2004 (3) TMI 790 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the interest of the tenant of non-residential premises under the Maharashtra Rent Control Act, 1999 is attachable and saleable in execution of a decree against the tenant.

Detailed Analysis:

1. Definition of Property and Lease (Paragraphs 5-8):
- The term "property" is not defined under the Transfer of Property Act or the Civil Procedure Code but includes all legal rights of a person.
- A lease is a transfer of a right to enjoy property for a certain period in consideration of a price, creating an interest in the property for the lessee.

2. Legal Precedents and Interpretation (Paragraphs 9-10):
- In Ramesh Himmatlal Shah v. Harsukh Jadhavji Joshi, the Supreme Court held that the right to occupy a flat in a tenant co-partnership housing society is a species of property and is attachable and saleable in execution of a decree.
- Tenants' right to remain in non-residential premises is considered property and is saleable, similar to residential premises under the Rent Control Act.

3. Transfer of Property and Section 26 of the Maharashtra Rent Control Act, 1999 (Paragraphs 11-15):
- Section 6 of the Transfer of Property Act allows the transfer of any property unless restricted by law.
- Section 26 of the Maharashtra Rent Control Act prohibits tenants from subletting or transferring their interest without the landlord's consent, but this prohibition is not absolute and can be overridden by a contract with the landlord.

4. Judicial Interpretations and Distinctions (Paragraphs 16-23):
- In Mittersain Rupchand, the Division Bench held that leasehold interests in non-residential premises are attachable and saleable despite restrictions under the Bombay Rent Act.
- The prohibition in Section 26 is not absolute; the landlord can permit or ratify the transfer, making the tenancy interest saleable.

5. Execution and Sale of Tenancy Rights (Paragraphs 24-28):
- Section 26 forbids voluntary transfer by the tenant but does not prevent transfer by the Court.
- Historical judgments like Golak Nath Roy Chowdhary and Keshab Chandra Pramanik affirmed that general restrictions on assignment do not apply to assignments by operation of law, such as court-ordered sales.

6. Section 56 of the Maharashtra Rent Control Act, 1999 (Paragraphs 29-35):
- Section 56 legitimizes the acceptance of consideration for relinquishment, transfer, or assignment of tenancy, indicating that the tenant has a disposing power over the tenancy interest for his benefit.
- The non obstante clause in Sections 26 and 56 should be read harmoniously, with Section 56 indicating the saleability of the tenant's interest.

7. Veetrag Investments Case Analysis (Paragraphs 36-38):
- The learned single Judge's observations in Veetrag Investments I, which suggested that tenancy rights in non-residential premises are not saleable, were found inconsistent with the broader legal interpretations and precedents discussed.

8. Conclusion (Paragraphs 39-40):
- The tenants' right to remain in occupation of non-residential premises governed by the Maharashtra Rent Control Act, 1999 is a property.
- Such property is saleable, and the tenant has disposing power over the interest of tenancy for his benefit, making it attachable and saleable in execution of a decree against the tenant.

The judgment concludes that the interest of the tenant in non-residential premises under the Maharashtra Rent Control Act, 1999 is indeed attachable and saleable in execution of a decree against the tenant.