Monday, 4 April 2016

Whether it is mandatory to issue notice U/S 106 of transfer of property for eviction of tenant under Maharashtra rent control Act

 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.  
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;2016(1) ALLMR 718

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   petitioner­tenant   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 non­payment 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.  

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