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Gujarat High Court
Judgename :Y.B.BHATT
SHANTABEN HARILAL BRAHMBHATT - Appellant
Versus
HASMUKHLAL maneklal CHOKSHI - Respondent
Civil Revision 1046 of 1989
Decided On : 01/12/2001
The basic principle is that without determination of the tenancy no suit for eviction is maintainable. As observed hereinabove, the notice at Exh. 16 is the only notice given by the landlord to the tenant, and although the said notice does not contain any averment that it is a statutory notice under Sec. 12(2) of the Act, learned counsel for the respondent tenant has no option but to rely upon it as if it were a statutory notice under Sec. 12(2) of the Bombay Rent Act. Since, it is relied upon as the statuary notice under Sec. 12(2), and admittedly no other notice determining the tenancy has been issued or served, it is this notice at Exh. 16 which must pass all the tests before it can be said that it is a valid notice under Sec. 12(2) of the said Act.
The crucial distinction in the instant case is that Sec. 12(2) of the Bombay Rent Act does not contemplate determination of the lease in accordance with Sec. 106 of the Transfer of Property Act. It merely contemplates that the notice issued under Sec.12(2) must be served in accordance with Sec. 106 of the Transfer of Property Act. In Court opinion, therefore, this decision cannot be read so as to mean that the statutory notice under Sec. 12(2) of the Bombay Rent Act does not contemplate the termination of tenancy under any law, or even under the Rent Act. It also requires to be noted that the Transfer of Property Act is a Central Act, whereas the Bombay Rent Act is a State Act. In any concurrent field of legislation, the provisions of a State Act cannot override the provisions of a Central Act, in case of conflict or inconsistency. Thus, the termination of tenancy under the Transfer of Property Act can only be considered superfluous if such termination of tenancy is necessary under any State Act. This presupposes that the State Act contemplates termination of tenancy, otherwise there is no redundancy. As already observed hereinabove, Sec. 12(2) of the Bombay Rent Act does not contemplate a notice under Sec. 106 of the Transfer of Property Act, but only service in the manner laid down in Sec. 106. If this interpretation of the landlord in respect of this decision were to be accepted, it would mean that no termination of tenancy is necessary, neither under the Transfer of Property Act nor under the Bombay Rent Act. Such an interpretation of this decision is just not possible.
(b) Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. 57 of 1947) - Sec. 12(2) - Notice for rent more than the contractual rent - It also does not grant any particular period to the tenant to meet the demand - Notice invalid on both Courts - Eviction decree not maintainable - Set aside.
However, the landlord could only make the highest justifiable demand which would be the contractual rent. Any demand higher than the contractual rent would certainly be unjustifiable and invalid. As found on the facts of the case the demand made in the suit notice is certainly higher than the contractual rent, and it is for this reason that the suit notice in the instant case does not meet the test of its validity.
It further requires to be noted that the suit notice in the instant case at Exh. 16 on the face of it does not grant any particular period to the tenant to meet the demand. It is an open-ended demand. It is not being suggested that a minimum period of time must be given to the tenant to meet the demand. However, if it is found that the landlord has merely demanded the specified arrears of rent without specifying an outer time- limit for compliance with the demand, it could very well be urged that the tenant could meet with the demand as and when he chooses to do so or as and when it is convenient for him to meet the demand. In Court opinion, such a demand would not confer any cause of action under Sec. 12(2) of the Bombay Rent Act.
( 1 ) ). THIS is a revision under Sec. 29 (2) of the Bombay Rents, hotel and Lodging House Rates Control Act, 1947 at the instance of the petitioner-tenant original defendant, who was sued by the respondent plaintiff-landlord for a decree of eviction under the provisions of the Bombay Rent Act.
( 2 ) ). The landlord had filed a suit for eviction of the tenant on the ground that the tenant was in arrears of rent for more than six months, that he had failed to comply with the demand made in the statutory notice issued under sec. 12 (2) of the Bombay Rent Act, and that therefore, the landlord is entitled to a decree of eviction.
( 3 ) ). The defendant-tenant contested the suit and also raised a contention in the written statement as to standard rent. It was also contended by the defendant-tenant that the suit notice is illegal, and therefore, the suit is not maintainable. The trial Court, after appreciating the evidence on record, dismissed the suit of the landlord dealing with the various aspects of the matter. The only aspect which is relevant for the purpose of the present revision is that the trial Court also found that the notice is illegal, since the same does not meet with the requirements of Sec. 12 (2) of the Bombay Rent Act. The trial Court also found on the facts proved on record that the tenant was ready and willing to pay the contractual rent, which is also the standard rent.
( 4 ) ). Being aggrieved by the dismissal of the suit the landlord preferred an appeal. The lower appellate Court on a reappreciation of the evidence on record set aside the judgment of the trial Court and allowing the landlords suit, passed a decree for eviction against the tenant. It is relevant to note at this stage that the lower appellate Court has not dealt with the legality of the suit notice, specifically on the point of termination of tenancy. It has, however, discussed the validity of the suit notice in general, on other factual aspects, as to whether the tenant was in arrears of rent of more than six months, whether the tenant has raised a dispute as to standard rent within one month of the receipt of the notice, etc.
( 5 ) ). Suffice it to say that the question of validity of the suit notice has been discussed in paragraph 17 of the judgment of the lower appellate Court. In the said paragraph the lower appellate Court has sought to rely upon decision of the Supreme Court reported at AIR 1963 SC 120, and according to the lower appellate Court, "there is no need to terminate the tenancy in the case of statutory tenancy when the suit is filed for recovery of possession on the ground of arrears of rent". The lower appellate Court then proceeded to apply the principle laid down by the Supreme Court in the said decision, on the assumption that the tenant was a statutory tenant, and not a contractual tenant.
( 6 ) ). The distinction between a contractual tenant and a statutory tenant is well understood and dealt with by a plethora of judicial decisions. However, in any given case, the question as to whether a particular defendant is a contractual or a statutory tenant is a mixed question of fact and law, and in case there is any controversy, this is required to be pleaded and proved by the party who sets up the contention. In the instant case, the landlord has from the very inception of the controversy, starting from the statutory notice at Exh. 16, treated the defendant-tenant as a contractual tenant. The defendant on his part has not set up any contrary plea that he is a statutory tenant. Thus, in absence of any controversy, the Court could only have proceeded on the basis that the relationship between the parties was that of a contractual tenant. It was both unjustified and unwarranted on the part of the lower appellate Court to proceed on the assumption that the defendant-tenant was a statutory tenant.
( 7 ) ). It may be noted here that I do not propose to deal with other incidental and factual controversies in the matter
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