Bombay High Court
Vinod Mahabiprasad Gupta vs Saidpur Jute Co. Ltd. And Ors on 12 November, 2024
2024:BHC-AS:43352
Neeta Sawant CRA-120-2023-CRA-215-2023-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 120 OF 2023
1. M.B.K. Enterprises
2. M/s. Mangla International Pvt. Ltd.
3. M/s. Shubh Mangal Finvest Pvt. Ltd.
4. M/s. Marve Beach Realtors Pvt. Ltd.
5. M/s. Garden View Realtors Pvt. Ltd.
6. M/s. Dahlia Estate Developers Pvt. Ltd } ....Applicants
(Appellants in Appeal/
Org. Def Nos. 1 & 3 to 7)
: Versus :
1. Saidpur Jute Co. Ltd
2. Mid-Day Publications Pvt. Ltd.
3. Vinod Mahabirprasad Gupta }....Respondents
(Respondent Nos. 1, 2 & 3 in appeal/
Org. Plff & Def Nos. 2 & 8 respectively)
WITH
CIVIL REVISION APPLICATION NO. 215 OF 2023
WITH
INTERIM APPLICATION NO. 15717 OF 2023
Vinod Mahabiprasad Gupta }.... Applicant
(Original Defendant)
: Versus :
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1. Saidpur Jute Co. Ltd.
2. M.B.K. Enterprises
3. Mid Day Publications Pvt. Ltd.
4. M/s. Mangla International Pvt. Ltd.
5. M/s. Shubh Mangal Finvest Pvt. Ltd.
6. M/s. Marve Beach Realtors Pvt. Ltd.
7. M/s. Garden View Realtors Pvt. Ltd.
8. M/s. Dahlia Estate Developers Pvt. Ltd }.... Respondents
(Original Defendants)
___________________________________________________________
Mr. Chetan Kapadia, Senior Advocate with Mr. Yuvraj Singh and Ms.
Madhura Kathe i/b Ms. Snehal Raju Modi, for the Applicant in
CRA/120/2023.
Mr. G.S. Godbole, Senior Advocate with Mr. Hufeza Nasikwal, Mr.
Bupesh Dhumatkar and Ms. Farzana Rine, for the Applicant in
CRA/215/2023.
Mr. Gautam Ankhad, Senior Advocate with Mr. Anosh Sequiera, Mr.
Ankur Shah, Mr. Vikrant Shetty, Mr. Kush Shah and Ms. Netra Haldankar
i/b Dhurve Liladhar & Co., for Respondent No.1 in both Civil Revision
Applications.
___________________________________________________________
CORAM : SANDEEP V. MARNE, J.
Reserved On : 10 October 2024.
Pronounced On : 12 November 2024.
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JUDGMENT :
A. THE CHALLENGE 1) These Revision Applications are filed challenging the
judgment and order dated 12 January 2023 passed by the Appellate
Bench of the Small Causes Court dismissing (A-1) Appeal
Nos.396/2015 and 95/2016 and confirming the eviction decree dated
25 June 2015 passed by the Small Causes Court in R.A.E. Suit No.
147A/306 of 1996. By decreeing the suit, the Small Causes Court has
directed the Revision Applicants (Defendant Nos.1 to 8) to hand over
possession of the suit premises to the Plaintiff.
B. FACTS 2) Plaintiff claims to be the owner of Godown No. 63 in
Sitaram Mill, Delisle Road, Mumbai-400 001 are the suit premises.
By Agreement dated 2 July 1975 entered into between the Plaintiff-
Saidpur Jute Co. Ltd and Defendant No.1-MBK Enterprises, Plaintiff
granted lease in respect of portion of the Godown No. 63
admeasuring 8800 sq. ft (suit premises) in favour of Defendant No.1
for a period of 60 years at monthly rent of Rs.4,488/-. Plaintiff found
Defendant No.2-Mid-Day Publications Pvt. Ltd. in occupation of the
suit premises and accordingly filed R.A.E. Suit No. 147A/306 of
1996 on 9 February 1996 seeking recovery of possession of the suit
premises on the grounds of (i) unlawful subletting by Defendant No.1
to Defendant No.2 (ii) commission of acts contrary to the provisions
of Section 108 of the Transfer of Property Act and (iii) carrying out
structural additions and alterations of permanent nature in the suit
premises and erecting structures of permanent nature without
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obtaining written permission from Plaintiffs. Defendant No.1
appeared in the suit and filed Written Statement contending that
under the covenants of lease, it was entitled to grant sublease in
respect of the suit premises and that accordingly Defendant No.1
have subleased the premises to M/s. Mangla International Pvt. Ltd
and Ors. who are associate companies having Directors from the
same family and the said companies in turn had given the premises
on license to Defendant No.2-Mid-Day. Defendant No.1 denied the
allegations regarding to commission of act contrary to the provisions
of section 108(o) of the Transfer of Property Act, as well as, erecting
of structure of permanent nature without the consent of the landlord.
Defendant No.2-Mid-Day also filed its Written Statement admitting
its use and occupation of the suit premises from July 1995 but
pleaded that such occupation was under agreement with Defendant
No.1. Mid-Day also denied the allegations in the plaint.
3) On account of disclosure made by the Defendant No.1
about grant of sublease in favour of its associate companies, Plaintiff
was allowed to amend the suit by order dated 7 June 2003 and
impleaded Defendant Nos. 3 to 7 to the suit alleging unlawful
sublease/subletting of the suit premises by Defendant No.1 in favour
of Defendant Nos.3 to 7 with further allegation that Defendant No.1
allowed Defendant No. 2 to use and occupy the suit premises under
some arrangement without obtaining Plaintiff ‘s consent. It appears
that Defendant No.8-Vinod Mahabirprasad Gupta (Revision
Applicant in CRA -215/2023) was also impleaded in the suit by way
of subsequent amendment.
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additional Written Statement. Defendant No.2 also filed additional
Written Statement stating that during pendency of the suit,
Defendant No.2 vacated the suit premises and handed over possession
thereof to Defendant No.3 to 7 vide letter dated 25 November 2005.
Defendant No.2 therefore requested its deletion from the suit.
Defendant Nos.3 to 7 filed their Written Statement contesting the
suit. Defendant No.8 also filed his own Written Statement opposing
the suit.
5) Based on pleadings of the parties, the Small Causes Court
framed following issues:
1 Whether the Plaintiff prove that the Defendant No.1 has unlawfully
sublet the suit premises to Defendant No.2?
2 Whether the Defendants have carried out structural additions and
alterations of permanent nature in the suit premises?
3 Whether the Defendants have committed acts of waste contrary to
the provisions of clause ‘O’ of Section 108 of Transfer of Property
Act??
4 Whether the Plaintiffs are entitled to the decree for possession?
5 What order & decree?
Additional Issue dated 17/6/2010
1 Whether this Court has jurisdiction to entertain and try the suit?
Additional Issue dated 20/4/2011
2 Whether suit is maintainable?
Page No.5 of 65 12 November 2024 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:54:19 ::: Neeta Sawant CRA-120-2023-CRA-215-2023-FC 6) Rival parties led evidence in support of their respective
claims. Plaintiff examined Bhagwat Narayan Sharma as P.W.1 whose
cross-examination was conducted through a Court Commissioner.
P.W.1 filed additional Affidavit of Evidence after addition of
Defendant Nos. 3 to 8. Plaintiffs also examined Milind Subhash
Khatkar from the office of the Deputy Municipal Commissioner, G-
South Ward, M.C.G.M. as P.W.2, Mr. Harsharaj Madhukar Jadhav,
another witness from the office of the Deputy Municipal
Commissioner, G-South Ward, MCGM (Assessment Department) as
P.W.3 and Ghanshyam Punamchand Khandelwal, Court
Commissioner as P.W.4. Plaintiff closed its evidence on 23 February
2015. Defendant No.1 examined Shri. Susheel Mahavir Gupta as
D.W.1. Defendant No.2-Mid-Day did not contest the suit after filing
additional Written Statement disclosing surrender of possession of the
suit premises. Defendant Nos.3 to 7 did not lead evidence but adopted
the evidence adduced by Defendant No.1. Defendant No.8 examined
himself as a witness.
7) After considering the pleadings, documentary and oral
evidence, the Small Causes Court proceeded to decree the suit by
answering the issues of unlawful subletting, carrying out structural
additions and alternations of permanent nature and commission of
acts contrary to the provisions of Section 108(o) in favour of the
Plaintiffs and against the Defendants. The Small Causes Court
accordingly directed eviction of Defendants from the suit premises by
ordering them to handover possession thereof to the Plaintiffs within
three months.
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eviction decree dated 25 June 2015 passed in R.A.E. Suit
No.147A/306 of 1996. Defendant No.1 and Defendant Nos.3 to 7
filed Appeal No.396/2015, whereas Defendant No.8 filed Appeal
No.95/2016. The Appellate Court passed order dated 10 March 2017
granting stay to the execution of eviction decree subject to payment of
interim compensation at the rate of Rs.4,00,000/- per month by
Defendant No.1. Order dated 10 March 2017 passed by the Appellate
Bench was challenged in Writ Petition (Lodg.) No. 10234/2017. Since
Defendant No.1 was unable to pay interim compensation of
Rs.4,00,000/- per month, it agreed to handover possession of the suit
premises to the Plaintiff on/or before 4 July 2017 subject to return of
possession in the event of it succeeding in the Appeal. Plaintiff was
directed not to part with possession of the suit premises.
9) The Appellate Court heard Appeal Nos.396/2015 filed by
Defendant No.1, 3 to 7 and Appeal No.95/2016 filed by Defendant
No.8 and proceeded to dismiss both the Appeals by judgment and
order dated 12 January 2023. Accordingly, Defendant No.1, 3 to 7
have filed Civil Revision Application No.120/2023 challenging the
decree of the Appellate Court dated 12 January 2023 in Appeal
No.396/2015. Defendant No.8 has filed Civil Revision Application
No.215/2023 challenging the decree of the Appellate Court dated 12
January 2023 passed in Appeal No.95/2016. By order dated 9 March
2023 and 20 April 2023, this Court continued the arrangement as
recorded in the order dated 5 July 2017 passed in Writ Petition
No.6892/2017 in both the Civil Revision Applications.
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appearing on behalf of the Applicants in Revision Application
No.120/2023 (Defendant Nos.1, 3 to 7) submits that the Trial and the
Appellate Court have erred in decreeing the suit on the grounds of
unlawful subletting, commission of act of waste and erecting
structure of permanent nature without consent of the landlord. So far
as the ground of unlawful subletting is concerned, Mr. Kapadia
would submit that the lease-deed specifically recognized right of
subletting in favour of Defendant No.1-lessee which is borne out from
various clauses of the lease-deed. He would submit that the
provisions of Section 13(1)(e) of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 (Bombay Rent Act) is
subject to the provisions of Section 15. That though subletting by a
tenant is unlawful, both under the provisions of Section 15, as well as,
Section 13(1)(e), the same is subject to the contract to the contrary.
That in the present case, there is express contract between the parties
to the contrary enabling Defendant No.1-lessee to sublet the suit
premises. That by exercising the right under Clauses-2(i) and 3(d) of
the lease-deed, Defendant No.1 has sublet the suit premises to
Defendant Nos. 3 to 7 who are the associate companies of Defendant
No.1 having Directors of the same company. That Defendant Nos. 3
to 7 granted license in respect of the suit premises to Defendant No.2-
Mid-Day. That the lease-deed does not contain any stipulation
prohibiting further subletting/subleasing of the suit premises or
granting the same on license. That Clauses-2(i) and 3(d) of the lease-
deed specifically permits not only Defendant No.1-lessee but also its
assignees to sublease the suit premises or any part thereof for
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unexpired term of the lease. That therefore grant of license through
subleasing by Defendant Nos.3 to 7 was preferably within the
impermissible acts under the stipulations of lease. That upon grant of
sublease by Defendant No.7, they stepped into the shoes of
Defendant No.1 and possessed necessary right to further transfer their
interest in the lease of Defendant No.2.
11) Mr. Kapadia would further rely upon the provisions of
Section 108(j) of the Transfer of Property Act, which according to
him, recognizes a right of lessee to transfer or sublease whole or part
of lessees’ interest in the property and such lessee can further transfer
the same. That therefore in additional to specific covenants in the
lease-deed, Defendant No.1 otherwise was entitled to transfer the
leasehold rights under the provisions of Section 108(j) of the Transfer
of Property Act.
12) Mr. Kapadia would further submit that the suit, as
originally filed, was flawed as the same alleged unlawful subletting by
Defendant No. 1 in favour of Defendant No.2 by ignoring the
provisions of the lease-deed permitting Defendant No.1 to do so.
That Plaintiff thereafter improved upon its original case by including
the ground of unlawful subletting by Defendant No.1 in favour of
Defendant Nos.3 to 7 and Defendant Nos.3 to 7 allowed Defendant
No.2 to use and occupy the suit premises. Thus, the original case of
the Plaintiff in the unamended plaint was clearly contrary to the
covenants of the lease-deed and no different case was sought to be
made out by the Plaintiff to challenge act of grant of license in favour
of Defendant No.2 as contravention of the lease-deed and/or
provisions of the Bombay Rent Act.
Page No.9 of 65 12 November 2024 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:54:19 ::: Neeta Sawant CRA-120-2023-CRA-215-2023-FC 13) Mr. Kapadia would further submit that Plaintiff never
seriously contested the issue of unlawful subletting as it was always
aware about presence of Defendant No.2 in the suit premises as is
borne out by several correspondences on record. That Plaintiff never
objected to occupation of suit premises by Defendant No.2. He would
submit that there is no covenant in the lease-deed prohibiting
Defendant No.1 from subletting/assigning the leasehold rights and
that therefore the Appellate Court has erred in holding that induction
of Defendant No. 2 was proved without permission of the Plaintiff.
That the Appellate Court also erred in concurring with the findings of
the Trial Court that the lease-deed did not permit or allowed the suit
premises to be subleased one after another. That there is no such
express prohibition under the lease deed from subletting/subleasing
the premises by the sublessees/sublettees. That far from absence of
any restrictive covenant to that effect, such an act is otherwise
permissible under the provisions of the Transfer of Property Act.
14) Mr. Kapadia would further submit that Plaintiff was
otherwise not entitled to initiate action of eviction of Defendant No.1
without notice of forfeiture, contrary to the provisions of Clause-4(b)
of the lease-deed which required service of notice alleging breach or
non-performance of any covenant or condition of lease-deed and
period of 60 days for curing the said breach. Admittedly, no notice of
forfeiture was given by Plaintiff to Defendant No.1 with regard to the
alleged breaches of terms of lease. He would rely upon the provisions
of Section 111(g) of the Transfer of Property Act under which two
conditions specified for valid forfeiture of a subsisting lease (i) that
there is an express condition in the lease-deed providing that the
lessor may reenter on breach thereof and (ii) the lessor gives notice in
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writing to the lessee of his intention to determine the lease. That
neither of the said two conditions are available in the Indenture of
lease. There is no clause in the lease-deed providing that the lessor
would have a right to re-enter on the ground of subletting or assigning
the demised premises. That the purported forfeiture of the lease by
Plaintiff by institution of suit is per-se contrary to the requirements of
Clause-4(b) of Indenture of lease on two grounds of (i) absence of
any covenant prohibiting subletting and assignment of demised
property and (ii)failure to serve notice of 60 days to remedy the
alleged breach. Mr. Kapadia would take me through the evidence of
Plaintiff ‘s witness to demonstrate non-issuance of any notice.
15) Mr. Kapadia would rely on the judgment of the Apex
Court in Laxmidas Bapudas Darbar and another Versus. Rudravva
(Smt) and others1 in support of his contention that it was incumbent
for the Plaintiff to issue notice of termination or forfeiture for
recovery of possession of the suit premises notwithstanding the law
laid down by the Constitution Bench in V. Dhanapal Chettiar Versus.
Yesodai Ammal2. He would submit that in Laxmidas Bapudas Darbar
(supra), the Apex Court has held that the judgment in V. Dhanapal
Chettiar (supra) was incorrectly construed in the judgment in Shri.
Lakshmi Venkateshwara Enterpirses (P) Ltd. Versus. Syeda Vajhiunnissa
Begum3, as well as in Full Bench decision of Karnataka High Court in
Bombay Tyres International Ltd. Versus. K.S. Prakash4. That in
Laxmidas Bapudas Darbar, the Apex Court has held that the
provisions of the Rent Act do not completely obliterate the terms of
the lease-deed and hence according to Mr. Kapadia, the covenant in
1
(2001) 7 SCC 409
2
(1979) 4 SCC 214
3
(1994) 2 SCC 671
4
AIR 1997 Kant 331
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the lease-deed for service of notice of forfeiture would continue to
operate in the present case notwithstanding the judgment of the
Constitution Bench in V. Dhanapal Chettiar. He would also rely upon
judgment of Division Bench of Gujarat High Court in Jabal C.
Lashkari Versus. O. L. of Prasad Mills Limited and Ors 5 as upheld by
the Apex Court in Jabal C. Lashkari and others Versus. Official
Liquidator and others6 in support of his contention that proceedings
for eviction of a tenant under the fixed term contractual lease can be
initiated during subsistence of currency of the lease only if the
grounds enumerated in Section 13(1) of the Bombay Rent Act is also
specified as a ground for forfeiture in the lease-deed and not
otherwise. He would also rely upon judgment of the Apex Court in
Modern Hotel, Gudur, represented by M. N. Narayanan Versus. K.
Radhakrishnaiah and others7.
16) So far as the ground of structural additions and
alterations of permanent nature is concerned, Mr. Kapadia would
submit that the burden was on the landlord to prove his case first by
proving unaltered condition of the demised premises. That Plaintiff
did not produce the approved plans of M.C.G.M and the Trial and
the Appellate Courts ought to have drawn adverse inference against
the Plaintiff for such non-production. That Plaintiff ‘s witness in his
cross-examination admitted that Plaintiff ‘s architect in the report of
19 August 1995 did not mention about alleged changes made by
Defendant No.2 in the suit premises and Plaintiff did not appoint any
other Architect subsequently to inspect the suit premises. That thus
there is no expert technical evidence on record that Plaintiff was fully
5
2008 SCC OnLine Guj 171
6
(2016) 12 SCC 44
7
(1989) 2 SCC 686
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aware about the works being carried out in the suit premises prior to
filing of the suit as evidenced in correspondence between the parties.
Plaintiff however did not think it necessary to terminate the lease-
deed by issuance of notice of forfeiture.
17) Mr. Kapadia would further submit that the Defendants
carried out only necessary tenantable repairs and did not erect any
structure of permanent nature, which is evident from the
correspondence between the parties. He would take me through
various correspondence between the parties reflecting the ceiling of
the premises sinking on account of UCO Bank stocking heavy load
and Plaintiff itself agreed for necessity to repair the ceiling. That
Plaintiff never objected to such repairs and accepted Defendant No.1
to carry out the said repairs. The correspondence ensued between the
parties not with regard to the permission for carrying out repairs to
the ceiling, but about bearing of expenditure. That therefore carrying
out repairs to the ceiling is not only with permission of Plaintiff but
does not otherwise amount to erecting any structure of permanent
nature, nor repairing of ceiling by reinforcing a deteriorating wooden
beam with iron girders amount to cause of any damage or injury to
the tenanted premises so as to attract the provisions of Section 108(o)
of Transfer of Property Act. So far as allegation of removal of walls
is concerned, Mr. Kapadia would submit that the tenanted premises
did not have any load bearing internal walls as falsely alleged. That
the report dated 19 August 1995 did not refer to removal or
destruction of partition walls. That no independent documentary
evidence was produced to prove existence of any load bearing walls
in the suit premises. Even according to the Plaintiff, what is removed
are only partition walls. There is no allegation of erection of walls by
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any of the Defendants in the plaint or in the evidence. That in any
case, destruction of a partition wall does not tantamount to erection
of permanent structure under Section 13(1)(b) of the Bombay Rent
Act or commission of any act injurious or destructive under Section
108(o) of the Transfer of Property Act.
18) So far as the allegation of construction of mezzanine
floor is concerned, Mr. Kapadia has submitted that there is no
evidence of lowering of floor by the Defendants. That what is
constructed is merely a loft and there is no evidence to prove that the
nature of structure is that of a mezzanine floor. The Commissioner
himself did not measure the height between the floor of the loft and
height of the ceiling. That it is admitted position that the loft like
structure is constructed by use of hard plywood. That the evidence
produced by the Plaintiff itself shows that what is constructed is
merely a loft and not a mezzanine floor. So far as the allegation of
removal of doors is concerned, he would submit that there is no
evidence on record to suggest location or nature of doors which is
alleged to have been removed. That the report of the Court
Commissioner about existence of three entrances to the suit premises
is contradicted by Plaintiff ‘s own claim that there was only one
existing door and the remaining two doors were closed by brick
masonry works. In any case, opening or closing of door did not
attract provisions of Section 13(1)(a) or 13(1)(b) of the Bombay Rent
Act. Mr. Kapadia would pray for setting aside the impugned decrees.
19) Mr. Godbole, the learned senior Advocate appearing for
the Revision Applicant in Civil Revision Application No. 215 of 2023
(Defendant No.8) has also canvassed detailed submissions on the
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issues of right of Defendant No.1 to sublet the suit premises and right
of sublessees to create license in favour of Defendant No.2-Mid-Day.
It is not necessary to record detailed submissions of Mr. Godbole on
the issue of subletting as most of the submissions are already
captured in foregoing paragraphs while recording submissions of Mr.
Kapadia. So far as the allegation of erecting structure of permanent
nature and act of waste is concerned, Mr. Godbole would invite my
attention to the detailed chart reflecting comparison of pleadings,
evidence and findings about the alleged structural changes. He would
submit that Clause-4(c) of the Agreement expressly permitted
alterations, erection of strong room doors, grills, Air-Conditioners,
partition of premises by erecting partition walls. That it also
permitted ‘subblocks’ in the premises, which would necessarily entail
creation of partition walls. That permission to construct strong room
doors would indicate the extent of changes that the lessee was
permitted to effect in respect of the demised premises. That the lessor
was not to unreasonably withhold consent for additions and repairs
under Clause-2(h) of the lease-deed. That despite repeated requests
and reminders, the lessor did not take any action in respect of any
damage caused by UCO Bank (the tenant on upper floor). That by
various correspondence, lessor had consented to change of user,
installation of sewing machines, change of electric meters, change of
electric wiring etc. He would take me through various correspondence
with regard to the repair and ceiling due to excess load in the
premises by UCO Bank. That there are no load bearing walls within
the premises except the partition walls. That there were iron pillars
supporting the ceiling which is clear from the photographs in the
report of the Court Commissioner and therefore there is no question
of removal of load bearing walls. He would submit that the overhead
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ceiling was supported by old columns which were strengthened. That
if there were any load bearing walls and the same were removed, the
entire structure would have collapsed. That changing of tiles and
flooring and creation of toilets and bathrooms were for beneficial use
of the premises and such acts did not cause any damage or injury to
the premises. That in any case, no evidence is produced to prove
damage or injury to the main structure. The allegation of
construction of mezzanine floor is totally fallacious. That the Court
Commissioner himself described the structure as ‘loft like structure’
which was made by use of plywood. That the structure was not of
permanent nature. That MCGM did not issue notice or demolish the
structure again, thereby proving that the same was not of permanent
nature. Mr. Godbole would rely upon judgments in Venkatlal G. Pittie
and another Versus. Bright Bros. (Pvt.) Ltd.8, Om Prakash Versus. Amar
Singh and others9, Brijendra Nath Bhargava and another Versus. Harsh
Wardhan and others10 and Dinesh Jagannath Khandelwal Versus.
Kundanlal s/o Perumal Chhabriya and others11.
20) Mr. Gautam Ankhad, the learned senior advocate
appearing for Respondent No.1-Plaintiff in both the Revision
Applications would oppose the same submitting that both the
Revision Applications are without merits and are required to be
dismissed. That there are concurrent findings of fact based on
pleadings and evidence. That both the Courts have concurrently
upheld the grounds of unlawful subletting, as well as erecting of
permanent structure and causing of waste and damage to the suit
premises. That this Court would not interfere in exercise of
8
(1987) 3 SCC 558
9
(1987) 1 SCC 458
10
(1988) 1 SCC 454
11
2010(7) Mh.L.J. 719
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revisionary jurisdiction in absence of demonstration of any material
irregularity or perversity in the findings recorded by the Small Causes
Court and its Appellate Bench. He would rely upon judgments of the
Apex Court in Gandhe Vijay Kumar Versus. Mulji alias Mulchand 12 and
Hindustan Petroleum Corporation Ltd. Versus. Dilbahar Singh 13.
21) Mr. Ankhad would submit that the ground of unlawful
additions and alterations violating provisions of Section 13(1)(b) of
the Bombay Rent Act has correctly been accepted by both the Courts.
That the Plaintiff pleaded the case of demolition of two load bearing
walls dividing the premises admeasuring 8,800 sq.ft into three parts,
as well as removal of respective entrance doors by plastering the wall,
as well as construction of independent rooms without Plaintiff ‘s
consent. That Defendant No.1 denied demolition of load bearing
walls, it however admitted construction of two brick partition walls
and partly demolition/removal thereof. That such an act would be
clearly covered by the expression ‘permanent structure’ under Section
13(1)(b) of the Bombay Rent Act. That it is immaterial as to whether
the walls are load bearing or merely partition walls. Admittedly,
removal/reconstruction and again removable of walls clearly falls
foul of Section 13(1)(b). That there is specific admission by
Defendant No.2 in the written statement that the two dividing walls
were constructed to convert the suit premises into three rooms, which
were removed later. That Defendant No.2 had further admitted
existence of three entrance doors. That even P.W.1 deposed existence
of three sections divided by brick walls which were amalgamated into
one vacant space affecting the stability of the structure. He would rely
upon judgment of this Court in Prafulkumar Damaji Gala Versus.
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Narayan Govind Gavate (since deceased) his legal heirs Jitendra
Narayan Gavate and others14 in support of his contention that
demolition of partition walls amounts to permanent alterations
causing waste and damage to the suit premises.
22) Mr. Ankhad would further submit that P.W.1 has also
deposed about massive structural additions by removal of load
bearing/partition walls and removing of doors. That, additionally
officer of Municipal Corporation (PW2) deposed about notices dated
3 July 1999 and 5 July 1999 about illegal additions. The notices speak
volumes about erecting of permanent structures by the Defendants.
That the Court Commissioner has also deposed about unauthorized
additions and alterations. Mr. Ankhad would further submit that
unauthorized construction of mezzanine floor is also proved through
evidence. That Defendant No.1 has not denied such construction, but
has sought to brand the same as ‘loft’ which was removable in nature.
He further contended that the existing loft was merely strengthened
which did not exceed one-third of the suit premises. Plaintiff
examined Assessment Officer of the Municipal Corporation, who
deposed about construction of mezzanine floor admeasuring 250.92
sq.mtrs (approximately 2700 sq.ft) resulting in increase in the rateable
value. That the Court Commissioner report clearly suggests height of
the mezzanine floor as 7 ft. That the said evidence of three
independent witnesses (two municipal officers and Court
Commissioner) has gone uncontroverted. He would rely upon
judgments of this Court in Ravindra D. Ahirkar Versus. Ravikishore s/o
Ramkisanji Pashine and another15 and Safiya Sabirbhai Wadhvanwala
14
2018(2) Mh.L.J. 735
15
2008(5) Mh.L.J. 955
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Versus. Mazban Minocher Irani and another16 in support of his
contention that construction of mezzanine floor amounts to
permanent additions and alterations to the suit premises. That after
examining the evidence on record, the Trial and the Appellate Courts
have recorded finding of fact about construction of mezzanine floor
which does not warrant interference by this Court in revisionary
jurisdiction.
23) Mr. Ankhad would submit that even on interpretation of
various clauses of the lease-deed, impugned orders do not call for
interference so far as allegations of unauthorized additions and
alterations are concerned. That Clause-2(h) of the lease-deed
expressly prohibits the lessee from additions and alterations of
permanent nature without first obtaining consent in writing of the
Plaintiff. That Defendant Nos.3 to 7 had filed Commercial Summary
Suit No.33/2009 against Defendant No.2 in this Court for recovery of
Rs. 4.78 crores with interest for overstaying in the premises and the
suit was dismissed on 4 May 2023. That Defendant Nos.3 to 7
contended in the said suit that Defendant No.2 carried out illegal
alterations exposing Defendant No.1 to a decree of eviction. Though
the said contention is rejected by this Court on account of lack of
pleadings to that effect in the R.A.D. Suit, the conduct demonstrates
malafides of Defendant Nos.1 and 3 to 7 who have approached the
Court with unclean hands.
24) So far as the issue of notice of forfeiture is concerned,
Mr. Ankhad would submit that such notice was indeed given to
Defendant No.1 on 21 December 1995. That Clause-4(c) of the lease-
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deed covered only furniture and fixtures, which were of removable in
nature and such work consequently fell outside Clause-2(h). That
Plaintiff ‘s letter dated 2 December 1995 amounts to sufficient notice
under Clause-4(b) of the lease-deed and it was for Defendant Nos.1
and 2 to remedy the illegal alterations within 60 days from 2
December 1995. Relying upon judgment of Constitution Bench in V.
Dhanapal Chettiar Versus. Yesodai Ammal17 and Nopany Investments (P)
Ltd. Versus. Santokh Singh (HUF) 18 he would submit that issuance of
notice of forfeiture is not necessary before filing suit for eviction
under the Rent Control Legislation. In the Written Statement, plea of
failure to issue notice of forfeiture was never raised. Relying on
judgment in Kizhakke Kuruvatteri Sankaran Nambian and others
Versus. Thirumangalathmeethal T.M. Thambayi Pilla19 and Mrs.
Margaret Jean Massy Westmorland Wood Versus. Colonel Granville
Alric Richard Spain20, he would submit that what is required is mere
intimation of breaches to the noticee and therefore the notice dated 2
December 1995 was sufficient intimation to the Defendants to
remedy the breach.
25) Mr. Ankhad would further submit that unlawful
subletting by Defendant Nos.3 to 7 in breach of Clause-2(i) of the
lease-deed is clearly established. That the Trial and the Appellate
Court have correctly held that Clauses to the lease-deed cannot be
interpreted to mean that sublessee is entitled to further license the
premises. He would submit that correct interpretation of Clause-2(i)
of the lease-deed is permission to grant sublease only once and the
17
(1979) 4 SCC 214
18
(2008) 2 SCC 728
19
2003 SCC OnLine Ker 322
20
1952 SCC OnLine Mad 130
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same cannot be interpreted to mean that the sublessee can further
assign the leasehold rights. He would submit that reference in the
Lease Deed to the word ‘lessor’ includes ‘assignees’ but for ‘lessee’, it
would include only ‘permitted assignees’. That this is not a case of
assignment of lease and only lessee is permitted to sublet, which is
why only first subletting is allowed and subsequent subletting is not
permissible as per true and correct interpretation of Clause-2(i). That
Clause-2(i) is a contract between the commercial parties including
restrictive clauses and the same cannot be expanded.
26) Mr. Ankhad would therefore submit that no interference
is warranted in the concurrent findings recorded by the Trial and the
Appellate Court on the issues of unlawful subletting, commission of
act contrary to Section 108(o) and erecting structure of permanent
nature under Section 13(1)(b) of the Bombay Rent Act. He would
pray for dismissal of both the Revision Applications.
D. REASONS AND ANALYSIS 27) The decree for eviction has been passed against
Defendants on three grounds of (i) unlawful subletting; (ii)
commission of acts contrary to provision of Section 108(o) of the
Transfer of Property Act and (iii) erecting structure of permanent
nature within Section 13 (1)(b) of the Bombay Rent Act.
28) Defendant No.1 is the original lessee and claims to have
created sub-lease in favour of Defendant Nos. 3 to 7, who are
associate companies of Defendant No.1 having directors from same
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family. Defendant No.2-Mid-Day was inducted from 1995 to 2005 as
a licensee in respect of the suit premises. Plaintiff initially believed
that Defendant No.1 had inducted Mid-Day as licensee, but
Defendant No.1 took a plea in the written statement that it has
created a sub-lease in favour of Defendant Nos.3 to 7, who in turn
inducted Defendant No.2- Mid Day as the licensee. As observed
above, Defendant No.2- Mid Day has already surrendered possession
of the suit premises to Defendant Nos.3 to 7 on 25 November 2005.
Thereafter eviction decree came to be passed against all the
Defendants on 25 June 2015. Defendant Nos.1 and 3 to 8 could not
deposit interim monthly compensation @ Rs.4,00,000/- per month
during pendency of appeals before the Appellate Bench and
accordingly have handed over possession of the suit premises to the
Plaintiff on 4 July 2017. This is how Plaintiff has secured possession
of the suit premises during pendency of the appeals, which came to
be finally dismissed by the Appellate Bench vide judgments and
orders dated 12 January 2023, which are subject matter of challenge
in the present Revision Applications.
D.1 UNLAWFUL SUBLETTING 29) The Small Causes Court has answered the issue of
unlawful subletting in favour of Plaintiff and against the Defendants
by holding that Defendant No. 1 has unlawfully sublet the suit
premises to Defendant No.2. The Appellate Court has additionally
held that Defendant Nos. 3 to 7 have also unlawfully sublet the suit
premises to Defendant No.2.
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Defendant No.1 is protected by provisions of the Bombay Rent Act,
which was in force on the day on which the eviction suit was
instituted. Apart from the fact that the lease, executed on 2 July 1975
for a period of 60 years, subsisted on the date of institution of R.A.E.
Suit No.147A/306 of 1996 (9 February 1996), the tenancy of
Defendant No.1 is otherwise protected under the provisions of the
Bombay Rent Act. Before discussing the covenants of the Lease dated
2 July 1975, it would be necessary to first consider the statutory
framework of the Bombay Rent Act since recovery of demised
premises is sought by Plaintiff under provisions of Section 13 of the
Bombay Rent Act.
31) Under Section 12 of the Bombay Rent Act, landlord is
not entitled to recover possession of any premises so long as tenant
pays and is ready and willing to pay the amount of standard rent and
permitted increases and observes and performs the other conditions
of tenancy, in so far as they as consistent with the provisions of the
Act. Sub-Section 1 of Section 12 reads thus:
12. No ejectment ordinarily to be made if tenant pays or is ready
and willing to pay standard rent and permitted increases.
(1) A landlord shall not be entitled to the recovery of possession of
any premises so long as the tenant pays, or is ready and willing to
pay, the amount of the standard rent and permitted increases, if
any, and observes and performs the other conditions of the tenancy,
in so far as they are consistent with the provisions of this Act.
32) However, under Section 13, landlord is entitled to recover
possession of premises notwithstanding the factum of tenant paying
the rent, if any of the eventualities incorporated in clauses (a) to (l) of
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Neeta Sawant CRA-120-2023-CRA-215-2023-FCClause (e) of Section 13(1), landlord becomes entitled to recover
possession of the tenanted premises if the tenant has unlawfully
sublet or given on license whole or part of the premises or has
assigned or transferred his interest therein. Section 13(1)(e) of the
Bombay Rent Act provides thus:
13. When landlord may recover possession.–(1) Notwithstanding
anything contained in this Act but subject to the provisions of
Section 15; a landlord shall be entitled to recover possession of any
premises if the court is satisfied–
(e) that the tenant has, since the coming into operation of this Act
unlawfully sublet or after the date of commencement of the
Bombay Rents, Hotel and Lodging House Rates Control
(Amendment) Act, 1973, unlawfully given on license, the whole or
part of the premises or assigned or transferred in any other manner
his interest therein; or
33) Apart from making landlord entitled to recover
possession of the suit premises on the ground of unlawful subletting
under Section 13(1)(e) of the Bombay Rent Act, Section 15 thereof
provides for prohibition on subletting. Section 15 of the Bombay Rent
Act provides thus:
15. In absence of contract to the contrary tenant, not to sublet or
transfer or to give on license–
(1) Notwithstanding anything contained in any law, but subject to
any contract to the contrary, it shall not be lawful after the coming
into operation of this Act for any tenant to sublet the whole or any
part of the premises let to him or to assign or transfer in any other
manner his interest therein and after the date of commencement
Bombay Rents, Hotel and Lodging House Rates Control
(Amendment) Act, 1973, for any tenant to give on license the
whole or part of such premises :
Provided that the State Government may, by notification in the
Official Gazette, permit in any area the transfer of interest in
premises held under such leases or class of leases or the giving on
license any premises or class of premises and no such extent as may
be specified in the notification.
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(2)The prohibition against the sub-letting of the whole or any part
of the premises which have been let to any tenant, and against the
assignment or transfer in any other manner of the interest of the
tenant therein, contained in sub-section (1), shall, subject to the
provisions of this sub-section be deemed to have had no effect
before the 1st day of February, 19731, in any area in which this Act
was in operation before such commencement; and accordingly,
notwithstanding anything contained in any contract or in the
judgment, decree or order a Court, any such sub-lease, assignment
or transfer of any such purported sub-lease, assignment or transfer
in favour of any person who has entered into possession, despite
the prohibition in sub-section (1) as purported sub-lessee, assignee
or transferee and has continued in a possession on the date
aforesaid shall be deemed to be valid and effectual for all purposes,
and any tenant who has sub-let any premises or part thereof,
assigned or transferred any interest therein, shall not be liable to
eviction under clause (e) of sub-section (1) of section 13.The
provisions aforesaid of this sub-section shall not affect in any
manner the operation of sub-section (1) after the date aforesaid.
34) Thus, under Section 15 of the Bombay Rent Act, it is not
lawful for a tenant to sublet whole or any part of the premises let to
him or to assign or transfer his interest therein and after 1 February
1973, not to give license in respect thereof. However, sub-section (1)
of Section 15 begins with the words ‘Notwithstanding anything
contained in any law, but subject to any contract to the contrary … ‘. It
appears that the words ‘but subject to any contract to the contrary ‘ are
inserted by the Amendment Act of 1959. Therefore, the fetter on
subletting of premises or assignment /transfer of interest in tenancy
or license is not applicable where there is a contract to the contrary.
Additionally, Proviso to Section 15(1) excludes leases or class of
leases as the State Government may specify in the notification
published in the Official Gazette. Thus, the prohibition on subletting
does not apply either where there is contract to the contrary or where
a lease is included by the notification issued by the State Government.
For this case, the issue of inclusion of lease in the Notification issued
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by the State Government is not relevant and what is relevant is
existence of contract to the contrary.
35) It is the case of Revision Applicants that there is a
contract to the contrary within the meaning of Section 15(1) of the
Bombay Rent Act, which makes the prohibition on subletting as well
as on assignment /transfer of tenancy right or licensing under Section
15 or landlord’s entitlement to seek eviction under Section 13(1)(e) of
the Bombay Rent Act inapplicable in the present case.
36) Having broadly set out the statutory scheme relating to
the ground of subletting for recovery of possession by the landlord
under the Bombay Rent Act, it is time to consider the covenants of
Deed of Lease dated 2 July 1975. By the said Deed of Lease,
leasehold rights in respect of the suit premises were granted by
Plaintiff in favour of Defendant No.1 for 60 years on payment of rent
of Rs.4,488/-. Clause 2 of the Lease Deed contains rights and
obligations applicable to the lessee. Clause 2(i) of the Lease Deed
provides thus:-
(i) The Lessees shall be entitled to assign or sublet the demised
premises or any part thereof for the whole or part of the term of
the demise remaining unexpired and so that on the assignment of
the demised premises the Lessees’ liability hereunder shall cease
and determine, to that extent.
37) Similarly, Clause 3 of the Deed of Lease sets out rights
and obligations of Lessor and Clause 3(d) provides thus:
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(d) The Lessees shall be entitled to assign or sublet the demised
premises or any part thereof for the whole or a part of the term of
the demise remaining unexpired and so that on the assignment of
the demised premises the Lessees’ liability hereunder shall cease
and determine to that extent.
38) Thus, both under Clause 2(i) and 3(d) of the Deed of
Lease, the lessee was entitled to assign or sublet demised premises or
part thereof for the whole or a part of the term of the demise
remaining unexpired. Thus, there is clear contract to the contrary
within Section 15(1) of the Bombay Rent Act.
39) Both the Trial as well as the Appellate Courts have
appreciated the position of existence of contract to the contrary and
have not decreed the Suit on the ground of subletting created by
Defendant No.1 in favour of Defendant Nos. 3 to 7. However, both
the Courts have held that Clauses 2(i) and 3(d) of the Lease Deed did
not permit successive subleasing and therefore has held grant of
licenses by Defendant Nos. 3 to 7 in favour of Defendant No.2 to be
unlawful.
40) It is the contention of Mr. Kapadia and Mr. Godbole that
the Deed of Lease permits even sublessee to further sublease the suit
premises. In support of this contention, reliance is placed both on the
covenants of Lease Deed as well as provisions of Section 108 (j) of
the Transfer of Property Act, 1882. Revision Applicants rely upon
opening words of clause (2) of the Lease Deed, which provides thus:
2. The Lessees (for itself and its permitted assigns and to the intent
that the obligation may continue throughout the term hereby
created) hereby covenant with the Lessor as follows:
(emphasis added)
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41) According to Revision Applicants, the rights and
obligations of lessee during currency of lease also applies to
‘permitted assigns’. That since the lessee is permitted under Clause
2(i) to assign or sublease the demised premises, the ‘permitted assign’
is also permitted to further assign or sublet the demised premises.
Furthermore, the Revision Applicants have highlighted part of Clause
2(i) of the Lease Deed providing for cessation of lessee’s liability
upon assignment or subletting. The relevant part of clause 2(i) reads
‘and so that on the assignment of the demised premises the Lessee’s
liability hereunder shall cease and determine, to that extent’. Relying on
above part of clause 2(i) it is sought to be contended that the sub-
lessee steps into the shoes of lessee on assignment or subletting and
therefore all that could be done by lessee could also be done by the
sub-lessee.
42) In addition to covenants of the Lease Deed, Revision
Applicants have also relied upon provision of Section 108 (j) of the
Transfer of Property Act, which provides thus:
(j) the lessee may transfer absolutely or by way of mortgage or sub-
lease the whole or any part of his interest in the property, and any
transferee of such interest or part may again transfer it. The lessee
shall not, by reason only of such transfer, cease to be subject to any
of the liabilities attaching to the lease;
nothing in this clause shall be deemed to authorise a tenant
having an untransferable right of occupancy, the farmer of an
estate in respect of which default has been made in paying revenue,
or the lessee of an estate under the management of a Court of
Wards, to assign his interest as such tenant, farmer or lessee;
(emphasis added)
43) Relying on clause (j) of Section 108, it is contended by
Revision Applicants that Transfer of Property Act confers right on the
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lessee to transfer whole or part of his interest in the property and
transferee of such interest can again transfer it. I am unable to agree
with the contention of the Revision Applicants that Defendant Nos.3
to 7, who are sub-lessees, had right to further sublease the suit
premises. In my view the contention about sub-lessee’s right to further
sublet the premises arises out of skewed and myopic reading of the
covenants of the Deed of Lease. Clause (2) uses the word ‘permitted
assigns’, the emphasis being on the word ‘permitted’. Furthermore,
while describing the expression ‘lessor’, the Lease Deed include
Lessor’s successors in title and ‘assigns’ whereas while describing the
term ‘lessee’ the Lease Deed uses the word ‘permitted assigns’ and not
merely ‘assignees’. Thus, the only ‘permitted assigns’ under the Lease
Deed would be included in the term ‘lessee’ and not ‘every successive
assign’, as sought to be suggested by Revision Applicants. In my view,
clause 2(i) and 3(d) of the Lease Deed permits assignment and
subletting of the demised premises only once. There is nothing in the
entire Lease Deed which permits the sublettee to further sublet the
suit premises. The latter part of Clause 2(i) and 3(d) relieving the
lessee of its liability upon execution of sublease does not mean that
the sub-lessee becomes entitled to further assign or sublet the suit
premises. True it is that upon execution of sublease or assignment,
the sub-lessee would step into the shoes of lessee for the purpose of
observance of covenants of agreement, which is clear from the use of
the words ‘permitted assigns’ in description of parties as well as in the
opening part of Clause 2 of the Deed of Lease. However, merely
because a sub-lessee steps into the shoes of lessee (for limited purpose
of observance of obligations under the agreement), the same does not
mean that the sub-lessee has been conferred with a right to create
further sub-lease in favour of a third party. The words ‘The Lessees
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(for itself and its permitted assigns ….)’ appearing in the opening
portion of Clause 2 of the Lease-Deed are incorporated essentially to
ensure that the sub-lessee of permitted assign does not claim absence
of liability to observe the obligations under the lease deed. The
intention behind incorporation of those words is not to create a right
of further subletting on the sub-lessee. If there was any such
intention, the same would have been expressed by parties in express
words.
44) Clauses 2(i) or 3(d) of the Lease Deed, while conferring
right of subletting consciously use the word ‘lessees’ and not
‘permitted assign’. If the intention of parties was to confer the right
on sub-lessee or permitted assignee to further assign or sublease,
Clauses 2(i) and 3(d) would have used the word ‘permitted assignee’
rather than using the word ‘lessee’. Therefore, though in the opening
portion of Clause 2 of the Lease Deed the lessee is described to
include even permitted assigns, the parties have carefully used the
word only ‘lessees’ in clause 2(i) meaning thereby that while all other
obligations in clauses (a) to (h) and (j) to (m) apply both to lessees and
its permitted assign, clause 2(i) is restricted only to lessee and does
not extend to permitted assign. This would be the correct reading of
the covenants of the Lease Deed.
45) Also of relevance is the fact that the contract to the
contrary under Section 15(1) of the Bombay Rent Act needs to be
express. It cannot be inferred. This is because subletting is otherwise
prohibited and is permitted only in accordance with an express
contract between the parties to the contrary. Rent control legislation
inter alia seeks to offer protection to the tenant from rent escalation
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and eviction. This right to retain possession of tenanted premises on
payment of standard rent is subject to the condition that the tenant
uses the premises for his own use and does not let the outsider to use
the same. Seen from this legislative intent of offering protection from
rent escalation and eviction available to Defendant No.1, the contract
to the contrary must be strictly construed and effect thereof cannot be
widened by undertaking the process of interpretation and drawl of
inference. It bears mention that being a protected tenant under the
Bombay Rent Act and currently under the Maharashtra Rent Control
Act, 1999, Defendant No.1-tenant and its subtenants would not
vacate the possession of tenanted premises despite expiry of tenure of
the lease. Thus, the rent control legislation provides a much wider
umbrella of protection for Defendant No.1 and its sub-tenants beyond
the covenants of the Lease Deed. In that view of the matter,
recognizing right of successive subletting by undertaking the exercise
of interpretation of covenants of Lease Deed would be impermissible
in absence of express right of successive subletting by the sublettees.
46) So far as reliance of Revision Applicants on provisions of
Section 108(j) of the Transfer of Property Act is concerned, there is a
clear exclusion in clause (j) which provides that ‘nothing in this clause
shall be deemed to authorize a tenant having untransferrable right of
occupancy’. Since Defendants claim protection of Bombay Rent Act,
the tenancy is governed by provisions of Section 15, which
specifically prohibits subletting except where there is a contract to the
contrary. Therefore, the subletting has to be strictly in accordance
with the contract to the contrary and general provisions under Section
108(j) of the Transfer of Property Act would have no application to a
case governing landlord-tenant relationship under the Bombay Rent
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Act, which contains express prohibition on subletting. Though
Section 15 permits subletting in accordance with the contract to the
contrary, the contract in the present case does not permit the sub-
lessee to further sublease the suit premises. Therefore, Section 108(j),
on a standalone basis, does not come to the assistance of the
Defendants.
47) I am therefore, in agreement with Trial and Appellate
Courts that the Lease Deed did not permit successive subletting by
the sub-lessee. Therefore Defendant Nos. 3 to 7 have committed
breach of the Lease Deed by granting license in respect of the suit
premises in favour of Defendant No.2. Grant of such license is clearly
hit by the provisions of Section 15 of the Bombay Rent Act thereby
attracting folly under Section 13(1)(e) of the Bombay Rent Act
making the landlord entitled to recover possession of the suit
premises.
D.2 NOTICE OF FORFEITURE 48) Mr. Kapadia has submitted that even if any breach of any
of the covenants of the Lease Deed has occurred, forfeiture of lease
could be resorted only in accordance with Clause 4(b) of the Deed,
mandating service of notice and grant of 60 days to cure the breach.
It would therefore be apposite to reproduce Clause 4(b) of the Lease
Deed as under:
(b) If the rent hereby reserved or any other moneys payable
hereunder or by virtue of these presents or any part thereof
respectively shall at any time be unpaid for twenty one days after
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performed by them in whom for the time being the term hereby
created shall be vested or shall become bankrupt or being a
company be taken into liquidation or shall enter into any
competition with their his/their or its creditor or suffer any distress
or execution to be levied on their or his or its goods and in any of
the said cases it shall be lawful for the Lessors at any time thereafter
to re-enter upon the demised premises or any part thereof in the
name of the whole and thereupon this demise shall absolutely
determine but without prejudice to the right of action of the lessor,
in respect of any breach of the lessees stipulations and covenants
herein contained PROVIDED ALWAYS that the Lessor shall not
be entitled to forfeit this lease for breach or non-observance or non-
performance of any covenant or agreement or addition herein
contained and on the lessees’ part to be observed and performed
unless the Lessor shall have given to the Lessees notice in writing
specifying the breach or omission complained of and requiring the
Lessees to remedy the same and the Lessees shall have committed
default in doing so within a period of sixty days from receipt of
such notice by the Lessees.
(emphasis and underlining added)
49) According to Mr. Kapadia, Lessor was not entitled to
forfeit the Lease during subsistence thereof for breach or non-
observance or non-performance of any covenant or agreement or
condition unless the Lessor gave to the Lessee a notice in writing
specifying the breach or omission complained of and requiring the
lessee to remedy the same and where the Lessee commits a default in
doing so within a period of 60 days of receipt of such notice.
50) Since Lease between the parties is governed by the
provisions of the Bombay Rent Act and since the suit is filed for
recovery of possession under the provisions of the Bombay Rent Act,
Mr. Kapadia faces a hurdle in his submission of mandatory issuance
of notice under Section 4(b) of Lease Deed before forfeiture of
tenancy for institution of the Suit in view of Seven Judges Bench
judgment in V. Dhanapal Chettiar (supra). The Constitution Bench has
held that issuance of notice for forfeiture of tenancy is not required to
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be issued in filing of Suit for recovery of possession on the ground
specifying in the State rent control legislation :
If we were to agree with the view that determination of lease in
accordance with the Transfer of Property Act is a condition
precedent to the starting of a proceeding under the State Rent Act
for eviction of the tenant, we could have said so with respect that
the view expressed in the above passage is quite correct because
there was no question of determination of the lease again once it
was determined by efflux of time. But on the first assumption we
have taken a different view of the matter and have come to the
conclusion that determination of a lease in accordance with the
Transfer of Property Act is unnecessary and a mere surplusage
because the landlord cannot get eviction of the tenant even after
such determination. The tenant continues to be so even thereafter.
That being so, making out a case under the Rent Act for eviction of
the tenant by itself is sufficient and it is not obligatory to found the
proceeding on the basis of the determination of the lease by issue
of notice in accordance with Section 106 of the Transfer of
Property Act.
(emphasis added)
51) In that view, in ordinary course, for maintaining the Suit
for recovery of possession of the suit premises in the present case,
issuance of prior notice was not necessary. However, the Lease Deed
provides for issuance of such notice and giving time of 60 days for the
Lessee to remedy the breach before forfeiting the Lease during its
subsistence. There is no dispute to the position that as on 9 February
1996, when the Suit was filed the tenure of the Lease was subsisting.
It is sought to be terminated on account of commission of acts by
Defendants under Sections 13(1)(a), 13(1)(b) and 13(1)(e) of the
Bombay Rent Act.
52) The issue therefore is whether the condition in the
contract for issuance of prior notice before forfeiture of Lease would
continue to operate notwithstanding ratio of the Apex Court in V.
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Dhanapal Chettiar not requiring issuance of notice for filing eviction
Suit under the Bombay Rent Act ?
53) In Shri Lakshmi Venkateshwara Enterprises (P) Ltd.
(supra), the issue that arose for consideration before the two Bench of
the Supreme Court was whether during the subsistence of a
contractual tenancy, it is open to the landlord to resort to proceedings
under Rent Control Act. The Supreme Court held as under:
3. The only point that is argued by Mr N. Santosh Hegde, learned
counsel for the appellant is that during the subsistence of the
contractual tenancy for the period of 32 years under the registered
deed, it is not open to the respondents/landlords to seek eviction
under the Karnataka Rent Control Act, 1961. No doubt, Section 21
of the Act says ‘notwithstanding’. But this does not mean that
provision can be availed of by the respondents since this is the
beneficial legislation in favour of the tenant. In support of this
submission, reliance is placed on the Full Bench judgment of
Karnataka High Court reported as Sri Ramakrishna Theatres
Ltd. v. General Investments & Commercial Corpn. Ltd.
5. This Court in V. Dhanapal Chettiar v. Yesodai Ammal categorically
laid down that contractual tenancy will lose its significance in view
of the Rent Control Act. In that case, even the notice under Section
106 of the Transfer of Property Act was held to be a surplusage. It
is, therefore, urged that if a landlord could found an action on any
one of the enumerated grounds under Section 21 of the Act, the
action would be maintainable notwithstanding the existence of a
contractual lease.
6. Having regard to the above arguments, the only question that
arises for our consideration is, whether during the subsistence of a
contractual tenancy, it is open to the landlord to resort to
proceedings under Rent Control Act?
11. Therefore, this authority clearly holds that the provisions of
Rent Control Act would apply notwithstanding the contract.
However, what is sought to be relied on by the learned counsel for
the appellant is the Full Bench judgment of Karnataka High Court
in Sri Ramakrishna case . In that ruling the decision of this Court
in Dhanapal Chettiar case is sought to be distinguished as one
relating to the necessity for issuance of notice under Section 106 of
the Transfer of Property Act. On that basis, the other ruling of this
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Court namely Firm Sardarilal Vishwanath v. Pritam Singh is also
distinguished. However, the Full Bench chose to rely on Modern
Hotel v. K. Radhakrishnaiah wherein the term ‘lease’ was excluded
from the ambit of the said Act.
12. We are of the view that the statement of Full Bench will have
no application to this case. The appellant filed OS No. 1690 of
1990 on the file of City Civil Court, Bangalore in which he
challenged the decree for eviction and for declaration. He also
prayed for injunction. The suit was contested by the respondents. In
that case, the plea of jurisdiction was also raised. The trial court
dismissed the suit observing that it had no jurisdiction. For reasons
best known, the appellant did not prefer any appeal or revision
against the dismissal. Therefore, that judgment has become
conclusive and binding between the parties. Hence, the effect of
Section 21 of the Act on the contract entered into between the
parties need not be gone into.
(emphasis added)
54) Thus, in Shri Lakshmi Venkateshwara Enterprises, the
Apex Court held that the provisions of Rent Control Act would
prevail over the covenants of contract.
55) However, later three Judge Bench of the Apex Court in
Laxmidas Bapudas Darbar (supra) had an occasion to decide the same
issue that was decided in Shri Lakshmi Venkateshwara Enterprises.
Before the three Judges’ Bench in Laxmidas Bapudas Darbar the issue
was whether the Petition under Karnataka Rent Control Act, 1961
(Karnataka Rent Act) for eviction of a tenant under fixed term
contractual lease was maintainable on the ground of reasonable and
bonafide requirement of landlord ? The case involved fixed term
contractual Lease of 99 years with option of one renewal. During
currency of lease, Lessor served a notice calling upon the Lessee to
vacate the premises on the ground of non-payment of rent as well as
on the ground of bonafide requirement. The Lessor thereafter filed
application under Section 21(1)(h) and 21(1)(p) of the Karnataka
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Rent Act on the ground of bonafide requirement. The Trial Court
passed eviction decree on the ground that Section 21 of the
Karnataka Rent Act would apply notwithstanding the tenure of lease.
The Appellate Court however held that the lease was of permanent
nature and Section 21 of the Karnataka Rent Act had no application
and the eviction decree was set aside. Karnataka High Court allowed
the Revision holding that provisions of the Karnataka Rent Act
would apply de hors the contract of lease.
56) In the above factual background, the three Judges Bench
of Apex Court has decided the issue in Laxmidas Bapudas Darbar as
to whether the Lessor was entitled to seek recovery of possession of
suit premises on the ground of bonafide requirement during currency
of contractual fixed term lease. The Apex Court encountered view
taken by Full Bench of Karnataka High Court in Bombay Tyres
International Ltd. (supra), which in turn had relied upon the Apex
Court decision in Shri Lakshmi Venkateshwara and had held that the
landlord was entitled to order of eviction under Section 21 of the
Karnataka Rent Act notwithstanding the tenure of Lease. In
Laxmidas Bapudas Darbar the Apex Court has held both Full Bench
judgment of the Karnataka High Court in Bombay Tyres International
Ltd. as well as Apex Court judgment in Shri Lakshmi Venkateshwara
Enterprises (supra) did not correctly construe the seven Bench
judgment in V. Dhanapal Chettiar. The Apex Court held that in V.
Dhanapal Chettiar that the question of curtailment of fixed term
contractual rent was not involved. Thus in Laxmidas Bapudas Darbar,
the Apex Court ultimately held that recovery of possession of
premises under a fixed term lease could be sought under Section 21 of
the Karnataka Rent Act only after expiry of fixed term lease. It has
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further held that during subsistence of contractual lease, proceedings
for eviction under Section 21 of the Karnataka Rent Act could be
instituted only if the grounds enumerated in clauses (a) to (p) thereof
are also provided as one of the grounds for forfeiture of lease in the
Lease Deed. It would be apposite to reproduce what Apex Court held
in paragraphs 8 to 19 as under:
8. We would, therefore, proceed to examine the other question
relating to applicability of Section 21(1)( h) of the Karnataka Rent
Control Act to a subsisting fixed-term contractual lease, as in the
case in hand.
9. While dealing with the aforesaid question, the High Court has
relied upon a Full Bench decision of the Karnataka High Court
reported in Bombay Tyres International Ltd. v. K.S. Prakash [AIR
1997 Kant 311 : (1997) 1 Arb LR 278 (FB)] where it has been held
that a proceeding for eviction under Section 21 of the Karnataka
Rent Control Act would be maintainable notwithstanding the fact
that the lease under which the tenant enjoys possession is an
unexpired term lease. The relevant paragraph from the Full Bench
decision aforesaid, is quoted below: (AIR p. 317, para 17)“17. In view of what is stated above, we are clearly of the
opinion that the decision of the Full Bench of this Court
in Sri Ramakrishna Theatres case is no longer good law in
the light of the decision of the Supreme Court in Shri
Lakshmi Venkateshwara Enterprises caseAccordingly, we hold that a landlord is entitled to an order
of eviction if he satisfies one or other conditions mentioned
in Section 21 of the Karnataka Rent Control Act
notwithstanding the fact that the lease under which the
tenant is in possession of the premises is for a term and that
it has not expired on the date when the application for
eviction is filed.”
10. It is clear that the Full Bench in Bombay Tyres followed the
decision of this Court in the case of Shri Lakshmi Venkateshwara
Enterprises (P) Ltd. v. Syeda Vajhiunnissa Begum .
11.Shri Lakshmi Venkateshwara Enterprises while holding that
provisions of the Rent Control Act would be applicable to a fixed-
term contractual lease relied upon a decision reported in V.
Dhanapal Chettiar v. Yesodai Ammal . It is further observed
in Bombay Tyres that interpretation of Dhanapal Chettiar case
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given by the Supreme Court in Shri Lakshmi Venkateshwara
Enterprises is binding on it. It will be beneficial to peruse para 15
of the judgment in Bombay Tyres which is quoted below:
“It was contended by the learned counsel for the tenants that
the decision of the Supreme Court in Dhanapal Chettiar
case is confined only to a case of determination of a lease
under Section 106 of the TP Act and that the principles
cannot be extended to cases where a term is provided for in
the lease. Learned counsel also relied on various
observations of the Supreme Court in the above decision in
support of his case. But we are afraid that we cannot accept
the contention of the learned counsel for the tenants. In Shri
Lakshmi Venkateshwara Enterprises case the Supreme Court
has considered the very same decision and has stated that
the above decision clearly holds that the provisions of the
Rent Control Act would apply notwithstanding the contract.
The effect of the decision in Dhanapal Chettiar case is stated
by Their Lordships of the Supreme Court and we are bound
by the same. This Court cannot take a different view as to
what was laid down in Dhanapal Chettiar case. What is
decided in Dhanapal Chettiar case is stated by Their
Lordships in para 11 of the judgment of Shri Lakshmi
Venkateshwara Enterprises case. It is to the effect that the
provisions of the Rent Control Act would apply dehors the
contract. When the Supreme Court has laid down the law to
that effect, this Court has necessarily to follow the same and
we do so.”
12. This necessarily leads us to see and find out the proposition of
law as laid down in the case of Dhanapal Chettiar. It is a decision by
a Bench of seven Judges. The facts being that the landlady moved
an application for eviction of her tenant under the provisions of the
Tamil Nadu Rent Act on the ground of her personal need. The
petition was dismissed. On appeal, though her case of bona fide
requirement was upheld but eviction was refused due to lack of
notice to quit in accordance with law. The High Court dealing with
the matter in revision, held that notice to quit under Section 106 of
the Transfer of Property Act was not necessary for seeking an
eviction of a tenant under the provisions of the Rent Act. The
question therefore, as was under consideration before this Court is
mentioned in para 1 of the judgment itself which is quoted below:
“… as to whether in order to get a decree or order for
eviction against a tenant under any State Rent Control Act it
is necessary to give a notice under Section 106 of the
Transfer of Property Act.”
13. It has been held that the purpose of giving a notice under
Section 106 of the Transfer of Property Act is only to terminate the
contract of tenancy but it would not be necessary if the tenant
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incurs the liability of eviction under the provisions of the statute. In
such a case the notice under Section 106 of the Transfer of
Property Act would only be a formality and a surplusage and it
need not be given by way of any double protection to the tenant. It
has been further observed that even though tenancy may be
terminated by giving a notice under Section 106 of the Transfer of
Property Act yet the landlord will not be in a position to initiate the
proceedings for eviction in the absence of any liability incurred by
the tenant as provided in the statute. Therefore, notice under
Section 106 of the Transfer of Property Act loses significance. At
the end of para 18 of the judgment it has been observed as follows:
(SCC p. 229)
“But on the first assumption we have taken a different view
of the matter and have come to the conclusion that
determination of a lease in accordance with the Transfer of
Property Act is unnecessary and a mere surplusage because
the landlord cannot get eviction of the tenant even after such
determination. The tenant continues to be so even thereafter.
That being so, making out a case under the Rent Act for
eviction of the tenant by itself is sufficient and it is not
obligatory to found the proceeding on the basis of the
determination of the lease by issue of notice in accordance
with Section 106 of the Transfer of Property Act.”
14. It is to be significantly noted that in para 5 of the judgment
in Dhanapal Chettiar case this Court while generally referring to
the different provisions of the Transfer of Property Act and the
effect of the Rent Acts of different States observed thus:
“But in all social legislations meant for the protection of the
needy, not necessarily the so-called weaker section of the
society as is commonly and popularly called, there is
appreciable inroad on the freedom of contract and a person
becomes a tenant of a landlord even against his wishes on
the allotment of a particular premises to him by the
authority concerned. Under Section 107 of the Transfer of
Property Act a lease of immovable property from year to year,
or for any term exceeding one year, or reserving a yearly rent,
can be made only by a registered instrument. None of the State
Rent Acts has abrogated or affected this provision.”
(emphasis supplied)
As a matter of fact the question of curtailment of fixed-term
contractual lease was not involved in the case of Dhanapal
Chettiar .
15. It has nowhere been held that by virtue of the provisions of the
Rent Act the contract of term lease is completely obliterated in all
respects. The effect of the Rent Act on tenancy under contract has
been considered only to a limited extent, confining it to the
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necessity of giving notice under Section 106 of the Transfer of
Property Act.
16. Next we may consider the decision in the case of Shri Lakshmi
Venkateshwara Enterprises . It was a case relating to a term lease of
32 years. In para 5 it has been observed as follows: (SCC p. 673)
“5. This Court in V. Dhanapal Chettiar v. Yesodai Ammal
categorically laid down that contractual tenancy will lose its
significance in view of the Rent Control Act. In that case,
even the notice under Section 106 of the Transfer of
Property Act was held to be a surplusage. It is, therefore,
urged that if a landlord could found an action on any one of
the enumerated grounds under Section 21 of the Act, the
action would be maintainable notwithstanding the existence
of a contractual lease.”
The above observations have been made by referring the decision
in Dhanapal Chettiar case without taking into account the context
in which Chettiar case was decided. The Court then proceeds to
consider Section 21 of the Act which reads as under:
“21. Protection of tenants against eviction.–Notwithstanding
anything to the contrary contained in any other law or
contract, no order or decree for the recovery of possession
of any premises shall be made by any court or other
authority in favour of the landlord against the tenant:
Provided that the court may on an application made to it,
make an order for the recovery of possession of a premises
on one or more of the following grounds only, namely–
* * *"
(emphasis supplied)
On the basis of the above provision it has been observed that
anything contained to the contrary, in any contract cannot prevail.
17. It may have to be scrutinized as to what extent the provisions of
Section 21 of the Karnataka Rent Act shall have an overriding
effect over any other law or a contract. The Rent Acts have
primarily been made, if not wholly, to protect the interest of
tenants, to restrict charging of excessive rent and their rampant
eviction at will. In that view of the matter, Section 21 of the
Karnataka Rent Act provides that notwithstanding anything to the
contrary contained in any contract, no order for eviction of a
tenant shall be made by the court or any other authority.
Undoubtedly, it is a provision providing statutory protection to the
tenants as it is also evident from the heading of Section 21 of the
Act. This prohibition is however relaxed under the proviso saying
that an order for recovery of possession of the premises can be
made on an application made on that behalf only on the grounds as
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enumerated in clauses (a) to (p) to the proviso. The non obstante
clause contained under Section 21 of the Act, will override any
condition in any contract which may provide a ground for eviction
other than those enumerated in clauses ( a) to (p) of sub-section (1)
of Section 21. Such an additional ground in a contract shall be
rendered ineffective. The use of the word “only” in the proviso is
significant to emphasise that it relates to grounds alone which
cannot be added over and above as provided. The whole contract or
other conditions not related to eviction or grounds of eviction shall
not be affected. So far as a fixed-term lease is concerned, it shall be
affected only to the extent that even after expiry of period of the
lease the possession cannot be obtained by the lessor unless one or
more of the grounds contained in Section 21 of the Act are
available for eviction of the tenant. There is nothing to indicate nor
has it been held in any case that in view of Section 21 of the
Karnataka Rent Act a contract of fixed-term tenancy stands
obliterated in totality. As indicated in the earlier part of this
judgment in the case of Dhanapal Chettiar [(1979) 4 SCC 214 : AIR
1979 SC 1745] it has been observed in para 5 that none of the State
Rent Acts have abrogated or affected the provisions of Section 107
of the Transfer of Property Act which provides for lease of
immovable property from year to year or for a term more than a
year or reserving a yearly rent. As indicated earlier, the proviso to
sub-section (1) of Section 21 of the Karnataka Rent Act limits the
grounds on which a landlord can seek eviction of a tenant. Nothing
has been indicated by reasons of which it can be concluded that a
contract of tenancy loses significance on coming into force of the
Karnataka Rent Act. The effect of the non obstante clause, in our
view has been rightly explained in the Full Bench decision in the
cases of Sri Ramakrishna Theatres Ltd. v. General Investments and
Commercial Corpn. Ltd. In one of the decisions of this Court
reported in Modern Hotel v. K. Radhakrishnaiah it has been held
that period of a subsisting lease for fixed term could not be
curtailed in the absence of a forfeiture clause in the lease.
18. The effect of the non obstante clause contained under Section
21 of the Karnataka Rent Act on the fixed-term contractual lease
may be explained as follows:
(i) On expiry of period of the fixed-term lease, the tenant
would be liable for eviction only on the grounds as
enumerated in clauses (a) to (p) of sub-section (1) of Section
21 of the Act.
(ii) Any ground contained in the agreement of lease other
than or in addition to the grounds enumerated in clauses ( a)
to (p) of sub-section (1) of Section 21 of the Act shall
remain inoperative.
(iii) Proceedings for eviction of a tenant under a fixed-term
contractual lease can be initiated during subsistence or
currency of the lease only on a ground as may be
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enumerated in clauses (a) to (p) of sub-section (1) of Section
21 of the Act and it is also provided as one of the grounds
for forfeiture of the lease rights in the lease deed, not
otherwise.
(iv) The period of fixed-term lease is ensured and remains
protected except in the cases indicated in the preceding
paragraph.
19. With great respect therefore, in our view, the decision in the
case of Dhanapal Chettiar has not been correctly construed in the
case of Shri Lakshmi Venkateshwara Enterprises (P) Ltd. and it no
more holds good nor the Full Bench decision following it, in the
case of Bombay Tyres International Ltd. The earlier judgment of the
Full Bench of the High Court in the case of Sri Ramakrishna
Theatres Ltd. lays down the law correctly.
(emphasis added)
57) Thus, in Laxmidas Bapudas Darbar, three Judges Bench
held that the decision in Dhanapal Chettiar was not correctly
construed in two Judges’ judgment in Lakshmi Venkateshwara
Enterprises.
58) The same issue attracted attention of Division Bench of
Gujarat High Court in Jabal C. Lashkari (supra) in the context of
provisions of the Bombay Rent Act. The Division Bench of Gujrat
High Court observed the marked difference in wordings of non-
obstante clause in Section 21 of the Karnataka Rent Act providing
that ‘Notwithstanding anything to the contrary contained in any other
law or contract’ and the non-obstante clause in Section 13 of the
Bombay Rent Act providing that Notwithstanding anything contained
in this Act but subject to provisions of Section 15′. The Division Bench
noted that while Section 21 of Karnataka Rent Act seek to give
overriding effect even on a contract, the overriding effect in Section 15
of the Bombay Rent Act is only qua other provisions of the Act. The
Division Bench of Gujarat High Court therefore held that the
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decision of the Apex Court in Laxmidas Bapudas Darbar applies with
much greater force for benefit of lessee under the fixed term lease in
respect of eviction proceedings initiated under the Bombay Rent Act.
The Division Bench of Gujrat High Court held in paragraphs 66 & 67
as under:
66. A perusal of the aforesaid provisions, particularly sub-section
(1) of Section 13 of the Bombay Rent Act makes it clear that the
non-obstante clause with which subsection (1) of Section 13
(providing for various grounds of eviction) commences gives sub-
section (1) overriding effect only over other provisions of the
Bombay Rent Act (but makes it subject to the provisions of Section
15 of the Bombay Rent Act) and the non-obstante clause does not
give any overriding effect over any other law or contract, unlike the
non-obstante clause in Section 21 of the Karnataka Rent Act
quoted in para 16 hereinabove. In other words, the contention
urged by the lessor in the State of Karnataka that Section 21 of the
Karnataka Rent Act (providing for similar grounds of eviction as
contained in Section 13(1) of the Bombay Rent Act) is given
overriding effect even over the Transfer of Property Act and the
terms of the fixed long term lease (which contention was negatived
by a three Judge Bench of the Apex Court in Laxmidas Bapudas
case, (2001) 7 SCC 409) is not even available to a similarly placed
lessor in the State of Gujarat, that is to say, the ratio of the decision
of the three Judge Bench of the Apex Court in Laxmidas Bapudas
case : (supra) would apply with much greater force for the benefit
of the lessee under a fixed long term lease in the State of Gujarat.
67. Following the aforesaid judgment in Laxmidas Bapudas
Darbar v. Rudravva, (2001) 7 SCC 409. we hold that–
(i) it is only on expiry of the period of fixed term lease
that the lessors can pray for eviction of the company in
liquidation or its successor in interest on the grounds which
may be available under the Rent Act which may be in
operation at the relevant time.
(ii) Any ground contained in the agreement of lease
other than or in addition to the grounds enumerated in sub-
section (1) of Section 13 of the Bombay Rent Act shall
remain inoperative during subsistence of the lease and even
after expiry of the lease term.
(iii) The proceedings for eviction of a tenant under the
fixed term contractual lease can be initiated during
subsistence or currency of the lease only on a ground as may
be enumerated in sub-section (1) of Section 13 of the
Bombay Rent Act provided it is also enumerated as one of
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the grounds for forfeiture of the lease rights in the lease
deed, but not otherwise.
(iv) The period of fixed term lease of 199 years is
ensured and remains protected except in the cases indicated
in (iii) hereinabove, and during this period, the rights of the
lessee under the lease deed and the Transfer of Property Act
are not curtailed by the provisions of the Bombay Rent Act.
(emphasis added)
59) Judgment of Division Bench of Gujarat High Court has been
confirmed by the Apex Court in Jabal C. Lashkari and Ors. Versus.
Official Liquidator and Ors. (supra) in which the Apex Court has held
in paragraphs 12 and 24 as under:
12. The Division Bench of the High Court took note of the fact
that the non obstante clause in Section 13 of the Rent Act only gave
the said Section 13 an overriding effect over the other provisions of
the Act. Section 13 was also made subject to the provisions of
Section 15 of the Bombay Act. This is in contrast to Section 21 of
the Karnataka Act which had an overriding effect over any other
law or contract to the contrary. Section 15 which deals with the
authority of the lessee to sub-lease or assign the leased
rights/property, though, gives an overriding effect over any other
law has been made subject to any contract to the contrary.
Therefore, the terms of the lease and other cognate provisions of
law is not obliterated. The Division Bench, in view of the above
provisions of the Bombay Rent Act, went on to hold that:
“66. … the ratio of the decision of three-Judge Bench of the
Apex Court in Laxmidas Bapudas Darbar would apply with
much greater force for the benefit of the lessee under a fixed
long-term lease in the State of Gujarat.”
It is on the aforesaid basis that the Division Bench came to the
conclusion that the Rent Act did not obliterate the effect of the
provisions of Section 108(j) of the Transfer of Property Act which
would vest a right in the lessee not only to sublet but also to assign
the subject-matter of the lease granted to him by the original lessor.
24. Though we have affirmed the order dated 17-10-2008 of the
Gujarat High Court passed in Jabal C. Lashkari v. Official
Liquidator and dismissed the civil appeals arising out of SLPs (C)
Nos. 29282-84 of 2008 (Jabal C. Lashkari v. Official Liquidator),
our decision to affirm the said judgment of the High Court is based
on a consideration of the specific clauses in the lease deed between
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the parties to the case. What would be the effect of the principles of
law underlying the present order vis-à-vis the specific clauses of the
lease deed between the parties in the other cases is a question that
has to be considered by the High Court in each of the cases. That
apart, whether the order dated 17-7-2006 passed in State of
Gujarat v. Official Liquidator has attained finality in law and
forecloses the question raised and further whether constructions
have been raised on such land by the State Government for the
benefit of the general public, as has been submitted to dissuade us
from interfering with the order of the High Court, are questions
that would require a full and complete consideration by the High
Court on the materials available. To enable the said exercise to be
duly performed, we set aside the orders of the High Court
impugned in each of the aforesaid civil appeals and remit all the
matters to the High Court for a fresh consideration in accordance
with the observations and principles of law contained in the present
order.
60) In Modern Hotel, Gudur, (supra) the Apex Court has dealt
with a case where contractual fixed term lease was subsisting and the
suit was filed for eviction on the ground of non-payment of rent.
Though the main issue dealt with by the Apex Court is on facts of
that case relating to the allegation of non-payment of rent, it has also
made observations about absence of forfeiture clause in the lease deed
and impermissibility to evict a contractual tenant during subsistence
of lease. It held in paragraph 11 as under:
11. The second contention advanced before us is equally weighty.
The lease being for a term of 30 years is to expire in September
1999. As we have already said, the lease did not stipulate a
forfeiture clause and in the absence of a forfeiture clause in the
lease leading to termination by forfeiture, the contractual tenancy
was subsisting under the provisions of the Transfer of Property Act
and there could not be any eviction from such a tenancy.
61) Thus, the law appears to be fairly settled in a case of a
fixed term contractual lease, recovery of possession of leased
premises can be sought during subsistence of lease only if the grounds
enumerated in state rent control legislation are also grounds for
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forfeiture of lease under the Lease Deed. Thus, it is impermissible to
seek possession of leased premises during currency of contractual
lease, say on the ground of bonafide requirement by invoking
provisions of state rent control act, if that ground is not specified as a
ground for forfeiture of lease under the lease deed.
62) In the present case, there is no dispute to the position that
there is a forfeiture clause in the Lease Deed providing for
termination of lease in the event of breach of any condition of lease.
Therefore, if the grounds of unlawful subletting or carrying out of
unauthorised additions and alterations were not to be incorporated in
the lease deed for forfeiture of the lease, eviction under provisions of
Section 13(1)(a), (b) or (e) would have been impermissible. However,
in the present case, there is a specific clause in the Deed providing for
forfeiture of lease if lessee does acts contrary to the Lease Deed.
Subletting contrary to Lease Deed and putting up construction of
permanent nature are also stipulated as grounds for forfeiture under
the lease deed. There are thus common grounds for seeking recovery
of possession both under covenants of Lease as well as under
Sections 13(1)(a), 13(1)(b) and 13(1)(e) of the Bombay Rent Act. In
that sense, I do not see any difficulty in permissibility of eviction of
contractual fixed term tenant under provisions of Section 13 of the
Bombay Rent Act during subsistence of tenure of lease in the present
case. Unlike Modern Hotel, Gudur (supra), there is a forfeiture clause
in the Lease Deed, which recognises a right of the lessor to forfeit the
Lease in the event it is found that the subletting or additions or
alterations are contrary to the covenants of lease.
Page No.47 of 65 12 November 2024 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:54:20 ::: Neeta Sawant CRA-120-2023-CRA-215-2023-FC 63) Relying in judgments in Laxmidas Bapudas Darbar, Jabal
C. Lashkari and Modern Hotel, Gudur it is Mr. Kapadia’s contention
that since eviction of a contractual fixed term lessee is permissible
during currency of lease only on grounds enumerated in the lease
deed, the procedure for forfeiture must also be the one specified in the
lease deed and not the one prescribed in the Rent Control Act. This is
how Mr. Kapadia pitches for mandatory issuance of 60 days’ prior
notice for forfeiture of the lease in the present case.
64) In my view, what Mr. Kapadia does is to stretch the
principle enunciated in Laxmidas Bapudas Darbar and Jabal C.
Lashkari to mandatory issuance of notice as per the Lease Deed for
maintaining a suit under provisions of the Bombay Rent Act. In my
view, the law enunciated by the Apex Court in Laxmidas Bapudas
Darbar and Jabal C. Lashkari (supra) only recognises the principle
that recovery of possession governing contractual fixed term lease is
permissible under the Rent Control Act only in the event of the
grounds enumerated in that Act is also incorporated in the Lease
Deed. Beyond this, the principle expounded in both the judgments
cannot be overstretched to mean that even a notice for institution of
an eviction suit would be mandatory as per the Lease Deed when
seven Judges Bench in V. Dhanapal Chettiar (supra) has ruled that no
such notice is necessary for institution of Suit against a tenant. The
ratio of the Judgment in Laxmidas Bapudas Darbar and Jabal C.
Lashkari is only about the grounds for eviction and not about the
procedure to be followed for filing the eviction suit. The law relating
to following of procedure before institution of eviction suit is well
settled by the Apex Court in V. Dhanapal Chettiar (supra) and the
Judgment in Laxmidas Bapudas Darbar and Jabal C. Lashkari cannot
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be interpreted to mean that in case involving eviction of lessee on a
contractual fixed term lease under the Bombay Rent Act, issuance of
prior notice as per conditions of Lease Deed is mandatory. Therefore,
the submission made on behalf of Revision Applicants that the
eviction suit was not maintainable in absence of prior notice of 60
days as per Clause 4 (b) of the Lease Deed deserves to be rejected.
65) Even if one was to momentarily accept the contention of
Revision Applicants about mandatory requirement for issuance of
prior notice of 60 days under Clause 4(b) of the Lease Deed, it is the
contention of the Plaintiff that such notice has indeed been given in
the present case on 2 December 1995. In penultimate paragraph of
letter dated 2 December 1995 addressed to Defendant No.1, Plaintiff
stated as under:
Recently the undersigned along with our Mr. Sharma also had been
to the site where we were surprised to notice that in the garb of
renovation or repairing you have effected massive structural
changes in the premises to suit your purpose. The said structural
changes not only amount to breach of the terms of the Lease Deed
but also the building Rules and Regulations of the Bombay
Municipal Corporation for the time being in force rendering the
Lease Deed liable to be terminated.
We have also noticed that under the garb of renovation and/or
renovating you are erecting mezzanine floor infringing the building
rules and regulations depriving us of our due FSI thereby causing
irreparable loss to us.
66) Thus, specific intimation was given by Plaintiff to
Defendant No.1 that massive structural changes in the premises were
being carried out, which amounted to breach of terms of Lease Deed.
Plaintiff further stated that such acts made the Lease Deed liable to
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be terminated. The allegation of erecting mezzanine floor was also
specifically incorporated in the letter dated 2 December 1995. Thus,
Plaintiff specifically gave intimation to the Defendant about breach of
conditions of lease in the letter dated 2 December 1995. Mr. Kapadia
has contended that notice contemplated under Clause 4(b) of the
Lease Deed requires not just intimation of the exact breach or
omission, but permits the Lessee to remedy the same within 60 days.
Here I tend to disagree with Mr. Kapadia. Once a notice is given
alleging the exact breach committed by the lessee with further threat
of forfeiture of the Lease, mere omission in the notice requiring the
lessee to remedy the breach would not render the notice invalid. In
this regard useful reference can be made to the Judgment of the Apex
Court in Rakesh Kumar & Shri Shakti Kumar Anr. Versus. Hindustan
Everest Tool Ltd.21 in which the issue before the Apex Court was about
validity of notice demanding arrears of rent for maintaining suit for
eviction on the ground of default in payment of rent. In that case, the
landlord had specified period of default as well as exact amount of
arrears and had called upon the tenant to vacate the suit premises.
The landlord however did not specifically demand the arrears of rent.
The issue before the Apex Court was whether such a notice could be
construed as a valid demand notice. In paragraphs 10 and 11 the
Apex Court has held as under:
10. On reading the notice along with the letter dated June 1, 1982 it
appears that the respondent was in arrears of rent for the months
mentioned hereinbefore and was intimated that in default of
payment of rent the eviction would follow in accordance with law.
This is the proper way of reading the notice and in our view the
appropriate logical way in which notices of such type should be
read. These notices must be read in commonsense point of view
bearing in mind how such notices are understood by ordinary
people. That is how the appellant, it appears from the reply and the
21
(1988) 2 SCC 165
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background of the previous letter to be mentioned hereinafter
understood the notice.
11. More or less, a similar notice was considered by the Delhi High
Court in Ram Sarup v. Sultan Singh [(1977) 2 RCJ 552] where Mr
Justice V.S. Deshpande, as the learned Chief Justice then was, held
that the notice of the landlord stating therein about the arrears of
rent and threatening to file a petition for eviction against the tenant
was sufficient and the learned Judge held that the notice of demand
could be expressed or implied and the conduct of the landlord
showed that the demand was implied. We are in respectful
agreement with the approach to such type of notices taken by the
High Court in that case.
67) Thus, in Rakesh Kumar & Shri Shakti Kumar Anr. the Apex
Court held the notice not specifically demanding the arrears of rent to
be a valid notice since intimation of period of default together with
the exact amount of arrears coupled with the threat of eviction was
given to the tenant. Applying the same analogy in the present case as
well, the Defendant No.1 was clearly intimated the exact breach
committed in respect of Lease Deed as well as threat of termination
of lease was also issued. Therefore, as held by the Apex Court in
Rakesh Kumar & Shri Shakti Kumar Anr., requisition to remedy the
breach is implied and was not required to be specifically expressed. In
my view therefore, even if the submission of Mr. Kapadia about
mandatory requirement of issuance of 60 days’ notice under Clause
4(b) of the Lease Deed before institution of Suit for eviction is to be
accepted, such notice has indeed been given in the present case. The
contention of Mr. Kapadia about non-maintainability of Suit for
want of notice under Clause 4(b) of the Lease Deed is therefore
repelled.
Page No.51 of 65 12 November 2024 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:54:20 ::: Neeta Sawant CRA-120-2023-CRA-215-2023-FC D.3 UNAUTHORISED ADDITIONS AND ALTERATIONS 68) The allegations against Defendants are of twin nature.
Firstly, Plaintiff alleged acts of waste contrary to the provisions of
Clause (o) of Section 108 of the Transfer of Property Act, which is a
ground for eviction under Section 13(1) (a) of the Bombay Rent Act.
Secondly, Plaintiff also accused Defendants of putting up of
structures of permanent nature without its consent thereby attracting
a ground under Section 13(1)(b) of the Bombay Rent Act. Since both
the allegations are interconnected, it would be apposite to consider
both the allegations together. Before delving deeper into the grounds
under Section 13(1)(a) and 13(1)(b) of the Bombay Rent Act, it must
be noted that there are findings of fact recorded by the Trial and the
Appellate Court after appreciating the evidence on record. The
Applicants have invoked revisionary jurisdiction of this Court under
Section 115 of the Code and this Court is not expected to exercise
power of the Appellate Court in disguise as has been held by the
Apex Court in Keshardeo Chamria Versus. Radha Kissen Chamria And
Others22 and Masjid Kacha Tank, Nahan Versus. Tuffail Mohammed23. In
this connection reliance of Mr. Ankhad on the judgment of the Apex
Court in Gandhe Vijay Kumar (supra) is also apposite. By relying on
the Constitution Bench judgment in Hindustan Petroleum Corporation
Ltd. Versus. Dilbahar Singh24, the Apex Court has held in Gandhe Vijay
Kumar in paragraphs 2 and 3 as under:
2. We are afraid, the High Court has misdirected itself and
exceeded its jurisdiction. In revisional jurisdiction, the Court is
expected to see only whether the findings are illegal or perverse in
the sense that a reasonably informed person will not enter such a22
(1952) 2 SCC 329
23
1991 Supp (2) SCC 270
24
(2014) 9 SCC 78Page No.52 of 65
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Neeta Sawant CRA-120-2023-CRA-215-2023-FCfinding. For proper guidance, it would be appropriate to refer to a
recent Constitution Bench judgment in Hindustan Petroleum Corpn.
Ltd. v. Dilbahar Singh [Hindustan Petroleum Corpn. Ltd. v. Dilbahar
Singh, (2014) 9 SCC 78 : (2014) 4 SCC (Civ) 723] , at paras 30, 31
and 43: (SCC pp. 97, 98, 101 & 102)
“30. We have already noted in the earlier part of the
judgment that although there is some difference in the
language employed by the three Rent Control Acts under
consideration which provide for revisional jurisdiction but,
in our view, the revisional power of the High Court under
these Acts is substantially similar and broadly such power
has the same scope save and except the power to invoke
revisional jurisdiction suo motu unless so provided
expressly. None of these statutes confer on revisional
authority the power as wide as that of the appellate court or
appellate authority despite such power being wider than that
provided in Section 115 of the Code of Civil Procedure. The
provision under consideration does not permit the High
Court to invoke the revisional jurisdiction as the cloak of an
appeal in disguise. Revision does not lie under these
provisions to bring the orders of the trial court/Rent
Controller and the appellate court/appellate authority for
rehearing of the issues raised in the original proceedings.
31. We are in full agreement with the view expressed in Sri
Raja Lakshmi Dyeing Works [Sri Raja Lakshmi Dyeing
Works v. Rangaswamy Chettiar, (1980) 4 SCC 259] that
where both expressions “appeal” and “revision” are
employed in a statute, obviously, the expression “revision” is
meant to convey the idea of a much narrower jurisdiction
than that conveyed by the expression “appeal”. The use of
two expressions “appeal” and “revision” when used in one
statute conferring appellate power and revisional power, we
think, is not without purpose and significance. Ordinarily,
appellate jurisdiction involves a rehearing while it is not so
in the case of revisional jurisdiction when the same statute
provides the remedy by way of an “appeal” and so also of a
“revision”. If that were so, the revisional power would
become coextensive with that of the trial court or the
subordinate tribunal which is never the case. The classic
statement in Dattonpant [Dattonpant Gopalvarao
Devakate v. Vithalrao Maruthirao Janagaval, (1975) 2 SCC
246] that revisional power under the Rent Control Act may
not be as narrow as the revisional power under Section 115
of the Code but, at the same time, it is not wide enough to
make the High Court a second court of first appeal,
commends to us and we approve the same. We are of the
view that in the garb of revisional jurisdiction under the
above three rent control statutes, the High Court is not
conferred a status of second court of first appeal and the
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High Court should not enlarge the scope of revisional
jurisdiction to that extent.
* * *
43. We hold, as we must, that none of the above Rent
Control Acts entitles the High Court to interfere with the
findings of fact recorded by the first appellate court/first
appellate authority because on reappreciation of the
evidence, its view is different from the court/authority
below. The consideration or examination of the evidence by
the High Court in revisional jurisdiction under these Acts is
confined to find out that finding of facts recorded by the
court/authority below is according to law and does not
suffer from any error of law. A finding of fact recorded by
court/authority below, if perverse or has been arrived at
without consideration of the material evidence or such
finding is based on no evidence or misreading of the
evidence or is grossly erroneous that, if allowed to stand, it
would result in gross miscarriage of justice, is open to
correction because it is not treated as a finding according to
law. In that event, the High Court in exercise of its revisional
jurisdiction under the above Rent Control Acts shall be
entitled to set aside the impugned order as being not legal or
proper. The High Court is entitled to satisfy itself as to the
correctness or legality or propriety of any decision or order
impugned before it as indicated above. However, to satisfy
itself to the regularity, correctness, legality or propriety of
the impugned decision or the order, the High Court shall not
exercise its power as an appellate power to reappreciate or
reassess the evidence for coming to a different finding on
facts. Revisional power is not and cannot be equated with
the power of reconsideration of all questions of fact as a
court of first appeal. Where the High Court is required to be
satisfied that the decision is according to law, it may
examine whether the order impugned before it suffers from
procedural illegality or irregularity.”
These principles hold good generally for exercise of revisional
power.
3. There is no dispute with respect to the landlord-tenant
relationship. The bona fide requirement also has been concurrently
found by the Rent Controller as well as by the appellate authority.
The High Court should not have ventured to look into the evidence
as if in a first appeal and entered a different finding, though
another finding might also be possible. Merely because another
view is possible in exercise of the revisional jurisdiction, the High
Court cannot upset the factual findings.
Page No.54 of 65 12 November 2024 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:54:20 ::: Neeta Sawant CRA-120-2023-CRA-215-2023-FC 69) Keeping in mind the contours of revisional jurisdiction of
High Court under Section 115 of the Code, I proceed to examine
whether the Trial and Appellate Courts have committed any
jurisdictional error or have exercised jurisdiction with material
irregularity so as to warrant interference by this Court in revisionary
jurisdiction. In the Plaint, Plaintiff alleged following acts against the
Defendants:
(i) demolition of load bearing walls which were dividing
the suit premises into three parts.
(ii) removal of three entry doors to the said three parts by
plastering walls.
(iii) removal of flooring of the entire suit premises and
lowering down the plinth by 6 to 8 inches.
(iv) construction of two bathrooms and toilet blocks.
(v) affixing iron beams alongwith existing wooden
beams.
(vi) construction of mezzanine floor with iron beams.
(vii) construction of independent rooms in the suit
premises.
70) In the written statement filed by Defendant No.1 few
admissions relating to additions and alterations are given in
paragraph 10 as under:
10. With reference to para 7 these defendants deny that by their
letter dated 6-12-1995 they raised any false contention of carrying
out essential repairs. These defendants deny that they had started
any structural alterations or additions in the said premises as
alleged or otherwise or at all. These defendants deny that
defendants have demolished the “load-bearing walls” of the suit
premises which were allegedly dividing the premises into three
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only one big unit. These defendants state that they had for their
own convenience put up two one-brick dividing partitions which
they have now partly removed. These defendants deny that any
structural additions or alterations have bean carried out in the
premises as alleged or even otherwise. These defendants deny that
they have lowered down the flooring as alleged or at all. These
defendants state that only new tiles have been put up on the floor,
and in the existing bathrooms to give a decent look. These
defendants state that iron beams alongside the existing wooden
beams have been put up only in order to strengthen and support the
ceiling so that it should not cave in. These defendants deny that any
mazzannine floor has been constructed in the suit premises. These
defendants state that the earlier loft has been strengthened which is
in less than 1/3rd of the premises as per BMC regulations with the
help of iron beans with wooden flooring which can be removed,
within a short period and that is not a permanent structure at all.
These defendants deny that the identity of the premises is at all
changed as alleged or otherwise or at all. These defendants deny
that any independent room of permanent nature has been
constructed in the suit premises. These defendants deny that
defendant No.1 has committed any act which is contrary to the
provisions of Section 108 of Transfer of Property Act as alleged or
otherwise or at all.
71) Thus, while denying the allegations of demolition of load
bearing walls, Defendant No.1 stated that when the premises were let
out, there were no dividing walls and it was only one big unit and for
its convenience, Defendant No.1 had put up two ‘one-brick’ dividing
partitions, which it later removed. Defendant No. 1 admitted putting
up of new tiles but denied allegations of lowering down the flooring.
It also admitted putting up of iron beams alongside the existing
wooden beams to strengthen and support the ceiling so as to prevent
it caving in. The Defendant No. 1 denied construction of mezzanine
floor and pleaded that the earlier loft was merely strengthened, which
is in less than 1/3 of the premises as per regulations of the Municipal
Corporation. It further pleaded that the said loft was easily
removable.
Page No.56 of 65 12 November 2024 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:54:20 ::: Neeta Sawant CRA-120-2023-CRA-215-2023-FC 72) At the instance of the Plaintiff, Court Commissioner was
appointed to inspect the suit premises. The Court Commissioner Mr.
G.P. Khandelwal visited the suit premises on 15 February 1996 and
submitted his report along with 52 photographs. The Court
Commissioner noticed existence of loft-like structure in the suit
premises and indicated its height as 7 feet, in which he could easily
stand. The Court Commissioner also gave detailed account of various
additions and alterations made in the suit premises.
73) Contrary to the plea raised in its the written statement
that it did not carry out any additions or alterations in the suit
premises after subletting the same to Defendant Nos.3 to 7, witness of
Defendant No.1 admitted during the course of his cross-examination
that various additions and alterations were carried out by Defendant
No.2-Mid Day. Defendant’s witness stated in his cross-examination
that he orally enquired from Defendant Nos.2 to 7 as to why the
additions and alterations were being carried out and later changed
this deposition to say that such enquiry was made only with
Defendant No.2. Defendant’s witness further admitted that suit
premises originally were in three sections and had three doors and
contradicted the stand in the written statement. Defendant’s witness
admitted that Defendant No.1 constructed partition walls inside the
suit premises, but they were removed by Defendant No.2. The witness
further admitted that one wall was again constructed by his brother in
2005-2006, which remained in existence till deposition was recorded
on 1 April 2015. He further admitted that Defendant No.2 removed
two partition walls. This is how deposition of Defendant’s witness is
not only filled with inconsistencies, but also contradicts the averments
in the written statement.
Page No.57 of 65 12 November 2024 ::: Uploaded on - 13/11/2024 ::: Downloaded on - 14/11/2024 00:54:20 ::: Neeta Sawant CRA-120-2023-CRA-215-2023-FC 74) So far as allegation of construction of mezzanine floor is
concerned, it appears that Municipal Corporation issued notice dated
5 July 1999 to Plaintiff and others, which contained following
description of unauthorised work :
‘construction of mezzanine floor with MS Gurder and Ladi
Koba flooring admeasuring 25.25 meter x 9.75 meter’.
75) In the sketch, the height of mezzanine floor was indicated
as 1.7 meters, which is equivalent to 5 ft 7 inches. According to
Defendants, what is done is mere strengthening of existing loft.
However, the total area of such structure is 251 sq. mtrs. equivalent to
about 2700 sq.ft. There cannot be a loft admeasuring 2700.03 sq.ft.
Again, the loft cannot be of height of 5 ft. 7 inches. According to
Court Commissioner, the height of the mezzanine floor was 7 feet.
The Court Commissioner stated that he could easily stand in the loft
like structure. In my view, such structure cannot be treated as a loft.
The Lease Deed does not make reference to presence of any loft of
such massive size of 2700.03 sq.ft. which either 5 ft.7 inch or 7 feet in
height. Thus, what is erected is a structure to be used as working
space. The notice issued by MCGM on 5 July 1999 also indicates
presence of a cabin at the mezzanine floor. In my view therefore,
construction of mezzanine floor inside the suit premises is clearly
established. It cannot be stated, by any stretch of imagination, that
construction of mezzanine floor does not amount to erecting
structure of permanent nature within the meaning of Section 13(1)(b)
of the Bombay Rent Act. In this regard reliance of Mr. Ankhad on
judgment of this Court in Ravindra D. Ahirkar (supra) is apposite.
Single Judge of this Court has held in paragraph 7 as under :
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7. The notice dated 4-6-2001 issued by the landlord claiming water
charges/revised water charges from the tenant is clearly for the
period from 1-8-2000 to 31-5-2001 which is about a period of nine
months. According to landlord the total amount due was Rs.
1040/- for this period against the tenant. The learned Counsel for
the respondents submitted that this demand for water charges was
served on the landlord on 9-12-2000 and 2-3-2001. Therefore, even
if these two dates are taken into consideration to find out whether
the amount of water charges are due or not, in my opinion, the
same can be termed as amount due. Submission made by Advocate
Shri Dhumale on this aspect therefore does not appeal to me. Now
insofar as the construction of permanent structure, namely, the
mezzanine floor is concerned, there is no dispute that the petitioner
made the construction without the consent of the landlord. Section
16(1)(b) of the Act requires such consent in writing. It appears that
the petitioner on his own made the said construction in violation of
the building control rules and as a result the respondent landlord
received a notice from the Corporation for violation of those rules.
The construction of a mezzanine floor is obviously a permanent
structure. Therefore, the case falls in the mischief of section 16(1)
(b) of the Act. Thus, on all these counts, the Appellate Court has
rightly found that the petitioner/tenant was liable to be evicted. I,
therefore, do not find any merit in the writ petition. The same is,
therefore, dismissed.
(emphasis added)
76) Again, in Safiya Sabirbhai Wadhvanwala (supra) this
Court has held in paragraphs 4, 5 and 6 as under:
4. On the issue of unauthorised alteration to the suit premises of a
permanent nature, the trial Court had held that the defendant, i.e.
the petitioner herein, without the consent of the plaintiff, i.e., the
respondent herein had carried out permanent construction of
mezzanine floor inside the suit premises and enclosed 15 sq.ft. of
common passage and thereby caused permanent damage to the suit
premises. No Commissioner to inspect the alteration was appointed
because it was the case of the defendant, namely the petitioner
herein, that the mezzanine floor and also enclosure was already
there when the tenancy agreement was entered into on 6 th March
2000. It was the case of the plaintiff, i.e., respondent herein that
such a mezzanine floor and enclosure was never in existence.
5. The trial Court has correctly held that in such a situation, it was
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Neeta Sawant CRA-120-2023-CRA-215-2023-FCinto possession. The Court has also come to the conclusion that no
such independent evidence was led by the defendant, i.e., the
petitioner as to the existence of the said mezzanine/loft. The Court
therefore, concluded that the petitioner, i.e., original defendant, had
put up a loft/mezzanine floor in breach of that agreement.
6. I have also perused the tenancy agreement in which in clause 3
(vi) it is expressly provided that no structural alterations to the said
premises to be carried out and no loft whether of temporary or
permanent nature in the suit premises or any part thereto could be
constructed. Clause 3(vi) reads as under:–
“Not to carry out any structural alterations to the said
premises and not to construct any loft whether temporary or
permanent, in the said premises or any part thereof.”
77) If the tests laid down by the Apex Court in Purushottam
Das Bangur and Others Versus. Dayanand Gupta 25 are applied, there
can be no doubt to the position that construction of mezzanine floor
by Defendants would attract the folly under provisions of Section
13(1)(b) of the Bombay Rent Act. The Apex Court has considered
various judgments in Purushottam Das Bangur including the
judgments in Venkatlal G. Pittie (supra) and Om Prakash (supra) relied
upon by Mr. Godbole and has summed up the tests for determination
of permanent nature of construction as under:
20. To sum up, no hard-and-fast rule can be prescribed for
determining what is permanent or what is not. The use of the word
“permanent” in Section 108(p) of the Transfer of Property Act,
1882 is meant to distinguish the structure from what is temporary.
The term “permanent” does not mean that the structure must last
forever. A structure that lasts till the end of the tenancy can be
treated as a permanent structure. The intention of the party putting
up the structure is important for determining whether it is
permanent or temporary. The nature and extent of the structure is
similarly an important circumstance for deciding whether the
structure is permanent or temporary within the meaning of Section
108(p) of the Act. Removability of the structure without causing
any damage to the building is yet another test that can be applied
while deciding the nature of the structure. So also the durability of
25
(2012) 10 SCC 409
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the structure and the material used for erection of the same will
help in deciding whether the structure is permanent or temporary.
Lastly, the purpose for which the structure is intended is also an
important factor that cannot be ignored.
(emphasis and underlining added)
78) Also of relevance is the fact that construction of
mezzanine floor has resulted in increase in the assessment in records
of Municipal Corporation for property taxes. The inspection extract
for the year 2000-2001 would clearly indicate presence of mezzanine
floor for attracting additional assessment for property taxes in respect
of the Unit Nos. 2 and 3, wherein the size of the mezzanine floors is
indicated as 35.50 sq. mtrs and 250.92 sq. mtrs. Thus there can be no
slightest of doubt that what is constructed by Defendants is a
mezzanine floor and the defence adopted of so called strengthening
of loft is totally fallacious.
79) Defendants did not dispute construction of bathroom and
toilet inside the suit premises. However, according to Mr. Godbole,
construction of toilet and WC is only for beneficial enjoyment of the
suit premises and same cannot attract folly under Section 13(1)(b) of
the Bombay Rent Control Act. Firstly, construction of toilet and
bathroom is not included in the explanation to Section 13(1)(b) added
by amendment of 1987. Secondly, for construction of toilet and
bathroom, use of material such as bricks, cement, tiles, etc. is required
in addition to making provision for plumbing and drainage lines.
Therefore, construction of toilet and WC would definitely amount to
putting up/erecting permanent structure in the premises. There is
nothing on record to indicate that Defendant No. 1 was given
permission in writing for construction of toilet or WC. Reference in
this regard can be made letter to dated 19 August 1992 wherein
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Plaintiff had clearly objected to construction of bathroom and WC
inside the suit premises.
80) Another allegation against Defendants is lowering of
plinth and demolition of partition walls by unifying the three units
into one. This allegation is proved by notice issued by MCGM under
provisions of Section 53(1) of the MRTP Act on 3 July 1999. The
schedule to the notice reads thus:
SCHEDULE
(Description of the unauthorised development together with the
particulars of Land) at Godown No. 63, Sitaram Mill Compound.
i) Lowering of Plinth by 1'3''
ii) Amalgamation of three units into one unit by removing the
Partition walls between Units No.1&2 and unit No.2&3.
iii) Change of user from garment designing and sampling with
data processing to office purpose of Mid-Day Publication.
81) Though the plea of Plaintiff of demolition of load
bearing walls is not established, it is clearly established that the
Defendant has demolished at least brick partition walls which had
subdivided the godown into three units. The allegation of closure of
the entrance doors is also established from the photographs.
82) Mr. Godbole and Mr. Kapadia have strenuously
contended that all the activities carried out by the Defendants are
permissible under Clause 2(h) and 4(c) of the Lease Deed. It would
therefore be apposite to reproduce Clauses 2(h) and 4(c) of the Lease
Deed, which read thus:
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(h) not to make any changes alterations and additions in and to the
demised premises without first obtaining consent in writing of the
Lessor which shall not be unreasonably withheld and all such
changes, alterations and additions when made shall become and be
considered the property of the Lessor unless otherwise previously
agreed to by the parties.
(c) The Lessees shall be at liberty at their own costs to construct a
fix erect bring in or upon or fasten to the demised premises and to
remove alter and re-arrange from time to time any office furniture
fixture and fittings which the lessees may require for their business
such as screens, counters, lookers, strong room doors, grills,
shutters, subblings, and electric fittings, lights, fan, air-conditioners,
and other equipment fittings articles and things all of which the
Lessees shall be at liberty to remove at or before the expiration or
sooner determination of the tenancy without objection on the part
of the lessor but the Lessees shall make good any damage which
may be thereby caused to the demised premises to the reasonable
satisfaction of the lessor.
83) Thus, under Clause 2(h), there was specific prohibition on
the Lessee to make any alterations and additions in the demised
premises without first obtaining consent in writing of the Lessor. True
it is that Lessor was not to unreasonably withhold such consent.
However, there is nothing on record to indicate that for carrying out
aforestated activities, Defendants ever sought any consent in writing
from the Plaintiff. Except for the work of strengthening of the ceiling,
which was possibly caving in on account of load put up by UCO
Bank on first floor, it appears that there was never an agreement
between the parties about the other additions and alterations such as
construction of mezzanine floor, construction of WC and toilet,
lowering of plinth, demolition of partition walls, plastering of doors,
etc.
84) To salvage the situation, reliance is placed on Clause 4(c)
of the Lease Deed and according to Mr. Godbole, the activities
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permissible under Clause 4(c) are of such a wide nature that the
activities conducted at the suit premises are clearly permissible under
the Lease Deed. He has particularly highlighted two permissible
activities of putting of strong room doors and ‘sub-blocks’ in the
premises. Mr. Godbole has justified creation and removal of
partitions by relying on definition of the word ‘sub block’ in Merriam
Webster Dictionary to mean a ‘a functional subdivision of a building or
part of building’. Firstly, I do not find clear word ‘subblock’ in Clause
4(c). There appears to be a misspelling while typing the concerned
word, which actually appears to be typed as ‘subblings’ and not
‘subblocks’. However, even if the said controversy is kept aside, the
manner in which Clause 4(c) is worded in juxtaposition to Clause
2(h) of the Lease Deed, the intention of the parties was to permit
activities of putting up furniture and fixtures in the premises without
seeking landlord’s consent. But if any further act was to be performed
resulting in alterations and additions to the demised premises, consent
of the Lessor in writing was necessary. By no stretch of imagination,
construction of mezzanine floor, lowering of plinth, construction of
toilet /WC, etc. be covered by Clause 4(c) of the Lease Deed.
85) As observed above, there are findings of fact recorded by
the Trial and Appellate Courts about unauthorised additions and
alterations. In exercise of revisionary jurisdiction, this Court cannot
sit in appeal by re-appreciating the evidence and arrive at a different
finding than the one recorded by the Trial and Appellate Courts.
However, for the purpose of finding out a case of exercise of
jurisdiction with material irregularity, I have gone through the
relevant material on record and I am unable to find out any perversity
in the findings recorded by the Trial and Appellate Courts. The
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findings recorded by both the Courts after appreciating the evidence
are possible findings, not warranting any interference in revisionary
jurisdiction of this Court.
E. ORDER 86) After considering the overall conspectus of the case I am
of the view that the concurrent decrees passed by the Small Causes
Court and its Appellate Bench are unexceptionable.
87) Civil Revision Applications are devoid of merits and are
accordingly dismissed.
88) In view of disposal of the Civil Revision Applications,
Interim Application does not survive and same also stands disposed
of.
[SANDEEP V. MARNE, J.]
89) After the judgment is pronounced, the learned Counsel
appearing for the Revision Applicants seeks continuation of interim
order dated 5 July 2017 for a period of 4 weeks. The request is fairly
not opposed by the learned counsel appearing for Respondent No.1.
Accordingly, the interim order dated 5 July 2017 shall continue to
operate for a period of 4 weeks.
[SANDEEP V. MARNE, J.]
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