JUDGMENT - LODHA R.M., J.:—By this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the legality and correctness of the order dated 19-8-1988 passed by the Resident Deputy Collector, Amravati whereby he allowed the appeal and set aside the order of the Rent Controller, Amravati, passed on 29-4-1987. 2. The petitioner (for short, the 'landlord') filed an application under Clauses 13(3)(i), (ii), (vi), (viii) and (ix) of the C.P. and Berar Letting of Premises and Rent Control Order, 1949 (for short, the 'Rent Control Order, 1949') (for short, the 'Rent Control Order, 1949') against the respondent No. 2 herein (for short, the 'tenant'). It was averred by the landlord in the said application that he was owner of House No. 82, Ward No. 52, Cotton Market Road, Amravati and the godown has come to his share in the partition between him, his father and other family members. According to the landlord, the said godown (for short, the 'premises in question') was let out by his father to the tenant for a rent of Rs. 75/- per month and after the partition, he became owner and landlord and the tenant attorned and paid rent to him upto 31-12-1982. However, thereafter since 1-1-1983 for a period of five months the rent was not paid and, thus the tenant was defaulter under Clause 13(3)(i) of the Rent Control Order, 1949 as well as the habitual defaulter under Clause 13(3)(ii) of the Rent Control Order, 1949. The landlord averred that the godown was let out to the tenant for storing grains, but he has started storing ginned cotton bozas which is a combustible and explosive article and thus, the tenant is using the premises other than the purpose for which it was let out and, therefore, the landlord was entitled to determine the tenancy of the tenant under Clause 13(3)(iv) of the Rent Control Order, 1949. The landlord also submitted that cracks have appeared in the walls of the godown and the said godown cannot be repaired unless the tenant vacates the same and the landlord also alleged that the tenant is also committed the acts of waste which have impaired the utility or value of the godown and which are dangerous to the human beings residing near and around the godown. The landlord, thus, also claimed for permission under Clause 13(3)(ix) of the Rent Control Order, 1949. 3. The tenant contested the claim of the landlord by filing Written Statement and denied that he was habitual defaulter or defaulter in respect of payment of rent. The tenant also set up the plea that there was no specific agreement about the user of godown for storing grains only and cotton was used to be stored by his Firm initially and thus, there was no change of user. The tenant also set up the plea that the landlord himself has been keeping his cattle in the cattle shed near the premises in question and he usually stores Kadba, grass etc. near the premises in question. It was also stated that oil cakes are being stored in many of the godowns by their occupants near about the premises in question. The tenant denied that he committed any acts of waste which can be said to have impaired the utility or value of the godown. 4. The Rent Controller held enquiry. Both the parties led oral as well as documentary evidence. The Rent Controller after hearing the parties, by his order dated 29-4-1987 negatived the case of the landlord under Clauses 13(3)(i), (iv) and (vii) of the Rent Control Order, 1949, but found that the landlord has been able to establish the case under Clause 13(3)(ii) and (ix) of the Rent Control Order, 1949 and consequently, granted permission to the landlord to terminate the tenancy of the tenant under Clause 13(3)(ii) and (ix) of the Rent Control Order, 1949. 5. Though the landlord was satisfied by the order rejecting his case under Clause 13(3)(i), (iv), (vii) and (viii) of the Rent Control Order, 1949, the tenant challenged the order of the Rent Controller passed on 29-4-1987 to the extent the permission was granted to the landlord under Clause 13(3)(ii) and (ix) of the Rent Control Order, 1949. The Appellate Authority after hearing the learned Counsel for the parties, by the order dated 19-8-1988 allowed the appeal filed by the tenant and set aside the order of the Rent Controller permitting the landlord to determine the tenancy of the tenant under Clause 13(3)(ii) and (ix) of the Rent Control Order, 1949. 6. The Appellate Authority after hearing the learned Counsel for the parties, by the order dated 19-8-1988 allowed the appeal filed by the tenant and set aside the order of the Rent Controller permitting the landlord to determine the tenancy of the tenant under Clause 13(3)(ii) and (ix) of the Rent Control Order, 1949. 6. This order of the Resident Deputy Collector (Appellate Authority), Amravati passed on 19-8-1988 is under challenge in this writ petition at the instance of the landlord. 7. I have heard the learned Counsel for the parties and perused the relevant record. The learned Counsel for the petitioner/landlord submitted that the Appellate Authority was not justified in interfering with the order of the Rent Controller. The submission of the learned Counsel for landlord is that the Rent Controller on proper appreciation of the evidence, rightly concluded that the tenant was habitually in arrears with rent and that the tenant has committed nuisance and without just and proper reasons, the Appellate Authority reversed the said findings and, therefore, the order passed by the Appellate Authority is liable to be set aside. 8. In opposition to the submissions made by the learned Counsel for the landlord, the learned Counsel for the tenant submitted that on the basis of evidence on record, the Appellate Authority rightly concluded that there was practice to pay rent whenever representative of the landlord went to recover the same and, therefore, the Appellate Authority has rightly held that the tenant was not habitually in arrears with rent. The learned Counsel for the tenant also submitted that in the absence of any specific agreement for storing grains, storage of oil cotton seeds could not be said to be an act of nuisance under Clause 13(3)(ix) of the Rent Control Order, 1949 and, therefore, the findings recorded by the Appellate Authority are just, proper and do not require any interference by this Court. 9. The landlord filed an application before the Rent Controller, Amravati on 14-5-1983 and according to the case of the landlord himself, rent was not paid since 1-1-1983 i.e. for a period of five months. 9. The landlord filed an application before the Rent Controller, Amravati on 14-5-1983 and according to the case of the landlord himself, rent was not paid since 1-1-1983 i.e. for a period of five months. The landlord also filed a schedule of rent paid by the tenant which showed that right from 1979 to 1982 the rent has been paid by the tenant at intervals of a period for 12 months, 15 months, 3 months and 6 months and the said payments have been accepted by the landlord without protest or warning. The landlord has admitted that there was no written agreement between the parties and there was practice to pay rent by the tenant whenever his representative would go to collect the rent. Acceptance of rent by the landlord for number of months together, sometimes 3 months, sometimes 6 months and even sometimes 12 months and 15 months would show that the landlord would send his representative to the tenant to recover the rent as per his convenience and the tenant would pay the accumulated rent as and when representative of the landlord would go to him. This was the practice between the parties for the last 4 years preceding the date of filing of the application and, therefore, merely because the rent was due for 5 months on the date of application, it cannot be inferred and concluded that the tenant was habitually in arrears with rent. The tenant has definitely set up the case in his Written Statement that it was the practice of the landlord to send the servant to collect the rent and whenever the servant used to come, he used to pay the rent and this practice is duly reflected from the schedule submitted by the landlord along with the application filed before the Rent Controller, Admittedly, after the last payment was made by the tenant on 18-3-1983 according to the schedule of rent submitted by the landlord with application, no notice was sent by the landlord asking the tenant to make the payment of rent regularly every month and all of a sudden on 14-6-1983 the landlord filed application before the Rent Controller alleging that the tenant has not paid the rent for five months and was thus, a habitual defaulter. 10. 10. In (Rashik Lal v. Shah Gokuldas)1, 1989(1) Bom.C.R. 610 , the Apex Court held as under: .....The crucial test appears to be the conduct of the landlord in receiving the rent offered belatedly. If he receives the same under a protest and warns the tenant to be regular in payment in the future, he cannot be assumed to have agreed to a modified agreement in this regard. But if he, without any objection and without letting the tenant know his thought process, continues to receive rent at intervals of several months, he cannot be allowed to spring a surprise on the tenant by suddenly starting a proceeding for eviction. Having lulled the tenant in the belief that things were all right, the landlord was under a duty to serve him with a notice demanding regular payment, if he wished to insist upon it. In this case before us there was no objection whatsoever, raised on behalf of the landlord against the delayed payments... 11. Applying the aforesaid principles laid down by the Supreme Court and the facts of the present case that the landlord has been accepting the rent sometimes for accumulated period of 3 months, 6 months, 12 months and 15 months etc. prior to the filing of present application, the fact that the last payment was made by the tenant on 18-3-1983 for a period from 1-7-1982 to 31-12-1982 and the same was accepted by landlord without any whisper, the fact that no notice was given by the landlord prior to the filing of present application nor any demand was made by the landlord asking the tenant to make the payment regularly nor the amount mentioned in the schedule submitted by the landlord was accepted by him with protest or warning or objection any time and the fact that on the date of filing of the application according to the landlord himself, only five months' rent was due, it cannot be said that the tenant has formed the habit of not making the payment of rent regularly or punctually or that he was habitually in arrears with rent. The Appellate Authority has not committed any error in arriving at the finding of fact in view of the aforesaid facts and circumstances of the case that the tenant was not habitually in arrears with rent under Clause 13(3)(ii) of the Rent Control Order, 1949 and the said finding does not call for any interference by this Court. 12. The landlord set up the case in his application that the premises were let out to the tenant only for storing grains and that the tenant instead of storing grains, was storing ginned cotton bozas inside and outside the godown which was a combustible and explosive article. The case set up in the application was that of a change of user under Clause 13(3)(iv) of the Rent Control Order, 1949 and no specific pleading about the ground under Clause 13(3)(ix) of the Rent Control Order, 1949 relating to nuisance was set up. The Rent Controller also did not find the case in favour of the landlord that there was change of user by the tenant and the case of landlord was negatived even by the Rent Controller. However, considering the very facts relating to change of user, the Rent Controller held that business of cotton bozas was very unsafe business and that act was an act of nuisance and since previously there was fire, the landlord has been able to prove nuisance. This finding did not find favour with the Appellate Authority and the Appellate Authority held in appeal that some godowns nearby are used for storage of oil cotton seeds (cotton bozas) and, therefore, storage of such cotton bozas cannot tantamount to creation of nuisance when the landlord himself is storing Kadbi adjacent to godown nearby his house. Both the authorities have concurrently held that there was no specific agreement between the parties that the godown was let out to the tenant only for the purposes of storage of foodgrains. Both the authorities have also held that the premises in question is being used for storage of oil cotton seeds etc. However, according to the Rent Controller, storage of cotton oil seeds is an act of nuisance within the meaning of Clause 13(3)(ix) of the Rent Control Order, 1949 whereas according to the Appellate Authority, storage of oil cotton seeds etc. However, according to the Rent Controller, storage of cotton oil seeds is an act of nuisance within the meaning of Clause 13(3)(ix) of the Rent Control Order, 1949 whereas according to the Appellate Authority, storage of oil cotton seeds etc. was not a nuisance and, therefore, landlord was not entitled to grant of permission under Clause 13(3)(ix) of the Rent Control Order, 1949. The said Clause 13(3)(ix) provides that if after hearing the parties, the Rent Controller is satisfied that the tenant has committed nuisance, he may grant permission to the landlord to determine the lease as required under sub-clause (1) of Clause 13 of the Rent Control Order, 1949. In accordance with the explanation appended to Clause 13(3)(ix) of the Rent Control Order, 1949, nuisance means any act or omission which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or which is or may be dangerous to life or injurious to the health of a neighbour or the property. For making out a case of actionable nuisance, thus, under Clause 13(3)(ix) of the Rent Control Order, 1949, the landlord is required to plead and give details of the act or acts on the part of the tenant which cause or likely to cause injury, danger, nuisance or offence to the sense of sight, smell or hearing which is dangerous to life or injurious to the health of a neighbour or to property. In other words, anything done by the tenant which affects the rights of others, endangers life, violates loss of decency or obstructs comfortable and reasonable use of property may amount to nuisance within the meaning of this clause. But at the same time, it cannot be said that every inconvenience, discomfort or annoyance is sufficient to constitute a nuisance. No hard and fast rule can be laid down as to the circumstances or the acts or omission which would constitute nuisance and every case is required to be decided on its own peculiar facts as to whether the act or omission complained of constitutes nuisance or not. Explanation appended to Clause 13(3)(ix) of the Rent Control Order, 1949 is only illustrative and not exhaustive, because the term 'nuisance' is incapable of giving exhaustive definition. Explanation appended to Clause 13(3)(ix) of the Rent Control Order, 1949 is only illustrative and not exhaustive, because the term 'nuisance' is incapable of giving exhaustive definition. To constitute nuisance or actionable nuisance under Clause 13(3)(ix) of the Rent Control Order, 1949, the act or omission must be real and not fanciful or imaginary. Applying the aforesaid principles to the facts of the case, it would be seen that the premises in question is godown and has not been let out for storage of a particular goods or particular items. By the very nature of the premises, godowns are meant for storage of goods. It is admitted case of the tenant that he has been storing oil cotton seeds etc. in the disputed godown and in the nearby area, there are number of godowns and quite a few of them have also been storing oil cotton seeds. Adjacent to the premises in question, the landlord himself is storing Kadbi. Looking to the areas where the godown is located, the fact that there are number of other godowns in which oil cotton seeds (cotton bozas) are stored, no specific purpose for which the godown in question was let out, storage of Kadbi by the landlord himself near the premises in question, it cannot be said that the act of tenant in storing oil cotton seeds (cotton bozas) may amount to nuisance or actionable nuisance within the meaning of Clause 13(3)(ix) of the Rent Control Order, 1949. Storage of cotton oil seeds (cotton bozas) by the tenant in premises in question meant for the storage of goods, is a normal act of tenant. By this act of tenant, therefore, the landlord cannot raise complaint that the tenant was causing nuisance by storage of cotton oil seeds in the godown when the case of the landlord has not been established that the premises in question were let out for storage of foodgrains. The alleged act of nuisance of the tenant has to be seen in the light of surrounding area and the locality in which the rented premises are situated. It is not disputed that there are other godowns in the vicinity and in some of the godowns the occupants do store oil cotton seeds (cotton bozas). It is also not disputed that the landlord himself is storing Kadbi adjacent to the godown in question. It is not disputed that there are other godowns in the vicinity and in some of the godowns the occupants do store oil cotton seeds (cotton bozas). It is also not disputed that the landlord himself is storing Kadbi adjacent to the godown in question. It is also not disputed that Kadbi is equally inflammable as oil cotton seeds. As regards on incident of fire, it is not disputed by the parties that fire did not break out in the year 1983. However, by that incident, it cannot be said that it was due to the act or omission of the tenant. Thus, in the facts and circumstances of the present case when the godown was not let out for a particular purpose, in other godowns nearby, the occupants are storing oil cotton seeds like the storage of the said goods by the tenant in the premises in question and the fact that the landlord himself has been storing Kadbi near the godown in question and the godown is situated in the locality where there are lots of godowns, it cannot be said that the Appellate Authority committed any error in holding that the landlord has failed to establish ground under Clause 13(3)(ix) of the Rent Control Order, 1949. The Appellate Authority did not commit any error in reversing the finding of the Rent Controller under Clause 13(3)(ix) of the Rent Control Order, 1949 also. In view of the facts stated above and the position of law discussed, the findings recorded and the conclusions arrived at by the Appellate Authority do not call for any interference by this Court in its extra-ordinary writ jurisdiction under Articles 226 and 227 of the Constitution of India. 13. Consequently, there is no force in this writ petition and the same deserves to be dismissed and is hereby dismissed. Rule is discharged. No order as to costs. Petition dismissed. -----