1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH WRIT PETITION NO. 4885/ 2009 Ram @ Parasram Madho Bhendarkar, aged about 42 years, occupation - Business, Proprietor – Nikhil Enterprises, Ganesh Ward, Pauni, Tahsil – Pauni, District – Bhandara. ... PETITIONER Versus Sau. Pushpabai Shriram Bhoge, aged about 60 years, occupation – Household, r/o Ganesh Ward, Pauni, Tahsil – Pauni, District – Bhandara. ... RESPONDENT Shri S.D. Harode, Advocate for the petitioner. Shri Bute, Advocate for the respondent. ..... CORAM : B.P. DHARMADHIKARI, J. DATE OF RESERVING THE ORDER : DECEMBER 02, 2009. DATE OF PROUNCING THE ORDER : DECEMBER 07, 2009. ORDER : 1. This writ petition under Article 227 of Constitution of 2 India, was rejected by the office for non-removal of office objections and came to be restored on 7/11/2009. I then heard matter for admission on 16/11/2009, 17/11/2009 and it was adjourned only to find out whether respondent - Landlady could agree to give reasonable time to Petitioner - tenant to vacate. Parties were heard further on 19/11/ 2009 & 24/11/2009 when Advocate Bute made it clear that the Respondent is not ready and willing to give any such time. On 25/11/2009, matter was adjourned at the request of Petitioner to 2/12/2009. Again on 2/12/2009, Petitioner sought adjournment and after that request was rejected, some efforts were made to persuade this Court to give next date. When it was closed for orders, the Counsel mentioning on behalf of Shri Harode sought time of half an hour to argue it. As Advocate Harode was already heard and matter was adjourned to find out some amicable solution, there was no question of hearing the Counsel again. Shri Bute informed the Court that he had filed reply pointing out malafides of Petitioner and reasons why the Landlady can not give any time to vacate. 3 2. Trial Court decreed the eviction Suit after holding that Landlady proved her bona fide requirement and Petitioner tenant was in arrears. These findings of fact have been maintained by the District Judge-I, Bhandara, in Appeal. 3. Shri Harode had contended that the alleged tenancy agreement between the Parties was not registered and hence reliance upon it by both the Courts below is against law and Suit based upon it could not have been decreed. Shri Bute has urged that even in that case the Petitioner has to point out how the rent was payable and as no specific defence about the mode & manner thereof has been pleaded or brought on record by the tenant, the plea is without any merit. Advocate Harode has attempted to show that the need for business of the husband of Respondent is not genuine as he already has an engineering workshop at adjacent village Sindpuri in Pauni tahasil of Bhandara district. He further pointed out that the petitioner had stated that his electric supply was disconnected putting him to loss and attention is invited to counterclaim made. According to 4 him S. 55 of Maharashtra Rent Control Act,!999 (hereafter 1999 Act) barred the Suit and in the absence of notice U/S106 of Transfer Of Property Act (hereafter T.P. Act), Suit needed only dismissal. Advocate Bute has relied upon concurrent findings by the Courts below to contend that those findings are based upon the facts proved and as law has been correctly applied no case is made out warranting any interference in Article 227 jurisdiction of this Court. 4. Non registration as envisaged by Section 55 of 1999 Act of agreement between the parties by itself can not help the petitioner because that does not absolve him of his obligations as tenant. Under sub-section 2 thereof, plea of tenant in relation to quantum, mode & manner of payment of rent can prevail if the landlady fails to prove the contract in that respect. Here, except for repeating that the agreement is not registered, no specific plea about these material aspects is raised by petitioner. Only plea in written statement is that rent amount was not Rs.1200/- P.M. But it was Rs.1000/-. Further, the story is landlady from 5 time to time borrowed Rs.9,450/- and it was not returned. Hence rent for the period from 1/7/2001 for next 9 months & 15 days stood adjusted. Rs. 10,000/-- received by the landlady towards interest free security deposit is also claimed to be adjusted for further period up to 15/2/2003. because of this adjustment, contention that tenant is in arrears from July 2001 is denied. The written statement also contains a counterclaim for illegal disconnection of the electric supply,mental torture, medical treatment etc. It is obvious that entitlement to alleged adjustment or an oral understanding for it or at least intimation of unilateral adjustment to landlady within reasonable time or in any communication needed to be pleaded or proved. Trial Court found that in notice Exh. 22 the arrears were demanded for the period from 1/7/2001 till 31/7/2002 and demand in plaint was also for same period. But then it observed that defendant was not in arrears from 1/11/2000 to 31/6/2001 and hence, it answered the issue against landlady. This seems to be either an inadvertent error or some confusion. It may be due to landlady's plea that agreement was only for period of 6 months i.e. from 6 1/11/2000 till 30/6/2001 and there was no agreement thereafter. But she expressly claimed arrears from 1/7/2001 onwards only and tenant who pleaded tenancy even for said period did not point out actual payment of rent therefor but alleged adjustment. The Trial Court accepted his case that agreed rent was Rs.1000/- only. Important it is to see that it has decreed claim of landlady for arrears at rate of Rs.1000/- P.M. For the period from 1/7/2001 till 31/7/2002. The Appellate Court has not fallen in any such confusion and it upheld this money decree for arrears unequivocally. The Courts have thus concurrently found that the alleged story of borrowings or advance was not established by the tenant. These findings are based on evidence and material available on record. The non registration of agreement or then non execution of agreement is therefore not decisive in any way. The contention of the tenant therefore without any basis and needs to be turned down. 5. Existing engineering workshop at other village is the defence to bona fide need of landlady. The need pleaded is to 7 locate engineering workshop of her husband in tenanted premises. The defence was that husband already had said business in suit shop while her married sons have a welding shop at village Sindpuri. That village is at distance of 1 Km. From town Pauni where tenanted premises are located. The tenant has also stated that there are other tenants in house of landlady and Courts have held that choice to occupy a particular shop was with her and tenant can not impose that choice on her. All these facts are on record and Landlady's husband Shriram entered the witness box. The Courts have also examined the angle of comparative hardship. He was running that workshop in suit premises before petitioner came to be inducted as tenant. The conclusions reached concurrently after appreciating the same are not demonstrated to be perverse. There is no jurisdictional error at all. 6. Notice under Section 106 of Transfer of Property Act is not a requirement at all when eviction is sought under 1999 Act. In Madhukar Laxman Umalkar vs. Keshav Laxman 8 Shilawant, 2005 (3) Mah. L.J. 947, it has been held that when eviction of tenant is sought on any of the grounds mentioned u/s 16(1) no notice is required to be given as contemplated u/s 15 of 1999 Act. If the landlord satisfies the conditions mentioned in the grounds available u/s 16(1) he can directly file a suit for possession. Contention that even in the cases of eviction under the provisions of section 16 of Maharashtra Rent Control Act the tenancy has to be terminated first by issuing a notice under section 106 of the Transfer of Property Act and as such the notice terminating the tenancy is essential is negated by this Court in 2004 (3) LJSOFT 44 :2004(1) Mah. L.J. 941--K. Mukta Ashok Khankhoje Vs. Namdeorao Tukaram Khutaphale, cases referred to by the Lerned Single Judge are Hindustan Ferrodo Limited vs. Mrs. Harilachman Hasija 2003 (7) LJSOFT 69 = 2003 (4) Mh.L.J. 50, Sri Ramkrishna Theatres Ltd. vs. General Investments and Commercial Corporation Ltd. and others AIR 1993 Karnataka 90, Smt. Shakuntula S. Tiwari vs. Hem Chand M. Singhania AIR 1987 SC 1823 and V. Dhanapal Chettiar vs. Yesodai Ammal 1979 Mh.L.J. 773 (SC) = AIR 1979 SC 1745. 9 The relevant observations are :- “5. The ratio of V. Dhanapal Chettiar's case is that for the eviction of a tenant under any State Rent Control Act it is not necessary to give notice under section 106, Transfer of Property Act. Determination of lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. Making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with section 106, Transfer of Property Act. 6.The relevant observations on which the counsel for plaintiff/ respondent placed reliance in the case of Hindustan Ferrodo Ltd. are as below: "It is well-settled that when an eviction of a tenant is sought for in terms of the provisions of the Rent Legislation in force in the State, the procedure for the purpose of eviction of such tenant being specifically provided under such rent legislation 10 itself, there is no need to take resort to the provisions of the general law i.e. the Transfer of Property Act and therefore the question of service of notice under section 106 of the Transfer of Property Act in such cases does not arise." 7. I, therefore, find that no case is made out warranting any interference in Article 227 of Constitution of India. Writ Petition is accordingly dismissed, however with no order as to costs. JUDGE ******* *CD/GS.