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Sitaram Tensukhrai Lekaria Vs. V.R. Bhoware and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 919 of 1972
Judge
Reported inAIR1973Bom103; ILR1973Bom1227; 1973MhLJ15
ActsC.P. and Berar Letting of Houses and Rent Control Order, 1949 - Sections 23
AppellantSitaram Tensukhrai Lekaria
RespondentV.R. Bhoware and anr.
Appellant AdvocateM.S. Choudhari, Advs.
Respondent AdvocateM.M. Qazi, Asst. Goveronment Pleader
Excerpt:
.....out difference of three types of occupations such as (i) compulsive letting to named person, (ii) letting by landlord on his own and (iii) personal occupation by the landlord. the purpose of proviso to sub-clause (1) is clearly enabling and permissive in its effect. thus self-occupation of premises as well its letting are both distinctly contemplated and covered by clause 22 of the order. to such an enquiry the limitation does not clearly apply nor can by force of any principle be applied. he has stated and it cannot be disputed that there are members who will be shortly married, his kitchen is housed in an improvised structure of tin-shed and the law is well settled that the need of the landlord is not to be tested by the notions available to the authorities. the collector shall..........out difference of three types of occupations such as (i) compulsive letting to named person, (ii) letting by landlord on his own and (iii) personal occupation by the landlord. if the order of the first kind has to have effect is has in built limitation. after that period landlord is free to have his choice of tenant unregulated and uncontrolled by the provisions of sub-clause (1). that however, does not change the character of accommodation. whether it is let to a named tenant or to a choice lessee the occupation and its enjoyment for the purpose of the order is premises available for letting or tenanted. this distinction has to be drawn while considering the scheme of the order between owner-occupied premises and tenant-occupied-premises. the purpose of proviso to sub-clause (1) is.....
Judgment:
ORDER

1. This petition is directed against an order made by the Collector, Wardha, directing the petitioner under Clause 23 (1) of the C. P. & Berar Letting of Houses and Rent Control Order 1949, to let the premises to respondent No.1. The said respondent has not appeared in these proceedings. However, Collector is represented by the learned Assistant Government Pleader.

2. The brief facts upon which the relief is sought under Article 227 of the Constitution are that on June 10, 1972, the present accommodation became vacant and, as required by the provisions of the Order, a due intimation was given on June 12, 1972 by the present applicant-landlord. He intimated that he needed the premises for bona fide personal occupation. It appears that the landlord also filed some separate statement pointing out that the present space available to him was insufficient for the requirements of his family which was of 12 members and, therefore, he did not wish to let out the same to anybody. It was specifically pointed out that his son was to be married shortly and he will also need a separate accommodation. Thus looking to the needs of the family he sought that the premises should not be let out to any one and should be allowed to be occupied by the landlord.

3. Some report appears to have been made to the Collector upon which, without hearing the landlord, on 27-6-1972 the Collector made an order that the application may be rejected. After this, the impugned order dated 29-6-1972 was served on 3-7-1972 on the landlord, directing allotment in favour of respondent No.1 Mr.Bhoware, a clerk in Collectorate Wardha. Landlord appears to have moved by the review petition pointing out that the order was unjust, for he has a large family and his need is genuine. He also pointed out that a small tin-shed for kitchen has been erected by him to anyhow manage his residential needs. This was itself sufficient to point out to the authorities that the present accommodation was insufficient to the landlord. However, the Collector Wardha, on 25th July 1972 passed an order rejecting the application. Meanwhile a memo was sent to the landlord that in case possession is not given it will be taken through police. Because the application thus stood rejected. It appears, the landlord per force handed over the possession to respondent No.1.

4. The provisions of clause 23 of the Rent Control Order under which these proceedings were initiated before the Collector, are in three parts. Sub-clause (1) deals with the power to make an order in favour of a person described in that sub-clause, which may be termed as compulsory letting out of the premises. By sub-clause (2), a time-restriction is provided within which alone such an order has to be made and served upon the landlord concerned. Limitation is compulsive and orders as to letting can be validly made and served within the period prescribed. Advisedly fifteen days time is provided as the orders that enable compulsive indictment of tenants must be made speedily and the landlord whose property is subjected to this process should not suffer by mere delay. There appears to be clear public policy to support the time prescription.

5. However the provisions of sub-clause (1) of clause 23, have a proviso. That proviso enjoins upon the Collector to hold an enquiry as to whether such a house if so claimed is needed by a landlord for his personal use. This enquiry and finding need not be governed in a given case by the time schedule of sub-clause (2). That sub-clause clearly enable the landlord to let the vacant house to any person if no order is made and served on him within the period specified under sub-clause (1). What is permitted by express term is letting out to any other person and not personal occupation.

6. Reading of the whole of the clause 23 together shows that if compulsive letting is to be resorted to under sub-clause (1) of clause 23, then the enquiry must be complete and the order must be made within the period indicated by that Clause. If the period prescribed is over, a different right ensures in favour of the landlord, in that he is free to let out the premises to any one. The provisions of this clause clearly bring out difference of three types of occupations such as (I) compulsive letting to named person, (ii) letting by landlord on his own and (iii) personal occupation by the landlord. If the order of the first kind has to have effect is has in built limitation. After that period landlord is free to have his choice of tenant unregulated and uncontrolled by the provisions of sub-clause (1). That however, does not change the character of accommodation. Whether it is let to a named tenant or to a choice lessee the occupation and its enjoyment for the purpose of the order is premises available for letting or tenanted. This distinction has to be drawn while considering the scheme of the order between owner-occupied premises and tenant-occupied-premises. The purpose of proviso to sub-clause (1) is clearly enabling and permissive in its effect. An order made under that power changes the character of occupation. It no more remains a house available for letting or for enjoyment of lessee. In a given case both the enquiry contemplated by the proviso and sub-clause (1) may be completed within period prescribed; but that does not affect the enquiry under the proviso. Limitation prescribed by sub-clause (2) does not plainly control the enquiry under the proviso. Though interest of justice require that such enquiry must be completed expeditiously so that landlord may not suffer, that does not mean that landlord can occupy the premises once the period of fifteen days is over. If policy underlying these provisions has to have full effect then his right to convert such premises to his own use must be regulated by the enquiry under the proviso. He may be free to let out but may not himself occupy the premises, only because no order is made within fifteen days. It is, therefore, clear that only because the period is over under sub-clause (2), the landlord is not enabled to enter upon the premises and put it to his own use.

7. This construction of Clause 23 finds support even from clause 22 of the order. That clause enjoins an obligation upon every landlord of vacant houses to intimate in the prescribed form to the Deputy Commissioner the information as required by clause 22 (1) (a) and (b). That takes in two types of intimations viz. (I) whether the house would become available for the occupation of the landlord or (ii) whether it would be available for any other occupation. These are by themselves two different modes of enjoyment of property and are indicative as such. This Clause is followed by an injunction against letting or occupying except in accordance with Clause 23. Sub-clause (2) of clause 22 is ample to indicate that provisions of sub-clause (1) are mandatory. Thus self-occupation of premises as well its letting are both distinctly contemplated and covered by Clause 22 of the Order.

8. This distinction if applied to the terms of Clause 23 (1), its proviso and the terms of Clause 23 (2) of the Order would indicate that what is permitted beyond the period prescribed is merely letting and not self-occupation. Enquiry under proviso is neither inhibited nor frozen and must be held to find out the need of the landlord. To such an enquiry the limitation does not clearly apply nor can by force of any principle be applied.

9. In the present case, however, the provisions of clause 23 have not been kept in mind by the authorities and the order is made in favour of the respondent No.1. The need of the landlord prima facie appears to be genuine. He has a growing family of 12 members. He has stated and it cannot be disputed that there are members who will be shortly married, his kitchen is housed in an improvised structure of tin-shed and the law is well settled that the need of the landlord is not to be tested by the notions available to the authorities. It is his personal need and the law upon such need should be liberally applied. There is ample material on record that the family of the landlord is a large and growing once and there was material to sustain his claim. Even at present his accommodation is insufficient and he has to have improvised kitchen for his use. It was, therefore, necessary for the Collector to apply his mind as to the facts and circumstances and needs of the landlord properly and keeping in view the principles which are germane in this regard test the claim for bona fide need of the landlord. That has not been done. In fact the Collector has concluded his judgment upon a report itself, without applying his independent mind to the circumstances in which the landlord was claiming release. Had he done so, presumably he might have arrived at a different conclusion.

10. Under the circumstances, the order made by the Collector, assuming that it is so made in favour of the respondent No.1 as reflected in the communication dated 29-6-1972 served on the landlord on 3-7-1972, so also the order made on the review application on 25-7-1972, are hereby set aside. The matter is remitted back to the Collector for decision keeping in view the observations made hereinabove. The Collector shall dispose of this matter within six weeks and find out the genuineness or otherwise of the need of the landlord and if satisfied restore the possession to him. The landlord shall appear before the Collector on November 3, 1972.

11. The petition is allowed but there will be no order as to costs.

12. Petition allowed.


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