Case: NILESH LAXMICHAND Vs. SHANTABEN PURUSHOTTAM KAKAD (SINCE DECEASED) BY LRS

further stated that as the license was originally renewed in the name of Shree Krishna Fast Food Corner, the Municipal Corporation did not change the name later on and informed the second appellant that it will be changed at the time of renewal. Therefore, it is quite clear that the appellant’s case must be taken to be that till 2005, business was been carried out in books from the suit premises. Interestingly, the plaintiff also, in paragraph 3, would state that in or around July 2005, the defendant no.1 suddenly closed down the business of book store. Therefore, it is clear, as day light, and it can be taken as established that the premises was being used for running the book store and it continued, even according to the plaintiff, till July 2005. This is also the stand taken by the appellants, as we have noted. In quick succession, the business in garments was started which was short lived. Equally business in fast food was conducted and the same was also stopped.25. We must remind ourselves that the requirement of Section 16(1)(n) of the Maharashtra Rent Control Act, 1999 will be satisfied if it is established that for a period of six months continuously from 20.04.2006 till the date of institution of the suit, the suit premises were not used by the tenant without a reasonable ground for the purpose for which it was let out. Since even the appellants do not have a case that the appellants were carrying on the business in readymade garments or fast food during the period, the only business that the appellants can lay store by, is the business in books.26. The contention of the appellants would appear to be that the Appellate Court has proceeded on the basis that the registration was obtained on 30.11.2007. Appellate Court further finds that there is a gap of 13 months from the date of the institution of the suit and the date on which the registration was obtained on 30.11.2007. It is the case of the appellants that what the provision in question requires is that there must be non-user by the tenant for the period of six months immediately and continuously prior to the institution of the suit. The period of 13 months, if calculated from 30.01.2007 backwards, in point of time, would be a period commencing from 30.10.2006. The contention appears to be that the cause of action is the continuous non-user for six months prior to the use. Therefore, the relevant question has not been posed and answered, appears to be the argument of the appellants.27. Let us consider the registration certificates which have been produced. The registration certificate, under the Bombay Shops and Establishments Act, 1948, is seen to be certified on 9 th day of September, 2005. It is in the name of the second appellant. Under the heading “Nature of business”, it is stated “Sale of books, Sale of snacks, juice, cold drink and ice cream” . The name of the establishment is known as “Chetna Book Centre”, “Shree Krishna Food Corner”.28. We can say the date of receipt, as far as 2005 is concerned, is 06.09.2005. Still further, there is a reference to receipt dated 09.01.2007. Under the Maharashtra Shops and Establishments Act, under Section 7(2)(A), a registration certificate shall be valid upto the end of the year for which it is granted. As it stands now, it is valid for a period of twelve months from the date it is granted or renewed. This is after the substitution by Act 25 of 2013. Therefore, the provision, which is relevant, is the previous provision, under which, as noted, the registration certificate would be valid upto the end of the year for which it was granted. Therefore, even going by the registration certificate produced and under the Act, we would think that as it has been issued on 09.09.2005, it came to an end by the end of the year. The word “year” is defined in Section 2(32) as meaning that “a year commencing first day of January”. Thus, even the appellant apparently paid the fees for renewal of the registration only on 09.01.2007. He did not pay any fees for renewal of the registration during the year 2006. On 30.11.2007, no doubt, registration certificate was issued. The result is that during the year 2006, it can be concluded that there was no registration for the business either in books or fast food.29. This apart, the fact that under the Shops and Establishments Act, it is undoubtedly true that a person having a shop must get it registered. In other words, carrying on a shop or establishment, as defined in the Act, without registration, would make it illegal. The fact that there is a registration, however, would not be sufficient to establish that there is use of the premises. In other words, even if a person has registration, that by itself would not mean that the tenant is actually using the premises for the purpose for which it is rented out to him. Actual use of the premises can be established by various other circumstances like electricity bills, payment of wages to employees if there are employees, evidence relating to transactions of the business which is carried on etc. No doubt, the burden actually is on the landlord to establish the non-user. But since, in this case, it would appear that there is no registration for the period, it shows that the appellants could not have lawfully conducted any business in the suit premises. There is, no doubt, the evidence of PW1 also.30. Appellants have attempted to produce additional documents. The document is a notice issued for keeping open the shop on a Monday on 11.09.2006. It is also stated, fine was paid of Rs.4,000/-. We find considerable substance in the contention of the respondent that additional evidence can be admitted only if the grounds of Order 41 Rule 27 are established. We find no merit in the said application.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]15. As regards the case of nuisance, Section 16(i)(c), inter alia, declares that conduct which is a nuisance or annoyance to the adjoining or neighbouring occupier by the tenants or others under him, is the ground for eviction. The nuisance, apparently, is attributed to the period of time when business of fast food was being carried out. We have noticed the findings of the Trial court. The evidence of none of the neighbours, be they any of the shopkeepers in the building itself or otherwise, is forthcoming. Details, as such, thereof are not seen established. The original plaintiff who resided in the same building has not given evidence. The evidence essentially constitutes of the deposition of PW1, the son of the original plaintiff and the complaint in writing. Admittedly, he does not reside in the building. He resides elsewhere. No doubt, his evidence that when he came to visit his mother and he would go around, is relied upon to conclude that he has experienced nuisance and that nuisance is established. We would think that having regard to the serious consequences which arise out of ground of nuisance, being established, the facts of this case may not justify eviction of appellants on the said ground. In fact, the High Court has not independently gone into the matter and it has affirmed the findings of the Appellate Forum. These findings, we have adverted to. We do not think that there was justification for the Appellate court or the High Court to sustain eviction on the ground of nuisance.16.As regards, the question whether there isit is necessary to notice the plea relating to subletting. It is to the effect that defendant no.1 has unlawfully sublet, assigned or transferred to third party for unlawful consideration. It is further alleged thatson Anil met the person who confirmed to him that it has been given to him on license basis. It is also stated in paragraph 5 that the defendants have now given the suit premises to someone else. From this, we take it that the case of subletting is built around the act of putting the third party, who is named as Mr. Raja, in possession. There is no case, as such, set up that there is illegal subletting by defendant no.1 putting defendant no.2 in possession and the allegation is specific, as noted above.17. Regarding this allegation, we are of the view that the finding, given by the Trial Court, correctly brings out the position found in fact. The details, as to when Shri Raja was put in possession, as to when Shri Raja was found in possession, whether this possession was exclusive, the purpose for which Shri Raja was using the premises, are neither pleaded nor proved. The alternate case of subletting, apparently set up at the stage of argument, is that there is unlawful subletting to the second defendant. We have noted the pleading. The pleading of subletting is about subletting to a third party which was rejected by the Trial Court. In the Appellate Court, such subletting is found qua the second appellant. Having regard to the facts, beginning with the fact that first appellant was only nearly five years old, the registration was in the name of second appellant, the nature of the relationship between the appellants, viz., the second appellant is the father of the first appellant and also the case which was pleaded in the suit, we are of the view that finding of illegal subletting cannot be sustained.Suit in this case was instituted on 20.10.2006. therefore, it is incumbent on the respondents to establish that the premises were not been used for a continuous period of six months which means from 20.04.2006 till the date of institution of the suit.What stands out from the aforesaid pleadings is that the second defendant, after taking over the premises under the lease, has started the business of selling books. Thereafter, from the pleadings of both the plaintiff and defendants, it is clear that appellant also carried on the business in readymade garments and also, still further, business in fast food. As to when the other businesses were carried on, is not clear from the plaint or written statement.24. The case sought to be set up before this Court would, however, reveal the following:It is thethat the book stall business was running slow. It was in the year 2005 that the second appellant decided to start new business. It is their case that the business in clothes was closed down immediately after it was started. Thereafter, in 2005, we must indeed find that the business of fast food was started. The fact that the business of fast food was being run, is clearly established by one circumstance and that is the complaint dated 27.10.2005 given regarding conduct of the business of fast food. This is the case of the respondents. Therefore, the fast food was also started and it apparently was closed down. Thereafter, it is to be noticed that according to the appellants, the second appellant started again business of book stall in the name and style asin the year 2006 onwards (see Groundin the Special Leave Petition). It is further stated that as the license was originally renewed in the name of Shree Krishna Fast Food Corner, the Municipal Corporation did not change the name later on and informed the second appellant that it will be changed at the time of renewal. Therefore, it is quite clear that thecase must be taken to be that till 2005, business was been carried out in books from the suit premises. Interestingly, the plaintiff also, in paragraph 3, would state that in or around July 2005, the defendant no.1 suddenly closed down the business of book store. Therefore, it is clear, as day light, and it can be taken as established that the premises was being used for running the book store and it continued, even according to the plaintiff, till July 2005. This is also the stand taken by the appellants, as we have noted. In quick succession, the business in garments was started which was short lived. Equally business in fast food was conducted and the same was also stopped.25. We must remind ourselves that the requirement of Section 16(1)(n) of the Maharashtra Rent Control Act, 1999 will be satisfied if it is established that for a period of six months continuously from 20.04.2006 till the date of institution of the suit, the suit premises were not used by the tenant without a reasonable ground for the purpose for which it was let out. Since even the appellants do not have a case that the appellants were carrying on the business in readymade garments or fast food during the period, the only business that the appellants can lay store by, is the business in books.We can say the date of receipt, as far as 2005 is concerned, is 06.09.2005. Still further, there is a reference to receipt dated 09.01.2007. Under the Maharashtra Shops and Establishments Act, under Section 7(2)(A), a registration certificate shall be valid upto the end of the year for which it is granted. As it stands now, it is valid for a period of twelve months from the date it is granted or renewed. This is after the substitution by Act 25 of 2013. Therefore, the provision, which is relevant, is the previous provision, under which, as noted, the registration certificate would be valid upto the end of the year for which it was granted. Therefore, even going by the registration certificate produced and under the Act, we would think that as it has been issued on 09.09.2005, it came to an end by the end of the year. The wordis defined in Section 2(32) as meaning thatyear commencing first day ofThus, even the appellant apparently paid the fees for renewal of the registration only on 09.01.2007. He did not pay any fees for renewal of the registration during the year 2006. On 30.11.2007, no doubt, registration certificate was issued. The result is that during the year 2006, it can be concluded that there was no registration for the business either in books or fast food.29. This apart, the fact that under the Shops and Establishments Act, it is undoubtedly true that a person having a shop must get it registered. In other words, carrying on a shop or establishment, as defined in the Act, without registration, would make it illegal. The fact that there is a registration, however, would not be sufficient to establish that there is use of the premises. In other words, even if a person has registration, that by itself would not mean that the tenant is actually using the premises for the purpose for which it is rented out to him. Actual use of the premises can be established by various other circumstances like electricity bills, payment of wages to employees if there are employees, evidence relating to transactions of the business which is carried on etc. No doubt, the burden actually is on the landlord to establish the non-user. But since, in this case, it would appear that there is no registration for the period, it shows that the appellants could not have lawfully conducted any business in the suit premises. There is, no doubt, the evidence of PW1 also.30. Appellants have attempted to produce additional documents. The document is a notice issued for keeping open the shop on a Monday on 11.09.2006. It is also stated, fine was paid of Rs.4,000/-. We find considerable substance in the contention of the respondent that additional evidence can be admitted only if the grounds of Order 41 Rule 27 are established. We find no merit in the said application.