already seen how the finding of there being no change of the purpose of user, made it really unnecessary for the learned Judge to further consider, if its being destructive or permanently injurious was indispensable ingredient of the contemplated breach of Clause (o) and concentrate his mind, for that purpose, on whether the concluding words of the clause containing this ingredient has any qualifying effect thereon or not. In fact the question of the said words governing only fifth or all the five prohibited Acts was not posed before him at all. With respect, we do not think that above passage in Desai, J.'s judgment is the correct interpretation of the clause.
22. Mr. Advani contends that terms of Clause (o) of section 108 of the T.P. Act cannot be divorced from the content of the Rent Act and read in isolation. According to him, words of this clause, must get its colour from the contents of section 13(1) of the Rent Act, in the Clause (o) of which this clause is virtually incorporated. The contention in such a broad form cannot be accepted. The Transfer of Property Act was enacted in 1882 at a time when the Rent Act was not even in sight. The Rent Act passed in 1947 can have no bearing on the question whether concluding words of above Clause (o) govern all the earlier parts or only the preceding part. It shall have to be determined independently of the Rent Act, by reference to the overall scheme however, may have some bearing in moulding the consumption of what may or may not amount to change of the purpose of the user and Desai, J.'s interpretation thereof in Ishwaribai's case appears to us to be plausible and reasonable, though we are not called upon to decide it in this case.
23. In Dattatraya's case also the learned Judge found that, by running plastic business at the premises instead of manufacturing toys from fret work, for which the lease was expressly granted, the tenant had not changed the purpose of the user. Even so, the learned Judge proceeded to quote the Clause (o) of the Transfer of Property Act and hold that the change of the purpose of the user does not amount to breach of Clause (o) unless it is found to be destructive or injurious. In this view of his, he relied on the above passage quoted from Ishwaribai's judgment. Every word said by us about Ishwaribai's case is true of the judgment to Dattatraya's case.
24. In Shah Bharulal's case, the roof of the front portion and modpatt and Vass were cut by the tenant, while in Keshavji's case the tenant had substituted a termite ridden beam by a new one. Both Acts fell under the residuary fifty category of the sets of Clause (o) and could not amount to breach without their being destructive or injuries. With respect, conclusions were correct, but reference to judgments discussed earlier appears to us to have been uncalled for. The judgment of the learned Chief Justice Chagla dated 16th July, 1968 in Special Civil Application No. 431 of 1968 referred in Keshavji's case rather than support Desai, J's view fortifies the view of Rege, J. Tenant in that case had obtained a lease for residential purpose. He however, started running a Boarding and Lodging House there. The learned Chief Justice upheld the decree for eviction passed against the tenant. He relies on the first part of Clause (o) of section 108 requiring the tenant to use the leased premises in the same manner in which a prudent persons would use his own property. He secondly, referred to the first prohibited Act with regard to the change of the purpose of the user. The learned Chief Justice then observed that 'rest of sub-section is not material'. Implication is that the concluding words of the clause can also not have any controlling effect on prohibition against user of the premises for different purpose. This is what Rege, J. has held.
25. The case of Mahamad Umar v. Manilal (supra) is the only case in which the question was passed in the manner in which it arise before us. A learned Single Judge of the Gujarat High Court did hold that concluding words of Clause (o) governed all five prohibited, categories of Acts. It is enough to notice that, as noted by the learned Judge himself, the decision of the question was unnecessary in the case before him. Secondly, he relied on certain paragraphs from Mulla's Commentary on Transfer of Property Act and the judgment of the Privy Council in UPO Naing's case. We have indicated how reliance thereon is displaced. Subsequently another learned Single Judge of the same High Court recorded a strong dissent from this view, in the case of Abdulshed Moulvi Abdulsamad v. Gulamniad Gulamnabai, .
26. We have no hesitation, therefore, in preferring the view of Rege, J. to the view of Desai, J. and other learned Judges who followed him. In our opinion, mere act of change of the purpose of the user, even if it does not happened to be destructive or permanently injurious to the leased property would amount to breach of Clause (o) and actionable under section 13(1)(a) of the Rent Act.
27. Reference answered accordingly.
28. Costs to abide by result.
29. The case will be remitted to the Single Judge for disposal in accordance with law.