The provisions of Section 15(2) of the Act of 1999 are
clear wherein the stipulation is only with regard to demand of standard rent
and permitted increases. In absence of any requirement of terminating the
lease, insistence of compliance with provisions of Section 106(1) of the Act of
1882 would be going beyond said statutory provisions.
In this regard, it would be profitable to refer to the Constitution
Bench decision of the Supreme Court in V. Dhanpal Chettier V. Yasoda
Ammal 1979 Mh.L.J. 773 (SC) wherein in paragraph 17 it has been observed
thus :
“ …. determination of a lease in accordance with the Transfer of
Property Act is unnecessary and a mere surplusage because the
landlord cannot get eviction even after such determination. The tenant
continues to be so even thereafter. That being so, making out a case
under the Rent Act for eviction of the tenant by itself is sufficient and it
is not obligatory to found the proceeding on the basis of the
determination of the lease by issue of a notice in accordance with
section 106 of the Transfer of Property Act.”
It is thus clear that notice to terminate the tenancy under Section
106 of the Act of 1882 is not necessary when eviction is sought under
provisions of Section 15 of the Act of 1999.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.252 OF 2014
Baban S/o Kisan Sarad,
vs
Abdul Hafiz S/o Abdul Ajij Khan,
CORAM : A.S.CHANDURKAR J.
DATE : MARCH 11, 2015
Citation: 2015(4)MhLj608
Rule. Heard finally with consent of learned counsel for the parties.
2. The short issue that arises for consideration in this Writ Petition is
whether a notice issued under the provisions of Section 15(2) of the
Maharashtra Rent Control Act, 1999 (for short 'the Act of 1999') should
contain a stipulation regarding termination of lease as contemplated by the
provisions of Section 106(1) of the Transfer of Property Act, 1882 (for short
'the Act of 1882').
3. The respondent is the original plaintiff who has filed suit for
ejectment and possession under provisions of Section 15 of the Act of 1999.
Prior to filing of aforesaid suit, notice dated 18/03/2006 came to be issued to
the petitioner tenant demanding arrears of rent from 01/01/1980 to
31/03/2006. As aforesaid arrears were not paid, suit came to be filed for
ejectment and possession. The trial Court found that the petitioner was in
arrears of rent and hence was liable to be evicted on said count. It therefore
decreed the suit by holding the petitioner to be in arrears of rent. The decree as
passed was confirmed by the appellate court.
4. Shri S.A. Mohta, learned counsel appearing for the petitioner
submitted that the notice issued under Section 15(2) of the Act of 1999 did not
determine the tenancy of the petitioner in terms of provisions of Section 106(1)
of the Act of 1882. Therefore for absence of such compliance, the notice itself
was invalid and the suit could not have been filed for eviction of the petitioner.
According to him, the provisions of Section 106 of the Act of 1882 have to be
read as a whole and its application cannot be restricted only to the aspect of
service of such notice as contemplated by provisions of Section 106(4) of the
Act of 1882. In that regard he relied upon the judgment of Gujarat High Court
in case of Shantaben Harilal Brahmbhatt Vs. Hasmukhlal Maneklal Chokshi
2001 LawSuit(Guj) 17. He also placed reliance upon the decision of the
Supreme Court in Pallawi Resources Ltd. v. Protos Engineering Company Pvt.
Ltd. AIR 2010 Supreme Court 1969 to urge that provisions of the statute have
to be read as a whole and same cannot be read in isolation ignoring other
provisions of the said statute. He however fairly pointed out that this Court in
Tarun Kumar Krishna Chandra Bhattacharya V. Ganga Prabhudas
Madnani & Anr. 2009 (5) Mh.L.J. 544 has held that notice under the
provisions of Section 15(2) of the Act of 1999 only requires compliance with
provisions of Section 106(4) of the Act of 1882.
5. Shri S.V. Purohit, the learned counsel appearing for the respondent
supported the impugned order. According to him, the finding that the
petitioner was in arrears of rent was based on evidence on record and same did
not call for any interference. He further submitted that the requirement of
provisions of Section 15(2) of the said Act of 1999 is only in respect of service
of notice demanding arrears and not in relation to termination of tenancy. He
also submitted that aforesaid issue was considered by this Court in
Tarunkumar (supra).
6. I have carefully considered aforesaid submissions. The factual
aspect of the matter regarding the petitioner being in arrears of rent is not in
dispute. The only question is with regard to validity of notice dated
18/03/2006 issued under Section 15(2) of the Act of 1999. Provisions of
Section 15(2) of the Act of 1999 read thus :
(2) No suit for recovery of possession shall be instituted by a landlord
against the tenant on the ground of non payment of the standard rent or
permitted increases due, until the expiration of ninety days next after
notice in writing of the demand of the standard rent or permitted increases
has been served upon the tenant in the manner provided in section 106 of
the Transfer of Property Act, 1882.
7. As per the provisions of sub section (2) of Section 15 of the Act of
1999, the requirement is to serve a notice in writing demanding standard rent
or permitted increases. Such notice is required to precede a suit for recovery of
possession on the ground of default in payment of rent. It further stipulates
service of said notice on the tenant in a manner provided by Section 106 of the
Act of 1882.
8. Plain reading of aforesaid provisions therefore indicates that it does
not call upon the plaintiff to issue any notice terminating tenancy and what is
required is only demand of standard rent or permitted increases. The said
provision itself restricts the operation of provisions of Section 106 of the Act of
1882 to sub clause (4) thereof.
9. In the decision of Gujarat High Court in the case of Shantaben
Harilal Brahmbhatt (supra), it was held that in a suit by landlord to recover
possession of the suit premises, it was necessary to terminate the tenancy of the
tenant. As in said case the notice issued under Section 12(2) of the Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947 did not terminate the
tenancy, the same was held to be invalid. It is not possible to agree with
aforesaid view as taken. The provisions of Section 15(2) of the Act of 1999 are
clear wherein the stipulation is only with regard to demand of standard rent
and permitted increases. In absence of any requirement of terminating the
lease, insistence of compliance with provisions of Section 106(1) of the Act of
1882 would be going beyond said statutory provisions.
In this regard, it would be profitable to refer to the Constitution
Bench decision of the Supreme Court in V. Dhanpal Chettier V. Yasoda
Ammal 1979 Mh.L.J. 773 (SC) wherein in paragraph 17 it has been observed
thus :
“ …. determination of a lease in accordance with the Transfer of
Property Act is unnecessary and a mere surplusage because the
landlord cannot get eviction even after such determination. The tenant
continues to be so even thereafter. That being so, making out a case
under the Rent Act for eviction of the tenant by itself is sufficient and it
is not obligatory to found the proceeding on the basis of the
determination of the lease by issue of a notice in accordance with
section 106 of the Transfer of Property Act.”
It is thus clear that notice to terminate the tenancy under Section
106 of the Act of 1882 is not necessary when eviction is sought under
provisions of Section 15 of the Act of 1999.
10. In so far as decision of the Supreme Court in case of Pallawi
Resources Ltd. (supra), it has been observed that the entire statute has to be
read as a whole and not in isolation ignoring other provisions of the statute. On
a plain reading of the provisions of Section 15(2) of the Act of 1999, it is clear
that in absence of any requirement of terminating the lease, compliance with
provisions of Section 106(1) is not necessary. The decision in case of
Tarunkumar (supra) therefore supports the stand of the respondent.
11. In view of aforesaid, the notice dated 18/03/2006 issued by the
respondent under provisions of Section 15(2) of the Act of 1999 cannot be
faulted. The decree as passed is in accordance with law. Hence there is not
reason to interfere with the impugned order. Writ Petition is therefore
dismissed with no order as to costs. Rule discharged.
JUDGE
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