: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.103 OF 1992 Rajani S. Mainak & Ors. .. Appellants V/s. Lilabai Haribhau Jadhav, Decd., Thru’ Baban @ Vasant J. Gaikwad .. Respondent Ms. Leena Patil i/b. Mr. P.M. Pradhan for the Appellants. Mr. M.R. Katikar for the Respondent. CORAM : SMT. NISHITA MHATRE, J. DATED : 31 ST MARCH, 2010. ORAL JUDGMENT:- 1. The Second Appeal has been preferred against the decision of the Civil Judge, Junior Division, Karjat, dated 3rd March, 1986 and the judgment of the Additional District Judge, Raigad in Civil Appeal No.50 of 1986. The substantial question of law which arises in the present Second Appeal is whether the notification making the provisions of the Bombay Rents, Hotel and Lodging, House Rates Control Act, 1947, (for short “the Bombay Rent Act”), applicable to Karjat Village covers the case of the appellants, who are the tenants, in the suit : 2 : premises, which are used for both residential and business purposes. 2. The Suit was filed by the respondent, who owned a house property bearing No.238 at Bhisegaon in the Group Grampanchayat, Karjat. The defendants were the tenants in the suit property. The plaintiff claimed that she is entitled to recover possession of the suit premises under the Transfer of Property Act since the defendants were in arrears of rent. 3. The defendants filed a written statement contending that they were living in the premises and also running a “hotel” during the day. Evidence was led and the Suit was decreed. The trial Court did not accept the contention of the defendants that the tenancy was governed by the provisions of the Bombay Rent Act, in view of the notification issued by the Government of Maharashtra under the Act on 18th April, 1961. The trial Court further held that since the suit premises were used both for residential and business purposes, the notification issued under the Bombay Rent Act would : 3 : not be applicable to the present case. The submissions of the appellants herein were rejected in view of the judgment of a learned Single Judge of this Court in the case of Baburao Raghunath Bagwade vs. Chandulal Hiralal Shah, reported in LXXVII (1975) Bombay Law Reporter, 197. 4. Being aggrieved by the decision of the trial Court, an Appeal was preferred by the appellants before the District Court, Raigad. The District Court upheld the judgment of the trial Court and dismissed the Appeal. Hence the present Second Appeal. 5. The notification issued on 18th April, 1961, reads as follows :- “Sachivalaya, Bombay, 18th April, 1961/Chaitra 28, 1883. Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. No. BRA. 1858/1839/E.-Whereas Parts II and III of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. LVII of 1947), extend to the Karjat Village in the Kolaba District and consequently in that village, Part II of : 4 : the said Act applies to premises let for residence, education, business, trade or storage under sub-section (1) of section 6 of that Act; And whereas by Government Notification, Health and Local Government Department, No.5975/33-VI, dated the 30th August, 1948, all the provisions of Part II of the said Act, have been extended to all the areas in the Bombay area of the State of Maharashtra, which are not included in Schedule I to the said Act and in those areas Part II has been applied to premises let for education; And whereas, it is necessary that in the area within the limits of the Group Gram Panchayat, Karjat, that is to say, the area comprising the villages of Karjat, Bhisegaon, Mundre Khurd, Mundre Budruk and Gundge but excluding the area within the limits of the Karjat Village, Part II aforesaid should also apply to premises let for the purpose of residence; Now, therefore, in exercise of the powers conferred by sub-section (2) of section 6 of the said Act, the Government of Maharashtra, hereby specifies that in the area within the limits of the Group gram Panchayat, Karjat, aforesaid excluding the area within the limits of the village of Karjat, all the provisions of Part II of that Act, shall, on or with effect from the date of this notification, apply to premises let for the purpose of residence. By order and in the name of the Governor of Maharashtra, J.C. Fernandez, Under Secretary to Government” : 5 : 6. Admittedly the suit premises are situated in Bhisegaon one of the villages in the Group Gram Panchayat of Karjat. According to the learned Advocate for the appellants, the notification covers premises which are not only exclusively used for residential purposes but also those in which a business is run together with the residence. She points out that both the Courts below had accepted the fact that the tenancy was a composite one and the tenants were permitted to use the premises for residence and business. 7. A similar notification was considered by the Supreme Court in the case of Nilesh Nandkumar Shah vs. Sikandar Aziz Patel, reported in 2002 Bom.C.R. 476. The notification before the Supreme Court was of 18th October, 1960 and related to Koregaon Village in Satara District. The Supreme Court while interpreting the notification has observed thus in paragraph 7 as under : “7. Under the Bombay Act the purpose of letting of the premises may be for (i) residence, (ii) education, (iii) business, (iv) trade, or (v) : 6 : storage. It is permissible to extend the applicability of Part II of the Act to an area and at the same time to limit its applicability to premises classifiable by reference to the purpose of letting specified in sub-Section (1) of Section 6. In exercise of its legislative wisdom, the State Government has applied the provisions of Part II to Koregaon and yet, at the same time, limited the operation of the Act by stating that the provisions of Part II shall apply to premises let for the purpose of residence only. In other words, premises in Koregaon which have been let out for the purpose of business, trade, education or storage do not attract applicability of the Act. In the case of three tenements under appeal though the contract of tenancy is each an integral one, the purpose of letting being dual, that part of the tenancy premises the purpose of letting where of is residence would enjoy the protection of the Act while the other part of the premises which is meant for use in business or trade would not enjoy the protection, if we were to put is simply but that is the issue which calls for–not simplistic but legalistic- determination.” 8. While considering the applicability of the notification to the case before it, the Supreme Court also considered the several purposes for which the tenanted premises may be let out. While : 7 : doing so, the Supreme Court has observed that the tenanted premises may be let: (a). for a composite or mixed purpose, leaving the option open to the tenant to use the entire tenanted premises for either one or both purposes which are inseparable; or (b). as a single tenancy for dual purposes where although the contract of the tenancy is an integrated one, the premises are demarcated with reference to the purpose for which they are used separately. 9. The Supreme Court then observed thus in paragraph 9 as under : “9. In the cases at hand, inasmuch as the rear room of the tenancy premises, having it purposes of user as residence, enjoys the protection of Bombay Act, the tenant shall not be liable to be : 8 : evicted from any part of the tenancy premises, as part of the premises is protectable by the Bombay Act and the contract of tenancy is one single and indivisible. We are, therefore, of the opinion that when the premises are let out under one integrated contract of tenancy i.e. type (b) referred to above, and the purpose of letting in respect of one part of the premises is one of the users referred to in sub-Section (1) of Section 6 of Bombay Act while the other part of tenancy premises is permitted to be used for purpose other than the one stated in Section 6(1), the entire tenancy premises would enjoy protection of Bombay Act. Eviction of tenant can be had only by making out a case for eviction under Bombay Act. However, if a ground for eviction under Bombay Act from even a part of the premises is made out, eviction can be ordered from the whole unless the statute or the contract contains a special provision empowering the court to split up the tenancy.” 10. The Supreme Court did not agree with the interpretation of the same notification by the learned Single Judge of this Court in the case of Baburao Raghunath Bagwade (supra). The Court held that the view taken by the Bombay High Court was too narrow and it resulted in partially defeating the protection extended by the Bombay Rent Act. The : 9 : Supreme Court, therefore, held that the law was not correctly laid down in the case of Baburao Raghunath Bagwade (supra). The Supreme Court instead, approved of the view taken by the Gujarat High Court in the case of Jain Digambar Chaitylaya & Ors. vs. Shyamsundar Maneklal & Ors., reported in (1980) XXI Gujarat Law Reporter 392, by observing thus : “12. Decision in Jain Digambar Chaitylaya & Ors. vs. Shyamsundar Maneklal & Ors., (1980) XXI Gujarat Law Reporter 392 takes a view to the contrary. It is a detailed judgment. The learned Single Judge of Gujarat High Court, interpreting the provisions of this very Act, has held that where the purposes of letting are dual i.e. (i) for temple, and (ii) for storage, one of the purposes of letting being the one specified in Section 6, then such premises in their entirety would be governed by the provisions of the Act. The entire property need not have been let for the specified protected purpose. Even if a part of it is proved to be let for specified protected purpose, the entire property would be protected and governed by the provisions of the Act. This is the correct statement of law and we approve the same.” : 10 : 11. In my view, the Second Appeal must be allowed in view of the judgment of the Supreme Court in the case of Nilesh Nandkumar Shah (supra). 12. The learned Counsel appearing for the respondent submits, by placing an affidavit on record, that the premises are in a dilapidated condition and no useful purpose would be served if the impugned judgments are set aside. He submits that nobody is residing in those premises and, therefore, the Second Appeal should be dismissed. He further points out that the appellants have not paid rent at all during the pendency of this litigation i.e. from 1982 till today. These contentions will be considered by the Appellate Court while deciding the Appeal. 13. The judgment of the Appellate Court is set aside. The matter is remanded to the Appellate Court to decide the Appeal in accordance with the provisions of the Bombay Rent Act. Parties will appear before the Appellate Court on 7th June, 2010 for directions. : 11 : 14. It is made clear that the Court will consider the Appeal only if the rent is deposited by the appellants in the Appellate Court from 1982 till today, within a period of eight weeks from today. 15. Second Appeal is allowed. No order as to costs.