Bombay High Court
Smt. Somubai T. Waskar(Since ... vs Pen Municipal Council Thr. Chief ... on 9 February, 2021
Bench: C.V. Bhadang
10-sast-23055-19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL (ST) NO. 23055 OF 2019
Somubai Tukaram Waskar (since deceased)
through LRs. M. T. Waskar (since Deceased)
through LRs Ramesh T. Waskar & Anr. ..Appellants
Vs.
Pen Municipal Council through
Chief Officer, Pen, Tal. Pen, Dist. Raigad ..Respondent
----
Mr. Rohit D. Joshi, for the Appellants.
Ms. Priyanka Bhadrashete i/b. N. N. Bhadrashete, for the
Respondent.
----
CORAM : C.V. BHADANG, J.
DATE : 09th FEBRUARY 2021
P.C.
. The challenge in this appeal, is to be judgment and decree
dated 15/7/2019, passed by the learned District Judge Raigad at
Alibag, in Regular Civil Appeal No.64/2011. By the impugned
judgment, the appeal filed by the appellants, challenging the
judgment and decree dated 21/2/2011 passed by the learned Civil
Judge Junior Division at Pen, in Regular Civil Suit No.140/2007 has
been dismissed. The net result is that the decree passed by the Trial
Court, directing eviction of the appellants, from the suit premises,
has been confirmed.
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2. The brief facts are that the respondent Municipal Corporation
filed the aforesaid suit against the appellants for eviction and
possession and other consequential reliefs. The subject matter of
dispute happens to be a shop / gala No.2 on the ground floor of a
building bearing No.13/5 belonging to the respondent Municipal
Corporation. The case made out in the plaint is that the said shop
was tenanted to late Tukaram Narayan Waskar and after his death,
the appellants being his legal representatives were in possession of
the said shop / gala as monthly tenant.
3. The respondent issued a notice dated 1/9/2007 purportedly
under Section 106 of the Transfer of Property Act, 1882 (' the T. P.
Act' for short) thereby terminating the tenancy w.e.f. 30/9/2007 and
seeking vacant possession of the suit shop. A notice reply dated
3/9/2007 was issued to the same refusing to deliver the vacant
possession. It is in these circumstances that the respondent was
required to file the aforesaid suit for eviction and possession etc.
4. The appellants resisted the suit. It was contended that the
respondent had entrusted the development of the entire building in
which the suit shop is situated, initially to Mr. Jain Brothers, who
had agreed to give alternate premises of an equivalent area to the
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appellants. However, subsequently, there were disputes between the
respondent and Jain Brothers, as a result of which the development
work was entrusted to Mr. Mahendra Sanitation and K.P.H. Group,
Mumbai on the same terms and conditions. However, the previous
developer had made an attempt to demolish the structure which led
the appellants to file Regular Civil Suit No.60/2004 seeking
injunction not to dispossess them otherwise in due course of law.
The said suit came to be decreed. It was contended that the said
decree was binding on the parties. All other adverse allegations
were denied.
5. On the basis of the rival pleadings, the learned Trial Court
framed in all three issues. On behalf of the respondent, Authorised
Officer Mr. Pravin Vasant Kadam was examined as P.W.1. The
appellants examined Power of Attorney holder Mr. Dinesh Waskar.
The learned Trial Court answered issue Nos.1 and 2 in the
affirmative and decreed the suit which has been confirmed by the
First Appellate Court. Hence, this appeal.
6. I have heard Mr. Joshi, the learned counsel for the appellants
and Ms. Priyanka Bhadrashete, the learned counsel for the
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respondent. With the assistance of the learned counsel for the
parties, I have gone through the record.
7. Mr. Joshi, the learned counsel for the appellants submitted
that the subject tenancy, was a tenancy, for manufacturing purpose
and as such was a tenancy from year to year, requiring a six months
notice of termination. It is thus submitted that the notice under
Section 106 of the T. P. Act was not valid. Secondly, it was
contended that the premises were governed by the Maharashtra
Rent Control Act, 1999 and thus, the suit filed simpliciter on the
ground of termination by a notice under Section 106 of the T. P. Act
was not maintainable. It is next submitted that the provisions of the
Maharashtra Government Premises (Eviction) Act 1956 (' the Act of
1956' for short) were also applicable and the suit as framed and
filed was not maintainable. It is submitted that the Trial Court
failed to frame proper issues on these aspects. It was also pointed
out that the application for amendment of the pleadings was also
wrongly rejected. Except these, there are no other contentions
raised.
8. The learned counsel for the respondent has supported the
impugned judgment. It is submitted that the contentions raised on
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the basis of the Rent Act as well as on the Act of 1956 have been
considered and rightly rejected by both the Courts below. It is
submitted that the appellants were running 'Waskar Cycle and
Motorcycle Repairing Workshop' in the premises, which cannot be
considered as a manufacturing process, within the meaning of
Section 106 of the T. P. Act. It is submitted that even otherwise the
record would show that no such ground was raised in the Written
Statement in the evidence of the POA holder examined on behalf of
the respondent. It is submitted that the said witness had also
admitted that the rent agreed was Rs.120/- per month. It is thus
submitted that it was a monthly tenancy.
9. I have carefully considered the rival circumstances and the
submissions made. It is a matter of record that the notice of
termination was issued under Section 106 of the T. P. Act and it was
issued on 1/9/2007 terminating the tenancy w.e.f. 30/9/2007. The
respondent had issued a reply to the said notice on 3/9/2007 and
thus it can clearly be seen that it was a clear 15 days notice, as
required by Section 106 of the T. P. Act. The contention that it was a
yearly tenancy on account of the fact that the tenancy was for the
purpose of manufacturing process, to my mind cannot be accepted
for more reasons than one. Firstly, in the notice reply or the written
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statement or in the evidence no such contention was raised. There
was an application filed, seeking amendment of the Written
Statement, after the parties had closed their evidence which was
rejected by the Trial Court. The Appellate Court has considered the
aspect of refusal of the amendment and has found and to my mind
rightly so that amendment could not be allowed. Thus, there were
absolutely no pleadings or evidence to show that it was a tenancy
for manufacturing purpose. That apart, the activity of running of a
Cycle and Motorcycle Repairing Workshop in the premises can
hardly be regarded as a manufacturing activity, within the meaning
of Section 106 of the T.P. Act. For these reasons, the contention that
the notice under Section 106 of the T.P. Act was invalid, to my mind
cannot be accepted.
10. Coming to the contention based on Rent Act, the provisions of
Section 3 of the said Act would make it explicit, that the said act
does not apply to premises belonging to Government or local
authority. Thus, the said contention is entirely misconceived and
cannot be accepted.
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11. Lastly, coming to the provisions of the Act of 1956, Section
2(b) of the said Act, which defines the 'Government Premises' as
under-
2(b) "Government Premises" means any premises
belonging to or taken on lease by the State
Government, and includes (the premises requisitioned
or continued under requisition under the Bombay
Land Requisition Act, 1948 and allotted by the State
Government for any non residential purpose to any
department or office of the State Government or
Central Government or any public sector undertaking
or corporation owned or controlled fully or partly by
the State Government or any co-operative society
registered under the Maharashtra Co-operative
Societies Act, 1960 or any foreign consulate, by
whatever name called, and on the date of coming into
force of the Bombay Rents, Hotel and Lodging House
Rates Control, Bombay Land Requisition and Bombay
Government Premises (Eviction) (Amendment) Act,
1996 (are in their occupation or possession) and any
premises taken on behalf of the State Government on
the basis of tenancy or other like relationship by, or in
the name of, any officer subordinate to the State
Government authorised in this behalf (and also
includes any premises belonging to, or taken on lease
or held by, or on behalf of-(i) any company as defined
in Section 3 of the Companies Act, 1956 in which not
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less than fifty one per cent of the paid up share capital
is held by the State Government.
(ii) any corporation (not being any such company or
a local authority) established by or under any Central
or State Act and owned or controlled fully or partly by
the State Government.
(iii) a wakf, registered with the Maharashtra State
Board of Wakfs.
12. The learned Trial Court after noticing the said provision has
found that the premises belonging to a local authority are not shown
to be included in the definition of 'Government Premises'. No other
provision or any authority was brought to my notice holding that the
premises belonging to the local authority are 'Government Premises'
within the meaning of the Act of 1956. Thus, the said contention
also to my mind cannot be accepted.
13. The learned counsel for the appellants submitted that there
were no proper issues framed on the aspect of the applicability of
the Rent Act and the Act of 1956. However, the perusal of the
judgment of the Trial Court and the Appellate Court would show
that indeed the rival contentions on these grounds have been
properly considered by the Courts below. Thus, mere non framing
of specific issues on that count, would not be decisive.
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14. I have carefully gone through the judgment and order passed
by the Trial Court and that of the First Appellate Court. They do not
suffer from any infirmity so as to require interference. The appeal
does not raise any substantial question of law. In the result, the
second appeal is hereby dismissed with no order as to costs.
15. A decree be drawn accordingly.
16. All the civil applications are disposed of, as infructuous.
C.V. BHADANG, J.
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