Bombay High Court
Board Of Management Of The Bombay ... vs Farokh Ratanshaw Irani And Anr on 12 August, 2024
2024:BHC-AS:32788
Gayatri Shimpi 11-CRA-438-2022(1).docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 438 OF 2022
1. Board of Management
of The Bombay Property of
Indian Institute of Science,
Bombay House, 24, Homi Mody Street,
Fort Mumbai 400 001.
2. Treasurer of Charitable
Endowments for India,
A Statutoy Corporation appointed
under Charitable Endowment Act,
1890 having its office at Candy House,
1st Floor, Mandlik Road, Mumbai. ... Applicants
Versus
1. Farokh Ratanshaw Irani
An adult Indian inhabitant,
aged about '''' years,
having residential address at Ground
floor, Old Cama Building, Zoroastrian
Colony, Chikalwadi,
Tardeo, Mumbai 400 067.
2. Monaz Mahernosh Mistry
An adult Indian inhabitant,
aged about '''' years,
having residential address at
Flat No. 10 Station
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Terrace Sleater Road, Grant Road,
Mumbai 400 007 ... Respondents
WITH
CIVIL REVISION APPLICATION (ST) NO. 21438 OF 2022
Monaz Mahernosh Mistry
Occ Service, Age 52 years
R/ at 10, Station Terrace
Ground Floor, Sleater Road, Grant Road
West Mumbai 400 007 ... Applicant
Versus
1. Board of Management
of The Bombay Property of
Indian Institute of Science,
Bombay House, 24, Homi Mody Street,
Fort Mumbai 400 001.
2. The Treasurer of Charitable
Endowments for India,
A Statutoy Corporation appointed
under Charitable Endowment Act,
1890 having its office at Candy House,
1st Floor, Mandlik Road, Mumbai. 400 001
3. Farokh Ratanshaw Irani
aged 80 years, Occ. Retired
Having address at Ground Floor,
Old Cama Building, Zoroastrian
Colony, Chikalwadi, Tardeo,
Mumbai 400 067. ... Respondents
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WITH
CIVIL REVISION APPLICATION NO. 482 OF 2022
________________________________________________
Mr. Ashish Kamat, Senior Advocate a/w Mr. Dhruva Gandhi, Ms. Anuja
Jhunjhunwala, Ms. Rukshin G. i/b M. Mulla Associates, for the Applicants
in CRA No. 438/2022.
Mr. Jaydeep Deo, for Applicant in CRA-ST No. 21438/2022 and CRA
No.482/2022.
Mr. Anuj Desai i/b Fatima Lakdawala, for Respondents in all CRA.
________________________________________________
CORAM : SANDEEP V. MARNE, J.
Date : 12 AUGUST 2024.
P.C. :
1) The issue raised by the landlords in the present three Civil Revision
Applications is about jurisdiction of the Small Causes Court under
provisions of Section 33 of the Maharashtra Rent Control Act, 1999
(MRC Act) to decide the issue about the heir to succeed to the tenancy of
a deceased tenant under provision of Section 7(15)(d) of the Maharashtra
Rent Control Act ('MRC' Act).
2) It appears that, late Mr. Behram Noshirwan Driver was the original
tenant in respect of the suit premises. After his death, two persons
claiming to be his heirs filed two separate declaratory suits for seeking a
declaration of tenancy rights in respect of the deceased tenant. Mr. Farokh
Ratanshaw Irani filed R.A.D. Suit No.1136 of 2005 whereas Mrs. Monaz
Mahernosh Mistry filed RAD Suit No.187 of 2009. Both the Suits came
to be dismissed by common Judgment and Decree dated 16 August 2011.
Mrs. Monaz filed Appeal No.13 of 2012 whereas Mr. Farokh filed Appeal
No.48 of 2011. By two separate decrees dated 5 May 2022, the Appellate
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Bench of Small Causes Court has dismissed Appeal No.13 of 2012
preferred by Mrs. Monaz whereas Appeal No.48 of 2011 preferred by Mr.
Farokh has been allowed declaring him to be the tenant in respect of the
Suit premises.
3) Landlords have filed Civil Revision Application No.438 of 2022
challenging the decree in Appeal No.48 of 2011 of Mr. Farokh. Mrs.
Monaz has preferred Civil Revision Application No.482 of 2022
challenging the decree dated 5 May 2022 passed by the Appellate Bench
in Appeal No.48 of 2011 filed by Mr. Farokh. So far as dismissal of their
Appeal No. 13 of 2012 Ms. Monaz has filed Civil Revision Application
(ST) No.21438 of 2022. Considering the limited issue that is sought to be
raised by the landlords in Civil Revision Application No.438 of 2022
about jurisdiction of the Court of Small Causes Court to decide contesting
claim of heirship for claiming declaration to the tenancy in respect of the
suit premises, in my view, it is not necessary, at this juncture, to decide the
competing claims of Mr. Farokh and Ms. Monas.
4) Mr. Kamat, the learned senior advocate appearing for the landlords
in CRA No.438 of 2022 has relied upon the Division Bench Judgment of
this Court in Mrs. Mina Srinivasan Krishnan Vs. Arun Bhaskar Adarkar 1.
The issue involved before the Division Bench of this Court was about
Jurisdiction of Court established under the MRC Act under Section 33
thereof to decide the issue of heirship between two computing persons to
the tenancy rights when both of them admittedly did not reside with the
tenant at the time of his/her death. This Court held in paragraph No.4,
29, 67, 70, 73, 79 and 90 as under:-
1Appeal No.312 of 2012 decided on 16 June 2024
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4. The learned Single Judge held that the claim or question in the subject Suit is
not covered by Section 33 of the Maharashtra Rent Control Act, 1999 (for short "MRC
Act"). The Civil Court has, therefore, jurisdiction to entertain and try the present Suit.
The correctness of this finding and conclusion is impugned in the present Appeal.
XXXXX-----
29. Mr. Madon then submits that the impugned order is contrary to law and
deserves to be quashed and set aside because the term or word "court" appearing in
Section 7(15) of the MRC Act cannot be a court other than the Small Causes Court.
The Legislature never intended that a claim or question falling under and covered by
the MRC Act should be decided by any court other than the court of exclusive
jurisdiction. If this interpretation is not placed on the provision in question, then, a
parallel inquiry or proceeding would be maintainable. That is not intended by law.
Who should step into the shoes of the deceased tenant in the event there is no member
of the family residing with a tenant at the time of his death is the question which needs
to be and must be answered by the Court of exclusive jurisdiction. That would bring
about certainty and finality to the issue or claim. Thereafter, the landlord has to
recognize that person a tenant and accept the rent from him/her. The Legislature could
not have intended that a claim or question of this nature should be decided by an
ordinary civil court. The very object and purpose of conferring the authority or
jurisdiction in the courts specified in Section 33 of the MRC Act then would be
defeated. If there is a dispute about the tenancy rights, then, an ordinary Civil Court
has no jurisdiction. Mr. Madon submits that the permanent injunction as claimed
cannot be granted unless the claim or question raised in the present suit is answered.
That has to be decided before granting the relief. That cannot be decided by an
ordinary civil court. More so, when in this case the Respondent / Plaintiff asserts that
he was residing with the tenant at the time of his/ her death whereas the law does not
postulate any such requirement in the case of a heir. As to which heir succeeds to the
tenancy rights in the eventuality of the tenant dying leaving no member of family
residing with him at the time of his death, is the issue which must be decided by the
Court of Small Causes, failing which the legislative mandate would be rendered
nugatory. For all these reasons, Mr. Madon submits that the impugned order be
quashed and set aside.
XXXXX---
67. In that regard one must also note the argument of Mr. Devitre that there is a
difference in the language of Section 33 of the MRC Act and Section 28 of the
Bombay Rent Act (old Act). Mr. Devitre submits that Section 28(1) and below clause
(b) contained similar phraseology, but in addition thereto what were appearing are the
following words:-
"and to deal with any claim or question arising out of this Act or any of its
provisions".
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Mr. Debitre submits that Section 28(1) of the old Act has to be juxtaposed with
Section 33(1)(c) of the MRC Act where the Legislature has omitted the above words.
Mr. Devitre submits that the difference between Section 28(1) of the old Act and
Section 33(1)(c) of the MRC Act must not be lost sight of and cannot be brushed
aside. We are inclined to agree with him.
XXXXX----
70. In the same well respected and acknowledged work, namely, Principles of
Statutory Interpretation, Justice G.P. Singh observes that the legislative intent in such
cases has to be noted. The learned Author says that numerous illustrations can be
found where the Legislature not happy with a particular construction placed on the
enactment has changed the same by amending the Statute and that is specially true of
tax and
welfare legislation. Alteration of law by the Legislature, however, does not
give rise to any inference that the previous decisions were wrong or that
those who proposed alteration were of that opinion. But, when judicial
decisions have taken two different views of the statutory provisions which
are reenacted with certain modifications, the change in language may be
suggestive of acceptance of one view by the Legislature and the meaning
consistent with that view should be placed on the provision enacted. Thus one has to
proceed on the assumption that the Legislature being aware of
the controversy generated because of presence of wide words in Section
28(1) of the old Act, decided to omit them intentionally while enacting
Section 33 of the MRC Act, 1999. One has to respect these views and
wishes of the Legislature as that is presumed to reflect the will of the
people. It is too well settled to be reiterated that when the Legislature sits
to enact and make a law it does so because it is necessary. It does not sit to
make the law only because it has nothing else to do or it intends to pass
time. The Legislature steps in and to make the law because there is need
to do so. The Legislature intervenes to change the law or amend it or
consolidate or unify it only because of felt need of times. This principle is
firmly established to require a detailed reference to any precedents.
Suffice it to refer to the judgments of the Hon'ble Supreme Court reported
in A.I.R. 1987 SC 1023 (R.B.I. v/s Peerless G.F. and Investment Co. Ltd.
See para 33 at page 1042) and Utkal Contractors and Joinary Pvt. Ltd. &
ors. v/s State of Orissa and ors., reported in A.I.R. 1987 SC 1454. The
Hon'ble Court has held precisely in these words in paragraphs 9 to 13 (see
pages 1459 to 1460). As is reflected in the Preamble to the MRC Act,
1999, it is clear that three different Rent Control Legislations operating
within one State resulted in uncertainty, unpredictability and confusion. It
was surprising that in a single State, three different laws with distinct
forums and procedures for resolution of disputes were allowed to operate
and for decades. That resulted in complications and contradictions. That
gave rise to a large scale misuse and abuse of the welfare legislations and
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particularly on account of the conflicting construction of the law. It was
necessary to bring in harmony, consistency, and coordination in the Rent
Control Legislations operating in several parts and regions of the State,
that triggered the legislative exercise undertaken in the present case. We
are, therefore, required to take a view in consonance with this legislative approach and
intent. We cannot be unmindful of the fact that the
Legislature did not intend to confer jurisdiction in the courts specified in
Section 33 of the MRC Act to decide all claims or questions irrespective of
the relationship of a landlord and tenant. The Legislature created special
jurisdiction in the existing Courts or rather maintained it throughout the
State in order to deal with the claims or questions arising out of
relationship of landlord and tenant.
XXXX----
73. We are not in agreement with Mr.Madon that all the claims
and disputes of the nature referred to in Section 7(15) of the MRC Act
must be resolved by the courts of special jurisdiction referred to in Section
33 of the MRC Act, 1999. It is his submission that the legislature equally
intended that there should be one Fora or one court so as not to create
further complications and on account of two courts exercising parallel
jurisdiction. Mr.Madon's argument presupposes that the dispute in the
present case and arising out of the plaint allegations is a claim or question
arising out of the MRC Act. That submission has no legal basis and is
clearly untenable. Having noted that the words under the old Act and of
wide amplitude having been omitted in Section 33 of the new Act, it is not
possible to agree with Mr.Madon. Further, it is not possible to agree with
him that the questions that are posed or the claims that have to be decided in the
present case must be decided by the court of exclusive or
special jurisdiction or else there will be a parallel adjudication.
XXXX----
79. This is the case which has been considered by the learned
Single Judge to be one not based on the residence of a member of the
family with the original tenant at the time of his death. The learned Single
Judge has considered this case as one projected by a person claiming to be
the heir of the deceased tenant and asserting succession to the tenancy
rights to the exclusion of other heir. Meaning thereby this is an inter-se
dispute between two persons who are the heirs of the deceased tenant and not agreeing
between themselves as to who amongst them or one of them
would succeed to the tenancy rights. Therefore, we do not find much
substance in the contentions of Mr.Devitre that this is a case based on
settled physical possession and disturbance or obstruction thereto by the
Appellants. The learned Single Judge has, in the impugned order, referred
to the plaint allegations and held in paragraph 10 that both parties are
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claiming rights over the tenanted flat being heirs of the deceased tenant.
The learned Single Judge then observed that this is an interse dispute
between legal heirs of the deceased tenant. To our mind, therefore, the
plaint averments point towards a dispute of the nature referred above.
This is not a case where any person is claiming tenancy rights in the
subject flat on the footing that he is a member of the family residing with
the original tenant at the time of his death. This is a case which falls in the
later part of clause (d), namely, a heir of the deceased tenant claiming to
be a tenant of the flat to the exclusion of others. Since there is no
agreement nor could the heirs decide amongst themselves as to who
should succeed to the tenancy rights that we need not advert to and
consider the submissions of Mr.Madon about the nature of agreement
contemplated by clause (d) of subsection 15 of Section 7 of the MRC Act.
We need not consider his argument that the agreement referred to therein
must be between the heirs and the landlord. Since there is no agreement
between two heirs in this case all that we have to consider is, whether,
their inter-se dispute and which is foundation of the suit before this court,
can be adjudicated upon by the Court of Small Causes at Mumbai or it is
the ordinary civil court, meaning thereby this Court on its original side
which can entertain, try and adjudicate on the same.
XXXXX----
90. Having outlined the object and purpose of the Rent Control Legislation and
holding that it is only when there is preexisting
relationship of a landlord and tenant that the Courts of exclusive or
special jurisdiction would be in a position to entertain and try the suits or
disputes that we are of the opinion that all the more in the present case
the dispute between two heirs as to who should succeed to the tenancy
rights in respect of the suit flat is out of the purview of the Courts
specified in Section 33 of the MRC Act. To clothe these courts with
jurisdiction to entertain and try the suits where the dispute raised is of the
present nature or a claim or question to be tried is not involving any
preexisting relationship, would be enlarging and expanding the
jurisdiction as also ambit and scope of the provision or section conferring
it. That would be contrary to the settled canon of interpretation. A reading
of the MRC Act as a whole leaves us in no manner of doubt that the
disputes of the present nature do not fall within the province of the courts
specified in Section 33 of the MRC Act. We are, therefore, not inclined to
accept the argument of Mr.Madon that the term "court" appearing in
Section 7(15)(d) of the MRC Act means a court specified in Section 33
and not an ordinary civil court. For the reasons that we have indicated
herein above the provisions of Section 33 do not admit of such
construction. Further, the argument of Mr.Madon that there would be
parallel adjudication does not impress us. In the facts and circumstances
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of this case we do not find that there is any parallel adjudication. It may
be that the Appellants have approached the Court of Small Causes.
However, their suit is for declaration that they are tenants in respect of the
suit flat. That is the declaration claimed against the landlord. Therefore,
the Respondent/ Plaintiff being a party thereto does not mean that it is the
Court of Small Causes alone which can decide the claim or question raised
in the instant suit. With the aid of the plaint in the Suit filed in the Court
of Small Causes by the Appellants and their assertions in the affidavit in reply filed in
the Notice of Motion in the instant Suit, the Appellants will
not succeed in proving that this Court lacks jurisdiction to entertain and
try the present Suit. That is the stand of the Appellants and based on their
version. That is at best their defence to the present Suit. However, their
version cannot be taken into consideration to determine this Court's
competence to try the Respondent's Suit. Thus, both suits cannot be as
identical or common at this stage and the issue of this Court's jurisdiction
is required to be answered independently and with reference to the
averments in the plaint in the Suit laid in this Court. When a larger picture
as pointed out above is borne in mind and taken into consideration, then,
the argument of Mr.Madon must fail.
Thus, by virtue of Division Bench Judgment of this Court in Mrs. Mina
Srinivasan Krishnan, (supra) the law is well settled that when the
claimants do not claim residence with the deceased tenant in the suit
premises and where claim of their tenancy is based purely on heirship, the
Small Causes Court shall not have any jurisdiction to decide the said issue
and the same needs to be raised and decided before the Civil Court. The
Division Bench of this Court has noticed a marked difference between the
provisions of Section 28 of the Bombay Rent Act, 1999 and Section 33 of
the MRC Act for the purpose of arriving at the conclusions reproduced
below.
5) Mr. Desai the learned counsel appearing for Mr. Farokh would seek
to distinguish the Judgment in Mrs. Mina Srinivasan Krishnan (supra) by
contending that the same Division Bench which decided Mrs. Mina
Srinivasan Krishnan (supra) has subsequently taken a view that the
declaration of tenancy given by Small Causes Court under provisions to
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Section 7(15)(d) is only by way of a stop gap arrangement, not preventing
a separate inquiry before the Civil Court into the issue of heirship. In this
regard he has relied upon Judgment of Division Bench of this Court in
Urmi Deepak Kadia Vs. State of Maharashtra2. I have considered the
Judgment in Urmi Deepak Kadia (supra) in which the issue before the
Division Bench was entirely different, and which is captured in the first
paragraph of the Judgment as under :-
"1. 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 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".
6) In the light of the above issue, the Division Bench made following
observations in paragraph Nos. 13 & 14 of the Judgment:-
13. We are of the view that the area and field covered by the MRC Act
is entirely different. The provisions 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 to merely
enable somebody to step-in in place 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
issueless. She left behind the Will bequeathing the properties including
2 2015(6) Mh.L.J. 462
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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
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.
7) In my view, since the issue for consideration before the Division
Bench in Urmi Deepak Kadia (supra) was altogether different, though the
judgment in Mrs. Mina Srinivasan Krishnan (supra) was in fact brought to
the notice of the Division Bench, it did not find any necessity to deal with
the said Judgment. Thus, the Judgement in Urmi Deepak Kadia (supra)
cannot be relied upon in support of an absolute proposition that in case of
competing claims to tenancy rights basedt purely on heirship, the Small
Causes Court can still conduct an inquiry therein and that its declaration
would only be a stop gap arrangement. In fact, if the submission of Mr.
Desai is accepted the same would lead to multiple inquiries into the same
issues. To take the present case itself, the declaration given by the
Appellate Bench of the Small Causes Court in case of Mr. Desai's client -
Mr. Farokh would merely act as a stop gap arrangement and Mr. Deo's
client - Mrs. Monaz will still be in position to file a separate suit raising
the very same issues which have been considered and decided by the Small
Causes Court. Such course of action will obviously have to be avoided
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which leads to multiplicity of proceedings arising out of same cause of
action.
8) Mr. Deo has contended that the proceedings filed under the Rent
Act decided the issue as to who is the tenant whereas Civil Court decides
much larger issue about right of parties to succeed to the estate of the
deceased. He has also submitted that the law always favors prevention of
multiplicity of proceedings and courts and example where a person claims
tenancy on both footings of residence as well as heirship and the Court
after conducting inquiry finds that if the claim of residence is not proved,
such persons will have to then filed a separate suit for proving his heirship
right.
9) However, the Division Bench of this Court in Mrs. Mina Srinivasan
Krishnan (supra) has unequivocally held that in case where the claim is
not based on residence with the tenant, and the same is based purely on
the basis of heirship with the deceased tenant, the Small Causes Court
shall not have jurisdiction under Section 33 of the MRC Act to decide the
said dispute. I am bound by the judgment and the view taken by the
Division Bench in Mrs. Mina Srinivasan Krishnan (supra).
10) Though the issue of jurisdiction of the Small Causes Court in
deciding the competing claims of Mr. Farokh and Mrs. Monaz based
purely on claim of heirship with admitted position that none of them
resided with the deceased tenant at the time of his death in the suit
premises, in my view, since the point of jurisdiction being a pure point of
law, the same can be raised even in the Revisionary Jurisdiction of this
Court.
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11) In my view therefore, the decrees passed by the learned Judge of the
Small Causes Court in both RAD No.187 of 2009 and RAD No.1136 of
2005 suffer from jurisdictional error. Both the Suits could not have been
entertained by the Small Causes Court and both Mr. Farokh and Mrs.
Monaz ought to have filed suits before City Civil Court seeking
adjudication of their respective claims as being heirs of the deceased
tenant. Consequently, the orders passed by the Appellant Bench in Appeal
No.13 of 2012 and Appeal No. 48 of 2011 are also equally unsustainable.
12) Civil Revision Application No.438 of 2022 accordingly succeeds.
The decree passed by the Appellate Bench on 5 May 2022 in Appeal
No.48 of 2011 is accordingly set aside and RAD Suit No.1136 of 2005 is
dismissed for want of jurisdiction to that limited extent Civil Revision
Application No.482 of 2022 filed by Ms. Monas also succeeds. So far as
Civil Revision Application (ST) No. 21438 of 2022 filed by Mrs. Monaz
is concerned the same is also allowed by setting aside the decree dated 5
May 2022 passed by the Appellate Bench in Appeal No. 13 of 2012.
However, RAD Suit No.187 of 2009 filed by Mrs. Monaz is also dismissed
for want of jurisdiction. Both Mr. Farokh and Mrs. Monaz would be at
liberty to file fresh suits before Civil Court to adjudicate their respective
claims in respect of heirship to claim tenancy rights in respect of the suit
property.
13) All questions on merits raised by all parties are specifically kept
open to the raised and adjudicated in fresh suits.
14) With the above directions, all the three Civil Revision Applications
are disposed of.
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15) By order dated 15 November 2022 this Court has directed parties
to maintain status quo. The said arrangement shall continue for a period
of eight weeks from today. So as to enable the parties to seek appropriate
interim relief from the City Civil Court.
[SANDEEP V. MARNE, J.]
GAYATRI RAJENDRA
RAJENDRA SHIMPI
SHIMPI Date:
2024.08.16
15:10:41 +0530
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