Supreme Court Judgments on Bombay Rents Act, 1947

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Judgments of Hon'ble
Supreme Court on Bombay
Rents, Hotel and Lodging
House Rates Control Act, 1947.
Compiled by H. S. Mulia.
Supreme Court Judgments on Bombay Rents, Hotel and Lodging House Rates Control Act, 1947

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1. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), S.1
Cantonments (Extension of Rent Control Laws) Amendment Act (22 of 1972),
S.3 and Civil P.C. (5 of 1908), S.11 Matter heard and finally decided Question
of law relating to jurisdiction of Court (in this case, relating to applicability of
Bombay Rent Law to Kirkee Cantonment) Erroneous decision Decision does
not operate as res judicate.
1.1. Where the executing Court had refused to exercise jurisdiction and to
execute the decree on the ground that the decree was a nullity as the Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947, had no application
to buildings in Cantonment areas, that defect having been removed and all
decrees obtained on the basis that the Bombay rent law applied to the Kirkee
Cantonment area having been validated by Act 22 of 1972, it cannot be said
that the earlier decision holding that the decree was a nullity operated as res
judicata. Jai Singh Jairam Tyagi v/s Maman Chand Ratilal Agarwal,
reported in AIR 1980 SC 1201.
2. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), S.4 and
S.28 Transfer of Property Act (4 of 1882) , S.105 , S.108 Houses and Rents
Premises belonging to Government or a local authority Act does not apply even
as between lessee of such premises and his subtenant "Belonging to" Meaning
of.
2.1. The first part of S.4(1) Provides that the Act shall not apply to any
premises belonging to Government or a Local authority. The Legislature did
not by the first part intend to exempt the relationship of landlord and tenant
but intended to confer on the premises itself an immunity from the operation
of the Act.
2.2. It is not correct to say that the immunity given by the first part should be
held to be available only to the Government or a local authority to which the

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premises belong. If that were the intention, then the Legislature would have
used phraseology similar to what it did in the second part, namely, it would
have expressly made the Act inapplicable "as against the Government or a
local authority". This it did not do and the only inference that can be drawn
from this circumstance is that this departure was made deliberately with a
view to exempt the premises itself. Therefore, the first part of the section
should be so construed as to exempt the premises from the operation of the
Act, not only as between the Government or a local authority on the one hand
and its lessee on the other, but also as between that lessee and his subtenant.
2.3. A plot of land belonging to the Board of Trustees for the improvement of
City of Bombay was put to auction on certain terms and conditions for the
purpose of granting a building lease. One S who was the highest bidder
signed the memorandum of agreement incorporating the conditions upon
which the auction was held. By cl. 7 of these conditions, S agreed, within the
time specified therein to build and complete at his own cost of not less than
Rs. 50,000 a building of particular specification. Clause 18 of the conditions
provided that immediately after the completion of the building within the
time specified the Trustees shall grant to S or his nominee a lease of the said
plot with buildings thereon for the term of 999 years from the date of the
auction at an yearly rent calculated in accordance with the accepted bidding
for the plot. The Trustees, pursuant to the said agreement and in
consideration of the monies which had been expended in the erection of the
buildings and of the rent and the covenants thereinafter reserved and
contained, (see para 3 of the judgment) demised unto the lessee all that piece
of land together with the buildings erected thereon to hold the same for 999
years. In 1948 the successorininterest of S brought a suit in the City Civil
Court for ejectment against the defendant who was a subtenant of one of the

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blocks in the demised premises, alter giving a notice to quit. The subtenant
claimed protection under Bombay Act 57 of 1947 and that under S. 28 of that
Act the Court had no jurisdiction to entertain the suit:
2.4. Held in the facts and circumstances, the demised premises including the
building belonged to the Board which was a local authority and therefore
were outside the operation at the Act in view of S. 4 (1). The fact that the
lessee incurred expenses in putting up the building was precisely the
consideration for the lessor granting him a lease for 999 years not only of the
building but of the land as well at what may be a cheap rent which the lessor
may not have otherwise agreed to do. By the agreement the building became
part of the land and the property of the lessor and the lessee took a lease on
that footing. The lessee or a person claiming title through him could not now
be heard to say that the building did not belong to the lessor. Forfeiture does
not, for the first time, give title to the lessor. On forfeiture he has all along
been his own property. The interest of the lessor in the demised premises
could not possibly be described as a contingent interest which would become
vested on the expiry or sooner determination of the lease. The City Civil Court
had, therefore, jurisdiction to entertain the suit. Messrs. Bhatia. Cooperative
Housing Society Limited v/s D. C. Patel, reported in AIR 1953 SC 16 (Four
Judges).
3. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), S.4(1)
and S.(4)(a) lease tenancy Exemption from operation of Act Premises
belonging to Govt. or Local Authority Premises belonging to Port Trust taken on
lease Lessee letting out premises to subtenants Case does not fall under
S.4(4)(a) Protection under Act is not available to sublessees.
3.1. S.4(1) makes it clear that the provisions of the Bombay Rent Act are not
applicable to premises belonging to the Govt. or a local authority. Subsec. (4)

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(a) of S.4 which was added in 1953 only takes out from the scope of the
exemption conferred by S.4(1) "a building erected on any land held by any
person from the Government or a local authority under an agreement, lease,
licence or other grant, although having regard to the provisions of such
agreement, lease, licence or grant the building so erected may belong or
continue to belong to the Government or the local authority, as the case may
be". In fact, a plain reading of the provisions of subsec.(4)(a) in the context
clearly shows that there is no intention therein to take out a building put up
by the Government or a local authority from the scope of the exemption
conferred by subsec.(1) of S.4. In fact, the language of subsec.(4)(a) and
subsec.(1) of S.4 of the Bombay Rent Act read together suggests that it was
only in respect of a building put up by the lessee on the Government land or
land belonging to a local authority under a building agreement that the sub
lessees were taken out of the exemption contained in subsec.(1) of S.4 and
allowed the benefit of the provisions of the Bombay Rent Act. It is significant
that the exemption granted under the earlier part of subsec. (1) of S.4 is in
respect of the premises and not in respect of the relationship. In order to
confer the protection of the provisions of the Bombay Rent Act to the sub
lessees occupying the premises in any building erected on Government land
or on land belonging to a local authority irrespective of the question who has
put up the building as against the lessees of the land but without affecting the
immunity conferred to the Government or local authorities as contemplated
by subsec.(1) of S.4 of the Bombay Rent Act, the Court would have
practically rewritten the provisions of S.4 and it is not open to the Court to do
that. It is for the legislature to do that. Nagji Vallabhji and Com. v/s Meghji
Vijpar Meghji Vijpar, reported in AIR 1988 SC 1313, para Nos. 9 & 13.
4. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), (as

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amended by Bombay Act 4 of 1953) S.4(1) and S.4(4)(a) houses and rents
amendment lease Houses and Rents Scope and applicability Effect of
amendment Suit for vacant possession of site granted by Port Trust Authorities
with buildings on it Suit is governed by S. 4 subsec. (1) and not subsec. (4)
(a) Suit filed in City Civil Court is competent Lessee unable to evict sub
tenants and deliver vacant possession in view of prohibitions contained in the Act
Not Sufficient to defeat right of Port Trust Authorities.
4.1. The amendment of S. 4 by the addition of subsec. (4) (a) by Bombay Act
4 of 1953, was enacted to cut down by a definition the operation of the words
"any premises belonging to the Government or a local authority by excluding
only buildings which were occupied by sub tenants even though the buildings
belonged to the Government or continued to belong to it. Clause (b) of sub
sec. (4) excluded also S. 15, which prohibited subletting by a tenant. That,
however, was limited to the case of buildings only, and did not apply to the
case of land. In this situation, any action by the Government or the local
authority in respect of land falls to be governed by subsec. (1) and not sub
sec. (4) (a), and subsec. (1) puts the case in relation to land entirely out of
the Rent Control Act. The net result, therefore, is that if Government or a
local authority wants to evict a person from the land, the provisions of the
Rent Control Act do not come in the way. For the same reason, the suit for
ejectment does not have to be filed in the court of Small Causes, as required
by the Rent Control Act but in the City Civil Court.
4.2. Where under a lease of land with buildings on it, granted by the Bombay
Port Trust Authorities, the lessee is entitled to remove the buildings on the site
within one month after eviction, the circumstance that the lease cannot evict
his subtenants on account of the protection granted to them under the Rent
Control Act, so as to remove the building in exercise of the right conferred on

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him, is unfortunate but does not service to entitle him to defeat the rights of
the Port Trust Authorities. They are only claiming vacant possession of the
site, and under the agreement, if the lessee does not remove the buildings
within one month, then they would be entitled to take possession of the land
with the buildings, whatever might be the rights of the sub tenants.   Kanji
Manji v/s The Trustees of the Port of Bombay, reported in AIR 1963 SC 486
(FB).
5. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), S.5,
S.6, S.11 words and phrases   houses and rents Houses and Rents Premises
Meaning of Material date for ascertaining whether plot is premises is date of
letting and not date of application for fixation of standard rent.
5.1. Before the tenant could maintain an application for fixation of standard
rent under S. 11 she had to establish that the plot of land leased was premises
within the meaning of S. 5 (8) and that it was let for residence, education,
business, trade or storage. Reading S. 5 (8) with S. 6 (1), it is manifest that
Part II of the Act can apply in areas specified in Sch II to lands (not being used
for agricultural purpose) let for residence, education, business, trade or
storage. The material date for ascertaining whether the plot is 'premises' for
purposes of S. 6 is the date of letting and not the date on which the
application for fixation of standard rent is made by the tenant or the landlord.
Where the plot was assessed for agricultural purposes on the date of the lease
it could not be regarded as premises inviting the application of Part II.   Mst.
Subhadra v/s Narsaji Chenaji Marwadi, reported in AIR 1966 SC 806 (Four
Judges).
6. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), S.5,
S.7, S.11 Standard rent Provisions pegging it down to rent paid on 191940
or first rent paid for premises let out after 191940, is said to be reasonable?

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Held. No.
6.1. In so far as social legislation, like the Rent Control Act is concerned, the
law must strike a balance between rival interests and it should try to be just to
all. The law ought not to be unjust to one and give a disproportionate benefit
or protection to another section of the society. When there is shortage of
accommodation it is desirable, may necessary that some protection should be
given to the tenants in order to ensure that they are not exploited. At the
same time such a law has to be revised periodically so as to ensure that a
disproportionately larger benefit than the one which was intended is not
given to the tenants.   Malpe Vishwanath Acharya v/s State of Maharashtra,
reported in AIR 1998 SC 602 (FB), para 28.
7. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), S.5(3),
S.13(1), Eviction Expression 'Landlord' Includes usufructuary mortgagee of
tenanted premises  and, therefore, he can evict tenant on ground of nuisance.
Narpatchand A. Bhandari v/s Shantilal Moolshankar Jani, reported in AIR 1993
SC 1712.
7.1. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947),
S.13(1)(c) Eviction Ground Nuisance or annoyance by tenant Tenant of
a unit (flat) in multitenanted premises and putting up textile printing mill on
common terrace and running it at night and using water from common
overhead tank. Also Removed aerials, antenna of other tenants. Whether such
act of tenant constitute acts of nuisance or annoyance. Held. Yes.
Narpatchand A. Bhandari v/s Shantilal Moolshankar Jani, reported in AIR
1993 SC 1712.
8. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947)
Sections 5(4a) and 15A Under an agreement of lease and licence D allowed W
to occupy the shop premises in question. The agreement provided that "it shall

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remain in force for 11 months and will automatically come to an end on 313
1966 on which day W shall remove himself from the premises of his own
accord." By efflux of time the licence stood revoked on 1466 but W did not
vacate and remove himself from the premises as per the term of the agreement.
In spite of being asked by D to do so W did not pay any heed. Hence D took
recourse to Section 41. Defence of W that he was a tenant under the Bombay
Rent Act (1947) was rejected. During pendency of the proceedings Sections 5
(4a) and 15A were introduced in the Bombay Rent Act by an amendment in
1973. W claimed the protection conferred on the licensee under Section 15A.
Held that W was not entitled to the protection conferred on a licensee by Section
15A of the Bombay Rent Act. D was entitled to an order for possession under
Section 43.
8.1. In order to get the advantage of Section 15A of the Bombay Rent Act, the
occupant must be in occupation of the premises as a licensee as defined in
Section 5(4A) on the 1st of February, 1973. If he be such a licensee, the non
obstante clause of Section 15A (1) gives him the status and protection of a
tenant in spite of there being anything to the contrary in any other law or in
any contract. In other words, even as against the express terms of the
subsisting contract of licence the licensee would enjoy the benefits of Section
15A. But if he is not a licensee under a subsisting agreement on the 1st of
February 1973, then he does not get the advantage of the amended provision
of the Bombay Rent Act. A person continuing in possession of the premises
after termination, withdrawal or revocation of the licence continues to occupy
it as a trespasser or as a person who has no semblance of any right to
continue in occupation of the premises. Such a person by no stretch of
imagination can be called a licensee. If, therefore, W was not a licensee under
a subsisting agreement in occupation of the premises on the 1st of February

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1973 he could not take shelter under Section 15A.
8.2. It is wholly wrong to say that if a licensor filed an application under
Section 41 of the S.C.C. Act instead of filing a regular civil suit he by
implication treated the occupant of the premises against whom the S.C.C.
application was filed as a subsisting licensee.
8.3. There was nothing to show in the records of this case that D had ever
accepted any money either in or outside court from W after 31st of March,
1966 by way of any rent of the licenced premises. A person continuing in
occupation of such premises after revocation of the licence is still liable to pay
compensation or damages for their use and occupation. If at any time such
compensation had been paid or accepted it could not undo the effect of the
revocation of the licence. D. H. Maniar v/s Waman Laxman Kudav, reported
in AIR 1976 SC 2340 (FB).
9. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947),
S.5(4A) , S.5(6A) Paying guest or licensee Licensee becomes paying guest if
licensor resides in same premises and for that licensor need not reside in same
room in which licensee resides. Moreover residence of licensor in remaining part
of premises need not be physical residence. Dejure control over remaining
premises would be sufficient.
9.1. All that is required to make a licensee answer the description of a paying
guest is that the licensor also resides in the premises of which a part is in the
possession of the paying guest and it is not required that the licensor should
physically reside in the same room as the paying guest. The words in which
the licensor resides qualify the words 'premises' which immediately precede
the said words and are not intended to qualify 'part of the premises'. It is also
not necessary that the licensor must be using the remaining part of the
premises for actual residence. The position of a 'paying guest' is similar to the

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position of a 'lodger' in England. If the part is in the use of the 'lodger' and the
owner retains the control of the whole house, that is sufficient. Surendra
Kumar Jain v/s Royce Pereira, reported in AIR 1998 SC 394, para Nos.14 to
16.
S.5(7), S.7, S.10AA.
10.1. Amount of educational cess is recoverable by the landlord from the tenant
under S. 10AA of the Rent Act.. Section 7 of the Rent Act does not prohibit
the recovery of the increase to which landlord may be entitled under the
provisions of the Act in addition to the standard rent. Sections 5(7), 9, 10 and
10AA of the Rent Act indicate that permitted increase becomes part of the
rent. The building can well be said to be reasonably expected to be let at the
figure arrived at by adding the permitted increase to the standard rent. The
valuation has therefore, to be arrived at after taking into account the amount
of educational cess levied by the Corporation. Even if it leads to some kind of
inconvenience of variation in valuation at frequent intervals that can be no
consideration for not giving full effect and meaning to the provisions of the
Act of 1888 and the Rent Act. Bombay Municipal Corporation , Appellant v.
The Life Insurance Corporation of India, Bombay, reported in AIR 1970 SC
1584 (FB).
S.5(8) 'Premises' Lease of land having no building thereon, for making
construction for installing machines. Building constructed on that land and
machinery also installed. Whether same can be termed as 'premises' under Rent
Act? Held. Yes.
11.1. So far the facts of the present case are concerned, the lease had been
granted to the Binny Company for installing ginning and processing machines

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and admittedly a building was constructed in which ginning and processing
machines were installed and godown was also constructed. Once a piece of
land which was agricultural in nature is put to nonagricultural use, it shall be
covered by the definition of 'premises' under Section 5(8) of the Bombay Rent
Act. Nalanikant Ramadas, Gujjar v/s Tulasibai, reported in AIR 1997 SC 404
(Five Judges).
S.5(10) , S.12 and S.12(3)(a) houses and rents Fixation of standard rent
Application for fixation of rent dismissed for nonprosecution – Effect of.
12.1. Where a tenant does not prosecute an application for fixation of standard
rent and deliberately permits it to be dismissed for nonprosecution it could
be reasonably inferred that it was not a bona fide application at all. Where in
a case. it was admitted that the agreed rent was Rs. 30/ p. m.,. that would be
the "standard rent" as defined by Section 5 (10) of the Act. That was the rate
at which rent was payable. Nonprosecution of the application for standard
rent indicated that there was no real dispute regarding the standard rent or
permitted increases. In such a case, if the provisions of Section 12 (3) (a) are
not shown to be complied with, the Court is bound to pass a decree for
eviction.
12.2. The statutory protection can only be given in accordance with the terms on
which it is permissible. The Act certainly does not confer a power upon the
Court to excuse a violation of the provisions of the Act by making wrong
assumptions or on compassionate grounds. The Court could not, therefore,
exercise what would be, in effect, a power to condone infringement of the
provisions of the Act.
12.3. A fixation of standard rent can only take place by means of the specified
procedure provided for it. In the case in question the High Court seems to

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have accepted the erroneous view that standard rent was actually fixed by the
appellate Court for the first time whereas what had happened was that the
application for fixation of standard rent had been dismissed for non
prosecution. This was not "fixation" of standard rent. Hence, no question of
giving time to pay up arrears after a "fixation" of standard rent arose in the
case C.R. Appl. No. 67 of 1973, D/ 1991975 (Guj), Reversed. Mistry
Premjibhai Vithaldas v/s Ganeshbhai Keshavji, reported in AIR 1977 SC 1707
(FB). Para Nos.10, 11 &13.
S.5(10), S.7 Whether standard rent can be altered and refixed if there is any
structural alteration or change in the amenities? Held No.
13.1. Section 11(a) is intended to enable the Court, upon an application in any
suit or proceeding, to modify the standard rent as a result of structural
alteration or change in the amenities involving further capital investment of
the owner. However, demolition of a building is not one such contingency
contemplated by S. 11(a) of the Act. Municipal Corporation of Greater
Mumbai v/s Kamla Mills Ltd. Reported in AIR 2003 SC 2998, para No.36.
S.5(11)(b) lease Lease of certain watan land by father of A to R for storing
timber Death of father of A R continued to be tenants within S. 5 (11)
Determination of lease consequent on death of father of A, not material.
14.1. Section 5 (11) (b) is clear that any person remaining, after the
determination of the lease, in possession, with or without the assent of the
landlord is also a tenant for the purposes of the Act. The learned counsel
argued that the determination of the lease contemplated by Section 5 (11) (b)
was determination by an act of the landlord and not determination by the
operation of the law. We do not see any justification for so confining the

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meaning to be given to the expression 'the determination of the lease' in
Section 5 (11) of the Act. Tavangowda Tamangowda Patil v/s Yellappa
Krishna Muchandni, reported in AIR 1980 SC 590.
S.5(11) (c) Whether the status of a member in the case of tenant copartnership
housing society is that of a tenant within the meaning of S. 5(11) of the Rent Act
1947? Held No.
15.1. As there is no relationship of landlord and tenant between the Society and
the member. M/s. Anita Enterprises v/s Belfer Coop. Housing Society Ltd,
reported AIR 2008 SC 746, para Nos.27 & 28.
S.5(11) (c) & 28 Tenant of copartnership housing society inducting third person
in his allotted accommodation. Whether such transfer establishes relationship of
landlord and tenant, between member and third person? Held No.
16.1. Further held that The question regarding legality or otherwise of the
creation of tenancy right by the member of tenant copartnership society
which amounts to transfer of interest of a member in the property of the
Society, can be decided by raising a dispute before the Cooperative Court.
M/s. Anita Enterprises v/s Belfer Coop. Housing Society Ltd, reported AIR
2008 SC 746, para Nos.33, 35 & 36.
S.5(11)(c)(ii) and S.15 Tenant of nonresidential premises continuing in
occupation after contractual period is over He cannot bequeath his right of
occupation by will in favour of person who was not member of his family
carrying on business at time of his death.
17.1. A person occupying a nonresidential premises as a tenant after the
contractual period is over cannot bequeath his right to occupy the property as

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a tenant under a Will in favour of a legatee who is not a member of his family
carrying on business, trade or storage with him in the said premises at the
time of his death under S. 5(11)(c)(ii) of the Act. There is no justification to
saddle the landlord with the liability to treat a stranger who is not referred to
in subclause (ii) of S. 5(11)(c) of the Act as a tenant on the basis of a
bequest made under a Will by the tenant.
17.2. It is significant that both subclauses (i) and(ii) of Cl.(c) of subsec.(11) of
S. 5 of the Act which deal with the devolution of the right to tenancy on the
death of a tenant in respect of residential premises and premises let for
business, trade or storage respectively do not provide that the said right of
tenancy can devolve by means of testamentary disposition on a legatee who is
not referred to in the respective subclauses. It has, therefore, to be
understood that even the extended meaning given to the expression 'tenant'
by subsec. (11) of S. 5 of the Act does not authorise the disposition of the
right to the tenancy of the premises governed by the Act under a Will.
Ordinarily it is only an interest that can be inherited that can be bequeathed.
But the heritability of a tenancy after the determination of the lease, which is
protected by the Act is restricted in the case of residential premises only to the
members of the tenant's family mentioned in subclause(i) of Cl.(c) of S.
5(11) of the Act and in the case of premises let for business, trade or usage to
members belonging to the family of the tenant carrying on business, trade or
storage with the tenant in the premises at the time of the death of the tenant
as may continue after his death to carry on the business, trade or storage as
the case may be in the said premises and as may be decided in default of the
agreement by the Court as provided in subcl.(ii) thereof. When the statute
has imposed such a restriction, it is not possible to say that the tenant can
bequeath the right to such tenancy in the case of premises let for business,

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trade or storage in favour of a person not possessing the qualification referred
to in S. 5(11)(c)(ii) of the Act. It can also be seen that the words 'to assign or
transfer in any other manner his interest therein ' in S. 15(1) of the Act had
the effect of prohibiting the disposition of the tenancy right by a will in the
absence of a contract to the contrary.
17.3. Further, when the Legislature has restricted the right to the tenancy of the
premises let out for business, trade or storage to any member of a tenant's
family carrying on business, trade or storage with the tenant at the time of his
death it is not open to the Court by judicial construction to extend the said
right to persons who are not members of the tenant's family who claim under
testamentary succession.
17.4. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947),
S.5(11) Statutory tenancy Whether statutory tenancy which is personal to
the tenant cannot be bequeathed at all under a Will in favour of anybody.
Question left open. Bhavarlal Labhchand Shah v/s Kanaiyalal Nathalal
Intawala, reported in AIR 1986 SC 600.
S.5(11)(c) "Tenant" Provision applies only to residential premises and not to
business premises Tenant of business premises Member of his family cannot
get protection under section. Ganpat Ladha v/s Sashikant Vishnu Shinde,
reported in AIR 1978 Sc 955 (FB)
18.1. This ratio is overruled by Smt. Gian Devi Anand , Appellant v. Jeevan
Kumar, reported in Smt. Gian Devi Anand v/s Jeevan Kumar, reported in AIR
1985 SC 796 (Five Judges), wherein it is held that Statutory tenancy in
respect of commercial premises is heritable and heirs of statutory tenant are
entitled to same protection against eviction as afforded to tenant under Act.

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S.5(11) (c), S.15(2) tenancy Validation of subtenancies by S.15(2) Scope
Subtenancy created by subtenant Benefit of S. 15(2) if available.
19.1. Section 15(2) which raises the ban from all subletting effected before 21
51959 provided the provisions of that subsection are fulfilled relates to sub
tenancies not permitted by contract between the landlord and tenant and
which would, but for the said subs. (2), fall within the prohibition enacted in
the amended subsection (1) of S. 15.
19.2. Upon the amendment of subs. (1) of S. 15 by the Ordinance and by its
related Act, the prohibition against subletting did not operate in those cases
where the subletting was permitted by contract between the landlord and
tenant. In all such cases, if the landlord had permitted the tenant under a
contract between them to sublet the premises, no question would arise of a
need to validate those subtenancies. It is in this light that the scope of subs.
(2) of S. 15 has to be determined. The removal by subs. (2) of S. 15 of the
prohibition is limited only to those subtenancies which were created before
May 21, 1959. Such a limitation would be inappropriate to subtenancies
permitted by contract which could be created regardless of whether they were
brought into existence before May 21, 1959 or after that date. Also, the sub
tenancies covered by subs(2) of S. 15 would be regarded as valid only if the
subtenant had entered into possession before May 21, 1959 and was
continued in possession on that date. Such a requirement would be wholly
inconsistent in the case of subtenancies permitted by contract. Inasmuch as
subs. (2) of S. 15 specifically attaches the condition that the subtenant
should have been in possession before the commencement of the Ordinance
and should have continued in possession on that date, it is apparent that such
a provision could be related only to illegal subtenants, that is to say sub
tenants who were let in and given possession without any contractual right

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conferred by the landlord on the tenant to do so.
19.3. When the partnership firm G, the tenant of the entire building, had sublet
a portion of a shop on the ground floor to M, who sublet it further to one T
in the year 1952 and it was admitted by the firm 'G' that 'M' was a lawful sub
tenant then in view of S. 5(15)(a), in respect of the further subtenancy M
could be described as tenant and 'T' as his subtenant. And if that is so, there
could be no reason why T's subtenancy should not be regarded as a valid
subtenancy inasmuch as it was created before May 21, 1959 and he had
entered into possession of the premises before that date and was continuing
in possession on that date. Tota Singh v/s M/s. Gold Field Leather Works,
Bombay, reported in AIR 1985 SC 507 (FB).
S.5(11) (c), S.13(1)(1) Sons of tenant building a house, whether tenant can be
evicted on ground that she had acquired alternative accommodation? Held.
No.
20.1. On sons of tenant, who is their mother, building a house the landlord
cannot seek eviction of tenant on grounds having acquired alternate
accommodation. From the scheme of the provision it is discernible that it is
only when the tenant gets a right to reside in a house other than the demised
premises on the happening of any one of the three alternatives mentioned
therein, namely, either by building or by acquiring vacant possession of or by
allotment of a house, that the landlord can seek recovery of possession of the
demised premises from the tenant. That apart, even if the tenant first
respondent and her sons, respondents 2 and 3, were let into possession of the
suit premises about 30 years before the institution of the suit but the first
respondent alone was the tenant and respondents 2 and 3 were there as
members of her family, they were, therefore, not tenants of the suit premises.

19
The definition of 'tenant' is too exhaustive to include any member of the
family residing with him. Such members of his family who were residing with
the tenant at the time of his death, or in their absence any heir of the
deceased tenant, as may be decided in default of agreement by the Court,
would become tenant only on his death. The concurrent findings of the Courts
below are that son, respondents 2 and 3 built the house for which the first
respondent tenant did not contribute any money; she did not shift her
residence to the said house though she was visiting that house off and on.
Inasmuch as the first respondent tenant did not built any house and
respondents 2 and 3 are not the tenants, the first of the three alternatives,
referred to in S. 13(1) is not available to the landlord to seek eviction of the
first respondent tenant. Anandi D. Jadhav v/s Nirmala Ramchandra Kore,
AIR 2000 SC 1386, para Nos.5 & 8.
S.5(11)(c) Original tenant having two sons. On death of original tenant rent
bills were issued in name of his elder son and on death of elder son rent bills
were issued in name of his widow. No division of premises and rent was not
being paid separately by younger son. Members of family of original tenant
succeeded to tenancy together. Suit filed for eviction. Widow of elder son
impleaded as tenant represented all tenants. Whether the decree passed in suit
for eviction is binding on all members of family covered by tenancy? Held. Yes.
21.1. Younger son claiming to be member of family residing with original tenant
at time of his death cannot resist execution of decree. Moreso, when younger
son was not residing in premises with family of elder son. Therefore, there
was no necessity to implead appellant younger son as necessary party to suit
for eviction. Ashok Chintaman Juker v/s Kishore Pandurang Mantri,
reported in AIR 2001 SC2251.

20
S.5(18)(b), S.11(1)(c) houses and rents Fixation of standard rent Principle
of apportionment Applicability Apportionment What is How it has to be
applied.
22.1. The principle of apportionment is not alien to the spirit and scheme of the
Act. It is applicable to the fixation of standard rent.
22.2. Apportionment or equal distribution of the burden of rent on every
portion is a rule of justice and good sense. If the standard rent of a whole
was a specific amount, it stands to reason that the standard rent of a part or
subdivision of that whole should not ordinarily exceed that amount.
Therefore, if the court feels that for securing the ends of justice and giving
effect to the provisions and policy of the Act, it is reasonably necessary and
feasible to work out the standard rent by apportionment, it can legitimately
do so. This principle, however, is applicable where on the basic date, that
portion of which the standard rent is to be determined, had not been let
separately as one unit, but the whole, of which it is a part, had been let on
that date. Apportionment postulates that on account of its having been let on
the basic date, the whole had acquired a standard rent which has to be
allocated to smaller units subsequently carved out of it.
22.3. True, that unlike the English Rent Control Act of 1920 or the later English
Acts, the (Bombay) Act does not expressly speak of apportionment. But the
language of its relevant provisions is elastic enough to permit the fixation of
standard rent on apportionment basis. Section 11(1) gives a discretion to the
Court to fix such amount as standard rent as it "deems just", though in
exercising this discretion the Court has to pay due regard to (i) the provisions
of the Act and (ii) the circumstances of the case, and it is not to be rigidly and
indiscriminately applied.

21
22.4. Thus, if after the material date, the landlord had made investments and
improvements in the premises, it will be just and reasonable to take that
factor also into account and to give him a fair return on such investments.
Further, the Court must consider other relevant circumstances, such as "size,
accessibility, aspect, and other physical advantages" enjoyed by the tenant of
the premises. Where after the basic date, the premises completely change
their identity, apportionment as a method of determining just standard rent,
loses its efficacy and may be abandoned altogether.   Raja Bahadur Motilal
Bombay Mills Ltd. v/s M/s. Govind Ram Brothers (P) Ltd., reported in AIR
1974 SC 1708.
S.6 houses and rents Houses and Rents Premises let for residence or business
Open land let for constructing building on it intended to be used for residence
or business is letting for residence or for business.
23.1. Open land as it is, can be used for residence and can be 'premises let for
residence' within the meaning of S. 6.
23.2. When open land is being leased not to be used for residence or business in
its condition of open land but to be used for the purpose of residence or
business after constructing buildings thereon, the letting of the open land can
still be called to be letting for residence or business.   Mrs. Dossibai N. B.
Jeejeebhoy v/s Khemchand Gorumal, reported in AIR 1966 SC 1939 (FB).
S.6 houses and rents Houses and Rents Suit for possession of land used for
agricultural purposes Court exercising power under Act has no jurisdiction to
entertain suit Crucial date for determining whether land is used for agricultural
purposes is date on which right conferred by Act is sought to be exercised.
24.1. The expression ''premises" in S. 5(8) of the Bombay Rents, Hotel and

22
Lodging House Rates (Control) Act 57 of 1947 does not include premises used
for agricultural purposes. By S. 6 of that Act the provisions of Part II which
relate to conditions in which orders in ejectment may be made against tenants
and other related matters apply to premises let for education, business, trade
or storage. It is plain that the Court exercising power under Bombay Rents,
Hotel and Lodging House Rates (Control) Act, 1947, has no jurisdiction to
entertain a suit for possession of land used for agricultural purposes. Again in
ascertaining whether the land demised is used for agricultural purposes, the
crucial date is the date on which the right conferred by the Act is sought to be
exercised. Ratio laid down in the case of Mst. Subhandra v. Narsaji Chenaji
Marwadi, reported in AIR 1966 SC 806 is followed. Vasudev Dhanjibhai
Modi v/s Rajabhai Abdul Rehman, reported in AIR 1970 SC 1475 (FB).
S.6(1) houses and rents Houses and Rents Construction Lease of open land
in suburban area of Bombay for constructing "buildings of every description
howsoever" Lease is not for any of the purposes set out in S. 6 (1).
25.1. Where a lease of open land situated in the Bombay Suburban District was
made for constructing "buildings of every description howsoever" from time to
time, the purpose for which the land was demised clearly was for constructing
buildings of any description and not for constructing buildings for residence,
education, business, trade or storage. The land thus demised, though
'premises' within the meaning of S. 5 (8), was not 'premises' within the
meaning of S. 6 (1), and therefore, S. 18 (1) did not apply, ratio laid down in
case of Mrs. Dossibai N. B Jeejeebhoy v/s Khemchand Gorumal, reported in
AIR 1966 SC 1939, Disting.
25.2. Properly construed, S. 6(1) must mean that in order that Part II may apply
the premises in question must be let out for the purposes of residence etc. The

23
application of that part cannot have been intended to depend upon what a
lessee may do or may not do.
25.3. The fact that the lease permitted the lessees to take construction loans
from prospective tenants of the buildings to be constructed by the lessees does
not affect the purpose for which the land was leased. Osman Fakir
Mohammed Divecha , Appellant v. Ali Akbar Javed Sadakya, reported in AIR
1970 SC 1893 (FB).
S.6 Premises, let for education Protection from eviction by educational
institutions Premises let out on rent to club Club activities not showing the
premises were let for education Benefit of Act cannot be claimed by club.
26.1. Where the premises were let out on rent to a club and the activities of the
Club were more in the nature of cultural activities or recreational activities,
inasmuch as they related fraternising among the members by playing indoor
or outdoor games or otherwise, such activities cannot lead the conclusion that
the premises were let for purposes of education and consequently the club
was not entitled to the protection of the Act. Haji Ismail Valid Mohmad  v/s
Sports Club in the name of Union Sports Club, reported in AIR 1992 SC 1855
(FB).
S.11 Default in payment of rent Composite tenancy Under contract, property
tax along with monthly rent is required to be paid by tenant. Whether default in
payment of rent at end of every succeeding month does not convert monthly
tenancy into yearly one. Held. No.   Ansuyaben Kantilal Bhatt v/s Rashiklal
Manilal Shah, reported in AIR 1997 SC 2510.
S.11(1)(e) Standard rent Application for fixation of Subsistence of pre

24
existing dispute is sine qua non for making application. Held. No.
28.1. There is no need for a preexisting dispute to subsist before invoking the
jurisdiction of the Court under Section 11(1)(e) of the Act. Filing an
application for determination of the standard rent itself is a dispute entitling
the tenant to take the benefit of Section 12(3)(a). The dispute may arise in
diverse forms. Devkaran Nenshi Tanna v/s Manharlal Nenshi, reported in AIR
1994 SC 2747, para No.6.
28.2. Further held in para No.8 that : Where the order fixing standard rent was
passed on basis of compromise reached between the parties and it was clear
from the order that the Court did not apply its mind to the factum whether
the terms agreed by the parties are just and reasonable and whether it would
be the standard rent consistent with the provision of the Act, the tenant
would not be precluded from making an application for fixation of standard
rent again when the notice was issued by the landlord demanding payment of
the arrears of the standard rent. The Act is a welfare legislation and parties
cannot contract out of the statute and the seal of approval of the Court does
not super add its sanctity, nor receive its legality or validity or sanctity
without due adjudication. The order should disclose the application of Court's
mind to the facts and then to the determination of the standard rent on the
basis of the terms, other evidence or records and the consent of the parties is
consistent with the Act and should record its satisfaction.
S.11(4) Sick Industrial Companies (Special Provisions) Act (1 of 1986), S.22
Eviction petition for nonpayment of rent. Whether same is maintainable against
sick company? Held. Yes.
29.1. Order under S. 11(4) of Rent Act can also be passed and S. 22 of 1985
Act does not prevent such proceedings. Gujarat Steel Tube Co. Ltd. ,

25
Petitioner v. Virchandbhai B. Shah, reported in AIR 1999 SC 3839, para Nos. 9
to 11.
S.11(4) houses and rents Order to deposit arrears of rent Order directing
that in default of deposit defences were to be struck off – Validity.
30.1. On an application under S. 11 (4) by the landlordplaintiff, a notice was
issued to the defendants and an order was made requiring the defendants to
deposit arrears of rent within a stipulated period and to continue to deposit
monthly rent. It was further ordered that in default of the deposit the
defences of the defendants were to be struck off and the suit should be placed
for ex parte orders on the date fixed.
30.2. Held, the learned Judge of the High Court was wholly in error in holding
that because of the form of the order (inasmuch as it used the words
"defences to be struck off"). it was illegal and without jurisdiction. Moreover,
the order itself did not order the defences to be struck off, it only fixed the
date for striking out the defences. So, till the expiry of the period given by
that order for the deposit of money, the question of striking out the defence
did not arise nor was it in fact struck out. Further, it is Sec. 11(4) and not
Section 12(3) (b) that would apply.
30.3. The phrase "defence struck off" or "defence struck out" is not unknown in
the sphere of law. Indeed it finds a place in Order 11 , Rule 21, C. P. C. The
phrase is more advantageous to the defendant, Even when a defence is struck
off the defendant is entitled to appear, cross examine the plaintiff's witnesses
and submit that even on the basis of the evidence on behalf of the plaintiff a
decree cannot be passed against him, whereas if it is ordered in accordance
with Section 11 (4) trial he shall not be entitled to appear in or defend the
suit except with the leave of the Court he is placed at a greater disadvantage.

26
The use of the phrase does not in any way affect the substance of the order.
What the law contemplates is not adoption or use of a formula; it looks at the
substance. M/s. Paradise Industrial Corpn. , Appellants v. M/s. Kiln Plastics
Products, reported in AIR 1976 SC 309 (FB).
S.12(1) Houses and Rents Termination of tenancy Suit for possession by
landlord Extension of part II of Act containing S. 12 to area pending suit
Applicability of S. 12(1) to suit Date from which it applies Right of landlord to
get possession "Landlord shall not be entitled to recovery of possession" Court
cannot give decree for possession.
31.1. Section 12(1) contained in Part II of Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947 enacts a rule of decision, and it says that a
landlord is not entitled to possession if the tenant pays or shows his readiness
and willingness to pay standard rent and to observe the other conditions of
the tenancy. The word tenant is defined in the Act to include not only a
tenant, whose tenancy subsists but also any person remaining, after the
determination of the lease, in possession with or without the assent of the
landlord. Thus, a statutory tenant is within the rule enacted by S. 12(1) and
entitled to its protection.
31.2. Subsection (1) of section 12 contained in Part II of the Act applies from
the date on which Part II of the Act is extended to the particular area by a
notification issued under S. 6. The subsection says that a landlord shall not
be entitled to the recovery of possession of any premises so long as the tenant
pays or is ready and willing to pay the standard rent, etc. and observes and
performs the other conditions of the tenancy. In other words, no decree can
be passed granting possession to the landlord, if the tenant fulfills the
conditions above mentioned. The point of time when the subsection will

27
operate is when the decree for recovery of possession will have to be passed.
Thus, the language of the subsection applies equally to suits pending when
Part II comes into force and those to be filed subsequently. The contention
that the operation of S. 12(1) is limited to suits filed after the Act comes into
force in a particular area cannot be accepted.
31.3. On the termination of tenancy by efflux of time the landlord filed a suit on
2541957 for possession of the premises. By a notification issued on 168
1958, Part II of the Bombay Rents, Hotel and Lodging, House Rates Control
Act, 1947 was applied to the area wherein the premises were situated. The
tenant, having lost in the trial Court and in the High Court on the ground that
S. 12 of the Act was prospective and did not apply to pending cases, appealed
to the S. C. Shah Bhojraj Kuverji Oil Mills and Ginning Factory v/s Subhash
Chandra Yograj Sinha, reported in AIR 1961 SC 1596 (Five judges).
S.12(1), S.13, S.14, S.15 houses and rents Houses and Rents Person
remaining in possession after determination of tenancy Becomes statutory
tenant He can remain in possession but cannot enforce terms of original
tenancy Sublessee from a statutory tenant under the Act acquires no right of
tenant.
32.1. A person remaining in occupation of the premises let to him after the
determination of or expiry of the period of the tenancy is commonly, though
in law not accurately, called a statutory tenant. Such a person is not a tenant
at all, he has no estate or interest in the premises occupied by him. He has
merely the protection ofthe statute in that he cannot be turned out so long as
he pays, the standard rent and permitted increases, if any, and performs the
other conditions of the tenancy. His right to remain in possession after the
determination of the contractual tenancy is personal.. it is not capable of

28
being transferred or assigned, and devolves on his death only in the manner
provided by the statute. The right of a lessee from a landlord on the other
hand is an estate or interest in the premises and in the absence of a contract
to the contrary is transferable and the premises may be sublet by him. But
with the determination of the lease, unless the tenant acquires the right of a
tenant holding over, by acceptance of rent or by assent to his continuing in
possession by the landlord, the terms and conditions of the lease are
extinguished, and the rights of such a person remaining in possession are
governed by the statute alone. Section 12(1) of the Act 57 of 1947 merely
recognises his right to remain in possession so long as he pays or is ready and
willing to pay the standard rent and permitted increases and performs the
other conditions of the tenancy, but not the right to enforce the terms and
conditions of the original tenancy after it is determined. Assuming that the
tenant was entitled to sublet the premises under the terms of the lease he
could not, relying upon S. 12(1), exercise the right to sublet granted under
the lease after he became a statutory tenant. Anand Nivas Private Ltd. v/s
Anandji Kalyanji's Pedhi, reported in AIR 1965 SC 414 (FB).
32.2. Above referred ratio is distinguish in Damadilal and others, Appellants v.
Parashram, reported in AIR 1976 SC 2229 (FB) and overruled in Om Wati
Gaur v/s Jitendra Kumar, reported in AIR 2003 SC 229.
S.12, S.13 Civil P.C. (5 of 1908) , O.37 , R.2 (Bombay) houses and rents
Houses and Rents R. 8 of the Rules made under the Act is not ultra vires
Exercise of discretion under O. 37 R. 2 Extent of.
33.1. Rule 8 of the Rules made under the Bombay Rents, Hotel and Lodging
House Rates (Control) Act, which provides that its under the Act may be
instituted in accordance with the procedure laid down in O. 37 is not ultra

29
vires and void. It is fallacious to contend that under provisions of the Act the
landlord is not entitled to a decree as a matter of right; the Court has to
consider the position of the tenant and has a discretion to pass or not to pass
a decree and therefore to a suit governed by the Act the provisions of O. 37 R.
2 C. P. C. (Bombay), which makes it incumbent on the Court to pass a decree
in circumstances coming within that subrule, are inapplicable.
Ramkarandas Radhavallabh v/s Bhagwandas Dwarkadas, reported in AIR
1965 SC 1144.
S.12, S.13, S.14 houses and rents Houses and Rents Scope Expression "is
determined for any reason", meaning of Interest of tenant when comes to an
end.
34.1. It is not correct to say that as soon as a notice determining a contractual
tenancy is given, the subtenant of the contractual tenant who was there from
before has to be deemed A tenant under S. 14 from the date the notice
expires.
34.2. The words "is determined for any reason" in the context of the Act mean
that where the interest of a tenant comes to an end completely, the pre
existing subtenant may, if the conditions of S. 14 are satisfied, be deemed to
be a tenant of the landlord.
34.3.The interest of a tenant who for purposes of S. 14 is a contractual tenant
comes to an end completely only when he is not only no longer a contractual
tenant but also when he has lost the right to remain in possession which S. 12
has given to him and is no longer even a statutory tenant. In other words S.
14 would come into play in favour of the subtenant only after the tenancy of
the contractual tenants has been determined by notice and the contractual
tenant has been ordered to be ejected under S. 28 on any of the grounds in S.

30
12 or S. 13. Till that event happens or till he gives up the tenancy himself the
interest of a tenant who may be a contractual tenant, for purposes of S. 14,
cannot be said to have determined i.e. come to an end completely in order to
give rise to a tenancy between the preexisting subtenant and the landlord.
Hiralal Vallabbram v/s Sheth Knsturbhai Lalbhai, reported in AIR 1967 SC
1853 (FB).
S.12 Whether the plea that arrears prior to transfer of disputed property could
not be recovered as arrears of rent, the same being a 'debt due', is sustainable?
Held. No.
35.1. As per the proviso to Section 109 of the Transfer of Property Act the
transferee is not entitled to arrears of rent due before the transfer unless there
is a contract to the contrary and, therefore, the correct position of law is that
a transferee is not entitled to recover the arrears as rent for the property on
transfer unless the right to recover the arrears is also transferred. If right to
recover the arrears is assigned, then the transferee/landlord can recover those
arrears as rent and if not paid maintain a petition for eviction under the rent
laws for those arrears as well. Sheikh Noor v/s Sheikh G. S. Ibrahim,
reported in AIR 2003 SC 4163, para Nos.10 & 18.
S.12(1) eviction Suit for eviction on ground of breach of term of lease
Whether under relevant clause duty to carry out repairs was that of tenant or
landlord – Interpretation.
36.1. Where the lessee covenants with lessor under the terms of lease that he
will keep the premises in as good condition as the same were then in
(reasonable wear and tear, and destruction or damage by fire, riots,
insurrection, at of God or tempest excepted) and (except as aforesaid) deliver

31
them up at the determination of the tenancy to the lessor, it cannot be said
that the term merely amounts to a covenant for careful and reasonable use of
the property on the part of the tenant and nothing more. The clause, imposes
upon the tenant two obligations namely (a) to keep the property in repair
from time to time during the term and (b) to restore it in repair, i. e. in the
same good condition as he received it, at the end of the term.
36.2. A covenant of this type contained in a lease has always been construed by
judicial decisions as casting a duty on the tenant to prevent permissive waste
by carrying out such repairs as are necessary to keep and maintain the
property in good condition and tenantable repair during the whole term and
restore it to the lessor in the same condition at the end of the term.
36.3. Section 23 (1) of the Bombay Rent Act, 1947 would not be attracted for
under that provision the duty to keep the premises in good and tenantable
repair is cast on the landlord in the absence of an agreement to the contrary
by the tenant. Moreover, such a term in the lease would clearly be consistent
with the provisions of the said Act. In these circumstances, if a finding of fact
has been recorded by the lower Courts on evidence that the deterioration and
damage caused to the suit property was not on account of natural or
reasonable wear and tear but was due to the negligence in the upkeep and
maintenance of the property on the part of the tenant the tenant must be held
to have committed a breach of the term of the lease and the landlord would
be entitled to recover possession of the property from the tenant under the
latter part of S. 12 (1) of the Bombay Rent Act, 1947. Merwanji Nanabhoy
Merchant v/s Union of India, reported in AIR 1979 SC 1309 (FB). Para Nos. 7
& 8.
S.12 houses and rents Houses and Rents Scope and object Section

32
operates against landlord only after contractual tenancy is determined in
accordance with S. 111 T. P. Act Suit for recovery of possession under S. 12
Nat maintainable unless tenancy is determined and notice under S. 12 (2) is
served.   Bhaiya Punjalal Bhagwanddin v/s Dave Bhagwatprasad Prabhuprasad,
reported in AIR 1963 SC 120 (FB).
37.1. Above referred ratio is impliedly overruled in the case of V. Dhanapal
Chettiar v/s Yesodai Ammal, reported in AIR 1979 SC 1745 (Seven Judges).
S.12(1) and S.12(3)(b) houses and rents   eviction   tenancy Houses and
Rents Suit by landlord against eviction of tenant Tenant in arrears of rent
During pendency of suit, tenant not paying standard rent, nor was he ready or
willing to pay Instead, he claimed that he was not liable to pay any amount
Tenant, held could not claim protection from eviction.   Maganlal Chhotabhai
Desai v/s Chandrakant Motilal, reported in AIR 1969 SC 37 (FB). Para Nos. 10 &
11.
S.12(1), S.12(3)(b) and S.11(3) houses and rents   eviction Houses and Rents
Suit for eviction of tenant on ground of arrears for a period of more than six
months Tenant though raising dispute as to standard rent, making no
application under S. 11 (3) Cannot claim protection under S. 12 (1) by merely
offering to pay or even paying all arrears due when court is about to pass decree
Tenant failing to pay or deposit in court regularly amount of standard rent due
after first hearing, cannot get protection of S 12 (3) (b).
39.1. Where a suit for eviction is filed on the ground that the tenant was in
arrears for a period of more than 6 months and the tenant although raising a
dispute as to the standard rent or permitted increases recoverable under the
Act, makes no application in terms of S. 11 (3) he cannot claim the protection

33
of S. 12 (1) by merely offering to pay or even paying all arrears due from him
when the court is about to pass a decree against him. To be within the
protection of subs. (1) where he raises a dispute about the standard rent
payable, he must make an application to the court under subs. (3) of S. 11
and thereafter pay or tender the amount rent and permitted increases, if any,
specified in the order made by the Court. If he does not approach the court
under S. 11 (3), it is not open to him thereafter to claim the protection of S.
12 (1).
39.2. Further, to be within the protection of S. 12 (3) (b) the tenant must not
only pay all the arrears due from him on the first day of hearing of the suit,
but he must thereafter continue to pay or tender in court regularly the rent
and the permitted increases till the suit is finally decided. Therefore where
after the first hearing of the suit the tenant failed to pay or deposit in court
regularly the amount of standard rent which became due after that date and
the rent remained unpaid when the suit was disposed of, there was default on
the part of the tenant and he could not get the protection of S. 12 (3) (b).
Shah Dhansukhlal Chhaganlal v/s Dalichand Virchand Shroff, reported in AIR
1968 SC 1109 (FB).
S.12(1), S.50 houses and rents appeal Ejectment suit under T.P. Act Appeal
therefrom pending when Act applied Tenant cannot get benefit of S.12
irrespective of S.50 Section 50 is special provision dealing with pending matters
and it overrides general provisions of S.12.
40.1. The proviso to S. 50 read with the separate paragraph added thereto is an
independent provision enacting a substantive law of its own by way of
providing for special savings. It has not been added merely with a view to
qualify or to create an exception to what is contained in the main provision of

34
S.50. That being the true nature and scope of the proviso to S. 50, an appeal
which arose out of a decree passed in a ejectment suit filed under the Transfer
of Property Act and which was pending when Part II of the Act was made
applicable to area in which the suit property was situate would be directly
covered by the proviso read with the separate paragraph added thereto and
would be liable to be decided and disposed of as if the Act had not been
passed, that is to say, had to be disposed of in accordance with the law that
was then applicable to it.
40.2. Either under the proviso as it originally stood or under the new separate
paragraph enacted by way of an amendment the legislative intent was and is
quite clear that only suits and original proceedings between a landlord and a
tenant which were pending on the relevant date are required to be decided
and disposed of by applying the provisions of the 1947 Act while execution
proceedings and appeals arising out of decrees or orders passed before the
coming into operation of the 1947 Act are denied the benefits of the
provisions of the Act and have been directed to be decided and disposed of as
if this Act had not been passed, that is to say, such execution proceedings and
appeals would be continued to be governed by and shall be disposed of in
accordance with the law that was then applicable to them. In other words, it
is clear that the proviso was and has been enacted to provide for special
savings which suggests that it has not been introduced merely with a view to
qualify or create exceptions to what is contained in the substantive part of
S.50. Secondly, the Legislature while framing the 1947 Act was enacting
certain provisions for the benefit of tenants which conferred larger benefits on
them than were in fact conferred by the earlier enactments which were
repealed and therefore, the legislature thought it advisable that in regard to
pending suits and original proceedings also in which the decrees and orders

35
were not passed the provisions of the 1947 Act should be made applicable. It
is with this intention that the proviso to S.50 has been enacted in the manner
it has been done. Motiram Ghelabhai v/s Jagan Nagar, reported in AIR 1985
SC 709.
S.12(2) houses and rents Houses and Rents Demand notice is not invalid
merely because it does not give breakup of the sum which was claimed as due
per month.
41.1. Thus where the tenant is in doubt or requires clarification in respect of the
sum which is claimed per month in the notice as due it was held that he
should have called for information on those points from the landlord
especially when he was sending replies through a lawyer to the notices issued
by the landlord. The mere statement by the tenant in his reply to the notice
that the claim was excessive was not enough. It was clear from his conduct
that he was fully aware that the amount represented the standard rent with
the permitted increases under the Act. Under such circumstances it cannot be
held that there vas dispute between the landlord and tenant regarding the
amount of standard rent or permitted increases so as to attract Section 12 (3)
(b).
41.2. There is nothing in the Act necessitating landlord to give first a notice
under Section 10 or Section 10C for permitted increases and then a further
notice under Section 12. It is enough that the landlord charges the tenant a
higher rate and makes a demand at that rate. The date from which the
demand would be effective would not be the date of intimation". Thus it
could not be said that the question of tenant's being in default should have
been considered only for the period subsequent to that date. Gauri Shankar
Chittarmal Gupta v/s Smt. Gangabai Tokersey, reported in AIR 1971 SC 659.

36
S.12(2) Termination of tenancy Notice to tenant Service of Presumption as
to Notice to be sent as per provisions of S. 106 of T.P. Act Tenant, a Company
Notice sent by registered post in the name of Company Partner admitting that
notice was sent on correct address Service of notice is fully in accordance with
S. 106. Kulkarni Patterns Pvt. Ltd. v/s Vasant Baburao Ashtekar, reported in AIR
1992 SC 1097.
S.12(2) Termination of tenancy Notice to tenant Service of Presumption as
to Notice to be sent as per provisions of S. 106 of T.P. Act Tenant, a Company
Notice sent by registered post in the name of Company Partner admitting that
notice was sent on correct address Service of notice is fully in accordance with
S. 106. Kulkarni Patterns Pvt. Ltd. v/s Vasant Baburao Ashtekar, reported in AIR
1992 SC 1097.
S.12(2) , S.11 , S.10 Whether it is open for tenant to raise dispute regarding the
permitted increases during pendency of eviction petition – Held. No.
44.1. Under S. 10 the tenant is bound to pay to the landlord the increase in rate,
cess charges, tax, land assessment, ground rent or any other levy. The amount
of increase, the tenant is bound to pay, has to be in the same proportion as the
rent payable by him bears to the total amount of such rate, cess, charges, tax,
land assessment, ground rent or any other levy. Section 11 gives the Court the
power to fix the standard rent and/or the amount of the permitted increases.
It has to be noted that under S. 11(1) the Court may fix the standard rent
either upon an application made to it for that purpose or in any suit or
proceeding. Thus the dispute regarding standard rent need not necessarily be
by way of an application. However, under subsections (2) and (3) of S. 11 if

37
there is any dispute between the landlord and the tenant regarding the
amount of permitted increases, it can be decided by the Court only on an
application made by the tenant who has received a notice from his landlord.
Thus in a suit for ejectment it would not be open for the tenant to raise a
dispute regarding the permitted increases. If on receipt of a notice the tenant
has either not paid the amount of the permitted increase and not raised a
dispute by filing an application then, by virtue of Sections 12(2) and (3), the
landlord would be entitled to a decree for eviction. Laxman Jiwaba
Baherwade v/s Bapurao Dodappa Tandale AIR 2002 SC 3266, para No.6.
S.12(3) , Cl.(a) and Cl.(b) houses and rents Houses and Rents Dispute about
amount of standard rent Final order of standard rent by Small Cause Court
Tenant and landlord both questioning amount of standard rent by revision
petitions Dispute cannot be said to have come to end Case will be governed
not by Cl.(a) but by Cl. (b).
45.1. Eviction under Cl. (a) is made to depend upon several conditions. One
such condition is that there should be no dispute regarding the amount of
standard rent. Clause (b) comprehends all cases other than those falling
within Cl. (a) and a case in which there is a dispute about the standard rent
must obviously fall not in Cl. (a) but in Cl. (b).
45.2. Where, though the final order of standard rent is passed by the Court of
Small Causes, neither the landlord nor the tenant accepts the determination,
but each side questions the amount by filing revision petitions, particularly
the landlord files one revision after another to get the amount increased, it
would be strange for him to claim that there was no dispute subsisting. The
case will be governed not by Cl. (a) but by Cl. (b). Jashwantrai Malukchand
v/s Anandilal Bapalal, reported in AIR 1965 SC 1419 (FB).

38
S.12(3)(a) eviction Houses and Rents "May'' in expression "Court may pass a
decree for eviction'' has a mandatory content Court is bound to pass decree in
ejectment if conditions of the clause are fulfilled.
46.1. The clause deals with cases not falling within cl. (3) (a) i.e. cases (i) in
which rent is not payable by the month, (ii) in which there is a dispute
regarding the standard rent and permitted increases, (iii) in which rent is not
due for six months or more. In these cases the tenant may claim protection by
paying of or tendering in Court on the first day of the hearing of the suit or
such other date as the Court may fix the standard rent and permitted
increases and continuing to pay or tender in Court regularly such rent and
permitted increases till the suit is finally decided and also by paying costs of
the suit as directed by the Court. What the tenant has to pay or tender in
Court to comply with the conditions of cl. (b) of subs. (3) is standard rent
and permitted increases, and the Court has under cl. (b) of subs. (1) merely
the power to fix the date of payment or tender, and not the rate at which the
standard rent is to be paid. Power to fix the standard rent of premises is
exercisable under S. 11 (1) alone. To bring his claim within S. 12 (3) (b) the
tenant must pay or tender the standard rent and permitted increases on or
before the first day of hearing, or on or before such other date as the Court
fixes, and also costs of the suit as may be directed by the Court. It may be
noticed that the statute imposes upon the tenant obligation to pay or deposit
the amount of costs if the Court so directs, and not otherwise. Vora
Abbasbhai Alimahomed v/s Jaji Gulamnabi Haji Safibhai, reported in AIR
1964 SC 1341 (FB).
47. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) as
amended by Act 61 of 1953, S.12(3)(a) houses and rents Houses and Rents

Supreme Court Judgments on Bombay Rents Act, 1947

Supreme Court Judgments on Bombay Rents Act, 1947

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Supreme Court Judgments on Bombay Rents Act, 1947