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2013 DIGILAW 595 (GUJ)

AMRITLAL RAMANLAL v. PATEL KALIDAS MOTIBHAI

2013-10-03

N.V.ANJARIA

body2013
JUDGMENT : The appellant herein–original plaintiff instituted Regular Civil Suit No.1468 of 1975 for recovery of possession and Rs.2185/-towards mesne profits, contending inter alia that the defendant was only a licencee in the suit property, and was liable to vacate the same. Learned Jt. Civil Judge (S.D.) Vadodara, by his judgment and decree dated 28th February, 1983, dismissed the plaintiff’s suit for possession, however, passed decree for recovery of Rs.2185/-. Against the said judgment and decree, the original defendant preferred Civil Appeal No.235 of 1983, which was allowed by learned District Judge, Vadodara by his judgment and order dated 13th January, 1992, dismissing the entire suit of the plaintiff and setting aside the decree passed by the Trial Court. It farther directed that if the defendant had deposited any amount and the plaintiff had withdrawn it, the same may be redeposited by the plaintiff and the defendant was allowed to withdraw the same. The cross objections filed by the respondent-original plaintiff were dismissed. The present Second Appeal is directed against the aforementioned judgment and order dated 28th February, 1983, passed by the first appellate court at the instance of original plaintiff. 2. This appeal was admitted by this Court on the following substantial question of law, which falls for consideration and determination. “Will the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 be applicable to the premises involved in this litigation belonging to a local authority, that is, the District Panchayat at Vadodara, as held by the lower appellate court contrary to the ruling of the Supreme Court in the case of Bhatia Co-op. Housing Society Vs. D. C. Patel reported in AIR 1983 Supreme Court at page-16?” (sic) 3. Before proceeding to advert to the above substantial question of law, the relevant facts involved in the case and basic to the controversy may be noted. 3.1 The plaintiff was a registered partnership firm, and Maneklal Hiralal was one of the partners of the firm. He retired from the firm. It was the case that since the defendant had good relations with said Maneklal, he was permitted to use the suit property as a licence , and that he had agreed to pay towards licence fee Rs.5/-per day. He retired from the firm. It was the case that since the defendant had good relations with said Maneklal, he was permitted to use the suit property as a licence , and that he had agreed to pay towards licence fee Rs.5/-per day. It was stated by the plaintiff that the defendant had stopped paying the licence fee and therefore for the period from 16th March, 1972 to 15th July, 1975, Rs.6000/-had became due out of which the defendant had paid Rs.4350/- only and Rs.1650/-was still unpaid. The plaintiff revokedthe licence and sent notice dated 28th July, 1975 calling upon the defendant to hand over the possession on 16th September 1975, which notice was received by the defendant on 21st August, 1975. As despite service of notice, the defendant did not hand over the possession of the property, the plaintiff instituted the suit. 3.2 The suit was contested by the defendant. In the written statement (Ex.10) it was inter alia contended that said Maneklal Hiralal had taken on rent a shop having three shutters on the ground floor of the building known as Pratik Bhavan, from the District Panchayat; that out of the said shop the defendant was rented out the suit property at a monthly rent of Rs.150/-. It was contended that the rent amount paid by the defendant was being credited by said Maneklal in the books of accounts. In nutshell, the defendant denied that he was a licencee in the suit property, but he claimed and asserted that he was a tenant therein. Upon framing the issues, and on examination of the evidence adduced in course of trial, the Trial Court held that the defendant was a tenant in the suit property, and the plaintiff could not show by any cogent or satisfactory evidence to establish his case that the defendant was a licencee. The defendant was found to have proved his claim as a tenant, whose exclusive possession in the property was shown and his capacity as a tenant was admitted in the evidence. 3.3 One of the issues framed by the trial court was whether the Civil Court had jurisdiction to entertain and try the suit. The defendant was found to have proved his claim as a tenant, whose exclusive possession in the property was shown and his capacity as a tenant was admitted in the evidence. 3.3 One of the issues framed by the trial court was whether the Civil Court had jurisdiction to entertain and try the suit. In that regard, it was held that as the building/premises in question belonged to the District Panchayat, which was a local authority, the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 were not applicable, and no order of state government under sec. 4(2) of the Act withdrawing the exemption from applicability of the Bombay Rent Act, 1947 was shown to have been issued. It was held that thus the Bombay Rent Act was not applicable, and consequently it was the Civil Court and not the Small Causes Court, before which the suit was institutable and hence the court had the jurisdiction. In the appeal, the first appellate court took a different view on this score and it held that the Rent Act would apply, and the Civil Court had no jurisdiction. It reasoned to come to said conclusion was that the defendant was sub-tenant, there was a landlord-tenant relationship between the plaintiff and defendant and premises of the Panchayat was transferred by way of lease to the plaintiff who had further given it to the defendant. It was in that context that the substantial question of law mentioned above arises for consideration. 3.4 The reasoning of the first appellate court in holding that the Bombay Rant Act, 1947 would be applicable, runs thus, to extract the relevant part from the judgment, as the court observed negativing the contention that the Rent Act would not be applicable. “Now, this argument appears to be very attractive but is not correct, as the Rent Act will not be applicable as far as the relationship of the District Panchayat, Baroda with Maneklal Hiralal is concerned. “Now, this argument appears to be very attractive but is not correct, as the Rent Act will not be applicable as far as the relationship of the District Panchayat, Baroda with Maneklal Hiralal is concerned. But once the premises are given on rent and is leased out to Maneklal Hiralal, then that premises, if it is further sub-leased affidavit-in-reply a part of the premises our of the lease-hold premises is let out to somebody, then in that case, relationship between the lesee of the District Panchayat and the third party becomes a relationship of landlord and tenant, which will be governed under the Bombay Rent Act, because once the premises let out to Maneklal Hiralal, that premises cease to be the premises belonging to the District Panchayat, Baroda, for to the local authority as between the District Panchayat, Baroda and Maneklal Hiralal, the Rent Act would not be applicable. But as far as some of the premises which is leased out to the present defendant is concerned, the relationship between Maneklal Hiralal and the defendant in respect of leased out premises of 42 Sq. Ft. is that of a landlord and tenant and to that premises, the Rent Act would be applicable, as these premises no longer belong to the District Panchayat, Baroda….” “Therefore, in the present case, when the premises are let out by the District Panchayat, Baroda, to Maneklal Hiralal, the said relationship will not be governed under the Rent Act, and therefore, if the District Panchayat wants a decree of eviction against Maneklal Hiralal, Maneklal Hiralal will not get protection under the Rent Act, as far as the relationship between the District Panchayat, Baroda, and Maneklal Hiralal is concerned. But once the leased out premises are there and out leased out premises, Maneklal Hiralal let, out some of the premises to the present defendant, the relationship between the lessee and sub-lessee will be governed under the Rent Act. But once the leased out premises are there and out leased out premises, Maneklal Hiralal let, out some of the premises to the present defendant, the relationship between the lessee and sub-lessee will be governed under the Rent Act. The lessee cannot get protection under Sec.4 of the Bombay Rent Act….” “But supposing if the District Panchayat wants an eviction decree against the main tenant, then in that case, sub-tenant would not be protected under the Rent Act, as the Rent Act would not be applicable in the case, as far as the main tenant is concerned, and therefore, if the main tenant does not get protection of the Rent Act, The sub-tenant also who is claiming under the tenant will not get protection of the Rent Act….” “Lease means “transfer of interest in an immoveable property in favour of lessee for a consideration either promised or paid or promised to be paid by way of rent” and therefore, once the District Panchayat, Baroda, has given on lease the suit premises, interest in the suit premises is transferred to the tenant and if that tenant further transers interest to the sub- tenant, then in that case, the said premises would not be the premises belonging to the local authority and, therefore, the Rent Act would be applicable as far as the relationship between the tenant and sub-tenant is concerned and in the present case between the plaintiff and defendant is concerned. What is leased out to the defendant is some part of the premises let out by the local authority to the plaintiff and therefore, the premises which are let out by the tenant to the sub-tenant and in the instant case by the plaintiff to the defendant would be premises not belonging to the local authority as the local authority’s ownership is lost till the lease is subsisting between the District Panchayat, Baroda and the present plaintiff. In view of the above discussion, the premises belonging to the local authority and, therefore, the relationship between the tenant and sub-tenant would be governed be the Rent Act and the tenant can not get exemption of it as far as his relationship with his sub-leasee is concerned….” 4. Heard learned advocate for the appellant Mr. A. R. Majmudar and learned advocate for the respondent Mr. Jitendra M. Patel. 5. Heard learned advocate for the appellant Mr. A. R. Majmudar and learned advocate for the respondent Mr. Jitendra M. Patel. 5. Reverting to recapitulate the undisputed facts, the suit shop was shop No.1 in the building premises called Pratik Bhavan. It is not in dispute that the said building Pratik Bhavan belonged to the District Panchayat, Vadodara. Said Maneklal Hiralal had taken on lease the shop in question from the District Panchayat in the year 1969. Said Maneklal was a partner of the partnership firm which was created in 1972. The defendant was given on lease the said shop No.1. Sec. 4 of Bombay Rent Act, 1947 in its relevant part, reads as under. “4. Exemptions.-(1) This Act shall not apply to any premises belonging to the Government or a local authority or apply as against the Government to any tenancy or other like relationship created by grant from the Government in respect of premises taken on lease or requisition by the Government; but it shall apply in respect of premises let to the Government or a local authority. This Act shall not apply to,- (a) any premises constructed on or after the commencement of the Bombay Rents, Hotel and Lodging House Rents Control (Gujarat Second Amendment) Act, 2001 (Gujarat 27 of 2001) (Hereinafter referred to as “the amending Act”); (b) any existing premises which is self- occupied by the owner or vacant on or after the commencement of the amending Act, and is let after such commencement; For a period of ten years from the date of the commencement of the amending Act. Explanation.-For the purpose of this section “existing premises” means any premises which exists on the date of commencement of the amending Act. (2) The State Government may, by a notification in the Official Gazetted direct that all or any of the provisions of this Act shall not, subject to such conditions and terms, as it may specify, apply, (a) …. (b) …. (3) …. (4) (a) …. (b) ….” 5.2 An analysis of the above section brings out the three parts of it. First is that it is provided that the Bombay Rent Act shell not apply to premises belonging to the government or local authority. (b) …. (3) …. (4) (a) …. (b) ….” 5.2 An analysis of the above section brings out the three parts of it. First is that it is provided that the Bombay Rent Act shell not apply to premises belonging to the government or local authority. In the second place, the Act which not apply as against the government to only tenancy or like relationship created by grant from the government in respect of premises taken on lease or requisitioned by the government. In the third part, the section says that the Act shall apply in respect of premises let out to the government or a local authority. 5.3 The very point involved in the present case came to be dealt with by the apex court in Bhatia Co- operative Housing Society Vs. D.C. Patel ( AIR 1953 SC 16 ). The appellant society before the apex court had acquired lessee’s interests in the premises originally belonged to the Board of Trustees for Improvement of the City of Bombay, the premises being subsequently vested in the Bombay Municipality. Respondent D.C. Patel was the tenant inducted by the society, who was in possession and occupation of one of the blocks in the premises in that capacity which was one of sub- tenant as the society was leasee in respect of the premises. In a suit instituted by the appellant society before the City Civil Court, for eviction, a preliminary contention was raised on behalf of respondent-defendant tenant that the City Civil Court had no jurisdiction. The contention was based on sec.28 of the Bombay Rent Act. It was contended that Small Causes Court alone had the jurisdiction. While dealing with the contention, Hon’ble the Supreme Court considered the applicability of sec.4 of the Act, and construed the said provision. 5.4. What is held by the apex court is squarely applicable to cover the question raised, “The contention of the appellant Society is that the demised premises belonged to the Trustees for the improvement of the city of Bombay and now belong to the Bombay Municipality both of which bodies are local authorities and, therefore, the Act does not apply to the demised premises. Learned counsel for the respondent, however urges that the object of the Act, as recited in the preamble, isinter alia, to control rent. Learned counsel for the respondent, however urges that the object of the Act, as recited in the preamble, isinter alia, to control rent. It follows, therefore that the object of the legislation was that the provisions of the Act Would be applicable only as between the landlord and tenant. Section 4 provides for an exemption from or exception to that general object.” (Para 9) 5.4.1 The apex court stated about legislative intention. “The purpose of the first two parts of s. 4 (1) is to exempt two cases of relation. ship of landlord and tenant from the operation of the Act, namely, (1) when the Government or a local authority lets out premises belonging to it, and (2) Where the Government lets out taken on lease or requisitioned by it. It will be observed that the second part of s. 4 (1) quite clearly exempts "any tenancy or other like relationship" created by the Government but the first part makes no reference to any tenancy or other like relationship at all but exempts the premises. belonging to the Government or a local authority. If the intention of the first part were as formulated in item (1), then the first part of s. 4 (1), like the second part, would have run thus : This Act shall not apply, to any tenancy or other like relationship created by Government or local authority in respect of premises belonging to it. The Legislature was familiar with this form of expression, for it adopted it in the second part and yet it did not use that form in the first part. The conclusion is, therefore, irresistible that the Legislature did not by the first part intend to exempt the relationship of landlord and tenant but intended to confer on the premises belonging to Government an immunity from the operation of the Act.” (Para 9) 5.4.2 The object was highlighted in these words, “The fact that the Government or a local authority may be trusted to act fairly and reasonably may have induced the Legislature all the more readily to give such immunity to premises belonging to the Government or a local authority but it cannot be overlooked that the primary object of giving this immunity was to protect the interests of the Government or a local authority. This protection requires that the immunity should be held to attach to the premises itself and the benefit of it should be available not only to the Government or a local authority but also to the lessee deriving title from it. If the benefit of the immunity was given only to the Government or a local authority and not to its lessee as suggested by learned counsel for the respondent and the Act applied to the premises as against the lessee, then it must follow that under s. 15 of the Act it will not be lawful for the lessee to sublet the premises or any part of it. If such were the consequences, nobody will take a building lease from the Government or a local authority and the immunity given to the Government or a local authority will, for all practical purposes and in so far at any rate as the building leases are concerned, be wholly illusory and worthless and the underlying purpose for bestowing such immunity will be rendered wholly ineffective.” (Para 11) 5.4.3 The court then held, “In our opinion, therefore, the consideration of the protection of the interests of the sub- tenants in premises belonging to the Government or a local authority cannot override. The plain meaning of the preamble or the first part of s. 4(1) and frustrate the real purpose of protecting and furthering the interests of the Government or a local authority by conferring on its property an immunity from the operation of the Act.” (Para 11) 6. It is clearly held that the exemption under sec.4 of the Act is available to the premises itself. In a suit for eviction by the principal lessee of the premises belonging to the government or local authority, instituted against its tenant being the sub-lessee, the exemption would apply. Consequently the suit before the Civil Court was maintainable. The reasoning supplied by the first appellate court stands disapproved and bad in law in view of ratio of Bhatia Co-operative Housing Society (supra). The impugned judgment therefore cannot be sustained. 7. As a result of above discussion, the impugned judgment and order dated 13th January, 1992 passed of the District Judge, Baroda in Civil Appeal No.235 of 1983 is set aside. The judgment and decree as passed by the Trial Court is thus upheld and shall stand. Registry shall sent back the record and proceedings.