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2002(5) Supreme 453
SUPREME COURT OF INDIA
(From Mumbai High Court)
R.C. Lahoti & Brijesh Kumar, JJ.
Nilesh Nand Kumar Shah -Appellant
versus
Sikandar Aziz Patel -Respondent
Civil Appeal No. 2862 of 1998
With
Civil Appeal No. 2863 of 1998
And
Civil Appeal No. 2864 of 1998
Decided on 23-8-2002
Counsel for the Parties :
For the Appellant : Uday Umesh Lalit and Gaurav Aggarwal, Advocates.
For the Respondent : C.S. Joshi and Shivaji M. Jadhav, Advocates.
Held : There may be several purposes for which the tenancy premises may be let out. Broadly speaking the premises are let out either for the purpose of residence or for a non-residential or commercial purpose. A legislation may classify the purpose of letting into several categories by adopting some other criterion just as the Bombay Act does (See, sub-Section (1) of Section 6). In case of tenancy of type (a), for a composite or mixed purpose, the premises are let out for defined purposes, more than one, leaving the option open to the tenant to use the entire tenancy premises as one unit for either or both purposes. The tenancy premises are not divided or demarcated separately into two so as to specify which part of the tenancy premises will be used for what purpose. In other words, in case of tenancy for composite purpose, the two diverse purposes for user of the premises are so blended or mixed up that they cannot be separated by dissecting the tenancy premises into compartments. But, in case of tenancy of type (b), which is a single tenancy for dual purposes, the contract of tenancy is no doubt an integrated one but the premises are demarcated or divided by reference to the purpose for which they will be separately used. The cases at hand are illustrations of the latter type, type (b), of an integrated contract of tenancy for dual purposes, where different portions are earmarked for different types of user. The contract of tenancy is one but it clearly sets out that out of the two rooms let out under one tenancy agreement, the tenant shall use the room in the front for non-residential purpose and the room in the backside for the purpose of residence. The entire tenancy premises cannot be used interchanging the users nor can the entire premises be subjected to simultaneous user as residence and commerce - both, without defining which part of the premises shall be used for what purpose. Therefore, the purpose of letting, in the case at hand, falls under type (b) and is not composite or mixed. The legal implication is that in case of tenancy for composite or mixed purpose i.e. type (a) the need may arise for determining the dominant purpose of letting. However, the theory of dominant purpose or principle of predominant purpose of letting is irrelevant in the case of tenancies of type (b) when it is known, as previously agreed, that a particular portion of the premises shall be used for one purpose while another portion shall be used for another purpose. (Para 6)
(ii) Bombay Rents, Hotel and Lodging House Rates Control Act, 1947-Sections 2(3) and 6(2)-Notification under-Making Part II of Bombay Rent Act applicable to the area to the premises let for the purpose of residence -Meaning-Applicability to impugned leases of two rooms providing for one room being used for residence and the other one being used for commercial purpose-Whether Rent Act would apply to such leases? High Court holding yes -Appeals against-Whether High Court was right? (Yes)-Appeals dismissed-Case law discussed.
Held : In the cases at hand, inasmuch as the rear room of the tenancy premises, having its purpose of user as residence, enjoys the protection of Bombay Act, the tenant shall not be liable to be evicted from any part of the tenancy premises, as part of the premises is protected by the Bombay Act and the contract of tenancy is one single and indivisible. We are, therefore, of the opinion that when the premises are let out under one integrated contract of tenancy i.e. type (b) referred to above, and the purpose of letting in respect of one part of the premises is one of the users referred to in sub-section (1) of Section 6 of Bombay Act while the other part of tenancy premises is permitted to be used for purpose other than the one stated in section 6(1), the entire tenancy premises would enjoy protection of Bombay Act. Eviction of tenant can be had only by making out a case for eviction under Bombay Act. However, if a ground for eviction under Bombay Act from even a part of the premises is made out, eviction can be ordered from the whole unless the statute or the contract contains a special provision empowering the court to split up the tenancy. (Para 9)
The entire property need not have been let for the specified protected purpose. Even if a part of it is proved to be let for specified protected purpose, the entire property would be protected and governed by the provisions of the Act. This is the correct statement of law and we approve the same. For the foregoing reasons, the appeals are held devoid of merit and liable to be dismissed. They are dismissed accordingly though without any order as to the costs. (Paras 12 &13)
JUDGMENT
R.C. Lahoti, J.-There is a property consisting of three tenements belonging to the respondent-landlord situated over revenue survey No. 591/1 in village Koregaon of district Satara, Maharashtra. The three units are situated by the side of main road. Each unit consists of two rooms of equal size interconnected by a door. The room abutting on the road is used for commercial purpose while the room situated behind is used for residential purpose. The three tenants are respectively a tailor, a vaidu (medical practitioner dealing mostly in herbs and indigenous medicines) and a petty restaurateur. The lease agreements entered into between the three tenants respectively and the landlord specifically provide for one room being used for residence and the other one being used for commercial purpose.
2. The landlord-appellant initiated proceedings for eviction and recovery of arrears of rent against the three tenant-respondents. Admittedly, any ground for eviction under the Rent Control Law is not available to the landlord. The landlord proceeded on an assumption that the purpose of letting being dual, i.e. residential and non-residential both, the applicability of the Rent Control Law was not attracted, and therefore, the eviction was sought for under the general law working out rights and obligations of the parties under the provisions of the Transfer of Property Act. The trial Court held that the provisions of Bombay Rents, Hotel and Lodging, House Rates Control Act, 1947 (hereinafter, Bombay Act , for short) were applicable and therefore directed the suits to be dismissed. The appeals filed by the landlord were allowed by the appellate Court by a common judgment holding Bombay Act inapplicable. Second appeals preferred by the three tenants have been allowed by the High Court which has set aside the judgment of the appellate Court and restored those passed by the trial Court. Feeling aggrieved, the landlord has preferred these three appeals by special leave.
3. Bombay Rents, Hotel and Lodging, House Rates Control Act, 1947 came to be applied to Koregaon village where the tenements in suit are situated through the notification dated 18th October, 1960 which reads as under:
"No. BRA. 1860/33301-E.-In exercise of the powers conferred by sub-section (2) of section 6 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. LVII of 1947), the Government of Maharashtra hereby directs that in the area of the Koregaon Village in the Koregaon Taluka of the North Satara District, all the provisions of Part II of the said Act shall, on and from the date of this notification, apply to premises let for the purpose of residence."
4. Part II of the Bombay Act consists of Sections 6 to 31. Sub-section (3) of Section 2 provides that the State Government may, by notification in the Official Gazette, extend to any other area, any or all of the provisions of Part II, Part IIA or Part III or all of them. Section 6(1) provides, "in areas specified in Schedule I, this part shall apply to premises let or given on licence for residence, education, business, trade or storage". Sub-section (2) of Section 6 provides that in areas to which Part II is extended under sub-section (3) of Section 2, it shall apply to premises let or given on licence for such of the purposes referred to in sub-section (1) or notified under sub-section (1A) or let for such standard rent as the State Government may, by notification in the Official Gazette specify. From these provisions read along with the notification dated 18.10.1960 it follows that in Koregaon village where the three tenements are situated the provisions of the Bombay Act are applicable "to premises let for the purpose of residence". It is common ground that so far as Koregaon is concerned suits for eviction of tenant lie in Civil Court without regard to the fact whether the premises are governed by the provisions of the Bombay Act or not. If Bombay Act applies, eviction would not be ordered un
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