Anirudhha Ramkrishna Karlekar vs Jankibai Raghunath Bedekar on 15 November, 1989

Bombay High Court
Anirudhha Ramkrishna Karlekar vs Jankibai Raghunath Bedekar on 15 November, 1989
Equivalent citations: 1990 (1) BomCR 247, (1990) 92 BOMLR 142
Author: T Sugla
Bench: C Mookerjee, T Sugla


JUDGMENT

T.D. Sugla, J.

1. Out of these two petitions, Writ Petition No. 2677 of 1983 is preferred by the tenant-original defendant and Writ Petition No. 4128 of 1983 is preferred by the landlady-original plaintiff. The parties will hereinafter be referred to as ‘tenant’ and ‘landlady’ for the sake of convenience.

2. The landlady filed a suit against the tenant for possession of suit premises comprising of a shop on the grounds of illegally obstructing the use of open passage in front of the shop, causing harassment by making false allegations against her, causing nuisance and annoyance to the neighbours and on the ground of bona fide requirement of the said premises by her and her daughter-in-law specifically stating that the tenant had acquired suitable alternate accommodation and did not require the suit premises. The trial Court accepted the landlady’s case and held that she was in bona fide need of the shop, that the tenant did not require the suit premises and that the conduct of the tenant amounted to annoyance within the meaning of section 13(1)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short ‘Bombay Rent Act’). By its judgment dated 13th June, 1979 in Civil Suit No. 2713 of 1975, the trial Court decreed the suit.

The decree was confirmed in appeal vide order dated 13th June, 1983 in Civil Appeal No. 561 of 1979. However, the learned Appeal Judge did so only on the ground that the tenant was using the suit premises illegally and against the terms and conditions of the agreement as regards open space in front of the shop was concerned. Other seven issues framed by him were decided in favour of the tenant.

3. Aggrieved by the above order in appeal, both the parties filed in this Court separate writ petitions which came up for hearing before the learned Single Judge. One of the issues raised before the learned Single Judge was whether the provisions of section 13(1)(c) of the Bombay Rent Act were applicable to the premises other than residential premises. This issue assumed importance as the suit premises were admittedly not residential premises and the fact that the tenant was convicted of using the premises illegally was according to the learned Single Judge, prima facie to attract the provisions of section 13(1)(c). The learned Single Judge was of the opinion that ordinarily the provisions of section 13(1)(c) should apply to all premises whether residential or otherwise. However, in view of the Supreme Court decision in the case of Ganpat Ladha v. Shashikant Vishnu Shinde, , in the context of section 13(1)(c), the learned Judge felt that section 13(1)(c) might also not apply to premises other than residential premises. It is for this reason that the learned Single Judge made reference to the Hon’ble Chief Justice for constituting a larger Bench for adjudication of the following questions :

“(a) Whether the provisions of section 13(1)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 apply to only residential premises;

or

(b) Whether they apply to premises let out for business well.”

4. Shri Dalvi, the learned Counsel for the tenant referred to the Supreme Court decision (supra) and stated that the Supreme Court in that case was considering the provisions of Clause (c) of sub-section (11) of section 5 of the Bombay Rent Act and held that the said clause was applicable to residential premises only. The expression used in that clause was stated to be similar to that used in Clause (c) of sub-section (1) of section 13. It was submitted that on the parity of reasoning it will have to be held that section 13(1)(c) is also applicable only to residential premises and not to non-residential premises. In this context, he pointed out that the clause had three limbs. The first and second limbs exist in the clause from the commencement of the Act whereas the third limb was introduced by the Amending Act of 1962. The subject for the first two limbs, it was stated, is “the tenant or any person residing with the tenant”, whereas the subject for the third limb is “the tenant” only. The first two limbs, according to Shri Dalvi, would be applicable to such premises as are capable of being resident by any person other than the tenant with the tenant, whereas for the application of third limb there was no such requirement. The suit premises being admittedly business premises, it was contended that the first two could not apply to the suit premises.

5. Shri Abhyankar, the learned Counsel for the landlady, on the other hand, contended that the object sought to be achieved by the provisions of section 13(1)(c) was entirely different. In his view, for the purpose of proper appreciation of rival contentions, it was necessary to first refer to meaning of the word “premises” as defined in section 5(8). Reference was then made to sub-section (1) of section 6 which provided for letting of the premises. The “premises” in the above two sub-sections are all kinds of premises i.e. residential and non-residential. Section 5(11) defined the word “tenant”. However, the phraseology used in section 5(11)(c), according to Shri Abhyankar, is materially different from the expression in section 13(1)(c). It was pointed out that the Supreme Court in its decision (supra) was interpreting Clause (c) of sub-section (11) of section 5 and not Clause (c) of sub-section (1) of section 13. The expression used in the two sub-sections was different. His submission thus, is that the Supreme Court decision is not applicable to section 13(1)(c). Further, according to Shri Abhyankar, the whole object of the section will get frustrated if the interpretation sought to be placed by Shri Dalvi on the provision of section 13(1)(c) was accepted. For this purpose we were taken through paragraphs 21 and 22 of the learned Single Judge’s judgment to show how absurd consequences would result if section 13(1)(c) was held to be not applicable to other than residential premises.

6. We have given careful consideration to the rival contentions. Shri Abhyankar is right that the Supreme Court has considered the provisions of section 5(11)(c) and not that of section 13(1)(c) and as such on the fact of it the said decision may not apply. Moreover, the expression used in section 5(11)(c) is materially different from the expression used in section 13(1)(c) as is evident from the two clauses reproduced hereunder :—

Section 13(1)(c)
“(c) that the tenant or any person residing with the tenant has been guilty of conduct which is a nuisance or annoyance to the adjoining or neighbouring occupiers, or has been convicted of using the premises or allowing the premises to be used for immoral for illegal purposes.”

5(11)(c)

“5(11) ‘tenant’ means any person by whom or on whose account rent is payable for any premises and includes —-

(a) ……………..

(b) …………….

(c) any member of the tenant’s family residing with him at the time of his death as may be decided in default of agreement by the Court.”

Subsequent to the aforesaid Supreme Court decision, section 5(11)(c) was amended and made specifically applicable to both residential and non-residential premises. The expression considered by the Supreme Court was “any member of the tenant’s family residing with him at the time of his death or …………”. The above expression is clear and categorical. The question was who should be treated as tenant in the case of death of the tenant. Having regard to the language of the clause, the Supreme Court held that the provision that the person to be treated as tenant would be that person from amongst the heirs of the dead tenant who resided with the deceased at the time of his death would apply to residential premises only. The reason is obvious. Heirs who resided with the deceased tenant ought to get preference over other heirs.

The expression used in section 13(1)(c) is “that the tenant or any person residing with the tenant has been ………..”. The use of word “or” hereinabove 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 offences mentioned therein. If no person is residing with the tenant, the question of any person residing with the tenant would not arise. This is according to us, 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 quite possession, he is also obliged to behave in a manner so as to ensure and not disturb peaceful and quite possession of other tenants and the landlord or the landlady. The purposes of section 13(1)(c) is to oblige the tenant not to disturb the peaceful and quite possession of other tenant and the landlady. If the interpretation of Clause (c) of sub-section (1) of section 13 as propounded by Shri Dalvi is accepted, 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.

7. Having regard to the above discussion we are of the view that section 13(1)(c) applies to residential as well as non-residential premises i.e. the premises as defined in section 5(8) of the Bombay Rent Act. The matter will now be placed before the learned Single Judge for final disposal. No order as to costs.

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