Skip to content


Caitan D' Souza and Ors. Vs. Jerbai S.C. Dinshaw and Ors. (09.09.1970 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. No. 1166 of 1966
Judge
Reported inAIR1972Bom117; (1971)73BOMLR418; ILR1971Bom1467; 1971MhLJ974
ActsBombay Rents Hotel and Lodging House Rates Control Act, 1947 - Sections 13 (1)
AppellantCaitan D' Souza and Ors.
RespondentJerbai S.C. Dinshaw and Ors.
Appellant AdvocateD.Y. Lovekar, Adv. ; for R.M. Tipnis, Adv.
Respondent AdvocateM.N. Kenia and ;U.R. Lalit, Advs.
Excerpt:
.....on the premises with deliberate and conscious use of the premises pursuant to some illegal and immoral purpose or where the tenant has allowed somebody consciously to commit such an offence pursuant to some such illegal or immoral purpose. the user of the premises for illegal or immoral purposes not being necessarily the ingredient of any such offence, circumstances to that effect must be proved in addition to the facts constituting the offence. mere proof of conviction of an offence alleged to have been committed on the premises will not satisfy the requirements of this clause. the facts constituting the offence and the conviction, must be proved independently and it must be further shown that the user of the premises for the said offence was a deliberate act in pursuance of some..........obtained on the ground that the tenant's wife was convicted for using the premises for immoral and illegal purposes as contemplated in section 13(1)(c) of the rent act. this suit was decreed by the trial judge on 4-2-1966 in rae suit no. 4770 of 1962 and the appeal by the tenant was dismissed by the appellate bench of the court of small causes at bombay on 27-6-1966.2. it appears that the tenant has been occupying the premises in dispute for about 35 years before the institution of the proceedings. the tenant's wife was admittedly convicted for offence under section 66(1)(b) of the bombay prohibition act on 19-7-1962. details of the circumstances under which she was tried and convicted are not directly proved, as the plaintiff remained content with examining one bill collector as his.....
Judgment:
ORDER

1. This petition under Article 227 of the Constitution arises out of the Rent Act (Bombay Act No. 57 of 1947) proceedings instituted by the landlord - respondents Nos. 1 to 3 against the original petitioner - tenant, since deceased. Possession of the premises from the tenant was sought to be obtained on the ground that the tenant's wife was convicted for using the premises for immoral and illegal purposes as contemplated in Section 13(1)(c) of the Rent Act. This suit was decreed by the trial Judge on 4-2-1966 in RAE Suit No. 4770 of 1962 and the appeal by the tenant was dismissed by the Appellate Bench of the Court of Small Causes at Bombay on 27-6-1966.

2. It appears that the tenant has been occupying the premises in dispute for about 35 years before the institution of the proceedings. The tenant's wife was admittedly convicted for offence under Section 66(1)(b) of the Bombay Prohibition Act on 19-7-1962. Details of the circumstances under which she was tried and convicted are not directly proved, as the plaintiff remained content with examining one bill collector as his witness and the defendant led his own evidence saying that he did not know anything about the criminal case, though admitted that his wife was convicted. However, the judgment passed by the Presidency Magistrate, 14th Court, Bombay (Exhibit 'A') has gone on record without objection, though this judgment could not have been strictly admissible in evidence for proving the facts constituting the offence, particularly when the tenant was not even party to the case. It appears from the judgment that the premises were raided by the police on 22nd July 1961. Four persons in addition to the wife of the tenant were found inside the room at the time of the search. In the kitchen under the table one pint bottle bearing the label of Black and While Whisky, containing .09 litres of illicit liquor was found. Near the 'mori' was found an aluminum pot containing 1.52 litres of lukewarm water smelling of alcohol. One red coloured hot - water bag smelling of alcohol and a glass smelling of alcohol from the said premises were also seized. It is on these facts that five accused were tried for an offence under Section 66 (1) (b) read with Section 81 of the Bombay Prohibition Act. The contents of the vessel were not sent for Chemical Analysis. However, another bottle containing .09 litres of illicit liquor was sent to the Chemical Analyser and was found to contain ethyl alcohol. The learned Magistrate acquitted other four accused but convicted the wife of the tenant only for an offence under Section 66 (1) (b) for possession of .09 litres of illicit liquor and sentenced her to one days' simple imprisonment and to pay a fine of Rs. 250/-. The trial Court relied on : AIR1955Bom111 Jayantilal Motilal Pathak v. Dayaram Ranchhoddas Soni)and on the strength of this judgment in Criminal case alone held that these facts attracted the provisions of Section 13(1)(c) of the Rent Act and the tenant was liable to be evicted. The same finding has been confirmed by the Appellate Bench.

3. Mr. Lovekar, the learned advocate appearing for the petitioner - tenant, contends that conviction of the wife for offence under Section 66 (1) (b) cannot render the tenant liable to eviction and Section 13(1)(c) cannot be said to have been intended to hold the tenant vicariously liable for the act of his wife or any person residing with him. Answer to this argument much naturally depends upon the true construction of the section. Clause (c) can be divided into three sub - clauses. So divided, Clause (c) of Section 13(1) reads as follows :-

'13 (1) Notwithstanding anything contained in this Act..........................a landlord shall be entitled to recover possession of any premises if the court is satisfied............................

(a)...............................

(b)..............................

(c)..............................

(i) 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

(ii) (that the tenant or nay person residing with the tenant) has been convicted of using the premises or allowing the premises to be used for immoral or illegal purposes; or

(iii) that the tenant has in respect of the premises been convicted of an offence of contravention of any provisions of Clause (a) of sub - section (1) of S. 394 or S. 394 - A of the Bombay Municipal Corporation Act.'

This contention of Mr. Lovekar cannot be accepted unless the words 'has been convicted' are held to control only the words 'the tenant' and not the words 'or any other person residing with the tenant' in the opening of the first sub - clause. Mr. Lalit, the learned advocate appearing for the respondents, seems to me to be right when he contends that such reading militates against the plain dictates of grammar. Even the setting and context of this sub - clause does not admit of such construction. This apart, when the conduct of any person residing with the tenant amounting to nuisance and annoyance also renders the tenant liable to eviction, there is no reason why similar acts on the part of such person residing with the tenant resulting in his conviction as envisaged in the second sub - clause could not have been intended to furnish a cause of action for eviction against the said tenant. This entire Clause (c) deals with the objectionable user of the leased premises involving some sort of nuisance or annoyance or discomfort to neighbours. This object aimed at is likely to be frustrated, if the tenant is not held liable, not only for his own acts, but also vicariously liable for the acts of those who reside with him. It is true that in the third clause, no reference is made to the act of 'any person residing with the tenant.' But then, this clause was introduced in this section long after the main stature was enacted in 1947 by Maharashtra Amendment Act No. 38 of 1962. This apart, Ss. 394 (a) (i) and 394 - A also contemplate of vicarious liability of the occupant for suffering or allowing any body to commit like offences on the premises though its extent and measure is slightly different. Considering as whole, it shall have to be held that the words 'has been convicted' in second clause has not only reference to the word 'the tenant' but also for to 'or any person residing with the tenant.' This interpretation will be in accordance with the plain wording of the clause as also with the governing legislative intent. The first submission of Mr. Lovekar, therefore, fails.

4. Mr. Lovekar then contends that mere proof of commission of some offence on the premises in the absence of proof of something more cannot amount of 'using the premises or allowing the premises to be used for immoral or illegal purpose.' It is true that both the courts below have merely relied on conviction and have not further considered how tenant's wife, i.e., the person residing with the tenant, can be said to have used the premises for immoral or illegal purposes, merely by possession of .09 litres of illicit liquor. Mr Lovekar contends, firstly, that there is no evidence that it was so possessed with any unlawful and immoral purpose and, secondly, that finding of lukewarm water and the hot water bad in addition to the quantity of the liquor and the fact that these were not found actually inside the room where the five persons including the wife of the tenant were sitting at the time of the raid militates against the said liquor having been possessed for any unlawful purposes. I find some substance in this contention of Mr. Lovekar. This contention has nothing to do with the legality or the validity of the conviction itself, but has a bearing on the application of the second part of Clause (c). The trial Court relied on the judgment of this Court reported in : AIR1955Bom111 . This Court followed the judgment of an English case reported in (1925) 1 KB 301, in which corresponding analogous provisions of Section 5(1)(b) of the Rent and Mortgage Interest Restriction Act of 1923 was interpreted. This court held that the facts found in the case were covered by the radio decided by the English case without adding anything of its own, this Court quoted the observations of Atkin, L. J. at page 311 with approval. I wanted to check up the detailed facts of the said case. Unfortunately, however, I could not get the paper book of Civil Revision Application NO. 162 of 1954 decision of which is reported in : AIR1955Bom111 as I am told that the papers have been sent to Gujarat High Court on the bifurcation of the erstwhile Bombay State. However, from the facts given in the report, the tenant seems to have been convicted in that case for offences under Section 65 (e) and 66 (b), though it is not possible to find out what exact quantity of liquor was found in possession of the tenant and precisely under which circumstances, Section 65 (e) deals with offences of selling and purchasing liquor at the premises. The observations of the learned Judge, therefore, have got to be understood in the context of the facts found in that case. The facts of the present case, as stated earlier, are clearly distinguishable. Not only that a very small quantity of liquor was found in possession of the wife of the tenant, but the same was found inside the kitchen along with the hot - water bag as also a vessel of lukewarm water. These facts do prove the conviction for possession of liruor. These do not further prove that user of the premises was for or pursuant to any unlawful or immoral purpose. One cannot definitely say that liquor was possessed for any prohibited use or that such user was contemplated pursuant to any purpose planned in advance. Casual, accidental, incidental and unintended possession and user without any prohibited purpose cannot be ruled out on the facts established. Presumably it could not be so on the facts in : AIR1955Bom111 .

5. This apart, the judgment of the English case relied upon by Dixit, J. itself makes a clear distinction between the cases where offences like these are committed incidentally on the premises in dispute and premises being used for the purposes of commission of the offences pursuant to some immoral or illegal purposes. Thus Banker, L. J. at page 307 observes :-

'It may be that the mere fact of a crime being committed on the premises would not constitute a user of the premises by the tenant for an illegal purpose.'

A little further the learned L. J. agreeing with the observations of Lush, J. in Waller & Son v. Thomas (1921) 1 KB 541 says :-

'I agree with Lush, J. that the object of this clause is to deal with cases in which the improper user of the premises is in furtherance of an unlawful purpose, and not with an isolated instance of illegality in carrying out a lawful purpose.'

Similarly, Scrutton, L. J. observes at page 310 of the report saying :-

'.............it is enough if there is a conviction of a crime which has been committed on the premises and for the purpose of committing which the premises have been used; but that it is not enough that the tenant has been convicted of a crime with which the premises have nothing to do beyond merely being the scene of its commission.'

Third Judge Atkin, L. J. after making the observations quoted at page 838 of the Bom. L. R. says a little further :

'On the other hand if the premises are once used for an immoral or illegal purpose, it does not necessarily follow that they have been used for such a purpose within the section.'

It is thus clear that the three learned L. Js. who decided the English case relied upon by Dixit. J. in : AIR1955Bom111 were conscious of the distinction between the cases where the offence happens to be committed incidentally and casually on the premises without any conscious intention or purpose of using it for any illegal or immoral purpose and the cases where offence is committed on the premises pursuant to some unlawful purpose. The present case clearly falls within the purview of the former category of cases. The present case thus is clearly distinguishable from the case in : AIR1955Bom111 and as such the ratio of the said judgment has been on the face of it wrongly applied to the facts of this case.

6. There are, however, stronger grounds why I think the provisions of Clause (c) of Section 13(1) can have no application of the facts found in this case. Now, Section 12(1) of the Bombay Rent Act affords protection to the tenants as long as they are ready and willing to pay the amount of standard rent and permitted increased and to observe and perform other conditions of tenancy, in so far as they are consistent with the provisions of the Rent Act. It is only under certain contingencies enumerated in Cls. (a) to (1) that the landlord had been enabled to recover possession of the said premises from the tenant in violation of the above protection. Clauses (a) to (e) and (j) to (l) deal with certain acts or omissions of the tenant having some bearing or the other on his obligation to the landlord as his tenant or the demised premises, or to the neighbours. These provisions seek to put to an end to the tenant, where the tenant has been guilty of some act injuriously affecting the leased property or adversely affecting the landlord directly or indirectly. Cl (a) deals with acts of the tenant contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act. Clause (b) deals with the effect of the tenant having erected any permanent structure on the premises by affecting the use of the property. Clause (c) essentially deals with the user of the property in a manner which is likely to constitute some sort of discomfort to the adjoining and neighbouring occupiers. Clause (d) deals with the conduct of the tenant which estops him from refusing to vacate. Clause (e) deals with the effect of sub - letting and assignment. It is unnecessary to go into details of Cls. (j) to (l). Suffice it to observe that each one of these clauses deals with the act or omission of the tenant, which either affects the landlord adversely or the leased premises injuriously. Clause (c) cannot have been intended to be a moral code for the conduct of the tenants for ensuring compliance by them of all the existing laws independently of such obligation. Any infraction on the premises, therefore, cannot be intended to have been covered by the provisions of Clause (e), unless such infraction directly or indirectly affects the landlords or affects the premises or affects the adjoining or neighbouring occupiers. Considered from this point of view, it is impossible to hold that, mere possession of .09 litres of illicit liquor without more alone can have any bearing on his obligation arising out of the tenancy.

7. Mr. Lalit contends that such construction runs counter to the plain words of this sub - clause, and also to dicta down in : AIR1955Bom111 and the English case according to which even solitary user of premises resulting in conviction, as against resulting in conviction, as against continuous or frequent user, is sufficient to warrant eviction of the tenant. I have already stated how facts in : AIR1955Bom111 and legal position there is distinguishable. This contention, however, will loose its force if distinction between stray and casual act of user and solitary act of user with or pursuant to some purpose and design is borne in mind. This sub - clause itself speaks of conviction and not of convictions. Conviction for an offence covered by this sub - clause may be very often than not based on solitary or single act, though instances of a single conviction for more than one act cannot be ruled out. Such one act of the tenant covered by the conviction may be casual, incidental, intentional and without any specific prohibited purpose or it may also be of the nature covered by this sub - clause. The question that Mr. Lalit's submission raises really is :how and where to draw a dividing line Does this sub - clause require proof of something more than the act covering the conviction itself to warrant eviction ?

8. Now, shorn of all the unnecessary verbiage the relevant part of Clause (c) will read as follows :-

'that the tenant..........................has been convicted of using the premises or allowing the premises to be used for immoral or illegal purposes.'

Any literal and too technical a construction may render this entire sub - clause meaningless. As observed by Atkin, L. J. in the above case, there is no offence known to law of 'using the premises for any immoral purposes.' This was the position when Atkin, L. J. was called upon to construe practically analogous provisions of Section 5(1) of Rent and Mortgage Interest Restrictions Act, 1923, and the position is in no way changed when this court is called upon to consider the above sub - clause (c) of S. 13(1) of the Rent Act. Similarly there are very few offences which can answer the description of 'using the premises for illegal purposes.' Then there is also no law making any act of 'allowing the premises to be used either for immoral or illegal purposes' an offence, unless it is construed to have reference to an abetment of an offence in which the user of the premises for unlawful purposes is an ingredient. This is why Atkin, L. J. was constrained to say that corresponding clause of English Act should be construed less technically. The phraseology, therefore, requires to be interpreted after making an attempt to find out the precise legislative intent, as to the remedy that was sought to be advanced and the mischief that was sought to be suppressed. Looked from this point of view, this sub - clause seems to have been intended to cover cases where a tenant or any person residing with him is convicted of an offence committed on the premises with deliberate and conscious use of the premises pursuant to some illegal and immoral purpose or where the tenant has allowed somebody consciously to commit such an offence pursuant to some such illegal or immoral purpose. This view gets support also from the context, particularly from the acts covered by the immediately preceding and following sub - clauses. The entire Clause (c) appears to have been intended to cover acts of tenants etc. Which tend to make life of the neighbours miserable, rendering thereby premises a source of some discomfort. Emphasis appears to be more on the nature of the user of the premises pursuant to an illegal or immoral purpose shall have to be proved to have played a dominant and main part in the incident, if not the ingredient of the said offence itself. The words 'convicted for using the premises for immoral or illegal purposes' or allowing it to do so cannot be given full meaning and effect in any way otherwise. On plain implication of this construction is that user of the premises for illegal or immoral purposes not being necessarily the ingredient of the offence, circumstances to that effect shall have to be proved in addition to the facts constituting the offence to attract this sub - clause of Clause (c) of Section 13. Mere proof of conviction of an offence alleged to have been committed on the premises alone will not satisfy the requirements of this clause. Even otherwise, the judgment regarding the conviction passed by the criminal court is not admissible in civil proceedings excepting to prove the fact of conviction or acquittal. The facts constituting the offence and the conviction have got to be proved independently. But as stated above, the tenant may not entail the forfeiture of the tenancy merely by proof of the facts constituting the offence unless it is further shown that the user of the premises for the said offence was a deliberate act and also was in pursuance of some illegal and immoral purpose. All that is held in : AIR1955Bom111 and the English case is that landlord need not prove the continuous user or even a frequent user. That does not mean that offence casually an incidentally committed on the premises without there being any intention of user pursuant to the purposes mentioned there were intended to be covered by the above clause. Even if the single act is found to be sufficient to bring home the guilt to the accused, the said single act alone without the proof of the same having been committed pursuant to some illegal or unlawful purpose, will not furnish any cause of action to the landlord for eviction of the tenant.

9. Result is that the application is allowed and the orders passed by the two Courts are quashed.

10. There will be no order as to costs in the circumstances of the case.

11. Application allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //