We may now advert to the issue framed under Section 13(1)(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Section 13(1)(1) reads as under :
"that the tenant after coming into operation of this Act has built, acquired vacant possession of, or been allotted a suitable residence."
A look at the section would indicate that it does not require any other rule of construction except the literal construction. Such a construction would contemplate that building or owning a premises is distinct from acquiring vacant possession or allotment of suitable residence. If the arguments of the petitioner is to be accepted, it would contemplate that if the petitioner is allotted the premises by his employer in the same locality that would not amount to acquisition of premises. The argument is based on the contention that there must be an element of volunteerness. In other words, it is sought to be contended on behalf of the petitioner that once petitioner is a tenant and during the course of his employment is allotted residence by his employer, that allotment would not amount to acquisition of suitable residence. It would be difficult to accept this contention as the consequences that follows from that argument, would be that once a tenant, always a tenant. In other words it may amount to depriving the landlord of his right to property. Such construction in my opinion is not possible.
The purpose of the Rent Act was to prevent eviction of the tenant except for those grounds contained inSection 13 and Section 12(3) of the Bombay Rent Act. If, therefore, during the course of the tenancy the tenant acquires whether by way of tenancy or by way of allotment by his employer accommodation that would fall within the meaning of Section 13(1)(1). The element of volunteerness in those matters would be immaterial as otherwise. It would be carving out a class of tenants in organisation who though allotted suitable accommodation by the employer can continue to reside in the premises for all times to come. This would have never been the object for which Section 13(1)(1) was enacted which was to provide protection to the tenant.
Bombay High Court
Rajendraprasad Kedarprasad ... vs Shankar Vithu Kuveskar on 5 April, 2002
Equivalent citations: 2002 (3) BomCR 425, (2002) 4 BOMLR 126, 2002 (3) MhLj 498
Bench: F Rebello
1. Rule. Heard forthwith.
2. Heard the learned counsel for the petitioner. The Respondent/landlord had filed eviction suit against the petitioner on various grounds. The Trial Court by judgment dated 11th January, 1999 dismissed the suit on all grounds.
3. Aggrieved, the Respondent/Landlord preferred an appeal. By judgment and order dated 29th January, 2002 the appeal was allowed, on the ground that the defendant has acquired suitable alternative accommodation as also on the ground that the defendant has kept the suit premises vacant for six months before the suit. I do not propose to consider the issue of keeping vacant the premises for six months before filing of the suit. The sole issue is, as to whether the tenant after creation of the tenancy and coming into force of the Act has built, acquired vacant possession of/or been allotted premises for residence. On behalf of the petitioner, their learned counsel assailed the order of the Appellate Court on the following grounds :
4. It is firstly contended that acquisition of the alternative premises must have an element of volunteerness. In the instant case, it is contended that the petitioner had to shift to other places on account of his transfer by his Bank and, therefore, even if the bank had allotted premises, that would not be an act of volunteerness on the part of the petitioner. The acquisition further must be in the locality where the suit premises are located. Petitioner has not got any other alternative premises in the locality.
Secondly, it is contended that the premises were taken on tenancy by the joint family. The first Appellate Court in reversing findings of joint tenancy has not addressed itself to the correct question and, therefore, the order discloses an error of law apparent on the face of it.
5. We may now advert to the issue framed under Section 13(1)(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Section 13(1)(1) reads as under :
"that the tenant after coming into operation of this Act has built, acquired vacant possession of, or been allotted a suitable residence."
A look at the section would indicate that it does not require any other rule of construction except the literal construction. Such a construction would contemplate that building or owning a premises is distinct from acquiring vacant possession or allotment of suitable residence. If the arguments of the petitioner is to be accepted, it would contemplate that if the petitioner is allotted the premises by his employer in the same locality that would not amount to acquisition of premises. The argument is based on the contention that there must be an element of volunteerness. In other words, it is sought to be contended on behalf of the petitioner that once petitioner is a tenant and during the course of his employment is allotted residence by his employer, that allotment would not amount to acquisition of suitable residence. It would be difficult to accept this contention as the consequences that follows from that argument, would be that once a tenant, always a tenant. In other words it may amount to depriving the landlord of his right to property. Such construction in my opinion is not possible.
The purpose of the Rent Act was to prevent eviction of the tenant except for those grounds contained inSection 13 and Section 12(3) of the Bombay Rent Act. If, therefore, during the course of the tenancy the tenant acquires whether by way of tenancy or by way of allotment by his employer accommodation that would fall within the meaning of Section 13(1)(1). The element of volunteerness in those matters would be immaterial as otherwise. It would be carving out a class of tenants in organisation who though allotted suitable accommodation by the employer can continue to reside in the premises for all times to come. This would have never been the object for which Section 13(1)(1) was enacted which was to provide protection to the tenant. That contention, therefore, is to be rejected. In the instant case we are not concerned the issue of the family of the tenant continuing to reside in the premises, in spite of transfer of the tenant by allotted premises.
The second limb of the contention sought to be advanced is that the allotment has to be in the same locality where petitioner has got the premises. Take an illustration. A tenant may possess all the necessary means to construct a house. Such a tenant lives in the city of Mumbai, but may choose to construct a house at Pune or Delhi. If the petitioner's argument is to be accepted it would mean that even though he has financial capacity and the means to put up a construction, merely because he constructs a house elsewhere that would not mean acquisition of accommodation. Though therefore the tenant is in a position to acquire alternative premises yet it would not amount to acquisition. The concept of locality for these reasons, in my opinion, cannot be read into Section 13(1)(1). The learned counsel for the petitioner was asked whether there are any judgments of the Apex Court or of this Court giving a construction of Section 13(1)(1) as contended by the petitioner. Learned counsel submits that at least to his knowledge there are no such judgments. In my opinion, even otherwise looking to the nature of protection given to a tenant it would not be possible to contemplate that theRent Act was made to give protection to those tenants who have the means and that means is to either acquiring accommodation by constructing a premises or by taking other premises on rent in other places. That contention has also to be rejected.
6. We now come to the second challenge namely that the acquisition was by the joint family. In the first instance, the tenant is petitioner. The rent receipts are in the name of the petitioner. Mere fact that along with the tenant some others including his relatives may be staying, cannot convert the tenancy from the name of the petitioner into a joint family. If it could be so, the landlord at the time of letting the premises could have let out the premises to the joint family. In the instant case it is not so. The Appellate Court after considering the evidence on record and more so the fact that the father of the petitioner owns a room at Shahid Bhagatsingh road, Mumbai and the fact that the ration card of the father at that time was in Mumbai held that there was no jointness in the family.
The evasive answers of the Power of Attorney about the premises at Omdatta Apartment, Namdeo Path, Dombivli (East), has also been considered. The Power of Attorney who is brother of the petitioner, had contended that he was merely looking after those premises. This was the evidence which was available for before consideration by the Appellate Court. The Appellate Court has weighed the evidence and come to a conclusion. That conclusion cannot be disturbed as the order does not suffer from error of law apparent on the face of the record. That being the case, to my mind it is not possible to interfere in the said findings, at least in the exercise of the extraordinary jurisdiction of this Court. Considering that the order does not suffer any error apparent on the face of record, petition dismissed.
However, there shall be no order as to costs.
In the event, the petitioner, the Power of Attorney and other adult members file usual undertaking within four weeks from today, the respondent not to take steps to execute the decree upto 31st December, 2002.
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