Judgment:
S.C. Pratap, J.
1. This petition under Article 227 of the Constitution raises a question of some importance and one frequently arising in suits under the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 (for short, the Rent Act) viz.---
Can a rent collector file suit for possession?
2. The suit property is that of a public trust. Claiming to be one of its trustees as also its rent collector, the plaintiff by his own notice terminated the defendant's tenancy and demanded arrears of rent and possession. There was no reply thereto nor compliance with demand made. The plaintiff thereupon filed the instant suit for possession and arrears. The main defence was that the suit was not maintainable because the plaintiff, who claimed to be one of the trustees of the suit trust and/or its rent collector, was not entitled to sue the defendant. The trial Court rejected this defence, held the suit to be maintainable and, on merits, decreed the same. In defendant's appeal therefrom the suit was held to be not maintainable. The appeal was consequently allowed, the trial Court's decree set aside and the suit dismissed. Hence this petition by the plaintiff.
3. Now, on the merits of the suit claim there was no valid answer. Rent was payable by the month; arrears were for more than six months, the demand notice under section 12(2) of the Rent Act was not complied with; and there was no dispute regarding standard rent. All the ingredients of section 12(3)(a) of the Rent Act thus stood fulfilled. In express terms thereof, therefore,
'...the Court shall pass a decree for eviction.'
However, for more than one reason, such decree is not possible here.
4. Firstly, the plaintiff suing for possession of trust property was admittedly only one of the trustees, while in law all the trustees must join in such action. All co-trustees must in general, act in concurrence and jointly. It is a joint office that they hold. They constitute in the eyes of law but one collective trustee. One or some only of the trustees cannot sue for possession unless and except where the instrument of trust expressly so authorises and provides, which is not so here. Alone and by himself, therefore, the plaintiff was not entitled to sue the defendant for possession.
5. Contention, however, is that apart from being one of the trustees, the plaintiff was also rent collector of the trust property and was, therefore, in any event in that capacity, entitled to bring this action. This leads to the crucial question (supra) at the start of this judgment which, to reiterate, is:
Can a rent collector file suit for possession ?
Now, it may at the outset be noted that the ordinary law of landlord and tenant is the one embodied in the Transfer of Property Act. It is evident therefrom that per se a rent collector cannot be and is not a lessor nor is he one who succeeds to the interest of the lessor nor one in whom reversion of the lease can be said to vest. A rent collector basically is one who collects rent of property not his own but of some other person. Just as one otherwise not a tenant does not become so by tendering rent on behalf of some other person, likewise one otherwise not a landlord does not become so by merely accepting on behalf of some other person the tendered rent. Such mere tender of rent or its acceptance neither creates nor confers the status of tenant or landlord, as the case may be, on the person concerned. He has neither any legal nor any beneficial---not even any contingent---interest in the property of which he as a rent collector merely collects rent. He cannot be clothed with or elevated to the status of a lessor or equated therewith. The difference between the two---lessor and rent collector---is vital and fundamental. The former owns the property; not so a rent collector. The former has a transferable interest in the property not so the latter. Whereas the lessor has a heritable right, title and interest, a rent collector has nil such interest. Undoubtedly, therefore, there is a world of difference between the two persons---less or or landlord and a mere rent collector. It follows then that under the ordinary or general law of landlord and tenant, a rent collector cannot as rent collector sue for possession. He has in his favour no cause of action to sue. And a cause of action is, indeed, a sine qua non for an action in law. None can sue without cause of action or on a cause of action not his own but vested in another. Besides, a mere right to sue cannot be transferred vide section 6(e) of the Transfer of Property Act.
6. If such be the position of a rent collector under the general law, is it, one may well ask, any different under the Rent Act Indeed, no. This special law---a State legislation---does not abrogate the general law of landlord and tenant. Consistent with its aims and objects, it only controls rents and evictions and regulates only in certain limited respects the relationship of landlord and tenant. Though a special enactment and a benevolent piece of legislation, it does not eclipse the general law or nullify the basic principles governing leases of immoveable property or vesting of causes of action or right to sue thereon. Indeed, one searches in vain for any such legislative caveat or mandate in the Rent Act.
7. Reliance is, however, placed on the special definition of 'landlord' in section 5(3) of the Rent Act which, to the extent here relevant, is extracted below:
'Sec. 5. In this Act unless there is anything repugnant to the subject or context.---
x x x (3) 'landlord' means any person who is for the time being, receiving, or entitled to receive, rent in respect of any premises whether on his own account or on account, or on behalf, or for the benefit of any other person or as a trustee, guardian, or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant; and includes any person not being a tenant who from time to time derives title under a landlord and further includes in respect of his sub-tenant, a tenant who has sub-let any premises; and also includes in respect of a licensee deemed to be a tenant by section 15-A, the licensor who has given such licence.'
Yes, as per this definition the expression 'landlord' is legislatively enlarged. But that hardly advances the plaintiff's case. Pertinent and crucial are this special definition's opening words '.........unless there is anything repugnant to the subject or context.' These words clearly limit and qualify the otherwise wide ambit of the definition. In view thereof the definition would apply only if there is nothing repugnant to the subject or context. Put differently, if there is anything repugnant to the subject or context, the definition will not apply. Such is the legislative injunction. The definition, therefore, is not to apply ipso facto wherever the expression 'landlord' appears in the Rent Act. Before invoking------or declining to invoke-----the definition, regard must necessarily be had to the subject and context. So considered, this special definition has to be read not in place and substitution of the expression 'lessor' in the Transfer of Property Act but in conjunction therewith. The two have to be reconcilled. And the applicability of one or the other would depend upon the subject and context and the object underlying the particular provision under consideration.
8. Now, under the general law the right to possession accrues only in favour of a lessor (who includes one claiming under him). The Rent Act nowhere abrogates this right. Once this right accrues, the lessor becomes entitled under the general law of landlord and tenant to recover possession. But the bar comes here. It is here and at this stage that the Rent Act steps in and inter alia by sections 12 and 13 thereof places certain restrictions in the manner of recovery of possession even though right to possession has already accrued and makes such recovery of possession subject to certain conditions. However, once the restrictions are removed and the conditions fulfilled, the lessor can proceed to recover possession. Sections 12 and 13 do not extinguish a cause of action nor do these provisions create any new cause of action. These sections only regulate and control the right to recover possession already otherwise existing in the lessor under the general law. So viewed and considered, the expression 'landlord' in sections 12 and 13 means the lessor in whose favour the right to possession accrues and one who is otherwise under the general law of landlord and tenant entitled to recover possession. Having regard to the subject, context and object a rent collector stands safely excluded therefrom. Section 5(3) of the Rent Act has no application to the expression 'landlord' in sections 12 and 13 of the said Act.
9. In a Full Bench ruling of the Gujarat High Court in Nanalal Girdharlal v. Gulamnabi Jamalbhai Motorwala, : AIR1973Guj131 , the learned Chief Justice P.N. Bhagwati (as the learned Chief Justice of India then was) speaking for the Court held---
'..........the extended meaning of the 'landlord' given in the definition in section 5, sub-section (3) cannot be projected into section 12 and section 13 sub-section (1). The landlord referred to in section 12 and section 13 sub-section (1) is not a landlord as defined in section 5 sub-section (3) but a landlord who is entitled to possession of the premises on determination of the tenancy under the ordinary law of landlord and tenant............a rent collector is, therefore, not entitled to recover possession of the premises let to a tenant on the strength of the artificial definition of 'landlord' in section 5 sub-section (3).....'
(Vide page 144).
Relying on the aforesaid ruling a learned Single Judge of this Court in M/s. Mohan Sons Pvt. Ltd. v. Sonoo Jamsetji, (1976) 78 BomLR 198 held that a rent collector cannot file an eviction suit. Referring to Nanalal and Mohan Sons' rulings (supra), another learned Single Judge of this Court reiterated in Kondabai Vithalrao Khatake v. Gopalrao Wamanrao Vadgaonkar, Special Civil Application No. 3107 of 1975 decided on 26th June, 1980, that a rent collector has no right to file an eviction suit.
10. Reference was, however, made to Clause (b) of Explanation to section 13(2) of the Rent Act. To appreciate the contention based thereon, the same is extracted below:
'Explanation.---For the purposes of Clause (g) of sub-section (1)---
x x x(b) the expression 'landlord' shall not include a rent farmer or rent collector or estate-manager;'
Submission is that if the expression 'landlord' in section 13(1)(g) does not even otherwise include a rent collector, where was then the need to statutorily explain by such clause aforesaid that which is self-evident There is speaking prima facie strength in this submission. But it is well to remember that an explanation to a section cannot be read into the section itself nor can it enlarge or widen or for that matter limit the ambit of the section. An explanation is not the same as a definition clause nor can it be equated with either an exception or a proviso. An explanation only explains. And there can be more than one reason for a statutory explanation e.g. to make clear what seems to be obscure; to make explicit that which is implicit; to render patent and obvious that which is latent. In this context and in the context also of the entire law general and special relating to landlord and tenant, the explanation aforesaid must be held to have been inserted only ex abundanti cautela i.e. by way of abundant caution or to be on the safe side. Its presence in no way negates the basic and fundamental position above. (See also in this behalf page 143 Nanalal's ruling supra).
11. The emerging spectrum of law and authority is thus succinct and clear viz., a rent collector is not a 'landlord' within this meaning of that expression in sections 12 and 13 of the Rent Act and he cannot, therefore, sue for possession of premises not his own. However, a rather discordant note has been struck by a ruling of this Court in Mishrimal Chhogalal v. N.B. Patel, : (1963)65BOMLR15 , which says that even a rent collector---------because of section 5(3) of the Rent Act---------entitled (a) to give eviction notice; (b) as also to file suit for possession. This ruling has been strongly relied upon by the plaintiff. Now, the first infirmity---------and a serious one at that---------in this ruling is that it totally ignores the important words with which the definition provision section 5 commences viz.,---
'In this Act unless there is anything repugnant to the subject or context,-
This omission is vital and goes to the root. This complete overlooking of these crucial words of limitation statutorily circumscribing the enlarged or extended definition of the expression 'landlord' in section 5(3) of the Rent Act greatly impairs the efficacy of this ruling and vitally affects its validity. That part, and even if one were to keep aside for the moment this very significant lacuna from which it suffers, what is the position otherwise qua this ruling ?
12. To begin with, one may say that the question of eviction notice discussed therein has (for the reason which follows) lost its relevance. The said question, therefore, need not detain us here. This because in Dhanpal Chettiar's case, : [1980]1SCR334 , the Supreme Court has---------resolving (in its own words) the cleavage of opinion between different High Courts as also between several decisions of the Supreme Court itself---------held that for a suit or a decree under the Rent Act, notice of eviction or termination of tenancy is not even necessary. Determination of lease is a mere surplusage because even after such determination the landlord cannot obtain possession and the tenant continues to be the tenant. The question whether a rent collector can by notice terminate a lease is, therefore, no longer of any consequence in a suit under the Rent Act. Termination of tenancy is no longer a condition precedent for such suit.
13. Coming to the next and the only question with which we are presently concerned viz. validity of an ejectment suit by a rent collector, one finds, with great respect, that Mishrimal's ruling is no authority on that question. Even the facts of that case are not ad idem to the facts here. As is said, analogies are often incorrect and sometimes misleading. Indeed, the undisputed facts of that ruling show that the question whether a rent collector can file suit for possession could not have even arisen and in fact did not arise for determination in that case because the suit there was filed not by a rent collector as such but by the owner himself (albeit a co-owner) who also happened to collect rent. If such be the position, how can an observation on a question not arising for determination become an authority thereon or a ratio decidendi of the case? While ascertaining the ratio decidendi the Court cannot disregard or overlook the set of facts and circumstances and the point directly in issue and the precise question arising for determination. So considered, the observation in Mishrimal's case that a rent collector is entitled to file suit in ejectment is not its ratio decidendi but a clear obiter dictum. It is axiomatic that an obiter cannot acquire the status of a ratio. An obiter dictum is, after all, an observation by the way. It is neither the substratum of a decision nor its raison d'etre. An obiter dictum (save perhaps of the Supreme Court) has no binding force. It constitutes no precedent. A precedent is principle-oriented. A precedent or an authority in order to be recognised as such should be a judicial decisions founded on a principle. And it is this principle that constitutes its ratio decidendi. So examined, it is clear that Mishrimal's ruling is no authority on the question whether a rent collector can file suit in ejectment. The said ruling, therefore, has no application to the present case. The same is clearly distinguishable.
14. Even as it stands, Mishrimal has been dissented from by the Gujarat High Court in its Full Bench ruling in Nanalal's case referred to earlier. It has also not found favour with the respective learned Single Judges of this Court deciding Mohan Son's case and Kondabai's case (supra). It may in conclusion be mentioned that two distinguished authors R.B. Andhyarujina and J.H. Dalal have also, in their respective classics on rent law, expressed considerable reservation in accepting as correct the ruling in Mishrimal's case vide Law of Rent Control by R.B. Andhyarujina 1974 Edition, pages 512; 603-604 and Bombay Rent Act by J.H. Dalal (1969) 4th Edition, page 286.
15. In sum, therefore, and in all the circumstances, the instant suit by a rent collector was not maintainable. Its dismissal by the appellate Court was well justified. This petition challenging the said dismissal must suffer the same fate.
Hence order
This petition fails and the same is dismissed. Rule stands discharged but, in the circumstances, with no order as to costs throughout.