NILESH LAXMICHAND AND ANOTHER versus SHANTABEN PURUSHOTTAM KAKAD (SINCE DECEASED) BY LRS
[2019] 7 S.C.R. 460, Supreme Court of India, 2019
Outcome: Dismissed (Dismissed)
Segment: Ratio
A
B
C
D
E
F
G
H
460
SUPREME COURT REPORTS
[2019] 7 S.C.R.
NILESH LAXMICHAND AND ANOTHER
v.
SHANTABEN PURUSHOTTAM KAKAD (SINCE DECEASED)
BY LRS
(Civil Appeal No. 4268 of 2019)
MAY 08, 2019
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Maharashtra Rent Control Act, 1999 – ss.16(1)(c), 16(1)(e)
and 16(1)(n) – Respondents-plaintiffs rented out a premises to the
appellants-defendants – Appellants took the premises on rent for
purpose of carrying out business of book shop – Respondents filed
a suit for eviction of the appellants u/ss.16(1)(c), 16(1)(e) and
16(1)(n) of the Act – Respondents’ case that in July, 2015, the
appellants closed down the business of the bookstore, and since
then, the premises was not used for more than six months prior to
the suit, for the purpose for it was let out – It was also alleged that
appellants also started business of garments and foodstuff at
different intervals but the same was closed down – Further,
appellants had also sublet the premises to the third party – Trial
court found that all three grounds were not made out and suit was
dismissed – However, Appellate Court allowed the appeal and in
revision, the High Court affirmed the findings of the Appellate Court
– On appeal, held: The grounds of illegal subletting and nuisance
(foodstuff) taken by the respondents unsustainable – Insofar as
ground relating to non-user is concerned, the requirement of
s.16(1)(n) of Act need to be satisfied, it has to be established that
for a period of six months
continuously from 20.04.2006 till the
date of institution of the suit, i.e. 20.10.2006 the suit premises were
not used by the tenant/appellants without a reasonable ground for
the purpose for which it was let out i.e. business of book shop –
Besides, under the Shops and Establishments Act, a person having
a shop must be registered – In other words, carrying on a shop or
establishment, as defined in the Act, without registration, would make
it illegal – In the instant case, appellant did not pay any fees for
renewal of the registration during the year 2006 – Burden actually
is on the landlord to establish the non-user – But since, there was
   [2019] 7 S.C.R. 460
460
A
B
C
D
E
F
G
H
461
no registration for the said period it showed that the appellant could
not have lawfully conducted any business in the suit premises –
Also, the two courts found the ground of non-user u/s.16(1)(n) of
Act established – Therefore, no need to interfere with the judgment
of the High Court – Bombay Shops and Establishments Act, 1948.
Dismissing the appeal, the Court
HELD : 1. The following elements must be established
under Section 16(1)(n) of the Maharashtra Rent Control Act, 1999
- the premises must have been let out for a particular purpose;
there must be non-user by the tenant for the purpose; the non-
user must be without reasonable cause; the non-user must be
for a continuous period of six months immediately preceding the
date of the suit.  [Para 19] [469-B]
2.  The requirement of Section 16(1)(n) 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 i.e. 20.10.2006,
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. [Para 25] [470-G-H; 471-A-B]
3. Under the Bombay Shops and Establishments Act, 1948
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, 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,
NILESH LAXMICHAND v. SHANTABEN PURUSHOTTAM
KAKAD (SINCE DECEASED) BY LRS
A
B
C
D
E
F
G
H
462
SUPREME COURT REPORTS
[2019] 7 S.C.R.
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.
[Para 28] [471-F-H; 472-A-B]
4.  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. [Para 29] [472-B-E]
5.  In the circumstances of the case, having regard to the
fact that two courts have found the ground of
non-user under
Section 16(1)(n) of the Maharashtra Rent Control Act, 1999
established and the facts as noted by this Court it is not a fit case
to interfere with the judgment of the High Court. [Para 31]
[472-F-G]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4268
of 2019.
From the Judgment and Order  dated  24.09.2018 of the  High
Court of Judicature at Bombay in C.R.A. No. 29 of 2018.
Mayil Samy K., Nihangam R. Maurya, G. Ananda Selvam, K.
Muthu Ganesa Pandian,  P. Soma Sundaram,  Advs. for the Appellants.
Anirudh Joshi, Mahesh Agarwal, Abhinav Agrawal, Himanshu
Satija, E. C. Agrawala, Advs. for the Respondents.
A
B
C
D
E
F
G
H
463
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. This appeal by special leave is directed against the Order dated
24.09.2018 passed by the High Court of Bombay in Civil Revision
Application No. 29 of 2018. By the impugned Order, the Revision
Application filed by the appellants challenging the Order of the Appellate
Bench of the Small Causes Court at Bombay in Appeal No. 19 of 2013
has been dismissed. Thereby the result is that the suit filed by the
respondents for eviction of the appellants under Section 16(1)(c), 16(1)(e)
and 16(1)(n) of the Maharashtra Rent Control Act, 1999 (hereinafter
referred to as ‘the Act’, for short), has been decreed against the appellants.
2. The original RAE Suit No. 1681 of 2006 was filed by one
Shantaben Purushottam Kakad (the respondents in this appeal are the
legal representatives of the original aforesaid plaintiff). The rented
premises consisted of a shop on the ground floor of the building. The
case of the plaintiff, inter alia, is as follows (parties will be referred to in
the position before the Trial Court):
The first defendant took the premises on rent for the purpose
of carrying out business of bookshop and he, the first defendant,
has, since the inception, been carrying on the business of bookshop
in the name and style “Chetna Book Store”. In about July, 2005,
the first defendant suddenly closed down the business of bookstore,
and since then, is not using the premises for more than six months
prior
to the suit, for the purpose for which it was let and that too
without reasonable or any cause. It was further stated that the
first defendant had sublet the premises to third party. As regards
the ground of nuisance, it was stated that the defendants have
started business of preparation and sale of foodstuff from the suit
premises which does not have suitable layout or ventilation for
the same. It is further stated that as a result, there was pollution
and smell and smoke and this caused lot of nuisance and annoyance
for the plaintiff an old landlady and other occupants of the building.
This business is now closed down. It is further stated that the
business of garments was also started and closed down and that
the defendants have now given the suit premises to someone else.
It is, on these allegations, the suit came to be filed.
NILESH LAXMICHAND v. SHANTABEN PURUSHOTTAM
KAKAD (SINCE DECEASED) BY LRS
A
B
C
D
E
F
G
H
464
SUPREME COURT REPORTS
[2019] 7 S.C.R.
3. A Written Statement came to be filed by the appellants. The
first appellant is actually the son of the second appellant. Their case is,
inter alia, as follows:
In the year 1971, the second defendant, who is the father of
the first defendant, approached the original landlord, the husband
of the original plaintiff, for taking the suit premises on rent. On
finalisation of negotiations, the premises were taken on rent
somewhere in the year 1971. At that time, the first defendant was
a minor aged five years. The premises were taken for commercial/
business purpose to be carried on by the second defendant but
the second defendant, for certain spiritual reason and on the advice
of the Astrologer, obtained receipt in the name of the first
defendant. The rent receipts continued to be issued in the name
of the first defendant. After obtaining the building on rent, the
second defendant used the rented premises for selling books in
the name and style “Chetna Book Store”. Second defendant
obtained necessary licence under The Shops and Establishments
Act. The second defendant was not able to get good business and
sufficient earnings. He started business of readymade garments
for some time. That also did not succeed. Thereafter, he started
the business in the name and style “Shree Krishna Food Corner”.
However, though he applied, the Health Department did not issue
the licence. The business in fast food was stopped and again the
business of selling books and stationery was continued. The case
of sub-tenancy was denied, so also the case relating to nuisance.”
4. The Trial Court relied upon the deposition of PW1 to find that
he admitted that he did not know when the tenancy was created, whether
any negotiations took place and on what terms and conditions, the tenancy
was created. The suit premises, was found to be let out in the year 1971
when the original landlord was looking after the affairs. The court relied
upon the deposition of the second defendant as DW1 as to the reasons
why the rent receipt came to be issued in the name of the first defendant.
The registration certificate under The Shops and Establishments Act
was found to be in the name of second defendant for the business of
book selling and food centre. These are for the period from 1988 to 2003
and for the period from 2006 to 2007. The lack of objection from the
original landlord in the year 1971 to the business being carried out by the
second defendant, was noted. DW1 has deposed that the first defendant
A
B
C
D
E
F
G
H
465
was five years old in the year 1971. Relying upon Section 11 of the
Indian Contract Act, 1872 and noting reciprocal obligations is a cast on a
lessee, tenancy in favour of the minor, was ruled out. From the inception,
the second defendant was found to be in exclusive possession without
interruption. Tenancy was found to be created in favour of the second
defendant, though the rent receipt stands in the name of the first
defendant. It was found that defendants proved that second defendant
was then using the suit premises for selling books by obtaining license
under The Shops and Establishments Act for the year 2006 to 2007 and
it was found that it could not be said that defendant was not using the
premises for the purpose for which it was let for the continuous period
of six months immediately preceding the date of the suit. The Trial court
did not find favour with ground of illegal subletting. Regarding the illegal
subletting to Mr. Raja, the details were found wanting.
5. As regards ground of nuisance, it was found that the smell and
smoke of preparing foodstuff may cause nuisance and annoyance if the
same are on a large scale and for a continuous period. There are 16 to
18 shops on the ground floor. The original plaintiff did not enter the
witness box. PW1 resided elsewhere and he occasionally visited the
premises. No adjoining occupier was examined as witness to support
the case of nuisance. The particulars, as to what time in a day the
defendants
particularly prepared foodstuff and on what scale, etc., was
not given. Finding all the three grounds not made out, the suit was
dismissed.
6. The Appellate Court refers to the rent receipts in the name of
the first defendant and found that nullifies the evidence of DW1 to the
effect that the premises was taken in the name of the second defendant
since inception. It was, therefore, found that there was no question of
induction of the second defendant since inception. The reason regarding
creation of tenancy in the name of the first defendant being on the advice
of an Astrologer or Numerologist was found unbelievable as no such
Astrologer or Numerologist, on whose advice the same was done, was
examined. Two letters dated 30.10.2005 and 01.12.2005 written by the
defendants were relied upon to conclude that the second defendant had
absolute control over the suit premises and that he was in possession of
the premises. As regards non-user of the premises, evidence of PW1
showed that in or about 2005, the first defendant suddenly closed down
the business and the premises was locked for some time and first non-
NILESH LAXMICHAND v. SHANTABEN PURUSHOTTAM
KAKAD (SINCE DECEASED) BY LRS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
466
SUPREME COURT REPORTS
[2019] 7 S.C.R.
use was commenced in July, 2005. Thereafter, plaintiffs received two
letters on 30.10.2005 and 01.12.2005 from the defendants. Under those
letters, the second defendant intimated the original plaintiff that there
was leakage in the premises causing nuisance and due to which the suit
premises have become unwholesome and in a filthy condition. DW1 in
his evidence, it was found, has deposed as having run the Chetna Book
Store for quite a number of years. Then he switched over to business of
readymade garments. Thereafter, he started business of Shree Krishna
Food Corner. Again, business in Book Centre was started. The Shops
and Establishments Act showed that the business was carried on from
1988 to 1990, 1991 to 1993. The license was restricted to that period.
The subsequent license is for the period from 2006 to 2007. This meant
that there was a break in 1993 and business was started again in 2006-
2007. During the period 1993 to 2006, other businesses like selling of
readymade garments and foodstuff centre was going on at the suit
premises. The suit was instituted on 19.10.2006. On the basis of new
registration certificate issued on 30.11.2007, the defendants have come
out with a case that firm by name Chetna Book Centre was being carried
out since 2006. It was found that there was a gap of 13 months in between
the date of the suit and registration of the new firm. This establishes
non-use, it was found.
7. The
Appellate Court found that the businesses of book stall and
foodstuff are diametrically opposite to each other.  The former is carried
out during the day and later goes till late hours of night. As a result of
that it can safely be said that starting of food corner in all probabilities
could have resulted in causing nuisance and annoyance to the occupants
of the suit building, it was found. The evidence of PW1 was relied on to
find that he used to take a round of the premises and that he was affected
whenever he visited his mother, was found believable and nuisance was
found established.
8. Regarding subletting, it was found there was no plea of protected
license. The court found that subletting was duly established. Appeal
was allowed.
9. As stated earlier, the High Court has affirmed the findings of
the Appellate Court.
10. In regard to the contention that who was the tenant, it was
found that the rent receipt showed that tenant was the first defendant. It
A
B
C
D
E
F
G
H
467
showed that second defendant had taken the tenancy in the name of
first defendant for his benefit. Secondly, it was found that after attaining
majority, the first defendant has not rescinded the contract. Once it was
found that first defendant was tenant, it was for second defendant to
establish in what capacity he was in possession. It was found that second
defendant was not in possession prior to 01.02.1973, and therefore, could
not claim to be a protected sub-tenancy or protected tenancy.
11. Regarding ground of non-user, the High Court affirmed the
findings of the Appellate Court.
12. Regarding nuisance, the High Court relied on the evidence of
PW1. Noticing the limitations under Section 115 of Code of Civil
Procedure, the Revision was dismissed.
13. We have heard the counsel for the parties.
14. Learned counsel for the appellant would submit that none of
the grounds have been made out. First defendant was a minor in 1971.
On account of the belief and on the advice of an Astrologer the suit
premises were taken on rent in the name of first defendant who was
only five years of age. There could not be any tenancy in his favour.
Second defendant was managing the business. License was in his name.
There was neither illegal sub-tenancy nor nuisance. The case of non-
user is also sought to be rebutted. Learned counsel for the respondents
supported the Order. He also submitted quite clearly that the case of
non-user is clearly established at any rate and he
prayed for the rejection
of the appeal.
15. As regards the case of nuisance, Section 16(1)(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
NILESH LAXMICHAND v. SHANTABEN PURUSHOTTAM
KAKAD (SINCE DECEASED) BY LRS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
468
SUPREME COURT REPORTS
[2019] 7 S.C.R.
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 is subletting, it 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 that plaintiff’s son
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.
18. The remaining ground is a ground relating to non-user. Section
16(1)(n) of the Maharashtra Rent Control Act, 1999, reads as follows:
A
B
C
D
E
F
G
H
469
 “16(1)(n). that the premises have not been used without
reasonable cause for the purpose for which they were let for a
continuous period of six months immediately preceding the date
of the suit.”
19. The following elements must be established under Section
16(1)(n) - the premises must have been let out for a particular purpose;
there must be non-user by the tenant for the purpose; the non-user must
be without reasonable cause; the non-user must be for a continuous
period of six months immediately preceding the date of the suit.
20. 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.
21. The pleading of the plaintiff is, it was let out for the purpose of
business of book shop. It is further case of the plaintiffs that about in or
about 2005, the first appellant suddenly closed down the business in
book store, and since then, till the date of the suit, was not using the suit
premises for more than six months. It is also stated, in paragraph 5, that
the defendants have started the business of preparation and sale of
foodstuffs. As a result of tremendous pollution and smell and smoke, it
caused lot of nuisance. Complaints were made and this business was
closed. The business of readymade garments was also started and closed
down. This is in short, the pleading of
the plaintiff.
22. The defendants, on the other hand, set up the case that on
acquiring the premises for the business purpose, i.e., selling of books
and stationery, defendant no.2 ran the business for a number of years.
Instead of aforesaid business, defendant no.2 started doing business of
readymade garments and he did not succeed. Then he started fast food
business and the same also could not be continued because no license
was issued for running the same business. He instead started again the
business of selling books under the name and style “M/s. Chetna Book
Centre” and he continued to do the said business from the suit premises
till date.
23. 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
NILESH LAXMICHAND v. SHANTABEN PURUSHOTTAM
KAKAD (SINCE DECEASED) BY LRS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
470
SUPREME COURT REPORTS
[2019] 7 S.C.R.
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 the appellant’s that 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 as “Chetna Book Corner” in the year 2006 onwards (see
Ground ‘F’ in 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
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
A
B
C
D
E
F
G
H
471
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 9th 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 Bombay 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
NILESH LAXMICHAND v. SHANTABEN PURUSHOTTAM
KAKAD (SINCE DECEASED) BY LRS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
472
SUPREME COURT REPORTS
[2019] 7 S.C.R.
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. Consequently, it
fails and it is dismissed.
31. We would think that in the circumstances of the case, having
regard to the fact that two courts have found the ground of non-user
under Section 16(1)(n) of the Maharashtra Rent Control Act, 1999
established and the facts as noted by us, particularly in an appeal after
Special Leave, we do not deem it fit to interfere with the judgment of the
High Court. The appeal shall stand dismissed.
Ankit Gyan
Appeal dismissed.