Shrinivas Subyya Alwa Vs. Krishnavani Vasudeo Mudliyar - Court Judgment

Bhole, J.

1. These applications arise out of the ejectment proceedings initiated by the landlady under the provisions of the Bombay Rent Act. In Special Civil Application No. 977 of 1970 the tenant-original defendant No. 1 is the petitioner and in Special Civil Application No. 1391 of 1970 the sub-tenant original defendant No. 2 is the petitioner. Respondent No. 1-landlady gave House No. 365 Rasta Peth, Poona together with the bungalow, outhouses etc. on lease in the year 1948 to the petitioner under the rent note dated November 18, 1948. The period under the said rent note was three months from October 20, 1948 onwards. Even after the expiry of the said period the petitioner continued to be in possession of the premises but the premises were used by them for running a lodging and boarding house. The petitioner under a different document sublet two rooms out of these premises to the sub-tenant, who is using the said two rooms for a godown. He is a money lender and he used those two rooms for the purpose of storing articles pledged with him. His sub-tenancy started in the year 1961. It appears that in the year 1966 the sub-tenant filed an application for the purpose of fixing the standard rent of the suit premises. Although the petitioner was to pay rent at Rs. 75 per month to the landlady, the petitioner rented the two rooms at a rent of Rs. 75 to the sub-tenant. He, therefore, complained about this rent and wanted the standard rent to be fixed. It is at this time that the landlady learnt that the petitioner had sublet the two rooms to the sub-tenant.

2. She, therefore, served a notice on the petitioner to quit on February 2, 1966 on the ground that the petitioner had unlawfully sublet the two rooms. Her other ground for the purpose of ejecting the petitioner-tenant was that he was profiteering by subletting the two rooms. The third ground on which she wanted to eject the petitioner was that the premises were not used by the petitioner for the purpose for which they were let for a continuous period of six months immediately preceding the suit.

3. The trial Court found that the landlady had established that the petitioner had unlawfully sublet a part of the suit premises to the sub-tenant. That Court, however, negatived the other two grounds on which her suit was based. The trial Court is also of the view that the tenancy was not duly terminated by a valid notice. Accordingly, therefore, her suit was dismissed. This order therefore, was challenged in the appellate Court and the learned Extra Assistant Judge, who heard the appeal, found that the tenancy was properly determined and that the petitioner had illegally sublet the two rooms to the sub-tenant. Accordingly, therefore, he decreed the suit of respondent No. 1 and directed that both the petitioner as well as the sub-tenant to put respondent No. 1 in possession of the suit premises. There are other incidental orders. This order of the learned Extra Assistant Judge is challenged here. The only point, therefore, that arises here for consideration is whether this order is according to law.

4. The learned advocate Mr. Abhyankar for the tenant-petitioner, original defendant No. 1, contends here that the learned Extra Assistant Judge has committed an error in law when he decided that the notice terminating the tenancy was valid and when he ordered the tenant to deliver possession. According to him Section 13(1)(e) of the Bombay Rent Act is not attracted to the facts and circumstances of this case because the case of the original tenant and the sub-tenant is governed only by Section 5(8)(b) ; that the word 'premises' in the Kent Act does not include a room or other accommodation in a hotel or lodging house. On the other hand, the learned advocate Mr. Vaidya for the respondent-landlady contends here that the provisions of Section 13(1)(e) are attracted to the facts and circumstances of our case and that in the circumstances of our case a notice in fact is not necessary under Section 106 of the Transfer of Property Act. 'We will, therefore, have to examine these rival contentions.

5. Taking the first contention of Mr. Abhyankar that the provisions of Section 13(1)(e) of the Bombay Rent Act are not attracted to the facts and circumstances of this case, it must at once be stated that this point was not argued at all at any time before in the Courts below. This is the first time that such an argument based on the construction of Sections 13(1)(e) and 5(8)(b) of the Rent Act is made but Mr. Abhyankar answers and says that this is a question of law and that, therefore, it can be raised even in these proceedings. I do not think this is purely a question of law. It is a mixed question of law and fact. If Mr. Abhyankar has to contend that these two rooms given to the sub-tenant by the tenant are the rooms in a hotel or a lodging house, then such evidence ought to have been collected after giving due notice to all the parties to the proceedings. Such a contention was never taken before and therefore no issue was also framed. If that is so, then since the point whether the two rooms are in a hotel or are not in a hotel was not specifically raised by the parties, I do not think Mr. Abhyankar can raise such a contention.

6. Assuming that he can raise such a contention, I think there is enough evidence on record to show that the two rooms given by the tenant to the subtenant were not the rooms in the lodging house run by the tenant. There is an application by the tenant to the Health Officer, Poona Municipal Corporation asking him to exclude the two rooms which he had given to the sub-tenant for the purpose of reducing the licence fee because they did not form part of the lodging house. Accordingly, therefore, the Health Officer appears to have also passed the order reducing the licence fee of the lodging house after excluding the two rooms from it which were given to the sub-tenant. There is another letter (exh. 78) dated September 18, 1964 wherein the sub-tenant Par-mar had written to the tenant that he had kept his cycle and other articles in those two rooms which were let out to him. Parmar is a shroff and a money lender and he was storing all the articles which were pledged with him by his customers. The point therefore that arises here for consideration, even assuming that Mr. Abhyankar can argue this point, is whether in such circumstances Section 13(1)(e) of the Rent Act is attracted or is not attracted.

7. Under Section 13(1)(e) notwithstanding anything contained in this Act but subject to the provisions of Section 13 and Section 15A a landlord shall be entitled to recover possession of any premises if the Court is satisfied, that the tenant has since the coming into operation of this Act unlawfully sublet the whole or part of the premises. Admittedly the sub-tenancy started in the year 1961, which is after the coming into operation of Bombay Act XLIX of 1959 and therefore the tenant cannot sublet. But the stress is laid by Mr. Abhyankar on the word 'premises' and says that these rooms are not 'premises' under the provisions of the Rent Act and for that purpose he relies on the definition of the word 'premises' in Section 5(8)(b). Under this definition 'premises' means any building or part of a building let or given on licence separately including the three categories specified in Clause (i), (ii) and (iii), but does not include a room or other accommodation in a hotel or lodging house. Mr. Abhyankar relies on the expression 'does not include a room or other accommodation in a hotel or lodging house' in the definition and says that these two rooms which were sublet to the sub-tenant cannot be the 'premises' mentioned in Section 13(1)(e). He relies in support of his contention on Jhamandas Ramchand v. State of Bombay (1954) 57 BomLR 938 and Associated Hotels of India v. R.N. Kapoor. : [1960]1SCR368 On the other hand, Mr. Vaidya for the landlady says that these two cases instead of supporting the case of Mr. Abhyankar support the case of the landlady because these two rooms cannot be said to be the rooms in a hotel or lodging house.

8. The ratio of the Supreme Court case is that the room sublet must be the room in a hotel in not only physical sense but in the sense that it is directly or indirectly used by the hotel. Mr. Justice S.K. Das observed that it must be a part of a hotel in physical sense and its user must be connected with the general purpose of the hotel. According to Mr. Justice Sarkar there should be some reasonable nexus between the business of the sub-tenant and that of the hotel. We have the evidence as said earlier to show that these two rooms cannot be said to be the rooms in a hotel; there is no nexus between the business of the hotel and that of the sub-tenant who is a money lender and who used the rooms for the purpose of storing the articles which were pledged with him. It may be that the two rooms in question are in the premises of the lodging house but the user of the two rooms is in no way connected with the general purpose of the hotel in whose premises they are. The ratio of the Supreme Court case in my view therefore does not help Mr. Abhyankar.

9. The observations, in Jhamandas Ramchand v. State of Bombay also in my view do not help Mr. Abhyankar. Mr. Justice Tendolkar was dealing with the word 'premises' as defined in the Bombay Land Requisition Act, 1948. Incidently he also referred to the definition of 'premises' in the Bombay Rent Act and observed as follows (p. 940) :

In this connection one may usefully look at the analogous provisions of the Bombay Rent Control Act, 1947. The definition of 'premises' given in Section 5(8)(b) of the Bombay Rent Control Act, 1947, is in all essential particulars the same a under the Bombay Land Requisition Act, 1948, except that there is included in the definition of the word 'premises' in the Rent Act 'Any furniture supplied by the landlord for use in a building or part of a building.' The distinction is not material for the purpose of construction of words 'but does not include a room or other accommodation in a hotel or lodging house'. One may well turn to the Bombay Rent Control Act, 1947, to consider what those words mean in that statute. Now, for the purpose of controlling rents in Bombay the Legislature enacted the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Act, having been published after receiving the assent of the Governor General in the Bombay Government Gazette on January 19, 1948. The scheme of the Act is that the rents of rooms or other accommodation in a hotel are controlled under the provisions of Part III of the Act, while rents of all other premises are controlled by Part II which deals with tenants of 'premises'. Part III does not include within its scope the entire hotel or lodging house; and there can be no doubt that if such a hotel or lodging house was run in premises which were taken on lease by the proprietor of the hotel or lodging house the entire hotel or lodging house would be 'premises' within the meaning of the Bombay Rent Control Act, 1947, and were never intended to be excluded from the definition of the word 'premises' in that Act So as to deprive the tenant thereof of the benefits of the Act. The words, therefore, in Section 5(8)(b) in the definition of 'premises' in the Bombay Rent Control Act, viz. 'but does not include a room or other accommodation in a hotel or lodging house' quite clearly and without question refer not to the entire hotel or lodging house but to only a room or any other accommodation in it separately. There is no reason, therefore, why identical words used in the Bombay Land Requisition Act by the Legislature which must be deemed to know the use of these words in a prior Act should not be taken to mean the same thing. I am, therefore, of opinion that an entire hotel or lodging house is not excluded from the definition of 'premises' under the Bombay Land Requisition Act, and therefore whatever may be the merits in the other contentions of the petitioner, they do not arise for determination on this petition.

10. Therefore Mr. Justice Tendolkar was also of the view that Part III of the Bombay Rent Act does not include within its scope an entire hotel or lodging house. He therefore held that the definition of the word 'premises' in the Bombay Rent Act is only with reference to a room or any other accommodation in a hotel or a lodging house. An entire hotel or lodging house is not excluded from the definition of the 'premises' under the Bombay Rent Act. In this view of the matter therefore Mr. Abhyankar's contention cannot be of any substance. The provisions of Section 13(1)(e) of the Bombay Rent Act therefore are attracted because the tenant had unlawfully sublet the rooms in question which are in a hotel and lodging house.

11. It is next contended for the petitioner-tenant that the notice given by the landlord to the tenant is not good. Under the agreement reached between the landlady and the tenant on November 18, 1948 the entire property was taken on rent with effect from October 20, 1948 for a period of three months for conducting a lodging and a boarding house. Three months expired on January 20, 1949. The landlady gave the notice on March 2, 1966, in which she had mentioned that he had illegally sublet a portion of the premises consisting of two rooms to Parmar on a rent higher than what he was paying her and that therefore he was profiteering. She had also mentioned in her notice that the month of tenancy commenced on the 1st day of every calendar month according to Gregorain calendar. She had further called upon the tenant to deliver peaceful and vacant possession of the premises to her at the end of the month of tenancy which expired after fifteen days after the receipt of the notice i.e. April 1, 1966, or such other date when the month of tenancy terminates according to him (tenant) and also to pay rental due up till then. Mr. Abhyankar says that under the agreement the tenancy starts from 10th of every month and therefore the notice that his month of tenancy expires by the end of the month and that he should vacate on April 1, 1966 is bad. It is bad because she ought to have terminated the tenancy at the end of the month of tenancy which is mentioned in the agreement. According to him the agreement expired on January 20, 1949 and therefore the tenant was holding over under Section 116 of the Transfer of Property Act. If that is so, then according to Mr. Abhyankar, this notice terminating his tenancy by the end of the month is not valid. It is contrary to the tenancy month agreed to in the agreement. This appears to be the view of the trial Court but the learned Extra Assistant Judge disagreed with that view and held that the notice given by the landlady was quite valid; that in fact in this case no notice under Section 106 of the Transfer of Property Act was necessary because the tenant was merely a statutory tenant. I am inclined to agree with that view firstly because the landlady relied on the agreement and secondly because after the efflux of time under the agreement the tenant becomes a statutory tenant and not a tenant holding over.

12. In Ganga Butt v. Kartik Chandra Das : [1961]3SCR813 the Supreme Court was considering Sections 106 and 116 of the Transfer of Property Act and also contractual tenancy and expiry of lease by efflux of time. That was a case in which the appellant was a contractual tenant from June 15, 1915 till June 15, 1947. The West Bengal Premises Bent Control (Temporary Provisions) Act, with which the Supreme Court was concerned, came into force before June 15, 1947. After the expiry of the contractual tenancy the notice was served by the landlord only for terminating the tenancy of the appellant because there was no contractual tenancy after June 15, 1947. So far as our case is concerned, there is no contractual tenancy between the landlady and the tenant. In the case before the Supreme Court the landlord had accepted the amounts paid by the appellant after June 15, 1947. We have also a case where the landlady has accepted rent after the agreement period was over. The Supreme Court has observed:

Where a contractual tenancy to which the rent control legislation applies has expired by efflux of time or by determination by notice to quit and the tenant continues in possession of the premises by virtue of Statutory protection, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy.

The Supreme Court has also referred to certain useful observations in Kai-khushroo Bezonjee v. Bad Jerhai. (1949) 51 Bom. L.R.F.C, the Supreme Court has further observed:

The High Court was in our judgment right in holding that by merely accepting rent from the appellant and by failing to take action against him, the appellant did not acquire the rights of a tenant holding over. It is true that in the notice dated October 10, 1950, the appellant is described as a 'monthly tenant,' but that is not indicative of conduct justifying an inference that a fresh contractual tenancy had come into existence. Within the meaning of the West Bengal Premises Kent Control Act, 1950, the appellant was a 'tenant' and by calling the appellant a tenant the respondents did not evince an intention to treat him as a contractual tenant. The use of the adjective 'monthly' also was not indicative of a contractual relation. The tenancy of the appellant was determined by efflux of time and subsequent occupation by him was not in pursuance of any contract express or implied, but was by virtue of the protection given by the successive statutes. This occupation did not confer any rights upon the appellant and was not required to be determined by a notice prescribed by Section 106 of the Transfer of Property Act.

13. Therefore, Mr. Abhyankar's contention that because the tenant continued to stay in the suit premises and pay the rent and because the landlady was accepting the rent, therefore the tenant was holding over under Section 116 of the Transfer of Property Act, is of no substance. There cannot also be any inference because of this conduct that there was fresh agreement between the landlady and the tenant. The subsequent occupation by the tenant therefore was in pursuance of not any fresh contract but was by virtue of the protection given to him by the Bombay Kent Act, This occupation did not confer any rights upon the tenant. If that is so, then the landlady was not required to determine by a notice under Section 106 of the Transfer of Property Act the tenancy. In that view therefore the finding of the learned Assistant Judge is quite legal and proper. That also appears to be the ratio of Bhawanji Lakhamshi v. Himatlal. (1971) 75 BomLB 404, S.C. The Supreme Court in that case concluded that there was no holding over by the tenant in such circumstances.

14. There is also no substance in the contention of Mr. Abhyankar that the notice is not valid. There is enough evidence as recorded by the learned Assistant Judge to show that after the efflux of time according to the agreement the month of tenancy was from the first of English month to the end of that month. There are a large number of counterfoils of the receipts to show that the month started from the first and ended at the end of the month. If that is so, then the month of tenancy which was shown in the notice given by the landlady on September 3, 1966 is quite valid. Apart from the fact that the tenancy month starts from the first of every English month, even if it is assumed that the month starts from 20th of English month, the notice itself gives sufficient notice to the tenant about it. The last para, of the notice (exh. 66) is as follows:

Under the circumstances I am instructed to serve you with this notice which I hereby do and call upon you to deliver vacant and peaceful possession of the premises to my client at the end of your month of tenancy which expires after 15 days after the receipt of this notice i.e. on 1-4-1966 or on such other day when the month of tenancy terminates according to you and also pay the rental dues till then,...

15. The landlady has also mentioned in the notice that he must deliver peaceful possession to her at the end of the month of tenancy according to him. Now the object of a notice under Section 106 of the Transfer of Property Act is only to allow a tenant sufficient time to vacate the premises. It is now well-settled that notices are to be liberally construed. If the tenant well understands what was the month in the notice and well understands that he was called upon to vacate only on the termination of the month of tenancy, that I think would be a sufficient notice. This Court has also taken this view before. The other Courts also have taken such a view. I do not therefore think that there is any substance in the contention of Mr. Abhyankar that the notice given by the landlady is invalid.

16. Mr. Abhyankar also contends that in fact the tenant has not sublet the two rooms to the sub-tenant Parmar. I do not think there is any substance in this contention because the two Courts below have held that the rooms were sublet to the sub-tenant Parmar in the year 1966, which is after 1959. Mr. Kankaria contends here that the sub-tenant has contended in these proceedings that his sub-tenancy was to the knowledge of the landlady. According to him therefore he is a tenant of the landlady. I do not think that there is any substance in this contention because there is a finding that his sub-tenancy was not to the knowledge of the landlady.

17. There is therefore no substance in both these petitions, Petitions are dismissed.

18. Rules in both the petitions are discharged with costs.