Madhukar vs Ranapratap Shriram Malviya on 28 February, 2013

Bombay High Court

Madhukar vs Ranapratap Shriram Malviya on 28 February, 2013
Bench: B. P. Dharmadhikari, Prasanna B. Varale
lpa119.12 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH

LETTERS PATENT APPEAL NO. 119 OF 2012

IN

WRIT PETITION NO. 2030 OF 2011

Madhukar s/o Deorao Dudhe,

aged 63 years, occupation -

Business, r/o Nagesh Krishi
Seva Kendra, Malviya Building,
Old Cotton Market Chowk,

Amravati. ... APPELLANT

Versus

1. Ranapratap Shriram Malviya,

aged 65 years, r/o Keshav
Colony Camp, Amravati.

2. Surekha Sudhakar Dudhe,

aged 48 years, occupation -

Household;

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 Madhukar vs Ranapratap Shriram Malviya on 28 February, 2013

3. Rahul Sudhakar Dudhe,

aged 24 years, occupation -

Service.

4. Ku. Sharayu d/o Sudhakar

Dudhe, aged 25 years,

occupation - Service.

Nos. 2 to 4 resident of Devarshi

Apartment, Mangilal Plots,
Amravati; and also
Goodwill Vrundavana Building,
Flat No. A-23, Behind Anand

::: Downloaded on - 09/06/2013 19:41:24 :::

lpa119.12 2
Park Bus Stop, Wadgaon,
Sheri, Pune.

5. District Judge - 3,
Amravati, Dist. Amravati. ... RESPONDENTS

Shri J.J. Chandurkar, Advocate for the appellant.

Shri A.S. Chandurkar, Advocate respondent No.1.

Shri M.J. Khan, Advocate for respondent No. 5.

.....

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 Madhukar vs Ranapratap Shriram Malviya on 28 February, 2013

CORAM : B.P. DHARMADHIKARI &

P.B. VARALE, JJ.

ig FEBRUARY 27-28, 2013.

ORAL JUDGMENT : (Per : B.P.Dharmadhikari, J.) The matter is heard finally with the consent of
Shri J.J. Chandurkar, learned counsel for the appellant - tenant, Shri A.S. Chandurkar, learned
counsel for respondent No. 1 -

landlord, and Shri M.J. Khan, learned AGP for respondent No. 5, in the light of order dated
20.03.2012.

2. The facts are not in dispute. Sudhakar, brother of present appellant was the tenant - inducted by
Respondent No.

1. Said Sudhakar expired in 1986. The landlord filed Small Cause Suit No. 79 of 2003 against
Madhukar, present appellant and legal heirs of deceased Sudhakar, for their eviction under Sections
15 and 16 of Maharashtra Rent Control Act, 1999 (hereinafter referred to as 1999 Act). One of the
contentions was, the premises were unauthorizedly sub-let to present appellant - Madhukar. The
suit was dismissed on 22.07.2008 and in Regular Civil Appeal No. 142 of 2008 preferred by
Respondent No. 1, the District Judge, Amravati, set aside that judgment and decreed the suit. Writ
Petition No. 2030 of 2011 was then filed under Articles 226 and 227 of the Constitution of India by
present appellant and the learned Single Judge dismissed that writ petition. Letters Patent Appeal is
challenging the said dismissal of writ petition. On 20.03.2012, while issuing notice, this Court noted
the contention that sub-tenancy to attract provisions of Section 16(1)(e)(ii) of the Maharashtra Rent
Control Act, 1999, must have commenced after the said Act came into force. It is not in dispute that
the 1999 Act has come into force on 31.03.2000.

3. Shri J.J. Chandurkar, learned counsel, in this background has relied upon the judgment of the
Hon'ble Apex Court in the case of Tirath Ram vs. Gurubachan Singh, reported at AIR 1987 SC 770,
to urge that sub-tenancy created before coming into force of 1995 cannot be used to evict tenant
under 1999 Act. He also pointed out the judgment in the case of K.

Manickchand vs. Elias Saleh Mohammed Sait, reported at AIR 1969 SC 751, particularly para 18 to
explain how the words "commencement of the Act" need to be construed. A judgment of the Hon'ble
Apex Court in the case of Board of Trustees of the Port of Mumbai vs. Byramjee Jeejeebhoy Pvt.
Ltd., reported at 2011 (4) Mh. L.J. 556, is also relied upon to show how there the Hon'ble Apex Court
has found that unauthorized sub-letting after 01.02.1973 can only be made a ground for eviction
under provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (hereinafter
referred to as 1947 Act).

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 Madhukar vs Ranapratap Shriram Malviya on 28 February, 2013

4. Shri A.S. Chandurkar, learned counsel has relied upon the judgment in the case of Dharamdas
Mangilal Jain vs. Shrikuwar Pannalal Mutha, reported at 1993 Mh.L.J. 160, to submit that the words
"has sub-let" employed in clause (e) are determinative and a sub-tenancy created prior to
31.12.2000 and in force on the said date can, therefore, also be made use of. In order to substantiate
his contention, he has relied upon the judgment of the Hon'ble Apex Court in the case of Gappulal
vs. Thakurji Shriji Dwarkadheeshji and another, reported at AIR 1969 SC 1291 and dictionary
meaning of the word "has". He invites attention to the opening words used in sub-clause (i) or (ii)
with the contention that there the words "on or after" are deliberately used. According to him, if the
submission of the appellant/ tenant is to be accepted, words "on or" are rendered surplus. He points
out that both words "on" and "after" are used in disjunctive sense and occupy different field. To
further buttress his submission, he also relies upon the provisions of Section 25 in Chapter VI of
1999 Act. He submits that otherwise the all sub-

tenancies created illegally would have been regularized on uniform basis and then Section 25 itself
would get defeated.

5. Before proceeding further, we find it proper to first reproduce the relevant provisions of Section
16(1)(e), which is as under :

16.(1) Notwithstanding anything contained in this Act but subject to the provisions of
section 25, a landlord shall be entitled to recover possession of any premises if the
court is satisfied --

(a) ..........

(b) ..........

(c) ..........

(d) ..........

(e) that the tenant has --

(i) on or after the 1st day of February 1973, in the areas to which the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947 applied; or

(ii) on or after the commencement of this Act, in the Vidarbha and Marathwada areas
of the State, unlawfully sub-let or given on licence the whole or part of the premises
or assigned or transferred in any other manner his interest therein; or

6. In Tirath Ram vs. Gurubachan Singh and another cited supra, the provisions of
Section 13(2) of the East Punjab Urban Rent Restriction Act (3 of 1949), are looked
into. The perusal of the judgment reveals that the Honourable Apex Court in para-4
found that the said Act came into force on 4.11.1972 and sub-lease had been effected

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 Madhukar vs Ranapratap Shriram Malviya on 28 February, 2013

much earlier. The language of said Section, is not appearing anywhere in the body of
the judgment, but then from its perusal it appears that the said provisions did not
permit eviction for sub-letting, if such sub-

letting was prior to coming into force of the Act, in the area concerned.

7. In Board of Trustees of the Port of Mumbai vs. Byramjee Jeejeebhoy Pvt. Ltd. and another cited
supra, the Honourable Apex Court has considered the provisions of Section 15(2) of the Bombay
Rents, Hotel and Lodging House Rates Control Act (57 of 1947). The Honourable Apex Court has
held that the sub-letting by defendant No.1 in favour of defendant No.2, fell within the protective
ambit of said Section. In para-3, the terms of the lease deed are noted, but then said terms are of a
document dated 10.5.1886. The plaintiff sought eviction on the grounds of breach of the terms and
conditions of the lease dated 10.5.1886. The Honourable Apex Court in para-22 noted that there
were receipts of the years 1963 and 1965, acknowledging the payment of rent from defendant No.2 .
The sub-lease deed are form the sheet-anchor of the plaintiff's case, though executed on 1.6.1978,
was made effective retrospectively from 15.6.1964 and it came to an end on 26.2.1985. Thus,
defendant No.2 was found to be in occupation of the suit land long before 1.2.1973. Perusal of
para-17 of this judgment shows that Section 13(1)(e) of 1947 Act affected only sub-tenancies "after"
the commencement of 1973 Amendment to 1947 Act.

Discussion in para-19 shows that Section 15(2) rendered clause 4 of 10.5.1886 lease ineffective and
inoperative. No pari-

materia provision in 1999 Act are shown to us. In fact, there is no such provision in it.

8. In K.Manikchand and others vs. Elias Saleh Mohammed Sait and others cited supra, the
Honourable Apex Court has in para-18 pointed out the meaning of the word "commencement".
Thus, any Act of Parliament or State Legislature comes into force on the day on which it is stated to
commence. There is no dispute about this aspect in present matter.

9. The words "has sub-let" are looked into by the learned Single Judge of this Court in the case of
Dharamdas Mangilal Jian vs. Shrikuwar Pannalal Mutha and others (supra), cited by Shri
Chandurkar, learned counsel. The said words appeared in Section 13(1)(e) of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947, which has been looked into by the Honourable
Apex Court in the case of Board of Trustees of the Port of Mumbai vs. Byramjee Jeejeebhoy Pvt. Ltd.

and another cited supra. The learned Single Judge has found that the words "has sub-let" are used in
present perfect tense and contemplate a completed event connected in some way with the present
time. It has been concluded that whether sub-letting was either before or after the Act came into
force, is not very relevant. The dictionary meaning of word "has" in The New International
Webster's Comprehensive Dictionary, 1999 Edn., shows that it indicates present also. Gappulal vs.
Thakurji Shriji Dwarkadheeshji and another cited supra examines the provisions of the Rajastahan
Premises (Control of Rent and Eviction) Act. In para-8, Section 13(1) clause (e) has been reproduced
and that provision employs the word "had". Thus, it used past tense and not word "has".

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 Madhukar vs Ranapratap Shriram Malviya on 28 February, 2013

10. It is in this light that we have looked into the provisions of Section 16(1)(e) of 1999 Act. It uses
the word "has" and, therefore, implies that tenancy must be subsisting on the date on which 1999
Act came into force. Not only this, sub-

clauses (i) or (ii) in addition to words "after the commencement"

also employ words "on or". Thus, if a tenant has after the commencement of the said Act unlawfully
the sub-let, the said act is covered under clause (e). By using word "on", the Legislature has
indicated that such sub-tenancy, if it is subsisting on the commencement of 1999 Act, the landlord
can proceed under the said clause against the tenant. If it is not so and sub-

tenancy subsisting on the date of commencement i.e. 31.3.2000, cannot be subjected to provisions
of clause (e), because the same are created prior to 31.3.2000, word "has" as also word "on"

become nugatory. By using phrase "on or after the commencement", the Legislature has made it
clear that a sub-

tenancy created earlier and subsisting on the date of such commencement or then created after such
commencement are actionable under the clause.

11. The provisions of Section 25 of 1999 Act, also have importance. The said provisions reads as
under :

"When the interest of a tenant of any premises is determined for any reason, any
sub-tenant to whom the premises or any part thereof have been lawfully sub-let and
such sub-tenancy is subsisting on the date of commencement of this Act or where
sub- tenancy is permitted by a contract between the landlord and the tenant, such
sub-tenant shall, subject to the provisions of this Act, be deemed to become the
tenant of his landlord on the same terms and conditions as he would have held from
the tenant if the tenancy had continued."

Its bare perusal reveals that interest of tenant in premises is determined for any "other" reason i.e.
not under Section 16(1)(e). When interest of tenant is determined under such other provision, a
sub-tenant lawfully inducted and whose sub-tenancy subsists on the date of commencement of 1999
Act, gets protection and is deemed to be a direct tenant of the landlord. Thus, Section 25 requires a
lawful sub-tenancy for its application and any unlawful sub-letting on the date of commencement of
1999 Act, therefore, is not protected under Section 25. This logic and intention of Legislature clearly
reveals that unlawful sub-tenancy whether before or after the commencement of Act, is not
protected by 1999 Act. A sub-lease or sub-tenancy created prior to coming into force of the said Act,
and if it subsists on the date of such commencement, can be made a ground for eviction of tenant
and sub-tenant, if it is in violation of rent control law then in force. In that event, Section 25 cannot
be taken recourse by sub-tenant to claim improvement in his status. It automatically follows that
therefore such sub-

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 Madhukar vs Ranapratap Shriram Malviya on 28 February, 2013

tenancy is actionable under Section 16(1)(e)(ii). Sub-tenancies illegal under repealed Rent Control
Legislation are not regularized under 1999 Act. This also shows how Section 13(1)

(e) of 1947 Act materially differs from Section 16(1)(e) of 1999 Act. Moreover, 1999 Act does not
carry any provision like Section 15(2) of 1947 Act. Its Section 26 contains only Section 15(1) of 1947
Act and thus, when read with Section 16(1)(e) and Section 25, it shows that scheme of 1999 Act is
distinct and different. We do not find any substance in the contention that sub-tenancy created prior
to coming into force of the Act, cannot furnish a cause of action to a landlord after coming into force
of 1999 Act.

12. In the result, no case is made out warranting interference. Letters Patent Appeal is accordingly
rejected. Rule is discharged. No costs.

13. Upon request of appellant, interim relief protecting possession of the appellant in force till today
is continued for further period of 8 weeks. The said interim order shall cease to operate
automatically thereafter.

JUDGE JUDGE

// BRW //

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