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IN THE HIGH COURT OF BOMBAY
(P. V. Kakade, J.)
SURENDRA M. WAGH and another - Petitioners.
vs.
MANOHAR KRISHNA KALE and another - Respondents .
Advocates Appeared
For petitioner: M. W. Padgaonkar
For respondents : N. D. Shah
It is clear that the decree could not have been passed on the ground of subletting of the suit premises and the said finding recorded by the lo wer appellate Court has to be set aside.
Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Section 13(1)(i) Suitable residence Acquisition of Temporary residence for purpose of employment Cannot be construed as acquisition or an allotment under Section 13(1)(i) of Act Occupier/ Tenant not liable for eviction. The concept of "acquisition" as contemplated by Section 13(1)(i) of the said Act, necessarily implied "as of right" and that mere temporary residence for the purpose of employment could not possibly be construed as "acquisition" or an "allotment" within the meaning of Section 13(1)(i) so as to render the tenant liable for eviction. For the purpose of interpretation of statutory provision, the Court is required to consider the legislative intention and also the consequences of a particular interpretation. If "acquired" or "allotted " were construed to include temporary accommodation for the purpose of employment, such an interpretation would cause grave injustice. For example, if a judicial or medical officer were allotted government quarters for a short term of a couple of years and during that term his landlord filed an eviction suit against him regarding his rental premises, the interpretation applied by the appellate Court would render such a judicial officer or medical officer liable for eviction under the said provisions of the Rent Act, which could not possibly have been the intention of the legislature while enacting Section 13(1)(i) of the Bombay Rent Act.
Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - "Sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party and the said right must be in lieu of payment of some compensation or rent. Parting of the legal possession means possession with the right to include and also a right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy or parting with possession."
The view of these observations, as well as the settled legal position, it is clear that the decree could not have been passed on the ground of subletting of the suit premises and the said finding recorded by the lower Appellate Court has to be set aside.
Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Section 13(1)(1) Alternative accommodation Ground of eviction Government accommodation for a fixed period only Re-occupation of tenanted premises after retirement Finding that alternate accommodation was acquired is of no relevance as regard reason for eviction. The concept of "acquisition" as contemplated by Section 13(1)(1) of the said Act, necessarily implied "as of right" and that mere temporary residence for the purpose of employment could not possibly be construed as "acquisition" or an "allotment" within the meaning of Section 13(1)(1) so as to render the tenant liable for eviction. For the purpose of interpretation of statutory provision, the Court is required to consider the legislative intention and also the consequences of a particular interpretation. If "acquired" or "allotted" were construed to include temporary accommodation for the purpose of employment, such an interpretation would cause grave injustice. For example, if a Judicial or Medical Officer were allotted Government quarters for a short term of a couple of years and during that term his landlord filed an eviction suit against him regarding his rental premises, the interpretation applied by the Appellate Court would render such a Judicial Officer or Medical Officer liable for eviction under the said provisions of the Rent Act which could not possibly have been the intention of the legislature while enacting Section 13(1)(1) of the Bombay Rent Act. In this regard, therefore, the Appellate Court has erroneously concentrated on the suitability of alternative accommodation without adequately appreciating whether temporary residence in Government accommodation amounted to acquisition or allotment within the scope of Section 13(1)(1) of the Bombay Rent Act.
2. I have heard the learned counsel for both parties. Perused the record .
3. The original plaintiff had filed the suit for possession of the suit premises i.e. Block No.2, "Anupam" situated at 777 Tilak Road, Dadar, Bombay -400 028 against the original tenant Vasant G. Thakur (defendant No.1) and his sister -in -law Mrs. Rajani Talwalkar (sister of 1st defendants wife) as the 2nd defendant. The plaintiff had claimed possession on two grounds, namely, (i) that the tenant had acquired suitable alternative accommodation and (ii) defendant No.1 had sublet the premises to defendant No.2. The plaintiffs case was based on the fact that the 1st defendant was an Under Secretary to the State Government and was given Government accommodation being Govt. Bungalow No.7, Opp. Sachivalaya and was required to shift to the said bungalow along with his family members in June, 1973. On the death of the original 1st defendant in 1990, the present petitioners were brought on record as legal heirs and representatives of original defendant No.1. The original defendant No.1 had stated in his evidence that defendant No. 1b i.e. first petitioner was staying with the tenant since 1958 continuously as a member of his family.
On pleading of both parties, the trial proceeded and the trial Court, after considering the evidence on record, decreed the suit on the ground that the 1st defendant had acquired suitable residential accommodation. However, the trial Court held that the plaintiff had failed to prove that the defendant No.1 had unlawfully sublet the premises in favour of the defendant No.2. The appeal was carried to the lower appellate Court. The lower appellate Court was of the View that the findings recorded by the trial Court on the ground of residential accommodation was required to be evicted and further it was also held that subletting was proved. In the result the appeal was dismissed and cross -objection filed by the respondent came to be allowed. Hence the present petition:
4. The learned counsel for the petitioner submitted that though there are concurrent findings of both the Courts below on the ground of acquisition of suitable accommodation, there was conflicting finding on the point of subletting. On this background, it would be proper to address both points separately.
5. On the question of subletting, it was submitted on behalf of the petitioner that pleadings and evidence on record show that defendant No. 2 who was sister -in -law of defendant No.1 was gratuitously allowed to occupy the suit premises when defendant No. 1 shifted to Government accommodation. The trial Court observed that, during the pendency of the suit, defendant No. 1 re -occupied the suit premises and defendant No.2 left the same and went to reside at Palghar. The petitioner submit that the said observation showed that defendant No.2 was temporarily allowed to occupy the suit premises to take care of the suit premises and there was no parting with possession of the premises. The original 1st defendant tenant had specifically denied in his evidence that he had sublet the suit premises since he had not recovered any rent or compensation. The trial Court had further observed that there was no evidence of consideration. Therefore, the trial Court was of the opinion that no consideration was paid to defendant No.2 by defendant No.1 towards occupation of the suit premises and, therefore, the burden was cast upon the landlord to prove consideration which was not discharged and, therefore, the landlord failed to prove the alleged unlawful subletting and the trans
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