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Harilal Jeram Singala Vs. Dharamsi Kanji and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1977)18GLR64
AppellantHarilal Jeram Singala
RespondentDharamsi Kanji and ors.
Cases ReferredPicnjalal v. Bhagwatprasad
Excerpt:
- - under section 13(1)(l) of the saurashtra, act, a landlord became entitled to recover possession of any premises to which the act applied, if the court is satisfied that the tenant after the coming into operation of the said act has built, acquired vacant possession of or been allotted a suitable residence. thus, so far as the saurashtra act was in force, the building of a new house in the year 1955-56 and letting it out in that year as well as the year 1961 would have given a ground to the landlord to sue for possession under that act. section 13(1)(l) of the bombay act is in identical terms and provides that a landlord shall be entitled to recover possession of the premises to which the act applied if the court is satisfied that the tenant, after coming into operation of the..........came to be applied. under section 13(1)(l) of the saurashtra, act, a landlord became entitled to recover possession of any premises to which the act applied, if the court is satisfied that the tenant after the coming into operation of the said act has built, acquired vacant possession of or been allotted a suitable residence. thus, so far as the saurashtra act was in force, the building of a new house in the year 1955-56 and letting it out in that year as well as the year 1961 would have given a ground to the landlord to sue for possession under that act. however, the suit from which present revisional application arises was filed in the year 1967 relying inter alia upon the provisions of section 13(1)(l) of the saurashtra act. section 13(1)(l) of the bombay act is in identical terms.....
Judgment:

D.P. Desai, J.

1. The present petitioner (original defendant) was a monthly tenant of the suit house in Veraval since before 1955-56 in 1955-56 he constructed a house in the same town and thereafter let it out to different tenants from time to time. The last letting, it appears was in the year 1961. The suit house came to be purchased from its original owner by the opponents in the year 1963. Admittedly in the year 1955-56 and subsequent thereto till January 1, 1964, the Saurashtra Rent Control Act, 1951 (which will hereafter be referred to as 'the Saurashtra Act') was applicable to the suit premises. It was from January 1, 1964 that the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereafter referred to as 'the Bombay Act') came to be applied. Under Section 13(1)(L) of the Saurashtra, Act, a landlord became entitled to recover possession of any premises to which the Act applied, if the Court is satisfied that the tenant after the coming into operation of the said Act has built, acquired vacant possession of or been allotted a suitable residence. Thus, so far as the Saurashtra Act was in force, the building of a new house in the year 1955-56 and letting it out in that year as well as the year 1961 would have given a ground to the landlord to sue for possession under that Act. However, the suit from which present revisional application arises was filed in the year 1967 relying inter alia upon the provisions of Section 13(1)(L) of the Saurashtra Act. Section 13(1)(L) of the Bombay Act is in identical terms and provides that a landlord shall be entitled to recover possession of the premises to which the Act applied if the Court is satisfied that the tenant, after coming into operation of the Bombay Act has built, acquired vacant possession of or been allotted a suitable residence. In the present case, however, it is not disputed that the suitable residence as contemplated by Section 13(1)(L) of the Bombay Act has not been built or its vacant possession acquired after the coming into operation of the Bombay Act i.e. after 1-1-1964. The opponents-plaintiffs relied upon acquisition of a suitable residence by the tenant when the Saurashtra Act was in force. They terminated the tenancy by a notice dated August 24, 1967 i.e. after the Bombay Act came into force. The tenancy was terminated with effect from September 30, 1967 and thereafter they instituted the suit for eviction on the sole ground that the tenant had acquired a suitable residence as contemplated, by Section 13 (1)(L) of the Saurashtra Act. This suit was decreed by the trial Court and that decree came to be confirmed in appeal by the learned Joint Judge, Junagadh. A contention was taken up before the lower appellate Court that the ground for eviction as contemplated by Section 13(1)(L) of the Saurashtra Act was not available to the present opponents in view of the repeal of that Act by the Bombay Act. The provision of the Bombay Act which repealed the Saurashtra Act as enacted by the Gujarat Act No. 57 of 1963 is Section 51, which reads as under:

51. Repeal of Sau. Act XXII of 1951 and of Bom. LV11 of 1947 as extended to Kutch area and saving: The Saurashtra Rent Control Act, 1951 (Sau. Act XXII of 1951), and the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. LVII of 1947) as extended to the Kutch area of the State of Gujarat by the Government of India, Ministry of States, Notification No. 215-J, dated the 19th September, 1951 are hereby repealed:

Provided that:

(1) Such repeal shall not--

(1) affect the previous operation of any law so repealed or anything duly done or suffered thereunder;

(ii) affect any right, privilege, obligation, or liability acquired, accrued or incurred under any law so repealed;

(iii) affect any penalty forfeiture, or punishment incurred in respect of any offence committed against any law so repealed; or

(iv) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability penalty, forfeiture or punishment as aforesaid and

(2) any such investigation, legal proceeding or remedy may be continued, instituted or enforced and any such penalty, forfeiture and punishment, may be imposed, as if the aforesaid law had not been repealed;

Provided further that, subject to the preceding proviso, anything done or any action taken under any such law, including any notification, order, notice or receipt issued or agreement made, shall be deemed to have been done, taken, issued or made under the corresponding provisions of this Act and shall continue in force accordingly, unless and until superseded by anything done or any action taken under this Act.

As against the contention of the tenant, the landlord relied upon Sub-clause (ii) of proviso (1) to Section 51 which inter alia provided that the repeal shall not affect any right, privilege, obligation, or liability acquired, accrued or incurred under any have so repealed. The learned appellate Judge before whom this contention is raised on behalf of the tenant, overruled the same relying upon the aforesaid provision. Being aggrieved by the appellate decree, the tenant has come in revision to this Court.

2. Another provision contained in Section 13(1)(e) of the Saurashtra Act, which entitled the landlord to recover possession of the premises governed by the Act if the Court is satisfied that the tenant has since the coming into operation of the said Act sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein, came up for consideration before a Division Bench of this Court in Isha Valimohamad v. Haji Gulam 12 Gujarat Law Reporter, page 201. In that case also there was a subletting during the continuance of the Saurashtra Act and application of the Bombay Act i.e. after 1-1-1964. The Division Bench still held that the subletting by the tenant during the continuance of the Saurashtra Act resulted in accrual or acquisition of a right by the landlord and incurring of a liability by the tenant within the meaning of Sub-clause (ii) of Clause (1) of Section 51 of the Bombay Act and, therefore, the landlord can file a suit after 1-1-1964 on the said ground which had arisen during the continuance of the Saurashtra Act for evicting the tenant. That case, however, went to the Supreme Court; and the Supreme Court confirmed the judgment of this Court on a different ground and not agreeing with the ground given by this Court that a legal right had accrued even though the notice terminating the tenancy was not given during the continuance and force of the Saurashtra Act. The decision of the Supreme Court is reported as Is ha Valimohmad v. Haji Gulam Mohamad and Haji Dada Trust : [1975]1SCR720 . The only difference between Isha Valimohmad's case (supra) and the present case is that the ground for eviction in the former case was subletting by the tenant during the continuance of the Saurashtra Act and the ground for eviction in the present case is acquisition of a suitable residence by the tenant during the continuance of the Saurashtra Act.

3. Relying upon the ground on which the Supreme Court confirmed the decision of this High Court in Isha Valimohmad's case (supra) Mr. Majmudar for the opponents has developed an interesting argument that in certain cases contemplated by Section 13 of the Saurashtra Act which furnished a ground for eviction on account of the act done by the tenant, no notice terminating the tenancy was necessary; and, therefore, even if the tenancy was not terminated, the mere doing of the act by the tenant as contemplated by Section 13(1) resulted in an accrued right to the landlord to evict the tenant without terminating the tenancy A necessary corollary of this argument, if accepted, would be that even under the Bombay Act in cases governed by Section 13, where the ground for eviction is given by an act done by the tenant, no notice terminating the tenancy is necessary; and the landlord can straightway sue the tenant in ejectment relying upon the act of the tenant as a ground as contemplated by Section 13 of the Bombay Act. As against this, the learned advocate for the petitioner has maintained that the ratio of the decision of the Supreme Court in Isha Valimohamad's case (supra) is applicable only to cases of subletting which had taken place during the continuance of the Saurashtra Act because of the prohibition against subletting contained in Section 15 of the Saurashtra Act. Before examining these rival contentions, it will be necessary to reproduce the relevant provisions of the Saurashtra Act as well as the Bombay Act relating to eviction of a tenant on the ground of subletting. The Saurashtra provisions read as under:

13. When landlord may recover possession: (1) Notwithetanding anything contained in this Act, a landlord shill be entitled to recover possession of any premises if the Court is satisfied:

(e) that the tenant has, since the coming into operation of this Act, sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein; or

15. Tenant not to sub-let or transfer after this Act: Notwithstanding anything contained in any law, it shall not be lawful after the coming into operation of this Act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein:

Provided that the Government may, by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such lease or class of leases and to such extent as may be specified in the notification.

The Bombay Provisions read as under:

13.(1) Notwithetanding anything contained in this Act but subject to the provisions of Section 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied.

(e) that the tenant has, since the coming into operation of this Act, unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein; or

15.(1) Notwithetanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this Act for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein:

Provided that the State Government may, by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification.

(2) The bar against sub-letting, assigning or transferring premises contained in Sub-section (1) shall be deemed not to have had any effect before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959, in any area in which this Act was in operation before such commencement; and accordingly, notwithetanding anything contained in any contract or in the judgment, decree or order of a- Court any such sub-lease, assignment or transfer in favour of such persons as have entered into possession despite the bar as sublessees, assignees or transferees, and have continued in possession at the commencement of the said Ordinance, shall be deemed to be valid and effectual.

As observed earlier, in Isha Valimohamad's case (supra) also the subletting had taken place during the continuance of Saurashtra Act, but the notice terminating the tenancy of the head tenant was given only after the repeal of the Saurashtra Act and the application of the Bombay Act. Same is the situation in the present case. Therefore, the question would arise whether the right to terminate tenancy on any of the grounds contemplated by Saurashtra Act can be said to be a right or privilege accrued within the saving clause of Section 51 of the Bombay Act. The Supreme Court said in categorical terms that the right to terminate tenancy by giving a notice could not be said to be the accrued right or privilege. We find this from paragraphs 13 and 15 of the judgment of the Supreme Court. Paragraph 13 reads as under:

13. We do not, however, think that the right of the landlord to terminate the tenancy by giving a notice on the ground that the tenant has sublet the premises was an accrued right within the meaning of se. 51 of the Bombay Act which would survive the repeal of the Saurashtra Act.

Their Lordships then held that the landlord had the privilege of terminating the tenancy on the ground of subletting; and said in paragraph 15 that the said privilege also could not be said to be an accrued privilege. This is what Their Lordships have said:

The fact that the privilege to terminate the tenancy on the ground of subletting survived the repeal does not mean that the landlord had an accrued right or privilege to recover possession under Section 13(1) of that Act as that right or privilege could arise only if the tenancy had been validly terminated before the repeal of the Saurashtra Act.

(Emphasis supplied).

4. Therefore, the Supreme Court decision in Isha Valimohamad's case (supra) makes one thing clear as regards accrual of a right or privilege under the saving clause of Section 51 which is under consideration. The position is that no right or privilege can accrue unless the tenancy had been validly terminated before the repeal of the Saurashtra Act. This, with great respect, would be the correct position arising from the protection given to a tenant under the contract of tenancy. So long as that protection is available to him, he need not seek any other protection. So long as the contract is not validly terminated, the landlord has no right to possession as distinguished from the right to recover possession. The latter right follows the first right and it is given to the landlord for the purpose of enforcing his right to possession. In this connection, the observations made by the Supreme Court drawing a distinction between 'the right to possession' and 'the right to recover possession' in Picnjalal v. Bhagwatprasad : [1963]3SCR312 at page 125 in paragraph 16 may be recalled. The Supreme Court said:

The right to possession is to be distinguished from the right to recover possession. The right to possession arises when the tenancy is determined. The right to recover possession follows the right to possession, and arises when the person in possession does not make over possession as he is bound to do under law,' and there arises a necessity to recover possession through Court. The cause of action for going to Court to recover possession arises on the refusal of the person in possession, with no right to possess, to deliver possession. In this context, it is clear that the provisions of Section 12 deal with the stage of the recovery of possession and not with the stages prior to it and that they come into play only when the tenancy is determined and a right to possession has come in existence. Of course, if there was no contractual tenancy and a person is deemed to be a tenant only on account of a statute giving him right to remain in possession, the right to possession arises on the person in possession acting in a manner which, according to the statute, gives the landlord right to recover possession and question for the determination of the tenancy arises, as really speaking, there was no tenancy in the ordinary sense of that expression, it is for the sake of convenience that the right to possession, by virtue of the provisions of a statute, has been referred to as statutory tenancy.

Thus, normally the right to possession would arise only on determination of a tenancy where contractual tenancy is subsisting and the right to recover possession from such a tenant would follow the right to possession. The aforesaid observations made by the Supreme Court with regard to Section 12 of the Bombay Act apply with equal force to Section 13 of that Act and for that matter to the provisions of Sections 12 and 13 of the Saurashtra Act as well because both these Sections 12 and 13 of both the Acts speak of the right to recover possession. Normally, therefore, under Section 13 of the Saurashtra Act as well as the Bombay Act, the right to recover possession could not have arisen unless the contractual tenancy was determined in accordance with law. As a necessary corollary it would follow that a suit to recover possession on any of the grounds mentioned in Section 13 could be instituted only after determination of the tenancy. However, in a case of subletting under the Saurashtra Act, the Supreme Court in Isha Valimohamad's case (supra) came to the conclusion that the notice determining the tenancy in case of unlawful subletting was not necessary. Therefore, the Supreme Court held that the right which the landlord had in that case on account of unlawful subletting by the tenant was a right to recover possession which had accrued to the landlord under Section 13(1) of the Saurashtra Act when the tenant sublet the premises during the currency of that Act which right survived the repeal of that Act. It is specifically on this ground that the judgment of this High Court came to be confirmed by the Supreme Court in Isha Valimohamad's case. This ground is given by the Supreme Court in paragraph 17 of its judgment, the whole of which requires to be reproduced, because Mr. Majmudar for the opposite parties - landlords has advanced the argument as stated above, that in a case falling under Section 13(1)(L) of the Saurashtra Act also the right accrued as soon as the tenant during the subsistence of the Saurashtra Act has built, acquired vacant possession of or has been allotted a suitable residence.

17. Under the Transfer of Property Act, mere sub-letting by a tenant, unless the contract of tenancy so provides, is no ground for terminating the tenancy. Under that Act a landlord cannot terminate a tenancy on the ground that the tenant had sub-let the premises unless the contract of tenancy prohibits him from doing so. The respondent-landlord therefore could not have issued a notice under any of the provisions of the Transfer of Property Act to determine the tenancy, as the contract of tenancy did not prohibit sub-letting by the tenant To put it, differently, under the Transfer of Property Act, it is only if the contract of tenancy prohibits subletting by tenant that a landlord can forfeit the tenancy on the ground that the tenant has sublet the, premises and recover possession of the same after issuing a notice Section 111 of the Transfer of Property Act provides that a lease may be determined by forfeiture if the tenant commits breach of any of the conditions of the contract of tenancy which entails a forfeiture of the tenancy. If sub-letting is not prohibited under the contract of tenancy, subletting would not be a breach of any condition in the contract of tenancy which would enable the landlord to forfeit the tenancy on that score by issuing a notice. If that be so, there was no question of the respondent landlord terminating the tenancy under the Transfer of Property Act on the ground that the tenant had sublet the premises. It is only under Section 13(1)(e) of the Saurashtra Act that a landlord was entitled to recover possession of the property on the basis that the tenant had sublet the premises: and, that is because Section 15 of that Act unconditionally prohibited a tenant from subletting. The Saurashtra Act nowhere insists that the landlord should issue a notice and terminate the tenancy before instituting a suit for recovery of possession under Section 13(1)(e) on the ground that the tenant had sub-let the premises. The position, therefore, was that the landlord was entitled to recovery possession of the premises under Section 13(1) of the Saurashtra Act on the ground that the tenant sub-let the premises. It would follow that a right accrued to the landlord to recover possession under Section 13(1) of the Saurashtra Act when the tenant sub-let the premises during the currency of Act and the right survived the repeal of that Act under proviso (2) to Section 51 of the Bombay Act and, therefore, the suit for recovery of possession of the premises under Section 13(1) read with Clause (e) of the Saurashtra Act after the repels of that Act on the basis of the subletting during the currency of the Saurashtra Act was maintainable. In this view, we think that the High must be upheld and we do so.

(Emphasis supplied).

The argument of Mr. Majmudar was that in case of a contract of tenancy where there was no condition that the tenant would vacate the premises on acquisition of a suitable residence or there was no prohibition against the tenant acquiring a suitable residence, the tenancy could not be determined by forfeiture during the currency of the contract for the same reasons which the Supreme Court gave with regard to subletting. Therefore, runs the argument, just as sub-letting under the Saurashtra Act gave a ground to the landlord to recover possession, acquisition of a suitable residence under that Act also gave a ground to the landlord to recover possession without notice. Developing this argument, Mr. Majmudar pointed out that the grounds contemplated by Section 13 can be broadly decided into three categories, viz. (1) grounds which are personal to the tenant, (2) grounds which are personal to the landlord and (3) grounds which are personal to the tenant as well as the landlord. He pointed out that grounds (a) to (e) and (j) to (L) of the Saurashtra Act are grounds personal to the tenant; grounds (g), (h) and (i) are grounds personal to the landlord and ground (f) is ground personal both to the landlord and the tenant. With regard to the grounds personal to the tenant, the submission of Mr. Majmudar was that the mere doing of an act contemplated by any of these grounds entitled the landlord to recover possession without terminating the tenancy. In substance, his argument amounts to this. Even in a case where a tenant is protected by the terms of his contract during the period of his contract, the commission of any of these acts contemplated in grounds (a) to (e) and (g) to (L) by the tenant results in statutory revocation of the contract which would entitle the landlord to recover possession without terminating the contract by a notice. If this contention with regard to the provisions of the Saurashtra Act is accepted, it would also lead to the same position with regard to the provisions of the Bombay Act with the result that in cases covered by Section 13(1)(a) to (ee) and (g) to (L) of the Bombay Act, the landlord would be entitled to recover possession without terminating the tenancy and even though the contract of tenancy had not expired and the tenant has the protection of the contract. On principle, it is impossible to agree with a sort of statutory revocation of the contract as submitted by Mr. Majmudar. There is nothing in the language of the Saurashtra Act or the Bombay Act to show that the legislature in enacting Section 13 of both the Acts contemplated any sort of statutory revocation of contract. A close reading of paragraph 17 of the judgment of the Supreme Court makes it clear that what Their Lordships stated with regard to the subletting under Section 13(1)(e) of the Saurashtra Act was solely based on the unlawful character of the subletting in view of Section 15 of that Act. Their Lordships in terms stated this as will be found from the emphasized portion of paragraph 17 reproduced above. Therefore, this judgment only lays down the principle that in case of unconditionally prohibited subletting, (which prohibition makes the subletting unlawful), the landlord becomes entitled to recover possession of the premises under Section 13(1) of the Saurashtra Act and that the Act nowhere insisted that the landlord should give a notice terminating the tenancy before instituting a suit for recovery of possession on this ground. This principle is not applicable to a case of building or acquisition of a suitable residence by a tenant as contemplated by Section 13(1)(L) of the Saurashtra Act, for the simple reason that the said Act nowhere unconditionally prohibits building or acquisition of a suitable residence by the tenant. In case of sub-letting, it is unlawful character of that act which in substance results in the statutory revocation of the contract. Therefore, the principle laid down by the Supreme Court that the landlord can proceed against a tenant for recovering possession of the rented premises on the ground of unlawful subletting without terminating the tenancy is applicable only to the cases of subletting which has been unconditionally prohibited and made unlawful. That rule laid down by the Supreme Court is not available in a case of acquisition of a suitable residence by the tenant. Their Lordships have not said that on examination of the scheme of Section 13 as a whole, any of the acts done by the tenant as mentioned in Clauses (a) to (e) and (g) to (L) of the Saurashtra Act would entitle the landlord to recover possession without issuing u notice terminating the tenancy. Of course, so far as the ground of subletting is concerned, the position is now settled in view of the aforesaid decision of the Supreme Court that subletting having been unconditionally prohibited by law, gives a right to the landlord to recover possession of the rented premises and the Act does not insist upon issuance of a notice terminating the tenancy before instituting a suit for enforcement of that right.

5. In my opinion, the protection that a tenant has under his contract is not taken away without terminating the contract by the mere acquisition of a suitable residence by the tenant as contemplated by Section 13(1)(L) of the Saurashtra Act. Therefore, by the mere acquisition of a suitable residence, no right or privilege accrued to the landlord, unless the tenancy was terminated. If that is the correct reading of the decision of the Supreme Court, it is clear that in the present case, the landlord had no accrued right or privilege under the Saurashtra Act which has been served by Section 5 of the Bombay Act notwithetanding the repeal of the Saurashtra Act. The result, therefore, is that the plaintiffs' suit for possession which is based upon a ground which arose under the Saurashtra Act, cannot be decreed, because the right or privilege to obtain possession on this ground had not accrued to the plaintiffs in view of the fact that they had not terminated the tenancy of the petitioner-tenant before the repeal of the Saurashtra Act.

6. In the result, the revisional application succeeds and is allowed. The decree for possession and mesne profits passed by the trial Court and confirmed by the lower appellate Court is set aside. The plaintiffs' suit is ordered to be dismissed. Looking to the substantial question of interpretation involved in this case, it is directed that each party will bear its own costs throughout. Rule made absolute in these terms.


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