The only question which has to be determined, therefore, is whether the tenant is entitled to urge that there is a waiver by the previous landlord of the breach committed by the tenant, inasmuch as for a period of six years from 1960 to 1967, the landlord has accepted rent without any protest and whether this would mean that breach has been waived and, according to the learned counsel, the present plaintiffs cannot take advantage of that breach since it has already been waived by the previous landlord. This argument was founded on a decision of the Punjab High Court in M/s. New Garage Ltd. v. Khuswant Singh & another MANU/PH/0024/1952 : AIR (1952 P&H. 82, where dealing with provisions of section 9(1)(b) of the Delhi & Ajmer Merwara Rent Control Act, the Division Bench took the view that the effect of section 9(1)(b) of that Act was that if it was proved that by consent of the landlord premises have been used for purposes other than that for which they were let, a landlord will not have the right of ejectment. It was held that the consent may be either express or implied and, therefore, section 9(1)(b) would be defeated by waiver on the part of the landlord if it is proved that by his past conduct he had consented to a particular breach of the covenant with regard to user of the premises. Section 9(1)(b) of that Act provided as follows:--
9. (1) Notwithstanding anything contained in any contract, no Court shall pass any decree in favour of a landlord, or make any order, in favour of a landlord whether in execution of a decree or otherwise, evicting any tenant, whether or not the period of the tenancy has terminated, unless it is satisfied either.
* * * *
(b) that the tenant without the consent of the landlord, has whether before or after the commencement of this Act,
(i) used the premises for a purposes other than that for which they were let, or
Now, while it may not be possible to quarrel with the proposition-laid down in the Punjab decision, the ratio of that decision cannot be applied with full force in the present case in view of the provisions of section 25 of the Bombay Rent Act on which reliance has been placed by Shri Gumaste appearing on behalf of the landlord. Section 25 of the Bombay Rent Act is as follows :--
25. (1) A landlord shall not use or permit to be used for a nonresidential purpose any premises which on the date of the coming into operation of this Act were used for a residential purpose.
(2) Any landlord who contravenes the provisions of sub-section (i) shall, on conviction, be punishable with imprisonment for a term which may extend to three months or with fine or with both.
Shri Abhyankar has contended that section 25 is merely a penal provision and will not come in the way of the defendant if he wants to prove a waiver by the landlord. Now, it is clear on the reading of provisions of section 25 that it is in two parts. The first part is prohibitory in character and operates as an injunction against the landlord and prevents him from using or permitting to be used premises which are used for a residential purpose on the date of the coming into operation of the Rent Act to be used for a non-residential purpose. The object appears to be that the accommodation which is available for residential purposes should not be allowed to be reduced by unilateral action on the part of the landlord either by using it or by allowing it to be used for a non-residential purpose. Sub-section (2) of section 25 prescribes the penalty for a contravention of sub-section (1). Now, while it may not be disputed that a right of termination of lease flowing out of a breach or the lease by the tenant can be waived by the landlord if he does not want to exercise this right. In so far as the provisions of the Rent Act are concerned, the right of the landlord to allow the premises to be used for any other purpose in a case where the premises were originally taken for residential purposes is now controlled or indeed taken away by the provisions, of section 25(1). Any waiver which is bound ultimately to result in either temporary or permanent change in the user of residential premises for nonresidential purposes is bound to defeat the provisions of section 25 (1) which has clearly been enacted on the ground of public policy. Any contract between the landlord and the tenant whether expressly made or inferred by implied consent would, therefore, be only impermissible in a case where residential premises are sought to be used or allowed to be used for non-residential purposes in view of the imperative character of section 25 (1). In such a case, there is no question of any waiver because if a landlord cannot legally do anything expressly, the same result could not be brought about by implication. Thus, there is clear indication in section 25 (1) that a tenant cannot be permitted to use residential accommodation for non-residential purpose either by express permission or by permission granted impliedly and in such a case, it is not open, therefore, to the tenant to contend that the landlord has waived the breach so as to defeat his right under section 13 (1) (a) of the Bombay Rent Act, It is not, therefore, possible to accept the contention that the landlord has waived the breach.
11. It was then contended that the house is of 30 khans and only accommodation to the extent of 10 khans is being utilised for non-residential purposes and, therefore, the dominant use of the premises continued to be for residential purposes and consequently section 25 (1) will not be affected. Having regard to the nature of the provisions of section 25 (1) and its object, in my view, the question of either dominant use or ancillary use of the premises becomes wholly irrelevant. Even otherwise so far as the present case is concerned, mere extent of the accommodation will not be very relevant.
IN THE HIGH COURT OF BOMBAY
Spl. C.A. No. 561 of 1977
Decided On: 21.08.1981
Bansilal Rampratap Rathi Vs.Suratsing Chandanmal and others
Hon'ble Judges/Coram:
M.N. Chandurkar, J.
