Wednesday, 4 December 2019

Under which law eviction suit is to be filed if open plot was let out on which saw mill was constructed?

It is pertinent to note that the definition of expression 'premises' given in the Act clearly indicates that the Act is not applicable to open lands and it applies to the buildings and structures and parts thereof used as separate premises for residence, education, business, trade or storage. However, the Rent Control Order applied to open lands also but by virtue of provisions of Section 58 of the Act, the said Rent Control Order has been repealed and by virtue of the provisions of Section 46 of the Act, the Rent Control Order is applicable only to the suits or proceedings pending on the date of commencement of the Act. Admittedly, on the date of commencement of the Act, no suit or proceeding for eviction of the defendant from the suit premises was pending and, therefore, in my opinion, it is the Transfer of Property Act which would govern the field and would be applicable to the matter in question and as such, the notice to quit issued by the plaintiffs to the defendant under Section 106 of Transfer of Property Act determining his tenancy without obtaining prior permission of the Rent Controller cannot be said to be illegal or invalid and, therefore, in my opinion, the learned trial Judge has rightly held so. I, therefore, find no substance in the contentions canvassed by the learned Counsel for the applicant in this regard.
Bombay High Court
Gangdas S/O Moujibhai Patel vs Harshvardhan S/O Balkrushna ... on 14 October, 2002
Equivalent citations: 2003 (4) BomCR 712, 2003 (1) MhLj 203


1. Heard finally at the stage of admission by the consent of the parties.
2. The present Civil Revision Application is directed against the order dated 8-7-2002 passed by the learned Joint Civil Judge, Junior Division, Gondia in Regular Civil Suit No. 170/2000, whereby the application filed by the applicant under Order 7 Rule 11 of Code of Civil Procedure for rejection of plaint came to be rejected.
3. A few facts insofar as they are relevant for the disposal of the present Civil Revision Application are as under :
The non-applicants/original plaintiffs have filed Regular Civil Suit No. 170/2000 against the applicant/original defendant for the possession, damages and mesne profits. It is averred by the plaintiffs that they are the owners of land bearing Nazul Plot No. 23/1, Sheet No. 7, situated at Seth Pratap Ward, Gondia and the defendant is in occupation of a total area admeasuring 6375 sq. ft. out of the said land (hereinafter referred to as "the suit premises") as their tenant at monthly rent of Rs. 400/-. The defendant runs a saw mill named and styled as 'Shankar Vijay Saw Mill' on the said land. It is further averred by the plaintiffs that the tenancy of the defendant commences from the 16th day of every English calendar month and ends on the 15th day of succeeding month. It is also averred by the plaintiffs that they had filed an application for fixation of fair rent of the suit premises before the Rent Controller and the Rent Controller was pleased to fix the rent of the suit premises at the rate of Rs. 12750/- per month. This order of the Rent Controller was challenged by the defendant by preferring an appeal before the Additional Collector, Gondia and the said matter is still subjudice. The plaintiffs now do not want to continue the tenancy of the defendant. They have, therefore, terminated the tenancy of the defendant by the end of 15-6-2000 by issuing a notice to quit dated 23-5-2000 which was served upon the defendant on 24-5-2000. By the said notice, the defendant was called upon to vacate the suit premises by 15-6-2000 and since he failed to comply with the same, the plaintiffs were constrained to file a suit for eviction, recovery of damages and mesne profits against the defendant.
4. The defendant resisted the plaintiffs' suit by filing the written statement. Though it is admitted by the defendant that he is occupying the suit premises as a tenant of the plaintiffs, he has denied other averments made by the plaintiffs.
5. During the pendency of the said suit, the defendant has filed an application under Order 7 Rule 11 of Code of Civil Procedure for rejection of plaint, mainly on the ground that the Maharashtra Rent Control Act, 1999 (hereinafter referred to as "the Act") is not applicable to the open lands and, therefore, it was necessary for the plaintiffs to obtain a prior permission of the Rent Controller as required by Clause 13 of Central Provinces and Berar Letting of Premises and Rent Control Order, 1949 (hereinafter referred to as "the Rent Control Order") before issuing a notice to quit and since they did not obtain such permission from the Rent Controller, the notice to quit issued by them to the defendant is not legal and valid and by such notice the defendant's tenancy cannot be said to have been validly terminated. It is further contended by the defendant that in an application filed by the plaintiffs for fixation of fair rent, the Rent Controller had initially fixed the rent of the suit premises at Rs. 12750/- per month. The defendant had challenged the said order of the Rent Controller by preferring an appeal before the Additional Collector, Gondia and the Additional Collector, Gondia allowed the said appeal and remanded back the matter to the Rent Controller for fresh enquiry. After remand, the Rent Controller made an enquiry and fixed the rent of the suit premises at Rs. 13,750/- per month. The said order passed by the Additional Collector, Gondia has been challenged by the plaintiffs by filing Writ Petition before this Court, which is still pending and this fact clearly indicates that the plaintiffs have submitted to the jurisdiction of the Rent Controller and, therefore, the suit filed by the plaintiffs is barred by virtue of the provisions of the Rent Control Order and as such, the plaint needs to be rejected.
6. The plaintiffs vide their say contended that no proceedings for eviction are pending under the Rent Control Order and, therefore, the question of application of Rent Control Order to the suit filed by the plaintiffs does not arise and as such, the application filed by the defendant under Order 7 Rule 11 of Civil Procedure Code is liable to be rejected.
7. The learned trial Judge after hearing the learned Counsel for the parties, rejected the defendant's aforesaid application vide impugned order dated 8-7-2002. It is the said order which is under challenge in this civil revision.
8. While assailing the impugned order, Shri S.V. Purohit, the learned Counsel for the applicant, raised two fold contentions. Firstly, it is contended by him that since the Act is not applicable to the open lands, it is the Rent Control order which is applicable to the same and as per Clause 13 of Rent Control Order, the prior permission of Rent Controller is required to be obtained before issuing a notice to quit and since the plaintiffs have not obtained such permission, the notice to quit issued by them cannot be said to be legal and valid and, therefore, by the said notice the tenancy of the defendant cannot be said to have been validly terminated. Secondly, it is contended by Shri Purohit, the learned Counsel for the applicant, that since the plaintiffs have challenged the order passed by the Additional Collector, Gondia, in fixation of fair rent proceedings, by filing a Writ Petition before this Court, it can very well be said that they have submitted to the jurisdiction of the Rent Controller and since they had not obtained prior permission of Rent Controller before issuing notice to quit, the suit filed by the plaintiffs is bad in law. According to Shri Purohit, the learned trial Judge has failed to consider these aspects of the matter in proper perspective and, therefore, the impugned order rejecting the defendant's application filed under Order 7 Rule 11 of Civil Procedure Code needs to be quashed and set aside being contrary to law.
9. On the other hand, Shri Borkar, the learned Counsel for the non-applicants, while supporting the impugned order submitted that admittedly no proceedings for eviction of the defendant from the suit premises were pending on the date of commencement of the Act and, therefore, the Rent Control Order is not applicable to the suit filed by the plaintiffs against the defendants in view of the provisions of Sections 46 and 58 of the Act and as such, the notice to quit issued by the plaintiffs to the defendant under Section 106 of the Transfer of Property Act is perfectly legal and valid. According to Shri Borkar, the learned trial Judge has rightly held so and, therefore, the impugned order needs no interference at the hands of this Court.
10. I have carefully considered the contentions canvassed by the learned Counsel for the parties and perused the impugned order. In order to consider the controversy in question, it would be appropriate to consider the relevant provisions of the Act.
11. Section 2(2) of the Maharashtra Rent Control Act, 1999 which is regarding its application provides as under:--
"Section 2(2). Notwithstanding anything contained in Sub-section (1), it shall also apply to the premises or, as the case may be, houses let out in the areas to which the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 or the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 issued under the Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946 and Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 were extended and applied before the date of commencement of this Act and such premises or houses continue to be so let on that date in such areas which are specified in Schedule I to this Act, notwithstanding that the area ceases to be of the description therein specified."
The second part of Section 2 specifies the areas to which also the Act extends. It provides that the Act would apply to three areas, i.e. (i) the areas to which the Bombay Rent Control Act, 1947 applied, (ii) the areas to which the Central Provinces and Berar Letting of Promises and Rent Control Order, 1949 applied and (iii) the areas to which the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 applied. From this, it is manifest that although these three Acts have been repealed, the areas covered by the three Acts when this Act came into force would continue to be governed by the present Act.
12. Section 7(9) of the Act which defines 'premises' reads as under :--"S.7(9). "premises" means any building or part of a building let or given on licence separately (other than a farm building) including, --
 (i)      the gardens, grounds, garages and out houses, if any, appurtenant
to such building or part of a building,
 

(ii)     any fitting affixed to such building or part of a building for the more beneficial enjoyment thereof, but does not include a room or other accommodation in a hotel or lodging house;"  
 

Section 46 of the Act which is about pending suits and proceedings in the Court provides as under:--
  
 

"Section 46(1) Subject to Sub-section (2), all suits and proceedings filed by landlords, being the landlords referred to in clause (a) or (b) or (c) of Section 41 for eviction of tenant on the grounds specified in Section 22 or 23 or 24 and pending on the date of commencement of this Act, unless the landlord withdraws the same in relation to relief of recovery of possession of the premises claimed therein, be heard, proceeded with and disposed of by the Court in which such suit or proceeding is pending as if this Act had not been passed.
(2) Any such landlord seeking to evict the tenant on the grounds specified in Section 22 or 23 or 24 may, if he has already proceeded against the tenant in a suit or in a proceeding in the court and withdraws the suit or proceeding in relation to the claim made therein with leave of court, proceed against the tenant in accordance with the provisions of this Chapter."
Section 58 of the Act relating to the repeal and saving reads as under:--
  
 

"Section 58(1) On the commencement of this Act, the following laws, that is to say,
  
 

(a)     the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947,
 

(b)     the Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946 including the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949; and
 

(c)     the Hyderabad Houses (Rent, Eviction and Lease) Control Act,
1954, shall stand repealed.  
 

 (2) Notwithstanding such repeal,
  
 


(a)     all applications, suits and other proceedings under the said Acts, pending on the date of commencement of this Act before any Court, Controller, Competent Authority or other office or authority, shall be continued and disposed of, in accordance with the provisions of the Acts so repealed, as if the said Acts had continued in force and this Act had not been passed;
 

(b)     the provisions for appeal under the Acts so repealed shall continue in force in respect of applications, suits and proceedings disposed of thereunder;
 

(c)     any appointment, rule and notification made or issued under any of the repealed Acts and in force on the date of commencement of this Act shall, insofar as they are not inconsistent with the provisions of this Act, be deemed to have been made or issued under this Act and shall continue in force until it is superseded or modified by any appointment, rule or notification made or issued under this Act;
 

(d)     all prosecutions instituted under the provisions of any of the repealed Acts shall be effective and disposed of in accordance with the law."  
 

13. It is pertinent to note that the definition of expression 'premises' given in the Act clearly indicates that the Act is not applicable to open lands and it applies to the buildings and structures and parts thereof used as separate premises for residence, education, business, trade or storage. However, the Rent Control Order applied to open lands also but by virtue of provisions of Section 58 of the Act, the said Rent Control Order has been repealed and by virtue of the provisions of Section 46 of the Act, the Rent Control Order is applicable only to the suits or proceedings pending on the date of commencement of the Act. Admittedly, on the date of commencement of the Act, no suit or proceeding for eviction of the defendant from the suit premises was pending and, therefore, in my opinion, it is the Transfer of Property Act which would govern the field and would be applicable to the matter in question and as such, the notice to quit issued by the plaintiffs to the defendant under Section 106 of Transfer of Property Act determining his tenancy without obtaining prior permission of the Rent Controller cannot be said to be illegal or invalid and, therefore, in my opinion, the learned trial Judge has rightly held so. I, therefore, find no substance in the contentions canvassed by the learned Counsel for the applicant in this regard.
14. Another contention canvassed by the learned Counsel for the applicant in respect of submission of the plaintiffs to the jurisdiction of the Rent Controller on account of filing of writ petition challenging the order of Additional Collector, Gondia in respect of fixation of fair rent is also misconceived and devoid of any substance, firstly because admittedly the said proceedings were only for fixation of fair rent and not for eviction and secondly, the said proceedings were already pending on the date of commencement of the Act. Under such circumstances, it cannot be said that since the plaintiffs had challenged the order of Rent Controller regarding fixation of fair rent by filing the Writ 'Petition before this Court, they have submitted to the jurisdiction of the Rent Controller and, therefore, they cannot now take a different stand saying that the Rent Control Order is not applicable to the present suit. The proceedings for fixation of fair rent and the proceedings for eviction are quite different. Moreover, the proceedings for fixation of fair rent were pending on the date of commencement of the Act and, therefore, by virtue of the provisions of Section 46 of the Act, it is the Rent Control Order which is applicable to the said proceedings and not the provisions of the Act. Such is not the case here. Admittedly, the present suit for eviction was filed after the commencement of the Act. Not only that but the notice to quit was also issued after the commencement of the said Act and, therefore, the contentions raised by the learned Counsel for the applicant even on this count to the effect that the suit filed by the plaintiffs is bad in law being misconceived cannot be sustained.
15. Admittedly, in the case in hand the suit premises is an open land. So also it is not disputed that the notice to quit was issued by the plaintiffs to the defendant after the date of commencement of the Act and since the Rent Control Order is repealed by virtue of provisions of Section 58 of the Act, in my opinion, the learned trial Judge has rightly held that the notice to quit issued by the plaintiffs to the defendant under the provisions of Transfer of Property Act is legal and valid.
16. For the reasons stated hereinabove, no case is made out for interference.
17. In the result, the present Civil Revision Application being devoid of any substance needs to be dismissed. It is accordingly dismissed. However, in the facts and circumstances of the case, there would be no order as to costs.
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