Skip to content


Hargovindji Chunnilal Bhayani Vs. Mahatma Gandhi Sarwajanaik Wachanalaya - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Application No. 878 of 1971
Judge
Reported inAIR1976Bom149; ILR1977Bom889; 1976MhLJ237
ActsCentral Provinces and Berar Letting of Houses and Rent Control Order, 1949; Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946 - Sections 2 and 4; Provisions of Bombay Rents, Hotel and Lodging House Rates Control Act
AppellantHargovindji Chunnilal Bhayani
RespondentMahatma Gandhi Sarwajanaik Wachanalaya
Advocates:H.S. Ghare, Adv.
Excerpt:
a) the case debated on the scope of the right given by sub clause (7) of clause 13 (3) (vii) of the c. p. and berar letting of houses and rent control order, 1949 - the court ruled that the right created was contingent upon the proceedings under clause 13(3) (vii) - further, the right could not be extended to private agreements where under tenancy was surrendered.;b) the case dealt with the private agreement between the tenant and the landlord where in the tenant surrendered the lease on promise by the landlord to re-let the premises after reconstruction - the landlord failed to act according to the agreement - the court ruled that since clause 28 of c. p. and berar letting of houses and rent control order, 1946 was not contravened, such agreement was not one under rent control order -..........bhogaqni, : [1970]2scr950 .7. now all these submissions cannot be accepted. it is plain that the terms of clause 13 (3) (vii) of the rent control order are not fulfilled so as to carve out a right in favour of the petitioner. it is not open for the authorities to substitute by interpretation different conditions than the one mentioned in clause 13 (7). the right given by sub-clause (7) is a contingent right depending upon the proceedings taken by the landlord under clause 13 (3) (vi). it is not possible to extend that right to the private agreements between the parties which cannot be enforced under the scheme of the rent control order. a look at the provisions of clause 13 (1) read with clause 13 (3) would indicate that it operates upon the right of the landlord to determine the.....
Judgment:
ORDER

1. Refusal to interfere in the present controversy brought before this Court under Article 227 of the Constitution of India is likely to result in some hard and unjust results as far as the petitioner is concerned and is also likely to unjustly confer a benefit in favour of the respondent which was not intended by the parties as appears from the facts of the case. However, the matter before this Court arises out of a proceeding wherein the present petitioner cannot be helped and he must be left to his remedy under the general law.

2. The respondent owns premises situate at Hinganghat. A block was in the occupation of the present petitioner which he was using for business purposes on a monthly rent of Rs. 20/- per month, He was thus a tenant of the respondent. The respondent wanted to construct a new building and it appears ample from the facts to observe that for that purpose wanted to have the premises vacated by the petitioner. Such a landlord could have satisfied the requirements of Clause 13 (3) (iii) of the C. P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter called the order) and determined the tenancy by giving a notice under Section 106 of the T. P. Act. If such an application was made, the landlord had to satisfy the Rent Controller about the validity of the ground and the Rent Controller upon such satisfaction would have granted the permission. If as a result of such permission tenant was ejected, provisions of Clause 13 (7) operated upon the premises vacated for the purpose of repairs or alterations and created a right in favour of the tenant like the petitioner who is evicted after obtaining the orders of the Rent Controller to repossess the same premises on the same conditions subject, however, to the right of waiver in favour of the tenant.

3. In the present case, however, it appears that the respondent approached the petitioner privately and by an agreement entered into on March 4, 1969, the present petitioner-tenant agreed to vacate the premises within fifteen days from the date of agreement., It is provided in the agreement that during the period of construction of the new building the petitioner will be occupying the open land by constructing a temporary shed. The respondent had agreed to give material required for such construction. It is further clear from the agreement that after the new construction was erected the respondent had agreed that a specified shop, being ship No. 2, would be allotted to the petitioner and the rent would be fixed according to Government Notification. It appears from the order and the proceedings brought before this Court that acting upon this agreement the petitioner vacated the premises and the respondent took its possession and has constructed a new building. The petitioner under the agreement is occupying a temporary structure in the compound of that building as was envisaged by the agreement. The respondent, however, refused, it appears, to let out Block No. 2, which was allotted under the agreement in the new building to the petitioner and, on the other hand, wanted to eject the petitioner from the temporary structure.

4. Under these facts the petitioner took recourse to an application under Clause 13 (7) of the Rent Control Order asking for exercising the right to repossess Block No. 2 in the newly constructed building. The Rent Controller rejected was not a person who was evicted under an order of the Rent Controller as contemplated under Clause 13 (1) upon satisfaction of the ground mentioned in Clause 13 (3) (vii). An appeal was taken against that order and the appellate court affirmed that finding. Against that order the present petition has been filed. This Court has granted rule and as well as has granted interim injunction as prayed for in the petition prohibiting the respondent from letting out premises of Block No. 2 to any one else.

5. Mr. Ghare the learned counsel appearing for the petitioner submits that though the tenancy was surrendered in the manner indicated above under an agreement with the landlord, it must be assumed that for the purpose of sub-clause (7) of Clause 13, such agreements do create rights in favour of the tenants to repossess the property and as such the application of the present petitioner was wrongly rejected by the authorities. He further submits that the provisions of sub-clause (7) should be so construed to further the remedy of the tenant and to suppress the mischief that is intended by the landlord. At any rate, he argues that this legislation which is meant to protect the tenants and the premises in their occupation, gives ample power to the authorities to see that the terms of the Order are obeyed and complied with and they possess all necessary powers for making the same effective. For that purpose he relies on the provisions of the C. P. and Berar Regulation of Letting of Accommodation Act, 1946, particularly Section 2 and Section 4, read with Clause 28 (1) of the Rent Control Order. He submits that the refusal of the respondent to respect the agreement with regard to the premises to which the Rent Control Order, applies should be deemed to be a contravention of the order itself within the meaning of Section 4 of the Act (ibid) and as such Clause 28 (1) of the Rent Control Order permitted exercise of power by the Rent Control Authorities to prohibit such disobedience. It is further contended that though there is a private agreement between the parties it is obvious that the premises are protected premises and, therefore, right annexed to such premises can well be further by the remedies provided by the Order itself.

6. He relied on the decision of this Court in Krishna Laxman v. Narsingrao, : AIR1973Bom358 and also on the decision of the Supreme Court, A. K. Dhonde v. H. G. Bhogaqni, : [1970]2SCR950 .

7. Now all these submissions cannot be accepted. It is plain that the terms of Clause 13 (3) (vii) of the Rent Control Order are not fulfilled so as to carve out a right in favour of the petitioner. it is not open for the authorities to substitute by interpretation different conditions than the one mentioned in Clause 13 (7). The right given by sub-clause (7) is a contingent right depending upon the proceedings taken by the landlord under Clause 13 (3) (vi). It is not possible to extend that right to the private agreements between the parties which cannot be enforced under the scheme of the Rent Control Order. A look at the provisions of Clause 13 (1) read with Clause 13 (3) would indicate that it operates upon the right of the landlord to determine the tenancy by giving notice under the provisions of T. P. Act. Such a landlord who seeks to exercise the right under that section has to satisfy the Rent Controller about the existence of the grounds mentioned in sub-clause (3) of Clause 13. In the entire structure of Clause 143 other modes of determining tenancies are not prohibited. The tenant's right to terminate his own lease by surrender or by notice is not controlled nor he is required to take any proceedings nor satisfy the authorities as to why he is surrendering the tenancy. It is only the landlord's right that is regulated. The nature of proceedings, therefore, under Clause 13 of which sub-clause (7) is the part cannot be lost sight of and the interpretation which runs counter to the scheme of Clause 13 itself cannot be accepted on the grounds of equity and justice. Sub-clause (7) therefore was not available to the petitioner nor it was incumbent upon the authorities to give him relief under that clause for he was not a tenant against whom any proceedings were taken under Clause 13 (3). He had entered into an agreement which was permissible and not prohibited and thereby created certain rights followed by certain obligations in his own favour or against him. the nature of his right thus is founded on an agreement as contra distinguished, upon an order as is required by the terms of sub-clause (7).

8. That is enough to dismiss the present petition.

9. Other part of the argument of the learned counsel that this must be treated as proceedings under Clause 28 and there being an attempt to contravene the terms of the Order the authorities should be directed to give protection to him or to his agreement, is equally fallacious. If there was liberty to enter upon such agreement and if those agreement were not pursuant to any of the clauses of the Order made under Section 2 of the Act (ibid), it is not possible to hold that the words of Section 4 of the Act (ibid) should be so construed to bring in the contravention of such agreements or breach of such agreements to mean that it was a deemed contravention of the Order itself. To find such a result, the agreements must be under the provisions of the Order itself. If any of the clauses contemplated such an agreement, then its breach can be well within the cognizance of the authorities empowered to enforce the provisions of the Order. That was the law laid down in S. K. Dhonde v. H. G. Bhogani, : [1970]2SCR950 by the Supreme Court while considering the provisions of Section 28(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Act No. LVII of 1947). The agreement there was referable to the provisions of Section 18(3) and, therefore, the Supreme Court observed that it was the Court under Section 28 of that Act which will have jurisdiction because of the phraseology available in that section relating to claim or question arising out of that Act or any of its provisions. The said Bombay Act and its scheme is not in pari materia with provisions of the Rent Control Order nor the provisions of Section 28 of that Act are in pari materia with the terms of Clause 28 of the present Order. In fact, the terms of the present clause are too much restrictive if compared with the terms of Section 28 of the Bombay Act. The said decision, therefore, is of no assistance to the petitioner. Similar is the position with another decision of this Court in Krishna Laxman v. Narsingrao, : AIR1973Bom358 , under the same Act. There the jurisdiction was upheld on the basis of the definition and contemplation of the word 'premises' obtainable under Section 5(8) of the Act on the footing that the contract of tenancy had continued to exist between the parties and the petitioner's right was incidental to that contract of tenancy.

10. It is also not possible to accept the submission that his agreement must be deemed to be a composite one coming within the mischief of the terms of Clause 13 (1) of the Order and, therefore, the opponent should be proceeded against under Clause 28. The petitioner wants to construe the agreement as a wants to construe the agreement as a notice given by the landlord and acted upon by the tenant without the permission from the Rent Controller. As such, he submits that landlord should be within the inhibition of sub-clause (1) of Clause 13 and consequentially the tenancy must be deemed to be continued as there was no permission. As a result of this submission and such construction it is logically submitted that the petitioner could his remedy on Clause 28.

11. This approach is also not warranted, for the terms of the agreement between the parties do not render it an agreement prohibited by sub-clause (1) of Clause 13. What is prohibited by that clause as stated earlier is to determine the lease under two stated categories of Clauses (a) and (b). If the landlord seeks to give notice determining the lease or determines the lease if it was determinable at his option or where the lease is determinable by efflux of time, then he is required to obtain permission as provided by sub-clause (3). In other matters landlord is not prohibited in working out his rights. The effect of sub-clause (1) of Clause 13 would not be to take away all the rights of the landlord available to him under general law with regard to his property leased out to tenant. At least that is not expressly so stated nor it is possible to enlarge upon the words of sub-clause (1) Clause 13. A look at the agreement shows that it was an agreement agreed to by the parties creating an obligation against the respondent to let out a newly constructed block No. 2. On the one hand there was determination by surrender of the old lease by the tenant, on the other, there was an agreement to lease, obliging the landlord or the respondent to let out shop No. 2 to the petitioner. The right under the latter obligation cannot be enforced under the jurisdiction contemplated wither by Clause 28 of the Order or by the terms of sub-clause (7) of Clause 13 0f the Order. In the very nature of the scheme of the present Order, the powers are conferred on the executive authorities and they are not the courts having civil jurisdiction. Their power must be strictly found within the terms of the Order itself and it will be futile to find in the present circumstances a power in favour of such authorities to enforce the obligations against the landlord.

12. That being the position, the petition has to be dismissed and it has to be observed that, if at all, the petitioner must seek his remedy in Civil Court. It does appear that petitioner was litigating bona fide under the provisions of sub-clause (7) of Clause 13 and Clause 28 of the Order. This Court had granted an injunction as stated earlier while admitting the petition. The respondent has not cared to appear before this Court when the matter is heard. As the petition fails because of lack of remedy in the terms of the Order, it appears justice will be met by keeping alive the injunction for some time so as to enable the petitioner to take his remedy in Civil Court against the respondent. It is therefore directed that the injunction granted to the petitioner will remain in force for a period till the end of February 1975 and thereafter will automatically cease to operate.

13. The petition thus fails and subject to above order, will stand dismissed. There would be no orders as to costs in this petition.

14. Petition dismissed.


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