Friday, 20 December 2019

Bombay HC: Distinction between eviction on ground of bonafide need and eviction of service tenant under Maharashtra rent control Act

After hearing the learned counsel for the parties at length and after giving due consideration to their respective submissions, I find that the impugned order is unsustainable. Perusal of the plaint indicates that eviction of the non-applicant has been sought under provisions of section 16(1)(f) and 16(1)(g) of the said Act. As per provisions of section 16(1)(f), if the premises are let out for use as a residence by reason of the tenant being in service or employment and the tenant has ceased to be in service or employment, his eviction can be sought. Under section 22 of the said Act, if a landlord intends to let out any premises to his employee, then they may enter into a written agreement to create a service tenancy and such tenancy shall remain in force during the period of service or employment of the employee. After creation of such service tenancy, if the tenant ceases to be in service or employment of the landlord, then it is open for the landlord to apply to the Competent Authority who shall make an order that the tenant shall place the landlord in vacant possession. As per the First proviso to section 22 of the said Act, if an application is made after a period of thirty days of the expiry of the period stipulated under section 22(2) of the said Act, that period can be condoned. As per the Second proviso, in case the order of termination is under challenge before any Tribunal or Court, the order of eviction cannot be passed until the adjudication as regards the order of termination becomes final.

7. From the aforesaid, it can be seen that the provisions of section 16(1)(f) and section 22 operate in separate fields. For the purposes of the provisions of section 16(1)(f) of the said Act, there is no requirement of any agreement in writing and the tenancy may be one which is created even prior to coming into force of the said Act. However, section 22 requires an agreement in writing and the tenancy being created after the coming into force of the said Act. Reference in that regard can be made to the decision in Janabai Govindrao Korche (supra) that has been relied upon by the learned counsel for the applicant, wherein it is held that application of section 22 of the said Act is prospective in nature. In the present case, even according to the non-applicant, the tenancy has been created prior to twenty five years which is before coming into force of the said Act.

Further, the landlord has not approached the Competent Authority under section 22(2) of the said Act but has approached the Civil Court under section 33 read with section 16(1)(f) of the said Act. It is only if the landlord approaches the Competent Authority under section 22(2) of the said Act that the Second proviso to section 22 would come into operation. It is thus clear that for the purposes of seeking eviction under section 16(1)(f) of the said Act, it is not necessary as contemplated by the Second proviso to section 22 to await the final adjudication on the validity of the order of termination. On these counts, it is held that the trial Court committed an error in allowing the application below Exhibit 15.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Rev. Appln. No. 70 of 2018

Decided On: 11.09.2018

 Shraddhanand Anathalaya  Vs.  Kusum

Hon'ble Judges/Coram:
A.S. Chandurkar, J.

Citation: 2019(1) RCR(Rent) 407


1. Civil Revision Application is ADMITTED and heard finally with consent of learned counsel for the parties.

2. The applicant is the original plaintiff that has filed suit for eviction of the non-applicant herein under provisions of section 16(1)(f) and (g) of the Maharashtra Rent Control Act, 1999 (for short, 'the said Act'). It is the case of the applicant that it is running Anathalaya and the non-applicant was in service therein. The suit premises which is a servant quarter having two rooms was let out to the non-applicant in lieu of her service with the applicant. The services of the non-applicant came to be terminated and hence possession of the said quarter was sought under provisions of section 16(1)(f) of the said Act. It was also pleaded that the applicant-Trust had bona fide need of the said premises. Written statement was filed by the non-applicant stating therein that the order terminating the services of the non-applicant had been challenged before the Labour Court and those proceedings were pending. Since the said complaint was pending no order of eviction could have been passed against the non-applicant.

3. During pendency of the suit, the non-applicant filed an application for keeping the proceedings for eviction in abeyance till the complaint filed by the non-applicant before the Labour Court was decided. This application was opposed by the plaintiff and initially by order dated 12-1-2016, the trial Court rejected that application. The Appellate Court however allowed the appeal filed by the non-applicant and remanded the matter for fresh consideration. After remand, the trial Court allowed the application and stayed the adjudication of the suit till the Labour Court decided the complaint. Being aggrieved, the original plaintiff has challenged that order.

4. Shri R.M. Sharma, learned counsel for the applicant, submitted that the trial Court erred in staying the proceedings in the suit for eviction. According to him, besides eviction being sought under provisions of section 16(1)(f) of the said Act, eviction was also sought under provisions of section 16(1)(g) of that Act. The prayer for eviction on the ground of bona fide need had no connection with the services of the non-applicant and therefore the suit to that extent was not required to be stayed. It was then submitted that the provisions of section 22 of the said Act that were taken into consideration have no application inasmuch as there was no written agreement of tenancy and that the provisions of sections 22 were prospective in nature. In that regard, the learned counsel placed reliance on the decision in Janabai Govindrao Korche and another vs. Women's Education Society and others, MANU/MH/0642/2009 : 2009(5) Mh.LJ. 749. It was thus submitted that the impugned order was liable to be set aside.

5. Shri D.C. Naukarkar, learned counsel for the non-applicant supported the impugned order and relied upon provisions of section 22 of the said Act. It was submitted that there was no dispute that the non-applicant was in service of the Trust and therefore, the order of termination had been challenged in the Labour Court. Those proceedings were pending. As per Second proviso to section 22 of the said Act, where dispute with regard to such termination is pending before any Tribunal or Court, then the order of eviction is not liable to be passed until such Tribunal or Court finally upholds the order of termination. It was thus submitted that since the complaint filed by the non-applicant was pending before the Labour Court, the trial Court rightly stayed further proceedings in the suit for eviction.

6. After hearing the learned counsel for the parties at length and after giving due consideration to their respective submissions, I find that the impugned order is unsustainable. Perusal of the plaint indicates that eviction of the non-applicant has been sought under provisions of section 16(1)(f) and 16(1)(g) of the said Act. As per provisions of section 16(1)(f), if the premises are let out for use as a residence by reason of the tenant being in service or employment and the tenant has ceased to be in service or employment, his eviction can be sought. Under section 22 of the said Act, if a landlord intends to let out any premises to his employee, then they may enter into a written agreement to create a service tenancy and such tenancy shall remain in force during the period of service or employment of the employee. After creation of such service tenancy, if the tenant ceases to be in service or employment of the landlord, then it is open for the landlord to apply to the Competent Authority who shall make an order that the tenant shall place the landlord in vacant possession. As per the First proviso to section 22 of the said Act, if an application is made after a period of thirty days of the expiry of the period stipulated under section 22(2) of the said Act, that period can be condoned. As per the Second proviso, in case the order of termination is under challenge before any Tribunal or Court, the order of eviction cannot be passed until the adjudication as regards the order of termination becomes final.

7. From the aforesaid, it can be seen that the provisions of section 16(1)(f) and section 22 operate in separate fields. For the purposes of the provisions of section 16(1)(f) of the said Act, there is no requirement of any agreement in writing and the tenancy may be one which is created even prior to coming into force of the said Act. However, section 22 requires an agreement in writing and the tenancy being created after the coming into force of the said Act. Reference in that regard can be made to the decision in Janabai Govindrao Korche (supra) that has been relied upon by the learned counsel for the applicant, wherein it is held that application of section 22 of the said Act is prospective in nature. In the present case, even according to the non-applicant, the tenancy has been created prior to twenty five years which is before coming into force of the said Act.

Further, the landlord has not approached the Competent Authority under section 22(2) of the said Act but has approached the Civil Court under section 33 read with section 16(1)(f) of the said Act. It is only if the landlord approaches the Competent Authority under section 22(2) of the said Act that the Second proviso to section 22 would come into operation. It is thus clear that for the purposes of seeking eviction under section 16(1)(f) of the said Act, it is not necessary as contemplated by the Second proviso to section 22 to await the final adjudication on the validity of the order of termination. On these counts, it is held that the trial Court committed an error in allowing the application below Exhibit 15.

8. In view of aforesaid adjudication, the following order is passed:-

I) The order passed below Exhibit 15 in Regular Civil Suit No. 17 of 2015 is set aside. The application as filed stands rejected.

II) The suit for eviction be decided on its own merits and in accordance with law.

9. The Civil Revision Application is allowed in aforesaid terms and disposed of.


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