GAURISHANKER ALIAS BABULAL GOVINDJI Vs. BHIKHALAL CHHAGANLAL

JUDGEMENT

(1.) This revision application under sec. 29 (2) of the Bombay Rents Hotel & Lodging House Rates Control Act illustrates how the provisions of the Rent Act are misused how poor tenants are harassed and how lightly eviction decrees are passed in total disregard of their impact and consequences. It becomes a matter of greater concern when it is realised that such a decree has been passed in this case against a poor tenant who is occupying one small room on a rent of 5/- per month in the town of Jetpur and who may not be able to procure a roof over his head if he were turned out.

(2.) The petitioner was inducted as a tenant in the suit room in about 1958. In 1963 his brother died and his widow (Kalaben) came to live with the petitioner as there was nowhere else she could go. In course of time according to the petitioner he entered into a Natra marriage with her. Thereafter they had three sons-one in 1966 one in 1968 and another in 1969. The suit giving rise to the present petition was instituted on July 13 1971 on the ground that the petitioner was using the premises as a brothel and for immoral purposes. The allegation was that the petitioner was living on the earnings of his sister-in-law Kalaben. It was alleged that there were quarrels between Kalaben and the wife of the petitioner Girjaben and on that account nuisance was caused to the other tenants and neighbours. On these premises eviction was sought against the petitioner. The trial Court recorded a clear finding on evidence that the allegation that the petitioner was running a brothel or using the premises for immoral purposes was false. However the trial Court came to the conclusion that as the petitioner was living with his sister-in-law in adultery he had lost the protection of the Rent Act. He also recorded a finding to the effect that there were quarrels between Kalaben and Girjaben and that it amounted to nuisance within the meaning of sec. 13 (1) (c) of the Rent Act. On this ground a decree for eviction was passed against the petitioner. The appellate Court accepted the contention of the petitioner that even assuming that the finding that the petitioner was living in adultery with his sister-in-law was true that was no ground for eviction under sec. 13(1)(c). The learned Appellate Judge therefore reversed the finding recorded by the trial Court on this aspect. However the learned Appellate Judge confirmed the finding that there were quarrels between Kalaben and Girjaben and that it constit- uted nuisance within the meaning of sec. 13(1)(c) which renders the petitioner liable to eviction under sec. 13(1)(c).

(3.) Sec. (13)(1)(c) of the Rent Act provides that if a tenant or any person residing with him is guilty of conduct which constitutes nuisance or annoyance to the adjoining or neighbouring occupiers or has been convicted for using the premises or allowing the premises to be used for immoral or illegal purposes he can be evicted. Now the learned Appe- llate Judge has recorded a finding to the effect that the Natra marriage between the petitioner and his sister-in-law was illegal. We are not con- cerned with the question as to whether or not the marriage was legal. Even assuming that Kalaben was residing with the petitioner as his mist- ress it cannot be said that the premises were used for immoral or illegal purposes and in any case as it is an admitted position that there has been no conviction recorded against the petitioner decree for eviction cannot be passed against him under the second part of sec. 13(1)(c) which clearly provides that a decree can be passed only in the case of conviction for using the premises for illegal or immoral purposes. The only question that now survives is whether a decree for eviction can be passed on the ground that the conduct of the petitioner or any person residing with him constituted nuisance or annoyance to the adjoining or neighbouring occupiers so as to attract the first part of sec. 13(1)(c). It appears that both the Courts were extremely prejudiced against the petitioner on account of the fact that he was living with his sister-in-law as husband and wife under the cover of Natra marriage. The approach of both the Courts was an approach of hostility and revulsion towards the petitioner on this account. An absolutely unrealistic view was taken by the learned Appellate Judge as is evidenced by the following passage from para 16 of his judgment : A Hindu widow residing in the family of married man giving birth to children would certainly spoil moral atmosphere of the neighbouring occupiers. It creates an adverse effect on the mind of children growing up in the neighbourhood This very act of keeping a mistress and the said mistress repeatedly giving birth to children amounts to annoyance to the neighbouring occupiers. The learned Appellate Judge failed to realise that even assuming that Kalaben was living as the mistress of the petitioner by itself it would never amount to annoyance to neighbours. How does the learned Judge know that the private life and character of all the residents of that locality is unimpeachable? One cannot peep into the private life of citizens in order to find out their sexual mores. For aught we know many other owners of properties and many other residents of the locality might be living their own private lives which may not be beyond reproach. If nothing can be done about it how can a tenant be thrown out on the ground that his sexual mores are not to the liking of the neighbours ? The approach evidenced by the aforesaid passage clearly shows that both the Judges of the lower Courts have completely lost objectivity and decided the matter on extreme prejudice. Of course the decree is ostensibly based on the finding that there were quarrels between Kalaben and Girjaben and that it amounted to nuisance. Now it is difficult to visualize a household where there are never quarrels amongst family members. Sometimes the quarrels are between brothers. Sometimes the quarrels are between mother-in-law and daughter-in-law. Sometimes quarrels are between the wives of two brothers. If eviction decree were to be passed merely because there are quarrels in the domestic household of a tenant no tenant would be safe and it would amount to virtually repealing the Rent Act for all intents and purposes. One cannot conceive of a case where a landlord cannot get 2 or 3 witnesses who would depose that there were quarrels in the household of a tenant even if there were no quarrels. Assuming that there were quarrels even that would not constitute a ground for eviction. Nuisance or annoyance to the adjoining or neighbouring occupiers which is contemplated by sec. 13(1)(c) must be of a very serious character in (1) nature (2) intensity as also (3) in frequency. It would not be possible to exhaustively enumerate the nature of the nuisance or annoyance which would attract the provisions of sec. 13(1)(c). But the following tests must invariably be satisfied :