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Homi Jamshedji Khansaheb and ors. Vs. Chandrakant Atmaram Lamage and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 2500 of 1983
Judge
Reported in1984(2)BomCR342; (1984)86BOMLR188; 1984MhLJ719
ActsBombay Rents, Hotels, and Lodging House Rates Control Act, 1947 - Sections 5(11); Bombay Rents, Hotels, and Lodging House Rates Control (Amendment) Act, 1978 - Sections 2(2)
AppellantHomi Jamshedji Khansaheb and ors.
RespondentChandrakant Atmaram Lamage and ors.
Appellant AdvocateK.K. Singhavi and ;M.S. Udeshi, Advs.
Respondent AdvocateS.N. Naik and ;M.D. Gangakhedkar, Advs. for respondent No. 1
Excerpt:
.....better position than the original tenant himself. could it have been contemplated by the legislature that position of the legal representatives of such a tenant who had lost all the rights and who had incurred an obligation under a decree of the court to hand over possession of the suit property on the specified date, on account of the happening of the death of that person, in the meaning, had improved and they had higher and better rights than him? 22. in the result, this petition must fail......the said jamshedji khansaheb for possession of the said apartment, hereinafter referred to as 'the suit premises', on the ground that the said jamshedji khansaheb was guilty of arrears of rent warranting a decree for possession under section 12(3) of the bombay rents, hotel and lodging house rates control act, hereinafter referred to as 'the bombay rent act'. on 31st august, 1970 the said suit was decreed. however, in an appeal preferred by the original tenant the decree was set aside and the suit was remanded to the court of first instance for fresh trial.3. after remand the trial court again decreed the suit by its judgment and order dated 13th june, 1973. this decree of possession of the suit premises was confirmed by the appellate court on 13th september, 1973. the respondent made an.....
Judgment:

R.A. Jahagirdar, J.

1. This petition seeks to challenge a decree of the Court of Small Causes at Bombay by which a suit filed by the petitioners was dismissed. That decree of dismissal of the suit was subsequently confirmed by the Appellate Bench of the Small Cause Court and it is against this decree of the Appellate Bench of the Small Cause Court that this petition under Article 227 of the Constitution has been filed.

2. The first respondent in this petition is the owner of a building situated at Khetwadi Cross Lane, Bombay-400 004. In this building there is an apartment bearing Block No. 5 which was originally tenanted by one Jamshedji Khansaheb. The first respondent, hereinafter referred to as 'the respondent', filed a suit, being R.A.E. Suit No. 4048 of 1965, in the Court of Small Causes at Bombay against the said Jamshedji Khansaheb for possession of the said apartment, hereinafter referred to as 'the suit premises', on the ground that the said Jamshedji Khansaheb was guilty of arrears of rent warranting a decree for possession under section 12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as 'the Bombay Rent Act'. On 31st August, 1970 the said suit was decreed. However, in an appeal preferred by the original tenant the decree was set aside and the suit was remanded to the Court of first instance for fresh trial.

3. After remand the trial Court again decreed the suit by its judgment and order dated 13th June, 1973. This decree of possession of the suit premises was confirmed by the Appellate Court on 13th September, 1973. The respondent made an application for execution of the decree against the original tenant and in those execution proceedings the petitioners put up obstruction. It may be added at this stage that on 17th March, 1975 the original tenant Jamshedji Khansaheb expired and the petitioners are the heirs and legal representatives of the said Jamshedji Khansaheb. The respondent took out an obstructionist notice being Obstructionist Notice No. 436 of 1974, which was made absolute on 16th July, 1977. The petitioners thereafter have not been able to get rid of the decree which was originally passed against Jamshedji Khansaheb nor have they been able to get rid of the order making absolute Obstructionist Notice No. 436 of 1974.

4. An Act, being Maharashtra Act No. 22 of 1978, having received the assent of the President, was published in the Maharashtra Government Gazette on 23rd October, 1978 on which date it came into force. By this Act, section 5(11)(c) of the Bombay Rent Act was drastically amended. This was done by section 2(1)(b) of the said Act. Section 2(2) of the said Act also made a provision which has the result of giving retrospective effect to the amended section 5(11)(c) of the principal Act.

5. The petitioners filed a suit on 3rd December, 1980, being R.A. Declaratory Suit No. 6501 of 1980. In the said they prayed for a declaration that in view of the amendment of section 5(11)(c) of the Bombay Rent Act and in the light of section 2(2) of the Act 22 of 1978, they became the tenants of the suit premises. It was the case of the petitioners that on 17th March, 1976 when Jamshedji Khansaheb, the original tenant died, they were residing with the said Jamshedji Khansaheb and, therefore, by virtue of the provisions contained in section 5(11)(c) as amended by Act No. 22 of 1978 read with sub-section (2) of section 2 of the said Act they have been in law recognised as tenants and they could not be evicted from the suit premises in execution of the decree obtained by the respondent in R.A.E. Suit No. 4048 of 1965. There were certain interlocutory proceedings in the said suit but it is not necessary for us to refer to the same. Ultimately on 22nd March, 1983 the learned trial Judge dismissed the suit of the petitioner with costs. This decree of the dismissal of the suit was challenged, as mentioned earlier in the judgment, by the petitioners in an appeal, being Appeal No. 528 of 1983, which was heard and dismissed by the Appellate Bench of the Court of Small Causes by its judgment and order dated 22nd June, 1983. It is thus that the petitioners have approached this Court under Article 226 of the Constitution.

6. This petition was placed before a learned Single Judge of this Court in accordance with the rules governing the disposal of the business of this Court. The learned Single Judge by his order dated 22nd November, 1983 thought that the point involved in this petition is of sufficient importance likely to affect a large number of cases and, therefore, he thought it fit to place this petition 'before a Division Bench so as to have an authoritative judgment on the concerned issue.'

7. Before proceeding to consider the arguments which have been advanced by Mr. K.K. Singhvi, the learned Advocate appearing in support of the petition, it would be useful to briefly refer to the relevant provisions and the circumstances in which the Amending Act No. 22 of 1978 came to be passed. The relevant provisions of law are being noticed by us in the context of the facts which are admitted and which have been already narrated by us earlier in this judgment. Jamshedji Khansaheb was the tenant of the suit premises and against him a decree had been passed for possession on 13th June, 1973. That decree had become final and Jamshedji Khansaheb died on 17th March, 1975 long before the Amending Act of 1978 came into force. We are also proceeding on the basis that the petitioners were residing with the said Jamshedji Khansaheb on 17th March, 1975 when the side Jamshedji Khansaheb expired.

8. Under section 5(11)(c) of the Bombay Rent Act as it stood prior to the amendment of 1978, the definition of a tenant included 'any member of the tenant's family residing with him at the time of his death as may be decided in default of agreement by the Court'. This meant that if a tenant died in the suit premise while the tenancy of the tenant was subsisting then any member of the family residing with him at the time of his death could continue in the suit premises as a tenant. If there were more than one member in the tenant's family then they had to decide by agreement as to who should continue as the tenant. In default of the agreement, the Court would decide.

9. In Smt. Shantabai Vishnumal v. Ganpat Ladha, : AIR1976Bom288 , section 5(11)(c) of the Bombay Rent Act was interpreted by this Court to mean that in respect of the business premises also a person residing with the tenant at the time of the latter's death the said person would be continuing as a tenant. It was held :---

'....In our view, the definition of tenant' really considers the basic unity of interest and what is provided by sub-clause (11)(c) of section 5 of the Rent Act is that any member of the tenant's family residing with him at the time of his death may be treated as a tenant within the definition...................It is not inconceivable that a person may be a tenant of several premises and also entitled to protection in respect of all such tenancies.

It is significant that in section 5(11)(c) of the Rent Act three is no indication that the protection granted by that provision is limited to those premises in which the tenant and members of his family were residing at the time of the tenant's death.'

The ruling of this Court was reversed by the Supreme Court in Ganpat Ladha v. Shashikant Vishnu Shinde A.I.R. 1978 S.C. 956. It was held therein that section 5(11)(c) of the Bombay Rent Act, as it stood before amendment, applied to only residential premises and hence where the premises are business premises the son of the tenant of the premises could not claim the benefit of any protection under the Bombay Rent Act.

10. This necessitate the passing of the Act of 1978. The Statement of Objects and Reasons accompany the Bill has mentioned as follows :---

'As a result of this decision, a large number of persons who have shops or business premises are adversely affected. If unfortunately the tenant dies, his family members will be at the mercy of the landlord and will be deprived of the tenancy and their source of maintenance by not being able to carry on the business in the premises. In view of the acute shortage of accommodation, a grave socio-economic problem has arisen and it has become necessary to take steps to amend the law to save such persons from being evicted and from losing their source of livelihood suddenly. It has also become necessary to save persons against whom decrees for eviction have already been passed, but who are still in possession of the premises, so that they may also get benefit of the amended law.'

11. The amendment brought about in section 5(11)(c) of the Bombay Rent Act is as follows :

'(c)(i) in relation to any premises let for residence, when the tenant dies, whether the death has occurred before or after the commencement of the Bombay Rents, Hotel and Lodging house Rates Control (Amendment) Act, 1978, any member of the tenant's family residing with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenants, as may be decided in default of agreement by the Court;

(ii) in relation to any premises let for the purposes of education, business, trade or storage, when the tenant dies, whether the death has occurred before or after the commencement of the said Act, any member of the tenant's family using the premises for the purposes of education or carrying on business, trade or storage in the premises, with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant, as may be decided in default of agreement by the Court.

Explanation :---The provisions of this clause or transmission of tenancy shall not be restricted to the death of the original tenant but shall apply, and shall be deemed always to have applied even on the death of any subsequent tenant, who becomes tenant under these provisions on the death of the last preceding tenant.'

12. What is of importance in the present case is not merely the amended definition of the 'tenant' in Clause (c) of section 5(11) of the Bombay Rent Act but also sub-section (2) of section 2 of Act No. 22 of 1978 which reads as follows :---

'(2) Notwithstanding anything contained in any judgment, decree or order of any Court or anything contained in the principal Act or in any law for the time being in force, the provisions of sub-clause (c) of Clause (11) of section 5 of the principal Act as amended by this Act, shall apply, and shall be deemed always to have applied, to any person who is in possession of any premises on the date of commencement of this Act and who claims to be a tenant by virtue of the said sub-clause (c) as amended by this Act. Such person shall continue to be in possession of the premises as a tenant, unless the landlord is entitled to recover possession of the premises on any other ground under the principal Act.'

It is this sub-section (2) of section 2 of the Amended Act of 1978 that mainly falls for interpretation before us in this petition.

13. Mr. Singhvi has contended that section 2(2) of the Act of 1978 creates a new class of tenants and it is within the power of the Legislature to do. According to him, giving a literal interpretation to the provisions contained in section 2(2) of the Act of 1978 the conclusion is inevitable that despite whatever has happened prior to the date on which this Act came into force, that is despite the passing of any judgment, decree or order of any Court a person claiming to be in possession of the premises by virtue of the provisions contained in section 5(11)(c)(i) of the Bombay Rent Act is permitted to continue in possession of the premises as a tenant till he is evicted by the landlord in accordance with the provisions contained in the Bombay Rent Act. On the facts of this case, therefore, Jamshedji Khansaheb having expired on 17th March, 1975, the petitioners, who are the members of the said Jamshedji Khansaheb's family, are entitled to continue to stay in the premises as tenants because they were residing with the original tenant on the date of the latter's death.

14. Mr. Singhvi has been bold enough to contend that any person who is in possession of the premises on the date of the commencement of the Act of 1978 and who claims to be a tenant by virtue of section 5(11)(c) of the Act, is entitled to remain in possession. The question of considering the validity of his claim even does not arise, says Mr. Singhvi. We have no hesitation in rejecting this extreme contention. A person in order to get protection under the amended section 5(11)(c) must have a valid claim and that claim must be that he is a member of the family of the tenant on the date on which the tenant died and also that he was also residing with the said tenant on the latter's death. Any person putting forth a claim cannot be said to be covered by the provisions of section 2(2) of the Amending Act of 1978. The claim must be a valid claim capable of being judicially verified and it is only when the claim is found as the one justified under section 5(11)(c) that he will be entitled to continue in possession of the premises in question as a tenant.

15. It is now necessary to find out whether on the facts of this case the petitioners are entitled to remain in possession of the suit premises by virtue of the provisions contained in section 5(11)(c)(i). The case of the petitioner is that they are the members of the erstwhile tenant's family---a case which is not disputed by the respondent It is also the case of the petitioners that they were residing with the erstwhile tenant on the date of the latter's death and this fact is also being accepted by us for the purpose of the disposal of this petition. The question is whether Jamshedji Khansaheb was the tenant of the suit premise at the time of his death. A necessary part of the same question would be whether the petitioners were residing with the 'tenant' at the time of his death. In our opinion, answer to this question would be in the negative. Jamshedji Khansaheb was admittedly a tenant of the suit premises till the decree for possession was passed against him on 13th June, 1973. After the passing of the said decree it cannot be said that the side Jamshedji Khansaheb was in possession of the suit premise as a tenant of the suit premises. Under the general law, the tenancy of a tenant is determined in one or the other ways provided in section 111 of the Transfer of Property Act. Even after the tenancy is so determined, the person who is the tenant of the premises covered by the provisions of the Bombay Rent Act cannot be evicted except on the grounds mentioned in the Bombay Rent Act. Till the decree is passed under the provisions of the Bombay Rent Act, the said tenant, whose tenancy has been terminated, continues to be in possession. The courts have called this possession as possession of a statutory tenant. In one sense he acquires the status of irremoveability except by decree under the Rent Act. In other words, on the termination of the tenancy of a tenant in accordance with the provisions contained in the Transfer of Property Act, he continues to be a statutory tenant. This is so despite the fact that the Supreme Court has now held See Dhanpat Chettiar v. Yasoda Ammal, : [1980]1SCR334 that for filing of a suit for possession under the provisions of the Rent Act the termination of the contractual tenancy as mentioned in Chapter V of the Transfer of Property Act is not necessary uses it is specifically required by the provisions of the Rent Act itself. But a person against whom a decree for possession has been passed, with or without determination of contractual tenancy, ceases to be a tenant. Thee is no tenancy---either contractual or statutory---of such a person. The possession of such a person is said to be juridical possession though not lawful See N.C. Chockalingam v. V. Manickavasaram, : [1974]2SCR143 . In execution of the decree which has already been passed person in possession has got to be evicted.

16. The question as to when the tenancy of tenant comes to an end in the light of the provisions of the Bombay Rent Act has been decided by the Supreme Court in Hiralal Vallabhram v. Sheth Kasturbhai Lalbhai, : [1967]3SCR343 . It has been held that the interest of tenant comes to an end completely only when he is not only no longer a contractual tenant but also when he has lost the right to remaining possession which section 12 has given him and is no longer even a statutory tenant. The tenancy of a tenant therefore, comes to an end not merely after the contractual tenancy is terminated but after a decree for possession against him is passed under one or the other provision contained in the Bombay Rent Act.

17. Interpreting section 5(11)(c) of the Bombay Rent Act, as it stood prior to amendment of 1978, a Division Bench of this Court in Jam . v. Sadashiv Sitaram, : AIR1967Bom43 has pointed out as follows :---

'The protection is given to the members of the family of the tenant, because they would have continued there, had he been a contractual tenant and also to avoid hardship to them. The Legislature, therefore, partly adopted the principal of transmissibility by death intestate of the tenant to such members as were living with him, that is, created by partial succession. In short, it put the successor in the place of the tenant. Hence, the successor steps into the shoes of the tenant from the stage where he left off'.

From this it is clear that a member of the family of the tenant cannot be in a better position than the original tenant himself. If Jamshedji Khansaheb were alive he could not have resisted the decree for possession which had already been passed, despite the amendment. The petitioners on the date of the death of Jamshedji Khansaheb were, therefore, not members of the family of a tenant whose tenancy was subsisting at the time of his death. Similar view has been taken by the Division Bench of the Gujarat High Court in Maniben Chhotubhai v. Kacharabhai Bhulabhai, 16 Gujarat Law Reporter, 109. In paragraph 19 of the judgment it has been mentioned as follows :

'The question that is posed before us, is whether it could ever have been contemplated by the legislature to give benefit of the provisions of the Act to members of the tenant's family, even though the tenant himself, during his life-time, had lost the right of protection under this Act and the landlord's right and tenant's obligation had been crystallised under a decree of a Court. It is an admitted position that so far as deceased Chhotubhai was concerned, he had lost protection under the Act. Landlord's right to recover possession had ripened into a decree of the Court and tenant Chhotubhai, who was admittedly a statutory tenant, had withdrawn all his contentions regarding the protection and had in terms agreed to an absolute order of possession and the specified date for the delivery of possession was 30th September, 1970. It was an absolute order of possession nand not a conditional order. Could it have been contemplated by the legislature that position of the legal representatives of such a tenant who had lost all the rights and who had incurred an obligation under a decree of the Court to hand over possession of the suit property on the specified date, on account of the happening of the death of that person, in the meaning, had improved and they had higher and better rights than him?.'

18. Proceeding further the Division Bench pointed out that the Legislature only intended to protect the members of the family who were staying with the tenant at the time of his death, if such a tenant, which would include within the meaning a contractual or a statutory tenant, had not lost the right of protection under the Act. The Gujarat High Court approvingly referred to the decision of this Court in Jam 's case. In our opinion, therefore, when the decree was passed against the original tenant Jamshedji Khansaheb that decree had become final at the time of his death on 17th March, 1975 on which date the petitioners were residing with the said Jamshedji Khansaheb. The amendment of 1978, therefore, cannot help the petitioners. Neither the amended section 5(11)(c)(i) nor sub-section (2) of section 2 of the Amending Act of 1978 gives protection to a member of the family of the tenant whose tenancy had already been terminated prior to the Amending Act, 1978.

19. Mr. Singhvi relied upon Mani Subrat Jain v. Raja Ram Vohra, : [1980]2SCR141 in support of his contention that after the Amending Act of 1978 all the decrees that might have been passed against any erstwhile tenant are rendered ineffective by the Amending Act of 1978. In our opinion, the reliance on the judgment of the Supreme Court in Mani Subrat Jain's case is misplaced. The facts of that case disclose that on 9th October, 1972 a decree for eviction had been passed against the tenant in respect of premises in Chandigarh to which the East Punjab Urban Rent Restriction Act was not applicable on that date. The said Act was applied to Chandigarh with effect from 4th November, 1972. Section 13 of the said Act provides as follows :---

'A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section, or in pursuance of an order made under section 13 of the Punjab Urban Rent Restriction Act, 1947, as subsequently amended.'

In that case the Supreme Court held that the tenant could not be evicted because of the provisions contained in section 13 of the East Punjab Rent Restriction Act. Relying upon this decision Mr. Singhvi contended that even in the present case Jamshedji Khansaheb should be regarded as a tenant who was in possession when he died despite the passing of the decree and since the petitioners were residing with him at the time of his death they should be regarded as members of the family to whom the protection of section 2(2) of the Act of 1978 is available. It is not possible for us to extend the ration contained in Mani Subrat Jain's case to the case before us which is covered by the provisions of the Bombay Rent Act. In Mani Subrat Jain's case section 13 specifically provided that a decree shall not be executed though passed before the commencement of the Act in so far as Chandigarh was concerned. It is true that while interpreting the definition of 'tenant' contained in section 2(i) of the Punjab Rent Act the Supreme Court held that even a person against whom a decree had been passed was a tenant within the meaning of section 13 of the said Act. In particular it was observed as follows :---

'The fact that a decree or any other process extinguishes the tenancy under the general law of real property does not terminate the status of a tenant under the Act having regard to the carefully drawn inclusive clause.'

The decision necessarily rested on the language of the East Punjab Rent Restriction Act.

20. We have already examined the relevant provisions of the Bombay Rent Act and the authorities interpreting the said provision. In our opinion, the petitioners could not be said to be residing with the tenant Jamshedji Khansaheb on the date of his death because on the said date Jamshedji Khansaheb had ceased to be a tenant.

21. We are also of the opinion that the words 'any judgment, decree or order of any Court' mentioned in sub-section (2) of section 2 of the Amending Act of 1978 refers to a judgment, decree or order of Court which is operative against the person who would claim protection of the provision contained in the amended section 5(11)(c) of the Bombay Rent Act. In the instant case the petitioners themselves have not been subjected to disability under any judgment or order to a decree of any Court. Section 2(2) of the Act of 1978 has made the amended section 5(11)(c)(i) retrospective in the sense that it gives protection to a person who on the date of the amendment fulfils the requirement of section 5(11)(c)(i) but against whom there is a judgment, order or a decree the person concerned is protected not by section 2(2) of the Amending Act by section 5(11)(c)(i) of the Bombay Rent Act itself provided he satisfies the requirement of the said provision. Sub-section (2) of section 2 of the Act of 1978, therefore, cannot be of any avail to the petitioners. The result of the discussion, therefore, is that the persons residing with the erstwhile tenant on the date of latter's death cannot be said to be members of the family of the tenant if on the date of his death a decree for possession had already been passed. The petitioners, therefore, cannot claim the protection of section 5(11)(c)(i) of the Bombay Rent Act.

22. In the result, this petition must fail. Rule is accordingly discharged with costs. At this stage Mr. Udeshi, appearing for the petitioners, makes an oral application for a certificate under Article 133 of the Constitution. The application is rejected .


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