Urmi Deepak Kadia vs State Of Maharashtra
2015 Latest Caselaw 29 Bom

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             IN  THE  HIGH  COURT  OF  JUDICATURE  AT  BOMBAY
                   ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                
                          WRIT PETITION NO. 1853 OF 2014




                                                        
    Urmi Deepak Kadia                            }
    Age:59 years, Occ.:Business                  }
    95 Hazel CT, Dayton, New Jersey              }
    08810 U. S. A.                               }      Petitioner




                                                       
          Versus
    State of Maharashtra                         }
    Through Government Pleader                          }       Respondent




                                          
    Mr. Jawahar J. Thakkar for the Petitioner.
                          
    Mr.   Anil   Singh-Advocate   General   with 
    Mr.Sandesh Patil, Mr. Aroz Shah and Mr. Anil 
                         
    D.   Yadav   i/b.   Mr.   Harsha   Shah   for   the 
    Respondent.
      

                                  CORAM :- S. C. DHARMADHIKARI &
                                           G. S. KULKARNI, JJ.

RESERVED ON :- JULY 10, 2015 PRONOUNCED ON :- AUGUST 11, 2015

JUDGMENT :- (Per S. C. Dharmadhikari, J.) By this Writ Petition under Article 226 of the Constitution

of India, the Petitioner seeks a declaration that section 7(15)(d) of the

Maharashtra Rent Control Act, 1999 (for short "the MRC Act") is

inconsistent with the Hindu Succession Act, 1956 (for short "the HS

Act) as amended from time to time. The argument is that to the extent

section 7(15)(d) of the MRC Act provides protection to the family

member, who was residing with the deceased tenant, at the time of his

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death, even though such family member is not a heir of the deceased

tenant, deprives the heir of the deceased tenant of his right and status

under the Hindu Succession Act, 1956.

2) This argument is premised on the fact that the rule of

intestate succession set out by the HS Act has been given an overriding

effect. Section 4 of the HS Act is giving such overriding effect. Section

4 of the HS Act is given such overriding effect over any other law in

force immediately before the commencement of the HS Act and it shall

cease to apply to Hindus insofar as it is inconsistent with any of the

provisions contained in the HS Act. This overriding effect of the HS Act

is taken away by section 7(15)(d) of the MRC Act. Hence, by virtue of

the constitutional mandate enshrined by Article 254(1), it would be

void because, the HS Act is traceable to Entry 5, List III (concurrent list)

of Schedule VII of the Constitution of India. When such is the list and

the entry therein, by virtue of Article 254(2) of the Constitution of

India, the condition to be fulfilled is that with respect to one of the

matters enumerated in the concurrent list, if the law is made by the

legislature or State, then, such or any provision therein is repugnant to

the provisions of earlier law made by the Parliament or existing law

with respect to such matter, then, the law made by such legislature of

State, if it has been reserved by the President of India for assent and has

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received his assent, it will prevail in that State. In the present case,

there is a clear repugnancy. The HS Act is an earlier law, whereas the

MRC Act is a later law. The MRC Act is made by the State legislature

and contains the above noted provision. Therefore, it should be

declared void and of no legal effect. More so, when there is no material

on record to indicate that the assent of the President has been received

in the manner laid down by the Hon'ble Supreme Court of India in the

case of Kaiser I Hind Pvt. Ltd. and Anr. Vs. National Textile Corporation

(Maharashtra North) Ltd. and Ors. reported in (2002) 8 SCC 182.

3) The Petitioner raises these issues in the backdrop of a deed

of settlement dated 9th august, 1948. The Petitioner states that she is

daughter of Late Ramanlal Kikabhai Amarchand. Late Kikabhai

Amarchand had executed this deed of settlement dated 9 th August, 1948

and Kikabhai Amarchand, Leelavati Kikabhai, Ramanlal Kikabhai and

Pravin Kikabhai were Trustees under the deed of settlement. After

referring to the terms of the settlement, it is stated that the Trustees

purchased an immovable property at Mumbai, more particularly

described in para 51 of the Writ Petition. The immovable property is

referred as Amar Niwas. Late Kikabhai Amarchand expired at Mumbai

on 29th June, 1958 and Mrs.Leelavati Kikabhai Amarchand also died at

Mumbai on 4th February, 1983. Thereafter, new Trustees came to be

appointed and out of the new Trustees, Mr. Pravin Kikabhai Dalal died

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at Mumbai on 2nd May, 2001. Mr. Ramanlal Kikabhai Dalal was not

keeping good health and reference to the same is made in para 55, of

the Writ Petition. Ramanlal Dalal executed a Will on 29 th March, 2002.

He had 25% share in the property Amar Niwas and he was also a tenant

in respect of a residential flat situated at Amar Niwas, 61-B, Bhulabhai

Desai Road, Sophia College Lane, Breach Candy, Mumbai 400 026. He

also had tenancy rights in respect of commercial premises. All his

properties are described in para 56 of the Writ Petition. In the Will, he

had stated that his family comprises of Urmi Kadia, the Petitioner, who

is presently residing in USA, Kumud R. Dalal, Shrenik R. Dalal and

Paresh R. Dalal. Upon his death, the Petitioner, in terms of the Will,

became the 1/3rd owner of Amar Niwas and as far as the tenancy rights

are concerned, they were bequeathed equally between Shrenik and

Paresh. If the Trust deed specifically vests the property in the heirs,

then, the Will is contrary to the Trust deed. All the heirs are entitled to

succeed to the estate because the Settlors wanted to settle the property

amongst all the heirs of their four sons after the death of the sons. The

Petitioner therefore claims equal rights insofar as the tenancy of the

residential flat and that is how in para 59 she submits that the Will to

the extent contrary to the deed of settlement will not bind her and as

far as the residential flat is concerned, she is entitled to the tenancy

right in the same along with Shrenik and Paresh.

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4) She filed a declaratory Suit in the Court of Small Causes at

Mumbai being RAD Suit No. 2231 of 2010 and in which she placed her

version by pointing out that she was not residing with Ramanlal

Kikabhai Dalal at Mumbai at the time of his death but was residing in

USA with her husband. She applied to the Court of Small Causes and

requested it to decide the issue and question that the MRC Act does not

override the HS Act. But, the Court of Small Causes passed a Judgment

and order dated 11th February, 2013 holding that it has no jurisdiction

to decide the said issue being a constitutional issue. The Petitioner,

being aggrieved by this finding and conclusion, preferred a Review

Application bearing No. 15 of 2013. It appears that the Review

Application was not pressed and this Writ Petition was filed in this

Court on 10th July, 2014 claiming the above declaration.

5) Though the Writ Petition refers to a Notification under

which the President of India gave assent to the MRC Act, but the

argument is entirely based on the alleged inconsistency and repugnancy

in the two legal provisions.

6) Mr. Thakkar, the learned Counsel appearing for the

Petitioner submits that a bare reading of section 7(15)(d) would

indicate as to how it is inconsistent with the rule of succession

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enunciated in the HS Act. He relies upon sub-clause (d) of clause (15)

of section 7 of the MRC Act to submit that when a tenant dies and the

premises are let for residence or for education, business, trade or

storage, then, any member of the tenant's family residing with him or

using the premises at the time of his death becomes the tenant of the

said premises. It is only in the absence of such member that any heir of

the deceased tenant and as agreed if there are more than one heir or if

there is no agreement but a dispute, then as decided by the Court can

succeed and can be termed as a tenant of the premises. Thus, a heir

cannot step in straight away. It is only in the absence of a member of

the family and not fulfilling the above condition that the heir can stake

his/her claim. Thus, the member of the Tenant's family and who can

becomes a tenant need not be his or her heir. To that extent, the law of

succession and the rule therein is displaced. Mr. Thakkar therefore

submits that there is a clear conflict. The rights of the heir to succeed to

tenancy are restricted. If section 4(1)(b) of the HS Act is noticed, then,

nothing can prevent the heirs from succeeding to the estate as per the

rule of succession set out in the HS Act. The overriding effect of the HS

Act enables them to step in. In the present case, there is no record

which would indicate that such inconsistency or the conflicting

provisions in both enactments were brought to the notice of the

President and his assent was sought on this specific aspect. Hence, to

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this extent, there is no compliance with the constitutional mandate

enshrined by Article 254(2) of the Constitution of India. Hence, the

Petition deserves to succeed.

7) Reliance is placed upon the Judgment of the Hon'ble

Supreme Court in the case of Kaisar I Hind (supra). In all fairness, our

attention is also invited to the Judgment of the Hon'ble Supreme Court

in the case of Vasant Pratap Pandit vs. Dr. Anant Trimbak Sabnis reported

in (1994) 3 SCC 481.

8) On the other hand, Mr. Singh, the learned Advocate

General appearing on behalf of the State submits that there is no merit

in the Writ Petition. It has been repeatedly held that the area and field

covered by the two enactments, namely the MRC Act and the HS Act is

not same but entirely different. The MRC Act is seeking to regulate and

control the relationship created by general law, because the State found

that the landlords are exploiting the situation arising out of scarcity of

accommodation. The MRC Act, as is clear from its preamble, seeks to

prevent the exploitation of tenants and at the same time, ensures a

reasonable return for the investment in properties by the landlords. In

that regard, our attention is invited to the preamble to the Bombay

Rents, Hotel and Lodging House Rates control Act, 1947 and the MRC

Act. It is submitted by Mr. Singh that the arguments of the Petitioner

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have no merit because there is no repugnancy between these

enactments much less any provision therein. Therefore, Article 254(2)

would have no application to the case of the Petitioner. If she is

aggrieved and dissatisfied for having been left out of the estate even to

a limited extent, her remedies are not to approach this Court and

challenge the validity of any provision in the MRC Act. For, the

provision like section 7(15)(d) therein is inserted to enable the

landlords after the death of a tenant to deal with a single member of his

family and not to join issues with the heirs and legal representatives.

Eventually, it is to enable the landlord to recover the rent and other

charges in respect of the premises and equally for the protection of the

tenant's family that such clauses are enacted. The State legislature

never intends to affect the rights under the general law and particularly

the right to succeed to the estate of the deceased. In such

circumstances, and when the aim and object of the HS Act is to amend

and codify the law relating to intestate succession of a Hindu then all

the more the argument of Mr. Thakkar should be rejected.

9) In support of the submissions recorded above, Mr. Singh

has relied upon the following decisions:-

(i) Judgment passed by a Division Bench of Bombay High Court in the case of Rajaram Brindavan Upadhyaya vs. Ramraj Raghunath Upadhyaya reported in 1977 Mh.L.J.

792.

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(ii) Engineering Kamgar Union vs. Electro Steels Castings Ltd. and Anr. (2004) 6 SCC 36

(iii) Mina Srinivasan Krishnan vs. Arun Bhaskar Adarkar 2014(5) Bom. C.R. 53

10) On proper appreciation of the rival contentions, we are

unable to agree with Mr. Thakkar. Mr. Thakkar's general arguments and

on the issue of repugnancy overlook the fact that there is no material at

all. A Petition under Article 226 of the Constitution of India to this

Court ought to indicate in clearest terms as to how the constitutional

issue arises and in the backdrop of a particular case. No general or

academic discussion is permissible and the time of the Highest Court in

the State cannot be wasted in such discussion. A proper and complete

foundation has to be laid backed by factual details based on which such

a challenge is raised. It has to be averred as to how there is a

repugnancy and which right of the Petitioner guaranteed under the

general law made by Parliament allegedly has been affected by a

contrary provision allegedly in the State law. In other words, how the

question of applicability of the constitutional provision arises must be

indicated and set out with requisite factual details. When it is apparent

that beyond quoting the paragraphs from the Judgment in the case of

Kaisar I Hind (supra), the Petition contains no factual averments about

why if the assent of the Hon'ble President of India was necessary, the

attention of the President ought to have been invited specifically to

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every inconsistent provision in the MRC Act, how the Petitioner

proceeds to assume that no such care and caution has been taken by the

State before obtaining the assent of the President of India, has not been

clarified at all. Even if the Petitioner has an adverse order in her

proceedings before the Court of Small Causes at Bombay, it is not as if

she cannot protect her right, title and interest in the property by taking

assistance of the general principles of law and the rule of succession

enacted in the HS Act by approaching a competent civil Court. If during

the course of trial of the Suit or such proceedings and particularly while

dealing with her assertion to succeed to the tenancy rights in respect of

the flat in question the civil or competent Court expresses a view that a

constitutional issue or question arises, then that question can be

referred for opinion by the competent Court to this Court. There are

enough powers of that nature and conferred in the Trial Courts.

However, today on the strength of the order passed by the Court of

Small Causes and which is capable of being challenged in a higher

Court, we cannot presume that the Petitioner is without any legal

recourse. The issue raised in these circumstances is therefore academic.

There is no foundation for the same and laid in the Writ Petition.

11) Apart therefrom, we find much substance in the

contentions of Mr. Singh that for Article 254(2) to apply, the Court must

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conclude that in terms of Article 254(1) there is a repugnancy in any

provision in the law made by the State legislature with any provision

which is made by the Parliamentary law or any provision in the State

law is repugnant to any provision of an existing law made by the

Parliament with respect to the matters in the concurrent list. We do not

find that any such repugnancy is spelt out. Article 254 of the

Constitution of India reads as under:-

"254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States - (1) If any provision

of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with

respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the

State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that

matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same

matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."

12) Mr. Singh's reliance on the Judgment of the Hon'ble

Supreme Court in the case of Engineering Kamgar Union (supra) is thus

well placed. The Hon'ble Supreme Court has reiterated its earlier views

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and conclusions. From a reading of this Judgment of the Hon'ble

Supreme Court, it is apparent and from para 21 that the Central Act and

the State Act must indisputably cover the same field. The Hon'ble

Supreme Court in that case was not concerned as much with the

interpretation of Article 254 but by reason of the enactment made by

the Parliament or the State in exercise of their legislative powers

contained in List I and List II of the VIIth Schedule of the Constitution of

India the effect of one Act over the other in the event it is found that

there exists a conflict. Therefore, it reiterated the principle that as far

as the question of repugnancy is concerned, firstly it must be shown

that the two enactments contain inconsistent and irreconcilable

provisions so that they cannot stand together or operate in the same

field. The inconsistency must be appearing on the face of the two

statutes. The tests as laid down in the case of M. Karunanidhi vs. Union

of India reported in (1979) 3 SCC 431 are therefore rightly pressed into

service by Mr. Singh before us.

13) We are of the view that the area and field covered by the

MRC Act is entirely different. The provision such as definition of the

term 'tenant' appearing in section 7(15) must be read in the backdrop of

the object and purpose sought to be achieved by the MRC Act. It is not

to create a separate class or to carve out a distinct rule of succession but

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to merely enable somebody to step-in in place of the deceased tenant

until the rights under the general law are determined that such a

provision has been inserted and for protection of the interests of both,

the landlord and tenant.

14) We do not find that there is anything contrary to this

principle which is laid down in the case of Vasant Pratap Pandit

(supra). There, the question was about a tenant (Tarabai) of the

disputed premises dying issue-less. She left behind the Will

bequeathing the properties including tenancy rights to her sister's son

Gopal and appointing the Appellant - her brother's son as Executor of

the Will. The Respondent/Defendant, who happened to be the

grandson of a sister of the Legatee and his wife were staying with Tara

Bai in the disputed premises. After her death, the Appellant called upon

the Respondent to vacate the premises and on his refusal, instituted a

Suit for eviction in the City Civil Court, Bombay. The Suit was resisted

principally on the ground that the bequest of the tenancy rights

amounted to transfer and it was impermissible under section 15 of the

Act. That is how the Respondent claimed that he cannot be evicted.

This contention was negatived by the Trial Court and the Suit came to

be decreed. The Respondent preferred an Appeal in the High Court and

while allowing the Appeal and dismissing the Suit, the High Court held

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that the word 'heir' appearing in section 5(11)(c) of the Act did not

include 'legatee' and that the words 'assign' and 'transfer' appearing in

section 15 of the Act were used in a generic sense to include bequest.

Therefore, the Suit itself would not lie.

15) The Hon'ble Supreme Court in that context held that the

word 'heir' appearing in different legislations maybe construed both in a

wider as well as in a narrow sense and which sense would be applicable

to the facts of a particular case would depend on the intention of the

scheme of the particular legislation in which the question occurs. The

Hon'ble Supreme Court then proceeds to analyse as to what would be

the ambit and scope of the words 'assign' and 'transfer' appearing in

section 15 of the Bombay Rent Act. It is in that context that the

observations in para 14 of the Judgment have been made. However, the

Hon'ble Supreme Court has held that the words in section 5(11)(c)(i)

have been incorporated to meet a situation where there are more than

one heir. The words "as may be decided in default of agreement by the

Court" appear in the context of there being no member of the family

residing with the tenant at the time of his death and there is no

agreement between the heirs as to who should succeed to the tenancy

rights. If there is no agreement, then, the Court has to decide who can

be treated as a tenant. All this is in the context of the Will which was

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left behind by the deceased tenant and whether the bequest of the

tenancy rights could have at all been made and if such bequest goes

contrary to the plain language of the section can the testator's wish be

foisted on the landlord. In the case of testamentary disposition where

the wish or Will of the deceased has got to be respected, a decision of

the Court will not arise. The rent control legislation in a particular

provision could not have intended to confer such a right on the

testamentary heir. Otherwise, the right of the landlord to recover the

possession will stand excluded even though the original party (the

tenant) with whom the landlord had contracted is dead. The Hon'ble

Supreme Court in para 14 of the decision in the case of Vasant Pandit

(supra) has clarified that in certain contingencies as contemplated in

section 5(11)(c)(i) of the old Bombay Rent Act, 1947 and now section

7(15)(d) of the MRC Act certain heirs are unable to succeed to a

statutory tenancy. To this extent, departure is made from general law.

In the circumstances, we do not see how such observations of the

Hon'ble Supreme Court would be decisive.

16) In a decision in the case of Pushpa Rani and Ors. vs.

Bhagwanti Devi and Anr. reported in AIR 1994 SC 774 the Hon'ble

Supreme Court held that when a tenant dies, it was the person who

continued in occupation of and carried on business in the business

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premises alone with whom the landlord should deal and other heirs

must be held to have surrendered their right of tenancy. In a later

pronouncement in the case of State of West Bengal and Anr. vs. Kailash

Chandra Kapur and Ors. reported in AIR 1997 SC 1348 the Hon'ble

Supreme Court, after referring to the view taken by this court in the

case of Dr. Anant Trimbak Sabnis vs. Vasant Pratap Pandit reported in

AIR 1980 Bom. 69 held as under:-

"11. It was, therefore, held that in the absence of any definition the legal heirs of the tenants who succeeded by

intestate succession became the tenants under the Rent Act for the purpose of continuance of tenancy right had by the tenant even if it is after the determination of the contractual tenancy.

The statutory tenancy steps in and gives protection to the legal heirs of the deceased tenant. It is true that in that case no distinction was made by this Court between testamentary succession or intestate succession. As far as testamentary succession is concerned, this court had considered that question

in Bhavarlal's case (AIR 1986 SC 600) (supra). In that case, S. 5(11) of the Bombay Rent Act defines the tenant and clause (c)

defines the "restricted tenancy rights" in favour of the family members of the tenant. In that context, the question arose in that case whether a tenant can bequeath a Will in favour of a stranger? Considering the ratio in Gian Devi's case (AIR 1985

SC 796) (supra) and the object of the Act, this court had held that the tenant cannot by a Will bequeath leasehold right in favour of strangers and induct the stranger as tenant of the demised premises against the Will of the landlord and the landlord is not bound by such a bequest to recognise the legatee as a tenant. It is, thus, settled law that though leasehold

interest may be bequeathed by a testamentary disposition, the landlord is not bound by it nor a stranger be thrusted as tenant against the unwilling landlord."

17) Therefore, there appears to be no conflict in the two

provisions. The HS Act amends and codifies the law relating to

succession amongst Hindus and therefore the overriding effect given to

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it by section 4(1)(b) over other law in force immediately before

commencement of the HS Act relating to intestate succession amongst

Hindus, that law ceased to apply insofar as it is inconsistent with any

other provisions contained in the HS Act. The reliance placed on this

clause by Mr. Thakkar is entirely misplaced. Once we understand the

controversy in the above manner, then, we do not see how we can apply

the mandate of Article 254 of the Constitution of India. That Article has

no application.

18)

We have already held that nothing in clause (d) of section

7(15) of the MRC Act interferes with the rule of succession enacted by

the HS Act. That definition of the term 'tenant' has been inserted to

mean any person by whom or on whose account rent is payable for any

premises and includes firstly such person who is a tenant or who is a

deemed tenant or who is a sub-tenant as permitted under a contract or

by the permission or consent of the landlord or who has derived title

under a tenant or 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. Secondly, it includes a person who is deemed to be a

tenant under section 25 of the MRC Act or a person to whom interest in

premises has been assigned or transferred as permitted under section 26

of the MRC Act and finally, in relation to any premises when the tenant

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dies, whether the death occurred before or after the commencement of

this Act, any member of the tenant's family, who, when the premises are

let for residence, is residing or when the premises are let for education,

business, trade or storage, is using the premises for any such purpose

with the tenant at the time of his death or in the absence of such

member, any heir of the deceased tenant, as may be decided, in the

absence of agreement, by the Court, will step in. If there was any

intention to interfere with the law of succession and the rule laid down

thereunder, the words "any heir of the deceased tenant" would not have

been appearing in the definition at all. We also find that the definition

read in its entirety reveals as to how the tenant means any person by

whom or on whose account rent is payable for any premises and

includes, after the death of the tenant, a member of the tenant's family.

It is not as if only a right is created by this provision in the member of

the family residing with the tenant or carrying on business with him but

there is a duty and obligation while permitting the member of the

family to step in after the tenant's demise and that is to pay rent and

other charges for the premises in terms of the MRC Act and also to

abide by it so far as the matters covered by it. Therefore, we do not

find that there is any substance in the contentions of the learned

Counsel appearing for the Petitioner.

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19) As a result of the above discussion, the Writ Petition fails

and is dismissed.

          (G.S.KULKARNI, J.)                       (S.C.DHARMADHIKARI, J.)




                                                     
                                        
                          
                         
      
   







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