JUDGMENT
D.G. Karia, J.
1. The present Second Appeal by the original defendants has been directed against the judgment and decree dated August 29, 1985, passed by the learned Assistant Judge, Vadodara, in Regular Civil Appeal No. 311 of 1984. By the impugned judgment and decree, the learned Judge dismissed the said appeal and confirmed the judgment and decree passed in favour of the respondent-plaintiff.
2. Baroda Municipal Corporation constructed flats under middle income group scheme at Karelibaug, Budhadev Colony in Baroda. The plaintiff was allotted one of such flats, being flat No. 6/56 on the first floor on August 1, 1975. Pursuant to the hire purchase tenancy agreement at Exh. 39, the plaintiff was to pay monthly installment of Rs. 350/- plus taxes to Baroda Municipal Corporation. The plaintiff was serving as Professor in Law Faculty, M.S. University, Baroda, at the relevant time, and in that capacity he was allotted a quarter in Vikram Baug, Pratapganj, on condition that on his retirement from service, he will have to vacate it. After retirement, the plaintiff desired to stay in Baroda and therefore he had applied for the flat and was accordingly allotted the above flat by the Baroda Municipal Corporation. Meanwhile, the defendants approached the plaintiff and requested him to give the said flat for a short period of about 1 to 11/2 years, as the defendants wanted to start their business in Baroda. The defendants promised to vacate the said flat, as and when called upon to do so by the plaintiff or on the retirement of the plaintiff from service. The plaintiff, relying upon such oral undertaking by the plaintiff, gave the said flat to the defendants purely on temporary basis for Rs. 400/- per month plus taxes. The plaintiff retired from service with effect from November, 1, 1980. The plaintiff, therefore, demanded possession of the suit premises from the defendants, one year prior to his retirement. The defendants, however, did not vacate the flat. The plaintiff was at last constrained to serve a notice dated December 26, 1980 on both the defendants and called upon them to vacate suit flat and hand over possession thereof to the plaintiff by February 1, 1981. The defendants neither replied nor complied with the said notice. The plaintiff, therefore, filed Regular Civil Suit No. 302 of 1981 in the Court of the Civil Judge (J.D.) at Baroda for recovery of possession of the suit flat. The plaintiff contended that ownership of the flat was of Baroda Municipal Corporation and the plaintiff could only be the owner in respect of the said flat as and when all the installments were paid and conveyance-deed was executed and registered in favour of the plaintiff. It is the case of the plaintiff that the suit flat belonged to the local body, i.e., Baroda Municipal Corporation and as such under Section 4 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (“Bombay Rent Act” for short), the Rent Court would have no jurisdiction to entertain the suit of the plaintiff. The plaintiff, therefore, filed the suit in the Civil Court under the Transfer of Property Act calling upon the defendants to vacate the suit flat and hand over the possession thereof and also the mesne profits.
3. The defendants by their written statement Exh. 23 denied the case of the plaintiff, contending, inter alia, that the Civil Court had no jurisdiction to entertain the plaintiff’s suit; the suit was bad for non-joinder of necessary parties, i.e., Baroda Municipal Corporation. The defendants contended that the plaintiff was the owner of the suit flat and the relationship between the parties was that of landlord and tenant. The defendants denied that the defendants wanted the suit premises for a short period of about one year and they had orally promised to vacate the suit flat as and when demanded by the plaintiff or on retirement of the plaintiff. The defendants raised unconceivable and dishonest plea that the plaintiff had sold the premises in question to the defendants as plaintiff was unable to pay monthly instalment of Rs. 350/- and as such the defendants had to pay monthly rent of Rs. 400/- plus taxes which were to be treated as the instalments towards sale price and when all the instalments are paid by the defendants, they would become the owner of the suit premises and the plaintiff would execute the document in favour of the defendants, Admittedly, there is no writing or agreement to sale in this behalf. The defendants, however, contended that their possession of the suit premises was as the tenants. The defendants contended that they had not received any notice from the plaintiff. Copy of the notice is produced at Exh. 40 and the slips are at Exhs. 41 and 42. The Registered A.D. Slips are at Exhs. 43 and 44 on the record. The notice, Exh. 40, dated December 26, 1980 was sent at the business address of the defendants, as it appears from the record that the defendants have not been occupying the suit flat. The defendants admitted that the monthly rent of the suit flat was Rs. 400/- plus taxes and they had remitted the amount of rent to the plaintiff, but he refused to accept the same. The defendants contended that the premises in question did not belong to Baroda Municipal Corporation and therefore the Civil Court had no jurisdiction to entertain the suit. The defendants, therefore, requested the Court to dismiss the suit.
4. The learned trial Judge having framed the issues at Exh. 29 and after recording the evidence and hearing the parties, decreed the suit of the plaintiff, holding that the Civil Court had jurisdiction to try and hear the suit. The trial Court also held that the defendants had agreed to give vacant possession on demand by the plaintiff. The learned trial Judge came to the conclusion that the suit was not had on account of nonjoinder or misjoinder of parties. The trial Court held that the defendants failed to prove the contention of para 16 of the written statement that the plaintiff had sold the suit flat on monthly instalment of Rs. 400/- lowards sale. The trial Court concluded that the Baroda Municipal Corporation was the owner of the suit property and therefore the rent Court would not have jurisdiction to try the suit. The trial Court thus decreed the suit, directing the defendants to hand over the vacant and peaceful possession of the suit premises and to pay mesne profits at the rate of Rs. 400/- per month from February 1, 1981 till handing over of vacant possession of the flat.
5. The defendants being aggrieved by the aforesaid judgment and decree of the trial Court, preferred Regular Civil Appeal No. 311 of 1984 in the District Court, Baroda. The learned Assistant Judge, Baroda disposed of the said appeal by the aforesaid judgment and decree and dismissed the appeal, confirming the judgment and decree passed by the trial Court.
6. It is these concurrent judgments and decrees that are challenged by the original defendants in the present Second Appeal. this Court, while admitting the Second Appeal, formulated the substantial question of law as follows:
Admitted, Whether in view of Section 4(4)(a) added by amendment, the Rent Act would apply to the suit premises and whether the suit is filed in competent rent Court? Expedited.
7. Section 4(1) and Section 4(4)(a) of the Bombay Rent Act are as under:
4.(1) This Act shall not apply to any premises belonging to the Government or a local authority or apply as against the Government to any tenancy or other like relationship created by grant from the Government in respect of premises taken on lease or requisitioned by the Government; but it shall apply in respect of premises let to the Government or a local authority.
4. (4)(a). The expression “premises belonging to the Government or a local authority” in Sub-section (I) shall, notwithstanding anything contained in the said sub section or in any judgment, decree or order of a Court, not include a building erected on any land held by any person from the Government or local authority under an agreement, lease or other grant, although having regard to the provisions of such agreement, lease or grant the building so erected may belong or continue to belong to the Government or the local authority as the case may be.
The plain reading of the above provisions makes it clear that Section 4(1) of the Bombay Rent Act is not applicable to the premises belonging to the Government or the local authority. Sub-section 4(a) of Section 4 which has been added in 1953, carves out an exception from the exemption conferred by Section 4(1). The expression ‘premises belonging to the Government or a local authority’ in Sub-section (1) of Section (4) shall not include a building erected on any land held by any person from the Government or local authority under an agreement, lease or other grant, notwithstanding anything contained in the said Sub-section or in any judgment, decree or order of the Court, although having regard to the provisions of such agreement, lease or grant the building so erected may belong or continue to belong to the Government or the local authority, as the case may be.
7A. Mr. N.D. Nanavati, the learned Advocate appearing for the appellant-defendants, tried to interpret the aforesaid provisions of law contending that the building in question has been put up by the Baroda Municipal Corporation, pursuant to the scheme of hire-purchase and by the agreement, Exh. 39, the same was allotted to the plaintiff. Mr. Nanavati submitted that therefore it was not the building belonging to the local authority. Mr. Nanavati alternatively submitted that if the building belonged to the local authority, namely, the Baroda Municipal Corporation, then the Civil Court will have no jurisdiction, for the reason that the provisions of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 will be applicable. Under Section 16 of the said Act, the jurisdiction of the Civil Court is barred Mr. Nanavati also submitted that the payment by the plaintiff to the Baroda Municipal Corporation by way of instalment was towards consideration of the property and as such the plaintiff should be treated as the owner of the flat. He further stretched his argument stating that the relationship between the parties should, therefore, be that of landlord and tenant. In that case also, the Civil Court will have no jurisdiction to entertain the suit. Mr. Nanavati, however, admitted that when the cause of action arose, no doubt the Corporation was the owner of the property in question.
8. The suit flat has not been built on any land held by any person from the Government or local authority under an agreement, lease or other grant. The plaintiff is holding the suit flat by virtue of the agreement at Exh. 39. The conclusion arrived at by both the Courts below is that the plaintiff cannot be the full and absolute owner of the suit premises till he has paid up all the instalments. Therefore, the Baroda Municipal Corporation continues to be the owner in respect of the said flat. In view of that matter, the premises in question cannot be covered within the ambit of Section 4(4)(a) of the Bombay Rent Act. It is pertinent to note that the exemption granted under Section 4(1) of the Act is with regard to the premises and not in respect of the relationship between the parties. Therefore, there is no merit or force in the submission of Mr. Nanavati.
9. As regards Section 16 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972, it is provided in Section 16 of the said Act that no Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person on the ground that he is in unauthorised occupation of any public premises or for any other reason specified in Sub-section (1) of Section 4 of the said Act. It is not the case of any party that the defendants were in unauthorised occupation of the suit flat. Mr. Nanavati, however, made an attempt to show that the defendants were unauthorised occupiers of the flat as they were inducted in the premises contrary to the agreement at exit. 39. This argument is fallacious for the reason that the unauthorised occupation would be qua the Baroda Municipal Corporation. The defendants have not raised any such plea regarding unauthorised occupation of the flat in their pleadings or in evidence. Section 4 of the said Act contemplates that if the competent officer is satisfied that the person authorised to occupy any public premises has contravened the conditions laid down in Section 4, the competent officer shall issue a notice in writing calling upon such person to show cause why an order of eviction should not be made against him. In the instant case, there is no question of any competent officer or his satisfaction, and having regard to the facts and circumstances of the case. Section 4 of the said Act will have no application. There is, therefore, no alternative but to reject this submission raised on behalf of the defendants.
10. It is in the evidence that the defendants have constructed their own house consisting of five storeys opposite to the Government Press Building in Baroda. There is also a tenant named Hareshbhai in one of the floors of the said newly constructed building belonging to the defendants. The defendant No. 2, Prafulchandra V. Shah has stated in his evidence that he has got the evidence in writing to show that he has been residing in the suit premises. He showed his preparedness to produce such writing. However, he has not substantiated this plea. On the other hand, it is the case of the plaintiff that the defendants have vacated the suit premises since last 1 1/2 years and they were not residing in the suit premises, as they had shifted to their newly constructed building. The defendants did not produce the written evidence showing that they were in occupation of the suit premises, such as electricity bill, gas bill etc. Defendant No. 2, Prafulchandra V. Shah, has flatly refused to produce such written evidence, in his deposition. Therefore, the learned Judge has rightly concluded that the defendants have shifted from the suit premises to their newly constructed five-storcycd building.
11. Be that as it may, on interpretation and application of the aforesaid provision of Section 4(4)(a) of the Bombay Rent Act, in view of the facts and circumstances of the case, the Civil Court has jurisdiction to entertain the suit of the plaintiff. Therefore, both the Courts below have rightly passed the decree against the defendants.
12. Mr. N.D. Nanavati relied upon the case of Messrs Bhatia Co-operative Housing Society Limited v. D.C. Patel . On account of the said judgment. Section 4(4)(a) of the Bombay Rent Act was necessitated to be inserted byway of amendment. The Supreme Court interpreted Section 4(1) of the Bombay Rent Act in that case, holding that the demised premises including the building belonged to the Board which was a local authority and as such outside the operation of the Act, in view of Section 4(1) of the Bombay Rent Act. Mr. R.H. Mehta, learned Advocate appearing for the respondent-plaintiff invited my attention to the case of Nagji Vallabhji & Co. v. Meghji Vijpar & Co. . The Supreme Court has interpreted Section 4(1) and Section 4(4)(a) of the Bombay Rent Act in that case. The relevant observations of the Supreme Court are as under
In fact, a plain reading of the provisions of Sub-section (4)(a) in the context clearly shows that there is no intention therein to take out a building put up by the Government or a local authority from the scope of the exemption conferred by Sub-section (1) of Section 4. In fact, the language of Sub-section (4)(a) and Sub-section (1) of Section 4 of the Bombay Rent Act read together suggests that it was only in respect of a building put up by the lessee on the Government land or land belonging to a local authority under a building agreement that the sub-lessees were taken out of the exemption contained in Sub-section (1) of Section 4 and allowed the benefit of the provisions of the Bombay Rent Act. It is significant that the exemption granted under the earlier part of Sub-section (1) of Section 4 is in respect of the premises and not in respect of the relationship. In order to confer the provision of the provisions of the Bombay Rent Act to the sub-lessees occupying the premises in any building erected on Government land or on land belonging to a local authority irrespective of the question who has put up the building as against the lessees of the land but without affecting the immunity conferred to the Government or local authorities as contemplated by Sub-section (1) of Section 4 of the Bombay Rent Act, we would have practically rewritten the provisions of Section 4 and it is not open to us to do that. We are, therefore, unable to accept the argument of Dr. Chitale and we are of the view that the learned Judge of the High Court of Bombay was right in coming to the conclusion that the premises in question were not entitled to the benefit of the provisions of the Bombay Rent Act
In view of the aforesaid legal position and having regard to the facts and circumstances and evidence of this case, I am of the opinion that Section 4(4)(a) of the Bombay Rent Act is not applicable to the case of the plaintiff. Both the Courts below have thus rightly passed the decree for recovery of the possession of the suit flat.
13. In the case of M/s. Chhotalal Girdharlal Gheewala v. District Panchayat, Surat 1989 (1) GLR 376, having followed the aforesaid decision in Nagji Vallabhji & Co.’s case (supra), this Court has also taken the view that the Bombay Rent Act does not apply to premises belonging to the Government or a local authority and the suit for possession of suit premises would lie not before the Rent Court but before the ordinary Civil Court. Buildings built on land belonging to such exempted bodies under an agreement, lease or other grant are governed by the Act. Such buildings are an exception to the exemption conferred by Section 4(1) of the Act.
14. In view of the above discussion, the lower appellate Court has rightly held that only the Civil Court has jurisdiction to decide the suit in question. The provisions of the Bombay Rent Act would not be applicable to the lease of the suit flat.
15. Lastly, Mr. Nanavati submitted that the plaintiff has now paid all the instalments in respect of the suit flat and as such he has become the absolute owner thereof. At least, there has been now the relationship of landlord and tenant between the parties. Mr. Mehta, appearing for the respondent-plaintiff, fairly conceded that the payment of all the instalments have since been made to the Baroda Municipal Corporation for the said flat. However, the final conveyance deed, according to Mr. Mehta, has not been executed and registered in favour of the plaintiff. Therefore, according to the terms of the agreement Exh. 39, the plaintiff cannot be said to be the full and absolute owner of the property in question. Besides, when the cause of action arose for the plaintiff for recovery of possession of the suit flat, the Baroda Municipal Corporation undoubtedly was the owner of the property. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suit or institutes the legal proceedings. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Later developments cannot defeat his right. The Court’s procedural delays cannot deprive him of legal justice or rights crystallised in the initial cause of action. Having regard to this principle, the submission of Mr. Nanavati is to be rejected.
In the result, the appeal fails and is dismissed with costs.