Bombay High Court
Messrs Auto Hirers And Anr vs Commerce Centre Co-Operative ... on 8 January, 2018
Bench: G. S. Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.358 OF 2015
Messrs Auto Hirers & anr .... .. Applicants
vs
Commerce Centre Co-operative Society Ltd .. Respondent
---
Mr.Y.S.Jahagirdar Senior counsel a/w Ms.Prabha Rathod i/b
Mr.Suraj S.Shah for Applicants
Mr.Vaibhav Mehta I.b.Vaibhav Mehta & Associates for Respondents
---
CORAM : G.S.KULKARNI, J
DATE: 8th JANUARY, 2018
ORAL JUDGMENT
1. This is a civil revision application of the tenant who suffers an
eviction decree dated 6 October 2006 passed by the Small Causes Court at
Bombay, in a suit instituted by the respondent-landlord being T.E.& R.Suit
No.64/76/2004. In an appeal filed by the applicant before the appellate bench
of the Small Causes Court, the eviction decree stands confirmed in the
following terms :
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O R D E R
1. " Appeal No.650 of 2006 is dismissed with costs.
2. The Appellants/original defendants, do hand over the vacant and
peaceful possession of the suit plot I.e Triangular Open plot of land admeasuring
167.62 sq.meters situated in the North West area of the compound of the
plaintiff's plot of land bearing C.S.No.732 (part) situate at 78, Tardeo Road
Mumbai-400 034 to the respondents/plaintiffs within (90) Ninety days from
today i.e.20.04.2015.
3. During the said period the Appellants./original defendans shall not part
with possession of the suit plot or to create, third party interest in respect of the
suit plot.
4. Decree be drawn up accordingly.
5. Order accordingly."
2. Being aggrieved by the concurrent findings of both the Courts
below the applicant-tenant has preferred this revision application.
3. In brief the facts are :-
By an agreement dated 28th March 1986 the respondent had let
out a triangular plot in the north-west corner of the premises of the
respondent-society being part of land bearing CS No.732 (part) (for short"the
suit plot") to the applicants. Prior to the institution of the eviction suit in
question as also prior to the coming into force of the Maharashtra Rent Control
Act, 1999 (for short "MR Act 1999") brought into force with effect from 31
March 2000 and during the regime of the erstwhile Bombay Rents, Hotel and
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Lodging House Rates Control Act, 1947, (for short the "1947 Act") disputes
had arisen between the parties. The applicant had approached the Small
Causes Court in RAD Suit No.1994/1990 seeking a declaratory relief, that the
applicant be declared as a tenant in respect of the "suit triangular plot of
land." This suit was decreed by the Small Causes Court by its judgment and
order dated 21.01.2003 in the following terms:-
"Suit is decreed.
The plaintiffs are declared as tenant in respect of suit triangular plot of
land situate at 78, Tardeo Road, Mumbai-400 034 and it is also
declared that they are protected under the provisions of the Bombay
Rent Act and are liable to pay only standard rent and permitted
increases in respect of the suit triangular plot of land."
(Emphasis supplied)
4. Subsequent thereto, the respondent by a suit notice dated
12.02.2004 terminated the tenancy of the applicant in regard to the suit
plot.The said notice was received by the applicant on 13.02.2004. As the
applicant failed to vacate the suit plot, the suit in question came to be
instituted by the respondent under section 41 of the Presidency Small Causes
Court Act, 1882 and not under the MR Act 1999 seeking a decree of eviction.
Section 41 confers jurisdiction on the Court other than the rent jurisdiction. It
would be appropriate to extract Section 41 of the Presidency Small Causes
Court Act, 1882 which reads thus :
"S.41. Suits or proceedings between licensors and licensees or landlords and
tenants for recovery of possession of immovable property and licence fees or rent,
except to those to which other Acts apply to lie in Small Causes Court - (1)
Notwithstanding anything contained elsewhere in this Act but subject to the
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provisions of sub-section (2), the Court of Small Cause shall have jurisdiction to
entertain and try all suits and proceedings between a licensor and licensee, or a
landlord and tenant, relating to the recovery of possession of any immovable
property situated in Greater Bombay, or relating to the recovery of any licence
fee or charges or rent therefrom, irrespective of the value of the subject matter of
such suits as proceedings.
(2) Nothing contained in sub-section (1) shall apply to suits or proceedings for
the recovery of possession of any immovable property, or of licence fee or charges
of rent thereof,to which the provisions of the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947, the Bombay Government Premises (Eviction)
Act, 1955, the Bombay Municipal Corporation Act, (the Maharashtra Housing
and Area Development Act, 1976) or any other law for the time being in force
apply.")
5. The basic premise on which the respondent-plaintiff filed the
eviction suit was that the tenancy of the applicant being validly terminated by
the suit notice dated 12.2.2004, occupation of the suit plot by the applicant-
defendant was rendered illegal. It was contended that in view of the repeal of
the 1947 Act by the MR Act, 1999 being brought into force on 31.3.2000, the
applicant had lost protection which was available to a tenant under the
erstwhile 1947 Act as no protection is available to a tenant of an open plot of
land under the MR Act, 1999 and thus the respondent was entitled to a decree
of possession once tenancy was terminated by the suit notice as per the
provisions of the Transfer of Property Act. The respondent thus contended that
though there was a declaration in favour of the applicant to be a tenant in the
earlier suit, it was of no consequence and would not enure to the benefit of the
applicant as under the MR Act, 1999.
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6. The applicant defended the suit inter alia on the ground that the
suit premises was not merely an open plot of land but there existed a structure
which was constructed by the applicant since last more than 20 years prior to
the filing of the suit in question and thus the case of the respondent/plaintiff
that the suit plot is the open plot of land was not correct. The relevant
averments are in paragraph 3,4,5 and 9 of the written statement. The
applicant thus contended that the tenancy of the applicant was protected
under the Maharashtra Rent Control Act, 1999 and objected to the jurisdiction
of the Court to entertain a suit under section 41 of the Presidency Small
Causes Court Act. The parties led their evidence. It has come in evidence that
though the applicant was in occupation some shop premises being shop nos.7
and 8 in the building of the respondent, however, such occupation had no
connection whatsoever with the tenancy of the triangular open plot of land
which was independently granted to the applicant under the agreement dated
20.03.1986.
7. The learned trial Judge by the judgment and order dated
06.10.2006 held that the evidence was clear that the suit premises was "an
open plot of land" and that the applicant was not entitled to have a protection
under the MR Act 1999, as open plot of land did not fall within the definition
of "premises" as defined under section 7 (9) of the MR Act 1999 and therefore
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the protection to a tenant under the MR Act 1999 was not available to the
applicant. It was thus held that the suit under section 41 of the Presidency
Small Causes Court Act was maintainable. It was observed that in view of the
clear provisions of the MR Act 1999, suits which were pending on the date of
commencing of the MR Act 1999 i.e. on 31.03.2000, were to be disposed of as
per the provision of the repealed Bombay Rent Hotels and Lodging Houses
Rates Control Act, 1947 and just because the applicant was declared a
protected tenant in Suit No.1994/1990, which was under the repealed 1947
Act, the applicant would not be entitled to any protection under the MR Act
1999. In regard to the defence of the applicant that the suit notice dated
12.02.2004 also did not comply with the requirement of the law the learned
trial Judge did not accept the said contention of the applicant and it was held
that the suit notice appropriately terminated the tenancy and the suit notice
was legal and valid. The learned trial Judge accordingly decreed the suit
directing eviction of the applicant from the suit premises namely the open plot
of land.
8. The applicant being aggrieved by the judgment and decree
passed by the learned trial Judge approached the Appellate bench of the Small
Causes Courts (for short 'the Appellate Court). It can be seen from the grounds
as raised in the appeal, that the applicant reiterated the contentions as urged
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before the trial Court however in a slightly different form, in as much as the
applicant inter alia contended that the suit premises was a open space with a
structure within the compound wall and that the compound wall was part of
the suit premises. It is for this reason the suit premises would fall within the
definition of premises under section 7 (9) of the MR Act 1999. The applicant's
contention this time was that there is a difference between "a open plot of
land" and "open space forming part of open land." It was contended that the
definition of of premises excludes "open plot of land" but does not exclude
"open spaces of land." It was contended that under the Municipal laws it was
compulsorily to keep open space and therefore the open space in question
cannot be treated, read and/or dealt in isolation but necessarily is required to
be taken as a part of the plot of land on which the respondent's building was
constructed and standing. Hence, the suit premises were not excluded from
the definition of 'premises' under the MR Act 1999. The appellate Court,
however, did not accept the said contentions as urged on behalf of the
applicant. The appellate Court held that it was abundantly clear that what
was let out to the applicant was an open plot of land. It was observed that
even considering the definition of "premises" under the MR Act 1999, the
argument of the applicant that only because the open plot of land falls within
the compound of the applicant, it would be required to be taken as "premises
appurtenant" cannot be accepted. The appellate Court also confirmed the
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findings of the learned trial Judge on the suit notice to be legal and valid.
9. Mr.Jahagirdar, learned senior counsel for the applicants in
assailing the concurrent findings against the applicant as recorded by the
Courts below has made two-fold submissions. It is firstly contended that both
the Courts have misconstrued the provisions of section 7 (9) of the MR Act
1999 which defines "premises.". It is submitted that the definition of
"premises" under sub-clause (i) of section 7 (9) of the MR Act 1999 includes
"garden, ground garages, if any appurtenant to such building or part of
building." The contention is that suit premises namely the open plot of land is
appurtenant to the building of the respondent-society and thus the suit
premises would enjoy the protection under the MR Act 1999. In supporting
this contention my attention is drawn to the grounds as raised in the appeal
memo of the applicant as filed before the appellate Court and more
particularly ground nos.j,k,l,m and n appearing at page 119 and 121 of the
paper book. Mr.Jahagirdar would support this contention relying on a decision
of the Supreme Court in International Airport Authority Employees Union
vs International Airports Authority of India1. The second contention of
Mr.Jahagirdar, is that both the Courts have erred in holding that the suit
notice was legal and valid. It is submitted that a perusal of the suit notice
1(2001) 1 Supreme Court Cases 205
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would indicate that the suit notice did not terminate the tenancy and therefore
it would not suffice the requirement of law to be a valid notice terminating the
tenancy.
10. On the other hand, Mr.Mehta learned counsel for the respondent-
landlord has supported the judgments of the Courts below. Referring to the
findings as recorded by the trial Court and the appellate Court it is submitted
that both the Courts have correctly appreciated the evidence on record and
considering the definition of premises as defined under section 7 (9) of the MR
Act 1999 have appropriately held that a simpliciter open plot of land as let out
to the applicant would not fall within the definition of premises. It is
submitted that the word 'appurtenant' as used in sub-clause (i) of section 7 (9)
is required to be read in conjunction with the former and the latter part of the
provision and thus both the Courts have appropriately considered the said
provision and decreed the respondent's suit. In support of the submission that
the word 'appurtenant' is required to be considered and applied only to
structural premises which would be let out, learned counsel for the respondent
has placed reliance on the decision of this Court in Morarji Goculdas Deoji
Trust & ors vs Madhav Vithal Kudwa2. As regards the contention of the
applicant on the suit notice not being legal and valid, my attention is drawn to
2 AIR 1983 Bombay 68
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the findings as recorded by the Courts below whereby the Courts have held the
suit notice validly terminated the tenancy. It is thus submitted that there is no
error/illegality or any perversity for the Courts to come to a conclusion that
the notice is legal and valid.
11. Having considered the rival submissions and having gone
through the judgments of the Courts below, in my opinion the contentions as
urged by Mr.Jahagirdar learned senior counsel for the applicants on none of
the counts can be accepted. It is not in dispute that what was let out to the
applicant was an open plot of land under the agreement dated 20.03.1986.It is
also not in dispute that in the prior proceedings namely RAD Suit
No.1994/1990, the applicant had sought a relief that the applicant was a
tenant of the open plot of land and nothing else, which can be clearly seen
from the decree granted by the Small Causes Court in favour of the applicant
and as noted above. The contention of the respondent/landlord is that under
the rent law now prevalent namely the MR Act 1999, the protection which was
granted to a tenancy of an open land has been taken away by virtue of the
definition of "premises" as contained in section 7 (9) of the MR Act 1999.
12. As the controversy revolves around the issue as to whether an
open plot of land would fall within the definition of "premises" under section 7
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(9) of the MR Act 1999, it would be appropriate to note the definition of
"premises" as contained under section 7 (9) of the MR Act 1999 which reads
thus:
"7. Definitions: In this Act, unless there is any repugnant to the subject or
context,-
(1) .......
(9) "premises" means any building or part of a building let or given on licence
separately (other than a farm building) including,-
(i) the gardens, grounds, garages and out-houses, if any, appurtenant to
such building or part of a building,
(ii) "any fittings affixed to such building or part of a building for the
more beneficial enjoyment thereof,
but, does not include a room or other accommodation in a hotel or lodging house;"
13. A plain reading of the above provision clearly indicates that for
the purposes of the MR Act 1999, premises would be any building or part of a
building which is let out or given on licence separately which may include
garden, ground, garages and out houses if any, appurtenant to such building
or part of a building, as sub-clause (i) of the provision would provide. As also
it would include any fitting affixed to such building or part of a building
provided for the more beneficial enjoyment of the premises. Thus, considering
the clear language of the said definition, simplicitor "open plot of land"
certainly does not fall within the definition of 'premises'. Thus, there is much
substance in the contention as urged on behalf of the respondent as also
correctly held by the Courts below that the suit plot being an open of land
would not fall within the definition of 'premises', considering the agreement
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between the parties, as the suit plot is not appurtenant to any tenancy of a
building or a structure which is let out to the applicant. It is not a case of the
applicant that some tenement in the structure/building of the respondent
society is let out to the applicant under the lease agreement dated 28 th
March,1986 to which this open plot is appurtenant. The provision is required
to be read in its entirety to ascertain the legislative intent. There cannot be any
isolated reading of the word "appurtenant" as falling in sub-clause {i} of the
definition of premises. If an interpretation as contended on behalf of the
applicant is to be accepted, it would be nothing but doing violence to the
legislative intent, so as to include something which the legislature has
categorically avoided to include namely, "tenancy of an open plot of land."
14. In the facts of the case, it is clear that the applicant was not
granted any tenancy which would include some part in the building along with
the open plot of land. It is only the open plot of land which has been
independently let out and thus the contention as urged on behalf of the
applicant that the word 'appurtenant' is required to be read as forming part of
the building, with which the applicants have no connection whatsoever cannot
be accepted. If this contention is accepted it would also amount to accepting
something which is completely alien to the facts on record namely that the
tenancy which is granted to the applicant is in respect of the open plot and no
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other premises in the building. The contention of Mr.Jahagirdar that it is a
open plot within the compound wall and being an open space compulsory
required to be maintained under the municipal laws also cannot be accepted.
Such a hypothesis, contrary to the agreement of tenancy which is only in
respect of open plot of land, is totally untenable. This submission of
Mr.Jahagirdar does not have any foundation on the facts and the evidence on
record. Also the contention as urged on behalf of the applicant that the
premises in question are commercial premises and therefore, the open ground
as let out to the applicant would be required to be treated as 'appurtenant' to
the building cannot be accepted, in view of the clear definition of the
'premises' under section 7(9) of the Act. The submission in fact again goes
contrary to the agreement of tenancy and the admitted position that what was
let out is the open plot of land. The learned counsel for the respondents
would be justified in placing the reliance on the Division Bench of this Court in
Morarji Goculdas Deoji Trust & ors vs Madhav Vithal Kudwa (supra) where
the Court has interpreted the word 'appurtenant' though under the provision of
section 5 (8) (b) of the Bombay Rent Act, the Court had observed that the
word 'appurtenant ' has a distinct and definite meaning, it would import
nothing more than what is strictly pertaining to the subject matter of the grant.
This logic would also apply in the present facts and in considering the
definition of 'premises' under the MR Act 1999. The reliance of Mr.Jahagirdar
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on the decision in International Airport Authority Employees Union vs
International Airports Authority of India (supra) would surely not assist
Mr.Jahagirdar as it is not a decision interpreting any rent legislation but
dealing with an issue under the Contract Labour (Regulation and abolition)
Act,1970. It is in this context the Court had considered that the car parking
areas would be part of the building. The Court in this case was not examining
any legislative provision which would either define building or premises.
15. In the context in hand and the conclusion I have reached
on the interpretation of the definition of 'premises' under section 7 (9) of the
MR Act 1999 it would be useful to refer to a decision of the learned single
Judge of this Court in the case of Savitribai Vishnupati Vaske & ors vs Faruk
Abdulrahim Patel & ors wherein it is held that the said definition does not
apply to lands. In paragraph 15 of the report the Court observed thus :-
15. " Considering the provisions of sections 2(1) to 2 (4) and section 6 of
the Bombay Rent Act, it would be clear that the emphasis given therein is to the
applicability of the said Act to the various areas as also to the premises let out
for the purposes set out therein. It is not in dispute that the definition of the
"premises" given in section 7 (9) of the M.R.Act the open land is not included. It
is also not in dispute that as per section 58 (1) (a) of the M.R.Act after
commencement of the M.R.Act, the Bombay Rent Act is repealed and is not
applicable. The conjoint reading of the sections 2 (2), 7 (9) and section 58 of
the M.R.Act leads to an irresistible conclusion that the provisions of the M.R.Act
are not applicable to the open land. Now the position that emerges is that with
effect from1st April 2000 the Bombay Rent Act stood repealed by the M.R.Act
and the M.R.Act is applicable. However, by virtue of section 7 (9) of the
M.R.Act, the said Act is not applicable to the open land. In view of this, the
parties are governed by the provisions of the T.P.Act."
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16. As regards the second contention as urged on behalf of the
applicant that the suit notice was illegal as it did not terminate the tenancy,
the argument itself was pale and lackluster to displace the findings of the
Courts below on law. The argument cannot be accepted for the reason that the
suit notice clearly recorded, an intention on the part of the respondent to
terminate the tenancy as the respondent recorded that the applicant should
quit and vacate the suit premises. Both the Courts have correctly held that the
suit notice was legal and valid.
17. As a sequel to the above discussion, I neither find any perversity
or any irregularity nor any material irregularity, in the Courts below
exercising jurisdiction vested in them. The revision application is without any
merit. It is accordingly rejected with costs.
18. The applicants are directed to hand over the vacant possession of
the suit premises to the respondent within a period of twelve weeks from
today. Ordered accordingly.
(G.S.KULKARNI, J)
