Supreme Court of India

PARWATI BAIversusRADHIKA

Citation: 2003 INSC 272
Decided: 1 May 2003
Disposal: Appeal(s) allowed
Bench: R C LAHOTIB N AGRAWAL

Holding

The Act does not apply to the municipal premises, and the notice under Section 106 TPA is valid, permitting eviction of the sub‑tenant.

Summary

The appellant, a lessee of a non‑residential municipal premises, sub‑let the property to the respondent and later served a notice under Section 106 of the Transfer of Property Act to terminate the tenancy for non‑payment of rent and self‑occupation. The respondent filed an eviction suit which was dismissed by the trial and appellate courts on the ground that the Madhya Pradesh Accommodation Control Act, 1961 applied and no ground under its Section 12 was proved. The appellant contended that the Act was inapplicable because the premises were municipal property and exempt under Section 3(1)(b). The Supreme Court held that the exemption is attached to the premises, not the parties, so the Act does not govern the dispute, and that the notice was valid as no specific objection was raised. Consequently, the appeal was allowed, the lower courts' judgments set aside, and the eviction suit decreed in favour of the appellant, with rent arrears to be determined by the executing court.

Issues considered

Whether the Madhya Pradesh Accommodation Control Act, 1961 applies to non‑residential premises owned by a municipality and sub‑let to a private tenant.
Whether an eviction suit between a tenant and his sub‑tenant falls within the ambit of the Act.
Whether the notice served under Section 106 of the Transfer of Property Act, 1882 is valid and complies with statutory requirements.

Legislation cited

Madhya Pradesh Accommodation Control Act, 1961s. 12, s. 3(1)(b)
Transfer of Property Act, 1882s. 106

Subjects

evictionrentmunicipal premisesexemptionAccommodation Control ActTransfer of Property Actnotice validitysub‑leaselandlord‑tenant

Judgment

... PARWATI BAI A
v.
RA DH IKA

MAY I, 2003

[R.C. LAHOTI AND B.N. AGRA WAL, JJ.] B

Rent and Eviction:

Madhya Pradesh Accommodation Control Act, 1961:
c
S.3(/)(b)-Non-residential premises belonging to Municipalit)'.-
Exemption from applicability of Act-Non-residential Municipal premises-
Given on lease to appellant-:Appellant further sub-let it to respondent-
Tenancy ofrespondent terminated by appellant by giving notice uls 106 of the
Transfer of Property Act-Suit filed by appellant for non-payment of rent and D
her need to occupy it for herself-Both ihe courts below holding that the
Madhya Pradesh Accommodation Act applied to the premises and grounds/or
eviction uls 12 thereof were not made out-Appellant's plea that since
ownership ofpremises vests in Municipality, the applicability of Rent Act was
not attracted and entitlement for eviction was to be decided under the Transfer
of Property Act, rejected-Suit dismissed-High Court dismissed landlord's E
appeal in limine--Held, qua the municipality, appellant is the tenant and the
respondent is sub-tenant and as between the latter two, appellant is the landlord
and respondent is the tenant-if a tenant in municipal premises lets out the
premises to another, a suit by the tenant for ejectment of his tenant and
arrears of rent would not be governed by the Act as the premises are exempt
under s.J(l)(b) of Act though the suit is not between the municipality as F
landlord and against its tenant-The singular question to be examined in the
present case is whether the tenancy was terminated in accordance with the
provisions ofs.106 of the Transfer of Property Act-The receipt of notice by
the defendant is admitted in the written statement-The defendant has not
raised any specific objection as to the validity of the notice-An objection as G
to invalidity or infirmity of notice under s.106 of the Transfer of Property Act
should be·raised specifically and ai the earlies/; else it will be deemed to have
been waived even if there exists one-It cannot, .therefore, be said that the
notice in the present case .n1ffered Ji-om any infirmity-The judgments and
decrees of the trial court, first appellate court and the High Court are set
IOTI H
1074 SUPREME COURT REPORTS [2003] 3 S.C.R.
.....
A aside-Instead the suit filed by the plaintiff for eviction of the defendant-
respondent is directed to be decreed-Notice-Validity of-Objection
regarding-Transfer of Property Act, 1882-s. !06.

Bhatia Cooperative Housing Society ltd. v. D.C. Patel, 11953( 4 SCR
185, relied on.
B
Radheylal Somsingh v. Ratansingh Kishansingh, (1977) MPLJ 335,
approved.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2704 of2000.

C From the Judgment and Order dated 1.12.99 of the Madhya Pradesh
High Court in S.A.No. 289 of 1999.

S.S. Khanduja for the Appellant.

Niraj Sharma for the Respondent.
D
The following Order of the Court was delivered :

A suit for eviction filed by the appellant against the respondent has
been directed to be dismissed by the two courts below. The High Court has
dismissed the landlord's appeal in limine. This is an appeal filed by the
E landlord by special leave.

Vide notice Exh. P-4 issued on 1.11.1990 and served on 5.11.1990, the
appellant terminated the tenancy of the respondent giving the latter more than
15 day's time for vacating the suit premises, whereafter the suit was filed.
F Non-payment of rent by the respondent and the need of the plaintiff to
occupy the suit premises for herself were pleaded as grounds of eviction. The
Trial Court and the First Appellate Court formed an opinion that the suit
premises were governed by the provisions of the Madhya Pradesh
Accommodation Control Act, 1961 (hereinafter 'The Act'. for short) and
inasmuch as any ground for eviction under Section 12 of the Act was not
G made out as the appellant failed in proving the tenant to be a defaulter and
the appellant's need for self occupation, the suit was directed to be dismissed.
One of the pleas raised by the landlord from the very beginning was that
because the ownership in the suit premises vested in the municipality, the
applicability of the Madhya Pradesh Accommodation Control Act, 1961 was
not attracted and entitlement for eviction was to be decided under the
H
PARWATI BAI v. RADHIKA 1075
provisions of the Transfer of Property Act, 1961 only. Both the courts below A
held that though the ownership of the premises vests in the municipality yet
as the plaintiff was not a municipality the applicability of the Act was not
excluded. In our opinion, the courts below have committed a gross error of
law and, therefore, their judgments are vitiated. The High Court ought to
have entertained the appeal and should not have dismissed the same in limine. B

It will suffice for the purpose of this appeal to state the admitted relevant
facts in brief. The suit premises are non-residential, situated in the city of
Khargaon in the State of Madhya Pradesh. The ownership of the premises
vests in the municipal council. The appellant took the premises from the
municipal council on lease and sub-let the same to the respondent herein. C
Thus qua the municipality, appellant is the tenant and the respondent is sub-
tenant and as between the latter two, appellant is the landlord and respondent
is the tenant.

Section 3(1) of the Act provides as under:-

"Sec. 3. Act not to apply to certain accommodation.- (I) Nothing in D
this Act shall apply to-
(a) accommodation which is the property of the Government [Central
Govt. or any State Govt.]
(b) accommodation which is the property of a local authority used E
exclusively for non-residential purposes."

It is well settled by a decision of this Court in Bhatia Cooperative
Housing Society ltd v. D.C. Patel, (1953] 4 SCR 185 wherein pari materia
provisions contained in the Bombay Rents, Hotel and Lodging House rates
Control Act, 1947 came up for consideration of this Court. It was held that F
the exemption is not conferred on the relationship of landlord and tenant but
on the premises itself making it immune from the operation of the Act. In
identical facts, as the present case is, the decision of this Court was followed
by the High Court of Madhya Pradesh in Radhyelal Somsingh v. Ratansingh
Kishansingh, (I 977) MPLJ; 335 and it was held that the immunity from G
operation of the Madhya Pradesh Accommodation Control Act, 1961 is in
respect for the premises and not with respect to the parties. If a tenant in
municipal premises lets out the premises to another, a suit by the tenant for
ejectment of his tenant and arrears of rent would not be governed by the Act
as the premises are exempt under Section 3 (I)(b) of Act though the suit is
not between the municipality as landlord and against its tenant. We find H
1076 SUPREME COURT REPORTS [200313 S.C.R.

A ourselves in agreement with the view taken by the High Court of Madhya
Pradesh in Radhyelal 's case. It is unfortunate that this decision binding in the
State of Madhya Pradesh was not taken note of by the courts below as also
by the High Court.

The singular question to be examined in the present case is whether the
B tenancy was terminated in accordance with the provisions of Section 106 of
the Transfer of Property Act. The receipt of notice by the defendant is admitted
in the written statement. The defendant has not raised any specific objection
as to the validity of the notice. An objection as to invalidity or infirmity of
notice under Section 106 T.P. Act should be raised specifically and at the
C earliest; else it will be deemed to have been waived even if there exists one.
It cannot, therefore, be said that the notice in the present case suffered from
any infirmity. A copy of the notice was exhibited and proved by the plaintiff
as Exh. P-4.

For the foregoing reasons the appeal is allowed. The judgments and
D decree of the Trial Court, First Appellate Court and the High Court are set
aside. Instead, the suit filed by the plaintiff for eviction of the defendant-
respondent is directed to be decreed. So far as the amount of rent in arrears
is concerned, the Trial Court has recorded a finding, vide para 11 of its
judgments, that the defendant-tenant was paying or depositing in the Court,
rent as ordered by the court. So far as the finding is concerned, the plaintiff
E has not raised any objection. The amount deposited by the defendant for
payment to the plaintiff in the Court shall be available to be withdrawn by
the plaintiff if not already withdrawn. If there are any arrears, the defendant-
respondent shall continue to remain I iable to pay the same Rs. 300 per month,
which rate is undisputed. If there is any dispute as to the quantam of arrears,
p the same shall be determined by the Executing Court.

The respondent-tenant is allowed six month's time for vacating the suit
premises subject to his filing usual undertaking within a period of four weeks
from today before the Executing Court.

G No order as to costs.

R.P. Appeal allowed.

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