Case Note & Summary
The petitioners are the legal representatives of the original plaintiff, who filed a suit for possession against the original defendant, the landlord. The plaintiff claimed he was a tenant of a shop premises measuring 6ft X 10ft in a building at Pen, District Raigad, since 1949, paying rent of Rs.7 per month. On 18th June 1981, the building caught fire and was destroyed. The defendant allegedly assured the plaintiff that a new building would be constructed and a shop would be handed over to him. However, on 11th December 1981, the defendant declined to give a shop, leading to the suit. The defendant denied the assurance and disputed the measurement. The trial court decreed the suit, holding that the tenancy rights continued after the fire. The District Court in appeal dismissed the suit, holding that the plaintiff was not entitled to possession under Section 17(C)(2)(b) of the Bombay Rent Act because the suit shop was located in an open space kept by the defendant. The High Court, per Justice A.S. Oka, allowed the writ petition, setting aside the appellate court's judgment and restoring the trial court's decree. The court held that tenancy rights survive destruction of premises, and the filing of the suit itself amounts to notice under Section 17. The open space kept as per rules does not defeat the claim. The court directed that the plaintiff is entitled to possession of a shop of the same measurement in the reconstructed building.
Headnote
A) Rent Control - Tenancy Rights - Destruction of Premises - Section 17 Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Tenancy rights do not extinguish upon destruction of the tenanted premises by fire; the tenant retains the right to claim possession in the reconstructed building. The filing of a suit for possession itself constitutes notice to the landlord of the tenant's intention to occupy a premises in the new building. (Paras 1-5) B) Rent Control - Possession - Open Space - Section 17 Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - The fact that the landlord kept a portion of land open as per building rules does not by itself defeat the tenant's claim for possession of a shop in the reconstructed building. The Appellate Court erred in dismissing the suit solely on that ground. (Paras 4-5)
Issue of Consideration
Whether the plaintiff-tenant is entitled to possession of a shop in the reconstructed building under Section 17(C)(2)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 after the original premises were destroyed by fire.
Final Decision
Writ petition allowed. Judgment of the District Court set aside. Decree of the trial Court restored. The plaintiff is entitled to possession of a shop of the same measurement in the reconstructed building.
Law Points
- Tenancy rights survive destruction of premises by fire
- Section 17 Bombay Rent Act applies to reconstructed building
- Filing suit amounts to notice of intention to occupy
- Open space kept as per rules does not defeat tenant's claim
