In these circumstances, the question arose for decision whether the present respondent, whose residence is given in the special leave petition as "Agakhan Building, Haines Road, Bombay", could possibly claim to be a tenant in respect of the shop which admittedly constitutes business premises by reason of Section 5(11)(c) of the Act. The High Court took the view that Section 5(11)(c) applies not only to residential premises but also to business premises and therefore, on the death of a tenant of business premises, any member of tenant's family residing with him at the time of his death would become a tenant. We do not think this view taken by the High Court is correct. It is difficult to see how in case of business premises, the need for showing residence with the original tenant at the time of his death would be relevant. It is obvious from the language of Section 5(11)(c) that the intention of the legislature in giving protection to a member of the family of the tenant residing with him at the time of his death was to secure that on the death of the tenant, the member of his family residing with him at the time of his death is not thrown out and this protection would be necessarily only in case of residential premises. When a tenant is in occupation of business premises, there would be no question of protecting against dispossession a member of the tenant's family residing with him at the time of death. The tenant may be carrying on a business in which the member of his family residing with him may not have any interest at all and yet on the construction adopted by the High Court, such member of the family would become a tenant in respect of the business premises. Such a result could not have been intended to be brought about by the legislature. It is difficult to discern any public policy which might seem to require it. The principle behind Section 5(11)(c) seems to be that when a tenant is in occupation of premises, the tenancy is taken by him not only for his own benefit, but also for the benefit of the members of the family residing with him and therefore, when the tenant dies, protection should be extended to the members of the family who were participants in the benefit of the tenancy and for whose needs inter alia the tenancy was originally taken by the tenant. This principle underlying the enactment of Section 5(11)(c) also goes to indicate that it is in respect of residential premises that the protection of that section is intended to be given. We can appreciate a provision being made in respect of business premises that on the death of a tenant in respect of such premises, any member of the tenant's family carrying on business with the tenant in such premises at the time of his death shall be a tenant and the protection of the Rent Act shall be available to him. But we fail to see the purpose the legislature could have had in view in according protection in respect of business premises to a member of the tenant's family residing with him at the time of his death. The basic postulate of the protection under the Rent Act is that the person who is sought to be protected must be in possession of the premises and his possession is protected by the legislation. But in case of business premises, a member of the family of the tenant residing with him at the time of his death may not be in possession of the business premises; he may be in service or he may be carrying on any other business. And yet on the view taken by the High Court, he would become tenant in respect of the business premises with which he has no connection. We are, therefore, in agreement with the view taken by one of us (Bhagwati J.) in the Gujarat High Court about the correct meaning, of Section 5(11)(c) in Parubai Manilal Brahmin and Ors. v. Baldevdas Zaverbhai Tapodhan (1964) 5 Gujarat L.R. 563, in preference to the view adopted in the subsequent decision of the Gujarat High Court in Heirs of deceased Darji Mohanlal Lavji v. Muktabai Shamji (1971) 12 Guj L.R. 272 which decision was followed by the Bombay High Court in the judgment impugned in the present appeals before us.
8. It is significant to note that after the decision of Gujarat High Court in Parubai Manilal Brahmin and Ors. v. Baldevdas Zaverbhai Tapodhan (supra) the Gujarat legislature amended the Rent Act by substituting the following provision for Section 5(11)(c) :
5(11)(c)(i) in relation to premises let for residence, any member of the tenant's family residing with the tenant' at the time of, or within three months immediately preceding, the death of the tenant as may be decided in default of agreement by the Court, and
(ii) in relation to premises let for business, trade or storage, any member of the tenant's family carrying on business, trade or storage with the tenant in the said premises at the time of the death of the tenant as may continue, after his death, to carry on the business, trade or storage, as the case may be, in the said premises and as may be decided in default or agreement by the Court.
9. This amendment was of course necessitated by the decision in Parubai Manilal Brahmin and Ors. v. Baldevdas Zaverbhai Tapodhan (supra) and it cannot, therefore, be relied upon for the purpose of supporting the view taken in that decision. But what is of significance is that when the legislature enacted a provision in regard to business premises in Clause (ii) of Section 5(11)(c), the legislature made it clear that the protection in respect of business premises was intended to be given, not to any member of the tenant's family residing with him at the time of his death, but to a member of the tenant's family carrying on business with him in such premises at the time of his death. The legislative intent, therefore, never was to confer protection; in respect of business premises on a member of the tenant's family residing with him at the time of his death. This is also a circumstance which supports the view taken by the Gujarat High Court in the earlier decision in Parubai Manilal Brahmin and Ors. v. Baldevdas Zaverbhai Tapodhan and shows that the view taken in the subsequent decision in Heirs of deceased Darji Mohanlal Lavji v. Muktabai Shamji is not correct. Of course, the amendment made in Rent Act in the State of Gujarat cannot assist us in interpreting Section 5(11)(c) of the Rent Act in the Act of Maharashtra, but it is not wholly irrelevant, since the judgment of the Bombay High Court in appeal before us relies heavily on the decision of the Gujarat High Court in Heirs of deceased Darji Mohanlal lavji v. Muktabai Shamji (supra) and if that decision is incorrect, the judgment in appeal before us must also likewise be held to suffer from same infirmity. We must, therefore, hold that Section 5(11)(c) applies only in respect of residential premises and since the premises in question before us were admittedly business premises in the respondent, who was son of the original tenant, could not claim to be a tenant under section
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 1717 of 1975
Decided On: 21.02.1978
Ganpat Ladha Vs. Sashikant Vishnu Shinde
Hon'ble Judges/Coram:
M. Hameedullah Beg, C.J., Jaswant Singh and P.N. Bhagwati, JJ.
