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Laxmikant Bhaskar Sabnis Vs. Vinayakro Deorao Deshmukh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 133 of 1962
Judge
Reported in(1964)66BOMLR182; 1964MhLJ202
AppellantLaxmikant Bhaskar Sabnis
RespondentVinayakro Deorao Deshmukh
DispositionPetition dismissed
Excerpt:
.....cannot be made without the tenant vacating the house which must necessarily mean, the house or portion of the house in respect of which repairs or alterations have to be made. if this clause is construed as requiring as a condition precedent that the landlord must establish that repairs and alterations cannot be made without the tenant vacating the whole of the house, we must hold that on the finding of the rent control appellate authority the petition must fail, because it has not been established by the petitioner that it is necessary for the tenant to vacate the whole of the premises for effecting the repairs or alterations of the out-houses. that being the requirement of the rent control order, we fail to see what difficulty there can arise merely because, in the first..........cannot be made without the tenant vacating the house which must necessarily mean, the house or portion of the house in respect of which repairs or alterations have to be made. if this clause is construed as requiring as a condition precedent that the landlord must establish that repairs and alterations cannot be made without the tenant vacating the whole of the house, we must hold that on the finding of the rent control appellate authority the petition must fail, because it has not been established by the petitioner that it is necessary for the tenant to vacate the whole of the premises for effecting the repairs or alterations of the out-houses. but we do not prefer to interpret the item, (vii) of sub-clause (3) of clause 13 in the manner urged by the learned counsel for the.....
Judgment:

Abhyankar, J.

1. This is a landlord's petition under Article 227 of the Constitution challenging' the appellate order of the rent control authority in proceedings commenced by the petitioner for permission to terminate the tenancy of opponent No. 1 Vinayakrao in respect of certain premises in the town of Amravati.

2. The permission was sought under the provisions of Clause 13(3)(vii) of the C.P. & Berar Letting of Houses and Kent Control Order, 1949, on the ground that the landlord desires to make essential repairs and alterations which cannot be made without the tenant vacating the whole of the premises. The Rent Controller granted such permission in respect of the whole house. Against this order the tenant filed an appeal before the Appellate Authority.

3. Before the Appellate Authority it seems to have been contended on behalf of the tenant that it was only the out-houses of the tenement, i.e. two rooms, which were separate from the main building, which needed repairs. These out-houses admittedly were about 5 or 6 feet away from the main building. Thus the part of the tenement which is the main building did not need any repairs or reconstruction. The Appellate Authority, therefore, came to the conclusion that permission could not be granted to terminate the tenancy in respect of the entire tenement. As it was only the out-houses which were separate from the main building which required reconstruction or repairs, the only premises which need be vacated were the two rooms comprising1 these out-houses. It was held that it was not possible to effect repairs or reconstruction of the out-houses unless the rooms were vacated by the tenant. But that was all that was necessary to be done by the tenant, viz. to vacate the out-houses. It was urged on behalf of the landlord even before the Appellate Authority that permission has to be granted in respect of the entire lease-hold. The Appellate Authority did not accept this contention, taking the view that the word 'house' as denned in Sub-clause (5) of Clause 2 of the Order means a building or part of a building: As the landlord needed essential repairs or alterations to be made with respect to a part of a building, permission will have to be granted to give notice to determine the lease in respect of that part of the tenement only. As the entire tenement need not be vacated by the tenant, the Appellate Authority modified the order of the Rent Controller and granted permission to the landlord to give notice to determine the lease in respect of the out-houses which needed repairs.

4. The petitioner challenge's this order relying mainly on the general law between landlord and tenant under which a lease has to be determined by notice covering the whole of the premises comprising the tenement or demise and not only a portion of the tenement. In support of this contention the learned Counsel relied on an earlier decision of the Nagpur High Court reported in Pandit Sakharampant v. K.L. Lodhi E.A.C. [1953] N.L.J. 235. In that case permission was sought to terminate the tenancy on the ground that the landlord needed to occupy the house for his own bona fide residence and in that context it was held that under the law it was open to the landlord to terminate the tenancy of the entire house and not a portion thereof; when the landlord's needs were genuine even as to the portion of the house the Rent Controller was bound to grant him permission to terminate the tenancy in the entire house.

5. It appears the matter was considered again by the same High Court and another Division Bench has taken the view that when a landlord needs only a portion of a house for his bona fide residence, permission can be given to terminate the tenancy with regard to that portion of the house alone. Gokuldas v. Babulal [1955] N.L.J. 716. It appears when the earlier decision was given, attention of the Court was not invited to a specific provision in Sub-clause (8) of Clause 13 of the Rent Control Order. Under that provision when a landlord applies to the Controller under item, (vi) of Sub-clause (3) of Clause 13, the Controller is required to inquire into the needs of the landlord, and if on inquiry the Controller is satisfied that the needs of the landlord will be met by the occupation of a portion of the house, he shall be given permission in respect of such portion only. In view of this specific provision in the Rent Control Order, it has been held by the Division Bench in Gokuldas's case that a tenancy can be terminated with respect to a portion of a tenement.

6. Now the clause under which the petitioner in the instant case has applied permits a Rent Controller to give permission to terminate tenancy when the landlord desires to make essential repairs or alterations which cannot be made without the tenant vacating the house. The condition that has to be satisfied by a landlord seeking permission under this clause is that the repairs required to be made or alterations or reconstructions cannot be made without the tenant vacating the house which must necessarily mean, the house or portion of the house in respect of which repairs or alterations have to be made. If this clause is construed as requiring as a condition precedent that the landlord must establish that repairs and alterations cannot be made without the tenant vacating the whole of the house, we must hold that on the finding of the rent control Appellate Authority the petition must fail, because it has not been established by the petitioner that it is necessary for the tenant to vacate the whole of the premises for effecting the repairs or alterations of the out-houses. But we do not prefer to interpret the item, (vii) of Sub-clause (3) of Clause 13 in the manner urged by the learned Counsel for the petitioner. Sub-clause (7) of Clause 13 is in the following terms:

Where the landlord has obtained possession of a house or portion thereof in pursuance of the permission granted by the Controller under Sub-clause (1) on the ground specified in item (vii) of Sub-clause (3), he shall, after the repairs or alterations have been made, restore possession of the house or portion thereof on the same conditions as before to the tenant who vacated it and shall not let the same to any other person or occupy it himself unless such tenant has waived in writing his claim to have such possession restored to him.

7. Thus Sub-clause (7) in terms refers to obtaining possession of the whole house or a portion thereof which must mean that a permission can be given by a Controller for vacating either the whole house, or a portion of the house, depending on whether essential repairs or alterations are to be made in respect of the whole house or a portion thereof and which cannot be made without the tenant vacating either the whole house or a portion thereof. We do not interpret this provision as meaning that even if essential repairs and alterations have to be made in respect of a portion of the house and such repairs or alterations cannot be made without vacating that portion of the house it is still necessary to require the tenant to vacate the whole of the house. It must be remembered that such an interpretation, far from advancing the purpose of the legislation, will defeat its provisions which are put on the statute book to give reasonable protection from unnecessary or uncalled for eviction of tenants from premises which are under the umbrella of the Act.

8. In our opinion, the general law as to the requirement of a tenancy being terminated with regard to the whole of the tenement or premises has been modified to a substantial extent because of the provisions of the Rent Control Order. This has been done in several ways, and one of the modifications that must be read in the respective rights of parties as landlord and tenant under the general law is that in certain circumstances it is permissible for the landlord to terminate tenancy in respect of a portion of the demised premises. Though this has been expressly so stated in the case of a permission granted under Clause 13(5)(vi) of the Kent Control Order, in Sub-clause (8) of Clause 13, we must read the same power even in granting permission under Clause 13(3)(vii) of the Rent Control Order. We, therefore, hold that it is permissible for a Rent Controller to grant permission for vacating a portion of the house when he finds that the landlord desires to make essential repairs or alterations to such portion and which repairs and alterations cannot be made without the tenant being required to vacate that portion of the house. As a necessary corollary to this power it must be held that on such a permission being given the landlord is entitled to terminate the tenancy with respect to a portion of the house in respect of which the Rent Controller finds a necessity requiring the tenant to vacate. We do not find also any difficulty in giving effect to such a provision, because each party is sufficiently protected by a provision in Sub-clause (7) of Clause 13 of the Rent Control Order. As soon as repairs or alterations have been made, the law requires the landlord to restore the possession of the house or a portion thereof, as the case may be, to the tenant. That being the requirement of the Rent Control Order, we fail to see what difficulty there can arise merely because, in the first instance, tenancy in respect of a portion of the premises has been determined. The law does not compel either party that the tenancy must be determined. It is equally possible for a tenant to vacate the premises without the tenancy being terminated at all. It is only when the tenant refuses to vacate unreasonably, even though essential repairs or alterations were necessary, that an occasion may arise to approach the Rent Controller and obtain an order for partial termination of the tenancy. In view of the provisions of the Rent Control Order, we hold that a landlord, in such circumstances, is entitled to terminate the tenancy as to the part, and it is not necessary in such cases that the tenancy of the whole of the tenement is required to be terminated.

9. Thus, the result is that the petition fails and is dismissed but without costs as there is no appearance on the side of the opponents.


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