After hearing the learned counsel for the parties at length and after giving due consideration to their respective submissions, I find that the impugned order is unsustainable. Perusal of the plaint indicates that eviction of the non-applicant has been sought under provisions of section 16(1)(f) and 16(1)(g) of the said Act. As per provisions of section 16(1)(f), if the premises are let out for use as a residence by reason of the tenant being in service or employment and the tenant has ceased to be in service or employment, his eviction can be sought. Under section 22 of the said Act, if a landlord intends to let out any premises to his employee, then they may enter into a written agreement to create a service tenancy and such tenancy shall remain in force during the period of service or employment of the employee. After creation of such service tenancy, if the tenant ceases to be in service or employment of the landlord, then it is open for the landlord to apply to the Competent Authority who shall make an order that the tenant shall place the landlord in vacant possession. As per the First proviso to section 22 of the said Act, if an application is made after a period of thirty days of the expiry of the period stipulated under section 22(2) of the said Act, that period can be condoned. As per the Second proviso, in case the order of termination is under challenge before any Tribunal or Court, the order of eviction cannot be passed until the adjudication as regards the order of termination becomes final.
7. From the aforesaid, it can be seen that the provisions of section 16(1)(f) and section 22 operate in separate fields. For the purposes of the provisions of section 16(1)(f) of the said Act, there is no requirement of any agreement in writing and the tenancy may be one which is created even prior to coming into force of the said Act. However, section 22 requires an agreement in writing and the tenancy being created after the coming into force of the said Act. Reference in that regard can be made to the decision in Janabai Govindrao Korche (supra) that has been relied upon by the learned counsel for the applicant, wherein it is held that application of section 22 of the said Act is prospective in nature. In the present case, even according to the non-applicant, the tenancy has been created prior to twenty five years which is before coming into force of the said Act.
Further, the landlord has not approached the Competent Authority under section 22(2) of the said Act but has approached the Civil Court under section 33 read with section 16(1)(f) of the said Act. It is only if the landlord approaches the Competent Authority under section 22(2) of the said Act that the Second proviso to section 22 would come into operation. It is thus clear that for the purposes of seeking eviction under section 16(1)(f) of the said Act, it is not necessary as contemplated by the Second proviso to section 22 to await the final adjudication on the validity of the order of termination. On these counts, it is held that the trial Court committed an error in allowing the application below Exhibit 15.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Civil Rev. Appln. No. 70 of 2018
Decided On: 11.09.2018
Shraddhanand Anathalaya Vs. Kusum
Hon'ble Judges/Coram:
A.S. Chandurkar, J.
Citation: 2019(1) RCR(Rent) 407
