Yeshavadabai Shankar Dongare and others v. Bhagirathibai Appaji Patil, since deceased by her heirs
1994-07-27
V.H.BHAIRAVIA
body1994
DigiLaw.ai
JUDGMENT - V.H. BHAIRAVIA, J.:-This appeal is directed against the judgment and order dated 20th March, 1983 passed by the learned II Extra Assistant Judge, Solapur, in Civil Appeal No. 226 of 1981 setting aside the judgment and decree dated 29th September, 1980 passed by the learned Civil Judge, Junior Division, Mangalwedha, in Regular Civil Suit No. 27 of 1974. 2. The short facts of the present case are that the plaintiff filed the suit for recovery of vacant possession of the suit premises bearing Municipal House No. 428 situated at Mangalwedha Town limit on the ground of bona fide personal requirement and greater hardship. The plaintiff has terminated tenancy of the appellants-defendants by issuing notice. The appellants-defendants contested the suit. It has been submitted that the appellants-defendants are tenants of the open land on the suit premises and they are running a flour mill thereon and they are entitled for the protection of the Bombay Rent Act. The provisions of the Bombay Rent Act are extended to Mangalwedha village by the Government Notification of 19-4-1956. After framing necessary issues and recording evidence of the parties, the learned trial Judge dismissed the suit holding that the provisions of the Bombay Rent Act are applicable to the suit property and further holding that the plaintiff had failed to prove her bona fide personal requirement and also failed to prove greater hardship as alleged in the plaint, by his judgment and decree dated 29th September, 1980. In appeal by the respondents-plaintiff against the trial Courts order, the learned Appellate Judge set aside the judgment and order of the trial Court holding that the provisions of the Bombay Rent Act are not applicable to the suit property and, therefore, protection under the Rent Act is not available to the plaintiff and a decree for possession was passed. Hence this appeal by the appellants-defendants. 3. Heard both the learned Counsel for the parties. Mr. A.A. Kumbhakoni, learned Counsel for the appellants, emphatically submitted that a pure question of law has been involved in this appeal as regards the applicability of the Bombay Rent Act. It has been submitted that the learned appellate Judge has committed an error in holding that the Bombay Rent Act is not applicable to the instant case.
Mr. A.A. Kumbhakoni, learned Counsel for the appellants, emphatically submitted that a pure question of law has been involved in this appeal as regards the applicability of the Bombay Rent Act. It has been submitted that the learned appellate Judge has committed an error in holding that the Bombay Rent Act is not applicable to the instant case. It has been submitted that by Notification dated 19-4-1956 the provisions of the Bombay Rent Act were made applicable to Mangalwedha village where the suit property is situated and by subsequent Notification dated 8-10-1959 the provisions of the Bombay Rent Act were extended to Mangalwedha town. It has been submitted that Mangalwedha village has been merged with Mangalwedha Town Municipal Limits and the provisions of the Bombay Rent Act as per Notification of 19-4-1956 continued to be made applicable. The learned appellate Judge in paragraph 14 of his judgment has observed thus : "The learned Civil Judge also has committed error by stating that the second notification dated 25th September, 1959 is redundant. It is very clear that the first notification dated 19th April, 1956 was issued so far as the premises within the limits of Mangalwedha village. Some time afterwards Mangalwedha town came into existence. Mangalwedha village might have merged or might not have merged in Mangalwedha town. But Mangalwedha town is definitely a different entity than Mangalwedha village." Having regard to the facts and circumstances of the present suit, it reveals from the record that the suit premises are originally situated in Mangalwedha village. It further reveals that the defendants are occupying the suit premises as a monthly tenant and running a flour mill therein. It further reveals (however, there is no specific evidence on record) that Mangalwedha village is merged with Mangalwedha Town Municipal limits and a municipal house number has been given to the suit property. The learned appellate Judge has rejected the plea of the defendants as regards the applicability of the Bombay Rent Act on two counts viz., (1) That under Notification dated 8-10-1959, there is extension of Bombay Rent Act for purposes 1 only. Purpose 1 is relating to residence.
The learned appellate Judge has rejected the plea of the defendants as regards the applicability of the Bombay Rent Act on two counts viz., (1) That under Notification dated 8-10-1959, there is extension of Bombay Rent Act for purposes 1 only. Purpose 1 is relating to residence. (2) If at all, the Bombay Rent Act is applicable, then the flour mill, a manufacturing unit, does not fall within the purview of purposes 1, 2, 3, 4, and 5 as enumerated in Appendix II-Part A. The note in Appendix-II Part A reads as under :- "Note : Purposes 1, 2, 3, 4, 5 and 6 respectively indicate the respective purposes of (1) residence, (2) education, (3) business, (4) trade, (5) storage and (b) let to Government or local authority for setting up an office or a public hospital or dispensary." The learned appellate Judge has held that the term manufacturing does not fall within the meaning of the term business or trade under purpose 3 or 4 respectively and, therefore, the defendants would not be entitled for the protection under the Bombay Rent Act. In my opinion, the view taken by the learned appellate Judge is very erroneous in the legal terms as observed in paragraph 14 of his judgment and the same is unsustainable. It is an admitted fact that the suit premises are situated in village Mangalwedha. An open plot has been leased to the defendants by the plaintiff. The defendants, after putting the super-structure thereon, are running a flour mill and paying the monthly rent to the plaintiff. 4. A reading of this notification dated 7-4-1956 makes it crystal clear that since 19-4-1956 in respect of purposes 1, 2, 3, 4 and 5, Bombay Rent Act is made applicable in that village. Admittedly, the suit premises was rented to the defendants prior to 1956. Therefore, the question would be whether the flour mill, which is treated to be a manufacturing unit, would fall within the purview of purpose 3 i.e. business. The learned Appellate Judge is not right in holding that the flour mill does not fall within the meaning of business or trade and, therefore, the purposes notified under the said notification under the Bombay Rent Act are not applicable to the suit premises. It is difficult to agree with this finding of the learned Appellate Judge.
The learned Appellate Judge is not right in holding that the flour mill does not fall within the meaning of business or trade and, therefore, the purposes notified under the said notification under the Bombay Rent Act are not applicable to the suit premises. It is difficult to agree with this finding of the learned Appellate Judge. The flour mill is a manufacturing unit as held by this Court in the case of (Sher Mohomed Musahib v. State of Maharashtra)1, 1973 M.L.J. page 420, wherein it has been held thus : "Trade in its largest sense is the business of selling, with a view to profit, goods which the trader has either manufactured himself or purchased. Trade, in its legal usage, is a term of widest scope. It indicates a way of life or an occupation. Undoubtedly, in its primary sense, the word `trade means exchange of goods for goods or for money. But in a secondary sense, it includes any business carried on with a view to profit, whether manual or merchantile as distinguished from the lineral arts or learned profession. A skilled occupation therefore which involves the application of a manufacturing process to a commodity submitted to the person carrying on the occupation must, therefore, be regarded as trade." We cannot imagine or see any movement of trading and business without manufacturing process. First goods or articles are required to be manufactured by machine or by hand and then the same come to market for trading. The trading activities can be called as business. There cannot be any specific definition of business. Therefore, the flour mill which is undoubtedly a manufacturing process, is a business. The flour mill manfuactures articles which go to the market for sale and for human consumption and which are being distributed or sold by the traders or by the manufacturer to the customers. Therefore, it cannot be said that it is not a business, as the suit property is within the limits of Mangalwedha Town Municipal Limits as it is having a municipal house number. By notification dated 8-10-1959, purpose 1 i.e. residence is extended to this Mangalwedha town.
Therefore, it cannot be said that it is not a business, as the suit property is within the limits of Mangalwedha Town Municipal Limits as it is having a municipal house number. By notification dated 8-10-1959, purpose 1 i.e. residence is extended to this Mangalwedha town. By Notification dated 19-4-1956, purposes 1, 2, 3, 4 and 5 under the Bombay Rent Act are extended to Mangalwedha village and there is no evidence on record to show that these purposes had been withdrawn by any Notification nor there is any evidence to show that Mangalwedha village has been merged into Mangalwedha Municipal Town Limits or if it is merged with the Municipal Town Limits, there is no evidence that these purposes had been withdrawn. What is stated in the Notification dated 8-10-1959 is that purpose 1 i.e. residence is extended to Mangalwedha Muncipal Town Limits. It does not necessarily mean that the other purposes i.e. purposes 2, 3, 4 and 5 which were extended to Mangalwedha village by Notification of 1956, had been withdrawn. But in the absence of any specific evidence as regards the withdrawal of these purposes, it cannot be said that these purposes are not in force. In my opinion, this finding of the learned appellate Judge is unsustainable and is liable to be set aside. 5. Having regard to the facts and circumstances of the case, this appeal is allowed. The judgment and order dated 20th March, 1983 passed by the appellate Court is set aside and the judgment and order dated 29th September, 1980 passed by the trial Court is restored. No order as to costs. Appeal allowed.