Chinnupashabi w/o Hasan Jahagirdar and others vs Fatesingh Shikshan Sanstha and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Bom) 477

IN THE HIGH COURT OF BOMBAY
H.L. Gokhale, J.
Chinnupashabi w/o Hasan Jahagirdar others..... Appellants.
Versus
Fatesingh Shikshan Sanstha others..... Respondents.
S.A. No. 758 of 1997, decided on 12-7-1999.
Advocates appeared :
G.S. Godbole, for appellants.
Nitin Jamdar, for respondents.

Headnote:Sections 5(11) and l3(1)(f) and Transfer of Property Act, Section 105-For a person to be a tenant under Bombay Rent Act rent has to be paid in money-It cannot be in service Provisions of Section 105, Transfer of Property Act cannot be invoked in respect of urban residential tenancy covered under Bombay Rent Act.- Section 13(1)(f) of the Bombay Rent Act requires that the premises were firstly let to a tenant for the same being put in use as a residence by a person, who is in service. So, the person concerned has to be a tenant and a tenant has been defined under the Bombay Rent Act under Section 5(11), as a person by whom or on whose account the rent is payable for any premises. The provisions of the Rent Act are quite clear. If one looks into a number of provisions contained in the Act, it is very clear that the rent has to be paid through money. Payment cannot be in service. The provisions of Section 105 of the Transfer of Property Act, cannot be invoked for urban residential tenancy which is specifically covered under the Acts of the tenancy such as Bombay Rent Act.
       It was alleged that a teacher in the school run by the Education Institution, who was in need of accommodation was given a room in a students hostel, run by the first respondent institution. On the death of teacher the trustees sought the return of the premises. The trustees filed civil suit against the heirs which was decreed and the appeal having been dismissed, in second appeal it was contended that the deceased teacher will have to be construed a service tenant protected by Section 13(1)(f) of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947.
       Held, that it was very clear that deceased was not required to pay any rent per month and was not a tenant of the institution. His occupation was at the highest a personal privilege of occupation and not tenancy. Both the Courts below were right in exercising the jurisdiction as regular Civil Court in the suit which was filed by the respondent institution for possession after serving requisite notice. AIR 1984 Guj 182 (DB), 1991 Mh RC CJ 572, AIR 1974 SC 471. Ref., 1987 (4) SCC 161, 1989 (4) SCC 378. Rel.
       Section 13(1)(7)-Suit for possession-Applicability of Rent Act A person as teacher given possession of suit premises which being a room in students hostel run by respondent education institution-He was not required to pay and rent per month is occupation being only personal privilege extended by institution and not tenancy-Held Rent Act not applicable-Civil suit for his eviction can be filed.-It is very clear that the rent has to be paid through money. If that was not so a number of provisions of the Act relating to the arrears of rent, additions to the rent, standard rent etc. would become redundant. The notice to be given by he landlord to be tenant calling upon him to pay the rent has also to be for payment in money and it cannot be in service. Under these circumstances, the submission of Shri Jamdar, is required to be accepted that the provisions of Section 105 of the Transfer of Property Act cannot be invoked for urban residential tenancy which are specifically covered under the Acts of the tenancy such as Bombay Rent Act.
       In the circumstances stated above, it is very clear that Hasan Jahagirdar was not required to pay any rent per month and was not a tenant of the first respondent institution. His occupation was at the highest a personal privilege of occupation and not tenancy. In the circumstances, both the courts below were right in exercising the jurisdiction as regular as Civil Courts in the suit which was filed by the respondent institution after serving the requisite notice to the late Hasan Jahagirdar.
       Section 13(1)(f)-Applicability of-Suit filed in Civil Court to take back possession from person, who was given personal privilege of occupation in lieu of being in service of plaintiff landlord-Jurisdiction of Civil Court-Act applies when premises given to tenant in lieu of payment of some money as rent-Thus, in present case Act not applicable and Civil Court has jurisdiction.

JUDGMENT - H.L. GOKHALE J.:---Heard Shri Godbole for the appellants and Shri Jamdar for the respondents. One Hasan Jahagirdar was working as a teacher in the school run by the first respondent Education Institution. While working in that school, he was in need of accommodation and hence a room in a students hostel, run by the first respondent institution, was made available to him. The premises consisted of a hall, admeasuring 20' x 16' along with verandah admeasuring 20' x 10'. This Hasan Jahagirdar died on 31st November, 1981. On his death and after passage of some reasonable time, the trustees of the first respondent institution sought the return of the premises. Since the premises were not returned, necessary notices were served and thereafter since the notices were also not honoured, the civil suit bearing No. 120/1983 was filed in the Court of Civil Judge, Jr. Dvn., Akkalkot. That suit came to be decreed on 5th of August, 1994. Being aggrieved by that judgment and decree, first appeal was preferred by the appellants herein, who are heirs of this Hasan Jahagirdar, to the Court of 5th Additional District Judge, Solapur. The appeal was dismissed and hence being aggrieved by the said judgment and order, this second appeal has been filed.

2.Shri Godbole, the learned Counsel for the appellants submitted that the deceased Hasan Jahagirdar will have to be construed a service tenant protected by section 13(1)(f) of the Bombay Rents, Hotel and Lodging House Rates, Control Act, 1947 (hereinafter referred to as Bombay Rent Act). Section 13(1)(f) reads as follows:-

"Section 13. When landlord may recover possession.---(1) Notwithstanding anything contained in this Act, (but subject to the provisions of sections 15 and 15-A), a landlord shall be entitled to recover possession of any premises, if the Court is satisfied.

.............

(f) that the premises were let to the tenant for use as a residence by reasons of his being in the service or employment of the landlord, and that the tenant has ceased, whether before or after the coming into operation of this Act, to be in such service or employment, or---"

3.Shri Godbole submitted that it was not in dispute that Hasan Jahagirdar was in the employment of the first respondent institution and that the suit premises were made available to him by way of residence. Shri Godbole submitted that the tenant is not necessarily required to pay a rent in money and can be permitted to pay it in kind. He specifically referred section 105 of the Transfer of Property Act, whereunder in a lease of immovable property a service rendered can be the consideration for the lease. He drew my attention to the fact that it was the understanding between the parties that apart from his service in the School, Hasan Jahagirdar was to look after the Hostel. Shri Godbole submitted that this service was the consideration for the tenancy. Shri Godbole, therefore, submitted that the premises occupied by Hasan Jahagirdar were covered under the Bombay Rent Act and the first respondent landlord was required to take action under the provisions of that Act only and could not file a civil suit to evict Hasan Jahagirdar and his family members from the suit premises.

4.Undoubtedly, the suit which was filed by the respondent institution was a civil suit to take back possession from a person who was given a personal privilege of occupation. The suit was not one filed under the Bombay Rent Act. This being the position, Shri Godbole submitted that the orders passed by the courts below were lacking in competence and the courts concerned did not have jurisdiction to pass the decree. Shri Godbole relied on the judgment of the Gujarat High Court in the case of (Govindbhai Parshottamdas Patel and others v. New Shorrock Mills, Nadiad)1, reported in A.I.R. 1984 Gujarat 182(D.B.), particularly paragraphs 16 and 30 thereof to submit that while exercising ordinary civil jurisdiction, the Civil Court cannot entertain and decide the quest

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1999 Supreme(Bom) 477

IN THE HIGH COURT OF BOMBAYH.L. Gokhale, J.Chinnupashabi w/o Hasan Jahagirdar others..... Appellants.VersusFatesingh Shikshan Sanstha others..... Respondents.S.A. No. 758 of 1997, decided on 12-7-1999.Advocates appeared :G.S. Godbole, for appellants.Nitin Jamdar, for respondents.

Judicial Analysis

IN THE HIGH COURT OF BOMBAY
H.L. Gokhale, J.
Chinnupashabi w/o Hasan Jahagirdar others..... Appellants.
Versus
Fatesingh Shikshan Sanstha others..... Respondents.
S.A. No. 758 of 1997, decided on 12-7-1999.
Advocates appeared :
G.S. Godbole, for appellants.
Nitin Jamdar, for respondents.