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1991 Supreme(Bom) 414
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Desai A.A., J.
Gangubai Dashrath Makode others .... Applicants.
Versus
Nilkanth Sripat Gokhale.... Non-applicant.
Miscellanous Civil Application No. 187 of 1989 Second Appeals Nos. 24 to 26 of 1985, 203 of 1986, 99 of 1989 152 of 1990, decided on 3-9-1991.
Advocates appeared :
K.S. Dhote, S.C. Mehadia, A.P. Deshpande A.M. Bapat, for applicant .
J.N. Chandurkar, T.R. Kankale, S.A. Bobde R.S. Lambat, for non-applicant.
Headnote:House and rent control (Amendment) Order, 1989 and C.P. and Berar Letting of Premises and Rent Control (Second Amendment) Order, 1989-Clause 13-A-Terminatinn of tenancy-Suit for possession of open site-Decree for eviction of tenant passed-Maintained in appeal-Second appeal-During pendency of second appeal, Second Amendment Order. 1989 passed-Held. Permission of Rent controller as required by sub-clause (1) of Clause 13 of Second Amendment Order, 1989 not obtained-Decrees for eviction as passed not maintainable and liable to be set aside,
By the second amendment of Control Order, 1949, clause 13-A was inserted which provided that no decree for eviction shall be passed in a suit or proceeding filed and pending against the tenant in any Court or before any authority unless the landlord produces a written permission of the Controller as required by sub-clause (n) of Clause 13 of the order.
C.P. AND BERAR REGULATION OF LETTING OF ACCOMMODATION ACT, 1946,
Section 2 and C.P and Berar Letting of Houses and rent control (Amendment) Order, 1989-Clause 2 (4-A)-Open site covered by the term-Premises as defined in Sub-clause (4-A) of Clause 2 - Whether inclusion of open plot for purpose of regulating letting and sub letting Under the order is beyond competence and scope of delegated authority of Provincial Government.
Held-the legislature though not defined the term accommodation have sufficiently indicated as to what was in their contemplation. By using the phraseology any accommodation or class of accommodation, whether residential or non-residential, whether furnished or unfurnished and whether with or without hoard", the term bas been made very comprehensive, Width of the term in contemplation of the legislature is sufficiently broad based. Accordingly, the open plot which is not capable of being used for a particular use of cultivation can accommodate the community for any of their multifarious activity. Such open plot need not be furnished with wall and roof so as to make it capable for being used particularly for residence or shop. The open plot as envisaged by impunged amendment is within the purview of the term "accommodation" as provided by the Principal Act. But such plot could certainly render services essential to the life of community,
The impugned amendment which includes open plot not capable of being used for agricultural purpose is well within the delegated authority of the State Government and is intra vires,
In these proceedings, the amendment has been impugned on the ground that inclusion of open plot for the purposes of regulating the letting and sub-letting under the order and it being retrospective in operation since affects the pre-existing right accrued owing to terminating of tenancy, to evict the tenant, is beyond the competence and scope of the delegated authority of the Provincial Government.
2. Mr. Chandurkar and Mr. Bobde, the learned Counsel appearing for the landlord, strenuously urged that the authority as conferred by section 2 of the Principal Act on the Provincial Government pertains to regulating the tenancy of the accommodation. They pointed out that sub-section 8 of section 5 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 defines the term 'premises' which amongst others includes an open plot. According to them, the term 'premises' is capable to take within its sweep any accommodation, whereas the term 'accommodation' as engaged in the Principal Act does not embrace within its fold any premises. The term 'accommodation', according to them, is comparatively having a very narrow and definite import.
The principal Act though used the term 'accommodation', has not defined it. As such, ordinary meaning as commonly understood needs to be assigned to the term 'accommodation'. According to them, the term definitely signifies something furnished with wall and roof where the people can be accommodated. It would be ridiculous to consider that the open plot is meant for accommodation. The impugned amendment which includes open plot for the purposes of regulating under the order is, therefore, beyond the scope of delegated power of the Provincial Government.
3. Mr. Bobde further made a submission that term 'accommodation' is of definite significance. It unequivocally conveys something covered by wall and roof. The placed reliance on a decision in (Dr. R.N. Gupta v. Smt. Sarla Khandelwal and others)1, A.I.R. 1974 All. 376(F. B.) and (Smt. Parbati v. Babu Lal)2, A.I.R. 1967 All. 40.
According to me, no assistance can be derived from these Authorities since Their Lordships were considering the term 'accommodation' having regard to the definition as provided under section 2(a) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947.
4. Mr. Bobde then invited my attention to the dictionary meaning of the term 'accommodation' as provided in Chamber Dictionary (20th Century). The dictionary meaning conveys amongst others:- supplying of wants (especially housing or refreshment), a help towards satisfaction of a want, space for what is required.
However, the Full Bench of Allahabad High Court in the case cited supra, gave a note of caution in para 8 of its report, which reads as thus :
"If we look at the
