Suhas B. Marathe v. Balwant Mahadeo Joglekar

I. What is the scheme of Section 23 of the Bombay Rent Act?

II. Whether in view of the change of circumstances Section 23 of the

Bombay Rent Act is required to be interpreted by holding that the tenant can recover the entire amount incurred for repairs at one time?

III. Whether any interference is warranted in the impugned

Judgments under jurisdiction of this Court under Article 227 of the Constitution of India? REASONING: 6 1974 SCC OnLine Gujrat 27 POINT NO.I What is the scheme of Section 23 of the Bombay Rent Act? POINT NO.II Whether in view of the change of circumstances Section 23 of the Bombay Rent Act is required to be interpreted by holding that the tenant can recover the entire amount incurred for repairs at one time?

10. Before considering the submissions of both the parties and also submissions of learned Amicus Curiae, it is necessary to set out Section 23 of the Bombay Rent Act, which reads as under:- “23.Landlord's duty to keep premises in good repair. (1) Notwithstanding anything contained in any law for the time being in force and in the absence of an agreement to the contrary by the tenant,every landlord shall be bound to keep the premises in good and tenantable repair. (2) If the landlord neglect to make any repairs which he is bound to make under sub-section (1), within a reasonable time after a notice of not less than, fifteen days is served upon him by post or in any other manner by a tenant or jointly by tenants interested in such repairs, such tenant or tenants may themselves make the same and deduct the expenses of such repairs from the rent or otherwise recover them from the landlord: Provided that where the repairs are jointly made by the tenants the amount to be deducted or recovered by each tenant shall bear the same proportion as the rent payable by him in respect of his premises bears to the total amount of these expenses incurred for such repairs together with simple interest at the rate of fifteen per cent per annum of such amount: Provided further that the amount so deducted or recoverable in any year shall not exceed one fourth of the rent payable by the tenant for that year. (3) For the purpose of calculating the expenses of the repairs made under sub-section (2), the accounts together with the vouchers maintained by the tenants shall be conclusive evidence of such expenditure and shall be binding on the landlord.”an agreement to the contrary by the tenant, every landlord.” (Emphasis added) The analysis of Section 23 of the Bombay Rent Act shows the following aspects:a) Every landlord shall be bound to keep the premises in good and tenantable repair. It is the landlord’s statutory duty to keep the premises in good and tenantable repair. b) If the landlord fails to perform his statutory responsibility of carrying out the repairs to the tenanted premies or to the said building the following course of action is provided:i. The tenant or tenants jointly interested in such repairs shall serve on the landlord a notice of not less than 15 days calling upon the landlord to carry out the repairs. ii. If the landlord fails to carry out the repairs within a reasonable time after a notice of not less than 15 days is served upon him by a tenant or jointly by tenants interested in such repairs, such tenant or tenants are entitled to carry out the repairs themselves. iii. Such tenant or tenants can deduct the expenses of such repairs from the rent or otherwise recover them from the landlord. Where the repairs are jointly made by the tenants, the amount to be deducted or recovered by each tenant shall bear the same proportion as the rent payable by the tenants in respect of their premises bares to the total amount of expenses incurred for such repairs. iv. It is specifically provided that the amount so deducted or recoverable in any year shall not exceed one-fourth of the rent payable by the tenant for that year. v. It is also provided that for the purpose of calculating the expenses of the repairs the accounts together with the vouchers maintained by the tenants shall be the conclusive evidence of such expenditure and shall be binding on the landlord.

11. Thus, a bare reading of Section 23 of the Bombay Rent Act makes it clear that amount so deducted or recoverable in any year from the landlord shall not exceed one-fourth of the rent payable by the tenant for that year.

12. The submission of Mr. M. L. Patil, learned Counsel for the Respondent is that if the landlord fails to carry out the repairs which is the statutory responsibility of the landlord, then in that event the amount required to be incurred by the tenant on repairs can be allowed to be recovered without the restriction imposed by the proviso to Sub- Section (2) of Section 23 of the Bombay Rent Act. It is his submission that the right given to the tenant by Sub-Section (2) of Section 23 of the Bombay Rent Act can not be taken away by the proviso. Whereas it is the submission of Mr. Divekar, learned Counsel that the rent which is received by the landlord from the tenant is so meagre that it will be totally unjust to direct the Landlord to pay the entire amount and the same is contrary to the scheme of Section 23 of the Bombay Rent Act.

13. For appreciating the above submissions it is necessary to consider the legal position regarding the effect of proviso on the main enactment. Mr. Drupad Patil, learned Amicus Curiae relied on the decision of Hindustan Ideal Insurance (supra) and more particularly on Paragraph No.26, which reads as under:- “26. There is no doubt that where the main provision is clear its effect cannot be cut down by the proviso. But where it is not clear the proviso, which cannot be presumed to be a surplusage, can properly be looked into to ascertain the meaning and scope of the main provision. By looking at the proviso for this purpose the rule of construction referred to by learned counsel will not be infringed.”

14. Learned Amicus Curiae also relied on the decision of Tribhovandas (supra) and more particularly on Paragraph No.6 of the same, which reads as under:- “6. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field, which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms. The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect.”

15. The Supreme Court in the decision of S. Sundaram Pillai v. V.R. after discussing the law regarding general principles of construction of a proviso and main purport and parameters of a proviso held in Paragraph No.43 as under:- “43. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes: (1) qualifying or excepting certain provisions from the main enactment: (2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable: (3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and

(4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.”

16. The Supreme Court in S. Sundaram (supra) relied on the decision of Hiralal Rattanlal v. State of U.P. 8, wherein in Paragraph No.22 it has been held as under:- “… Ordinarily a proviso to a section is intended to take out a part of the main section for special treatment. It is not expected to enlarge the scope of the main section. But cases have arisen in which this Court has held that despite the fact that a provision is called proviso, it is really a separate provision and the so-called proviso has substantially altered the main section. …”

17. Thus, if Sub-Section (2) of Section 23 read with the second proviso to the same is considered on the touchstone of the above parameters, then it is clear that the said proviso is in fact a separate provision and has substantially altered the main provision i.e. Sub- Section (2) of Section 23. It is clear that substantive provision of Sub- Section (2) of Section 23 is subject to the mandatory provision as contemplated by second proviso. Thus, although Sub-Section (2) of Section 23 gives unqualified right to the tenant who has carried out the tenantable repairs to deduct the expenses of such repairs from the rent or otherwise recover the same from the landlord, the same can be to the extent of only one-fourth of the rent payable by the tenant for that year. Thus, the submissions raised by Mr. M. L. Patil, learned Counsel on behalf of the Respondents cannot be accepted. In this case, it is very clear that unqualified right given to the tenant of deducting or recovering the amount of expenses incurred for such repairs is qualified by the second proviso i.e. the said deduction or recovery shall not exceed one-fourth of the rent payable by the tenant for that year.

18. The Supreme Court in the decision of Kesho Ram and Co. v. Union of India 9, while discussing the object of rent control legislation observed that the object of rent control legislation is to safeguard the interest of the tenants against their exploitations by landlords. It has been observed that the paramount object of any rent control legislation is to safeguard the interest of tenants against their exploitation by landlords. After the Second World War there was movement of population from rural areas to urban areas as a result of which the problem of accommodation became acute in cities. Landlords of the buildings took full advantage of the situation and they charged exorbitant rent from tenants and very often evicted them by terminating tenancy under the provisions of the Transfer of Property Act, 1882. The tenants were helpless as the suits once filed by the landlord after terminating the tenancy were bound to succeed. The legislatures of different States took cognizance of the situation and enacted rent control legislations providing safeguards for tenants by making provisions for fixation of reasonable rent and also placing restrictions on the landlords’ right to evict tenants. Generally the rent control legislation of various States exclude the jurisdiction of Civil Courts to entertain a suit or pass a decree of eviction against a tenant; instead the jurisdiction to evict a tenant is conferred on Rent Controller or some designated authority and the statutory grounds for eviction of a tenant have been laid down.

19. In Liaq Ahmed v. Habeeb-Ur-Rehman 10, while tracing the history of rent control legislation in the country it was observed that the history of legislation regarding rent controls in the country would show that the Rent Acts were enacted to overcome the difficulties arising out of the scarcity of accommodation which arose primarily due to growth of industrialisation and commercialisation and inflow of population to the urban areas. Such legislations were initially confined to big cities like Bombay, Calcutta and Rangoon but their jurisdiction was gradually extended to other areas in the country. Because of scarcity of accommodation and gradual rise in rents due to appreciation of the value of urban properties, the landlords were found to be in a position to exploit the situation for their unjustified personal gains which were consequently detrimental to the helpless tenants who were subjected to uncalled for litigation for eviction. It thus became imperative for the legislature to intervene to protect the tenants against harassment and exploitation by the landlords for which appropriate legislations came to be passed by almost all the States and Union Territories in the country with the paramount object of essentially safeguarding the interest of tenants and for their benefit.

20. In this background of the matter, it is required to be noted that as per Section 7 of the Bombay Rent Act the landlord is prohibited from charging the rent in excess of the standard rent. Standard rent is defined under Section 5(10) of the Bombay Rent Act as the rent at which the premises were let on the first day of September, 1940 or the rent at which they were first let. Thus, the rent is statutorily fixed and there is prohibition in the increase in rent. Thus, it is clear that the return on the investement made by the landlord on the building or the premises which are given on rent to the tenant or various tenants is very meagre. Thus, the right given under Sub-Section (2) of Section 23 to the tenant of deduction or recovery of the amount incurred for repairs and the provision made by second proviso to Sub-Section (2) of Section 23 that the same can be deducted or recovered only to the extent of one-fourth of the rent payable in a year, clearly shows that these provisions are made to balance the competing interest of the landlords and of the Tenants. Thus, the submission of Mr. M. L. Patil, learned Counsel, that the unqualified right given to the tenant under Sub- Section (2) of Section 23 cannot be curtailed by the proviso, cannot be accepted.

21. It is the further submission of Mr. M. L. Patil, learned Counsel that in view of change of circumstances and as the expenses for repairs have increased substantially and therefore Section 23 has to be interpreted by holding that the second proviso will not curtail the unqualified right given to the tenant under Sub-Section (2) of Section 23 of deduction or recovery of the expenses incurred for repairs and the said amount is required to be recovered at one time. It is true that as per the settled legal position with the passage of time and with the consequent change of circumstances the continued operation of an Act which was valid when enacted may become arbitrary and unreasonable. However, it is required to be noted that the Maharashtra Rent Control Act, 1999 (“Maharashtra Rent Act”) came into effect w.e.f. 31st March 2000 by which inter alia Bombay Rent Act is repealed. As per Section 10 of the Maharashtra Rent Act, it shall not be lawful or receive on account of rent, for any premises, any increases above the standard rent and permitted increases. Standard rent is defined under Section 7(14) of the Maharashtra Rent Act. Thus, the rent is statutorily fixed. In the Maharashtra Rent Act various provisions are made for increase in the rent. Thus, the increase in the rent is permitted to the extent as provided by various provisions of the Maharashtra Rent Act. Thus, it is clear that the return on the investement made by the landlord on the building or the premises which are given on rent to the tenant or various tenants is very meagre compared to the market rent, even after the enactment of the Maharashtra Rent Act. In fact, it is required to be noted that identical provision as contained in Section 23 of the Bombay Rent Act is made in Section 14 of the Maharashtra Rent Act. Thus, after passage of about more than 50 years of the Bombay Rent Act, similar provision is made in the Maharashtra Rent Act. Thus, even the said contention of Mr. M. L. Patil, learned Counsel that in view of change of circumstances, Section 23 of the Bombay Rent Act, is required to be interpreted by holding that the unqualified right of the tenant to deduct or recover the rent will not be affected by second proviso to Sub-Section (2) of Section 23 cannot be accepted.

22. Mr. Drupad Patil, learned Amicus Curiae has pointed out decision of the Gujarat High Court in Nayak Kalidas Motiram (supra). The relevant Paragraphs of the said decision are Paragraph Nos.11 and 12 and are reproduced herein below for ready reference:- “11. A plain wording of this sub-section (2) of Section 23 of the Act, leaves no doubt that if the tenant, after the landlord neglects to make any repairs, which he is bound to make under sub-section (1), within a reasonable time after a notice is served upon the landlord, the tenant himself is entitled to make those repairs. He is further entitled to deduct the expenses of such repairs from the rent. He is also entitled to recover them from the landlord otherwise by deducting from the rent. There is no limitation placed in this sub-section either for deduction or for recovery of such expenses from the landlord. On the contrary, the lessee (tenant) is entitled to deduct the expenses of such repairs from the rent or otherwise recover them from the landlord. It means that the entire amount is liable to be deducted from the rent or it could also be recovered otherwise than by the deduction from the landlord. That liability is not limited to any extent. The second proviso, on which reliance has been placed by the learned District Judge as well as by Mr. Jani, appearing for the opponents before me, reads: “Provided further that the amount so deducted or recoverable in any year shall not exceed one-fourth of the rent payable by the tenant for that year, excluding therefrom one-fourth of the proportionate taxes in respect of his premises payable to a local authority for that year.”

12. This proviso only indicates that the entire amount of expenses incurred cannot be deducted from the rent of one year at a time as well as the entire amount of expenses incurred cannot be at a time recovered from the landlord otherwise than by the mode of deduction. The reason for making such a proviso is obvious If the entire amount is deducted at one time from the rent, or the entire amount is made recoverable from the landlord otherwise than by the mode of deduction, then the landlord would be placed in a very difficult position and the landlord may not be in a position to pay the amount at one time. That is why the legislature has, by this proviso, indicated that deduction in any one year will be only to the extent of one -fourth of the amount payable by the tenant for that year and that too, after excluding therefrom one-fourth of the proportionate taxes in respect of the premises payable to the local authority for that year. Similar will be the position in case the tenant does not want to deduct but wants to recover otherwise than by resorting to the mode of deduction, the tenant will not be entitled to recover the entire amount of the expenses incurred by him at one time. The amount recoverable from the landlord every year shall have to be fixed, taking into account one-fourth of the amount payable to the tenant for a particuler year excluding therefrom one-fourth of the proportionate taxes in respect of his premises payable to the local authority for that year. ”

23. Thus, what has been held by the Gujarat High Court is that there is no limitation placed in Sub-Section (2) of Section 23 either for deduction or for recovery of such expenses from the landlord. The proviso only indicates that the entire amount of expenses incurred cannot be deducted from the rent of one year at a time, as well as the entire amount of expenses incurred cannot be at the time recovered from the landlord otherwise than by the limit prescribed in the second proviso.

24. Thus, it is clear that although Sub-Section (2) of Section 23 gives right of deducting entire expenses required for repairs or recovering the entire expenses from the landlord, by the second proviso to Sub-Section (2) of Section 23, a cap is put on such a deduction or recovery and it is specified that the same shall not exceed one-fourth of the rent payable by the tenant for that year.

25. If the submission made by Mr. Divekar, learned Counsel appearing for the Petitioner is accepted that a Suit can be filed for recovery of the one-fourth of the rent of one year at a time and not for recovery of the entire amount the same will be contrary to the right given to the Tenant under Sub-Section (2) of Section 23 and the same will amount to the multiplicity of the proceedings. The same will then nullify the right given to the tenant under Sub-Section (2) of Section

23. In any case, the determination about the actual expenses the tenant was required to incur on the repairs is required to be determined only once. The second proviso to Sub-Section (2) of Section 23 only provides that such deduction or recovery can be to the extent of one-fourth of the rent. Thus, after determining the amount incurred towards repairs the Court has to pass decree in consonance with the second proviso to Sub-

26. Thus, Mr. Dhrupad Patil, learned Amicus Curiae is right in contending that what is to be recovered is the entire expenses and only cap is put on the actual recovery or deduction of entire expenses by providing that the said amount shall not exceed one-fourth of the rent payable by the tenant for that year.

27. It is clear that the expression “for that year” provided in the second proviso to Sub-Section (2) of Section 23 is rent payable by the tenant for the year in which the same is to be deducted or recovered and not the rent payable by the tenant of the year in which the repairs are made. Thus, insofar as the decree which has been passed by the learned Trial Court directing payment of Rs.21,178.15/- alongwith interest at the rate of 15% per annum the same is in accordance with Sub-Section (2) of Section 23 of the Bombay Rent Act. However, the said amount is to be recovered in accordance with the second proviso to Sub-Section (2) of Section 23. Thus, to that extent the decree passed by the learned Trial Court as confirmed by the learned Appellate Court requires modification.

28. In view of above discussion, the point which requires consideration is the relief to which the Petitioner is entitled. Thus, hereinafter Point No.III will be considered.

POINT NO.III Whether any interference is warranted in the impugned Judgments under jurisdiction of this Court under Article 227 of the Constitution of India?

29. Mr. M. L. Patil, learned Counsel appearing for the Respondents submitted that it is the duty of the landlord to keep the tenanted premises in good and tenantable condition and the same is a statutory duty of the landlord. It is clear that in this case the Petitioner landlord has failed to perform his statutory duty. Thus Sub-Section (2) of Section 23 makes it very clear that if the landlord commits default in performing his statutory duty then tenant is given right to carry out the repairs after giving notice of 15 days to the landlord and deduct the expenses of such repairs or to recover the same in accordance with the scheme of the Section 23.

30. However, it is required to be noted that in this particular case landlord has not only failed to perform his statutory duty but when the tenant, after following the procedure as contemplated under Section 23 of the Bombay Rent Act, started carrying out the tenantable repairs at his own expenses, the landlord obstructed the said repair work and therefore the Respondent/Tenant was constrained to file Regular Civil Suit No.246 of 1987 for injunction and in that Suit the Petitioner landlord was restrained from obstructing the tenant from carrying out the repair work.

31. In view of the said conduct of the Petitioner/Landlord, Mr. M. L. Patil, learned Counsel for the Respondent has rightly relied on the decision of the Supreme Court in Ashok Kapil v. Sana Ullah 11 and more particularly on Paragraph No.7 of the same, which reads as under:- “ 7. If the crucial date is the date of allotment order, the structure was not a building as defined in the Act. But can the respondent be assisted by a court of law to take advantage of the mischief committed by him? The maxim “Nullas commodum capere potest de injuria sua propria” (No man can take advantage of his own wrong) is one of the salient tenets of equity. Hence, in the normal course, the respondent cannot secure the assitance of a court of law for enjoying the fruit of his own wrong.”

32. Mr. M. L. Patil, learned Counsel has also relied on a Division Bench decision of this Court in Yash Engineers (supra) and more particularly on Paragraph No.7 of the same, which reads as under:- “7. Learned Senior Counsel appearing for the petitioner has relied on the decision in Devendra Kumar v. State of Uttaranchal, [Civil Appeal No. 1155 of 2006 decided by Apex Court on 29.07.2013], wherein has been held that:- “23. More so, if the initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. "Subla Fundamento Credit opus"- a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent Court. In such a case the legal maxim Nullus Commodum Capere Potest De Injuria Sua Propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, triat or investigation, (Vide: Union of India v. Maj. Gen. Madan Lal Yadav, (1996) 4 SCC 127: AIR 1996 SC 1340; and Lily Thomas v. Union of India, (2000) 6 SCC 224: AIR 2000 SC 1650). Nor can a person claim any right arising out of his own wrong doing. (Juri Ex Injuria Non Oritur)." Further, he relies on the decision in Union of India v. Major General Madan Lal Yadav (Retd.), (1996) 4 SCC 127, wherein it has been held that:- "… It was noted therein that a man shall not take advantage of his own wrong to gain the favourable interpretation of the law. In support thereof, the author has placed reliance on another maxim frustra legis auxilium invocat quaerit qui in legem committit. He relies on Perry v. Fitzhowe, [[L.R.] 8 Q.B. 757:15 QB 239]. At p.192, it is stated that if a man be bound to appear on a certain day, and before that day the obligee puts him in prison, the bond is vold. At p.193, it is stated that "it is moreover a sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned". At p.195, it is further stated that "a wrong doer ought not to be permitted to make a profit out of his own wrong". At p.199 it is observed that "the rule applies to the extent of undoing the advantage gained where that can be done and not to the extent of taking away a right previously possessed." ”

33. Mr. M. L. Patil, learned Counsel has also relied on the decision of Prabhudas Narayan Gedam (supra) and more particularly on Paragraph No.9(e) of the same, which reads as under:- “(e). Merely a wrong decision may not be a ground for the exercise of jurisdiction under Article 227 unless the wrong is referable to grave dereliction of duties and flagrant abuse of power by the subordinate courts or Tribunals resulting in grave injustice to any party (See Estralla Rubber vs. Dass estate, (2001) 8 SCC 97 and (Quseph Mathai vs. M. Abdul Khadir, (2002) 1 SCC 319). In the last mentioned case, i.e. Quseph Mathai’s case, their Lordships have taken note of the importance of restricting exercise of power under Article 227 and in paragraph 7 have made the following observations: “Extraordinary powers appear to have been exercised in a routine manner as if the power under Article 227 of the Constitution was the extension of powers conferred upon a litigant under a specific statute. Such an approach and interpretation is unwarranted. By adopting such an approach some High Courts have assumed jurisdiction even in matters to which the legislature had assigned finality under the specific statutes. Liberal assumption of powers without reference to the facts of the case and the corresponding hardship to be suffered by a litigant has unnecessarily burdened the courts resulting in accumulation of arrears adversely affecting the attention of the court to the deserving cases pending before it.” ”

34. Thus, it is clear that one of the factor which is required to be taken into consideration while exercising jurisdiction under Article 227 of the Constitution of India is the conduct of the parties. In this particular case as noted herein above, Petitioner has himself failed to perform his statutory duty of keeping the tenanted premises in good and tenantable condition and it is very important to note that the landlord obstructed the tenant when the tenant was repairing the premises at his own cost and therefore the Respondent was required to file injunction Suit where the learned Trial Court granted injunction restraining the Petitioner from obstructing the repairs being carried out by the Respondent. In fact, the repairs were carried out under the police protection.

35. It is also required to be noted that a learned Single Judge by Order dated 9th October 2000, while admitting the Writ Petition has recorded that Petitioner have already paid an amount of Rs.25,000/pursuant to the impugned Judgments. The same is again reiterated in the Order dated 3rd May 2001 passed by this Court. Thus, it is clear that the Respondent has received an amount of Rs.25,000/- towards the decreetal amount. Thus, in the facts and circumstances of this case, the Respondent is not entitled to recover any further amount. Accordingly, following order is passed: ORDER i. The Judgment and Decree of the learned Trial Court dated 31st March 1947 passed in Regular Civil Suit No.225 of 1989 as confirmed by the learned Appellate Court of directing payment by the Petitioner to the Respondent of an amount of Rs.21,178.15/- with interest at the rate of 15% per annum is maintained, subject to the modification that the same is to be recovered in accordance with the second proviso to Subii. However, in the facts and circumstances of this case and in view of the conduct of the Petitioner as set out herein above and as the Petitioner has already paid an amount of Rs.25,000/- to the Respondent, it is specifically made clear that the said decree is satisfied and no further amount is required to be paid by the Petitioner to the Respondent and the Petitioner is also not entitled to refund of any amount.

36. Accordingly, the Writ Petition is disposed of, subject to above, with no order as to costs. [MADHAV J. JAMDAR, J.]