Jamshid Ahamad Khan vs Additional Collector
2009 Latest Caselaw 23 Bom

    W.P.No.1554.97                    1




                                                                                  
                                                

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH NAGPUR.




                                                          
                      WIRT PETITION NO.1554 OF 1997.




                                                         
    PETITIONER:             Jamshid Ahamad Khan s/o Majidkhan,
                            aged about 44 years,  Occu:Business,
                            resident of at Shop No.10, Chhabda Market, 




                                              
                            Maltekdi to Railway Station Road, Amrvati, 
                            Tq. and Distt.Amravati. 
                           
                                
                                             : VERSUS :
                          
    RESPONDENTS: 1. Additional Collector,

Amravati (having Rent Control Appellate

Powers), Tq. and Distt.Amravati.

2. Smt.Sheelarani w/o Dharamveer Chhabda, aged about 54 years, Occu: Household work. (deleted)

2(a) Shri Dharamvir s/o Sardarilal Chhabda, R/o Joglekar Plots, Amravati, Tq. and Distt. Amravati.

3. Amarjeet s/o Dharamveer Chhabda, aged about 29 years, Occu: Business.

Nos.2 and 3, both residents of Jogalekar Plots, Amravati, Tq. and Distt.Amravati.

-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.K.H.Deshpande, Senior Advocate for the petitioners. Mr.Kankale, A.G.P. for respondent no.1.

Mr.Sharma, Advocate for respondent nos.2 and 3. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

WIRT PETITION NO.1642 OF 1997.

PETITIONER: Hamidkhan s/o Majidkhan,

aged about 47 years, Occu: Private business, resident of Shop M-9, Chhabda Market,

Maltekdi to Railway Station Road, Amravati, Tq. andDistt.Amravati.

: VERSUS :

RESPONDENTS: 1. Additional Collector, Amravati (having Rent Control Appellate

Powers), Tq. and Distt. Amravati.

2. Smt.Sheelarani w/o Dharamveer Chhabda, aged about 54 years, Occu: Household work. (deleted)

2(a) Shri Dharamvir s/o Sardarilal Chhabda, R/o Joglekar Plots, Amravati, Tq. and Distt. Amravati.

3. Amarjeet s/o Dharamveer Chhabda, aged about 29 years, Occu: Business.

Nos.2 and 3, both residents of Jogalekar Plots, Amravati, Tq. and Distt.Amravati.

-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.K.H.Deshpande, Senior Advocate for the petitioners. Smt.I.L.Bodade, AGP for respondent no.1.

Mr.Sharma, Advocate for respondent nos.2 and 3. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

CORAM: C.L.PANGARKAR,J DATED : 8th December, 2009.

ORAL JUDGMENT:

1.

These two writ petitions can be disposed of by common

judgment since the landlord in both the matters is common and he

seeks permission as against both the tenants on the same grounds.

Tenants are the petitioners.

2. The facts giving rise to the petition are as follows -

Respondents are the owners of the suit property. The suit

property is a shop located in a market known as 'Chhabda Market'.

The petitioners are the tenants therein. The rent is Rs.250/- per

month. They were in arrears of rent. Respondent no.1, therefore,

filed a civil suit against the petitioners claiming arrears of rent. The

said suits were decreed. In spite of the decree, the entire decretal

amount was not paid and tenants were in arrears of rents up to the

date of filing of the application before the Rent Controller. It is

also alleged that the petitioners/tenants are habitual defaulters, in

as much as, they do not pay the rent regularly. They have also not

paid the amount of the taxes payable by them. Respondent no.2 is

carrying on his business under the name and style 'Amar Furniture'.

He is running the business in a rented premises and is paying

Rs.480/- to Dharamveer Chhabda towards the rent. It is

contended that respondent no.2 has no other suitable

accommodation and he, therefore, requires the suit premises for his

bona fide occupation.

3. The petitioners/tenants resisted the applications. They

denied that respondent no.3 is the owner of the premises but they

admitted the ownership of respondent no.2. They also admitted

that rent is Rs.250/- per month but denied that they were in arrears

of taxes. It is their contention that they were sending the rent to

the respondents but respondents refused to accept the rent sent by

money order. They admit the decree having been passed but deny

the quantum of arrears. They also deny that respondent no.3

required the suit premises for his bona fide occupation. It is

contended that respondent no.3 is the only son of his father and

there are total ten number of shops in the said market. The father

and son live in the same house. It is also contended that they have

another shop in Nehru Market and they do not require the premises

bona fide for their occupation.

4. The Rent Controller found that the petitioners/tenants

were in arrears of rent. They were habitual defaulters and

respondent no.3 required the premises for his bona fide occupation.

Holding so, the rent Controller granted permission to determine the

tenancy. The findings of the Rent Controller were confirmed by the

Additional Collector upon an appeal preferred by the present

petitioners. Feeling aggrieved thereby, these writ petitions are

preferred.

5. I have heard the learned counsel for the petitioners as

well as the respondents.

6. At the outset, my attention was invited by the learned

senior counsel Shri Deshpande to the agreement of lease between

Dharamveer - the father of respondent no.3 (husband of

respondent - Smt.Sheelarani) and the present petitioners. He

submits that this lease-deed goes to show that it was Dharamveer

who had inducted the petitioners as tenants and therefore, for the

purpose of this proceeding Dharamveer is the landlord and the

present respondents have no right to file the proceedings. The

lease-deed does show that the present petitioners/tenants were

inducted by Dharamveer and he is shown as landlord in the said

lease-deed. The learned counsel for the respondents submits that

the petitioners have admitted the ownership of respondent no.2 in

the written statement. The written statement shows that the

petitioners admit the ownership of respondent no.2. Further, it

appears that respondent no.2 had filed suits for recovery of rent

against the petitioners and the said suits were decreed. Those

decrees are not challenged. Thus, a decree for recovery of rent has

been passed in favour of respondent no.2 and against the

petitioners. They have admittedly paid rent to her and have also

deposited part of the rent in the civil court. The landlord has been

defined as follows in the C.P. and Berar Letting of Premises and

Rent Control Order,1949.

"landlord" includes the person who is receiving or is

entitled to receive the rent of a house whether on his own account or on behalf of himself and others or as an agent or trustee, or who would so receive

the rent or be entitled to receive the rent if the

house were let to a tenant.

The definition is inclusive and says that landlord is a person who

receives rent or is entitled to receive the rent. Therefore, if tenants

were paying the rent to respondent no.2 and also suffered a decree

for rent on suit instituted by respondent no2, it must be said that

respondent no.2 is a landlord and it appears from the evidence that

the petitioners do not dispute that respondent no.2 is the landlord.

7. The argument, therefore, of the petitioners in that regard

needs to be rejected.

8. This takes to me to consider the submission with regard

to habitual default, bona fide requirement and the petitioners being

in arrears of rent and not complying the direction of the Rent

Controller to pay arrears within fifteen days. The decree directed

the petitioner Hamidkhan to pay rent from 01/01/1985 to

31/12/1992. Further rent recoverable, is shown to be from

01/01/1993 to 31/3/1994 and the taxes payable, as agreed. Total

rent due as on the date of application before the Rent Controller is

Rs.34,421/-. The pleadings and the decree show that petitioner

Hamidkhan was in arrears of rent for more than 6 to 7 years as on

the date of application. If oral evidence of Hamidkhan is seen, he

admits that he has not paid the decretal amount in full nor has he

paid the taxes. Therefore, it appears that the learned Rent

Controller while passing an order has directed the petitioner

Hamidkhan to pay all the arrears of rent within fifteen days, failing

which permission under clause 13(3)(i) shall be deemed to be

granted. Sub clause (i) of clause 13(3) reads as follows -

(3) if after hearing the parties the Controller is satisfied, -

(i) that on the date of filing the application the

tenant was in arrears of rent for any aggregate period of [six months] and that he failed to

deposit with the Controller the amount of arrears [along with simple interest at the rate of nine per cent per annum] ordered to be

deposited by the Controller within such time as

may be fixed by him.

It is apparent that clause is in the form of a relief against forfeiture.

Therefore, if tenant wants to avoid permission being granted, he is

bound to pay amount as directed by the Rent Controller. There is

nothing on record to show that within fifteen days of the order of

Rent Controller all arrears were cleared.

9. In petition filed by Jamshid Ahamad Khan, it is clear that

he too was in arrears of rent from 1/4/1984 and he too suffered

decree for Rs.30,401/- towards arrears of rent. In this case too, the

Rent Controller directed the arrears of rent to be paid within fifteen

days or else permission shall be deemed to be granted. In this case

also nothing is shown that rent has been paid after the order of the

Rent Controller. If the arrears are not paid as directed, permission

under clause (i) must follow. The Additional Collector has,

therefore, rightly confirmed the order of Rent Controller in that

regard.

10. Now, I turn to consider the question of habitual

defaulter. The very nomenclature of the clause suggests that the

tenant forms a habit of being regularly irregular in payment of rent.

The word habitual default means the tenant consistently pays the

rent in an irregular manner in breach of a contract to pay the rent

regularly. The tenants are said to be inducted in the premises since

1977. It was, therefore, necessary for the landlord to have shown

how and in what manner the tenants have been paying the rent.

Further, the law is now well settled that if the landlord is accepting

the rent paid irregularly by tenant, such a mode of payment of rent

can be deemed to have been accepted by the landlord by way of an

acquiescence and he cannot therefore take advantage of his own

acquiescence. The landlord does not file any schedule of payment

of rent. That would have enabled the court to arrive at a

conclusion as to whether tenant was irregular or there was a

practice to accept the rent after 3-4 months. A single instance of

not paying the rent for long time would not go to show that the

tenant is a habitual defaulter. Therefore, mere filing a suit for

recovery of rent necessarily does not go to show that the tenant is a

habitual defaulter. A tenant may become a habitual defaulter if he

continues to pay the rent irregularly even after a decree is passed

against him for arrears of rent. In a decision reported in 1977

Mh.L.J. Pg 447 (A.P.Deshmukh ..vs.. Shah Nihal Chand

Waghajibhai) following observations are made.

W.P.No.1554.97

Even after hearing an interesting argument from Mr.Nariman, who appears on behalf of the

respondent-landlord, we are left in no doubt that the High Court, in spite of several decisions of

this court, has manifestly exceeded the limits of its narrow jurisdiction under Article 227 of the Constitution. We are unable to appreciate that

the High Court should have persuaded itself to

accept the contention of the landlord in the teeth of the concurrent finding of the Rent Controller

and the Collector that the tenant was not a habitual defaulter. Normally, a monthly tenant is under an obligation to pay the rent from month

to month but this obligation is subject to a

contract to the contrary. Such a contract need not be reflected in a formal document and can be spelt out from the conduct of the parties, spread

over a fairly long period of time. The evidence in the case, which was believed by the two tribunals of fact, shows that the tenant has been paying

rent at an interval of 3 or 4 months, which the landlord has been willingly accepting and always without even so much as a murmur. The landlord never complained of any irregularity on

the part of the tenant in paying rent and indeed the tenant was not in arrears of a paisa when the

present proceedings for his eviction were commenced by the landlord.

Therefore, where there is a practice to pay the rent at an interval of

3 to 4 months and landlord accepts the rent without any murmur

the tenant does not become a habitual defaulter. Although there

are concurrent findings against the tenant, in this regard I find that

those findings were based on no evidence and improper

appreciation of the facts and law.

11. This takes me to the ground of bona fide requirement.

There are two concurrent findings in favour of the landlord but I

find that those findings too are perverse. It is the case of the

respondents that respondent no.3 wants the suit premises for

running his business, which he is said to be running from rented

premises presently. Thus, the need set up is that of respondent

no.3. He is said to be tenant in the premises owned by his own

father Dharamveer. Although it it stated that respondent no.3 is

tenant, not a single rent receipt is produced on record. My

attention was drawn to the extract of the accounts filed on record

by the respondents to show that the rent was paid by respondent

no.3 to his father. Mere extracts of ledger are not enough and a

party is required to place along with the extract of ledger the

extract of cash book also. Cash book extracts are not placed on

record. Further, these extracts of account, which are filed, are of

the shop 'Amar Furniture' and this shop is admittedly owned by

respondent no.3 himself. What should have been filed is the book

of accounts maintained by Dharamveer. They would have shown

whether the rent as paid by respondent no.3 has been credited in

his account or not. These extracts of account being that of the

tenant of respondent no.3 himself, there is no question of any

account being shown on the credit side towards the rent. In fact, if

we peruse the account, there is no entry of debit account in respect

of rent in the books of account of respondent no.3. These extracts

are, therefore, of no help and they do not go to show that

respondent no.3 pays rent to Dharamveer.

12. The evidence of Dharamveer - the father of respondent

no.3 shows that respondent no.3 is in possession of three shops

and he has let out one more shop to him which was vacated by one

Kadu. Thus, the shop which is said to be let out was one in

possession of Kadu but it seems that besides that rented shop

respondent no.3 Amarjit is in possession of three more shops. They

are not stated to be let out to Amarjit. It is thus clear that

respondent no.3 Amarjit is in possession of three shops of his own.

This fact has been suppressed by the respondents which they

should have, in fact, pleaded. Amarjit does not enter the witness

box though he is a business man. Inference therefore has to be

drawn that had he entered the witness box, he would have been

required to admit the possession of his own shops in Chhabda

market. It is not pleaded why more number of shops are needed

and what kind of business respondent no.3 is going to start. There

is neither pleading nor evidence. This court in a decision reported

in 1987 Mh.L.J.332 (Dwarkadevi wd/o Jagdishprasad

Choudhary ..vs.. Narsingdas Rampratap Sharma) observes as

follows -

6. In appreciating the findings of the learned reviewing authority, it is necessary to notice the

law laid down by this court under clause 13(3)

(vi) of the Rent Control Order. It is well established that mere desire of the landlord is not

enough to prove bona fide need as contemplated under clause 13(3)(vi). Certain element of necessity must be there and the bona fide need

under clause 13(3)(vi) would mean the bona fide

requirement of the suit premises by the landlord. In regard to business need it is not only enough

to state that the landlord wants to do business, it must be proved also which business he wants to start and the area or space needed for it. He

must further prove that he has knowledge and experience and capacity to start the business. If there are vacant premises in possession of the landlord, it must be shown how the said premises are not useful for the business of the landlord,

which he wants to start. All these and other considerations must be examined by the Rent

Control Authorities in reaching the conclusion under clause 13(3)(vi) of the Rent Control Order.

It is also settled by the decisions of this court that there must be adequate pleadings upon all these matters in the application filed by the landlord.

Thus, it needs to be proved as to which business he wants to start

and the area and space needed for it. In this case, respondent no.3

was in possession of already four shops. It is not shown and

proved that those four shops are insufficient for his business. In

the circumstances, in no case it could have been held that the

requirement of the respondents was bona fide. In the

circumstances, the writ petitions are partly allowed. The

permission under clause 13(3)(i) is confirmed while permission

under clause 13(3)(ii) and (vi) is rejected. No order as to costs.

JUDGE

chute

W.P.No.1554.97