NARENDRAKUMAR BHOGILAL SHAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal filed by a former landlord against his conviction under Section 18 (4) of the Bombay Rent Act, 1947, for contravention of the provisions of Section 18 (3) thereof, though he had been acquitted of the offence under Section 18 (1) of the same Act, with which also he had been charged in the trial Court. The facts of the prosecution case are that complainant K. S. Ghaswalla agreed to pay to the accused, through a firm of booking agents employed by the accused, a sum of Rs. 5001/- as and by way of a construction loan in respect of a building proposed to be constructed by the accused at Kandivli in Bombay. Under the said agreement the said Ghaswalla was to be given the tenancy of Flat No. 36 on the first floor of building No. 3 in the housing colony of which the same was a part. The said Ghaswalla paid to the accused various sums aggregating to Rs. 4000/- towards the said sum of Rupees 5001/- payable by him. The agreement between the said Ghaswalla and the accused was reduced into writing. (Exh F), and was dated 16th of September 1966, but was not registered as required by Section 18 (3) of the Bombay Rent Act, 1947. Under the said agreement, it was by necessary implication, though not in express terms, provided that the said building was to be completed on or before 30th December 1967, but the said agreement did not contain any provision creating a charge on the said Building No. 3 and the interest of the accused in the land on which the said building was erected as required by sub-section (3) of S. 18 of the Bombay Rent Act, 1947. The said agreement also contained certain other conditions to which, however, it is not necessary to refer, but it may be stated that the said agreement clearly showed that the loan of Rs. 5001/- which Ghaswalla was to give to the accused was to be given for the purpose of financing the erection of building No. 3 which was to be constructed by the accused. The prosecution case is that the accused, however, failed to complete the said building by the stipulated date viz. 30th December 1967 and that he has in fact not yet completed the same and given possession to Ghaswalla of the flat allotted to him. The accused was, therefore, charged under Section 18 (1) and Section 18 (4) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and was tried for the said offences by the learned Presidency Magistrate, 23rd Court, Esplanade, Bombay, who convicted him of the offence under Section 18 (4) of the said Act and sentenced him to a fine of Rs. 500/- but acquitted him of the offence under Section 18 (1) of the said Act in view of the decision of the Supreme Court in the case of Tolaram v. State of Bombay. (56 Bom LR 1206) == (AIR 1954 SC 496 ). It is from the order convicting him of the offence under Section 18 (4), that the accused has preferred the present appeal.

(2.) SEVERAL interesting questions releasing to the construction of Section 18 of the Bombay Rent Act, 1947, arise in this appeal and it would, therefore, be convenient at the outset to set out the substance of that section. Sub-section (1) of S. 18 makes it an offence for a landlord to receive any fine, premium or other like sum or deposit or any consideration other than standard rent or the permitted increases in respect of the grant, renewal or continuance of a lease of any premises or for the transfer of a lease". Sub-section (2) of that section provides for the recovery of any fine, premium or other sum or deposit paid by the tenant to the landlord in violation of sub-section (1 ). Then come sub-sections (3) and (4), with which I am directly concerned in this appeal and I would, therefore, prefer to quote the same verbatim. These sub sections are in the following terms:

(3.) THAT such loan shall be repayable by the landlord within a period of ten years from the date of the execution of the agreement or within a period of six months from the date of the termination of the tenancy by the landlord, whichever period expires earlier;