IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 214/2008
Naranji Bhimji Family Trust,
having registration No. E-87 (Nagpur) thr.
Managing Trustee, Shri Mahendra Bhavanji Thaker,
aged 67 years, r/o Giripeth, Nagpur, tq. Dist. Nagpur.
.....PETITIONER
...V E R S U S...
1. Sub-Divisional Officer, Ramtek,
Tq. Ramtek, dist. Nagpur.
2. Smt. Manibai Nanalal Thakkar,
aged 80 years, Occ. Household,
r/o Vallabhbhai Patel Ward, Ramtek,
tq. Ramtek, dist. Nagpur.
2A. Mr. Vandana w/o Vyankatesh Naidu,
aged about 60 years, r/o Vandana
Apartment, B-Wing, 3rd Floor,
Flat No. 13, Ramdaspeth, Nagpur.
3. Narendra s/o Nanalal Thakkar,
aged 65 years, Occ. Business,
r/o Vallabhbhai Patel Ward, Ramtek,
Tq. Ramtek, dist. Nagpur. .....RESPONDENTS
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Mr. Pendharkar, Senior Advocate with Mr. Hedaoo, Advocate for
petitioner.
Ms. Khade, A.G.P. for respondent no.1
Mr. Masodkar, Advocate for respondent no. 3.
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CORAM:- J. H. BHATIA, J.
DATE:- 13th MARCH, 2009
ORAL JUDGMENT
1. Rule. Rule made returnable forthwith. With consent of
learned counsel for the parties, the matter is taken up for final hearing
immediately. Heard learned counsel for the parties.
2. The petitioner claims to be owner and landlord of the
suit premises admeasuring 2137 sq. ft., which is part of the property
bearing City Survey No. 1060 admeasuring 1687.1 sq. mtr. shown on
sheet no. 13, Tq. Ramtek, dist. Nagpur. The property originally
belonged to one Shamji Naranji and in the year 1962, by order of the
Charity Commissioner, the said property was included in Naranji
Bhimji Family Trust and accordingly entry was also taken in the city
survey record in the year 1969. According to the petitioner-Trust, one
Nanalal Thakkar, husband of respondent no. 2 and father of
respondent no. 3 was in the service of Shamji Naranji. Said Nanalal
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died in the year 1972. Respondent nos. 2 and 3 i.e. legal
representatives of said Nanalal had no residential accommodation and,
therefore, on their request and taking into consideration the past
services of said Nanalal, the petitioner-trust allowed them in the year
1980-81 to occupy the suit premises consisting of five rooms and two
varandha etc. as licensee. Thus, occupation of the respondents is
permissive. Respondent no. 3 had filed Regular Civil Suit No.65/1990
in the Court of Civil Judge Junior Division, Ramtek seeking declaration
that he was owner of the property on the basis of oral gift. That suit
came to be dismissed on 08.02.2005. According to the petitioner, they
had repeatedly asked respondent nos. 2 and 3 to vacate the premises
but they avoided. Finally on 01.04.2005, notice was issued to them
but in vain. With these pleadings Revenue Case No. 1/A-71(2)/05-06
under Section 43 of the Maharashtra Rent Control Act, 1999 (For short
the “Act”) was filed by the petitioner.
3. Respondent nos. 2 and 3 filed an application on
05.09.2005 seeking leave to appear and to contest that application as
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contemplated in Section 43(4) (9) of the Act. In that application also,
the main defence was that Shamji Naranji Lohana had made oral gift
of the suit property in favour of father of non applicant no. 2 for
selfless services rendered by him and thus he had become owner of the
property. Non applicants claimed to be owners of the property and
according to them, in view of this, it was necessary to grant them leave
to appear and to contest the matter. That application was opposed by
the petitioner. It appears that both the parties filed their notes of
arguments in respect of the leave sought by non applicants to appear
and contest the application. However, while deciding the question of
leave, the Sub Divisional Officer, Ramtek, who was the competent
Authority under the Act, dismissed the application of the petitioner
itself holding that in view of the provisions of Section 22 of the Act, it
is necessary that there should be written agreement of service tenancy
and as in the present case, there was no such written agreement and,
therefore, the application itself is not tenable under section 42 of the
Act. That order is challenged in the present petition.
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4. Chapter VIII of the Act consisting of Sections 39 to 52,
provides for summary disposal of certain applications for eviction.
Section 41 declares that for the purpose of Chapter VIII, a landlord
means (a) a person who has created a service tenancy in respect of his
premises or a part thereof in favour of his employee under section 22;
(b) a member of the armed forces of the Union or a scientist or a
Government servant or a successor-in-interest, referred to in section
23; or (c) a person who has given premises on license for residence or
a successor-in-interest referred to in section 24. If the landlord claims
to be a person falling in any of these three categories, he can make an
application before the competent Authority to evict the tenant or
licensee under section 42 of the Act. Section 43 of the Act provides for
special procedure for disposal of application for eviction. Sub Section
(4) of Section 43, which is relevant, reads as follows:-
“43. Special procedure for disposal of applications
(1) …..
(2) …..
(3) …..
(4)(a) The tenant or licensee on whom the
summons is duly served in the ordinary way or by
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registered post in the manner laid down in sub-section
(3) shall not contest the prayer for eviction from the
premises, unless within thirty days of the service ofsummons on him as aforesaid, he files an affidavit
stating ground on which he seeks to contest the
application for eviction and obtains leave from theCompetent Authority as hereinafter provided, and in
default of his appearance in pursuance of the summonsor his obtaining such leave, the Statement made by the
landlord in the application for eviction shall be deemedto be admitted by the tenant or the licensee, as the case
may be, and the applicant shall be entitled to an order
for eviction on the ground aforesaid.
(b) The Competent Authority shall give to the
tenant or licensee leave to contest the application if the
affidavit filed by the tenant or licensee discloses such
facts as would disentitle the landlord from obtaining an
order for the recovery of possession of the premises onthe ground specified in section 22 or 23 or 24;”
From these provisions, it becomes clear that when
summons is served on a tenant or licensee, he shall not contest the
prayer for eviction unless within 30 days of service of summons on
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✝him, he files an affidavit stating the grounds on which he seeks to
contest the application for eviction and obtains leave from the
competent Authority. If he does not make such application, seeking
leave within the prescribed period or if he makes such an application
but that application is rejected and leave is refused, the statement
made by the landlord in the application for eviction shall be deemed to
be admitted by tenant or licensee, as the case may be, and applicant
shall be entitled to an order for eviction on the grounds stated therein.
From clause (b) of sub section (4), it is clear that if the affidavit filed
by the tenant or licensee discloses such facts as would disentitle the
landlord from obtaining an order for recovery of possession on the
grounds as specified in Section 22 or 23 or 24, the competent
authority shall give to the tenant or licensee leave to contest the
application. From this it is clear that if the affidavit filed by the tenant
or licensee does not disclose such facts as would disentitle the landlord
from obtaining an order of recovery of possession, the competent
authority shall refuse leave to tenant or licensee.
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5. Section 22 of the Act is applicable where a landlord has
let out the premises to his employee as a service condition or where
they have created a service tenancy. For that purpose, it is necessary
that the landlord and the employee may enter into an agreement in
writing. Section 23 is applicable where the landlord claims to be
member of armed forces of the Union, scientists or a successor-in
-interest. Section 24 is applicable where the landlord had given
premises to a person for residence as a licensee. In the present case,
the petitioner had nowhere claimed in the application for eviction that
the suit premises was given to Nanalal Thakkar, husband of non
application no. 1 and father of non applicant no. 2, as a service
tenement. Therefore, Section 22 would not be applicable. According
to the petitioner, Nanalal had died in 1971 itself and non applicants
were inducted as licensee in the year 1981-82 on their request,
because they did not have any residential accommodation, taking into
consideration the past services of Nanalal. It was nowhere pleaded by
the petitioner that service tenancy was created either in favour of
Nanalal or in favour of his legal representatives. In view of pleadings,
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the case would fall under section 24 of the Act and not under section
22 of the Act. Sub Divisional Officer-Competent Authority misled
himself by holding that because there were no written agreement to
create service tenancy as required under section 22 of the Act, the
application itself is not tenable. As the petitioner claimed that the suit
premises were given on license to the non applicants, the case would
fall under section 24 and the application is tenable under section 42 of
the Act.
In view of this, it is clear that Sub Divisional Officer/
Competent Authority committed serious error in rejecting the
application.
6. As noted earlier, the parties had submitted only notes of
arguments on the application made by non applicants seeking leave to
contest the eviction application. That application should have been
considered by the competent authority taking into consideration the
plea taken by non applicant. As noted earlier, according to non
applicants/respondents the suit premises were given in gift by original
owner Shamji Naranji to Nanalal some times in the year 1952-53,
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orally. It is material to note that non applicant no. 2 Narnedra s/o
Nanalal had filed Regular Civil Suit No.65/1990 claiming declaration
that he had become owner of the property mainly on the ground that
the suit property was gifted orally to his father by Shamji Naranji.
That suit was dismissed on the ground that the suit was filed without
permission of the Charity Commissioner as well as non joinder of the
necessary party. Learned counsel for respondents-non applicants
makes statement that an appeal has been preferred against judgment
and that appeal is still pending. In my considered opinion, it is
immaterial that the suit has been dismissed for want of necessary
permission from the Charity Commissioner. The material fact is that
in that suit and even in the application made by the respondents
before the competent Authority seeking leave to contest the eviction
proceeding, their main contention is that the suit property was gifted
by Shamji Naranji to Nanalal some times in the year 1952-53 and
according to them, the gift was oral. The suit property is a house
admeasuring approximately 2137 sq. ft and consisting of 5 rooms,
varandhas and bathroom etc.
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7. Section 123 of the Transfer of Property Act clearly
provides that for the purpose of making gift of immovable property,
the transfer must be effected by registered instrument signed by or on
behalf of the donor and attested by at least two witnesses. A gift of
movable property may be made either by registered instrument or by
delivery. From this it is clear that the immovable property cannot be
transferred unless a gift of the same was made by a registered
instrument. The oral gift of immovable property is not permitted
under Section 123 of the Transfer of Property Act. Similarly, section
17 of the Registration Act, 1908 makes registration of an instrument of
gift of any immovable property compulsory irrespective of value of the
property. Other non testamentary instruments, which purport or
operate to create, declare, assign, limit or extinguish any right, title or
interest in immovable property, the value of which is Rs. 100/- or
upwards are required to be registered compulsorily. It means that if
value of the property is less than Rs. 100/-, in case of such documents,
they are not compulsorily required to be registered. However,
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exception on the basis of value of the immovable property is not made
in respect of instrument of gift of immovable property. Thus, it is clear
that Section 123 of the Transfer Property Act as well as Section 17 of
the Registration Act make registration of the instrument of gift deed of
an immovable property, irrespective of the value, to be compulsory. In
view of this, the ground taken by the respondents in defence of the
application for eviction is not permitted to be raised and proved, in
view of specific provisions of Section 17 of the Registration Act and
Section 123 of the Transfer of Property Act. If this defence is ruled
out, the respondents do not have any other ground or defence which
would disentitle the petitioner from getting an order of eviction and
possession. In view of this, the competent authority should have
rejected the application seeking leave to defend.
8. In view of the facts and legal position noted above, it is
clear that the competent authority misled itself by holding that the
application is not tenable under section 42 of the Act because there
was no written service tenancy agreement as required in Section 22 of
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the Act. The Competent Authority was wrong in rejecting the
application on that ground. The non applicants had not taken any
ground, which would disentitle the landlord from seeking eviction. As
pointed out, the ground taken by them that they had become owner of
the property in view of oral gift, cannot be allowed to be raised and
proved, in view of provisions of Section 123 of the Transfer of
Property Act and Section 17 of Registration Act.
9. As in the present case, no gift deed was executed and
registered and the plea of oral gift cannot be taken, therefore, in my
considered opinion, the respondents had not raised any defence or
ground, which would disentitle the petitioner from getting the order
for eviction. Therefore, the very application seeking leave to defend is
liable to be rejected.
10. For the aforesaid reasons, the petition is allowed.
Impugned order passed by competent authority rejecting the
application filed by landlord/petitioner is hereby set aside. The
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application made by non applicants seeking leave to appear and
contest stands rejected. Competent Authority shall pass consequential
order in view of provisions of Section 42 (4) (1) of the Act.
Rule is made absolute accordingly. No order as to costs.
JUDGE
kahale
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