In the present case, the plaintiff had given a notice to the
defendant to allow him to inspect the premises along with his
architect/surveyor (the said fact is denied by the defendants) and
as the suit is pending the plaintiff thought it fit to obtain leave of
the Court and the same has been granted by the Court. However,
the said order of the Court cannot be construed of having
appointed a Court Commissioner nor the measurement carried
out by the plaintiff through his surveyor would be construed as a
measurement carried out by the Court Commissioner. The
measurement carried out by the surveyor of the plaintiff would
be for satisfaction of the plaintiff to ascertain exact area in
occupation of tenant. It will be for the plaintiff to prove his case
with all corroborative evidence.The learned Single Judge of this Court in a case of Smt Kamlabai Laxman Mutraj (supra) has also held that under section 28 of the Act the landlord can be accompanied by hisArchitect or other representative to
take measurement of the tenanted premises.
In view of the aforesaid conspectus of the matter, the order
of the trial Court does not require any interference.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2677 OF 2013
Suresh Manoharlal Jumani Vs Aasia Management &
Consultancy Pvt Ltd,
CORAM : S.V.GANGAPURWALA, J.
PRONOUNCED ON:23/08/2013
Citation;(2013) 6 AIIMR 117,2013(5) MHLJ905
The petitioners/defendants impugn the order passed by the
Judge, Small Causes Court, allowing the application of the
plaintiff seeking inspection of the suit premises along with its
representatives/Architect/surveyors and other professionals for
taking measurements, filed under Section 28 of the Maharashtra
Rent Act.
2.
The plaintiff is the landlord and the defendants/present
petitioners are the tenants of the suit premises. The plaintiff has
filed a suit bearing R.A.E. Suit No.150/208 of 2010 seeking vacant
and peaceful possession of the suit premises from the defendants
by invoking Section 16(1)(i) of the Maharashtra Rent Control Act,
1999, (hereinafter referred to as 'Rent Act of 1999' for the sake of
brevity) ie seeking recovery of possession of the suit premises
reasonably and bonafidely for demolition and reconstruction as
envisaged under section 16(1)(i) of the Act of 1999. As per the
said Act, the plaintiff has to give an undertaking as prescribed
under Section 16(6)(d) of the said Act. One of the undertakings
that is required to be given is that Plans and estimates for the
new building or new floor or floors to be erected by the landlord
include premises for each tenant with carpet area equivalent to
the area of the premises in his occupation in the building sought
to be demolished subject to a variation of 5 percent in the area.
3.
According to the plaintiff, the area in occupation of the
present petitioner no.1/defendant no.1 is 200 sq.ft. and that of
petitioner no.2/defendant no.4 is 730 sq.ft., whereas, according
to
the
defendants,
the
area
in
occupation
of
petitioner
no.1/defendant no.1 is 203.50 sq.ft and that of petitioner
no.2/defendant no.4 is 1565 sq.ft.
4.
Before adducing the examination-in-chief, the plaintiff filed
the instant application invoking section 28 of the Rent Act of
representatives
for
carrying
out
measurements.
The
said
Mr.
A.Y
.Sakhre,
the
learned
senior
application is allowed. Aggrieved thereby, the present petition.
5.
1999 seeking inspection of the suit premises along with its
counsel
for
the
petitioners, during the course of his erudite arguments, put forth
the following propositions.
(i) The concept of inspection and measurements are distinct
from each other. 'Inspection' relates to ascertaining the
quality, condition or authenticity of an item, product, etc,
whereas measurement relates to ascertaining the extent
or quantity of something. The learned senior counsel relies
on definition of 'inspection and measurement' as laid down
in Oxford English Dictionary and Law of Lexicon.
(ii) Section 28 of the Rent Act of 1999 permits a landlord to
only inspect the premises and does not entitle the landlord
to carry out measurements.
According to the learned
senior counsel, the language of the section is clear and
unambiguous and the term 'inspection' can be and ought to
be interpreted on the basis of its plain meaning and does
not require any external aid for interpretation. The literal
interpretation of the said section is unambiguous and does
not give rise to any absurdity, and so, no question arises of
purposively interpreting the term or the provision. To
buttress his submissions, the learned senior counsel relies
on the Judgment of the Apex Court in a case of Kanai Lal
Sur Vs. Paramnidhi Sadhukhan, reported in AIR 1957
Supreme Court 907 and in a case of Satheedevi Vs
Prasanna reported in AIR 2010 Supreme Court 2777 and
the Judgment of the Apex Court in a case of Gurudevdatta
VKSSS Maryadit Vs. State of Maharashtra, reported in
AIR 2001 Supreme Court 1980. According to the learned
senior counsel, the cardinal principles of interpretation of
statute is that the words of a statute must be understood in
their natural ordinary or popular sense and construed
according to their grammatical meaning and that is the
golden rule of interpretation. In the present case, the
grammatical meaning of the word 'inspection' appearing in
the provision is 'not capable of any other interpretation and
the same is unambiguous.
(iii)
The Rent Control Act is welfare legislation for the
protection of tenant and any provision conferring a right on
the landlord
has to be construed strictly and narrowly
against the landlord in case any such provision is capable
of more than one interpretation.
The learned senior
counsel relies on the Judgment of the Apex Court in a case
of
Mohd Shafi Vs. Addl. Dist & Sessions Judge,
(iv)
Allahabad, reported in AIR 1977 SC 836.
Chapter VII of the Act of 1999 specifically deals with
'provisions regarding jurisdiction of courts, suits, appeals,
practice and procedure'. Section 28 has been placed in
Chapter VI and not in Chapter VII, thereby, implying that
section 28 was never intended to relate to procedure to be
followed in trial of a suit and therefore section 28 of the
Act cannot be relied during the pendency of a lis.
(v) It is Section 37 of the Act which provides for procedure of
states that the Courts
shall
the Courts and specifically
follow the prescribed procedure in trying and hearing the
suts. Section 43 of the Presidency Small Causes Court Act,
1881 and Rule 1(2) of the Presidency Small causes Court
Rules, prescribe that the Small Cause Court must follow the
procedure laid down in the Code of Civil Procedure, 1908.
(vi)
Section 28 only refers to “landlord” and not to his
agent, representative or person acting through him and
section 7(3) of the Act of 1999 defines the term 'landlord'
as a person who is receiving or entitled to receive rent on
his own account or on account of any other person. The
definition, therefore, does not include a mere agent or
representative of a landlord.
(vii)
On the other hand, Section 29 contains specific
reference to include a landlord and any person acting or
purporting to act on his behalf. In view of such a distinction
in the language used, legislative intent is clear that only
landlord and not agent or representative of landlord was
empowered under section 28 to take inspection.
(viii)
No rules are framed by the State Government under
the Rent Act of 1999. The Rules framed under the Bombay
Rent Act of 1947 are adopted in their entirety. Rules framed
specifically
provide
for
filing
a
'miscellaneous
2(b),
under the Bombay Rent Act of 1947, more particularly rule
application' where no suit had already been filed and
pending for fixation of standard rent, determination of
permitted increases, restoration of essential services etc.
The said rules are adopted. It is clear that no provision is
made for filing an application under section 28 of the Rent
Act.
In
a
way,
no
remedy
has
been
provided
for
noncompliance of section 28 of the Act by the Rent Act,
1999. Refusal of inspection does not render a tenant liable
for any offence nor does it constitute a ground for eviction.
The provision, therefore, is illusory and this is a defect in
the Act. The only remedy, therefore, for a landlord will be
to file a suit before the Civil Court for appropriate reliefs.
(ix)According to the learned senior counsel, if there is a defect
in the statute , even if a party is left remediless, the Court
cannot legislate on its own and read something into the
statute which the legislature omitted to provide for. The
learned senior counsel relies on the Judgment of the Apex
Court in a case of Bharat Aluminium Vs. Kaiser
Aluminium reported in 2012 (9th Vol) SCC 552.
(x) Section 28 cannot be had recourse to during the pendency
of a lis for the purpose of collecting evidence.
Adopting
such an interpretation does not render the landlord
remediless. It is open to the landlord to apply to the Court
for appointment of a Court Commissioner under Order 26
Rule 9 of CPC at appropriate stage of the suit, ie after both
parties have filed their evidence, and if the Court finds it
necessary at that stage. Adopting a contrary interpretation
would enable a landlord to circumvent the provisions of
Order 26, Rule 9 of the C.P.C and will enable a party to
collect evidence through the process of the Court, which it
cannot.
(xi)
The reliance on Order 39 Rule 7 of CPC cannot be
also placed, as contended by the respondent. The same is
placed in the Chapter titled 'temporary injunctions'. It can
be used only in relation to applications for temporary
injunctions. Moreover, the said provision cannot be used to
is
collect evidence. If the plaintiff in cross examination
shattered and the case of the defendant is proved, then
there is no need to appoint any expert also. It has to be left
to the Judge concerned. It is a premature stage even for
appointment
of the Court Commissioner. Nothing is
pleaded about Order 26 Rule 9 of CPC.
The defendant may prove his case. It may not be
(xii)
necessary to appoint the expert. The present application is
If the tenant calls upon the landlord pursuant to
(xiii)
filed only for collecting the evidence.
section 14 of the Act to carry out certain repairs and the
landlord in terms calls upon the tenant to permit inspection
of the premises to ascertain the extent of repairs to be
carried out, but if the tenant refuses to permit inspection,
then the tenant will
preclude the landlord from carrying
out the repairs and cannot then allege that the landlord has
failed to carry out repairs and in doing so, the tenant will
also preclude himself from carrying out repairs on his own.
As such, reliance on section 14 of the Rent Act would be of
no avail.
(xiv) The Court has exercised the jurisdiction not vested in
it. As such, the order deserves to be quashed and set
aside.
Mr. Y
.S.Jahagirdar, the learned senior counsel for the
6.
respondent/plaintiff in his usual lucid manner, canvassed the
(i)
following submissions:-
The word 'inspection' is defined in the Black's Law
Dictionary as 'a careful examination of something, such as
goods (to determine their fitness for purchase) or items
produced in response to a discovery request (to determine
their relevance to a law suit.)' And meaning of 'Inspection
Right' is given as 'The legal entitlement in certain
circumstances to examine articles or documents such as
the consumer's right to inspect goods before paying for
them.' and 'Inspection of property' as per the Major Law
Lexicon would mean “Inspection of property as 'By rules of
Court, the Court or a Judge may, upon the application of
any party to a cause or matter, make an order for
inspection of any property or thing which is the subject
matter of litigation and may for that purpose authorize any
person to enter upon or into any land or building in the
possession of any party before the Court.'
(ii)
There is a huge difference between mere visiting of
tenanted premises by the landlord and seeking inspection
of tenanted premises by the landlord which is allowed
under section 28 of the Act of 1999. The provision and the
words in the said provision will have to be given purposive
interpretation. The construction which will improve the
workability of the statute, to be mere effective and
purposive, should be preferred to any other interpretation
which may lead to undesirable result. The learned senior
counsel relies on the Judgment of the Apex Court in a case
of the Executive Engineer Vs. Sri Seetaram Rice Mill,
reported in (2012) II Vol. SCC 108.
The
word
of
premises'
has
been
laid down rather than mere visiting of
specifically
“inspection
(iii)
premises. The intent of legislature is clear that the landlord
can exercise its right to seek inspection of the premises
under section 28 of the Act before, during and after a
dispute has arisen between the landlord and tenant or
before, during and after filing of the suit and pending by
and between a landlord and the tenant pertaining to the
tenanted premises. Section 28 does not mention any
particular
timeframe
or
any
particular
stage
in
a
proceedings.
(iv)
In somewhat similar set of facts, the learned Single
Judge of this Court in a case of Empeegee Portfolio
Services Pvt Ltd Vs. Sharada Navinchandra Shah,
2009 (1) Bom C.R. 579 has held that to inspect the
premises covers a critical examination. It cannot be mere
causal glance or mere ocular inspection. There is no such
mention nor contemplated in this section. The learned
senior counsel also relies on the Judgment in the case of
Kamlabai
Laxman
Mutraj
Vs.
Bherumal
Verimal
Haran delivered in Writ Petition No.8318 of 2008 and
states that the learned Single Judge of this Court in the said
case has held that there is no reason to restrict the
ig
landlord's right to inspect the premises through the Court
(v)
Commissioner.
Even under Order 39 Rule 7A CPC the trial Court has
power to order inspection of the premises which includes
inspection of properties even inspection of properties which
may not be the subject matter of the suit provided such
inspection is necessary for the controversy. The learned
senior counsel relies on the Judgment of the learned Single
Judge of this Court in a case of Madukar R Javle Vs.
Baskar
Ramnath
Shibad,
reported
in
1996
(1)
Mh.L.J.245.
(vi)
If the plaintiff is allowed to take inspection of the
premises
along
with
its
representative
for
taking
measurements of the tenanted premises, the same shall
not amount to providing assistance by the Court in
onus
would
be
on
the
plaintiff
to
prove
the
collection of evidence, as alleged by the petitioners. The
said
measurements. It cannot amount to collecting the evidence
nor it would amount to appointing the Court Commissioner.
(vii)
The provisions under section 75, Order 26(9), Order
39 Rule 7 of CPC are all procedural in nature and section 28
of the Maharashtra Rent Control Act is a special provision
under the Act which ought to be interpreted giving
purposive interpretation to give it more effect and should
not be preferred to any other interpretation which will lead
to negating the provision.
(viii) The Court has properly exercised the discretion and
7.
no case of interference is made out.
Before I advert to the submissions canvassed by the
respective senior counsel, it would be necessary to refer to the
relevant provisions:
Section 28 – Inspection of premises – The landlord
shall be entitled to inspect the premises let or given
on licence, at a reasonable time after giving prior
notice to the tenant, licensee or occupier.”
Rule 2(b) of the Bombay Rent Act Rules:
2.(b)
“Miscellaneous
application”
means
an
application for fixing the standard rent,except where
the said relief is claimed in a pending suit or
proceeding, an application for determining the
permitted increases, an application by a tenant for
reinstatement, an application for a direction for the
restoration of any essential supply or service or an
application by a member of the tenant's family
under sub-clause © of clause (11) of section 5;”
Section 28 of the Act of 1999 gives a right to the landlord
8.
to inspect the premises let or given on licence at a reasonable
time after giving prior notice to the defendant, licensee or
occupier. Section 28 in terms recognises the inherent right of the
landlord to inspect the premises which he has let or given on
licence at all reasonable times. The only qualification is a prior
notice to the tenant, licensee or occupier by the landlord. The
inspection.
9.
prima donna question would be the extent of this right of
No doubt, the literal interpretation is the golden rule of
interpretation if the words used are capable of one construction
as has been observed by the Apex Court in a case of
Satheedevi (referred supra) and relied upon by the learned
senior counsel for the petitioners.
10.
However, the Rent Act of 1949 is a remedial statute and
not a penal statute. A remedial statute has to receive a liberal
construction, whereas the penal statute is strictly construed. The
remedial statute or a word in such statute must be so construed
as to give a most complete remedy which the phraseology will
permit.
11.
The words in the statute should ordinarily be understood in
a sense in which they best harmonize with the object of the
statute and which effectuate the object of the legislature. It
cannot be interpreted in a manner, it would render the provision
a dead letter.
12.
The purpose of Rent Legislation is generally to protect the
tenants from unjust evictions and in case of doubts these Acts
are to be so interpreted as to lean in favour of tenants. Further,
a law enacted essentially to benefit a class of persons, such as
tenants, may be comprehensive in the sense that to some extent
it benefits also those not within that class, for example,
landlords. The provisions enacted to benefit the landlords cannot
be so construed as to benefit the tenants as has been held by
the Apex Court in a case of Arjun Khiamal Makhijani Vs
Jamnadas C Tuliani, (1989) 4 SCC 612. The Apex Court in a
case of Joginder Pal V Naval Kishore Bahal,
AIR 2002 SC
2256 has observed that the Courts have to adopt a reasonable
and
balanced
approach
while
interpreting
Rent
Control
Legislations starting with an assumption that an equal treatment
has been meted out to both the sections of the society.
13.
The word 'inspect' the premises would have to be given the
meaning which would subserve the purpose to enacting the
same.
Every landlord has a inherent right to inspect the
premises being the owner of the house and it is the said right
which has been recognized by section 28 of the Act of 1999. The
said provision was introduced for the first time in the Rent Act of
1999. Similar provision was not provided in the earlier Rent Act
of 1947.
14.
To take an illustration, Section 14 of the Rent Act cast a
duty on the landlord to keep the premises in good repairs. If the
landlord neglects to make repairs, the tenant has a right to give
notice to the landlord asking the landlord to carry out such
ig
repairs. For ascertaining the repairs required to be carried, the
landlord will have to inspect the premises. The landlord would
not be an expert to know the extent of repairs to be carried out.
Naturally
while
making
inspection
for
the
purpose
of
ascertaining the repairs to be carried out, the landlord would be
required to take with him expert, such as, Architect etc to know
the exact extent of the repairs to be carried out.
obligation
of
the
landlord
to
carry
out
the
It is the
repairs.
For
performance of its obligation the landlord will be required to
inspect the property. The right is given under section 28 to the
landlord to carry out inspection. If the word 'inspection' by the
landlord would be restricted to just observing the repairs without
taking an expert with him, the right given to the landlord vide
Section 28 would not serve any purpose. It would be rendered
superfluous. Giving such an interpretation to the said provision
would be rendering the said provision otiose. As such, the said
term 'inspection' will have to be given wider interpretation so as
to serve the object of enacting the said provision. The said
provision will have to be so interpreted so as to achieve the aim
of workability of the enactment as a whole while giving it a
purposive interpretation in preference to the literal or textual
interpretation. Section 28 has to be invoked in aid of other
provisions of the Statute.
The word 'inspection' as per the Law
15.
as under :
Lexicon is defined
“Inspection of a premises to ascertain whether they are in
good repair or in a good condition means a critical
examination.” Inspection means to look upon, to examine
for the purpose of determining quantity and detecting what
is wrong and is not necessarily confined to optical
observation but is ordinarily understood to embrace test
and examination. Examination is something more than a
mere glance.”
Considering the said definition, restricting the word 'inspection'
to a narrow construction would not be fructifying the purport and
object of the said provision. The word 'inspection' will have to be
read considering the purpose of inspection.
16.
Reliance on Rule 2(b) of the Rules may not be relevant for
determining the right of the landlord to make an application in
the court. The applications referred thereto are the applications
which a party can make de hors the pendency of the suit or
independent of a suit as is provided in the respective provisions,
whereas section 28 gives the right to the landlord to inspect the
suit premises at all reasonable times. It is not restricted in its
operation. Section 28 recognizes the inherent right of the
landlord to inspect the premises which he has given on let. The
purpose of inspection.
The plaintiff herein has filed a suit for possession on the
17.
said provision will have to be applied having regard to the
ground that the landlord requires the suit premises bonafidely
and reasonably for the purpose of immediate demolition which
demolition is required to be carried out for constructing a new
building as is contemplated under section 16(1)(i) of the Act of
1999. The landlord has to give an undertaking to the Court that
the plans and estimates of the new building or new floor or floors
to be erected by the landlord include premises for each tenant
with the carpet area equivalent to the area of the premises in
occupation of the tenant in the building sought to be demolished.
According to the plaintiff, carpet area in occupation of defendant
no.4/petitioner no.2 is 730 sq.ft whereas according to defendant
no.4/petitioner no2 the carpet area in her occupation is 1565
sq.ft.
While providing the premises in a new building it is the
duty of the landlord to provide for the same carpet area. For the
said purpose, it would be necessary for the plaintiff to ascertain
the exact area in occupation of the defendants and for the said
purpose he has right to enter upon the premises and inspect the
area in occupation of the defendants. In doing so, he would be
entitled to take his own representative to measure the area. The
landlord would not be an expert to measure the premises. The
person who is expert to carry out measurement such as the
surveyor would be required to be taken by the landlord to inspect
the premises for performing his obligation of providing the same
carpet area in occupation of the tenant in the new building. The
landlord will have to satisfy himself
of the exact area in
occupation of the tenant so as to provide for the same. If Section
28 is interpreted in a manner that the landlord cannot take any
other representative along with him, then it would render the
said provision ineffective and redundant as
the purpose of
inspection would not be achieved. Even if to satisfy himself the
plaintiff measures the tenanted premises through his surveyor,
the said measurement carried out by the surveyor will not be
akin to and
on the same pedestal as that of the Court
Commissioner. The tenant being in occupation of the premises,
he can get his area measured through his expert. There is no
prohibition for him. In the present case, the surveyor allowed to
the plaintiff is not in the capacity of a Court
be taken by
Commissioner but the Court has only granted leave allowing the
plaintiff to exercise his right under section 28 as the suit is
pending before the Court.
18.
In the present case, the plaintiff had given a notice to the
defendant to allow him to inspect the premises along with his
architect/surveyor (the said fact is denied by the defendants) and
as the suit is pending the plaintiff thought it fit to obtain leave of
the Court and the same has been granted by the Court. However,
the said order of the Court cannot be construed of having
appointed a Court Commissioner nor the measurement carried
out by the plaintiff through his surveyor would be construed as a
measurement carried out by the Court Commissioner. The
measurement carried out by the surveyor of the plaintiff would
be for satisfaction of the plaintiff to ascertain exact area in
occupation of tenant. It will be for the plaintiff to prove his case
with all corroborative evidence.
19.
The learned Single Judge of this Court in a case of Smt
Kamlabai Laxman Mutraj (supra) has also held that under
section 28 of the Act the landlord can be accompanied by his
Architect or other representative to
take measurement of the
tenanted premises.
20.
In view of the aforesaid conspectus of the matter, the order
of the trial Court does not require any interference. The Writ
Petition, as such, is accordingly dismissed with no order as to
costs.
(S.V.GANGAPURWALA,J.)
21.
At this stage, the learned Counsel for petitioners
seeks continuation of the interim relief for a period of 8 weeks.
The learned Counsel for the respondent opposes the said
22.
request.
Considering the fact that the interim orders were in
operation, the same is continued for a period of 6 weeks from
Needless to state that on lapse of 6 weeks, the said
today.
(S.V.GANGAPURWALA,J.)
interim orders will come to an end.
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