Nalanikant
Ramadas Gujjar Vs. Tulasibai & Ors [1996] INSC 934 (9 August 1996)
Kuldip
Singh, M.M.Punchhi, N.P.Singh, M.K.Mukherjee,S.Saghir Ahmad N.P. Singh.J.
ACT:
HEAD NOTE:
The
defendant in a suit for eviction is the appellant before this Court. The plaintiff-respondents
filed the suit in question for eviction of the defendant on the grounds
mentioned under Section 13(1)(a)(e),(j) and (k) of the Bombay Rents, Hotel and
Lodging Houses Rates (Control) Act, 1947 (hereinafter referred to as the Bombay
Rent Act).
Plaintiff's
grandfather Venkobacharya Anantacharya Burli had leased out a portion of
R.S.No.62 of Bagalkot, measuring 275' East to West and 634' North to South, to Binny
Company of Madras, in the year 1889. The Binny
Company had taken the said lease for making constructions to set up ginning and
pressing machines and for construction of godown to store cotton. The said
company made constructions including the godown over the said leasehold area
and installed the ginning and pressing machines. Thereafter, the said Binny
Company transferred its right, title and interest in favour of one Shilvantappa
in 1929. Later, the aforesaid Shilavantappa transferred the same in favour of
the deceased husband of defendant Nos. 1 and 2.
In the
suit for eviction which was filed on behalf of the plaintiffs, apart from other
grounds, it was alleged that the defendant had sub-let the premises in question
to various persons including defendants Nos. 4 to 16. The Trial Court dismissed
the said suit on the ground that the provisions of Bombay Rent Act were not
applicable to the leasehold area, over which the construction had been made.
The
District Judge dismissed the appeal filed on behalf of the plaintiffs. The
Civil Revision filed on behalf of the plaintiffs has been allowed by the High
Court. The High Court has come to the conclusion that the provisions of the
Bombay Rent Act were applicable in the facts and circumstances of the case.
According
to the appellant, as the initial lease had been granted in respect of vacant
land measuring 275' x 634', in favour of the Binny Company aforesaid, the
provisions of the Bombay Rent Act shall not be applicable.
This
appeal had been listed before a Division Bench of this Court, which referred it
to a Constitution Bench to resolve the conflict between the two judgments of
this Court in the cases of Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman
& Ors., 1971 (1) SCR 66 and Mst. Subhadra vs. Narsaji Chenaji Marwadi, 1962
(3) SCR 98.
Section
5(8) of the Bombay Rent Act defines 'Premises,:
follows:-
"Premises,means –
(a) any
land not being used for agricultural purposes,
(b) any
building or part of a building let separately (other than a farm building)
including –
(i) the
garden, grounds, garages and outhouse any, appurtenant to such building or part
of a building,
(ii) any
furniture supplied by the landlord for use in such building or part of a
building,
(iii) any
fittings affixed to such building or part of a building for the more beneficial
enjoyment thereof, but does not include a room or other accommodation in a
hotel or lodging house.
From a
plain reading of the definition of 'premises' in the aforesaid Act it is
apparent that it shall not include any land used for agricultural purposes but
certainly shall include any land which is not being used for agricultural
purposes. From the records it appears that there is no dispute that when the
lease was granted in favour of the Binny Company as early as in the year 1889,
it was an open Site having no building thereon at that time. But the Binny
Company had taken the said land for making construction over the same for
installing ginning and pressing machines and in fact a building was constructed
on the said piece of land in which ginning and pressing machines were
installed. In this background, when the Bombay Rent Act came in force the
leasehold area was not being used for agricultural purposes.
From
the judgment in the case of Ms.Subhadra (supra) it appears that the owner of a
certain plot of land granted a perpetual lease to some persons who sublet it to
the respondent of that case on a higher rent. In the deed of lease it had been
recited that the lessee might construct buildings on the land after obtaining
sanction of the appropriate authority. The appellant of that case obtained sanction
of the Collector for conversion of user of the land to nonagricultural
purposes. Thereafter standard rent of the plot under Section 11 of the Bombay
Rent Act was fixed. It was said by this Court:
"It
is common ground that, till November 11, 1949,
the plot was assessed for agricultural purposes under the Bombay Land Revenue
Code. In the year 1947, the plot was undoubtedly lying fallow, but on that
account, the user of the land cannot be deemed to be altered. User of the land
could only be altered by the order of the Collector granted under s.65 of the
Bombay Land Revenue Code. Section 11 of the Bombay Act 57 of 1947 enables a
competent court upon application made to it for that purpose to fix standard
rent of any premises But s.11 is in Part II of the Act and by s.6 cl.(1), it is
provided that in areas specified in Schedule I, Part II applies to premises let
for residence, education business, trade or storage. There is no dispute that
Part II applied to the area in which the plot is situate; but before the appellant
could maintain an application for fixation of standard rent under s.11, she had
to establish that the plot of land leased was premises' within the meaning of s.5(8)
of the Act and that it was let for residence education, business, trade or
storage.
It was
further said that material date for ascertaining whether the plot is 'premises'
for purpose of Section 6 is the date of letting and not the date on which the
application for fixation of standard rent was made by the tenant or the
landlord.
In the
case of Vasudev Dhanjibhai Modi(supra), the appellant before this Court was the
landlord of certain premises in Ahmadabad, who filed a suit for ejectment, which was ultimately decreed. During
the execution of the decree a stand was taken by the defendant that the
provisions of the Bombay Rent Act were not applicable to the premises because
the land was leased out for agricultural purposes. While allowing the appeal of
the landlord, this Court said:- "It is plain that the Court exercising
power under the Bombay Rents, Hotel & Lodging House Rates (Control) Act,
1947 has no jurisdiction to entertain a suit for possession of land used for
agricultural purposes. Again in ascertaining whether the land demised is used
for agricultural purposes, the crucial date is date on which the right
conferred by the Act is sought to be exercised." This Court expressed the
opinion in the case of Vasudev Rajabhai Modi (supra) that whether the
provisions of the Bombay Rent Act shall be applicable or not, the crucial date
for ascertaining the nature of the use of the land in question shall be the
date when the rights under the aforesaid Act are to be exercised.
In the
case of Mst.Subhadra (supra) the land which had been let out for agricultural
purpose, no construction whatsoever appears to have been made on the same. The
landlord only got an order of conversion on basis whereof he filed a petition
for fixation of standard rent of the plot under the provisions of the Bombay
Rent Act. So far the case of Vasudev Rajabhai Modi(supra) is concerned on the
land which had been leased out, construction had been made from which eviction
was being sought by the landlord and in that context it was said that the
crucial date for ascertaining whether the provisions of the Bombay Rent Act
shall be applicable or not, shall be the date when the right under the Act was
sought to be exercised. So far the facts of the present case are concerned, the
lease had been granted to the Binny Company for installing ginning and
processing machines and admittedly a building was constructed in which ginning
and processing machines were installed and godown was also constructed. Once a
piece of land which was agricultural in nature is put to nonagricultural use,
it shall be covered by the definition of 'premises' under Section 5(8) of the
Bombay Rent Act. It need not be impressed that clause (a) of Section 5(8)
excludes from the definition of premises "any land not being used for
agricultural purposes". The words not being used are significant. It can
be said that the framers of the Act for applying the provisions of the said Act
in the definition of 'premises' indicated that the crucial date shall be the
date when the right conferred under the Act is sought to be exercised. There
being no dispute in the present case that the land had been put to
non-agricultural use several decades before coming into force of the Bombay
Rent Act the provisions of the said Act were applicable. We are in respectful
agreement with the views expressed in the case of Vasudev Rajabhai Modi (supra).
The
High Court was justified in coming to the conclusion that it was a premises
within the meaning of Section 5(8) of the aforesaid Act and provisions of the
said Act were applicable, Accordingly, the appeal fails and lt is dismissed.
There shall be no order as to costs.
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