Bombay High Court
Madhukar Vishnu Sathe And Others vs Vithoba Ramji Thorat, (Since Deceased ... on 21 March, 1991
Equivalent citations: AIR1992BOM272, 1991(4)BOMCR482, AIR 1992 BOMBAY 272, 1991 BOMRC 378, (1992) 1 RENCJ 20, (1992) 1 RENCR 394, (1991) 4 BOM CR 482
ORDER
1. In this petition by the plaintiffs-landlords in their suit for eviction against the original tenant Vithoba Thorat on several grounds, submissions as regards the only ground of eviction, being one under Section 13(1)(1) of the Bombay Rents Act, have been made before me by learned Counsel appearing for them. On this position, dehors the other grounds of eviction, I will only consider the said ground of eviction on the basis of the tenant acquiring suitable accommodation with reference to the findings recorded by the fact finding Courts below.
2. The suit premises is one room tenanted to Vithoba Thorat, the predecessor-in-tit!e of the present respondents, admeasuring 10 ft. x 12 ft. with monthly rent of Rs. 10/- exclusive of permitted, increases and other cess and taxes, situate on the northern side of a building, being House No. 92/2 on City Survey No. 47, Shukrawar Peth. Pune.
3. It is the case of the plaintiffs-landlords that after the suit premises were taken on rent, two properties were purchased by the tenant Vithoba Thorat in Shukrawar Peth. It is contended that the tenant was not at all requiring the suit premises. Vithoba Thorat was doing business on a large scale. It is contended that the new premises were let out for residence partly and the remaining portion was given to the tenants who were already in occupation thereof be-fore the construction. The plaintiff claimed possession of the suit premises under the provisions of Section 13(1)(1) of the Bombay Rents Act on the ground that the tenant had acquired vacant possession of or had been allotted a suitable residence.
4. The two Courts have recorded concurrent finding that the suit premises had been used for business and as such is business premises. A positive finding is recorded by the trial Court in para 10 of its judgment that the suit premises was not for residence, but for office. Similarly, the appellate Court has endorsed the said finding by observing that the tenant and thereafter his successor-in-title the present respondents have been using the premises for the purpose of placing some of their subordinates or Clerks entrusted with the duty of writing or maintaining the accounts and the like. It is observed by both the Courts in such manner that the use of the suit premises is in connection with the business of brokerage and for such business the room is used for writing accounts by the employees of the said business concern.
5. The trial Court with reference to issue No. 6 which is the relevant issue for the purpose has recorded a positive finding in favour of the plaintiffs of the tenant having acquired suitable premises elsewhere for residence and for business and thereby has come to the conclusion that the plaintiffs are entitled to get possession on the said ground of eviction under Section 13(1)(1) of the Bombay Rents Act.
6. Proceeding on the basis that the premises is a business premises, the appellate Court relying upon the provisions of Section 25 of the Bombay Rents Act has allowed the appeal on the reasoning that the premises in possession of the tenant being residential premises granting a decree with regard to business premises would be in violation of Section 25 of the Bombay Rents Act.
7. The petitioners-landlords have preferred this petition under Article 227 of the Constitution of India challenging this reversal of the decree by the appellate Court.
8. Shri Bhadti, the learned Counsel appearing in support of the petition, has submitted that the two Courts have recorded the finding that the tenants have acquired suitable accommodation, though it is residential premises. The learned Counsel submitted that there cannot be any bar of Section 25 of the Bombay Rents Act in view of the fact that in regard to the premises acquired by the respondents-tenants there is no tenancy in regard thereto. The learned Counsel submitted that the respondents are the owners of the premises acquired and, therefore, the bar contemplated by the provisions of Section 25 of the Bombay Rents Act would not come into play. The learned counsel submitted that the bar of Section 25 gets attracted with regard to the prohibition of the premises which are tenanted and not with regard to the premises which are owned by the landlord and the character of which is to originate for the first time. The learned Counsel placed reliance on the decision of this Court, Motilal M. Mehra v. Rutty Homi Bharucha, 1983 Mah LJ 25, by way of aid to interpretation in this connection.
9. On the other hand on behalf of the respondents, in reply to the above contention, the learned Counsel Smt. Agarwal submitted that on the basis of the concurrent findings that the premises is a business premises and accommodation found to have been acquired is residential accommodation, a decree for eviction would not be maintainable in view of the position that the character as regards the use of the two premises comparatively is entirely different and in that sense one cannot be considered as suitable with reference to the other. The learned Counsel submitted that on such admitted concurrent finding it would not be possible to contemplate a decree for eviction under Section 13(1)(1) of the Bombay Rents Act. In support of this submission, the learned Counsel placed reliance on two decisions of the Supreme Court (S. Kartar Singh v. Chaman Lal, ; Dr. Gopal Dass Verma v. Dr. S. K. Bharadwaj, ). In the submission of the learned Counsel these two decisions consider the true and correct meaning of word 'suitable' in the context. As a second plank of her submission the learned Counsel submitted that the ground of eviction contemplated under Section 13(1)(1) can only relate to residential premises and on true and correct interpretation of the said provision it cannot relate to business premises. The learned Counsel also sought reliance on the observations in the two decisions of the Supreme Court in support of this proposition also. The learned Counsel runner placed reliance on the decision of this Court, Sakharam Keshav Yadav v. Rajaram Ranglal Sarda (1982) 2 Ren CJ 68, in support of her submission that" the character of the premises acquired being residential and the character of the premises in dispute being non-residential no decree for eviction can be passed.
10. In reply to the contention of the learned Counsel for the respondents that the ground of eviction contemplated under Section 13(1)(1) can only relate to residential premises, reliance is placed on the Division Bench judgment of this Court, Anirudha Ramakrishna Karlekar v. Smt. Jankibai Ragunath Bedekar (1990) 1 Bom CR 247, to contend that the Division Bench in this judgment had an occasion to consider pari materia similar position as is available under Section 13(1)(c) of the Bombay Rents Act wherein, it is submitted that this Court has taken into consideration certain consequences which in its judgment would be dissastrous if on interpretation the section is restricted in its application to residential premises alone, leaving out business premises out of its compass.
11. The appellate Court has declined to grant the decree for eviction on this ground only on the basis of the effect according to it of Section 25 of the Bombay Rents Act prohibiting the change of user from non-residential to residential and residential to non-residential. The said provision states that the land lord shall not use or permit to be used for a non-residential purpose any premises which on the date of the coming into operation of this Act were used for a residential purpose. The appellate Court found difficulty of conversion of the use of the premises which have been found suitable and having been acquired by the tenants. Therefore, it becomes necessary to consider whether the bar of Section 25 can be said to be applicable to the situation at hand. In a decision considering the question of jurisdiction under Section 28 of the Bombay Rents Act. Motilal Mehra's case (1983 Mah U 25) (supra), the Court has taken into consideration the disability of the landlord with regard to the change of the use of the premises as contemplated under Section 25 of the Bombay Rents Act and in that connection it has been observed that this fastens itself only on rented premises or on premises given on licence or the person subject to the disability imposed satisfying the character of a landlord. Thus, it is clear that before proceeding to consider the application of Section 25 of the Bombay Rents Act it will have to be considered as to whether respondents would be in the position of landlords in relation to the premises in question. It would also be necessary to consider as to whether the premises in question is rented premises and it is then only it would be possible to consider whether the provisions of Section 25 of the Bombay Rents Act could be held to apply prohibiting residential character being converted into non-residential character. On the facts of this case the respondents are the owners of the premises in question. The admitted position is that the premises which is sought to be contended as suitable accommodation is in the possession of the respondents-tenants in their capacity as the owners. In any sense of the term, they cannot be considered to be landlords of the premises. The premises is not rented out. It is not in possession of anyone even under licence. The facts and the material on record is more than clear that the position is that no satisfactory material is on record in any manner to state that the premises in question can be the premises to which Section 25 of the Bombay Rents Act could at all apply. In this view of the position it is not possible to endorse the view of the appellate Court that the decree for eviction cannot be passed on the ground of there being a bar of Section 25 of the Bombay Rents Act.
12. It is really unnecessary to refer to the decision relied upon in Sakharam Yadav's case (1982 (2) Ren CJ 68) (Bom) (supra) in view of the fact that the said decision is really not germane to the question involved in this petition. Sakharam Yadav's case deals with the situation of the premises in regard to which it was observed by the appellate Court that the premises was capable of being used as a residence and in such situation this Court held that it did not attract the provisions of Section 13(1)(1) of the Bombay Renls Act. This case was relied upon by Smt. Agarwal for the proposition that because of the very character of the premises being of residential character and the character of the premises in dispute being of non-residential character a decree for eviction cannot be contemplated in view of the fact that the character of the premises in the occupation of the respondents-tenants being residential such a decree cannot be passed.
13. The case of Kartar Singh (supra) also relates to the tenant who was in occupation of the premises which was used for a composite purpose, viz. residence and profession and it is in that light the Court held that there would be no eviction merely by acquisition of vacant possession of residence elsewhere by such a tenant. In this case the position was that the premises in question was on admitted facts used for a composite purpose viz. residence and profession and it is in the context of this situation of facts the Court has come to the conclusion that in such a situation a decree for eviction cannot be passed with regard to acquiring of a suitable residential premises by the tenant elsewhere. Similar is the position in Dr. Gopal Dass's case (supra) where the tenant who was let out residential premises was using the same for residence as well as for carrying on profession and therefore in that context the Court held that the premises had been let out to a Doctor who was an ENT specialist. The premises was under a composite use and it was in that connection it was observed that the matter fell outside the necessary provisions of the Delhi and Ajmer Rent Control Act, 1952.
14. In this particular matter the suit premises is business premises, the acquired premises which has been found to be suitable is residential premises. The acquired premises is in possession of the respondents-tenants as owners thereof. The acquired premises is not tenanted premises and, therefore, is not controlled by the prohibition of Section 25 of the Bombay Rents Act.
15. This takes me to consider the real important point raised by Smt. Agarwal in this petition. Smt. Agarwal contends that on a correct and fair reading of Section 13(1)(1) of the Bombay Rents Act the phrase "acquired vacant possession of or been allotted a suitable residence" has to be read and considered as a whole. It is submitted that acquiring vacant possession or allotment thereof correlate to suitable residence and it is on this basis the learned Counsel submitted that the section could create a ground of eviction only in regard to residential premises and necessarily leaving out business premises out of the purview of the said section as a ground of eviction. At a first blush the argument is more than attractive on the face of it. But this has to be considered on the basis of internal aid in the Act. For this purpose it is necessary to consider the definition of the word "tenant" in Section 5(11) of the said Act, specifically to sub-section (c) thereof. It would be pertinent to see that sub-section (c) as it originally stood did not make any distinction with reference to residential and business premises and the status of tenancy was conferred on any member of the tenant's family residing with the tenant at the time of his death. As it was felt that this use of the word "residing" might necessarily confer the status of "a tenant" only with reference to a residential premises, sub-section (c) is amended by Maharashtra Act No. 22 of 1978 and it has been made specifically clear that any member of the tenant's family residing with the tenant, with reference to the residential premises and any member of the tenant's family using the premises for the purpose of business with reference to the business premises.
16. Additionally, one can have a look at the provisions of Section 13(1)(c) of the said Act dealing with the ground of eviction on account of nuisance and annoyance and in that connection it has been specified that anyone who is guilty of nuisance or annoyance, as specified therein, whether he is a tenant or any person residing with the tenant would email eviction of the tenant on the said ground. In this connection, the question that comes up for consideration is as to whether by the words "any person residing with the tenant" it would only apply to residential premises and not to business premises. If on the basis of this undertaking of the use of the above phrase in sub-section (c) it is understood that the said provision is applicable to only the residential premises and not to business premises it would not require any imagination to visualise the disastrous consequences. The said provision has come up for consideration before the Division Bench of this Court (C. Mookerjee, C.J. and T. D. Sugla, J.) in Anirudha's case (1990 (1) Bom CR 247) (supra) and in this connection it has been observed as follows:--
"In Section 13(1)(c) the use of word "or" is not without significance. It indicates that the default contemplated in clause (c) can be committed by the tenant as also by any other person residing with him in the event there is another person residing with the tenant. Ordinarily no person will reside in non-residential premises with the tenant. But the possibility cannot be altogether ruled out. For the second limb also, the subject is the same. In other words, the tenant can be guilty of conduct or be convicted or any person residing with the tenant may also be guilty of conduct contemplated in the sub-section and/or be convicted for the offence mentioned therein. If no person is residing with the tenant, the question of any person residing with the tenant would not arise. This is, the only reasonable interpretation which will make the sub-section workable. It may not be out of place to mention that just as a tenant is entitled to peaceful and quiet possession, he is also obliged to behave in a manner so as to ensure and not disturb peaceful and quiet possession of the landlord or the landlady. The purpose of section 13(1)(c) is to oblige the tenant not to disturb the peaceful and quiet possession of other tenants and the landlady. Therefore, if it is held that the provision of Section 13(1)(c) applied only to residential premises it would result in disastrous consequences inasmuch as the tenant of a non-residential premises will have a licence to commit any nuisance or annoyance to the adjoining or neighbouring occupiers with impunity whereas a tenant of residential premises would not be able to do so without the penalty of eviction."
It is in this context this Court in the said case has held that the provisions of Section 13(1)(e) are applicable to residential as well as non-residential premises.
17. The above two aspects are more important by way of aid in considering the provisions of Section 13(1)(1) of the Act. Section 13 of the Act relates to the rights of the landlord to recover possession of the premises on various grounds of eviction. Section 13(1)(c) is one of such grounds where similar word is used with regard to the tenant or any person residing with the tenant. Section 13(1)(1) contemplates to situations and| they are of acquiring of premises and allotment of premises. Acquiring of premises is qualified by vacant possession and the other possibility is on the basis of allotment to the tenant. The use of the word "or" cannot be said to be a formality in the sense that on reading the provisions of the said section it is more than clear that it postulates two modes in relation to the premises given to the tenant. Apart from these two modes, the emphasis is with regard to the character of the premises and it is made as a condition to be satisfied that such premises should be suitable. Allotment that is contemplated in the said section is the allotment of residential premises. Thus, it is more than clear that it is difficult to accept the submission of the learned counsel that the ground of eviction is available only with regard to residential premises. Added to this is the presumption of the wisdom of the Legislature. The Legislature would never intend what would be a disastrous consequences. Akin to the consequences already feared out by this Court in regard to the provisions of Section 13(1)(c) it will have to be said that if it is interpreted that the section is only making the ground available with reference to residential premises, those who are concerned with the business premises would be totally free to act in their own way which would be wholly contrary to the provisions of the Bombay Rents Act, consequences and results of which would be unimaginable. It is thus not possible to accept the submission of the learned Counsel that the provisions of Section 13(1)(1) of the Bombay Rents Act are applicable to residential premises alone.
17A. The result of this discussion is that there is no obstacle in passing of the decree of eviction under Section 13(1)(1) of the Bombay Rents Act against the respondents-tenants on the ground of acquiring suitable accommodation.
18. For the reasons stated above, the petition is allowed. Rule is made absolute. The judgment and decree dated July 9, 1980 of the IIIrd Extra Assistant Judge, Pune passed in Civil Appeal No. 184 of 1979 is hereby quashed and set aside and in its place the judgment and decree of the trial court dated December 22, 1978 in Civil Suit No. 562 of 1975 is confirmed and the respondents-tenants are hereby directed to deliver vacant and peaceful possession of the suit premises to the plaintiffs within two months from today. Rule is accordingly made absolute with costs.
19. Petition allowed.