Gujarat High Court
Surjitsing Acchalsing vs Motilal Hiralal Warehouse And Estate ... on 1 October, 2003
Equivalent citations: (2004)1GLR4
JUDGMENT R.K. Abichandani, J.
1. This revision application filed under Section 29(2) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 (hereinafter referred to as "the said Act") has been placed before this Division Bench pursuant to the order dated 11-10-2001 made by the learned single Judge stating that the view taken by a single Judge of this Court in Shantaben Harilal Brahmbhatt v. Hasmukhlal Maneklal Chokshi, reported in 2001 (2) GLR 1615, was inconsistent with the principle enunciated by the Supreme Court in V. Dhanapal Chettiar v. Yasodai Ammal, reported in AIR 1979 SC 1745.
2. A contention was taken up before the learned single Judge in the revision application that the suit of the respondent for eviction was not maintainable, because contractual tenancy of the petitioner was not terminated by serving any notice determining the tenancy under Section 106 of the Transfer of Property Act, 1882. The petitioner, in support of this contention, relied upon the decision of this Court in Shantaben's case (supra), more particularly the observations made therein to the effect that the basic principle was that, without determination of the tenancy, no suit for eviction was maintainable.
3. The facts of the case are in a narrow compass. The suit was filed by the respondent against the petitioner for eviction on the ground of breach of terms of tenancy, nuisance and annoyance. The breach of terms of tenancy was alleged on the ground that, as per the rent note Exh. 38, the premises were let out for using them as a godown, but the appellant had instead made an electric furnace in the rented premises contrary to the specific prohibition contained in the terms of tenancy. As per Clause (7) of the rent note Exh. 38, the tenant was to use the premises only for godown for the purpose of storing gram and groundnut, and it was stipulated that he would not put up any furnace therein working either by fire or by electricity. It is not disputed that, under Clause (7) of the rent note Exh. 38, the appellant could not have put up any furnace, including an electric furnace.
3.1 The ground of nuisance was given up before the trial Court and the matter was contested only on the ground that the appellant had violated the terms of tenancy.
4. The trial Court, on the basis of material on record, came to the conclusionthat, by putting up an electric furnace, the appellant had committed breach of the conditions of tenancy, and decreed the suit on 6th March, 2002. In the appeal, the appellate Bench of the Small Causes Court, Ahmedabad, on its own appreciation of the material on record, concurred with the finding of the trial Court, by holding that it was clear from the evidence on record that the appellant had committed breach of the terms of the rent note Exh. 38, and was liable to be evicted.
5. The only contention raised before us, in the background of the above concurrent findings of the trial Court and the Appellate Bench, is that, since admittedly no notice terminating the tenancy of the appellant was given as per the provision of Section 106 of the Transfer of Property Act, 1882, the suit was not maintainable, and therefore, no decree for eviction could have been passed. The learned Counsel for the appellant has placed reliance on certain observations made by the learned single Judge in Shantaben's case (supra) in support of his contention.
6. The learned Counsel for the respondent submitted that the above contention, which is now sought to be raised, was never raised before the trial Court or before the Appellate Bench, and therefore, ought not to be considered. He submitted that, in any event, the contention was devoid of merit in view of the decision of the Supreme Court in V. Dhanapal Chettiar's case (supra). He submitted that the present suit was not filed for the purpose of arrears of rent, and therefore, there was no question of serving even a notice of demand of arrears in the mode prescribed by Section 106 of the Transfer of Property Act, 1882, as required by Section 12(2) of the Bombay Rent Act, arising in the present case.
7. Even though the point which is now sought to be raised was not raised before the trial or the Appellate Courts, since it goes to the very root of the proceedings and is based on an admitted fact that no notice terminating tenancy was given, we have allowed the learned Counsel for the appellant to argue the point, especially in view of the fact that the learned single Judge has referred the matter on this aspect for a decision of the Larger Bench.
8. There is no dispute about the fact that the provisions of the Bombay Rent Act govern the present proceedings. The suit was filed on the ground that the appellant had used the premises for a purpose other than that for which it was leased, and therefore, it was a suit for eviction under Section 13(1)(a) of the said Act on an allegation that the tenant had committed breach of the conditions of the rent note by putting up an electric furnace contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act, 1882. Therefore, this was clearly not a case to which Section 12(2) of the said Act was at all attracted. It is only where a suit is filed for recovery of possession by landlord against the tenant on the ground of non-payment of the standard rent or permitted increases due, that such a suit cannot be instituted until expiration of one month after a notice in writing of the demand of standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106of the Transfer of Property Act, 1882 as per the provision of Sub-section (2) of Section 12 of the Bombay Rent Act. No such notice of demand to be served in the manner provided under Section 106 of the Transfer of Property Act, 1882 is at all intended by the legislature in cases where the suit is filed for recovery of possession under Section 13(1)(a) of the said Act or on any of the other grounds mentioned in Section 13(1). Therefore, the question of issuance of a notice terminating the tenancy before filing a suit for recovery of possession under Section 13(1)(a) of the said Act did not arise in the present case.
9. The question whether a notice under Section 106 of the Transfer of Property Act, 1882 is required to be given even if no notice is contemplated under the Rent Act before instituting a suit for recovery of possession is already settled by the Supreme Court in V. Dhanapal Chettiar's case (supra). In V. Dhanapal Chettiar's case (supra), it was in terms held that, in order to get a decree or order for eviction against the tenant under any State Rent Control Act, it is not necessary to give notice under Section 106 of the Transfer of Property Act. In Paragraph 6 of the judgment, the Supreme Court observed that :
"When the State Rent Acts provide under what circumstances and on what grounds a tenant can be evicted, it does not provide that a tenant forfeits his right to continue in occupation of the property and makes himself liable to be evicted on fulfilment of those conditions. Only in those State Acts where a specific provision has been made for the giving of any notice requiring the tenant either to pay the arrears of rent within the specified period or to do any other thing, such as the Bombay Rent Act or the West Bengal Rent Act, no notice in accordance with Clause (g) is necessary. It was held that, if the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of relief, such a notice will have to be given, or, it may be, that a landlord will be well advised by way of abundant precaution and in order to lend additional support to his tenant intimating that he intended to file a suit against him for his eviction on the ground mentioned in the notice. But that is not to say that such notice is compulsory or obligatory or that it must fulfil all the technical requirements of Section 106 of the Transfer of Property Act. Once, the liability to be evicted is incurred by the tenant, he cannot turn round and say that the contractual lease has not been determined. The action of the landlord in instituting a suit for eviction on the ground mentioned in any State Rent Act will be tantamount to an expression of his intention that he does not want the tenant to continue as his lessee will come to an end on the passing of an order or a decree for eviction."
9.1 In Paragraph 11 of the judgment, the Supreme Court considered its earlier decision in Punjalal v. Bhagawatiprasad, reported in 1963 (3) SCR 312, which related to the provisions of the Bombay Rent Act and in which it was held that, where a tenant was in possession under a lease from the landlord, he was not to be evicted for a cause which would give rise to a suit for recovery of possession under Section 12 if his tenancy has not been determined already. It was further held that whenever a tenant acts in a way which would remove the bar on the landlord's right to evict him, it is necessary for the landlord to serve him with a notice determining his tenancy and also serve him with a notice under Sub-section (2) of Section 12 of the Act. The Supreme Court held that, under Rent Control Act, it becomes an unnecessary technicality to insist that the landlord must determine the contractual tenancy, and that the Punjalal's case (supra) was not correctly decided.
9.2 In Paragraph 13 of the judgment, the Supreme Court held that :
"If the termination of the contractual tenancy by notice does not, because of the Rent Act provisions, entitle the landlord to recover possession and he becomes entitled, only if he makes out a case under the special provision of the State Rent Act, then in our opinion, termination of the contractual relationship by a notice is not necessary. The termination comes into effect when a case is successfully made out for eviction of the tenant under State Rent Act."
It was held that on the point of requirement of a notice under Section 106 of the Transfer of Property Act, Mangilal's case was not correctly decided.
9.3 Thus, it is settled by the decision in V. Dhanapal's case (supra) by the Supreme Court Bench of seven Judges that, in order to get a decree or order for eviction against a tenant under any State Rent Control Act, it is not necessary to give notice under Section 106 of the Transfer of Property Act unless the State Rent Control Act lays down any specific provision for giving of a notice, such as in case of payment of arrears of rent, within the specified period. It is obvious, therefore, that no observation in Shantaben's case (supra) can be at all read in conflict with the decision of the Supreme Court in V. Dhanapal's case (supra).
9.4 The decision in V. Dhanapal's case (supra) has been followed by the Supreme Court consistently. In Satpal v. Hira Lal, reported in AIR 1981 SC 1738, the Supreme Court held that the question of notice raised in that petition, no longer survived in view of a 7-Judge Bench decision of the Supreme Court in V. Dhanapal's case (supra) holding that in cases governed by the Rent Act, no notice under Section 106 of the Transfer of Property Act is necessary unless expressly so provided.
9.5 Similarly, in Krishanadeo Narayan Agarwal v. Ram Krishan Rai, reported in AIR 1982 SC 783, the Supreme Court following the ratio of V. Dhanapal's case (supra), held that no notice was necessary under Section 106 of the Transfer of Property Act in cases where the possession of the tenant was protected by the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947.
9.6 We, therefore, do not find any substance in the contention raised on behalf of the petitioner that the suit of the respondent was not maintainable in absence of a notice under Section 106 of the Transfer of Property Act.
10. It was pointed out that the learned single Judge in Shantaben's case (supra), in Paragraph 12.1 of the judgment, had observed :
"Thus, the conditions necessary for a notice to meet the requirements of Section 12(2) of the Bombay Rent Act have to be considered in the light of this specific provision, and these essential requirements have been discussed by a number of decisions of this Court including the case of Abdulgani v. Jaiswal Chimanlal Maneklal (supra), and including the decision of the Supreme Court in the case of Punjalal v. Bhagawatiprasad (supra)."
It was observed : "The crux of the matter is that a condition precedent to the filing of a suit for eviction (on the ground of arrears) is the issuance and service of a statutory notice".
The last mentioned observation of the learned single Judge should not be read so as to mean that a notice under Section 106 of the Transfer of Property Act is required before filing a suit for eviction under the Rent Act. In fact, it is clear from the contents of Paragraph 12,2 of the judgment of the learned single Judge, that the above observations were made in the context of Section 12(2) of the Bombay Rent Act and they had no relevance to any other ground on which the suit for eviction could be filed under Section 13(1) of the Act. In Paragraph 12.2 of the judgment, the learned single Judge observed :
"In my opinion, the sum and substance of the decision is that the determination of the lease is unnecessary, (since it is considered to be superfluous by the Supreme Court), in accordance with Section 106 of the Transfer of Property Act, if terminated according to the State Act."
10.1 The learned single Judge clearly observed that the crucial distinction in the case was that Section 12(2)of the Bombay Rent Act did not contemplate determination of the lease in accordance with Section 106 of the Transfer of Property Act, it merely contemplated that the notice issued under Section 12(2) must be served in accordance with Section 106 of the Transfer of Property Act.
10.2 Again in Paragraph 12.3 of the judgment, the learned single Judge observed : "Since, admittedly the relations are governed by the Bombay Rent Act, it does not ipso facto follow that since a notice under Section 106 of the Transfer of Property Act is not a condition precedent for an eviction suit under Section 12(2), the same is also superfluous or redundant under the Bombay Rent Act"; which in other words means that if a notice is required to be given under any specific provision of the Rent Act, then it was immaterial whether a notice under Section 106 of the Transfer of Property Act was given or not.
10.3 In any event, the position of law is settled in V. Dhanapal's case that in cases where no specific provision is made under the rent law for issuing any notice requiring the tenant either to pay the arrears of rent within specified period or to do any other thing, there is no need to issue any notice under Section 106 of the Transfer of Property Act before misstating a suit for eviction on any of the grounds available under the Rent Act. The Shantaben's case (supra) was decided in context of Section 12(2) of the Bombay Rent Act and the observations made thereunder were as regards notice which was to be issued under that provision and have no relevance to institution of any suit on the grounds mentioned under Section 13(1) of the Bombay Rent Act which do not lay down requirement of issuance of any notice before institution of such suit. In fact, the learned single Judge ought not to have made any effort of reconciling the ratio in Punjalal's case (supra) or in Abdulgani's case (supra), as was sought to be done in Paragraph 12.1 of the judgment, because Punjalal's case (supra) was in terms overruled by the Supreme Court in V. Dhanapal's case (supra). It is this attempt to reconcile the observations made in Punjalal's case that has led to an argument that the decision of the learned single Judge lays down a proposition that in all cases, notice of termination of tenancy is required to be issued under Section 106 of the Transfer of Property Act before filing any suit for eviction under the Bombay Rent Act. The observation of the learned single Judge in Paragraph 12 that, "the basic principle is that without determination of the tenancy, no suit for eviction is maintainable" sounds as a sweeping observation if read in isolation, but it has to be read in context of provision of Section 12(2) of the Rent Act which was under consideration before learned single Judge. The said observation is preceded and succeeded by a clear reference to the provision of Section 12(2), and therefore, it cannot be construed to be a proposition laid down by the learned single Judge that in all cases, before filing any suit for eviction under the Rent Act, a notice under Section 106 of the Transfer of Property Act is required. The subsequent discussion in Paragraphs 12.2 and 12.3 of the judgment makes it clear that the said observation was in the context of the requirement of a notice under Section 12(2) of the Rent Act.
10.4 We are of the view that the decision of the learned single Judge in Shantaben's case (supra) should not be read so as to mean that a notice is required to be issued under the provisions of Section 106 of the Transfer of Property Act for terminating a contractual tenancy before institution of any suit under the Rent Act. Such a reading of the judgment in Shantaben's case would be in clear violation of the ratio of the decision of the 7-Judge Bench judgment of the Supreme Court in V. Dhanapal's case (supra).
11. Reliance on the ratio of the decision in Abdulgani @ Gani Ismail v. Jaiswal Chimanlal Maneklal, reported in 1979 GLR 107, in which it was laid down that, by no canon of construction it can ever be said that Sub-section (2) of Section 12 of the Bombay Rent Control Act dispenses with the statutory notice required to be served by the landlord upon his tenant under Section 106 of the Transfer of Property Act before he seeks to recover possession of the premises from the tenant, and that a suit by a landlord to recover possession of the suit premises from his tenant on the ground of arrears of rent must be preceded by two valid notices, one under Section 106 of the Transfer of Property Act, and another notice of demand under Sub-section (2) of Section 12, is clearly contrary to the ratio of the decision in V. Dhanapal's case (supra) and to the extent that the said decision requires a notice under Section 106 of the Transfer of Property Act for termination of tenancy besides a notice under Section 12(2) of the Bombay Rent Act, it clearly stands overruled by the decision of the Supreme Court.
12. During the course of arguments, the learned Counsel for the petitioner took exception to the observation made in Paragraph 12.2 of the judgment in Shantaben's case (supra) that : "It also requires to be noted that the Transfer of Property Act is a Central Act, whereas the Bombay Rent Act is a State Act, in any concurrent field of legislation, the provisions of a State Act cannot override the provisions of a Central Act, in case of conflict or inconsistency"; and the observation that : "The termination of tenancy under the Transfer of Property Act can only be considered superfluous if such termination of tenancy is necessary under any State Act. This presupposes that the State Act contemplates termination of tenancy, otherwise there is no redundancy".
12.1 The above observations appear to have been made without ascertaining the fact whether requisite assent under Section 107(2) of the Government of India Act, 1935 which corresponded to Article 254(2) of the Constitution of India was given or not. If such assent was obtained, then the question of redundancy cannot arise. It appears from the decision of the Bombay High Court in Kavasji Pestonji Dalai v. Rustomji Sorabji Jamadar, reported in 50 BLR 450 that Bombay Rent Act (Act No. 57 of 1947) received assent of the Governor General on January 19, 1948 and was brought into force on February 13, 1948 which fact is mentioned while referring to the contentions of Mr. Seervai. There is no dispute about the fact that the assent of the Governor General to the provisions of the Bombay Rent Act was received on 13th January, 1948 and that such assent was first published in the Bombay Government Gazette in 19th January, 1948. In view of such assent, the Bombay Rent Act would prevail in the State under Article 254(2) of the Constitution of India. Therefore, there was no need to make any observations on the question of redundancy, as was sought to be done by the learned single Judge in Paragraph 12.2 of the judgment in Shantaben's case (supra).
12.2 The Supreme Court in Kaiser-I-Hind Pvt. Ltd. v. National Textile Corporation (Maharashtra North) Ltd., reported in 2002 (8) SCC 182, while construing the provisions of Article 254(2) of the Constitution of India, has in Paragraph 12 of the judgment observed that Clause (2) on the analysis provides that where a law :
(a) made by the legislature of a State; (b) with respect to one of the matters enumerated in the Concurrent List; (c) contains any provision repugnant to the provisions of an earlier law made by Parliament or existing law with respect to that matter; then, the law so made by the legislature of the State shall - (1) if it has been "reserved for consideration of the President"; and (2) has received "his assent"; would prevail in that State.
The Supreme Court in Paragraph 13 of the judgment held as under ; "Hence, it can be stated that for the State law to prevail, the following requirements must be satisfied :
(1) law made by the legislature of a State should be with respect to one of the matters enumerated in the Concurrent List;
(2) it contains any provision repugnant to the provision of an earlier law made by Parliament or an existing law with respect to that matter;
(3) the law so made by the legislature of the State has been reserved for the consideration of the President; and (4) it has received 'his assent'."
13. The concurrent findings of fact clearly disclose that there was a breach committed by the tenant of Clause (7) of the rent note Exh. 38 which stipulated that the tenant will not put up any furnace, electric or otherwise. The Courts below found that electric furnace was put up by the tenant in contravention of the terms of tenancy.
14. The findings of the trial Court and the Appellate Bench have been reached on the basis of the material on record and there is no illegality committed by the Courts in reaching these findings. There is, therefore, no warrant for interfering with the impugned decision. The revision application, is therefore, rejected. Rule is discharged with no order as to costs. Interim relief stands vacated.