Whether tenant in possession of the tenanted property after termination of tenancy can be held guilty for the offence of criminal trespass?

On the basis of the discussions made in the preceding paragraphs, we are of the opinion that the rigors of section 441, . I. P. C. as amended by the Orissa Act 22 of 1986 shall not be applicable to the following cases :

(i) Statutory tenants whose tenancy is governed by any statute.

[They are protected by tenancy laws like. Public Premises Eviction Act, etc.]

(ii) Tenant who has entered into possession by virtue of a lease.

[Rights of such tenant is governed under the provisions of the Transfer of Property Act and the Specific Relief Act and he acquires a right of possession. After determination of tenancy by notice, he would become "Tenant holding •over", "Tenant on sufferance" or "Tenant at will" as the case may be. His possession being juridical, is protected He can be evicted only in due process of law. The possession of such tenant cannot be equated with that of trespassers.]

(iii) Person who has entered into possession by virtue of some covenant like, agreement to sell, will etc. and/ or put forth a genuine right over the property possessed.

[If a person claims a right of title coupled with possession, till the dispute is adjudicated, his possession cannot be conclusively said to be that of a trespasser and his right to possess would be subject to the result of the suit or legal proceeding.]

However, the said section shall be applicable to the following category of persons ;

(i) Person who was permitted to possess a property for a particular period and after lapse of the said period, he was called upon to handover possession by issuance of quit notice,

(ii) Person who was put in possession by means of a 'licence' and who fails to handover possession after expiry of the term of licence and/or after receiving quit notice from the landlord,

(iii) Persons who was in "permissive possession" and who fails to handover possession even after receiving a notice to quit ]

The reference made by the learned Single Judge is answered accordingly.

Before parting, we feel constrained to observe that there cannot be an iron tight jacket to fit in all cases or tenants. It should be borne in mind that judicial process should not be permitted to be used as an instrument of oppression or needless harassment. The court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly. In a given case, the court adjudicating the dispute has to take a pragmatic view keeping in mind the discussions made in this judgment and other provisions of law and arrive at a subjective satisfaction as to whether the mischief as stipulated under section 441, I. P. C. (Amended) has been intentionally committed or not and pass necessary orders.

IN THE HIGH COURT OF ORISSA

Criminal Misc. Case No. 334 of 1994

Decided On: 14.03.2001

 Akapati Bhaskar Patro  Vs.  Trinath Sahu and Ors.

Hon'ble Judges/Coram:

P.K. Mohanty and A.S. Naidu, JJ.

Citation:  2001 I OLR 502,MANU/OR/0089/2001

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When landlord will become entitled to get superstructure built by tenant?

On a consideration of the facts of the case, we feel that there are no grounds for interfering with the decree passed by the High Court for possession not only of the vacant plot but also of the superstructure and mesne profits and arrears of rent. The law provides for the tenant to remove the superstructure on the termination of the tenancy. If it is not thus removed the tenant loses all his rights to the superstructure and the landlord becomes entitled to it. But in a case where there is a substantial building, it is only reasonable that the Court should explore the possibility of payment of some compensation to the tenant who had put up this structure. But in the connection we are reminded that for several years neither the arrears of rent nor the taxes amounting to several lacs of rupees had been paid by the tenant. Not only the tenant but several persons who have put up flats at their own costs may press their claim for compensation and it will be difficult to determine as to who are entitled to compensation and proportion of the compensation to which they will be entitled to. 

11. The Apex Court thus highlighted that if the tenant does not remove the superstructure on termination of tenancy, he loses his rights to the super structure and the landlord becomes entitled to it.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1343 of 1989

Decided On: 19.12.2000

Norman Joseph Ferreira  Vs.  Arjandas Newandram 

Hon'ble Judges/Coram:

R.M. Lodha, J.

Citations: 2001 (3) BomCR 475, (2001) 2 BOMLR 731, 2001 (2) MhLj 810

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Whether acceptance of money equal to rent after determination of tenancy amounts to creation of new tenancy?

 In Ganga Dutt Murarka v. Kartik Chandra Das, this Court held that where a contractual tenancy, to which rent control legislation applied, had expired by efflux of time or by determination by notice to quit and the tenant continued in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord had assented to a new contractual tenancy. It was further held that acceptance by the landlord from the tenant, after the contractual tenancy had expired, of amounts equivalent to rent, or amounts which were fixed as standard rent, did not amount to acceptance of rent from a lessee within the meaning of Section 116 of the Transfer of Property Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1546 of 1969

Decided On: 14.12.1971

Bhawanji Lakhamshi  Vs. Himatlal Jamnadas Dani and Ors.

Hon'ble Judges/Coram:

C.A. Vaidialingam and K.K. Mathew, JJ.

Citation:(1972) 1 SCC 388

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Whether one co-owner can terminate tenancy of tenant if other co-owners objects for the same?

I have pointed out to the counsel for the appellant/plaintiff the judgments of the Supreme Court in the cases of Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, (1996) 6 SCC 373 and Jagdish Dutt v. Dharam Pal, (1999) 3 SCC 644 and which judgments hold that one co-owner/co-landlord is not entitled on his own, in the face of opposition of other co-owners/co-landlords, to terminate the tenancy.

A reading of the ratio of the aforesaid two judgments makes it clear that when there are various co-owners/co-landlords, only one co-owner/co-landlord cannot terminate the tenancy for seeking possession of the tenanted property and/or mesne profits.

In the High Court of Delhi at New Delhi

(Before Valmiki J. Mehta, J.)

Navin Chander Anand v.  Union Bank of India

RFA No. 544/2018

Decided on July 17, 2018

The Judgment of the Court was delivered by

Valmiki J. Mehta, J. (Oral)

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Whether tenancy is deemed to have been terminated if suit for eviction is filed?

In fact, though termination of tenancy is required to be done by issuing a notice under Section 106 of the Transfer of Property Act 1882, yet the filing of a suit has been treated as a notice terminating tenancy in terms of the judgment in the case of M/s. Jeevan Diesels & Electricals Ltd. v. M/s. Jasbir Singh Chadha (HUF) & Anr., MANU/DE/1277/2011; 2011 (182) DLT 402 and this judgment relies upon the ratio of the earlier judgment of the Hon'ble Supreme Court in the case of Nopany Investments (P) Ltd. v. Santokh Singh (HUF), MANU/SC/8184/2007 : (2008) 2 SCC 728.

IN THE HIGH COURT OF DELHI

RFA No. 945/2018

Decided On: 07.12.2018

 Ramesh Chander Sethi  Vs. Shashi Grover

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Whether issuance of notice terminating tenancy can be proved even if office copy of notice is not proved?

The learned counsel for Petitioner has vehemently submitted that in the pending proceedings before the Additional Tahsildar, the Petitioner had filed an application seeking directions to the non-applicant deceased Maruti to produce on record the original notice issued by the Petitioner for termination of tenancy and despite the order passed by the Additional Tahsildar, the non-applicant deceased Maruti had failed to produce the said notice on record. The learned counsel submits that the said order came to be confirmed even by the Tribunal when challenged by the non-applicant during the pendency of the said proceedings before the Additional Tahsildar. The learned counsel submits that therefore, the Additional Tahsildar has rightly placed reliance on the postal acknowledgment receipt produced on record. I do not find any substance in these submissions for the reason that, if such notice is not produced despite the directions given, the Petitioner was at liberty to lead secondary evidence to prove the contents of the notice by placing on record the office copy of the notice. Mere production of postal acknowledgment receipt on record cannot be construed as a due compliance of Section 19(2) first proviso. It was essential for the Petitioner to establish that six months notice in writing given to the tenant for termination of tenancy and also to prove the grounds of such termination as incorporated in the said notice.

13. In the case of Samba Motiram Alone v. Tukaram Mahadeo Chandakar (supra) relied upon by the learned counsel for Respondent, in paragraphs 12, 13 and 14 of the order, this Court has made the following observations:

"12. Mr. Ghate for the respondent contended that this was a new point being taken up now in the petition. No objection to the validity of the notices had been raised by the petitioner in the trial Court. It is true, in the trial Court, no such contention was taken. The validity of the notice as a proper notice terminating the tenancy, was the very basis on which the Tahsildar could not under section 28(1) of the Tenancy Act, and, therefore, it was for the Tahsildar to decide, irrespective of whether an objection was taken or not by the tenant, whether the tenancy had been properly terminated on a valid notice. As observed earlier, the Naib Tahsildar, Rajura did actually notice this point and he did hold that the notices were not valid and the tenancies were not properly terminated, though he again committed an error by passing a conditional order of possession. From the revision petition of the petitioner to the Revenue Tribunal, it does appear that this ground was specifically taken as ground No. (iv) in the said revision application to the Maharashtra Revenue Tribunal, but it appears the Revenue Tribunal has not taken cognizance of this point. This ground has also been specifically taken in the present petition as ground No. (iv). In fact a proper termination of the tenancy by a proper notice under section 19(2)(a)(i) of the Tenancy Act, read with the proviso below section 19(2) of the Tenancy Act would be the very basis of an action under section 28(1) of the Tenancy Act and an invalidity of such a notice would go to the rood of the whole matter and can be considered properly even in a writ petition.

13. Mr. Ghate then contended that if the notices were held to be not valid notices terminating the tenancies of the petitioner, then the case should be remanded to the trial Court. It was urged that no explanation in this respect had been got from the respondent-landlord in the trial Court, because no objections to the validity of the notices were taken in the trial Court. If this question is to be enquired into, Mr. Ghate contends that it would be necessary to get the explanation of the respondent landlord as to what he meant by saying in the notices that legal proceedings would be taken against the tenant. Therefore, Mr. Ghate requested that in that case would be necessary to remand the case to the trial Court. It is not possible to even accept this contention of Mr. Ghate. The validity of the notices terminating the tenancy has to be determined by the Court upon a proper construction of the recitals of the notices themselves, and not upon the particular manner in which the landlord chooses to interpret those recitals.

14. In the view taken by me, this writ petition will have to be allowed. The orders passed by all the Revenue Courts below are hereby quashed and instead it shall be ordered that the application of the landlord-respondent for possession filed in the Court of the Tahsildar, Rajura under section 28 read with section 19 of the Tenancy Act, shall stand rejected. The rule is made absolute with costs."

14. In the instant case, even the draft or office copy of the notice is not produced on record leave apart the grounds incorporated therein in compliance with the provisions of Section 19(2) of the Tenancy Act, 1950. The learned Member or the Tribunal has therefore, rightly held that non-compliance of the provisions of Section 19(2) of the Tenancy Act, 1950 is fatal.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1743 of 1993

Decided On: 22.12.2017

Dattatraya  Vs. Maruti and Ors.

Hon'ble Judges/Coram:

V.K. Jadhav, J.

Citation: 2018(4) MHLJ 41

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Whether it is necessary to issue quit notice as per S 106 of transfer of property Act if tenant is protected by rent Act?

"It is true that the Rent Act is intended to restrict the rights which the landlord possessed either for charging excessive rents or for eviction tenants. But if within the ambit of those restricted rights he makes out his case it is a mere empty formality to ask him to determine the contractual tenancy before institution of a suit for eviction. As we have pointed out above this was necessary under the Transfer of Property Act as mere termination of the lease entitled the landlord to recover possession. But under the Rent Control Acts it becomes an unnecessary technicality to insist that the landlord must determine the contractual tenancy. It is of no practical use after so many restrictions of his right to evict the tenant have been put. The restricted area under the various State Rent Acts has done away to a large extent with the requirement of the Law of Contract and the Transfer of Property Act. If this be so why unnecessarily, illogically and unjustifiably a formality of terminating the contractual lease should be insisted upon?"

Even if the category of tenant which is stated in Section 5(11)(b) of Bombay Rent Act which says that even after the termination of tenancy the person continues to be a tenant, is not included in the Maharashtra Rent Control Act, when the tenant cannot be evicted unless the grounds are made out and the conditions laid down under Section 16 of the Maharashtra Rent Control Act are fulfilled, there would be no dual requirement one of issuance of notice under Section 106 of the Transfer of Property Act and then making out a ground under that section for eviction. Of course, a special provision can be made in a Rent Act requiring the issuance of a notice under Section 106, Transfer of Property Act, as it was there in C. P. and Berar Letting of Premises and Rent Control Order, 1949. But in Maharashtra Rent Control Act there is no such provision. In view of the above discussion the notice under Section 106 of the Transfer of Property Act was not necessary in the present case.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Rev. Appln. No. 13 of 2003

Decided On: 20.11.2003

K. Mukta Ashok Khankhoje Vs. Namdeorao Tukaram Khutaphale

Hon'ble Judges/Coram:

S.G. Mahajan, J.

Citation:2004(1) MHLJ 941,2004(2) ALLMR 59,

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Whether one trustee can validly issue quit notice to tenant?

The issue in that case was whether one co-trustee could determine a tenancy. The Court said he could not, but held: (AIR p. 116, para 8)

"But when we say that the tenancy must be determined by all co-trustees, we must make it clear that what we mean is that the decision to terminate the tenancy must be taken by all the co-trustees. The formal act of giving notice to quit pursuant to the decision taken by all the co-trustees may be performed by one co-trustee on behalf of the rest. The notice to quit given in such a case would be a notice given with the sanction and approval of all the co-trustees and would be clearly a notice given by all co-trustees."

Therefore although as a rule, trustees must execute the duties of their office jointly, this general principle is subject to the following exceptions when one trustee may act for all (1) where the trust deed allows the trusts to be executed by one or more or by a majority of trustees; (2) where there is express sanction or approval of the act by the co-trustees; (3) where the delegation of power is necessary; (4) where the beneficiaries competent to contract consent to the delegation; (5) where the delegation to a co-trustee is in the regular course of the business; (6) where the co-trustee merely gives effect to a decision taken by the trustees jointly."

18. As can be seen from the aforesaid decision, the Supreme Court has clearly held that although as a rule the trustees must execute the duties and functions of their office jointly, this general principle is subject to exceptions as more particularly set out in paragraph 29. The first exception is when the Trust Deed allows the Trust to be executed by one or more or by a majority of trustees. The second exception is when there is an express sanction or approval of the act by the co-trustees.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 730 of 2014 and Civil Application No. 346 of 2014 in Civil Revision Application No. 730 of 2014

Decided On: 29.06.2017

 Life Insurance Corporation of India Vs. Digvijaysingh Gangasingh and Ors.

Hon'ble Judges/Coram:

B.P. Colabawalla, J.

Citation: 2018(1) MHLJ 259

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Whether tenant is liable to be evicted if he has subletted tenanted premises on the date of eviction notice?

The appellant repeated the same contentions which had been advanced before the High Court. The provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 indicate that a tenant is disentitled to any protection under the Act if he is within the mischief of the provisions of Section 13(1)(e), namely, that he has sublet. The language is that if the tenant as sublet, the protection ceases. To accede to the contention of the appellant would mean that a tenant would not be within the mischief of unlawful subletting if after the landlord gives a notice terminating the tenancy on the ground of unlawful subletting the sub-tenant vacates. The landlord will not be able to get any relief against the tenant in spite of unlawful subletting. In that way the tenant can foil the attempt of landlord to obtain possession of the premises on the ground of subletting every time by getting the sub tenant to vacate the premises. The tenant's liability to eviction arises once the fact of unlawful subletting is proved. At the date of the notice, if it is proved that there was unlawful subletting, the tenant is liable to be evicted. The High Court rightly rejected the revision petition.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 591 of 1974

Decided On: 29.08.1975

Gajanan Dattatraya Vs.Sherbanu Hosang Patel and Ors.

Hon'ble Judges/Coram:
A.N. Ray, C.J., K.K. Mathew and Y.V. Chandrachud, JJ.
 Citations: 1975 AIR 2156, 1976 SCR (1) 535

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Whether accrued right in favour of landlord can be taken away by tenant by his unilateral act?

In our opinion, the ratio laid down in the above cases applies to the present case as well. Admittedly, on the date the tenancy was terminated, the tenant (Public Limited Company) was having a paid up share capital of rupees more than one crore. Under clause (b) of Section 3(1) of the Act, therefore, the provisions of the Act were not applicable to the suit-premises. It is true that a resolution was passed by the Company to reduce the paid up share capital to less than rupees one crore, but the said resolution was never approved by BIFR. But even otherwise, once it is proved that the tenancy was legally terminated and the Act would not apply to such premises, a unilateral act of tenant would not take away the accrued right in favour of the landlord. Unless compelled, a Court of Law would not interpret a provision which would frustrate the legislative intent and primary object underlying such provision. We, therefore, see no infirmity in the conclusions arrived at by the courts below.

Supreme Court of India

Carona Ltd vs M/S Parvathy Swaminathan & Sons on 5 October, 2007

Bench: C.K. Thakker, P. Sathasivam

           CASE NO.:
Appeal (civil)  2805 of 2005

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Whether plea of title and adverse possession can be taken at the same time by tenant?

Even the position of a tenant after termination of his tenancy is described in the case of Shyamcharans v. Sheoji Bhai (MANU/SC/0365/1977 : AIR 1977 SC 2270) in following words :-

"A tenant even after the termination of his contractual tenancy does not become an unauthorized occupant of the accommodation but remains a tenant, such a tenant is conveniently called a statutory tenant. Whether the expression aforesaid borrowed from the English Law is quite apposite or not, but what is certain is that a person continuing in possession of the accommodation even after the termination of his contractual tenancy is a tenant within the meaning of the Act and on such termination his possession does not become wrongful, until and unless a decree for eviction is made, if he continues to be in possession even after the passing of the decree, he does so as a wrongful occupant of the accommodation."

The defendant has taken pleadings in his written statement that he is owner of the suit premises and in the same breath, it has also been pleaded that he has become owner on the basis of adverse possession. In the case of Karnataka Board of Waqf v. Govt. of India and others [MANU/SC/0377/2004 : (2004) 10 SCC 779] it has been observed that the pleas of title and adverse possession are mutually inconsistent and the later does not begin to operate until the former is renounced. In para No. 12 of the same judgment it has also been observed that whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.
22. Thus, in the light of the above-mentioned citations and oral and documentary evidence available on record, it is clear that both the lower Courts have not erred in holding that the plaintiffs' suit was not time barred and the defendants have not perfected their title by way of adverse possession. Formulated substantial question of law No. 2 is answered accordingly.

IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

S.A. No. 1139/2005

Decided On: 06.02.2017

 Shakuntala Guha and Ors. Vs. Jasmit Kaur Narula and Ors.

Hon'ble Judges/Coram:

Ashok Kumar Joshi, J.

Citation: AIR 2017(NOC) 910 MP

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Whether tenancy created for commercial purpose can be terminated on ground of availability of alternative accommodation?

It would be noticed that as soon as it is found that the premises in question have been used by respondent 1 incidentally for professional purposes and it is further established that this use is made with the consent of the landlord then the case goes outside the purview of s. 13(1)(e) altogether. In the present case it has been found by the appellate Court and the High Court that right from the commencement of the tenancy a substantial part of the premises is used by respondent 1 for his professional purpose, and they have also found that this has been done obviously with the consent of the landlord. It is unnecessary to refer to the evidence on which this finding is based. Even the trial Court was apparently inclined to take the same view about this evidence but it did not fully appreciate the effect of the explanation; otherwise it would have realised that the professional use of a substantial part of the premises with the consent of the appellant clearly takes the case outside s. 13(1)(e). In other words, where premises are let for residential purposes and it is shown that they are used by the tenant incidentally for commercial, professional or other purposes with the consent of the landlord the landlord would not be entitled to eject the tenant even if he proves that he needs the premises bona fide for his personal use because the premises have by their user ceased to be premises let for residential purposes alone. This position cannot be seriously disputed.

Supreme Court of India

Dr. Gopal Dass Verma vs Dr. S. K. Bhardwaj And Another on 2 May, 1961

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Whether tenant is liable to pay mesne profit after termination of tenancy?

On the question of mesne profits I feel that no longer discussion is warranted in view of the ratio laid down by the Supreme Court in MANU/SC/0335/1965 : AIR 1966 SC 735 in case of Bhagwati Prasad vs. Chandramaul. The Supreme Court observed that:

"Once it is held that the plaintiff is entitled to eject the defendant, it follows that from the date of the decree granting the relief of ejectment to the plaintiff, the defendant who remains in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it is delivered to the plaintiff."

The learned Appellate Judge has rightly observed that after the termination of the tenancy the tenant cannot be said to be in lawful possession of the property and his possession becomes possession of a trespasser and he is therefore liable to pay the mesne profits.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

S.A. No. 222 of 1988

Decided On: 26.06.1990

 Abdul Sattar Khan 

Vs.

Abdul Gani Khan

Hon'ble Judges/Coram:

A.A. Halbe, J.

Citation: 1991 MHLJ183 Bom

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Whether wife has right to reside in tenanted premises as per DV Act after termination of tenancy?

The tenanted premises where a woman lives with her husband would definitely come within the category of shared household but as long as the tenancy survives.

41. The fact that the husband of the appellant (respondent No.2; defendant No.1 in the original suit) made a clear statement, which fact stands admitted by respondent No.1 herein that upto date payments were made prior to the termination/expiration of the tenancy lease, makes it very evident that there was no colourable/malafide action on the part of either respondent No.1 or respondent No.2 (the husband).

42. Learned counsel for the respondent No.1 has drawn the attention of this Court to the affidavit appended with the present appeal wherein the appellant has shown herself as temporarily residing with her parents at B-234, GH-09, GAIL Housing Colony, Sector 56, Gurgaon. This fact also reinforces the submission of the respondent No.1 that the tenancy has not been continued even through the belongings of the appellant or her husband.

43. It would not be lawful, in the opinion of this Court, to force an outsider who is not privy to any dispute between the warring couple or has any truck or alliance with them to extend tenancy in their/in wife's favour without his choice or willingness despite the beneficent provisions of theDomestic Violence Act when the term of lease has expired and the tenancy also stands terminated.

44. The rights of a person is no less valuable than the right of the appellant, here in this case to have a place of residence and protection.

45. The Domestic Violence Court rightly expressed its inability to direct the respondent No.1, the landlord, to continue with the tenancy and only suggested that the appellant could request the landlord for extension/renewal of the tenancy lease.

Delhi High Court

Anukriti Dubey vs Partha Kansabanik And Anr on 23 March, 2016

Author: Ashutosh Kumar

RSA 42/2016

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Whether there is waiver of termination of tenancy by acceptance of rent by landlord?

 The next question is as to whether there is waiver
of termination of   tenancy   by acceptance of the rent.
The waiver can occur only when the lessor has treated
the tenancy as subsisting. Mere acceptance of arrears of
rent can not imply that the lessor treated the tenancy as
subsisting unless it can be established as conscious and
deliberate act. There has to be consensus ad idem of the
parties  to treat the lease as subsisting or reestablish the
relationship   of   the   landlord   and   tenant.   Mere
acceptance of rent, therefore, without the intention to
treat   the   lease   as   subsisting     would   not   amount   to
waiver.   The   acceptance   of   rent   may   be   without

prejudice to the rights and contentions in the notice, it
does     not   amount   to     waiver.   Waiver   has   to   be   a
deliberate and conscious act on the part of the landlord
to treat the contractual tenancy­lease as subsisting. If
the eviction suit is continuing even after acceptance of
the rent it indicates that the landlord has no intention to
waive the quit notice because landlord has elected to
continue   with   the   eviction   proceedings   in   order   to
recover possession from the lessee.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.427 OF 2002

Narendra Vyankatesh Tambat,V Pravinkumar Khushalchand Tated,


Dated    :  9.7.2015.
                                   
      CORAM     :  A.P.BHANGALE,  J.
Citation;2016(1) ALLMR 25

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Whether notice issued under S 15(2) of Maharashtra Rent Control Act should contain stipulation regarding termination of lease?

  The provisions of Section 15(2) of the Act of 1999 are
clear wherein the stipulation is only with regard to demand of standard rent
and permitted increases. In absence of any requirement of terminating the
lease, insistence of compliance with provisions of Section 106(1) of the Act of
1882 would be going beyond said statutory provisions.
In this regard, it would be profitable to refer to the Constitution
Bench   decision   of   the   Supreme   Court   in  V.   Dhanpal   Chettier   V.   Yasoda
Ammal 1979 Mh.L.J. 773 (SC) wherein in paragraph 17 it has been observed
thus :  
“ …. determination  of a lease in accordance with  the Transfer  of
Property   Act   is   unnecessary   and   a   mere   surplusage   because   the
landlord cannot get eviction even after such determination.  The tenant
continues to be so even thereafter.  That being so, making out a case
under the Rent Act for eviction of the tenant by itself is sufficient and it
is   not   obligatory   to   found   the   proceeding   on   the   basis   of   the
determination of the lease by issue of a notice in accordance with
section 106 of the Transfer of Property Act.”   
It is thus clear that notice to terminate the tenancy under Section

106   of   the   Act   of   1882   is   not   necessary   when   eviction   is   sought   under
provisions of Section 15 of the Act of 1999. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.252 OF  2014
Baban S/o Kisan Sarad,

­vs
Abdul Hafiz S/o Abdul Ajij Khan, 

CORAM  :  A.S.CHANDURKAR J.
                                                    DATE   :  MARCH 11, 2015
Citation: 2015(4)MhLj608

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What mesne profits landlord is entitled to get in respect of tenanted premises after termination of tenancy of tenant?

"The Rent Control Order was, no doubt, for the benefit and
protection of tenants , but it will be going too far to say
that   the   protection   was   to   continue   even   to   erstwhile
tenants   despite   the   fact   that   their   possession   was   as
trespassers   on   the   termination   of   the   relationship   of

landlord and tenant. The moment a person ceased to be a
tenant, he dis­entitled himself from the privileges he could
have got under the Rent Control Order. Accepting this
submission of Mr. Bobde in this connection would virtually
amount to giving a legal status of a tenant of a person who
has been held by competent Courts to be a rank trespasser
after the termination of tenancy. No authority was shown
in support of this impossible position. The defendant, who
was no longer a tenant, could not still insist on saying that
the rent which the plaintiff could have got under the Rent
Control   Order   should   be   treated   as   the   measure   of
damages.   The   claim   of   the   defendant   that   the   mesne
profits   must   be   limited   to   the   rent   recoverable   by   the
plaintiff under the provisions of the Rent Control Order
would virtually mean that the quantum of mesne profits
was,   not   what   the   defendant   had   actually   received   or
might with ordinary diligence have received but what the
plaintiff as a landlord lost or had not been able to get.
That would militate against the definition of mesne profits
in S. 2(12), of Civil P.C. 
These observations are, as already said, based on what had
been held by the Supreme Court in AIR 1963 SC 1405 .
The   Supreme   Court   observed   therein   that   the   normal
measure of mesne profits is the value of the user of the
land of the person in wrongful possession. It is, therefore,
clear   that   there   can   be   no   manner  of   doubt   after  this
decision of the Supreme Court that that mesne profits are
to be calculated on basis of the advantage the person in
unlawful occupation sets by the use of the property. The
same view was otherwise held by a Division Bench of this
Court in Kakubhai &Co's case. I am, therefore, unable to
accept the submission of Mr. Usgaonkar that the mesne
profits were to be calculated on basis of the maximum rent
that the respondents could have fetched if the premises
were freshly let out.
(emphasis supplied)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL  APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.790 OF 2012
IN
MISC. APPEAL NO.158 OF 2011
IN
MISC. NOTICE NO.909 OF 1993
IN
L.E.SUIT NO.291/338 OF 1983
Mridangraj Hiralal Suchak )
alias Barfiwalla,
V/s.
Bank of Baroda )


­­­­
CORAM: K.R.SHRIRAM, J.
DATED  : 18TH  MARCH 2015
Citation; 2015(4) MHLJ 282 Bom

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Whether tenant continuing in occupation of tenancy premises after termination of tenancy is liable to pay damages or mesne profits?

In Shyam Sharan Vs. Sheoji Bhai & Anr., (1977) 4 SCC 393, this Court has upheld the principle that the tenant continuing in occupation of the tenancy premises after the termination of tenancy is an unauthorized and wrongful occupant and a decree for damages or mesne profits can be passed for the period of such occupation, till the date he delivers the vacant possession to the landlord. With advantage and approval, we may refer to a decision of the Nagpur High Court. In Bhagwandas Vs. Mst. Kokabai, AIR 1953 Nagpur 186, the learned Chief Justice of Nagpur High Court held that the rent control order, governing the relationship of landlord and tenant, has no relevance for determining the question of what should be the measure of damages which a successful landlord should get from the tenant for being kept out of the possession and enjoyment of the property. After determination of the tenancy, the position of the tenant is akin to that of a trespasser and he cannot claim that the measure of damages awardable to the landlord should be kept tagged to the rate of rent payable under the provisions of the rent control order. If the real value of the property is higher than the rent earned then the amount of compensation for continued use and occupation of the property by the tenant can be assessed at the higher value. We find ourselves in agreement with the view taken by the Nagpur High Court.

Supreme Court of India

M/S. Atma Ram Properties (P) Ltd vs M/S. Federal Motors Pvt. Ltd on 10 December, 2004

Bench: Cji R.C. Lahoti, G.P. Mathur

Citation; 2005 SAR(CIVIL)93 SC

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