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Jalna Consumers' Co-operative Society Ltd. Vs. Hiralal Girdharilal (09.11.1971 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Application No. 1123 of 1967
Judge
Reported in(1972)74BOMLR762
AppellantJalna Consumers' Co-operative Society Ltd.
RespondentHiralal Girdharilal
Excerpt:
.....the hyderabad act of 1954 there being no provision for the notice to be given by a landlord to the tenant, a landlord could contend before the rent controller that the provisions of the hyderabad act having been satisfied, he was entitled to possession from the tenant. the thika act like other rent acts enacted in various states imposes certain further restrictions on the right of the landlord to evict his tenant and lays down that the status of irremovability of a tenant cannot be got rid of except on specified grounds set out in section 3. the right of the appellant therefore to have a notice as provided for by the proviso to clause 7 of the lease was not in any manner affected by section 3 of the thika act. this would, therefore, clearly show that the hyderabad rent control act does..........the hyderabad act of 1954 there being no provision for the notice to be given by a landlord to the tenant, a landlord could contend before the rent controller that the provisions of the hyderabad act having been satisfied, he was entitled to possession from the tenant. there is no doubt that the hyderabad act of 1954 does not contain any provision requiring a landlord to give a notice to the tenant before he can proceed before the controller for seeking possession. mr. ganpule's further argument was that a provision similar to the act of 1954, which was in force earlier was construed by the hyderabad high court to hold that notice was not necessary before action could he taken by a landlord for possession under the provisions of the act. in mohd. gous v. karunnissa begum a.i.r. [1951].....
Judgment:

Wagle, J.

1. This is an application in revision against an order passed by the Assistant Judge, Aurangabad, upholding the decision of the Rent Controller that notice is necessary before relief can be obtained by a landlord of possession of property under the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954. The few facts necessary for the disposal, of this point, which arises in all these matters, are the following:

The Jain a Consumers' Co-operative Society purchased the property in dispute on July 21, 1961. On October 2, 1961 a notice was given by the petitioners to the respondent-tenant informing him that the petitioners had become the purchasers of the suit property and that, therefore, he should go on paying the rent to them. In this notice a claim was also made by the petitioners that as they required the property for their personal occupation, the tenant should quit.

2. By his reply1 dated October 16, 1961, the respondent refused to attorn on the ground that he had received no intimation from the owner of the transfer in favour of the petitioners. The matters remained at that stage for a period of about 15 months. On January 7, 1963 the instant suit was filed claiming possession from the respondent on the ground that the property was required for personal occupation; that it was also required for reconstruction of the property and that the respondent had committed defaults in payment of rent for a period between January 16, 1962 and January 2, 1963; the default being wilful the plaintiffs were entitled to possession.

3. The respondent's defence was that the property Was not required bona fide for the personal occupation of the petitioners; that there was no necessity for reconstruction and that the money order having been sent in respect of the arrears, there was no default by him and if, at all, there was default, the same was not wilful.

5. On August 26, 1966 the suit was dismissed in regard to possession although it was decreed for rent. It was held that the notice given did not terminate the tenancy and since notice was required to be given the petitioners were not entitled to the relief of possession. The appeal filed by the petitioners has also been dismissed. Against that decision the instant revision has been filed. Since the point whether a notice was required to be given before possession could be obtained under the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954, is common to the instant revision and the other matters, they have been referred to a Division Bench by Kantawala J. for deciding one point: whether notice was necessary to be given before possession could be obtained under the Hyderabad Act.

6. Mr. Ganpule, who appears for the petitioner-landlords, contended that a careful scrutiny of the Hyderabad Aft would clearly show that the Hyderabad Act of 1954 is a complete Code by itself. The Act, therefore, providing for the eviction and being a complete Code, it is only the provisions of the Hyderabad Act of 1954 which had to be taken into consideration and that incidentally the provisions of general law viz., those contained in the Transfer of Property Act in regard to eviction would not apply in any particular. It was urged that in the Hyderabad Act of 1954 there being no provision for the notice to be given by a landlord to the tenant, a landlord could contend before the Rent Controller that the provisions of the Hyderabad Act having been satisfied, he was entitled to possession from the tenant. There is no doubt that the Hyderabad Act of 1954 does not contain any provision requiring a landlord to give a notice to the tenant before he can proceed before the Controller for seeking possession. Mr. Ganpule's further argument was that a provision similar to the Act of 1954, which was in force earlier was construed by the Hyderabad High Court to hold that notice was not necessary before action could he taken by a landlord for possession under the provisions of the Act. In Mohd. Gous v. Karunnissa Begum A.I.R. [1951] Hyd 111, a Division Bench of the Hyderabad High Court considered the provisions analogous to Section 15 of the Hyderabad Kent Control Act, 1954 and held that it was not necessary for a landlord wishing to proceed under the Rent Control Act to issue a notice before commencing such proceedings. The Division Bench relied upon a decision of the Madras High Court in Krishnamurthy v. Parthasarathy A.I.R.[1949] Mad. 780 and another case of the Madras High Court holding similar views. The learned Judges dealt with this point very briefly and observed as follows (p. 112):.In our opinion one of the objects of the Rent Control Order is to see that tenants are not ejected from their holdings in these times when it is difficult to Secure houses by mere reliance on the terms of the tenancy & that in the public interest the Rent Controller shall use his discretion in the light of the provisions of the Order & pass equitable order whether or not to evict the tenant. We, therefore, hold that the provision relating to notice under the T.P. Act has become inapplicable to cases of ejectment coming within the purview of the Rent Control Order & it is not, therefore, necessary for a landlord, wishing to proceed under the said Order, to issue notice under the T.P. Act before commencing such proceedings.

Mr. Ganpule also relied upon a decision of a Full Bench of the Madras High Court in Raval & Co. v. Ramachandran : AIR1967Mad57 F.B.

7. The Pull Bench of the Madras High Court was considering the provisions of the Madras Buildings (Lease and Rent Control) Act (18 of 1960) for deciding whether a contractual tenancy has got to be terminated by a notice before a landlord can take advantage of the provisions of the Madras Act. Although the Full Bench was considering the provisions of the Madras Act, in order to determine the question whether the tenancy had necessarily to be terminated before an application for possession can be made by a landlord, the learned Judges of the Full Bench also considered the provisions of the other similar Acts in other States. They particularly considered the provisions of the Bombay Rent Act, 1948 : Sections 12 and 13 of which are the relevant sections. After pointing out that there is a distinction between the provisions of the Bombay Rent Act and the Madras Act, in order to get over the two decisions of the Supreme Court in Punjalal v. Bhagwatprasad : [1963]3SCR312 and Mangilal v. Sugan Chand : [1964]5SCR239 , the Full Bench held that the Madras Act is a complete Code by itself. They further held that the provisions of general law would not apply and that the provisions of the Madras Rent Act alone would govern the relationship, etc. between the landlord and tenant. It was, therefore, urged by Mr. Ganpule that since the provisions of the Hyderabad Rent Control Act are in pari mdteria with the provisions of the Madras Rent Act, the decision of the Full Bench of the Madras High Court given after considering the provisions of the. Bombay Rent Act and the Hyderabad Rent Control Act should be accepted by us as laying down the proper law on the subject.

8. As against the view expressed in Raval & Co. v. Bamachandran and Mohd. Gous v. Karunnissa Begum and followed in K. Satyanarayana v. G.Narasimhamurthy A.I.R.[1971] A.P. there are several decisions of the Supreme Court which have, from time to time, considered this point. In Punjalal v. Bhagwatprasad, the Bombay Rent Act was considered by their Lordships. Their Lordships while considering the provisions of Section 12(1), which relate to obtaining of possession on a default in payment of rent being made by the tenant, observed as follows (p. 123):.The provisions of this Section, therefore will operate against the landlord after the determination of the tenancy by any of the modes referred to in Section 111 of the Transfer of Property Act. What this section of the Act provides is that even after the determination of the tenancy, a landlord will not be entitled to recover possession, though a right to recover possession gets vested in him, so long as the tenant complies with what he is required to do by this section. It is this extra protection given by this section which will be useful to the tenant after his tenancy has been determined. The section does not create a new right in the landlord to evict the tenant when the tenant does not pay his rent. It does not say So, and therefore, it is clear that a landlord's right to evict the tenant for default in payment of rent will arise only after the tenancy is determined and the continued possession of the tenant is not on account of the contractual terms but on account of the statutory light conferred on him to continue in possession So long as he complies with what Sub-section (1) requires of him.

This decision, therefore, lays down that before the right under the Bombay Rent Act can be exercised by the landlord there must be a determination of tenancy by him.

9. In Mangilal v. Sugan Chand their Lordships were considering' the provisions of the M.P. Accommodation Control Act (23 of 1955). It was held by their Lordships as follows (p. 106):.The effect of Clauses (a) of Section 4 is merely to remove the bar created by the opening words of Section 4 on the right which a landlord has under Section 106 of the Transfer of Property Act to terminate a tenancy of a tenant from month to month by giving a notice terminating his tenancy.... The character of the tenancy as one from month to month remains; but to it is added a condition that the unfettered right to terminate the tenancy conferred by Section 106 will be exercisable only if one of the grounds set out in Section 4 of the Accommodation Act is shown to exist.

It was held, in other words, that the M.P. Accommodation Act gave an additional protection to the tenant. It did not do away with the right of the tenant to have a notice of termination before possession could be claimed from him.

10. The Supreme Court had before it a similar question in Abbasbhai v. Gulamnabi : [1964]5SCR157 . While interpreting Sections 12(1) and 13 of the Bombay Rent Act, their Lordships have observed as follows:

Clause (1) of Section 12 applies to a tenant who continues to remain in occupation after the contractual tenancy is determined : it does not grant a right to evict a contractual tenant without determination of the contractual tenancy.

In this case also, therefore, the Supreme Court held that there is no right in the landlord to claim possession from the tenant unless the tenancy is determined.

11. Finally, their Lordships summarised the provisions of the Rent Restriction Acts in the various States in Manujendra v. Purnedu : [1967]1SCR475 . This was a case from Calcutta and the sections of Thika Tenancy Act, 1949 were being considered in this case. While considering the law relating to restrictions imposed on the landlord's right to obtain possession from a tenant, their Lordships reviewed the law in respect of the several Rent Acts operative in several States. In para. 7 of the judgment, their Lordships have summarised the position as follows (p. 1423):.The Thika Tenancy Act does not confer any additional rights on a landlord but on the contrary imposes certain restrictions on his right to evict a tenant under the general law or under the contract of lease. The Thika Act like other Rent Acts enacted in various States imposes certain further restrictions on the right of the landlord to evict his tenant and lays down that the status of irremovability of a tenant cannot be got rid of except on specified grounds set out in Section 3. The right of the appellant therefore to have a notice as provided for by the proviso to Clause 7 of the lease was not in any manner affected by Section 3 of the Thika Act. The effect of the non obstante clause was that even where a landlord has duly terminated the contractual tenancy or is otherwise entitled to evict his tenant he would still be entitled to a decree for eviction provided that his claim for possession falls under any one or more of the grounds in Section 3. Before therefore the respondents could be said to be entitled to a decree for eviction they had first to give six months' notice as required by the proviso to Clause 7 of the lease and such notice not having been admittedly given their suit for eviction could not succeed.

It is true that in this case their Lordships were considering the provisions of the Act in relation to the terms of the lease. But in view of the various decisions of the Supreme Court, there would be no difference between the rights of a tenant whether under the general law or under an agreement between the parties.

12. One of the grounds taken by the Full Bench of the Madras High Court was that the Madras Act was a complete Code by itself. Their Lordships considered the provisions of the Thika Tenancy Act with reference to its being a complete Code in Manujendra v. Purnedu. The observations of their Lordships are as follows:.the High Court at Calcutta while dealing with the present Act held that in matters not dealt with by the Act it would still be the Transfer of Property Act which would apply, for, the Thika Tenancy Act is not a complete Code and deals only with some aspects of Thika Tenancy. It does not provide for the rights and liabilities of the lessor and lessee in a Thika tenancy and therefore, for those purposes, one has still to look to the Transfer of Property, Act.

Their Lordships, therefore, held that the Thika Tenancy Act is not a complete Code by reason of the fact that there is nothing about the rights and liabilities of the lessor and lessee and that the Thika Tenancy Act dealt only with some aspects of Thika tenancy. The Act with which we are now concerned is the Hyderabad Rent Control Act and there also the provisions of the Act do not deal with the rights and liabilities of the lessor and lessee under the Hyderabad Act. It necessarily, therefore, follows that with regard to the other matters the general law has to be followed. The observations of the Supreme Court would, therefore, apply with equal force to the provisions of the Hyderabad Rent Control Act. This would, therefore, clearly show that the Hyderabad Rent Control Act does not form a complete Code by itself. We would have dealt with the decision of the Madras Full Bench in further detail but for the observations of the Supreme Court in Manujendra v. Purnedu. The Full Bench of the Madras High Court has dealt with and laid down a principle which was earlier enunciated in Krishnamurthy v. Parthasarathy. The learned Judges of the Full Bench while deciding the point raised before them considered the various, decisions of the Court and followed them and one of the decisions was Krishnamurthy v. Parthasarathy, which held that no notice to determine the tenancy is necessary if the case is governed by the Madras Rent Act. In dealing with this point the Supreme Court observed as follows (p. 1423):.The only decision which has taken a contrary view is Krishnamurthy v. Parthasarathy, where it was held that Section 7 of the Madras Buildings (Lease and Rent Control) Act (XV of 1946) had its own scheme of procedure and therefore there was no question of an attempt to reconcile that Act with the Transfer of Property Act. On that view, the High Court held that an application for eviction could be made to the Rent Controller even before the contractual tenancy was terminated by a notice to quit. That decision is clearly contrary to the decisions of this Court in Abbasbhai's case, and Mangilal's case, and therefore is not correct law.

The decision of the Full Bench of the Madras High Court in Raval & Co. v. Ramachandran is exactly the same as the decision of the same Court in Krishnamurthy v. Parthasarathy and since the decision in Krishnamurthy v. Parthasarathy is held to be contrary to the decision of the Supreme Court and not correct law, an inference must follow that the decision of the Full Bench of the Madras High Court also is not correct law. The point, therefore, does not survive that a decision to the contrary is taken by the Madras High Court in regard to the interpretation of the provisions which are similar to the provisions of the Hyderabad Rent Control Act.

13. The decision of the Supreme Court to which we have made a reference above lays down the following principles:

(1) That the Rent Acts which restrict the right of a landlord to obtain possession from a tenant do not take away the right of a tenant to have a notice before being asked to quit.

(2) That the Rent Acts do not give an additional right to the landlord to obtain possession without determining the tenancy of the tenant.

(3) That a statutory protection is given when the contractual protection is lost. Incidentally the contractual protection of a tenant to be entitled to retain possession till the tenancy is determined is not in any way affected by the Rent Acts, and

(4) That the Rent Acts, not being complete Codes by themselves, cannot lead to a necessary implication that the general law is substituted by the various Rent Acts.

It may here be observed that their Lordships of the Supreme Court considered the effect of even a non-obstante clause in Manujendra v. Purnedu and at p. 1424 held that the rights of the tenant which he has under the contract cannot be taken away.

14. In the result we must hold that under the Hyderabad Rent Control Act determination of tenancy is a necessary ingredient before a landlord can take proceedings under the Rent Control Act.

15. A judgment of a single Judge of this Court in Maniram Narsingrao v. Abdul Sattar Roshansaheb (1965) Civil Revision Application No. 1739 of 1960 was also cited before us. The learned Judge has taken a view similar to the view we have taken. We have not made any reference to the reasoning adopted by the learned Judge because we have chosen to rely upon the decision of the Supreme Court in this matter.

16. The answer to the point referred to us, therefore, is that notice to determine the tenancy is necessary before possession can be obtained by a landlord under Section 15 of the Hyderabad Rent Control Act.

17. In the view that we are taking the rule in C.R.As. No. 742 of 1966 will have to be made absolute with no order as to costs throughout, and in C.R.A. No. 362 of 1967 the rule will have to be discharged with no order as to costs. We order accordingly.

18. In view of our aforesaid decision, C.R.As. 1123 of 1967, 1124 of 1967 37 of 1968, 38 of 1968 and 1098 of 1967 will have to go back before the single Judge for disposal in the light of the finding that determination of tenancy is necessary before the landlord can obtain possession of the premises from his tenant.

19. In C.R.A. No. 1098 of 1967 it was urged by Mr. Vaishnav that a contention was advanced by him that no notice to determine the tenancy is necessary as the tenancy had been terminated by efflux of time. However, that is a matter for the single Judge to decide.


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