| SooperKanoon Citation | sooperkanoon.com/360617 |
| Subject | Trusts and Societies;Service |
| Court | Mumbai High Court |
| Decided On | Jul-17-2009 |
| Case Number | Writ Petition No. 4027 of 2008 |
| Judge | C.L. Pangarkar, J. |
| Reported in | 2009(111)BomLR3715 |
| Acts | Maharashtra Rent Act - Sections 16, 22, 22(1), 25, 45 and 55 |
| Appellant | Smt. Janabai Govindrao Korche and ;Laxman S/o Govindrao Korche |
| Respondent | Women's Education Society, A public trust Regd. Under Bombay Public Trust Act Society Registered und |
| Appellant Advocate | D.B. Walthare, Adv. |
| Respondent Advocate | S.R. Deshpande, Adv. |
| Disposition | Petition dismissed |
Excerpt:
tenancy - illegal occupation - eviction - concurrent findings by the courts below - interference - section 22 of maharashtra rent control act, 1999 - original defendants who were in service of the plaintiffs were provided tenements which they did not vacate on their retirement - suit filed for illegal occupation of premises by defendants decreed by the trial court and was confirmed by the appellate court - hence, the present petition - held, there are concurrent findings that the plaintiff is the landlord and defendants are the tenants - defendants had failed to prove their title - trial court has clearly observed that defendants did not produce any evidence whatsoever to prove that the land belonged to the government and that they have constructed the house - in the circumstances, finding that defendants are not the owners has assumed finality - petition dismissedtenancy - eviction - recovery of possession in case of tenancy created during service period - section 22 of maharashtra rent control act, 1999 - petitioners contented that civil court had no jurisdiction to entertain suit by virtue of provisions of section 22 of the maharashtra rent act - held, section 22 would apply to those tenancies which were created by the employer after coming into force of the maharashtra rent act - said section cannot apply to tenancy which is created prior to coming into force of the act - in the instant case, the tenancy was created in 1948 - further, for application of section 22 there has to be an agreement between the employer and the employee, without that the competent authority does not get jurisdiction - in this case, there is no such agreement - hence, competent authority had no jurisdiction to entertain an application for eviction of the defendants - petition dismissedtenancy - eviction - non registration of lease agreement - legality - section 55 of the maharashtra rent control act, 1999 - petitioners contented that lease agreement is required to be compulsorily registered by virtue of provisions of section 55 of the act and since the agreement is not registered the tenancy is void - held, if the tenancy is created after coming into force of the act, it will require registration - section does not say that tenancy shall become void - non-registration may at the most invite penalty and lease cannot become void - hence, argument has to be rejectedtenancy - eviction - right of landlord to recover possession - section 16 of the maharashtra rent control act, 1999 - whether a landlord can recover possession on the cessation of tenancy - held, landlord/plaintiff has established title by filing documents of ownership and even established that it is a landlord by showing payment of rent to it by defendants - thus, plaintiff proves defendants were the tenants - further, tenancy has come to an end due to the death of the original defendants - hence, by virtue of provisions of section 16(f) the landlord has become entitled to recover possession - on the other hand, defendants have failed to establish any kind of right, title or interest in them - no perversity in the appreciation of the evidence - petition dismissed - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - defendants had failed to prove their title. the learned judge of the trial court has clearly observed that defendants did not produce any evidence whatsoever to prove that the land belonged to the government and that they have constructed the house. these documents clearly go to establish title of the plaintiff over the suit property. (2) after th creation of the service tenancy under sub-section (1), if the tenant creases to be in the service or employment of the said landlord either by retirement, resignation, termination of service, death or for any other reason, the tenant or any other person residing with him or claiming under him fails to vacate such premises or any part thereof immediately, then, notwithstanding anything contained in this act or in any other law for the time being in force, the competent authority shall, if it is satisfied, on an application made to it in this behalf by such landlord within thirty days, make an order that the tenant or any such person as aforesaid shall place the landlord in vacant possession of such premises or part thereof; and on their refusal or failure to do so the competent authority may proceed to take action under section 45: provided that, the competent authority may entertain an application under this sub-section after the expiry of the said period, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time: 12. section 16(f) of the maharashtra rent act reads as follows 16. when landlord may recover possession (1) notwithstanding anything contained in this act but subject to the provisions of section 25, a landlord shall be entitled to recover possession of any premises if the court is satisfied (f) that the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and that the tenant has ceased, whether before or after commencement of this act, to be in such service or employment. on the other hand, defendants have failed to establish any kind of right, title or interest in them.c.l. pangarkar, j.1. these three writ petitions can be decided by a common judgment since facts in all the writ petitions are exactly identical.2. by these writ petitions, petitioners/defendants in these suits challenge the judgment and decrees passed by the district judge, whereby he confirmed the judgment and decrees passed by the civil judge.3. the facts giving rise to these writ petitions are as follows the respondent/plaintiff is a public trust. it runs a school known as abhyankar kanya shala. one govindrao korche, deoji kathane and panjabrao bhande - the original defendants were in service as a peon cum watchman in the said school. the respondent/plaintiff had constructed five tenements in the premises of the abhyankar kanya school and had provided tenements to the defendants as employees of the plaintiff's trust. in the year 1974 the plaintiff trust passed a resolution and decided to deduct occupation charges from the employees who were allotted the accommodation. govindrao korche, deoji kathane and panjabrao bhande - the defendants were allotted quarters as an employees of the plaintiff. a sum of rs. 60/per month was deducted from their salary towards the rent. until their retirement such amount was being deducted from their salary. said govindrao korce retired in the year 1979 and deoji kathane retired in the year 1994 and panjabrao bhande retired in the year 1989. defendants in the suit were time and again asked to vacate the premises but they did not. defendants in the suits are heirs of said govindrao, deoji and panjabrao and are illegally occupying the premises. the plaintiff asked the defendants to vacate the premises but they did not. hence, a suits came to be instituted.4. the defendants resisted the suit. their main contention was that the land belonged to the government and they at their costs had made construction on the said land. the defendants denied the ownership of the plaintiff over the suit premises.5. on these pleadings of parties, the learned judge of the trial court framed issues and learned judge found that govindrao, deoji and panjabrao were the tenants occupying the premises belonging to the plaintiff and plaintiff was entitled to possession. the appellate court concurred with the findings and dismissed the appeal preferred by the defendants. the defendants in all these suits therefore have preferred these writ petitions.6. i have heard the learned counsel for the petitioners and the respondents.7. plaintiff/respondent is undisputedly a public trust and runs a school. the defendants/petitioners in the petitions are the heirs of one govindrao korche, panjabrao bhande and deoji kathane. it is the contention of the plaintiff that they being in service of school were given a house for their residence as a tenants. it is also alleged that they were paying rent and even after retirement they did not vacate. they have died and their heirs are not vacating the suit premises. the defendants had raised a plea that the land belonged to the government and they had made encroachment over it and had constructed their own house. they thus set up title in themselves. in fact, there are concurrent findings that the plaintiff is the landlord and defendants are the tenants. defendants had failed to prove their title. the learned judge of the trial court has clearly observed that defendants did not produce any evidence whatsoever to prove that the land belonged to the government and that they have constructed the house. that point does not seem to have been urged before the first appellate court. in the circumstances, that finding that defendants are not the owners has assumed finality.8. courts below have considered the documents on record and have held that the plaintiff is the owner of the house. the judgment of the appellate court shows that plaintiff had filed assessment list, property card, site plan and record of rights and deed of grant in order to establish the ownership. the plaintiff had also filed the copy of the salary register showing deduction of the rent. these documents clearly go to establish title of the plaintiff over the suit property. the salary register also goes to show that rent was being deducted. the learned judges seem to have appreciated the evidence in that regard properly and no perversity is brought to my notice.9. mr. walthare, learned counsel for the petitioners submits that civil court had no jurisdiction to entertain suit by virtue of provisions of section 22 of the maharashtra rent act. he submits that suit ought to have been filed before the competent authority. section 22 reads as follows 22. recovery of possession in case of tenancy created during service period.(1) where any landlord intends to let any premises or any part thereof belonging to him, to his employee, such landlord and the employee may enter into an agreement in writing to create a service tenancy in respect of the said premises or any part thereof; and, notwithstanding anything contained in this act, the tenancy so created shall remain in force during the period of service or employment of the tenant with the landlord.(2) after th creation of the service tenancy under sub-section (1), if the tenant creases to be in the service or employment of the said landlord either by retirement, resignation, termination of service, death or for any other reason, the tenant or any other person residing with him or claiming under him fails to vacate such premises or any part thereof immediately, then, notwithstanding anything contained in this act or in any other law for the time being in force, the competent authority shall, if it is satisfied, on an application made to it in this behalf by such landlord within thirty days, make an order that the tenant or any such person as aforesaid shall place the landlord in vacant possession of such premises or part thereof; and on their refusal or failure to do so the competent authority may proceed to take action under section 45:provided that, the competent authority may entertain an application under this sub-section after the expiry of the said period, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time:provided further that, where the tenant is a workman or an employee whose services are terminated and a dispute in respect of such termination is pending before a tribunal, court or any other competent authority, the order for a eviction shall not be passed until such tribunal, court or authority, under the relevant law, finally upholds the order of such termination.explanation - for the purposes of this section, the expression 'landlord' shall not include, in respect o subtenant, a tenant who has sublet any premises, or in respect of a deemed tenant, a tenant at whose instance the deemed tenant has come in occupation of any premises.10. it is clear from the section that it is not retrospective. section 22 would apply to those tenancies which were created by the employer after coming into force of the maharashtra rent act. the said section cannot apply to tenancy which is created prior to coming into force of the act. in the instant case, the tenancy was created in 1948. further, for application of section 22 there has to be an agreement between the employer and the employee, without that the competent authority does not get jurisdiction. in this case, there is no such agreement. in the circumstances, competent authority had no jurisdiction to entertain an application for eviction of the defendants.11. the learned counsel then submits that the agreement is required to be compulsorily registered by virtue of provisions of section 55 of the act. he contends that since the agreement is not registered the tenancy is void. the argument has no force. if the tenancy is created after coming into force of the act, it will require registration. the section does not say that tenancy shall become void. non registration may at the most invite penalty and lease cannot become void.12. section 16(f) of the maharashtra rent act reads as follows 16. when landlord may recover possession (1) notwithstanding anything contained in this act but subject to the provisions of section 25, a landlord shall be entitled to recover possession of any premises if the court is satisfied (f) that the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and that the tenant has ceased, whether before or after commencement of this act, to be in such service or employment.13. we have seen that the landlord/plaintiff has established title by filing documents of ownership. it has even established that it is a landlord because it has filed the documents showing payment of rent to it by govindrao, panjabrao and deoji. thus, not only the plaintiff proves that it is landlord but it even proves its ownership of the property and govindrao, panjabrao and deoji were the tenants. it is not in fact in dispute that govindrao, panjabrao and deoji were in employment of the plaintiff. they died and the tenancy has come to an end. by virtue of provisions of section 16(f) the landlord has become entitled to recover possession. on the other hand, defendants have failed to establish any kind of right, title or interest in them. in the result, i do not see any perversity in the appreciation of the evidence. there is no substance in the writ petitions. the same are dismissed with costs.
Judgment:C.L. Pangarkar, J.
1. These three writ petitions can be decided by a common judgment since facts in all the writ petitions are exactly identical.
2. By these writ petitions, petitioners/defendants in these suits challenge the judgment and decrees passed by the District Judge, whereby he confirmed the judgment and decrees passed by the Civil Judge.
3. The facts giving rise to these writ petitions are as follows The respondent/plaintiff is a Public Trust. It runs a school known as Abhyankar Kanya Shala. One Govindrao Korche, Deoji Kathane and Panjabrao Bhande - the original defendants were in service as a peon cum watchman in the said school. The respondent/plaintiff had constructed five tenements in the premises of the Abhyankar Kanya School and had provided tenements to the defendants as employees of the plaintiff's trust. In the year 1974 the plaintiff trust passed a Resolution and decided to deduct occupation charges from the employees who were allotted the accommodation. Govindrao Korche, Deoji Kathane and Panjabrao Bhande - the defendants were allotted quarters as an employees of the plaintiff. A sum of Rs. 60/per month was deducted from their salary towards the rent. Until their retirement such amount was being deducted from their salary. Said Govindrao Korce retired in the year 1979 and Deoji Kathane retired in the year 1994 and Panjabrao Bhande retired in the year 1989. Defendants in the suit were time and again asked to vacate the premises but they did not. Defendants in the suits are heirs of said Govindrao, Deoji and Panjabrao and are illegally occupying the premises. The plaintiff asked the defendants to vacate the premises but they did not. Hence, a suits came to be instituted.
4. The defendants resisted the suit. Their main contention was that the land belonged to the Government and they at their costs had made construction on the said land. The defendants denied the ownership of the plaintiff over the suit premises.
5. On these pleadings of parties, the learned judge of the trial court framed issues and learned judge found that Govindrao, Deoji and Panjabrao were the tenants occupying the premises belonging to the plaintiff and plaintiff was entitled to possession. The appellate court concurred with the findings and dismissed the appeal preferred by the defendants. The defendants in all these suits therefore have preferred these writ petitions.
6. I have heard the learned Counsel for the petitioners and the respondents.
7. Plaintiff/respondent is undisputedly a public trust and runs a school. The defendants/petitioners in the petitions are the heirs of one Govindrao Korche, Panjabrao Bhande and Deoji Kathane. It is the contention of the plaintiff that they being in service of school were given a house for their residence as a tenants. It is also alleged that they were paying rent and even after retirement they did not vacate. They have died and their heirs are not vacating the suit premises. The defendants had raised a plea that the land belonged to the Government and they had made encroachment over it and had constructed their own house. They thus set up title in themselves. In fact, there are concurrent findings that the plaintiff is the landlord and defendants are the tenants. Defendants had failed to prove their title. The learned judge of the trial court has clearly observed that defendants did not produce any evidence whatsoever to prove that the land belonged to the Government and that they have constructed the house. That point does not seem to have been urged before the first appellate court. In the circumstances, that finding that defendants are not the owners has assumed finality.
8. Courts below have considered the documents on record and have held that the plaintiff is the owner of the house. The judgment of the appellate court shows that plaintiff had filed assessment list, property card, site plan and record of rights and deed of grant in order to establish the ownership. The plaintiff had also filed the copy of the salary register showing deduction of the rent. These documents clearly go to establish title of the plaintiff over the suit property. The salary register also goes to show that rent was being deducted. The learned judges seem to have appreciated the evidence in that regard properly and no perversity is brought to my notice.
9. Mr. Walthare, learned Counsel for the petitioners submits that civil court had no jurisdiction to entertain suit by virtue of provisions of Section 22 of the Maharashtra Rent Act. He submits that suit ought to have been filed before the competent authority. Section 22 reads as follows
22. Recovery of possession in case of tenancy created during service period.
(1) Where any landlord intends to let any premises or any part thereof belonging to him, to his employee, such landlord and the employee may enter into an agreement in writing to create a service tenancy in respect of the said premises or any part thereof; and, notwithstanding anything contained in this Act, the tenancy so created shall remain in force during the period of service or employment of the tenant with the landlord.
(2) After th creation of the service tenancy under Sub-section (1), if the tenant creases to be in the service or employment of the said landlord either by retirement, resignation, termination of service, death or for any other reason, the tenant or any other person residing with him or claiming under him fails to vacate such premises or any part thereof immediately, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the Competent Authority shall, if it is satisfied, on an application made to it in this behalf by such landlord within thirty days, make an order that the tenant or any such person as aforesaid shall place the landlord in vacant possession of such premises or part thereof; and on their refusal or failure to do so the Competent Authority may proceed to take action under Section 45:
Provided that, the Competent Authority may entertain an application under this Sub-section after the expiry of the said period, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time:
Provided further that, where the tenant is a workman or an employee whose services are terminated and a dispute in respect of such termination is pending before a tribunal, court or any other competent authority, the order for a eviction shall not be passed until such tribunal, court or authority, under the relevant law, finally upholds the order of such termination.
Explanation - For the purposes of this section, the expression 'landlord' shall not include, in respect o subtenant, a tenant who has sublet any premises, or in respect of a deemed tenant, a tenant at whose instance the deemed tenant has come in occupation of any premises.
10. It is clear from the Section that it is not retrospective. Section 22 would apply to those tenancies which were created by the employer after coming into force of the Maharashtra Rent Act. The said section cannot apply to tenancy which is created prior to coming into force of the Act. In the instant case, the tenancy was created in 1948. Further, for application of Section 22 there has to be an agreement between the employer and the employee, without that the competent authority does not get jurisdiction. In this case, there is no such agreement. In the circumstances, competent authority had no jurisdiction to entertain an application for eviction of the defendants.
11. The learned Counsel then submits that the agreement is required to be compulsorily registered by virtue of provisions of Section 55 of the Act. He contends that since the agreement is not registered the tenancy is void. The argument has no force. If the tenancy is created after coming into force of the Act, it will require registration. The Section does not say that tenancy shall become void. Non registration may at the most invite penalty and lease cannot become void.
12. Section 16(f) of the Maharashtra Rent Act reads as follows
16. When landlord may recover possession
(1) Notwithstanding anything contained in this Act but subject to the provisions of Section 25, a landlord shall be entitled to recover possession of any premises if the court is satisfied (f) that the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and that the tenant has ceased, whether before or after commencement of this Act, to be in such service or employment.
13. We have seen that the landlord/plaintiff has established title by filing documents of ownership. It has even established that it is a landlord because it has filed the documents showing payment of rent to it by Govindrao, Panjabrao and Deoji. Thus, not only the plaintiff proves that it is landlord but it even proves its ownership of the property and Govindrao, Panjabrao and Deoji were the tenants. It is not in fact in dispute that Govindrao, Panjabrao and Deoji were in employment of the plaintiff. They died and the tenancy has come to an end. By virtue of provisions of Section 16(f) the landlord has become entitled to recover possession. On the other hand, defendants have failed to establish any kind of right, title or interest in them. In the result, I do not see any perversity in the appreciation of the evidence. There is no substance in the writ petitions. The same are dismissed with costs.