DEONARAYAN ISHWARIPRASAD PARDESHI Vs. HARIBHAU KUSHABA

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 15.2.1984 passed by the III Extra Assistant Judge, Pune in Civil Appeal No.437 of 1982. That appeal was filed by the petitioner challenging the judgment and decree dated 24.2.1982 passed by the II Assistant Small Cause Judge, Pune in Civil Suit No.132 of 1979. The Civil Suit was filed by one Haribhau Lohakare and Sarubai Lohakare of whom the present respondents are the legal representatives claiming therein that they are owners of the land bearing Survey No.601/7/2 situate within the limits of Pune City and an open space admeasuring 77' x 66' x 50' was let out to the petitioner by lease deed dated 12th June 1963 for the purpose of poultry and a flour mill. The landlord sought, a decree of eviction against the tenant on the ground that the tenant is not ready and willing to pay the rent. The suit was resisted by the tenant. One of the contentions urged by the tenant was that the date on which the land was leased out, it was an agricultural land and was also being used for agricultural purpose and therefore, the land was not "premises" within the meaning of the Bombay Rent Act and therefore in terms of provisions of Section 6 of the Act, the provisions of the Bombay Rent Act were not applicable to that land. The trial Court however, held that the provisions of the Bombay Rent Act were applicable to the land in question and it also recorded a finding in favour of the landlord holding that the tenant is not ready and willing to pay the rent and decreed the suit directing the tenant to vacate the suit premises. In the appeal filed by the tenant, the findings recorded by the trial Court were confirmed and the appeal was dismissed. It is these two orders of the subordinate Courts which are challenged in the present petition.

(2.) THE learned Counsel for the petitioner urged before me that the date on which the land was leased to the tenant in the revenue record it was described as Agricultural Land where the grass was growing. The learned Counsel for the petitioner pointed out to me that both the Courts below have found that on the date on which the lease was created, the land was being used for agricultural purposes in the sense that the land was not put to any N.A. use and in the relevant revenue record it was assessed to agricultural use. Therefore, in the submission of the learned Counsel considering the definition of the term "premises" found in Section 5(8) of the Bombay Rent Act, as land was being used for agricultural purpose, the land would not amount to "premises" within the meaning of the Bombay Rent Act. The learned Counsel relying on the provisions of Section 6 of the Bombay Rent Act submits that in order to attract the application of the provisions of part II of the Bombay Rent Act. It must be shown that the land which has been let is "premises" within the meaning of the Act. As the land which was leased out in 1963 it does not amount to "premises" within the meaning of the Act on the date of letting provisions of Part II of the Bombay Rent Act are not applicable to the suit land. Perusal of the orders of the both the Courts below shows that on the date on which the land was leased out, the land was not being used for any N.A. purpose and according to the entry in the record of right and grass was growing on that land and therefore, it is claimed that it was agricultural land on the date of creation of lease deed and therefore, land was not "premises" within the meaning of the Bombay Rent Act Subsection 1 of Section 6 of the Bombay Rent Act lays down that an area specified in Schedule I. This part shall apply to premises let or given on licence for residence, education, business trade or storage. Therefore, in order to attract the application Part II of the Act, the land must be "premises" within the meaning of the Act, and in order that the land to be called as "premises" within the meaning of the Act, it must be used for agricultural purpose. Thus, it is clear that in order to attract application of the provisions of Part II of the Bombay Rent Act on the date of letting the land must not be used for agricultural purpose. In my opinion, the learned Counsel has rightly place reliance on the provisions of the Supreme Court in its Judgment in Subhadra v. Narsaji, A.I.R. 1966 S.C. 806 to contend that the material date for ascertaining whether the plot is "premises" for the purpose of Section 6 of the Bombay Rent Act is the date of letter the premises. It is clear that on the date of letting viz., 12.6.1963, the land in question was agricultural land and therefore, the provisions of Part II of the Bombay Rent Act were not applicable. Thus it is clear that there is a clear error law in the judgment of both the Courts below and therefore, they are liable to be set aside.