Sunday, 24 March 2019

Whether tenant can offer his services in lieu of rent?

Shri Godbole submitted that the tenant is not necessarily required to pay a rent in money and can be permitted to pay it in kind. He specifically referred section 105 of the Transfer of Property Act, whereunder in a lease of immovable property a service rendered can be the consideration for the lease. He drew my attention to the fact that it was the understanding between the parties that apart from his service in the School, Hasan Jahagirdar was to look after the Hostel. Shri Godbole submitted that this service was the consideration for the tenancy. Shri Godbole, therefore, submitted that the premises occupied by Hasan Jahagirdar were covered under the Bombay Rent Act and the first respondent landlord was required to take action under the provisions of that Act only and could not file a civil suit to evict Hasan Jahagirdar and his family members from the suit premises.
Shri Jamdar drew my attention to the judgment of Hon'ble Supreme Court in the case of Dipak Banerjee v. Lilabati Chakraborty, reported in MANU/SC/0752/1987 : [1987]3SCR680 , wherein the question before the Supreme Court was as to whether the sewing activity can be considered to be the rent paid in kind and in a para 10, the Hon'ble Supreme Court in terms held that under the provisions of the particular Rent Act, service cannot be a consideration for sub-lease is the question. The Court observed "It is however, not possible to accept that services in lieu of the right of occupation would amount to receipt of rent... This frustrates and defeats the purpose of the Rent Act".

 Shri Jamdar took me through the provisions of the Rent Act and particularly the provisions regarding fixation of the standard rent, arrears of rent, additions to the rent etc., and submitted that if any such interpretation is accepted, a number of provisions of the Act would become redundant and in that context he drew my attention to the observations of the Supreme Court in the case of M/s. Alphali Pharmaceuticals Ltd. v. State of Maharashtra and others, reported in : 1989 (44) ELT 613 (SC) , that the provisions should be so construed in the context of the Act that no word of the statute is rendered redundant, superfluous or meaningless. There need not be two views on what Shri Jamdar canvassed. The provisions of the Rent Act are quite clear. If one looks into a number of provisions contained in the Act, it is very clear that the rent has to be paid through money. If that was not so in number of provisions of the Act relating to the arrears of rent, additions to the rent, standard rent etc., would become redundant. The notice to be given by the landlord to the tenant calling upon him to pay the rent has also to be for payment in money and it cannot be in service. Under these circumstances, the submission of Shri Jamdar, is required to be accepted that the provisions of section 105 of the Transfer of Property Act, cannot be invoked for urban residential tenancy which are specifically covered under the Acts of the tenancy such as Bombay Rent Act.

6. In the circumstances, stated above, it is very clear that Hasan Jahagirdar was not required to pay any rent per month and was not a tenant of the first respondent institution. His occupation was at the highest a personal privilege of occupation and not tenancy. 

IN THE HIGH COURT OF BOMBAY

S.A. No. 758 of 1997

Decided On: 12.07.1999

Chinnupashabi  Vs.  Fatesingh Sikshan Sanstha and Ors.

Hon'ble Judges/Coram:
H.L. Gokhale, J.

Citation: 1999 (4) ALL MR 405




1. Heard Shri Godbole for the appellants and Shri Jamdar for the respondents. One Hasan Jahagirdar was working as a teacher in the school run by the first respondent Education Institution. While working in that school, he was in need of accommodation and hence a room in a students hostel, run by the first respondent institution, was made available to him. The premises consisted of a hall, admeasuring 20' x 16' along with verandah admeasuring 20' x 10'. This Hasan Jahagirdar died on 31st November, 1981. On his death and after passage of some reasonable time, the trustees of the first respondent institution sought the return of the premises. Since the premises were not returned, necessary notices were served and thereafter since the notices were also not honoured, the civil suit bearing No. 120/1983 was filed in the Court of Civil Judge, Jr. Dvn., Akkalkot. That suit came to be decreed on 5th of August, 1994. Being aggrieved by that judgment and decree, first appeal was preferred by the appellants herein, who are heirs of this Hasan Jahagirdar, to the Court of 5th Additional District Judge, Solapur. The appeal was dismissed and hence being aggrieved by the said judgment and order, this second appeal has been filed.

2. Shri Godbole, the learned Counsel for the appellants submitted that the deceased Hasan Jahagirdar will have to be construed a service tenant protected by section 13(1)(f) of the Bombay Rents, Hotel and Lodging House Rates, Control Act, 1947 (hereinafter referred to as Bombay Rent Act). Section 13(1)(f) reads as follows:-

"Section 13. When landlord may recover possession.---(1) Notwithstanding anything contained in this Act, (but subject to the provisions of sections 15 and 15-A), a landlord shall be entitled to recover possession of any premises, if the Court is satisfied.

.....

.....

(f) that the premises were let to the tenant for use as a residence by reasons of his being in the service or employment of the landlord, and that the tenant has ceased, whether before or after the coming into operation of this Act, to be in such service or employment, or---"

3. Shri Godbole submitted that it was not in dispute that Hasan Jahagirdar was in the employment of the first respondent institution and that the suit premises were made available to him by way of residence. Shri Godbole submitted that the tenant is not necessarily required to pay a rent in money and can be permitted to pay it in kind. He specifically referred section 105 of the Transfer of Property Act, whereunder in a lease of immovable property a service rendered can be the consideration for the lease. He drew my attention to the fact that it was the understanding between the parties that apart from his service in the School, Hasan Jahagirdar was to look after the Hostel. Shri Godbole submitted that this service was the consideration for the tenancy. Shri Godbole, therefore, submitted that the premises occupied by Hasan Jahagirdar were covered under the Bombay Rent Act and the first respondent landlord was required to take action under the provisions of that Act only and could not file a civil suit to evict Hasan Jahagirdar and his family members from the suit premises.

4. Undoubtedly, the suit which was filed by the respondent institution was a civil suit to take back possession from a person who was given a personal privilege of occupation. The suit was not one filed under the Bombay Rent Act. This being the position, Shri Godbole submitted that the orders passed by the courts below were lacking in competence and the courts concerned did not have jurisdiction to pass the decree. Shri Godbole relied on the judgment of the Gujarat High Court in the case of Govindbhai Parshottamdas Patel and others v. New Shorrock Mills, Nadiad, reported in MANU/GJ/0080/1984 : AIR1984Guj182 (D.B.), particularly paragraphs 16 and 30 thereof to submit that while exercising ordinary civil jurisdiction, the Civil Court cannot entertain and decide the question between a landlord and a tenant. The Division Bench of the Gujarat High Court has in that judgment held that when the same authority is exercising two jurisdictions, it must be clear as to which jurisdiction it was exercising. Shri Godbole also referred to a Single Judge's judgment of their Court reported in Mohd. Husain Chotumiya Shaikh v. Taraben Manilal Shah, 1991 Mah.R.C.J. 572. Shri Godbole also relied on the judgment reported in Ranchod Mathur Wasawa v. State of Gujarat, MANU/SC/0442/1973 : 1974CriLJ799 to submit that by agreement the courts cannot be conferred with jurisdiction.

5. As against the above submissions of Shri Godbole, Shri Jamdar, learned Counsel appearing for the respondents drew my attention to the fact that section 13(1)(f) requires that the premises were firstly let 'to a tenant' for the same being put in use as a residence by a person who is in service. So the person concerned has to be a tenant and a tenant has been defined under the Bombay Rent Act under section 5(11), as a person by whom or on whose account the rent is payable for any premises. Shri Jamdar drew my attention to the judgment of Hon'ble Supreme Court in the case of Dipak Banerjee v. Lilabati Chakraborty, reported in MANU/SC/0752/1987 : [1987]3SCR680 , wherein the question before the Supreme Court was as to whether the sewing activity can be considered to be the rent paid in kind and in a para 10, the Hon'ble Supreme Court in terms held that under the provisions of the particular Rent Act, service cannot be a consideration for sub-lease is the question. The Court observed "It is however, not possible to accept that services in lieu of the right of occupation would amount to receipt of rent... This frustrates and defeats the purpose of the Rent Act". Shri Jamdar took me through the provisions of the Rent Act and particularly the provisions regarding fixation of the standard rent, arrears of rent, additions to the rent etc., and submitted that if any such interpretation is accepted, a number of provisions of the Act would become redundant and in that context he drew my attention to the observations of the Supreme Court in the case of M/s. Alphali Pharmaceuticals Ltd. v. State of Maharashtra and others, reported in : 1989 (44) ELT 613 (SC) , that the provisions should be so construed in the context of the Act that no word of the statute is rendered redundant, superfluous or meaningless. There need not be two views on what Shri Jamdar canvassed. The provisions of the Rent Act are quite clear. If one looks into a number of provisions contained in the Act, it is very clear that the rent has to be paid through money. If that was not so in number of provisions of the Act relating to the arrears of rent, additions to the rent, standard rent etc., would become redundant. The notice to be given by the landlord to the tenant calling upon him to pay the rent has also to be for payment in money and it cannot be in service. Under these circumstances, the submission of Shri Jamdar, is required to be accepted that the provisions of section 105 of the Transfer of Property Act, cannot be invoked for urban residential tenancy which are specifically covered under the Acts of the tenancy such as Bombay Rent Act.

6. In the circumstances, stated above, it is very clear that Hasan Jahagirdar was not required to pay any rent per month and was not a tenant of the first respondent institution. His occupation was at the highest a personal privilege of occupation and not tenancy. In the circumstances, both the courts below were right in exercising the jurisdiction as regular Civil Courts in the suit which was filed by the respondent institution after serving the requisite notice to the late Hasan Jahagirdar.

7. Shri Jamdar, learned Counsel for the respondent also pointed out that the issue now sought to be raised was not raised in the written statement. Shri Godbole on the other hand submits that there is material on the record, on the basis of which the submission can be raised, as submission in law. This particular submission has been permitted to be raised by Shri Godbole and it has been squarely met by Shri Jamdar in law.

8. There is no other point of law involved in the Appeal. The Appeal is, therefore, dismissed.

9. Shri Godbole requests that the appellant be permitted to continue to occupy the premises for some more time so as to find out some suitable alternate accommodation. Shri Jamdar submits that although Hasan Jahagirdar died on 31st November, 1981, nearly 18 years have gone since then. He submits that the next academic term will start sometime after Dipawali and by that time the appellants must make alternate arrangement. This submission of Shri Jamdar is well justified. In the circumstances, the appellant may make their arrangement by 15th of November, 1999 till which date they may continue in the premises; provided they file an undertaking in this Court within 4 weeks from today that they will not part with the suit premises nor will they create any third party interest or induct anybody else in the suit premises. In the event no such undertaking is filed and copy is given to the respondents in 4 weeks, the respondents would be at liberty to execute the decree on the expiry of the period of 4 weeks from today. Above referred undertaking will also state that nobody else is staying in the suit premises apart form the appellants herein. Certified copy expedited.

10. Appeal dismissed.


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