Anirudha
Ramakrishna Karlekar Vs. Smt. Jankibai R. Bedekar [1991] INSC 19 (29 January 1991)
Shetty,
K.J. (J) Shetty, K.J. (J) Agrawal, S.C.
(J)
CITATION:
1991 AIR 503 1991 SCR (1) 152 1991 SCC (1) 649 JT 1991 (1) 254 1991 SCALE (1)75
ACT:
Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947-Section 13(1)(c)-Eviction-Whether
covers non- residential premises.
Bombay
Rent, Hotel and Lodging Rates Control Act, 1947- Section
13(1)(c)-"Convicted of using the premises"_ Construction
of_-Legislative intention-Repeated user of the premises for sale of adulterated
food and convicted twice- Conviction whether justified.
HEAD NOTE:
Respondent-Landlady
started an eviction proceeding under Section 13(1)(c) of the Bombay Rent Act
against the petitioner-tenant, running a shop, selling sweet-meats and farsen
on the tenanted premises, as he was convicted twice under the Prevention of
Food Adulteration Act.
Accepting
claim of the land-lady the High Court ordered eviction.
Tenant
contending that "convicted of using the premises" in Section 13(1)(c)
be limited to offences involving the user of the premises that the provision
does not cover non-residential premises, filed the Special Leave Petition.
Dismissing
the petition, this Court,
HELD:
1. Section 13(1)(c) covers both residential as well as non-residential
premises. If clause (c) is not applicable to business premises, there is no
other similar provision in the Bombay Rent Act relating to the business
premises. The consequence would be that the tenant in business premises could
use the premises for committing any offence or he could commit nuisance and
annoyance to the adjoining or neighbouring occupiers and yet claim that he is
not liable to be evicted on that grounds. Whereas, the tenant of residential
premises would not be able to commit such offence without the penalty of
eviction. Such an interpretation would render the Section vulnerable to attack
under Article 14 of the Constitution. [155D-G].
153
2. The
expression "convicted of using the premises:" cannot be given too
liberal construction so as to cover every case of conviction of the tenant.[156B]
3.
Section 13(1)(c) was not intended to be a moral code of conduct for the tenant.
For each and every offence committed at the premises, the tenant cannot be
exposed to the risk of eviction. The crime may be forced upon the tenant at the
premises by third parties. There may be casual or incidental crimes. There may
be technical offences connected with the trade or licence to trade.
There
may be crimes where use of the premises has nothing to do except being the
scene of the offence. All such cases cannot satisfy the requirements of Section
13(1)(c). [157A- B]
4. The
tenant must take advantage of his tenancy of the premises and of the
opportunity they afford for permitting the crime. Only such crimes could fall
within the scope of Section 13(1)(c). There need not be continuous for repeated
user of the premises for committing such crimes. [157B-C] [In the instant case,
the tenant used the premises for carrying out illegal sale of adulterated food
along with his usual business in sweet meats and farsen. He used the premises
deliberately and taken advantage of his tenancy for committing the offences in
the course of his trade. He can be evicted under Section 13(1)(c).] [157C-D] S.
Schneiders and Sons Ltd. v. Abrahams, [1925] 1 KB 301-followed.
CIVIL
APPELLATE JURISDICTION: Special Leave Petition No.12541 of 1990.
From
the Judgement and Order dated 21.8.1990 of the Bombay High Court in W.P. No.
2677 and 4128 of 1983.
U.R. Lalit,
A.M. Khanwilkar and Mrs. V.D. Khanna for the Petitioner.
M.C. Bhandare,
V.N. Ganpule, Satish K. Agnihotri and Mrs. Suman B. Rastogi for the Respondent.
The Judgement
of the Court was delivered by K. JAGANNATHA SHETTY, J. The shop premises
belonging 154 to the respondent-landlady was taken on rent by the petitioner
for business purposes. The premises are within the scope of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947 (`The Bombay Rent Act'). The
petitioner has been carrying on business in sweet-meats and farsen.
The
landlady brought action to recover possession of the premises under Section
13(1)(c) on the ground that the tenant has been convicted of using the
premises. It is not in dispute that the tenant was convicted on three
occasions, first in 1968 for selling adulterated Desi-butter and second, in
1972 for selling sugar-garlands coloured with meantanil yellow a coaltar dye
which is a prohibited colouring agent. In the second judgement of conviction,
it has been stated that the tenant had admitted two previous convictions and in
one of the cases he was sentenced to six months simple imprisonment and a fine
of Rs. 1,000. All the convictions and sentences were under the Prevention of
Food Adulteration Act.
The Bomaby
High Court has accepted the claim of the landlady and ordered eviction under
Section 13(1)(c).
The
tenant seeks leave to appeal against the order of the Bomaby High Court.
Section 13(1)(c) of the Bombay Rent Act reads:
"13(1)
Notwithstanding anything contained in the Act, but subject to the provisions of
sections 15 and 15A, a landlord shall be entitled to recover possession of any
premises if the Court is satisfied, (c) that the tenant or any persons residing
with the tenant has been guilty of conduct which is a nuisance or annoyance to
the adjoining or neighbouring occupiers, or has been convicted of using the
premises or allowing the premises to be used for immoral or illegal purposes;
or that the tenant has in respect of the premises been convicted of an offence
of contravention of any provision of clause (a) of sub -section (1) of section
394 or of Section 394-A of the Bombay Municipal Corporation Act."
Underlining is ours Section 13(1)(c) inter alia, provides that the landlord
shall be entitled to recover possession of any premises if the Court is
satisfied that the tenant or any person residing with the tenant has been
guilty of conduct or has been convicted of using the premises or allowing the
premises to be used for immoral or illegal purposes etc.
155
Counsel for the tenant submits that the expression "convicted of using the
premises" must be limited to offences which involve ,the user of the
premises and user of the premises must by itself be an offence under law. By
way of illustration, reference was made to the Immoral Traffic (Prevention)Act,
1956 and the Bomaby Prevention of Gambling Act, 1887 whereunder the use of the
premises for illegal purposes has been defined as an offence and punishable. It
is only such conviction, counsel contends that it would expose the tenant to
the risk of ejectment under Section 13(1)(c). It is also argued that Section
13(1)(c) does not cover non-residential premises and it covers only the
residential premises.
We
will consider the second question first. The contention is based on the term
used in clause(c), namely "that the tenant or any person residing with the
tenant has been...." and it is said that the expression "residing
with the tenant" indicates that clause (c) is applicable only to
residential premises. The essence of the submission is that business premises
are not used for residence. A Division Bench ofthe Bombay High Court in a
separate judgement connected with this case has not accepted that
interpretation. It has expressed the view that clause (c), covers equally
residential and non-residential premises and the expression "residing with
the tenant" used in clause (c) only indicates that the offence
contemplated in clause(c) could be committed by the tenant or any person
residing with tenant. We concur with this view. Section 13(1)(c) applies to any
premises. Section 5(8) defines `premises' to mean amongst others, any building
or part of a building let or given on licence separately other than a farm
building. If clause (c) is not applicable to business premises, there is no
other similar provision in the Bombay Rent Act relating to the business
premises. The consequence would be that the tenant in business premises could
use the premises for committing any offence or he could commit nuisance and annoyance
to the adjoining or neighbouring occupiers and yet claim that he is not liable
to be evicted on that grounds.
Whereas,
the tenant of residential premises would not be able to commit such offence
without the penalty of eviction.
Such
an interpretation would render the Section vulnerable to attack under Article
14 of the Constitution. We must avoid such construction. Section 13(1)(c), in
our opinion, covers both residential as well as non-residential premises.
This
takes us to the more difficult question, whether the offence leading to
conviction which exposes the tenant to the risk of ejectment should involve the
user of premises, or is to enough if the tenant was 156 convicted for an
offence committed in the premises although the conviction is not of using the
premises. Counsel for the tenant contends that the Section 13(1)(c) means the
former. But the acceptance of such construction would unreasonably narrow down
the Section defeating the very object of the provision, since there are very
few crimes that can properly be so described and brought within its operation.
We therefore, reject the contention. But at the same time the expression
"convicted of using the premises" cannot be given too liberal
construction so as to cover every case or conviction of ,the tenant. In this
regard, we have a useful guidance from the decision in S. Schneiders and Sons
Ltd. v. Abrahams, [1925]1 KB 301, where a similar question arose for
consideration. There the tenant was convicted of an offence under Section 33 of
the Larceny Act, 1916 of receiving at the demised premises the property of the
landlord well knowing the same to have been stolen. The landlord brought an
action to recover possession of the premises under Section 4 of the Rent &
Mortgage Interest Restrictions Act, 1923. Section 4 provided that no judgement
for the recovery of possession of any house to which the Act applies shall be
given "unless the tenant..... has been convicted of using the premises or
allowing the premises to be used for an immoral or illegal purpose ....."
Bankers L.J. explaining the scope of the expression "convicted of using
the premises" inter alia, observed that the said expression cannot be
given a strictly technical construction and that would exclude so many offences
which would seem naturally to fall within the purview of the Section. He
however, emphasised that it is necessary to show that the tenant has taken
advantage of his tenancy of the premises and of the opportunity they afford for
committing the offence. He also dealt with the scope of the expression
"using the premises", whether it requires something more than a
single act of user or a continuous, frequent or repeated use. On this aspect,
he said that "it may be that the mere fact of a crime being committed on
the premises would not constitute a user of the premises by the tenant for an
illegal purpose; for example, if the tenant was convicted of an assault upon
some one who happened to be on the premises in the occupation of the tenant,
and if that were the only evidence, I doubt whether the tenant could be said to
have been convicted of "using the premises for an......illegal purpose
within the meaning of Section 4". But if the tenant used the premises as
coiner's den or as a deposit for stolen goods, a single instance of such user
seems to me quite enough to satisfy the language of the statute". Scrutton,
L.J. while agreeing with the above views has added that Section 4 was not
intended to cover the conviction of a crime with which the premises have
nothing to do beyond merely being the scene of its commission. Atkin, L.J. has
also reiterated the above views.
157
With due regard to these principles and giving the matter the best
consideration. It seems to us that Section 13(1)(c) was not intended to be a
moral code of conduct for the tenant. For each and every offence committed at
the premises, the tenant cannot be exposed to the risk of eviction. The crime
.may be forced upon the tenant at the premises by third parties. There may be
casual or incidental crimes. There may be technical offences connected with the
trade or licence to trade. There may be crimes where use of the premises has
nothing to do except being the scene of the offence. All such cases cannot
satisfy the requirements of Section 13(1)(c). It is necessary as Bankers, L.J.
has observed in the Schneiders case that the tenant must take advantage of his tenacy
of the premises and of the opportunity they afford for committing the crime.
Only such crimes could fall within the scope of Section 13(1)(c). However, there
need not be continuous or repeated user of the premises for committing such
crimes. In the instant case, the tenant used the premises for carrying out
illegal sale of adulterated food along with his usual business in sweet meats
and farsen.
Indeed,
he has used the premises deliberately and taken advantage of his tenancy for
committing the offences in the course of his trade. He cannot, therefore,
legitimately contend that he is not entitled to be evicted under Section 13(1)(c).
In
this view of the matter, we dismiss this petition, but we make no order as to
costs.
V.P.R.
Petition dismissed.
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