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Balakrishna Vs. Nagnath Arjuna Kavlee - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 476 of 1973
Judge
Reported inAIR1976Bom443; (1978)80BOMLR474; 1976MhLJ800
ActsHyderabad Houses (Rent Eviction and Lease) Control Act, 1954 - Sections 15(3)
AppellantBalakrishna
RespondentNagnath Arjuna Kavlee
Appellant AdvocateM.L. Dudhat, Adv.
Respondent AdvocateDamale, Adv.
Excerpt:
.....meaning of the word 'preference' in the third proviso, section 15 (3) (a) (iv) of the hyderabad houses (rent, eviction and lease) control act, 1954 - the court held that the provision was for the benefit and protection of the tenant - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to point out that the assets recovered in the search were not undisclosed to point out that the assetsrecovered in the search were not undisclosed income. secondly, the order passed under s. 132(5) is appealable under the provisions of the act and if there is any violation in the exercise of the power, then the..........in this connection it was further stated that the petitioner bona fide intended to occupy the house premises let out to the respondent for personal use. he had no other premises of his won in his occupation where he could carry on his business and provide residential accommodation.2. in the further paragraph of the petition it is stated that the petitioner intended to demolish and reconstruct the premises which were in a dilapidated condition. they had become dangerous; they may collapse at any time, and so far the safety of the property and for proper and reasonable use, the premises required immediate reconstruction. in this connection, it is added that the petitioner intended to keep the premises for himself after reconstruction.3. a bare reading of these averments in the.....
Judgment:
ORDER

1. The revision petitioner Balakrishna alias Balaji Mukkawar had filed an application before the Rent Controller, Latur under Section 15 of the Hyderabad Houses (Rent Eviction and Lease) Control act, 1954. (hereinafter referred to as the said Act), against the present respondent Nagnath Arjun Kawale, for eviction. It related to the premises bearing Municipal House No. 114/5-B, situated in Latur. According to the averments in the petition, the respondent failed to make payment of the rent as agreed and never paid it within the stipulated period. It was also stated that the petitioner had large scale business at Latur and the petitioner intended to shift himself to Latur form Udgir to carry on his business profitably and economically. IN this connection it was further stated that the petitioner bona fide intended to occupy the house premises let out to the respondent for personal use. He had no other premises of his won in his occupation where he could carry on his business and provide residential accommodation.

2. In the further paragraph of the petition it is stated that the petitioner intended to demolish and reconstruct the premises which were in a dilapidated condition. They had become dangerous; they may collapse at any time, and so far the safety of the property and for proper and reasonable use, the premises required immediate reconstruction. In this connection, it is added that the petitioner intended to keep the premises for himself after reconstruction.

3. A bare reading of these averments in the petition would show that recourse is taken to three clauses; firstly of the wilful default, secondly of personal need for business-cum residence, and thirdly of necessity to reconstruct the premises wherein it is also added that the reconstructed premises would be used for personal occupation.

4. The application was resisted on all the grounds. The learned Rent controller, however, accepted all contention of the present revision - petitioner. An order is accordingly passed by the rent controller, Latur, ordering vacation of the premises by the tenant.

5. In appeal preferred by the tenant, the learned Assistant Judge, Latur dismissed the petition, and set aside the order passed by the learned Rent Controller as he wan not satisfied by any of the grounds made out by the petitioner.

6. Section 15 of the Hyderabad Rent Act speaks of the eviction of tenants. General proposition is mentioned in clause (1) that a tenant shall not be evicted, whether in execution of a decree or otherwise except in accordance with the provision of the section. Subsection (2) initially states of giving of the notice and applying to the controller. This had been done in our case, Clause (1) of subsection (2) runs as follows:

'2 (1) that the tenant has not paid or tendered the rent due by him in respect of the house, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which rent is payable or ' * * * * * * *

We are not concerned with the further provisions of clause (2) of section 15 of the Act. This would be the clause to be looked into for purposes of finding out the default and non-payment of rent. Clause (3) of the said Section 15 relates to the vacation of the premises of personal occupation. There is no dispute that the part, which is in the occupation of the respondent, is used by him for non-residential purposes. As such, we will be concerned with sub-clause (iii) of clause (3) (a) of Section 15, which runs as follows:

' A landlord may subject to the provisions of clause (d) apply to the controller for an order directing the tenant to put the landlord in possession of the house-----

(i) .... ...... ....... .....

(ii) ........ .......... ........

(iii) IN case it is any other non-residential house, if the landlord is not occupying for purposes of a business which he is carrying on. a non-residential house in the city, town or village concerned which is his own or to the possession of which he is entitled: * * * * * * * * *

It is sub-clause (iv) of clause (3) (a) of Section 15, which deals with the eviction on the ground of reconstruction, to which we can advert later on.

7. As regards the default, there is no dispute that on the date of the filling of the application, viz., 10-6-1968, all the rent was not paid. Prima facie, therefore, the case would be covered by sub-clause (1) of clause (2) of Section 15. In his written statement the respondent contended that the rent prior to 1966 --- Diwali --- when the year was ending for payment of the yearly rent --- was paid to the previous owner. He further averred that the rent for the years 1966-67 was sent by money order but the revision petitioner did not accept it. Unfortunately, money order coupon was not produced on record when the matter was heard by the Rent Controller. Obviously, it was a lapse on the part of the respondent tenant. An application was made in the lower Appellate Court for production of the receipt. But treating it as an application for additional evidence, which was not warranted at that stage, that application was rejected. The question, therefore, for consideration before us would be whether in these circumstances of the case, it could be said that a default exist. The appellate Court has given a finding of fact, that the respondent was not a defaulter. Although there was no evidence directly showing that the revision petitioner had refused to accept the money order relied upon certain circumstances. It appears that in the year 1968 itself a Civil Suit was filled in the Court of the Civil Judge, Latur, for the recovery of rent. In the written statement filed in that suit, a plea was taken by the present tenant that he had remitted the rent for the years 1966-67 by money order but the same was refused. He is, thus, consistent right since 1968 in saying that the money order was sent and the money order was refused. Now that suit was dismissed as claim was settled fully out of Court. It would give an indication that the entire claim as was made by the present revision petitioner was not sought to be recovered, otherwise there should have been a decree on admission. Therein lies the element of acceptance of the case mad by the respondent -tenant. When a finding of fact has been arrived at on such circumstances, it need not be disturbed. Consequently, although there was non-payment, and payment of rent subsequent to the filing of the application, the default need not be lode upon as a wilful default. As such the tenant would be entitled to the protection given in the proviso which as follows:

'Provided that in any case falling under clause (1) if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful he may, before making an order as aforesaid, give the tenant a reasonable time not exceeding 15 days, to pay or tender the rent to the landlord up to the date of such payment or tender.'

The present appeal must, therefore, fail on the grounds of wilful default.

8. As regards the personal requirement, it is not only that the landlord requires the premises for his own use, but that he should not be occupying any such building in the city, town or village concerned which is his own or entitled to the possession of such premises. The learned counsel for the petitioner could not dispute that other premises were already in the occupation of the landlord and they were used for his business. His plea stands on the footing of expansion of business. But since all the elements of concerned sub-section are not satisfied, it would be difficult to grant a relief in his favour on the basis of personal requirement. When thus the landlord has other shop-premises in his possession at Latur itself, his prayer for possession of the disputed premises has to be disallowed.

9. What now remains is the finding whether for purposes of reconstruction etc., The present premises could be made over to the revision petitioner, Clause dealing with this requirement is sub-clause (iv) of Section 15 (3) (a). It runs as follows:

'A landlord may subject to the provisional of clause (d) apply to the Controller for an order directing the tenant to put the landlord in possession of the house---

(i) .......... ............. ........... .....

(ii)............. ............ ...............

(iii)......... ............. .................

(iv) If the landlord desire to carry out essential repairs or alterations to the house which cannot be made without the tenant vacating the house, bonafide, requires the house for the purposes of building or re-building or for making substantial additions which cannot be made without the tenant vacating the house:

Provided that a person who becomes landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply under this clause before the expiry of three months from the date on which the instrument was registered:

Provided further that where a landlord has obtained possession of a house under this clause, he shall not be entitled to apply again under this clause---

(i) in case he has obtained possession of a residential house, for possession of another residential house of his own;

(ii) in case he has obtained possession of a not-residential house of his own, for possession of another non-residential house:

Provided further that where a land lord has obtained possession of a house under sub-clause (iv), he shall on the completion of the or repairs, alterations, building, re-building or making additions giving the tenant the first preference for occupying the house on such terms as may be settled by the Controller.'

10. In our case the landlord has applied to the concerned Municipal Authority and got the plans for rebuilding sanctioned. He has also put forward his case in the petition that the premises are in a dilapidated condition; they have become dangerous: they may collapse any time. In countering these averments appearing in paragraph 6 of the petition, the respondent - tenant has only stated that his business in Udgir is very big, a part of it could be utilised by the landlord for purposes of goddamn etc., and that the landlord does not need the portion which is in the occupation of the tenant. He further adds that he would suffer irreparable loss and closure of business in case he is made vacate. It is worth noticing that the averments regarding the condition of the building are not at all touched in the pleadings filed by the tenant.

11. At the time of hearing the landlord made out a case on oath that the suit premises were dilapidated and may collapse. There is no cross-examination on that point. So far as respondent No.1 tenant is concerned,, although there was no specific pleading at the time of the deposition, he denied that the premises were in a dilapidated condition or may collapse. Curiously enough, there was not cross examination on this aspect also.

12. Thus, so far as the pleading are concerned, the case made out by the landlord is not denied, and at the time of hearing there is only word against word. No further material was placed before the Court for finding out the condition of the house and whether the desire of the landlord to reconstruct the house on the ground of it being in a bad condition, is bonafide or mala fide. In the absence of specific pleadings and on the material already noticed, it is difficult to hold that the premises are not old or that the desire to reconstruct the premises by the landlord because they are old or dilapidated is not bonafide.

13. At the time of arguments, the learned counsel for the petitioner laid stress on the latter part of sub-clause (iv) of Section 15 (3) (a), saying that the landlord bonafide required the house for purposes of rebuilding and making substantial additions which could not be made without the tenant vacating the house. In countering these contentions the counsel for the respondent emphasised that the landlord has other shops in Latur itself and he was occupying some portion of the very building in which the tenant is in possession. There is no dispute that the hind part of the landlord. It appears that he has it vacant. The question would be whether on that account it could be said that the desire to reconstruct is not bona fide.

14. Let us not mix the two concepts, mix., personal requirement and reconstruction, resting on the grounds or the dilapidated worn out structure and its subsequent utilisation in case it is allowed to be rebuilt.

15. When the discussion centred round this aspect, Mr. Dudhat, invited my attention to the third proviso to sub clause (iv) of Section 15 (3) (a). According to that proviso, on completion of the work of repairs .... ........ ......... ......... rebuilding or making additions or of such other nature as are allowed by sub-clause (iv) the first preference for occupation is to be given to the tenant. The learned Counsel for the tenant argues that in as much as the landlord has not come forward to give that preference, his desire to rebuild should not be taken as bonafide that may be far-fetched. If he has not come forward and if the clause is attracted, appropriate direction could be given by the Court. That can be no test for holding the desire mala fide.

16. However, Mr. Dudhat, for the revision-petitioner has argued that this proviso will have no application at all to our case. In the first place, he submits that the proviso is a proviso to proviso No. 2. In the second place, he submitted that the very wording of the proviso would show that it would be applicable only when premises are required to be given over to persons other that the landlord. If the landlord could keep the premises for himself, no question of occupation by others or of giving preference could arise.

17. The first contention of Mr. Dudhat cannot at all be upheld. Reading of the three provisos which are cited above would show that they are all independent provisos having a separate sphere of action. The first proviso contains a bar to the application of Clause (iv) of S. 15 (3) (a) although the desire to reconstruct may be bonafide. The bar is on the basis of the duration of ownership so that there can be no transfer of property with ulterior motives. The second proviso prohibits the landlord from making use of the same ground again and again. In other words, if once possession has been obtained for such purpose, then it cannot be invoked a second time. It is the third proviso which gives some protection to the tenant's right simplification. The proviso and the sub-clause (iv) is a desired of the landlord to reconstruct, that desire is to be tested on the bonafides. If the Court is satisfied about the bonafides, then the reconstruction should be allowed. But how to use the premises after reconstruction is given in the third proviso. There is nothing in sub-clause (iv) indicating the type of construction or the area of the premises after reconstruction. A particular tenant may, therefore be able to seek protection in case he is prepared to pay proposed higher rent looking to the renovated building, amenities facilities and the quality of construction. In a given case, the tenant may not be able to tae advantage of this liberty. In my opinion, it is for this reason that the word 'preference' has come in. In other words, the liberty given to to tenant appears to be one of the dominant consideration. The question of preference comes in depending upon the volition of the tenant who is given that liberty. In my opinion it cannot be equated with landlord's volition to give the premises for occupation or not to give them for occupation. Otherwise, what cannot be done directly could be allowed to be done indirectly. The present case is an apt illustration of it. The landlord is taken as not entitled to get the premises for personal occupation. The scheme of the Act is not satisfied and requirements are not complied with as he has other premises and yet by reconstructing the house, he may have the liberty of using the premises for himself. In fact, if he desire to reconstruct was only on that ground, in the circumstances of the present case it could have been said that it was not a bonafide desire but a desire to reconstruct is bonafide. These circumstances, however, cannot be allowed to be exploited by mere assertion that after the reconstruction, the entire building would be at the disposal of the landlord. I fell, therefore, that the present proviso will come into play and the vacating tenant would have the first preference for occupying the house. Of course, the terms of such occupation, inclusive of the area, location etc. would all have to be determined and settled by the Controller.

18. In substance, therefore, on the ground or reconstruction, the appeal will have to be allowed. Protection in terms of the proviso would have to be given and the said direction should be utilised by the tenant -respondent by approaching the Controller at the appropriate time. Looking to the circumstances of the case, I thin there should be no order as to costs.

19. Rule made absolute under Section 15 (3) (a); the landlord-petitioner is allowed to reconstruct the premises in dispute. The tenant - respondent is, therefore, directed to put the landlord in possession. After the premises are re-built, the tenant -respondent is, will have the first preference for occupying the house on such terms as may be settled by the Controller who could be approached by the parties at the appropriate at the appropriate time.

20. No order as to costs.

21. Order accordingly.


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