HINDUSTAN FERRODO LTD Vs. HARI LACHMAN HASIJA

JUDGEMENT

(1.) HEARD the learned Advocates for the parties. Rule. By consent, the rule is made returnable for the with.

(2.) THE petitioners are challenging the judgment and order dated 2-5-2002 passed by the Appellate Bench of the Small Causes Court at Mumbai in Appeal No. 600 of 2001 whereby the appeal filed by the petitioners against the order of the trial Court has been dismissed. The trial Court by its judgment and order dated 28-8-2001 had decreed the suit filed by the respondents and had directed the petitioners to deliver vacant and peaceful possession of the suit premises, comprising of Flat No. 7, situated on the 4th floor in a building known as Kalpataru Apartments Co-operative Housing Society Limited, 39th Peddar Road, Mumbai-400026. The said decree was passed in a suit filed by the respondents on the ground that under the agreement of leave and licence dated 11-8-1970, the petitioners were allowed to occupy the suit premises in consideration of compensation to the extent of Rs. 1250/- per month, in addition to Rs. 100/ per month for the use of the garage. The said licence was for a temporary period and on expiry thereof there was repeated demand for vacant possession of the suit premises by the respondents. However, the petitioners continued to occupy the same. Meanwhile, a new Section 15a was inserted in the Bombay Rents, Hotels and Lodging Houses Rates (Control) Act, 1947, hereinafter referred to as "the old Rent Act" and under the said Section 15a of the old Rent Act, a status of deemed tenancy came to be granted to the licensees who were in occupation of the premises to the licensees who were in occupation of the premises on or before 1-2-1973 and consequently the petitioners claimed protection under the Old Rent Act. However, with effect from 31-3-2000 the Maharashtra Rent Control Act, 1999, hereinafter called "the new Rent Act" came into force in terms of Section 58 of the new Rent Act, the old Rent Act was repealed without specific provision specifying the reservation of any right that might had accrued in favour of any person under the old Rent Act. Besides, in terms of Section 3 (1) (b), the provisions of the new Rent Act were not made applicable to any premises let out or sub-let to the banks or the corporations established under the Act, private limited companies as well as public limited companies having paid up share capital of rupees one crore or above and the petitioners being undisputedly a public limited company, having paid up share capital of more than rupees one crore, the provisions of the Rent Act are not applicable to the suit premises and therefore contending that the petitioners have lost the status of deemed tenancy, which was granted to the petitioners under the old Rent Act consequent to its repeal without saving any right in that regard, the petitioners have regained the status of licensee and the appropriate notice for vacating the premises and termination of licence was issued to the petitioners by the respondents and that therefore sought eviction of the petitioners on account of non-compliance of the said notice. The claim of the respondents was contested by the petitioners mainly contending that irrespective of the repeal of the old Rent Act and non-availability of the protection under the new Rent Act, the petitioners still continue to be the deemed tenant and therefore without terminating the tenancy of the petitioners by following the procedure known to law, no action for the eviction of the petitioners from the suit premises can lie in any Court and therefore the petitioners cannot be evicted and for the same reason the order of eviction would be bad. The trial Court rejected the contention of the petitioners and decreed the suit and the same has been confirmed by the lower Appellate Court. Hence the present petition.

(3.) DRAWING attention to Sections 15a and 3 (3) of the old Rent Act as well as to Section 7 (5) r/w Sections 58 and 3 (1) (b) of the new Rent Act, it is sought to be contended on behalf of the petitioners that though the old Rent Act has been repealed and the protection which was assured under the old Rent Act is ceased to be available to the petitioners in view of the repeal of the old Rent Act, nevertheless, the character of deemed tenancy acquired by the petitioners under the old Rent Act continues even under the new Rent Act and though the protection available otherwise to the tenant and deemed tenant under the new Rent Act is not available to the petitioners, yet the petitioners cannot be evicted without following the provisions of the general law governing the relationship of the landlord and the tenant. It is contended that in terms of Section 7 (5) of the new Rent Act, the petitioners have been assured the status of deemed tenant even under the new Rent Act as the definition specifically includes the deemed tenant under the provisions of the old Rent Act and mere non-availability of the protection under the new Rent Act to the premises occupied by the petitioners on account of the provisions contained in Section 3 (1) (b) thereof, the character of the petitioners as the deemed tenant in relation to the suit premises would not change. In short, the repeal of the old Rent Act and introduction of the new Rent Act, even in the absence of availability of the protection under the new Rent Act to the petitioners, it would not change the relationship of the landlord and the tenant between the respondents and the petitioners respectively, unless it is specifically terminated by taking resort to the provisions of the Transfer of Property Act. On the other hand, it is sought to be contended that the status of deemed tenant granted to the petitioners under the old Rent Act was specifically in terms of Section 15a of the old Rent Act and it specifically provided that the same was for the purpose of the old Rent Act and therefore irrespective of the provisions of law contained under Section 3 (3) of the old Rent Act and Section 7 (5) of the new Rent Act, the said status of character of the petitioners would not continue after the repeal of the old Rent Act. It is also contended that undisputedly the old Rent Act was a Act, it stands obliterated from the statute book and being so, no right can be claimed to have accrued under the provisions of the said Act. With the repeal of the old Rent Act and the non-applicability of the new Rent Act to the petitioners, the petitioners cannot claim to be the tenant or deemed tenant in relation to the suit premises and further that with the repeal of the old Rent Act the provisions of Section 15a thereof also stands repealed and therefore the status or character of the petitioners is resorted to that of the licensees. As the petitioners licence was duly terminated by issuing a notice and the suit having been filed thereafter under Section 41 of the Small Causes Court Act, no fault can be found with the impugned order of eviction. Various reported decisions have been relied upon on behalf of the parties to the petition in support of rival contentions.