First Appeal No.2274 of 2008

24th June, 2010

Petitioner Counsel: Mr. P. S. DANI, Mr. R. D. Suryavanshi
Respondent Counsel: Mr. UMESH MANKAPURE

Cases Cited:
Sarup Singh Gupta Vs. S. Jagdish Singh, 2006(3) ALL MR 211 (S.C.)=2006(4) SCC 205 [Para 10,21]
Maharaji B. Vishwakarma Vs. Sayeedabi Haji Sayyad Gani, 2006(2) ALL MR 133=2006 (Supp.) Bom.C.R. 747 [Para 16]

JUDGMENT

JUDGMENT:- Heard Mr. Dani, learned counsel for the Appellants and Mr. Mankapure, learned counsel for the Respondents.

2. Admit. Mr. Mankapure waives service on behalf of the Respondents. By consent, appeal is taken up for final hearing.

3. This appeal is preferred by the original defendants against the judgment and decree dated 14th October, 2008 passed by the learned Civil Judge, Senior Division, Karad in Special Civil Suit No.13 of 2003. By that judgment, the learned trial Judge decreed the suit instituted by the Respondents and directed the appellants to deliver the vacant possession of the suit property within two months from that order. The appellants were further directed to pay Rs.13,380/- being the arrears of rent till the date of filing of the suit and Rs.5,000/- per month by way of damages from the date of institution of the suit till the delivery of vacant possession. The parties shall hereinafter be referred as per their original status in the trial Court.

4. The plaintiffs instituted suit for recovery of possession of a open plot having length eastwest northern side 80 ft. and southern side 100 ft. and the width south-north 90 ft. adjacent to the western road out of C.S.No.223/10/1 final plot No.20 of Karad T.P. Scheme No.1, as more particularly described in paragraph No.1B of the Plaint (for short the suit property).

5. It is the case of the Plaintiffs that the suit property is their ancestral property and their father let out the suit property to the predecessors of the Defendants on monthly rent of Rs.60/-. It is their further case that the Defendants stopped the business and also did pay the arrears of rent of Rs.32,280/- from 1st May, 1956 to 31st March, 2000 @ Rs.60 per month. The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short the "Bombay Rent Act") was repealed by the Maharashtra Rent Control Act, 1999 (for short the M.R. Act). The M.R. Act came into force on 1st April, 2000. Since the suit property is open land, the provisions of the M.R. Act are not applicable and consequently the Defendants have no protection of M.R. Act.

6. The plaintiffs gave notice on 2nd December, 2002 u/s.106 of the Transfer of Property Act, 1882 (for short "T.P. Act") calling upon the Defendants to hand over possession as also pay the arrears of rent and the damages. The Defendants gave false reply on 2nd December, 2002 and refused to comply the notice. The plaintiffs therefore instituted the present suit under the T.P. Act.

7. The Defendants filed written statement at Exh.24 and resisted the suit. They contended that the Plaintiffs had earlier filed Regular Civil Suit No.66 of 1961 under the provisions of the Bombay Rent Act. The said suit was dismissed. The plaintiffs preferred civil appeal No.307 of 1963 which was also dismissed. They denied that they lost the protection of the Bombay Rent Act and contended that the Plaintiffs, by misinterpreting the provisions of M.R. Act, have instituted the present suit. They contended that they are carrying on business in the suit property and the plaintiffs have no right to seek possession of the suit property.

8. On the basis of rival contention of the parties the learned Trial Judge framed the necessary issues. The parties led evidence. On the basis of material on record, the learned Trial Judge decreed the suit on 14th October, 2008. It is against this judgment, the present first appeal is preferred.

9. Mr. Dani, learned counsel for the Defendants raised the following contentions:

(i) Section 2(2) of the M.R. Act provides for the applicability of the said Act to the premises or houses let out in the areas to which the Bombay Rent Act, among other Acts were extended and applied before the date of commencement of the M.R. Act and that such premises or houses continue to be so let on that date in such areas which are specified in Schedule 1 to the M.R. Act, notwithstanding that the area ceases to be the description therein specified. He therefore submitted that since the Bombay Rent Act was applicable to the suit premises, the provisions of the M.R. Act will not apply. He submitted that Section 7(9) of the M.R. Act defines the expression "premises". Though open land is not included in the definition of the premises, having regard to the provisions of section 2(2) of the M.R. Act, the M.R.Act shall apply to the premises in question. The suit instituted by the plaintiffs under the provisions of T.P.Act, is not maintainable.

(ii) Section 3 of the M.R. Act provides that the said Act shall not apply to the premises as described in clauses (a) and (b) thereof. Section 3(2) empowers the State Government to direct that all or any of the provisions of the said Act shall subject to such conditions and terms as it may specify not apply to the premises specified in (i) to (iv). Subject to the proviso that before issuing any direction under sub-section (2), the State Government shall ensure that the tenancy rights of the existing tenants are not adversely affected. He submits that open lands are not exempted from the operation of the provisions of the M.R. Act. If that be so, for recovery of possession of open land, the plaintiffs will have to take recourse to the provisions of the M.R. Act.

(iii) Section 58 of the M.R. Act repeals the Bombay Rent Act. By virtue of the repeal of the Bombay Rent Act, the Defendants's status as tenant also came to an end. There would be therefore no relationship of landlord and tenant between the plaintiffs and the Defendants, and consequently the plaintiffs cannot give notice u/s.106 of the T.P. Act and seek possession of the suit property.

(iv) Even after determination of the tenancy, the plaintiffs have accepted the rent and therefore, the plaintiffs have waived the notice to quit. The plaintiffs therefore cannot maintain the present suit.

10. On the other hand, Mr.Mankapure, learned counsel for the Plaintiffs supported the impugned decree. He submitted that by virtue of section 58 of the M.R. Act, on the commencement of the said Act, the Bombay Rent Act is repealed. Section 7(9) of the M.R. Act defines "premises", which does not include the open land. In view of this, the Plaintiffs instituted the suit under the T.P.Act, after giving notice u/s.106 thereof. He therefore submitted that the suit instituted by the plaintiffs is maintainable. He submitted that Section 2(2) of the M.R. Act provides the applicability of the said Act qua the areas as also the purposes for which the premises are let out. It however does not mean that the M.R. Act will apply to the open land. If the construction put by the Defendants is accepted, section 7(9) of the M.R. Act will be rendered otiose. Section 3 of the M.R. Act provides that the M.R.Act shall not apply to the premises mentioned therein. It however does not include the open land. Even if the open land is not included in the premises set out u/s.3, having regard to section 7(9) of the M.R. Act, the said Act will not apply to the open land. Finally, while dealing with the submission of the Defendants that the Plaintiffs waived notice to quit, he relied upon the judgment of the Apex Court in the case of Sarup Singh Gupta Vs. S. Jagdish Singh & Others, 2006(4) SCC 205 : [2006(3) ALL MR 211 (S.C.)]. I have considered the rival submissions made by the learned counsel for the parties.

Contention No.(i):

11. In paragraph No.14 of the impugned judgment, the learned trial Judge has recorded that the suit property was open plot and the said plot was let out to the predecessor of the Defendants. This fact was not specifically denied by the Defendants. Mr. Sanjay Vaske, witness examined on behalf of the Defendants, admitted during the cross-examination that the open plot was let out to their predecessors. Considering the specific case of the plaintiffs and the admission of the Defendants, the learned trial Judge recorded that initially the open plot was let out to the predecessors of the Defendants and there is movable shed erected by the Defendants. Mr. Dani, learned counsel for the Defendants did not dispute this finding. Considering the contentions raised on behalf of the Defendants, which are confined to the questions of law, I deem it appropriate to dispense with calling for the Record and Proceedings of the case as per Order 41, Rule 11 of the Code of Civil Procedure, 1908.

12. The Defendants contended that section 2(2) of the M.R. Act provides for the applicability of the said Act to the areas to which the Bombay Rent Act, among other acts was extended and applied before the commencement of the M.R. Act. He therefore submitted that even if the open land is not included in the definition of the premises u/s.7(9) of the M.R. Act, since admittedly the premises in question, is in the areas to which the Bombay Rent Act applies, the provisions of the M.R.Act will apply. The suit instituted by the plaintiffs by invoking the T.P.Act is not maintainable. In order to appreciate the contentions raised by the learned counsel, it will be worthwhile to consider the scheme of Section 2 of the M.R. Act in Juxta position with section 6 of the Bombay Rent Act.

13. Section 2(1) of the M.R. Act provides that the said Act, in the first instance, shall apply to the premises let for the purposes of residence, education, business, trade or storage in the areas specified in Schedule I & II. Section 2 (2) of the M.R. Act lays down that notwithstanding anything contained in sub-section (1) it shall also apply to the premises or as the case may be, houses let out in the areas, to which the Bombay Rent Act or other Acts mentioned therein were extended and applied before the date of commencement of the M.R. Act and such premises or houses continue to be so let on that date, in such areas, which are specified in Schedule I to the said Act, notwithstanding that the area ceases to be the description therein specified.

14. Section 2 (3) of the M.R. Act lays down that it shall also apply to the premises let for the purposes specified in sub-section (1) in such of the cities or towns as specified in Schedule II. Section 2(4) thereof lays down that notwithstanding anything contained in section 2(1) to 2(3) of the M.R.Act, the State Government may by notification in the official gazette, direct that (a) the M.R. Act shall not apply to any of the areas specified in Schedule I or II or that it shall not apply to any one or all purposes specified in sub-section (1); that (b) the M.R.Act shall apply to any premises let for any or all purposes specified in sub-section (1) in the areas other than those specified in Schedule I & II. Section 6 of the Bombay Rent Act provides for application of the said Act. The said Act is applicable to the areas specified in sub-sections (1A), (2), (3) as also the applicability thereof to the premises let for residential, education, business, trade or storage.

15. Considering the provisions of Section 2(1) to 2(4) and section 6 of the Bombay Rent Act, it would be clear that the emphasis given therein is to the applicability of the said Act to the various areas as also to the premises let out for the purposes set out therein. It is not in dispute that in the definition of the "premises" given in section 7(9) of the M.R. Act, the open land is not included. It is also not in dispute that as per section 58(1) (a) of the M.R.Act, after commencement of the M.R. Act, the Bombay Rent Act is repealed and is not applicable. The conjoint reading of Sections 2(2), 7(9) and Section 58 of the M.R. Act, leads to an irresistible conclusion that the provisions of the M.R. Act are not applicable to the open land. Now the position that emerges is that with effect from 1st April, 2000 the Bombay Rent Act stood repealed by the M.R.Act and the M.R.Act is applicable. However, by virtue of section 7(9) of the M.R. Act, the said Act is not applicable to the open land. In view of this, the parties are governed by the provisions of the T.P. Act.

16. I am also supported by the judgment of the learned Single Judge of this Court in the case of Maharaji B. Vishwakarma Vs. Sayeedabi Haji Sayyad Gani, 2006 (Supp.) Bom.C.R. 747 : [2006(2) ALL MR 133]. After extracting section 2(2) of the M.R. Act, the learned Judge in paragraph Nos.9 to 12 held as under:-

"9. Ordinarily, provisions of the Maharashtra Act would apply to areas in Schedules I and II as per Clause (1) of Section 2. Clause (2) is intended to take care of a situation where any area in Schedule I, to which erstwhile rent legislation applied, ceased to carry the description in Schedule I. Such contingencies could arise due to creation of new local bodies, change in the jurisdiction of such bodies and the like. The clause is not intended to cover leases of open plots which have been consciously excluded by the legislature while drafting the comprehensive Maharashtra Act."

10. Had the Legislature intended that section 2(2) was meant to continue to bring open sites within the sweep of Maharashtra Act in spite of restrictive definition of premises in Section 7(9) of the Maharashtra Act, the Legislature would not have referred to description of areas. In that case, the Legislature would have simply said that notwithstanding anything contained in sub-section (1), the Act shall also apply to all premises and houses to which the erstwhile rent laws applied on the date of commencement of the Act. Such a clause would have taken in its sweep not only change in description of areas but also overridden the change brought about by Clause (9) of Section 7."

"11. The Legislature could have even added a rider in Clause (9) of Section 7 itself by saying that "premises" shall also include any leasehold to which the provisions of erstwhile rent laws applied: provided that such premises continue to be let on the date of commencement of the Act."

12. Therefore, the phraseology used in drafting Clause (2) of Section 2; the placement of this clause in Section 2 to override Clause (1) of the said section; and conscious exclusion of open spaces in definition of "premises" in Clause (9) of Section 7 all rule out the interpretation sought to be put by the learned counsel."

I, therefore do not find any substance in Contention No.(i).

Contention No.(ii):

17. It was submitted on behalf of the Defendants that by virtue of Section 3 of the M.R. Act exemption is granted in respect of the premises specified therein. However, no exemption is granted in respect of the open land and therefore, the provisions of the M.R. Act will apply to the open land. The suit instituted by the plaintiffs under the provisions of the T.P. Act is not maintainable. I am unable to accept the said submission. Section 3 of the M.R.Act provides that the said Act shall not apply to the premises as described in clause (a) or as described in clause (b). It however does not mean that since the exemption is not granted in respect of the open land, automatically the M.R.Act will apply to the open land. In view of the provisions of Section 7(9) of the M.R.Act, the provisions of the M.R. Act will not apply to the open land. I do not find any substance in Contention No.(ii).

Contention No.(iii):

18. It was next submitted that section 58 of the M.R. Act repeals the Bombay Rent Act. By virtue of repeal of the Bombay Rent Act, the status of the Defendants as tenant also came to an end. If that be so, there is no relationship of landlord and tenant between the plaintiffs and the Defendants. The plaintiffs cannot issue notice u/s.106 of the T.P. Act and consequently maintain the suit thereunder for recovery of the suit premises.

19. In order to consider this submission, it is necessary to take into account the definition of "tenant" in section 7(15) of the M.R. Act, and in particular sub-section (a)(i) to (v) thereof. The said provision reads as under:-

"7. In this Act, unless there is anything repugnant to the subject or context, -

(15) "tenant" means any person by whom or on whose account rent is payable for any premises and includes,-

(a) any person -

(i) who is a tenant, or

(ii) who is a deemed tenant, or

(iii) who is sub-tenant as permitted under a contract or by the permission or consent of the landlord, or

(iv) who has derived title under a tenant, or

(v) to whom interest in premises has been assigned or transferred as permitted, by virtue of, or under the provisions of, any of the repealed Acts."

Considering the aforesaid definition, I do not find any substance in this contention.

Contention No.(iv):

20. Lastly, it was submitted that even after determination of the tenancy, the plaintiffs have accepted the rent and therefore, there is waiver of notice to quit. I am unable to accept this submission. Mere acceptance of the rent does not amount to waiver of notice to quit, unless there is any other evidence to prove or establish that the landlord intended to do so. Section 113 of the T.P. Act reads as under:-

"Waiver of notice to quit "A notice given u/s.111 clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting."

21. The fact remains that even after accepting the rent, the plaintiffs instituted the suit for eviction. The Defendants have not brought on record any other fact or circumstances to support the plea of waiver. On the contrary, the filing of and the prosecution of the suit by the plaintiffs suggests otherwise. I am fortified in my view by the judgment of the Apex Court in the case of Sarup Singh Gupta [2006(3) ALL MR 211 (S.C.)] (supra). I therefore do not find any substance in the contention raised by the Defendants that the Plaintiffs waived notice to quit.

22. In the light of the aforesaid position, appeal is devoid of any substance and the same deserves to be dismissed. Appeal is dismissed, however with no order as to costs.

Appeal dismissed.