TMI Blog1996 (10) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay. The said partners constructed a building on the said plot known as Khanna Construction House. The appellant claims tenancy in respect of a room in the said premises under the said partners where he is running a business named and styled as Flora Chinese Restaurant. In view of disputes arising between the partners of M/s Khanna Construction House, one of the partners filed a suit in the ordinary original civil jurisdiction of the Bombay High Court being Suit No. 1010 of 1973 against other partners for dissolution of the firm and distribution of assets including the building Khanna Construction House. The appellant is not a party in the said suit. Some time 1973, the Bombay High Court appointed a Receiver in the said suit in respect of the assets of the partnership firm including the said building Khanna Construction House. The appellant's case is that the landlords of the building granted tenancy to Abdul Rehman Noor Mohammad and others in respect of ground floor premises where the said tenants started a restaurant in the name of Flora Restaurant, Some time in 1965, the said business together with the goodwill and benefit of tenancy rights was taken over by J.S. Khan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1995, after a lapse of about 16 years, the landlords thought of a short cut measure to evict the appellant from the said premises without filing an ejectment suit in the Court of Small Causes and in furtherance of such measure, induced the court receiver to submit a report to High Court in the pending suit making complaint against the appellant of construction of said lofts ad the said two stand type boxes on the outer wall for storage of gas cylinders and air conditioning units and the receiver prayed for a direction from the High Court against the appellant for removal of the said lofts and the said box type stands. On August 22, 1995, the said receiver submitted a further report in the said suit alleging therein that appellant had a permit room in the said restaurant where liquor was being served and such activity was illegal and contrary to the terms of lease granted by Greater Bombay Municipal Corporation in favour of the landlords prohibiting running a bar in the premises built on the leasehold land. The receiver also sought for a direction from the High Court appellant for stopping the said illegal activity of using the premises as a permit room and serving liquor in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of rights and obligations inter-se parties and appellant not being party to the same. his rights qua tenant was not required to be adjudicated in the said suit and, in any event, his right as a tenant was protected under the Bombay Rents Act. Although the appellant had not resorted to any act for which his tenancy could be terminated and he could be evicted from the said premises under his occupation as a tenant, even if it is assumed that the appellant was liable to be evicted from the said premises, such eviction could only be effected by institution of appropriate suit for eviction of the appellant in the Small Causes Court under the Bombay Rents Act on permissible grounds under the said Act. It was quite open to the High Court to grant permission to the receiver for institution of suit for eviction of the appellant after being prima facie satisfied on materials submitted before the Court that a case for instituting suit for eviction was justified. The appellant also contended that the receiver is not entitled to bypass the statutory requirement of evicting a tenant only in due process of law by initiating eviction proceeding under the Bombay Rents Act in the appropriate cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of which receiver was appointed by annulling all incumbrance and rights of third parties receiver or, for that matter of the court appointing the receiver to maintain the properties in suit may be well appreciated. But being impelled by such anxiety, neither the receiver nor the court can affect the tenant's rights in the suit property well protected by the statute governing the relationship between a landlord and tenant. Mr. Salve has submitted that even prima facie there was no material on the basis of which the High Court could come to the finding that the appellant has altered the tenants premises either before or after the appointment of receiver and during the continuance of the receivership, in such a manner by making permanent constructions in the tenanted premises which had either materially altered the nature and character of the said premises or have endangered the safety and security of the same. Mr. Salve has submitted that admittedly the tenanted premises was being used as a restaurant for a very long time. The appellant became the tenant when Father Perriara had transferred the tenancy right together with goodwill of the restaurant business as an on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded in a summary manner in disposing of the reports of the receiver, more so, when the valuable tenancy right of a third party like the appellant was instrinsically involved in the exercise of giving directions affecting the interest of the tenant and nullifying the statutory protection of a tenant. Mr. Save has also submitted that landlords and the receiver were well aware of the existence of such lofts and box type constructions had in June 1979, the landlords made demands for extra payment at the rate of ₹ 2/- per sq.ft. for such construction measuring 60 sq.ft. in all and also additional premium on account of storing gas cylinders by the appellant. The appellant's Advocate's letter dated June 25, 1979 sent to the receiver clearly indicates the factum of landlords and receiver's awareness of the existence of the said lofts and the box type stands and the appellant to pay additional sum of ₹ 120/- and additional amount on account of premium. Mr. Salve has submitted that the landlords and the receiver were fully aware of the legal position of the landlords vis-a-vis a tenant protected by the Bombay Rents Act and a decision was taken long back to inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of reports filed by the receiver. The impugned order is not only illegal but manifestly unjust and improper resulting in serious miscarriage of justice. It has been contended by Mr. Salve that the receiver who merely holds dejure possession of the property for the benefit of parties to the suit without the property being vested in the receiver, has no higher rights than the landlords themselves. If there was no receiver, the remedy of the landlords was to file a suit against the tenant in the Court of Small Causes being the appropriate court under the Bombay Rents Act. Such position is not changed by mere appointment of a court receiver in a suit inter-se the landlords for distribution of properties in which the tenant is not a party. Mr. Salve has submitted that if such course of action against the tenant is permitted, it would be easy for designing landlords to circumvent the provisions of Rent Act by filing a suit amongst the landlords and after obtaining an order for receiver in such suit even by consent, and then, with the instrumentality of the receiver to obtain orders from Court in the said suit against the tenant in complete disregard of the statutory protecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaceful possession of the tenanted premises, he has no right to destroy such premises or indulge in such activities which are likely to seriously affect the safety and security of the house. Similarly, he is not entitled to indulge in activities which will materially affect the nature and character of the tenanted premises and is likely to bring about a situation by which the superior right of the landlord in the premises will be in jeopardy. Such action being per se illegal and unauthorised and beyond the usual rights of a lessee vis-a- vis the lessor, the lessor or landlord has not only right to take recourse to eviction of the lessee or tenant by bringing an action for eviction in accordance with the provisions of the relevant tenancy act. If a landlord is entitled to take suitable action for preventing a tenant in indulging in unlawful activities in respect of tenanted premises, the receiver has certainly such right. The receiver has a paramount duty to draw the attention of the Court appointing the receiver, of such unlawful activities by the tenant and to seek appropriate direction by way of remedial measures to prevent such activities. Mr. Nariman has submitted that in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve bendente lite. Despite appointment of a receiver, rights and obligations of third parties in respect of properties in custodia legis remain unaffected, where a receiver appointed by the Court is in actual physical possession of a property, no one, whoever he may be, can disturb the possession of the receiver and the Court may hold such person who disturbs receiver's possession as guilty for committing contempt of court. A man, who thinks he has a right paramount to that of receiver, must, before he takes any step of his own motion, apply to the Court for leave to assert his right. Grant of leave in such case is the rule and refusal to grant leave is exception (Everest Coal Company Pvt. Ltd. v. State of Bihar and others AIR 1977 SC2304). The rule that receiver's possession will not be disturbed without leave of the Court is, however, not applicable if the receiver is not in actual physical possession of the property. Since the properties in a suit is being managed, maintained and administered by the Court through receiver, the receiver is under an obligation to take all reasonable steps for preservation and maintenance of such properties. If for such preservation, acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he right of the tenant protected, controlled or regulated by the Rent Act on the score of expediency in passing some order or direction for the maintenance and preservation of the property in custodia legis. It is to be indicated that though a tenant of property in custodia legis cannot be deprived of statutory protection of the rights of tenant vis-a-vis landlord, a tenant cannot claim protection of any assumed right not flowing from the incidence of tenancy. For example, if a tenant starts making some unauthorised construction in the tenanted premises threatening safety and security of the tenanted premises or of the building as a whole, the landlord certainly prevent such activities by the tenant by bringing appropriate action in Court seeking prohibitory and mandatory order against the tenant without seeking his eviction. Such right to seek eviction under the appropriate tenancy law, if permitted. In our view, if a tenant resorts to unauthorised and illegal activity in respect of tenanted premises when such premises is in custodia legis, for prevention of such illegal and unauthorised activities not consistent with any right flowing from the incidence of his tenancy, it m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the receiver to a regular suit for adjudication of the dispute concerning third party will depend on the nature of dispute and the defence claimed by the third party. In the facts of the case, however, it appears to us that the appellant tenant has come out with a specific case that the structures in question were there before his induction as a tenant. In support of such contention, a number of supporting affidavits have been filed. The appellant has also contended that the landlords and the receiver were fully aware of the existence of the structure long back, and according to the appellant, at one point of time an agreement was reached between the landlords and the appellant for payment of a sum of ₹ 120/- for such construction covering about 60 sq. ft. besides further amount on account of additional premium to be paid by the landlords and an Advocate's letter was sent to the receiver apprising the receiver of such understanding between the parties. The appellant has also claimed right to operate in a portion of the tenanted premises a permit room for serving liquor to the customers of the hotel after obtaining license from the statutory authority on the footing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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