Whether the Small cause court can grant reconnection of electric supply or water supply to the occupant of premises if he is gratuitous licensee as per landlord?

Mr. Vora further submitted that section 29 of the Maharashtra Rent Control Act, 1999 cannot be invoked by the Petitioners since they are not tenants or subtenants but they are mere gratuitous licensee and hence, no relief could have been granted in their favour even by the Trial Court. Mr. Vora, therefore, submitted that the Appeal was rightly allowed by the Appellate Court and prays for dismissal of this Writ Petition.

13. I have carefully considered the rival contentions and I am inclined to partly set aside the impugned orders for the following reasons :

i The fact that the Petitioners are in physical possession of the suit premises is not in dispute. In fact the Trial Court and the Appellate Court have both recorded a finding of fact in that respect. The very fact that the Respondent Defendant has now filed L.E. & C. Suit No. 91/120 of 2011 for possession clearly shows that the Petitioners herein are in physical possession. In this situation the law is well established that a person in possession of immovable property even when his possession is wrongful, cannot be dispossessed without following due procedure prescribed by law and there is series of Judgments of the Supreme Court and other High Courts who have taken this view. The learned Judge of the Trial Court had rightly granted an injunction that Plaintiffs could not be dispossessed by the Defendant without following due process of law and virtually no reason is given by the learned Judges of the Appellate Court as to why even this injunction has been set aside.

ii In so far as electricity supply is concerned, the Trial Court had rightly observed that the Plaintiffs can obtain any independent electricity supply from BEST or other service provider but after having observed this, the Trial Court ought to have moulded the relief in such a manner that it's observations in paragraph 13 of the impugned Judgment are capable of being implemented. This is not done by the Trial Court.

iii In so far as the Judgment of the Appellate Court is concerned, once having found that the Plaintiffs are in physical possession even when the Appellate Court was justified in observing that the nature of possession and the status of the Plaintiffs was in doubt, even without having regard to the provisions of section 29 of the Maharashtra Rent Control Act, 1999, the Appellate Bench has overlooked the provisions of section 151 of the Code of Civil Procedure, 1908 which reserves inherent power with the Court and provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court.

(Emphasis supplied)

iv If the Petitioners are in physical possession of the suit premises, which fact is accepted even before me by the learned Advocate for the Respondent during the course of the argument, then one fails to understand as to why they should be deprived of electricity and water supply which is absolutely bare necessity and essential for even the basic day-to-day life in the modern world. This aspect is completely overlooked by the learned Judges of the Appellate Court. Merely because the documents which were relied upon by the Plaintiffs at the time of hearing of the interim application were not sufficient to establish a plea of tenancy, the Appellate Court could not have overlooked the fact that the suit is yet to be tried and the evidence is yet to be led. At the prima facie stage, the material available on the record was sufficient to infer at least one thing that the Plaintiffs were in exclusive physical possession of the suit premises and also that the said possession of the Petitioners is not a forcible possession and even the Defendant has not raised a plea that just prior to the filing of the suit, the Plaintiffs have forcibly entered the suit premises. This being the state of affairs, in my opinion, learned Judges of the Appellate Court have committed a manifest error in interfering with the Judgment of the Trial Court.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 7315 of 2011

Decided On: 18.10.2011

 Hansa Bhaskar Dave Vs. Harihar Himmatlal Mehta

Hon'ble Judges/Coram:

G.S. Godbole, J.

Citation: MANU/MH/1339/2011,2012(1) Mh.LJ630

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Whether revision is tenable against order passed in application U/S 29 of Maharashtra rent control Act?

It is true that sub-section (4) of Section 34 provides for a remedy of revision when no appeal lies. It is also true that sub-section (4) makes the use of the word in any suit or proceeding but does not use the word application. Looking to the scheme of Act, 1999, it clearly appears that wherever appeals are provided, a remedy has been provided to the aggrieved party. However, where appeal is not provided; the Legislature wanted to provide a remedy of revision and that is done by way of sub-section (4) of Section 34. The Act is a self-contained Code providing for various remedies to the tenants as well as to the landlords and, therefore, any interpretation which would make the said intention of Legislature nugatory should not be adopted by a Court. In the present case, it is seen that though the word application is absent in sub-section (4), it cannot be said that the remedy of revision against an order on application under sub-clause (d) should be taken away. If such interpretation is adopted, the very purpose of providing remedies under the Act, which is self contained Code would lie in futility. The Court would prefer that which advances the remedy, ubi jus ibi remedium. The Court should always lean to interpret the provision for making the effective remedy available to a litigant or aggrieved party rather than denying it. I am inclined to hold that even an order on an application accepting or rejecting the same for directions to restore essential supply would be a proceeding within the meaning of sub-section(4) of Section 34 and consequently remedy of revision would be available to the aggrieved party.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 5228 of 2011

Decided On: 27.04.2012

Nirmal Ujwal Credit Co-Operative Society Ltd. Vs. Narendra Mohanlal Choudhary

Hon'ble Judges/Coram:

A.B. Chaudhari, J.

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Bombay HC: District Court has no jurisdiction to entertain appeal u/s. 29 of Maharashtra Rent Control Act 1999

Firstly, the proceeding under section 29 of the Act is an independent proceeding. Such proceeding cannot be a part of rent suit. Even in Civil Manual, in Clause like 337 prepared by this Court for procedure which is to be followed by the Trial Court, it is made clear that the proceedings including Misc. Civil Application requiring judicial inquiry need to be given separate number and they need to be dealt with separately. In view of this circumstance, it was necessary to file separate proceeding under section 29 of the Act.
4) Section 34, proviso (d) of sub-section (1) of the Act runs as under:-
"34. Appeal (1) Notwithstanding anything contained in any law for the time being in force, an appeal shall lie-
(a) in Brihan Mumbai, from a decree or order made by the Court of Small Causes, Mumbai, exercising jurisdiction under section 33, to a bench of two Judges of the said Court which shall not include the Judge who made such decree or order;
(b) elsewhere, from a decree or order made by a Judge of the Court of Small Causes established under the Provincial Small Causes Courts Act, 1887, or by the Court of the Civil Judge deemed to be the Court of Small Causes under clause (c) of sub-section (2) of section 33 or by a Civil Judge exercising such jurisdiction, to the the District Court :
Provided that no such appeal shall lie from,-
(a) .......
(d) an order made upon an application by a tenant for a direction to restore any essential supply or service in respect of the premises let to him."
This provision shows that the order made under section 29 of the Act is not appealable. This provision again shows that the application under section 29 cannot be a part of Rent Suit. Further, the District Court had no jurisdiction to entertain the appeal and that reason is sufficient for setting aside the order made by the District Court.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY [Aurangabad Bench]
(Before T V NALAWADE, JJ.) WRIT PETITION NO. 12003 OF 2016 dated 15/12/2016

Namdeo Maruti Mane	... Appellant
Versus
Ishwar Kondiba Khose	... Respondent

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