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TMI Blog1978 (2) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... futile and doomed to failure, will not deny the. desirability and the beneficial effects of such certainty in law as may be possible. Unfortunately, there are not infrequent instances where what should have been clear and certain, by applying well established canons of statutory construction becomes befogged by the vagaries, if one may use a possibly strong word without disrespect, of judicial exposition divorced from these canons. The case before us is an instance of the artificial uncertainty created by such a fog after the law found in Section 12 (3) of the Bombay Rents, Hotel and Lodging House Rates Control Act No. LVII of 1947 (hereinafter referred to as the Act ) had been laid down with sufficient clarity by this Court in Shah Dhansukhlal Chhaganlal v. Dalichand Firchand Shroff Ors.([1968] 3 S.C.R. 347) and correctly understood and applied by a Bench of the Court of Small Causes at Bombay. It is a cardinal tenet of sound administration of justice that the judicial function must not stray, so far as possible, into the domain of legislation wearing a veil, whether thin or thick, of interpretation . We are impelled to make these remarks because we find that a case of the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protection of section 12(3) (b), since he had not paid the rent regularly in accordance with the conditions under which the protection of section 12 (3) (b) could be given to him. On 12th August, 1963, the tenant filed an appeal in the Small Causes Court challenging the validity of the notice on the ground that the notice to quit must be for 30 days . On 19th April, 1968, this appeal was allowed. On, 11th April, 1969, the High Court set aside the finding of the Appellate Court on the notice to quit which was held to be valid and properly served and sent back the case to the appellate court for decision of other questions. On 8th December, 1969, the special leave petition against the order of remand was dismissed by this Court. On 22nd January, 1970, the Appellate Bench of the Small Causes Court passed a decree for ejectment holding that a valid notice had been served; the case was governed by the provisions of section 12 (3) (a) and not section 12(3) (b); even if the case was governed by section 12 (3) (b), its provisions not having been complied with, the suit was bound to be decreed in accordance with what was clearly held by this Court in Shah Dhansukhlars case (supra), wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of his death as may be decided in default of agreement by the Court. In these circumstances, the question arose for decision whether the present respondent, whose residence is given in the special leave petition as Agakhan Building, Haines Road, Bombay , could possibly claim to be a tenant in respect of the shop which admittedly constitutes business premises by reason of Section 5 (11) (c) of the Act. The High Court took the view that section 5 (11) (c) applies not only to residential premises but also to business premises and therefore, on the death of a tenant of business premises, any member of tenant s family residing with him at the time of his death would become a tenant. We do not think this view taken by the high Court is correct. It is difficult to see how in case of business premises, the need for showing residence with the original tenant at the time of his death would be relevant. It is obvious from the language of section 5(11)(c) that the intention of the legislature in giving protection to a member of the family of the tenant residing with him at the time of his death was to secure that on the death of the tenant, the member of his family residing with him at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me tenant in respect of the business premises with which he has no connection. We are, therefore, in agreement with the view taken by one of us (Bhagwati J.) in the Gujarat High Court about the correct meaning of Section 5 (11) (c) in Parubai Manilal Brahmin Ors. v. Baldevdas Zaverbhai Tapodhan(1964) 5 Gujarat L.R. 563), in preference to the view adopted in the sub- sequent decision of the Gujarat High Court in Heirs of deceased Darji Mohanlal Lavji v. Muktabai Shamji(1971) 12 Gujarat L.R. 272) which decision was followed by the Bombay High Court in the judgment impugned in the present appeals before us. It is significant to note that after the decision of Gujarat High Court in Parubai Manilal Brahmin Ors. v. Baldevdas Zaverbhai Tapodhan (supra) the Gujarat legislature amended the Rent Act by substituting the following provision for section 5 (1 1) (c) 5 (11) (c) (i) in relation to premises let for residence, any member of the tenant s family residing with the tenant at the time of. or within three months immediately preceding, the death of the tenant as may be decided in default of agreement by the Court, and (ii) in relation to premises let for business, trade or stor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of interpretation and application of section 12 (3 ) (b) need not trouble us after the decision of this Court in Shah Dhansukhlal Chagganlal s case (supra) followed by the more recent decision in Harbanslal Jagmohandas Anr. v. Prabhudas Shiv lal([1976] 3 S.C.R. 629) which completely covers the case before us. It is clear to us that the, Act interferes with the landlord s right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlords power to evict them, in these days of scarcity of accommodation, by asserting his superior rights in property or trying to exploit his position by extracting too, high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf. Thus, section 12 (3) (a) of the Act makes it obligatory for the Court to pass a decree when its conditions are satisfied as was pointed out by one of us (Bhagwati, J) in Hatilal Balabhai Nazar v. Ranchodbhai Shankarbh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Oswal v. Laxmibai R. Tarte Anr.(A.I.R. 1975 S.C. 1297). There, this Court, in an appeal by special leave from a judgment of the Bombay High Court observed (at p. 1297) : It is a litigation between landlord and tenant and as is usual with this type of litigation, it has been fought to a bitter end. Much-of the agony to, which the tenant has been subjected in this litigation would have been spared if only the High Court had kept itself within the limits of its supervisory jurisdiction and not ventured into fields impermissible to it under article 226 or 227 of the Constitution A finding as to whether circumstances justify the exercise of a discretion or not, unless clearly perverse and patently unreasonable is, after all, a finding. of fact only, which could not be interfered with either under article 226 or under article 227 of the Constitution. In Babhutmal Raichand Oswal s case (supra) this Court also said (at p. 1302) It would, therefore, be seen that the High Court cannot, while exercising jurisdiction under Art. 227, interfere with findings of fact recorded by the subordinate court or tribunal. Its function is limited to seeing that the subordinate court or tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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