Ganpat Ladha Vs. Sashikant Vishnu
Shinde [1978] INSC 45 (21 February 1978)
BEG, M. HAMEEDULLAH (CJ) BEG, M. HAMEEDULLAH
(CJ) BHAGWATI, P.N.
SINGH, JASWANT
CITATION: 1978 AIR 955 1978 SCR (3) 198 1978
SCC (2) 573
CITATOR INFO:
R 1980 SC 954 (9,10,11,14) R 1980 SC1605 (12)
O 1985 SC 796 (1,3,20,33,35) O 1987 SC 117 (51) R 1987 SC1939 (27)
ACT:
Constitution of India--Articles
226-227--Power of High Court to interfere with exercise of discretion by Courts
below--Bombay Rent Act 1947--Sec. 5(11)c, 12(3)a & 12(3)b--Whether
definition of tenant includes a member of a family of a deceased tenant
residing with him at the time of his death in case of business premises--Object
of rent restriction act--If conditions of 12(3)b are complied with whether
Court can exercise discretion in favour of a tenant--Whether conditions laid
down by Sec. 12(3)b are to be strictly complied with by tenant.
HEADNOTE:
The respondent tenant made an application in
1956 for fixation of standard rent under section 11 of the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947. In February, 1960, in the said
proceedings, the contractual rent of Rs. 80/- per month was reduced to Rs.
54.25 per month in respect of the shop in dispute. The rent remained in arrears
from 1956 to 1960. In June and July, 1960, the appellant landlord issued a
notice to quit to the respondent. Nearly 5 months after the fixation of
standard rent the respondent filed a Revision Application under section 115 of
the Civil Procedure Code which was summarily dismissed by the High Court. In
November, 1960, the appellant filed present suit for eviction. On 30-8-1962,
issues were framed and therefore that was the first date of hearing. In June,
1963 the Trial Court held that since the dispute about the standard rent was
pending when the suit was filed the provisions of section 12(3)(a) were not
attracted. However, the appellant was entitled to a decree, under section 12(3)
(b) since the respondent had not paid the rent regularly in accordance with the
provisions of section 12(3)(b). The Appellate Court held that the case was
governed by section 12(3)(a) and, therefore, the appellant was entitled to a
decree of eviction. The Appellate Court further held that even if the case was
governed by section 12(3)(b), since the respondent had not complied with its
provisions the suit was bound to be decreed in accordance with the decision of
this Court in the case of Shah Dhansukhlal. The Appellate Court also held that
even if any discretion was vested in. the Court under section 12(3)(b) of the
Act that discretion had been properly exercised by the Trial Court.
The respondent filed a Writ Petition under
Article 227 of the Constitution against the judgment of the Appellate Court.
The Writ Petition succeeded before the High Court because the High Court
thought that the view expressed by this Court in Shah Dhansukhlal's case still
left room for the application of what was laid down by Chagla C. J. in Kalidas
Bhavan's case. The original tenant of the shop in question having died during
the course of litigation, the present respondent, who is the son of the
original tenant, was impleaded in the petition. Section 5(11)(c) of the Act
defines a tenant as including any member of the tenant's family residing with
him at the time of his death. The High Court took the view that section
5(11)(c) applies not only to residential premises but also to business premises
and that, therefore, on the death of a tenant of business premises any member
of the tenant's family residing with him at the time of his death would become
a tenant.
Al lowing the appeal,
HELD : (1) It is difficult to see how in case
of business premises the need for showing residence with the original tenant at
the time of his death would be relevant. It is obvious from the language of
section 5(11)(c) that the intention of the Legislature in giving protection to
a member of the family of the tenant residing with him at the time of his death
was to secure that on 199 the death of the tenant the member of his family
residing with him at the time of his death is not thrown out. This protection
would be necessary only in case of residential premises. When a tenant is in
occupation of business premises there would be no question of protecting
against dispossession a member of his family. The tenant may be carrying on a
business in which the member of his family residing with him may not have any
interest at all and yet on the construction adopted by the High Court, such
member of the family would become a tenant in respect of the business premises.
Such a result could not have been intended to be brought about by the
legislature. The basic postulate of the protection under the Rent Act is that
the person who is sought to be protected must be in possession of the premises
and his possession is protected by the legislation. But in case of business
premises a member of the family of the tenant residing with him at the time of
his death may not be in the possession of the business premises and yet, on the
view taken by the High Court, he would become tenant in respect of the business
premises with which he has no connection. [203A-C, F-G] Parubai Manilal Brahmin
& Ors. v. Baldevdas Zaverbhai Tapodhan, [1964] 5 Gujarat L.R. 563 approved.
Heirs of Deceased Darji Mohanlal Lavji v.
Muktabai Shamji, [1971] 12 Gujarat L.R. 272, over-ruled.
(2) The Act interferes with the landlord's
right to property and freedom of contract only for the limited purpose of
protecting tenants against exercise of the landlord's power to evict them in
these days of scarcity of accommodation by asserting superior rights in
property or trying to exploit his position by extracting too high rents from
helpless tenants. The object was not to deprive the landlord altogether of his
rights in property which have also to be respected. Another object was to make
possible eviction of tenants who fail to carry out their obligation to pay rent
to the landlord despite opportunities given by law in that behalf. Thus,
section 12(3)(a) makes it obligatory for the court to pass a decree when its
conditions are satisfied. [205B-C] Hatilal Balabhai Nazar v. Ranchodbhai
Shankrbhai Patel and Ors., A.I.R. 1968 Gujarat p. 172. approved.
If there is statutory default or neglect on
the part of the tenant whatever may be its cause the landlord acquires a right
under section 12(3)(a) to get a decree for eviction but where the conditions of
section 12(3)(a) are not satisfied there is a further opportunity given to the
tenant to protect himself against eviction. He can comply with the conditions set
out in section 12(3)(b) and defeat the landlord's claim for eviction. If,
however, he does not fulfil those conditions he cannot claim protection of
section 12(3)(b) and in that event there being no other protection available to
him a decree for eviction would have to go against him. It is difficult to see
how by any judi- cial velour discretion exercisable in favour of the tenant can
be found in section 12(3)(b) even where the conditions laid down by, it are not
satisfied. [205-C-E] Kalidas v. Bhavan Bhagwandas, 60 Bombay L.R. 1359
overruled.
Section 12(3)(b) does not create any
discretionary jurisdiction in the Court. It provides protection to the tenant
on certain conditions and these conditions have to be strictly observed by the
tenant who seeks the benefit of this section. If the statutory provisions do
not go far enough to relieve the hardship of the tenant the remedy lies with
the legislature. It is not in the hands of the Court.
1205-F-G] (3) The High Court committed a
gross error in interfering with what was a just and proper exercise of
discretion by the Court of small Causes, in exercise of its power under Article
227 of the Constitution. The High Court without even considering or setting
aside the findings of the Court in regard to the circumstances calling for the
exercise of a discretion in favour of the appellant allowed the application
under Article 227. This was quite unwarranted.
[205GH. 206A] 200 Babhutmal Raichand Oswal v.
Laxmibai R. Tarte & Anr., A.I.R.
1975 S.C. 1297, relied on.
A finding as to whether circumstances
justified the exercise of discretion or not, unless clearly perverse and
patently unreasonable, is, after all, a finding of fact only and it cannot be
interfered with either under Article 226 or 227 of the Constitution [206 C-D]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1717 of 1975.
(Appeal by Special Leave from the Judgment
and Order dated 29-8-1975 of the Bombay High Court in S.C.A. No. 334 of 1970).
F. S. Nariman, P. H. Parekh and Miss Manju
Jetley for the Appellant.
U. R. Lalit and V. N. Ganpule for the
Respondent.
P. H. Parekh, for the Intervener.
The Judgment of the Court was delivered by
BEG, C.J. If the quest for certainty in law is often baffled, as it is
according to Judge Jerome Frank in "Law and the Modern Mind", the
reasons are mainly two : firstly, the lack of precise formulation of even
statutory law so as to leave lacunas and loopholes in it giving scope to much
avoidable disputation; and, secondly, the unpredictability of the judicial rendering
of the law after every conceivable as well as inconceivable aspect of it has
been explored and subjected to forensic debate. Even the staunchest exponents
of legal realism, who are apt to treat the quest for certainty in the
administration of justice in accordance with law, in an uncertain world of
imperfect human beings, to be practically always futile and doomed to failure,
will not deny the. desirability and the beneficial effects of such certainty in
law as may be possible. Unfortunately, there are not infrequent instances where
what should have been clear and certain, by applying well established canons of
statutory construction becomes befogged by the vagaries, if one may use a
possibly strong word without disrespect, of judicial exposition divorced from
these canons. The case before us is an instance of the artificial uncertainty
created by such a fog after the law found in Section 12 (3) of the Bombay
Rents, Hotel and Lodging House Rates Control Act No. LVII of 1947 (hereinafter
referred to as 'the Act') had been laid down with sufficient clarity by this
Court in Shah Dhansukhlal Chhaganlal v. Dalichand Firchand Shroff & Ors.(1)
and correctly understood and applied by a Bench of the Court of Small Causes at
Bombay. It is a cardinal tenet of sound administration of justice that the
judicial function must not stray, so far as possible, into the domain of
legislation wearing a veil, whether thin or thick, of
"interpretation". We are impelled to make these remarks because we
find that a case of the commonest type between a landlord and tenant, in the
city of Bombay, the decision of which the Act before us was presumably designed
to facilitate and expedite, consistently with justice to the landlord as well
as the tenant, has dragged on for years, owing to the kind of difficulties we
have referred to, so that justice delayed has veritably become justice denied.
(1) [1968] 3 S.C.R. 347.
201 The history of the litigation before us
goes back to 3rd September, 1956, when the predecessor-in-interest of the
defendant-respondent filed an application for fixation of standard rent under
Section 1 1 of the Act. On 17th February, 1960 as a consequence, the
contractual rent of Rs.
80/- per month was reduced and the standard
rent was fixed at Rs. 54.25 per month of a shop in Santa Cruz, Bombay.
Nevertheless, the tenant,
predecessor-in-interest of the respondent, did not pay rent. The payments
remained in arrears from 1956 to 1960. Therefore, the landlord was compelled to
send a registered notice to quit with a claim for arrears of rent for four
years @ Rs. 54.25 per month.
On 30th June, 1960, he repeated this notice
to quit by a letter sent under certificate of posting. On 1st July, 1960, the
registered ' notice came back with the word "refused" endorsed on it.
On 15th July, 1960, a notice to quit was tendered personally to the respondent
but refused.
The notice was then said to have been affixed
to the premises. On 18th July, 1960, nearly five months after fixation of
standard rent, the tenant filed a Revision application under Section 115 of the
Code of Civil Procedure which was dismissed summarily on 1st September, 1960,
by the High Court.
On 6th November, 1960 the appellant-landlord
filed a suit for eviction which is now before us. On 30th August, 1962, the
first date of hearing, the issues were framed. On 18th June, 1963, the Trial
Court decreed the suit on the following findings : the notice, to quit was
valid and duly served; the arrears of rent were properly demanded under section
12 (2) of the Act; the demand was not complied with in accordance with law by
the tenant within a month of the demand; the case was governed by the
provisions of section 12(3) (b) and not by the provisions of section 12(3) (a)
because a dispute about the fixation of standard rent was still pending when
the notice demanding standard rent was given; nevertheless, the tenant was not
entitled to the protection of section 12(3) (b), since he had not paid the rent
regularly in accordance with the conditions under which the protection of
section 12 (3) (b) could be given to him.
On 12th August, 1963, the tenant filed an
appeal in the Small Causes Court challenging the validity of the notice on the
ground that the "notice to quit must be for 30 days'.
On 19th April, 1968, this appeal was allowed.
On, 11th April, 1969, the High Court set aside the finding of the Appellate
Court on the notice to quit which was held to be valid and properly served and
sent back the case to the appellate court for decision of other questions. On
8th December, 1969, the special leave petition against the order of remand was
dismissed by this Court. On 22nd January, 1970, the Appellate Bench of the
Small Causes Court passed a decree for ejectment holding that a valid notice
had been served; the case was governed by the provisions of section 12 (3) (a)
and not section 12(3) (b); even if the case was governed by section 12 (3) (b),
its provisions not having been complied with, the suit was bound to be decreed
in accordance with what was clearly held by this Court in Shah Dhansukhlars
case (supra), where it was laid down "To be within the protection of that
provision (section 12 (3) (b) ) the tenant must thereafter continue to pay or
14-211SCI/78 202 tender in Court regularly the rent and permitted increases
till the suit is finally decided".
it also held that even if any discretion was
vested in the, Court under section 12(3) (b) of the Act, that discretion had
been properly exercised by the Trial Court.
Against the last mentioned judgment the
tenant filed on 8th February, 1970 an application under article 227 of the
Constitution which, rather unexpectedly, succeeded before a Division Bench of
the Bombay High Court because the learned Judges thought that the view
expressed by this Court in Shah Dhansukhlal's case (supra), still left room for
the application of what was laid down by Chagla C.J., in Kalidas Bhavan
Bhagwandas(1). The learned Judges of the High Court did not, we find, address
themselves to the argument that, even if, on the view taken by Chagla, C.J., in
Kalidas Bhavan's case (supra), a discretion was left to the Court to deviate,
in special circumstances, from the obligation to pass a decree, it was not
proper for the High Court, in the exercise of its jurisdiction under Article
227 of the Constitution, to interfere with what the appellate Court had found
to be a just and proper exercise of discretion to pass the degree. As the High
Court allowed the application under article 227 on 29th August, 1975 without
even considering or setting aside the appellate Court's finding on the correct
exercise of discretion by the Trial Court, the landlord brought the case before
us by grant of special leave to appeal.
Before deciding the main question we may
refer to, another question which would also be sufficient for the decision of
this appeal. That arises out of an event which is to be expected when the
course of litigation is so long drawn out as the one before us. Smt. Shantibai
Vishnumal, the original tenant of the shop in question died on 9th December,
1973, during the course of litigation, and the respondent, her son, was
impleaded as the claimant to her alleged tenancy rights under Section 5 (1 1)
(c) of the Act which lays down "5 (1 1) : 'tenant means any person by whom
or on whose account rent is payable for any premises and includes- (a) x x x x
(b) x x x x (e) any member of the tenant's family residing with him at the time
of his death as may be decided in default of agreement by the Court.
In these circumstances, the question arose
for decision whether the present respondent, whose residence is given in the
special leave petition as "Agakhan Building, Haines Road, Bombay",
could possibly claim to be a tenant in respect of the shop which admittedly
constitutes business premises by reason of Section 5 (11) (c) of the Act. The
High Court took the view that section 5 (11) (c) applies not only to residential
premises but also to business premises and therefore, on the death of a tenant
of business premises, any member of tenant's family residing with him at the
time of his death would become a tenant. We do not think this view taken by the
high Court is correct. It is difficult to see how in case of business premises,
the need for showing residence with the original tenant at the time of his death
would be relevant. It is obvious from the language of section 5(11)(c) that the
intention of the legislature in giving protection to a member of the family of
the tenant residing with him at the time of his death was to secure that on the
death of the tenant, the member of his family residing with him at the time of
his death is not thrown out and this protection would be necessarily only in
case of residential premises. When a tenant is in occupation of business
premises, there would be no question of protecting against dispossession a
member of the tenant's family residing with him at the time of death. The
tenant may be carrying on a business in which the member of his family residing
with him may not have any interest at all and yet on the construction adopted
by the High Court, such member of the family would become a tenant in respect
of the business premises. Such a result could not have been intended to be
brought about by the legislature. It is difficult to discern any public policy
which might 'seem to require it. The principle behind section 5 (1 1) (c) seems
to be that when a tenant is in occupation of premises, the tenancy is taken by
him not only for his own benefit, but also for the benefit of the members of
the family residing with him and, therefore, when the tenant dies, protection
should be extended to the members of the family who were participants in the
benefit of the tenancy and for whose needs inter alia the tenancy was
originally taken by the tenant. This principle underlying the enactment of
Section 5 (II) (c) also goes to indicate that it is in respect of residential
premises that the protection of that section is intended to be given. We can
appreciate a provision being made in respect of business premises that on the
death of a tenant in respect of such premises, any member of the tenant's
family carrying on business with the tenant in such premises at the time of Ms
death shall be a tenant and the protection of the Rent Act shall be available
to him. But we fail to see the purpose the legislature could have had in view
in according protection in respect of business premises to a, member of the
tenant's family residing with him at the time of his death. The basic
'postulate of the protection under the Rent Act is that the person who is
sought to be protected must be in possession of the premises and his possession
is protected by the legislation. But in case of business premises, a member of
the family of the tenant residing with him at the time of his death may not be
in possession of the business.premises; he may be in service or be may be
carrying on any other business. And yet on the view taken by the-High Court, he
would become tenant in respect of the business premises with which he has no
connection. We are, therefore, in agreement with the view taken by one of us
(Bhagwati J.) in the Gujarat High Court about the correct meaning of Section 5
(11) (c) in Parubai Manilal Brahmin & Ors. v. Baldevdas Zaverbhai
Tapodhan(1), in preference to the view adopted in the sub- (1) (1964) 5 Gujarat
L.R. 563.
204 sequent decision of the Gujarat High
Court in Heirs of deceased Darji Mohanlal Lavji v. Muktabai Shamji(1) which
decision was followed by the Bombay High Court in the judgment impugned in the
present appeals before us.
It is significant to note that after the
decision of Gujarat High Court in Parubai Manilal Brahmin & Ors. v.
Baldevdas Zaverbhai Tapodhan (supra) the Gujarat legislature amended the Rent
Act by substituting the following provision for section 5 (1 1) (c) "5
(11) (c) (i) in relation to premises let for residence, any member of the
tenant's family residing with the tenant' at the time of. or within three
months immediately preceding, the death of the tenant as may be decided in
default of agreement by the Court, and (ii) in relation to premises let for
business, trade or storage, any member of the tenant's family carrying on
business, trade or storage with the tenant in the said premises at the time of
the death of the tenant as, may continue, after his death, to carry on the
business, trade or storage, as the case may be, in the said premises and as may
be decided in de-fault or agreement by the Court." This amendment was of
course necessitated by the decision in Parubai Manilal Brahmin & Ors. v.
Baldevdas Zaverbhai Tapodhan (supra) and it cannot, therefore, be relied upon
for the purpose of supporting the view taken in that decision. But what is of
significance is that when the legislature enacted a provision in regard to
business premises in clause (ii) of Section 5 (11) (c), the legislature made it
clear that the protection in respect of business premises was intended to be
given, not to any member of the tenant's family residing with him at the time
of his death, but to a member of the tenant's family carrying business with him
in such premises at the time of his death. The legislative intent, therefore,
never was to confer protection in respect of business premises on a member of
the tenant's family residing with him at the time of his death. This is also a
circumstance which supports the view taken by the Gujarat High Court in the
earlier decision in Parubai Manilal Brahmin & Ors. v. Baldevdas Zaverbhai
Tapodhan and shows that the view taken in the subsequent decision in Heirs of
deceased Darji Mohanlal Lavji v. Muktabai Shamji is not correct. Of course, the
amendment made in Rent Act in the State of Gujarat cannot assist us in
interpreting Section 5 (11) (c) of the Rent Act in the Act of Maharashtra, but
it is not wholly irrelevant, since the judgment of the Bombay High Court in
appeal before us relies heavily on the decision of the Gujarat High Court 'in
Heirs of deceased Darji Mohanlal Lavji v. Muktabal Shamji (supra) and if that
decision is incorrect, the judgment in appeal before us must also likewise be
held to suffer from same infirmity. We must, therefore, hold that Section 5
(11) (c) applies only in respect of residential premises and since the
premise%, in question before us were admittedly business premises in the
respondent, who was son of the original tenant, could not claim to be a tenant
under section 5 (11) (c).
(1) (1971) 12 Gujarat L.R. 272.
2 05 Coming now to the first question to
which we referred earlier, we think that the problem of interpretation and
application of section 12 (3 ) (b) need not trouble us after the decision of
this Court in Shah Dhansukhlal Chagganlal's case (supra) followed by the more
recent decision in Harbanslal Jagmohandas & Anr. v. Prabhudas Shiv lal(1)
which completely covers the case before us.
It is clear to us that the, Act interferes
with the landlord's right to property and freedom of contract only for the
limited purpose of protecting tenants from misuse of the landlords power to
evict them, in these days of scarcity of accommodation, by asserting his
superior rights in property or trying to exploit his position by extracting
too, high rents from helpless tenants. The object was not to deprive the
landlord altogether of his rights in property which have also to be respected.
Another object was to make possible eviction of tenants who fail to carry out
their obligation to pay rent to the landlord despite opportunities given by law
'in that behalf. Thus, section 12 (3) (a) of the Act makes it obligatory for
the Court to pass a decree when its conditions are satisfied as was pointed out
by one of us (Bhagwati, J) in Hatilal Balabhai Nazar v. Ranchodbhai Shankarbhai
Patel & Ors.(2). If there is statutory default or neglect on the part of
the tenant, whatever may be its cause, the landlord acquires a right under
section 12 (3) (a) to get a decree. for eviction. But where the conditions of
Section 12 (3) (a) are not satisfied, there is a further opportunity given to
the tenant to protect himself against eviction. He can comply with the
conditions set out in Section 12 (3) (b) and defeat the landlord's claim for
eviction. If, however, he does not fulfill those conditions, he cannot claim
the protection of section 12(3) (b) and in that event, there being no other
protection available to him, a decree for eviction would have to go against
him. It is difficult to see how by any judicial valour discretion exercisable
in favour of the tenant can be found hi section 12(3) (b) even where the
conditions laid down by it are not satisfied. We think that Chagla, C.J., was
doing nothing less than legislating in Kalidas Bhavan's case (supra), in
converting the provisions of section 12 (3) (b) into a sort of discretionary
jurisdiction of the Court to relieve tenants from hardship. The decisions of
this Court referred to above, in any case, make the position quite clear.
Section 12 (3) (b) does not create any
discretionary jurisdiction in the Court. It provides protection to the tenant
on certain conditions and these conditions have to be strictly observed by the
tenant who seeks the benefit of the section. If the statutory provisions do not
go far enough to relieve the hardship of the tenant the remedy lies with the
legislature. 'It is not in the hands of Courts.
Lastly we think that the High Court committed
a gross error in interfering, upon an application under. article 227 of the
Constitution with what was a just and proper exercise of its discretion by the
Court of Small Causes in Bombay even on the erroneous view that the Court had a
discretion in the matter. The High Court, without even considering or setting
aside the findings of the Court in regard to the circum- (1) [1976] 3 S.C.R.
629.
(2) A.I.R. 1968 Gujarat p. 172.
206 stances calling for the, exercise of a
discretion in favour of the appellant. Allowed the application under article
227 of the Constitution. This, we think, was quite unwarranted.
We feel certain that the High Court would not
have fallen into such an error if its attention was drawn to the law as laid
down by this Court in Babhutmal Raichand Oswal v. Laxmibai R. Tarte & Anr.(1).
There, this Court, in an appeal by special leave from a judgment of the Bombay
High Court observed (at p. 1297) :
"It is a litigation between landlord and
tenant and as is usual with this type of litigation, it has been fought to a
bitter end. Much-of the agony to, which the tenant has been subjected in this
litigation would have been spared if only the High Court had kept itself within
the limits of its supervisory jurisdiction and not ventured into fields
impermissible to it under article 226 or 227 of the Constitution" A
finding as to whether circumstances justify the exercise of a discretion or
not, unless clearly perverse and patently unreasonable is, after all, a
finding. of fact only, which could not be interfered with either under article
226 or under article 227 of the Constitution. In Babhutmal Raichand Oswal's
case (supra) this Court also said (at p. 1302) "It would, therefore, be
seen that the High Court cannot, while exercising jurisdiction under Art. 227,
interfere with findings of fact recorded by the subordinate court or tribunal.
Its function is limited to seeing that the subordinate court or tribunal
functions within the limits of its authority." Even that certainty and
predictability in the administration of justice in accordance with law which is
possible only if lawyers and Courts care to scrupulously apply the law clearly
declared by this Court, would not be attainable if this elementary duty is
overlooked.
For the reasons given above, we allow this
appeal, set aside the judgment and decree of the High Court and restore that
passed by the appellate Bench of the Small Causes Court on 22nd January, 1970.
The respondent will pay the costs of the appellants.
P.H.P. Appeal allowed.
(1) A.I.R. 1975 S.C. 1297.
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