{"id":135217,"date":"2002-08-23T00:00:00","date_gmt":"2002-08-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nilesh-nandkumar-shah-vs-sikandar-azjz-patel-on-23-august-2002"},"modified":"2015-05-09T17:12:09","modified_gmt":"2015-05-09T11:42:09","slug":"nilesh-nandkumar-shah-vs-sikandar-azjz-patel-on-23-august-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nilesh-nandkumar-shah-vs-sikandar-azjz-patel-on-23-august-2002","title":{"rendered":"Nilesh Nandkumar Shah vs Sikandar Azjz Patel on 23 August, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Nilesh Nandkumar Shah vs Sikandar Azjz Patel on 23 August, 2002<\/div>\n
Bench: R.C. Lahoti, Brijesh Kumar<\/div>\n
           CASE NO.:\nAppeal (civil)  2862 of 1998\n\nPETITIONER:\nNILESH NANDKUMAR SHAH\n\nRESPONDENT:\nSIKANDAR AZJZ PATEL\n\nDATE OF JUDGMENT: 23\/08\/2002\n\nBENCH:\nR.C. LAHOTI & BRIJESH KUMAR\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2002 Supp(1) SCR 652<\/p>\n
The Judgment of the Court was delivered by<\/p>\n
R.C. LAHOTI, J. There is a property consisting of three tenements belonging
\nto the respondent-landlord situated over revenue survey No. 591\/ 1 in
\nvillage Koregaon of district Satara, Maharshtra. The three units are
\nsituated by the side of main road. Each unit consists of two rooms of equal
\nsize interconnected by a door. The room abutting on the road is used for
\ncommercial purpose while the room situated behind is used for residential
\npurpose. The three tenants are respectively a tailor, a vaidu (medical
\npractitioner dealing mostly in herbs and indigenous medicines) and a petty
\nrestarateur. The lease agreements entered into between the three tenants
\nrespectively and the landlord specifically provide for one room being used
\nfor residence and the other one being used for commercial purpose.\n<\/p>\n
The landlord-appellant initiated proceedings for eviction and recovery of
\narrears of rent against the three tenant-respondents. Admittedly, any
\nground for eviction under the Rent Control Law is not available to the
\nlandlord. The landlord proceeded on an assumption that the purpose of
\nletting being dual, i.e. residential and non-residential both, the
\napplicability of the Rent Control Law was not attracted, and therefore, the
\neviction was sought for under the general law working out rights and
\nobligations of the parties under the provisions of the Transfer of Property
\nAct. The trial Court held that the provisions of Bombay Rents, Hotel and
\nLodging, House Rates Control Act, 1947 (hereinafter, ‘Bombay Act’, for
\nshort) were applicable and therefore directed the suits to be dismissed.
\nThe appeals filed by the landlord were allowed by the appellate Court by a
\ncommon judgment holding Bombay Act inapplicable. Second appeals preferred
\nby the three tenants have been allowed by the High Court which has set
\naside the judgment of the appellate Court and restored those passed by the
\ntrail Court. Feeling aggrieved, the landlord has preferred these three
\nappeals by special leave.\n<\/p>\n
Bombay Rents, Hotel and Lodging, House Rates Control Act, 1947 came to be
\napplied to Koregaon village where the tenements in suit are situated
\nthrough the notification dated 18th October, 1969 which reads as under:\n<\/p>\n
“No. BRA. 1860\/33301-E-In exercise of the powers conferred by sub-section
\n(2) of section 6 of the Bombay Rents, Hotel and Lodging House Rates Control
\nAct, 1947 (Bom. LV1I of 1947), the Government of Maharashtra hereby directs
\nthat in the area of the Koregaon Village in the Koregaon Taluka of the
\nNorth Satara District, all the provisions of Part II of the said Act shall,
\non and from the date of this notification, apply to premises let for the
\npurpose of residence.”\n<\/p>\n
Part II of the Bombay Act consists of Sections 6 to 31. Sub- Section (3) of
\nSection 2 provides that the State Government may, by notification in the
\nOfficial Gazette, extend to any other area, any or all of the provisions of
\nPart II, Part IIA or Part III or all of them. Section 6(1) Provides, “in
\nareas specified in Schedule I, this part shall apply to premises let or
\ngiven on licence for residence, education, business, trade or storage”.
\nSub-Section (2) of Section 6 provides that in areas to which Part II is
\nextended under sub-Section (3) of Section 2, it shall apply to premises let
\nor given on licence for such of the purposes referred to in sub-Section (1)
\nor notified under sub-Section (1 A) or let for such standard rent as the
\nState Government may, by notification in the Official Gazette Specify. From
\nthese provisions read along with the notification dated 18-10-1960 it
\nfollows that in Koregaon village where the three tenements are situated the
\nprovisions of the Bombay Act are applicable “to premises let for the
\npurpose of residence”. It is common ground that so far as Koregaon is
\nconcerned suits for eviction of tenant lie in Civil Court without regard to
\nthe fact whether the premises are governed by the provisions of the Bombay
\nAct or not. If Bombay Act applies, eviction would not be ordered unless a
\nground for eviction thereunder is made out as the tenant is protected. In
\nrespect of premises to which Bombay Act is not applicable, the Civil Court
\nwould decide the suit for eviction in accordance with the provisions of
\ngeneral law, i.e. excluding the applicability of Bombay Act. It was fairly
\nconceded by the learned counsel for the landlord-appellant that requisites
\nof ground for eviction for non-payment of arrears of rent within the
\nmeaning of Bombay Act were not available to the landlord on the date of the
\nsuit; the tenants would be liable to be evicted if only this Court may hold
\nBombay Act not applicable to the tenancy premises in suit. On the other
\nhand if it is held that by virtue of the provisions contained in Section
\n2(3) and Section 6(2) of the Act read with the notification dated
\n18-10-1960 the provisions of the Bombay Act are applicable to the suit
\naccommodation, no fault can be found with the view taken by the High Court
\nand the appeals shall be liable to be dismissed as any ground for eviction
\nof the tenants under the Bombay Act was not available to the landlord on
\nthe date of the institution of the three suits.\n<\/p>\n
Before we crystallize the issue, which is the bull’s eye. Let us clear a
\nmisconception which we noticed prevailing during the course of hearing.
\nThere is a difference between (a) a composite tenancy or a tenancy for a
\nmixed purpose, and (b) an integrated contract of tenancy for dual purposes.\n<\/p>\n
There may be several purposes for which the tenancy premises may be let
\nout. Broadly speaking the premises are let out either for the purpose of
\nresidence or for a non-residential or commercial purpose. A legislation may
\nclassify the purpose of letting into several categories by adopting some
\nother criterion just as the Bombay Act does (See, sub-Section (1) of
\nSection 6). In case of tenancy of type (a), for a composite or mixed
\npurpose, the premises are let out for defined purposes more than one
\nleaving the option open to the tenant to use the entire tenancy premises as
\none unit for either or both purposes. The tenancy premises are not divided
\nor demarcated separately into two so as to specify which part of the
\ntenancy premises will be used for what purpose. In other words, in case of
\ntenancy for composite purpose, the two divers purposes for user of the
\npremises are so blended or mixed up that they cannot be separated by
\ndissecting the tenancy premises into compartments. But, in case of tenancy
\nof type (b), which is a single tenancy for dual purposes, the contract of
\ntenancy is no doubt an integrated one but the premises are demarcated or
\ndivided by reference to the purpose for which they will be separately used.
\nThe cases at hand are illustrations of the latter type, type (b), of an
\nintegrated contract of tenancy for dual purposes, where different portions
\nare earmarked for different types of user. The contract of tenancy is one
\nbut it clearly sets out of the two rooms let out under one tenancy
\nagreement, the tenant shall use the room in the front for non-residential
\npurpose and the room in the backside for the purpose of residence. The
\nentire tenancy premises cannot be used interchanging the users nor can the
\nentire premises be subjected to simultaneous user as residence and
\ncommerce-both, without defining which part of the premises shall be used
\nfor what purpose. Therefore, the purpose of letting, in the case at hand,
\nfalls under type (b) and is not composite or mixed. The legal implication
\nis that in case of tenancy for composite or mixed purpose i.e. type (a) the
\nneed may arise for determining the dominant purpose of letting. However,
\nthe theory of dominant purpose of principle of predominant purpose of
\nletting is irrelevant in the case of tenancies of type (b) when it is
\nknown, as previously agreed, that a particular portion of the premises
\nshall be used for one purpose while another portion shall be used for
\nanother purpose.\n<\/p>\n
Under the Bombay Act the purpose of letting of the premises may be for (i)
\nresidence, (ii) education, (iii) business, (iv) trade, or (v) storage. It
\nis permissible to extend the applicability of Part II of the Act to an area
\nand at the same time to limit its applicability to premises classifiable by
\nreference to the purpose of letting specified in sub-Section (1) of Section\n<\/p>\n
6. In exercise of its legislative wisdom, the State Government has applied
\nthe provisions of Part II to Koregaon and yet, at the same time, limited
\nthe operation of the Act by stating that the provisions of Part II shall
\napply to premises let for the purpose of residence only. In other words,
\npremises in Koregaon which have been let out for the purpose of business,
\ntrade, education or storage do not attract applicability of the Act. In the
\ncase of three tenements under appeal though the contract of tenancy is each
\nan integral one, the purpose of letting being dual, that part of the
\ntenancy premises the purpose of letting where of is residence would enjoy
\nthe protection of the Act while the other part of the premises which is
\nmeant for use in business or trade would not enjoy the protection, if we
\nwere to put it simply but that is the issue which calls for-not simplistic
\nbut legalistic-determination.\n<\/p>\n
It is well settled that it is not permissible for the Court to split up a
\ncontract of tenancy in an eviction proceedings (See, Dr. T. S. Subramanian
\nv. The Andhra Bank Ltd,<\/a> [1989] Supp. 2 SCC 252, Firm Panjumal Daulatram v.
\nSakhi Gopal,<\/a> [1977] 3 SCC 284, Miss S. Sanyal v. Gian Chand,<\/a> [1968] 1 SCR\n<\/p>\n
536), A tenancy can be split up by operation of law or by contract between
\nthe parties. In cases governed by Rent Control Legislation if a ground for
\neviction in respect of part of the tenancy premises is made out, the decree
\nshall be for eviction from the entire tenancy premises unless the law
\npermits a partial decree of eviction being passed. The purpose of Rent
\nControl Legislation is to protect the tenants from unjust evictions at the
\nhands of greedy or unscrupulous landlords. The shortage of accommodation
\nand unequal distribution of national wealth warrants a welfare State
\nstepping in to so regulate the common law rights and obligations between
\nlandlords and tenants as to protect the tenants and to that extent curtail
\nthe common law rights of the landlords. In case of doubt, rent control laws
\nshould be so interpreted as to lean in favour of tenant, to advance the
\npurpose sought to be achieved by Rent Control Legislation and to see that
\nthe beneficial protection extended by the Act is not scuttled down or
\ndefeated or rendered nugatory. In the cases like the one with which we are
\ndealing, there may be two angles of looking at the issue. For the landlord
\nit may be argued that part of the tenancy accommodation (i.e. the portion
\nleased for purposes other than residential) does not enjoy protection under
\nBombay Act and therefore that part of the tenancy premises which enjoys
\nsuch protection (i.e. the portion leased for residential purpose) must go
\nwith the unprotected part of the premises, that is to say the tenancy
\npremises as a whole shall not enjoy the protection of Bombay Act. On the
\nother hand, looking at the issue from the point of view of the tenant, it
\nmay be urged that merely because a part of the tenancy premises (i.e. the
\nnon-residential part) does not enjoy the protection of Bombay Act that does
\nnot mean that the protection of the Act which is certainly and undoubtedly
\napplicable to a part of the premises (i.e. the residential portion) should
\nbe allowed to be defeated. In the Rent Control Legislation the relevant
\nprovision which regulates or restricts the right of landlords to seek
\neviction of tenants in varialbly opens with a non-obstante clause and is
\ngiven thereby an overriding effect on the statutory or common law right of
\nlandlord to evict a tenant. Even in the absence of non-obstante clause a
\nRent Control Legislation being a special beneficial provision shall
\noverride the provisions of any general legislation in case of conflict. It
\nwould, therefore, be reasonable and consistent with the principles of
\ninterpretation of statutes to hold that such part of the tenancy premises
\nas is protected by the Rent Control Legislation (here, the residential
\nportion) shall take along with it such other part of the tenancy premises
\nas is not protected, the contract of tenancy being an integral one. A view
\nto the contrary would defeat the provisions of the Rent Control
\nLegislation.\n<\/p>\n
In the cases at hand, inasmuch as the rear room of the tenancy premises,
\nhaving its purpose of user as residence, enjoys the protection of Bombay
\nAct, the tenant shall not be liable to be evicted from any part of the
\ntenancy premises, as part of the premises is protected by the Bombay Act
\nand the contract of tenancy is one single and indivisible. We are,
\ntherefore, of the opinion that when the premises are let out under one
\nintegrated contract of tenancy i.e. type (b) referred to above, and the
\npurpose of letting in respect of one part of the premises is one of the
\nusers referred to in sub-Section (1) of Section 6 of Bombay Act while the
\nother part of tenancy premises is permitted to be used for purpose other
\nthan the one stated in section 6(1), the entire tenancy premises would
\nenjoy protection of Bombay Act. Eviction of tenant can be had only by
\nmaking out a case for eviction under Bombay Act. However, if a ground for
\neviction under Bombay Act from even a part of the premises is made out,
\neviction can be ordered from the whole unless the statute or the contract
\ncontains a special provision empowering the court to split up the tenancy.\n<\/p>\n
The learned counsel for the landlord-appellant placed strong reliance on
\nDr. Gopal Doss Verma v. Dr. S.K. Bhardwaj and Anr.,<\/a> [1962] 2 SCR 678 and
\nMiss S. Sanyal v. Gian Chand,<\/a> (supra). We shall deal with both the cases.
\nBoth these decisions are under Delhi and Ajmer Rent Control Act, 1952.
\nThere the building is defined in Section 2 (g) as meaning inter alia any
\nbuilding or part of a building which is or is intended to be let separately
\nfor use as a residence or for commercial use or for any other purpose.
\nSection 13(1) (e) provides for a decree for ejectment to be passed if the
\nCourt is satisfied that the premises let for residential purpose are
\nrequired bona fide to satisfy the landlord’s requirement of premises for
\noccupation as a residence. In Dr. Gopal Dass Verma’s case, the premises in
\noccupation of the tenant were being used for professional purpose in
\nsubstantial part thereof with the consent of the landlord. It was held that
\nsuch premises were taken out of the scope of Section 13(1)(e) because the
\npremises were not let for residential purposes alone. The contention raised
\non behalf of the landlord that tenancy for dual purposes would be included
\nin “any other purpose” was rejected by this Court looking to the scheme of
\nthe Act. Moreover, ejectment of the tenant was sought by the landlord under
\nthe provisions of the Rent Act and yet the contention advanced before this
\nCourt was that the Act did not apply to the premises in question which
\ncontention was rejected by this court characterizing it as an argument of
\ndesperation. In Miss S. Sanyal’s case, the tenancy premises were let for
\npurposes non-residential as well as residential, that is for running a
\nschool and for residence. This Court held that if the premises are not let
\nfor residential purposes only, Section 13(1)(e) would not apply. The High
\nCourt held that where there is a composite letting it is open to the Court
\nto disintegrate the contract of tenancy and on proof of landlord’s bona
\nfide requirement to decree ejectment limited to that part which “is being
\nused” by the tenant for residential purpose. Such a decree which had the
\nresult of splitting up the tenancy was held to be unsustainable by this
\nCourt. Thus, both the cases proceed on their peculiar facts adjudicated
\nupon in the light of the provision of Delhi and Ajmer Rent Control Act,
\n1952, the provisions whereof do not bear such similarity with the
\nprovisions of the Bombay Act as to apply the law laid down therein to the
\nfacts of the cases at hand. In the scheme of Delhi and Ajmer Act the Second
\nSchedule in Parts A and B (see), paras 3 to 5 in Parts A and B both) bring
\nout the principle of letting separately for different uses and such
\ndifferentiation of purpose of separate letting is not emphasized in the
\nscheme of Bombay Act.\n<\/p>\n
Two Single Bench decisions by High Courts were brought to our notice.
\nBaburao Raghunath Bagwade v. Chandulal Hiralal Shah, LXXVII (1975) Bombay
\nLaw Reporter 197, is a Single Bench decision of Bombay High Court wherein
\nit was held that the user of the word “residence” in the Notification dated
\n18-10-1960 would exclude its applicability to such premises as were let out
\nfor the composite purpose of residence and business or trade. Such a view
\nis too narrow a view and results in partially defeating the protection
\nextended by Bombay Act. In our view, the law is not correctly laid down
\ntherein. We do not agree with the interpretation placed by the learned
\nSingle Judge of Bombay High Court in the above case.\n<\/p>\n
Decision in Jain Digambar Chaitylaya and Ors. v. Shyamsundar Maneklal and
\nOrs,, (1980) XXI Gujarat Law Reporter 392 takes a view to the contrary. It
\nis a deailed judgment. The learned Single Judge of Gujarat High Court,
\ninterpreting the provisions of this very Act, has held that where the
\npruposes of letting are dual, i.e. (i) for temple, and (ii) for storage,
\none of the purposes of letting being the one specified in Section 6, then
\nsuch premises in their entirety would be governed by the provisions of the
\nAct. The entire property need not have been let for the specified protected
\npurpose. Even if a part of it is proved to be let for specified protected
\npurpose, the entire property would be protected and governed by the
\nprovisions of the Act. This is the correct statement of law and we approve
\nthe same.\n<\/p>\n
For the foregoing reasons, the appeals are held devoid of merit and liable
\nto be dismissed. They are dismissed accordingly though without any order as
\nto the costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Nilesh Nandkumar Shah vs Sikandar Azjz Patel on 23 August, 2002 Bench: R.C. Lahoti, Brijesh Kumar CASE NO.: Appeal (civil) 2862 of 1998 PETITIONER: NILESH NANDKUMAR SHAH RESPONDENT: SIKANDAR AZJZ PATEL DATE OF JUDGMENT: 23\/08\/2002 BENCH: R.C. LAHOTI & BRIJESH KUMAR JUDGMENT: JUDGMENT 2002 Supp(1) SCR 652 The Judgment of the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-135217","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNilesh Nandkumar Shah vs Sikandar Azjz Patel on 23 August, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nilesh-nandkumar-shah-vs-sikandar-azjz-patel-on-23-august-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nilesh Nandkumar Shah vs Sikandar Azjz Patel on 23 August, 2002 - 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