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Raja Bahadur Sir Bansilal and Sons Vs. C.R. Desai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case Number O.C.J. Miscellaneous Application No. 158 of 1959
Judge
Reported in(1961)63BOMLR933
AppellantRaja Bahadur Sir Bansilal and Sons
RespondentC.R. Desai
DispositionAppeal Allowed
Excerpt:
.....provide for ultimate disposal of the question whether the premises consist of not more than two floors by the tribunal mentioned in sub-sections (3a) and (3b) of section 13 of the act. that question it is provided must be ultimately and finally decided only by 'the court' mentioned in the act. therefore, refusal of a certificate under section 13(3b) of the act by the tribunal on the sole ground that the applicant's premises consist of more than two floors, would be unjustified. - - in so far as the respondent has failed to consider the petitioners' application regarding the rest of the matters liable to be determined by the respondent under the provisions of section 13, the respondent has failed to discharge the statutory duty and obligation as cast on him under the act. - 13.(1)..........main contention is that the question whether their property consisted of 'not more than two floors' is a question which under section 13 of the act is liable to be determined solely by court and that decision of the same is not within the jurisdiction of the tribunal mentioned in section 13(3a) and 13(3b) of the act. the petitioners, therefore, contend that the refusal of the respondent to grant to the petitioners a certificate as requested by them on a finding that the petitioners' property was more than two floors is in excess of jurisdiction and/or without jurisdiction altogether. in so far as the respondent has failed to consider the petitioners' application regarding the rest of the matters liable to be determined by the respondent under the provisions of section 13, the.....
Judgment:

K.K. Desai, J.

1. This is a petition under Article 226 of the Constitution challenging the refusal of granting of a certificate by the respondent under the provisions of Sub-sections (3A) and (3B) of Section 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act LVII of 1947. The relevant facts are as follows:-

2. The petitioners are owners of an immoveable property situate at Warden Road, Bombay. The petitioners' case is that they reasonably and bona fide required possession of the immovable property for the immediate purpose of demolition and that the demolition was to be made for erecting a new building. The petitioners, accordingly, by an application dated November 5, 1958, applied for a certificate under Section 13(3B) of the Act. The respondent being the tribunal entitled to give such a certificate by his letter dated November 29, 1958, stated that the petitioners were not entitled to have the certificate having regard to the provisions of Section 13(1)(hh) of the Act. The petitioners thereupon agitated the matter before the respondent and the respondent once again considered the petitioners' application. The respondent ultimately by his letter dated March 12, 1959, wrote to state as follows:-

The existing structure consists of more than two floors,.. .Your contention that the rooms should be considered as an architectural feature only...is not acceptable.

Under the circumstances, it is regretted that, your case cannot be considered for the issue of a certificate for demolition by the Tribunal under Section 13(3B) of the above Act, as it does not comply with the requirements of the Section 13(1)(hh) of the above Act.

3. The petitioners' contention in the petition is that their property consisted of 'not more than two floors' as required under Section 13(1)(hh) of the Act. The petitioners' main contention is that the question whether their property consisted of 'not more than two floors' is a question which under Section 13 of the Act is liable to be determined solely by Court and that decision of the same is not within the jurisdiction of the Tribunal mentioned in Section 13(3A) and 13(3B) of the Act. The petitioners, therefore, contend that the refusal of the respondent to grant to the petitioners a certificate as requested by them on a finding that the petitioners' property was more than two floors is in excess of jurisdiction and/or without jurisdiction altogether. In so far as the respondent has failed to consider the petitioners' application regarding the rest of the matters liable to be determined by the respondent under the provisions of Section 13, the respondent has failed to discharge the statutory duty and obligation as cast on him under the Act. The petitioners, therefore, seek relief directing a writ of mandamus against the respondent to consider the petitioners' application and dispose the same in due course of law.

4. The only contention of fact as raised by affidavit in reply relates to the respondent's contention that the petitioners' property does not consist of 'not more than two floors'. It is unnecessary for me for the purpose of deciding this petition to make any finding as regards that issue of fact.

5. In connection with the contentions made by the petitioners it is necessary to refer to Section 13 which runs as follows:-

13.(1) Notwithstanding anything contained in this Act taut subject to the provisions of Section 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied-...

(hh) that the premises consist of not more than two floors and are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting new building on the premises sought to be demolished:...

(3A) No decree for eviction shall be passed on the ground specified in clause (hh) of Sub-section (1), unless the landlord produces at any time of the institution of the suit a certificate granted by the Tribunal under Sub-section (3B) and gives an undertaking-

(a) that the new building to be erected by him shall subject to the provisions of any rules, by-laws or regulations made by a local authority, contain not less than two times the number of residential tenements, and not less than two times the floor area, contained in the premises sought to be demolished;

(b) that the work of demolishing the premises shall be commenced by him not later than one month, and shall be completed not later than three months, from the date he recovers possession of the entire premises; and

(c) that the work of erection of the new building shall be completed by him not later than fifteen months from the said date.

(3B)(a) For the purpose of Sub-section (3A), the State Government may from time to time constitute a Tribunal consisting of such persons and for such local area as it thinks fit.

(b) The tribunal constituted under clause (a) may grant a certificate after being satisfied that-

(i) the plans and estimates for the new building have been properly prepared;..

(iii) the necessary funds or the purpose of the erection of the new building are available with the landlord; and

(iv) such other conditions as the State Government may by general or special order specify, have been satisfied...

6. It is necessary to notice that the Act restricts the ordinary rights of a landlord or a property-owner to obtain a decree in ejectment against his tenants in accordance with the provisions of the Transfer of Property Act. Such a restriction ordinarily must be considered strictly and can he considered in favour of the tenants only to the extent justified by the language of the Act. Under Section 12 of the Act it is provided that a landlord shall not he entitled to recovery of possession if tenant pays rent and is ready and willing to perform other conditions of tenancy. To obviate the difficulties created against landlord by Section 12 provision is made in Section 13 entitling landlord to get ejectment decree and recover possession on the grounds mentioned in Clauses (a) to (1) of Section 13(1). As regards these grounds mentioned in Sub-section (1) landlord has to satisfy 'the Court' that one or more of them exists before he could obtain a decree for possession. It is also obvious that the satisfaction is to be that of the Court and not of any party or person other than the Court. Bearing in mind that scheme of the Act the question is whether by reason of the provisions in Sub-sections (3A) and (3B) of Section 13 jurisdiction is conferred on the Tribunal also to consider and decide whether the 'premises consist of not more than two floors'. Now, the language of Sub-sections (3A) and (3B) does not specifically confer any such jurisdiction on the Tribunal. A provision is made in Sub-section (3A) restricting the landlord's ordinary right to file a suit in ejectment so that the suit on the ground mentioned in Section 13(1)(hh) cannot be instituted unless a certificate is granted by the Tribunal. It is clear that a statutory duty and obligation must arise against the Tribunal to consider all applications for the grant of a certificate as required under provisions of Sub-section (3B), That certificate, however, on the language of Sub-sections (3A) and (3B) does not relate to the question whether 'the premises consist of not more than two floors'. The certificate inter alia relates to the floor area and contents of the new building intended to be erected with reference to the floor area and contents of the old premises intended to be demolished. It also relates to the plans and estimates for the new building being properly prepared as also the financial capacity of the landlord and other conditions as the State Government specifies by an order made for the purpose. The petitioners' contention, therefore, that the certificate to be granted is not in regard to the question of the premises consisting of not more than two floors must be accepted. In that connection Mr. Sorabji for the petitioners has also relied upon the rules made in pursuance of the powers conferred under Clause (c) of Sub-section (3B) of Section 13 and Section 49 of the Act. These rules when read also indicate that the certificate to be given by the Tribunal has no relation at all to the question of the premises consisting of not more than two floors. If that question was desired by the Legislature to be decided by the Tribunal I have no doubt that direct statutory provisions would have been made for the purpose,

7. It has been suggested on behalf of the respondent that commonsense view should be taken in connection with the provisions relating to the issuing of a certificate by the Tribunal under sub Sections (3A) and (3B). It is also suggested that it cannot be that indiscriminate applications for the purpose of issuing of a certificate by the Tribunal on the footing that the premises consisted of not more than two floors must be considered by the Tribunal. It is obvious that the primary purpose of an application for a certificate by the Tribunal must be to demolish the existing premises. It is, therefore, suggested that the condition relating to the premises consisting of not more than two floors must exist before the Tribunal embarks upon any enquiries in connection with the certificate applied for under the provisions of Sub-section (3B). Though this argument on first impression seems to be apposite and necessary for the purpose of restricting enquiries before the Tribunal, it appears to me that on the language of the provisions in Section 13 of the Act the same cannot be accepted. The provisions in the Act in the first instance completely deprive the landlord of the ordinary right of a suit to eject the tenants in accordance with the provisions of the Transfer of Property Act. Even so, in Section 13 right of ejectment is conferred on the landlord if the landlord is in a position to satisfy the Court as regards the matters mentioned inSub-clauses (a) to (l) of Section 13(1). That satisfaction, as I have already observed, is to be of the Court. It is not impossible to imagine that the view of the Tribunal in some eases as regards the question of the premises consisting of not more than two floors may be incorrect and the Court may be satisfied as regards that question if it was allowed to arise in Court. In such a case if the certificate is refused by the Tribunal the landlord would be unjustifiably deprived of his right of suit for non-production of the certificate as required by the provisions of Sub-section (3A). The scheme of Section 13, in my view, accordingly, does not provide for ultimate disposal of the question whether the premises consist of not more than two floors by the Tribunal mentioned in Sub-sections (3A) and (3B). That question it is provided must be ultimately and finally decided only by 'the Court' mentioned in the Act. Having regard to the right of the petitioners to have that question finally decided by the Court, it is obvious that a refusal of a certificate on that ground by the Tribunal should be considered unjustified. The respondent has refused to consider the application of the petitioners for the certificate on the sole ground that the petitioners' property does not comply with the requirements of Section 13(1)(hh) of the Act. The respondent had no jurisdiction to decide that matter finally as he purported to do. There was, in my view, a statutory duty and obligation on the respondent to consider all other matters arising under the provisions of Sub-sections (3A) and (3B) as regards the petitioners' application for the certificate. The respondent has failed to consider those matters as he was bound to do. Even if the contention that it is inherent in the scheme of the Act that the Tribunal should consider the question of the premises consisting of not more than two floors, the decision of the tribunal of that question was not intended to be final or conclusive and, therefore, the respondent's refusal to consider the application for the certificate on that sole ground was entirely unjustified.

8. Mr. Taraporewala for the respondent has also argued that the petitioners were guilty of delay and are not entitled to relief in this petition. He has based all his arguments in this connection on the footing that I must consider first the refusal of the Tribunal to issue a certificate on November 29, 1958, as the relevant date on which the petitioners were entitled to make this application. That appears to me to be contrary to the action of the Tribunal itself. The Tribunal reconsidered the whole matter after November 29, 1958, and! made its final finding by its letter dated March 12, 1959. The petitioners filed this petition on May 1, 1959. The time that expired was not, in my view, such as disentitled the petitioners to get relief in this petition.

9. The result, therefore, is that the petitioners are entitled to a writ of mandamus directing the Tribunal to proceed to consider the petitioners' application dated November 5, 1958, in accordance with law and dispose of the same within reasonable time in the light of this judgment. The respondent will pay costs to the petitioners. The rule is made absolute to the extent mentioned above.


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