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PETITIONER: VORA RAHIMBHAI HAJI HASANBHAI POPAT

       Vs.

RESPONDENT: VORA SUNDERLAL MANILAL & ANR.

DATE OF JUDGMENT04/11/1985

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1986 AIR  174            1985 SCR  Supl. (3) 717  1985 SCC  (4) 551        1985 SCALE  (2)917

ACT:      Bombay Rents,  Hotel and  Lodging House Rates (Control) Act, 1947 Section 13(l)(k).      Tenant -  Not using  premises for  more than six months Liable for  eviction -  Stipulation in ’rent note’ regarding payment of rent for non use - Whether absolves liability for eviction.

HEADNOTE:      The appellant - plaintiff purchased a plot of land. The respondent-defendant accepted  the plaintiff  as owner  on a rent of Rs. 1325 per annum for a period of five years, under a registered  rent note.  It was  further stipulated therein that the  tenant was  to pay the municipal tax in respect of the rented  land to the plaintiff, that on the expiry of the period  of   five  years   the  tenant   shall  remove   the constructions thereon  at his own expense, and hand over the premises in  the condition  it was  let  out  and  that  the premises shall not be let out to anyone else.      The plaintiff  called upon  the defendant to remove the construction  erected  on  the  land,  and  the  vacate  the premises and  hand over  possession.    As    the  defendant failed, a  suit for  eviction was  filed,  on  a  number  of grounds one of which was that the premises had not been used by the  defendant for a period of more than six months prior to the  date of  the suit  without  reasonable  caused  and, therefore the defendant was liable to eviction under section 13(1) (k) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947.      The trial  court dismissed  the suit  holding that  the notice of  termination was  not valid and that the plaintiff had failed  to prove  bona fide  requirement,   and that  as defendant No.  2 was  admitted as  a sub-tenant  many  years before the  execution of the rent note by the plaintiff, the plaintiff was  not entitled  to recover  possession  on  the ground of illegal sub-letting.      The plaintiff  took up  the matter  in appeal  and  the Assistant Judge allowed  the appeal partly, holding that the notice of  termination was  a valid  one, that the plaintiff did not 718 require the  suit premises  reasonably  and  bona  fide  for

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occupation for  himself and  that the  suit premises had not been w  ed by the defendant continuously for a period of six months immediately  preceding the  date of  suit without any reasonable cause.      The respondent-tenant  took up  the matter  in revision before the High Court, which reversed the finding of the Ist appellate court  on the  question of  user by the defendant, holding that  the construction of the super-structure on the land itself  was a user and, therefore, the courts below had committed a  manifest error  in holding  that  the  land  in question had not been w ed for more than six months prior to the institution of the suit.      In the appeal to this Court, it was contended on behalf of the  appellant-landlord that  the tenant was liable to be evicted under s.13(1)(k) of the Act inasmuch as the premises have not  been used  for the purpose for which they were let out for  a  continuous  period  of  six  months  immediately preceding the  date of  suit without  reasonable cause,  and that the  tenant would be liable for eviction even if he did not use the premises and kept it locked.      On behalf  of the  respondent-tenant it  was contended, that the  purpose of  letting cannot be assumed, and that it has got  to be  alleged and  proved. The  landlord-plaintiff could seek  eviction under  8. 13()(k) of the Act only when he proves  the purpose  for which the premises have been let out and  that the same has not been w ed for the purpose for which it  was let  out. It was further contended that if the landlord had  specifically taken the plea of non-user of the premises for  the purpose for which it was let out, he would have been  able to  prove the reasonable caw e for not doing 80 but  in the  absence of  such a plea the defendant-tenant had been  seriously prejudiced,  and that  sec. 12 and 13 of the Act  are the  only two sections which give protection to the tenant and unless the conditions in the two sections are satisfied the tenant cannot be evicted .      Allowing the Appeal, ^      HELD :  1. The  judgment of the High Court is set aside and the  plaintiff’s suit stands decreed. The High Court has gone wrong  in  holding  that  the  construction  of  super- structure on  the land  in dispute  was itself  a user.  The super-structures had already been built before the defendant took the land from the plaintiff under rent note, Ex. 61. As regards sub-tenancy, it has 719 been found  by the  Courts below  to have  been created long before A  the Bombay  Rents, Hotel  and Lodging  House Rates (Control) Act,  1947 came into force. There was therefore no question of the eviction of the subtenant as the sub-tenancy was not illegal. [726 B; 725 G-726 A]      2. The  scheme of  the Bombay  Rents, Hotel and Lodging House Rates  (Control) Act,  1947 as  it  appears  from  the preamble is  to consolidate  the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging  houses and  of evictions. The control had to be brought in  because of  the scarcity of accommodation in the cities. If  this was  the preamble  of the  Act it cannot be accepted that  a tenant may take a premises on rent and keep it locked for years together without using it in the absence of a  reasonable cause.  The intendment  of the  legislature could be  carried out only when the premises is used and not kept vacant for years together. [724 H-725 B]      3. Neither  the purpose  of letting is indicated in the rent note  (Ex.61) nor  has it  been proved  by evidence.  A perusal of  the  rent  note  indicates  that,  there  is  no

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specific mention  of the  purpose for which the premises was rented out  to the  defendant. The  defendant had  taken the premises from  the predecessor  in interest of the plaintiff and  had  made  certain  super-structures  on  the  land  in question. There  is, however, material on the record to show that the  premises had been let out to the defendant for the purpose of  business. Indeed, the premises had been taken in the name  of  a  firm  carrying  on  tobacco  business.  The defendant admitted in his-deposition that he had shifted his business to  Baroda. He had not used any portion of the land for any  purpose for  the last  three or  four years and the plaintiff  has   produced  necessary   registers  from   the Municipality and  the Central  Excise Department to show the same. In the reply given by the counsel for the defendant to the notice,  of termination  given by  the plaintiff,  it is admitted that  the property  was taken on rent by the tenant in his  capacity as  a manager  and owner  of the registered firm Vora  Manilal Chaganlal  & Co., carrying in business in Nadiad. In  this situation  it cannot  be  argued  that  the plaintiff has  not been  able to  establish the  purpose for which the  premises had  been let out to the defendant. [723 E-H]      4. The stipulation in the rent deed to the effect that; ’even if  we use  or do  not use  or keep  the said property closed we  the tenants  are bound  to pay the rent as stated above’ only  talks of  the liability of the defendant to pay the rent  even if  he does not use the property and keeps it closed. This, however, does not 720 mean that the defendant can keep the premises closed without using lt  for years  together before  the suit.  This  could never have  been the  intention of the law makers especially in these  days of scarcity of accommodation in towns. If the stipulation made  in the rent note is construed to mean that the defendant  tenant could keep the premises closed without incurring the  liability of  eviction, as  it sought  to  be contended for  the respondent,  it would  amount to allowing the parties contracting out of law. [724 D-E]      In  the-  instant  case,  on  the  own-showing  of  the defendant-respondent, the  premises had  been taken  for the purpose of  tobacco business  and  that  business  had  been stopped for  a period of 4 to 5 years before the institution of the  suit as  the business had expanded and the defendant had shifted  to Baroda. Therefore, it can be safely presumed that the land is not being used for the purpose for which it has been proved to have been let out. [725 F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No.  56 of 1971.      From the  Judgment and  Order dated  8.12.1969  of  the Gujarat High Court in C.R.A. No. 654 of 1967.      Harish Salve,  D.N. Misra  and Ms.  A.K. Verma  for the Appellant.      S.H. Sheth and Ms. Kailash Mehta for Respondent No. 1.      M.V. Goswami  and Ms.  Vandana  Sharma  for  Respondent No.2.      The Judgment of the Court was delivered by      MISRA, J.  The  present  appeal  by  special  leave  is directed against  the Judgment  of the High Court of Gujarat dated 10th February 1970.      The dispute between the parties concerns a plot of land admeasuring 100  ft. x 164 ft. (i.e., approximately 1822 sq.

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yards) out of survey No. 18 in the city of Nadiad. This plot was owned  by Deviprasad  Motilal Jaiswal and Vora Sunderlal Manilal was  occupying it  as a  tenant. He  had  also  made certain constructions  on the  disputed plot.  The appellant purchased the  said plot  under a registered sale deed dated 18th April,  1955. The  defendant accepted the  plaintiff as owner on a rent of Rs. 1325 721 per  annum  with  effect  from  18th  April,  1955  under  a registered rent  note dated  9th June,  1955 for a period of five years.  The   rent note provided (1) that the defendant shall pay  to the  plaintiff the  amount of municipal tax at the rate  of Rs.  40 per  annum in  respect  of  the  rented premises, (2) that the said premises shall not be let out to anyone else,  and (3)  that on  the expiry  of the period of five years  the defendant  shall remove the constructions at his own  expense and hand over to the plaintiff the premises in the condition in which it was let out.      It appears that the defendant No. 1 sublet a portion of the  said   premises  to   defendant  No.   2,  Pa  Babubhai Gordhanbhai contrary  to the  terms of  the rent  note.  The period of  lease contemplated  in the  rent note  expired on 17th April,  1960 and the defendant continued as a statutory tenant on a monthly rent under the Rent Control Act. The two sons of  the plaintiff  Suleman and  Ganibhai are dealing in empty tins  on a  large scale  and a  spacious premises  was required for  the said  business. The  plaintiff called upon the defendant to remove the construction erected on the land in dispute  and to  vacate the  premises  and  handover  the possession.  Although  the  plaintiff  filed  the  suit  for eviction on  a number  of grounds,  we are  concerned in the present appeal  only with  the plea  that  the  premises  in question had  not been used by the defendant for a period of more than  six months  prior to the date of the suit without reasonable cause  I and, therefore, the defendant was liable to eviction  under s.13(1)(k) of the Bombay Rents, Hotel and Lodging  House   Rates  (Control)   Act,  1947,  hereinafter referred to  as the  Act. The trial court dismissed the suit holding that  the notice  of termination  was not  valid and that the  plaintiff  had  failed  to  prove  the  bona  fide requirement, and  that the  defendant No.2 was admitted as a sub-tenant many  years before the execution of the rent note by the  plaintiff and,  therefore,  the  plaintiff  was  not entitled to  recover possession on the ground of illegal sub letting. The  plaintiff feeling  aggrieved by  the  judgment took up the matter in appeal and the Assistant Judge allowed the appeal partly holding that the notice of termination was a valid  one, that  the plaintiff  did not  require the suit premises reasonably and bonafide for occupation for himself, and that  the  suit  premises  had  not  been  used  by  the defendant  continuously   for  a   period  of   six   months immediately  preceding   the  date  of  suit  with  out  any reasonable cause.  The  defendant  took  up  the  matter  in revision before  the High  Court and the High Court reversed the finding  of the  1st appellate  court on the question of user  by   the  defendant.   It  took   the  view  that  the construction of the super- 722 structure on  the land itself was a user and, therefore, the courts below  and committed a manifest error in holding that the land  in question  had not  been used  for more than six months prior  to the  institution of the suit. The plaintiff has now come to this Court by a special leave.      Mr.  Harish,   N.  Salve   counsel  for  the  appellant

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strenuously urged  that the  tenant was liable to be evicted under s.13(1)(k)  of the  Act inasmuch  as the premises have not been  used for  the purpose  for which they were let out for a  continuous period of six months immediately preceding the date of suit without reasonable cause. He also contended that the  defendant would  be liable  to eviction even if he did not use the premises and kept it locked.      Mr. S.H.  Sheth for  the defendant-respondent  in reply has contended that the purpose of letting cannot be assumed. It has  got to  be alleged  and proved.  The plaintiff could seek eviction  under s.13(1)(k)  of the  Act  only  when  he proves the  purpose for which the premises have been let out and that  the same  has not  been used  for the  purpose for which it  was let  out. In  the  instant  case  neither  the purpose of  letting is indicated in the rent note nor has it been proved  by evidence.  Therefore, the  liability of  the defendant under s.13(1)(k) does not arise.      The material  portion of  the rent note, Exbt.61, is as follows:           ...The  property   of  the  said  measurement  and           situate within  the said four boundaries is rented           by us  from you  and you have rented it to us. The           rent accrues from the date 18.4.1955.           It is  agreed that  the rent  fixed  is  Rs.  1325           (Rupees thirteen  hundred  and  twenty  five)  per           year. We shall pay the said rent to you every year           in full. If default is made in paying the rent you           may get  the said  property vacated  by us and our           objection of  any kind  shall not  be  tenable  in           respect of  the same. The period fixed is for five           years. It  expires on the date 17.4.1960. We shall           handover possession of the said property to you on           the said  date. We  shall  not  Rub-let  the  said           property to any one else.           The construction work which is made on the said 723           property belongs absolutely to us, the tenant. And           when we  shall vacate  the said  property we shall           remove the  said construction  work at the cost of           us,  the   tenant.  We   agree  to   handover  the           possession of  the property  to the  owner in  the           same condition in which the property is rented.           Even if  we use  or do  not use  or keep  the said           property closed  we, the  tenant, are bound to pay           the rent  as stated  above till  the period fixed.           But if  we the  tenant, want  to vacate  the  said           property within the period fixed we can vacate the           same by  giving you notice before two months or if           we want  the said  property on rent even after the           expiry of  the period  fixed you are bound to give           the same  on rent  and the  rent is  to  be  fixed           according to the circumstances at that time and we           shall pass  and give  a new  rent note to you. We,           the tenant, are to pay Rs. 40 (Rupees forty) every           year to  you,  the  owner  for  municipal  tax  in           respect of  the said  property in  addition to the           amount of rent. If the municipal tax comes to more           than forty  rupees, you  the owner  are to pay the           excess amount of tax.      A perusal  of the  rent note indicates that there is no specific mention  of the  purpose for which the premises was rented out  to the defendant. It has already been noted that the defendant had taken the premises from the predecessor in interest of  the present  plaintiff  and  had  made  certain superstructures on  the land  in question. There is however,

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material on  the record  to show  that the premises had been let out to the defendant for the purpose of business. Indeed the premises  had been  taken in the name of a firm carrying on  tobacco   business.  The   defendant  admitted   in  his deposition that  he had  shifted his  business to Baroda. He had not used any portion of the land for any purpose for the last three  or four  years and  the plaintiff  has  produced necessary registers  from the  Municipality and  the Central Excise Department  to show  the same.  In addition,  in  the reply given  by the  counsel for the defendant to the notice of  termination   given  by  the  plaintiff,  he  definitely admitted that  the property  was taken on rent by the tenant in his  capacity as  a manager  and owner  of the  firm Vora Manilal Chhaganlal  & Co.  and that  his client, the tenant, was a  registered firm  carrying on  business in  . In  this situation it  cannot be  argued  with  any  force  that  the plaintiff has  not been  able to  establish the  purpose for which the premises had been let out to the defendant. 724      As s  second limb  to the argument Shri Sheth contended that if  the plaintiff  had specifically  taken the  plea of non-user of  the premises  for the  purpose for which it was let out  he would  have been  able to  prove the  reasonable cause for not doing 80 but in the absence of such a plea the defendant has been seriously prejudiced.      This contention  of the  counsel  also cannot easily be accepted when  on the  own admission  of the  defendant  and defendant’s counsel  the premises  had  been  used  for  the purpose of  carrying to  tobacco  business.  Therefore,  the defendant fully  knew the purpose for which he had taken the Promises as a tenant. The stand of the defendant all through appears to  be that even if he does not use the premises and have been  paying rent  he does  not incur  the liability of eviction and  for this he banks upon the recital in the rent note that  even if  we use  or do  not use  or keep the said property closed  we the tenants are bound to pay the rent as stated above  . This stipulation in the rent deed only talks of the liability of the defendant to pay the rent even if he does not  use  the  property  and  keeps  it  closet.  This, however, does  not mean  that the  defendant  can  keep  the premises closed  without using  it for years together before the suit.  This could  never have  been the intention of the law  makers   especially  in   these  days  of  scarcity  of accommodation in towns. Even if the stipulation made  in the rent note is construed to mean that the defendant  tenant could keep the premises closed without using it  for years together without incurring the liability of  eviction,   as  is   sought  to  be  contended  for  the respondent,  it   would  amount   to  allowing  the  parties contracting out of law.      This leads us to the second part of the submission made by  the   counsel  for  the  appellant  that  on  a  correct interpretation of s.13(1)(k) of the Act even non-user of the premises for any purpose whatsoever for years together would make him  liable for  eviction. The  contention on behalf of the respondent,  however, is  that we  cannot add  words  to s.13(1)(k) and  the intention  of the  legislature is  clear from  the  words  used  therein,  and  all  that  s.13(1)(k) contemplates is  that the premises had not been used for the purpose for  which they w re let out for a continuous period of six months immediately preceding the date of suit without reasonable cause.  It toes not say that mere non-user of the premises will make him liable for eviction.      The scheme  of the  Act as it appears from the preamble is to  consolidate the  law relating to the control of rents

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and repairs 725 of certain  premises, of  rates of hotels and lodging houses and of   evictions. m e control had to be brought in because of the  scarcity of accommodation in the cities. If this was the preamble  of the Act it cannot be accepted that a tenant may take  a premises  on rent  and keep  it locked for years together without  using it  in the absence of any reasonable cause. The  intendment of  the legislature  could be carried out only  when the  premises is used and not kept vacant for years together.  Shri Sheth,  however, sought to support the finding of  the  High  Court  that  the  construction  of  a superstructure is  also a  user  of  the  property  and  the defendant  had   raised  superstructures   on  the  land  in question. This  argument must  be repelled.  It appears from the rent  note, Exbt.  61, that  the defendant had taken the premises from  the present  plaintiff when the defendant had already built the superstructures when he had taken the land on rent  from the  predecessor in interest of the plaintiff- appellant. Therefore,  there was  no question  of using  the land by  raising constructions  by the  defendant after  the execution of the rent note, Exbt.61.      Shri Sheth  also referred to 8. 12 and 8. 13 of the Act and contended  that these  are the  only two  sections which give protection  to the  tenant and unless the conditions in the two sections are satisfied the tenant cannot be evicted. What was  let out  by the  plaintiff to the defendant-tenant was the  land and  not the superstructures and so Shri Sheth argues that  the non-user  of the  superstructures does  not amount to  non-user of  the land.  On the own showing or the defendant-respondent he  had shifted  his business to Baroda and, Therefore,  he is  not using  the land  for any purpose whatsoever. Broadly  speaking a  premises  can  be  let  out either for  residential or  for  business  purpose.  In  the instant case  on the own showing of the defendant-respondent it had  been taken  for the  purpose of tobacco business and that business  had been stopped for a period of 4 to 5 years before the  institution of  the suit  as  the  business  had expanded and the defendant had shifted to Baroda. Therefore, it can  be safely  presumed that  the land is not being used for the  purpose for  which it  has been proved to have been let out.      The High Court in our opinion has gone wrong in holding that the  construction of  super-structures on  the land  in dispute was  itself a  user. As indicated earlier the super- structures had  already been built before the defendant took the land  from  the  plaintiff  under  rent  note,  Exbt.61. Therefore, there  is no  question of making any construction on the land in question by the defendant after the execution of the rent note. 726      As regards  the sub-tenancy  it has  been found  by the courts below that it had been created long before the Act in question came  into  force  and,  therefore,  there  was  no question of  the eviction  of the  sub-tenant  as  the  sub- tenancy was not illegal.      For the  foregoing discussion  the appeal must succeed. It is accordingly allowed and the judgment of the High Court is set  aside and  the plaintiff’s  suit stands decreed. The parties shall however, bear their own costs. N.V.K.    Appeal allowed 727