Whether Small cause court can entertain a suit if tenant challenges notice issued by Municipal Corporation U/S 53 of MRTP Act?

  But, if it is held that section 53(3) of the MRTP Act was the remedy available to respondent No.1, it would mean that on an application moved by respondent No.1, the Competent Authority could either withdraw the notice or permit retention of only some part of the premises or the application would stand rejected. In either case, it would directly impinge upon the protection available to respondent No.1 as a tenant under the provisions of the Rent Control Act. If the Competent Authority would grant permission to retain only some portion of the premises, it would clearly impinged upon the rights of respondent No.1 as a tenant to continue in possession of the entire premises. This would lead to a situation where the original defendant No.1- landlord would successfully circumvent the provisions of the Rent Control Act to get rid of respondent No.1. Even otherwise, this would lead to a situation of foisting jurisdiction on the Competent Authority under the MRTP Act, regarding protection available to tenants under the Rent Control Act, which cannot be contemplated. It is in this context that respondent No.1 is justified in pleading before the Small Causes Court that the action of the  defendants is unsustainable, as it amounts to denying respondent No.1 the protection available under the Rent Control Act. Therefore, the contentions raised on behalf of the revisional applicants on the basis of section 53 of the MRTP Act cannot be accepted. {Para 22}

23. Although, a perusal of merely the prayer clause in the suit filed by respondent No.1 at first blush, may give an impression that such a prayer cannot be made before the Small Causes Court in the face of the bar contained in section 149 of the MRTP Act, a proper appreciation of the pleadings in the plaint clearly demonstrates that the Small Causes Court can certainly exercise jurisdiction to consider the grievance raised by respondent No.1. The contention raised on behalf of the revisional applicants Municipal Corporation that in a suit between the landlord and tenant it could never be made a party, is wholly misplaced because of the specific pleadings raised on behalf of respondent No.1 in the suit filed before the Small Causes Court. It is only as a matter of fair procedure, that the Municipal Corporation is made a party before the Small Causes Court, since certain pleadings are raised by respondent No.1 concerning the action undertaken by the Municipal Corporation. In this context, the learned counsel for respondent No.l is justified in contending that any such enquiry undertaken by the Small Causes Court regarding actions of the Municipal Corporation, would be incidental to the main enquiry regarding protection available to respondent No.l under the provisions of the Rent Control Act. Thus, there is no substance in the said contention also. 

Bombay High Court

Municipal Commissioner, Nagpur ... vs M/S Shivdatt And Sons, Proprietor ... on 28 November, 2019

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Whether tenant is entitled to get protection of rent law if he is not in possession of rented premises?

 Shri V. Giri, learned Senior Counsel appearing on behalf of the appellant submits that the issue is no more res integra. This Court, speaking through a bench of three judges, in the case of Bharat Petroleum Corporation Limited v. R. Chandramouleeswaran and others, (2020) 11 SCC 718 has held that the tenants would not be entitled to benefit and rights under the Tenants Act unless they are in actual physical possession of the building constructed by them. He submits that, in the present case also, undisputedly, respondent No.1­BPCL has sub­let/leased out the said premises to the respondent No.2 and as such, it is not in actual physical possession of the building constructed by it. He therefore submits that the judgment of this Court in the case of R. Chandramouleeswaran (supra) squarely applies to the facts of the present case.

{Para 5}

18. We have perused the agreement between the respondent No.1­BPCL and the respondent No.2 herein. Shri Kailash Vasdev, learned Senior Counsel, fairly concedes that all the agreements between the respondent No.1­BPCL and its dealers are identical. As such, when a Bench of three judges of this Court in the case of R. Chandramouleeswaran (supra), while considering a similar agreement between the appellant­BPCL and the dealer, has held that since the appellant tenant was not in actual physical possession, it was not entitled to the protection under the Tenants Act, the said view is bound even in the facts of the present case.

19. In the result, we find that the view taken by the High Court, thereby relegating the appellant to the alternate remedy available in law, is not sustainable.

Supreme Court

JUSTICE L. NAGESWARA RAO JUSTICE B.R. GAVAI

NATIONAL COMPANY, REPRESENTED BY ITS MANAGING PARTNER Vs. THE TERRITORY MANAGER, BHARAT PETROLEUM CORPORATION LTD. & ANR.

CIVIL APPEAL NO. 6726 OF 2021

11th November 2021

Citation: 2021 ALL SCR (ONLINE) 638

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