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Jethalal Lakhamsi Dawada Vs. Jankibai Bhagwandin - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 148 of 1958
Judge
Reported in(1959)61BOMLR427
AppellantJethalal Lakhamsi Dawada
RespondentJankibai Bhagwandin
DispositionPetition dismissed
Excerpt:
c.p. and berar letting of houses and rent control order, 1949, clauses 13(3)(vii), 13(7), 28(1)-landlord granted permission to terminate tenancy on ground specified ire clause 13(3)(vii)-tenant vacating premises-application made by tenant to additional deputy commissioner, after premises repaired, for reinstatement under clause 13(7)-whether additional deputy commissioner has jurisdiction to grant relief to tenant-jurisdiction conferred under section 28(1) upon deputy commissioner whether restricted to orders made by rent control authorities under order.;where the tenant, as a result of the permission granted to his landlord to terminate his tenancy under clause 13(3)(vii) of the c.p. and berar letting of houses and rent control order, 1949, has vacated the premises, the additional deputy..........the tenancy of the petitioner under clause 13(3)(vii) of the c.p. and berar letting of houses and rent control order, 1949, hereinafter referred to as the kent control order. the petitioner then vacated the house on february 28, 1957. according to the petitioner, the house was repaired by respondents nos. 1 and 2 and the repairs were completed in july 1957 and the premises became fit for occupation by the petitioner. the petitioner then approached respondents nos. 1 and 2 to reinstate him in the said premises, but they did not put him in possession. he then served a notice on the respondents on july 30, 1957, but to no effect. he then made an application to the rent controller under sub-clause (7) of clause 13 of the rent control order praying therein that he be reinstated in possession.....
Judgment:

Tambe, J.

1. This application is made under Articles 226 and 227 of the Constitution of India wherein the petitioner prays that the order made by the Additional. Deputy Commissioner, respondent No. 3 hereto, on January 8, 1958, be set aside. The petitioner also prays that consequent on the setting aside of the aforesaid order of the Additional Deputy Commissioner, he be restored to the possession of the house in question.

2. The facts giving rise to this petition in short are: The petitioner was the tenant of respondents Nos. 1 and 2. They were granted permission on November 15, 1956, to terminate the tenancy of the petitioner under Clause 13(3)(vii) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949, hereinafter referred to as the Kent Control Order. The petitioner then vacated the house on February 28, 1957. According to the petitioner, the house was repaired by respondents Nos. 1 and 2 and the repairs were completed in July 1957 and the premises became fit for occupation by the petitioner. The petitioner then approached respondents Nos. 1 and 2 to reinstate him in the said premises, but they did not put him in possession. He then served a notice on the respondents on July 30, 1957, but to no effect. He then made an application to the Rent Controller under Sub-clause (7) of Clause 13 of the Rent Control Order praying therein that he be reinstated in possession of the house. The Rent Controller held that he had no jurisdiction to grant the relief claimed by the petitioner. He, therefore, dismissed the application. The petitioner then made another application to the Additional Deputy Commissioner under Sub-clause (7) of Clause 13 of the Rent Control Order again praying therein that he be reinstated in possession of the house.

3. Respondents Nos. 1 and 2 resisted this application on two grounds among others. The first ground was that it was not open to the Additional Deputy Commissioner to order reinstatement of the petitioner under Sub-clause (7) of Clause 13 of the Order and secondly that the repairs of the house have not as yet been completed. Both the contention of respondents Nos. 1 and 2 were upheld by the Additional Deputy Commissioner. The petitioner has, therefore, come up to this Court.

4. Shri Bhalerao, learned Counsel for the petitioner, in the first instance, contends that the Additional Deputy Commissioner was in error in holding that he had no jurisdiction to put the petitioner in possession of the house. In our view, this contention is well-founded.

5. Now, it is not in dispute that the permission which was granted to respondents Nos. 1 and 2 to serve a quit notice on the petitioner was under Clause 13(3)(vii). Sub-clause (7) of Clause 13 of the Order provides that 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. It is clear that in the instant case permission having been granted under item (vii) of Sub-clause (3) of Clause 13 of the Order, the petitioner would be entitled to obtain possession on completion of the repairs or alterations to the house. The learned Additional Deputy Commissioner, however, has found it difficult to grant the relief claimed by the petitioner, as, according to him, there are no provisions in the Rent Control Order for enforcing the claim made by the tenant under Sub-clause (7) of Clause 13 of the Order. In our opinion, the Additional Deputy Commissioner has fallen in error in holding that there are no provisions in the Rent Control Order to grant such a relief.

6. It appears that the provisions of Clause 28 of the Rent Control Order had not been brought to the notice of the Additional Deputy Commissioner. Sub-clause (1) of Clause 28 provides that the Deputy Commissioner may take or cause to be taken such steps and use or cause to be used such force as may, in his opinion, be reasonably necessary for the purpose of securing compliance with, or for preventing or rectifying any contravention of this Order or for the effective exercise of such power. The provisions of Sub-clause (1) of Clause 28, in our opinion, are wide enough to confer jurisdiction on the Deputy Commissioner to entertain the claim made by the petitioner in the instant case. The jurisdiction conferred on the Deputy Commissioner is of the following nature to take steps and use and cause to be used such force (i) for the purpose of securing compliance with the Rent Control Order, (ii) for preventing or rectifying any contravention of this Order, and (iii) for effective exercise of the powers conferred by the Rent Control Order. It cannot be disputed that Sub-clause (7) of Clause 13 provides that after the completion of the repairs or alterations the landlord must put back the tenant in possession unless he in writing has consented to the premises being let out to others. If the landlord does not do so, then the Deputy Commissioner is empowered to take necessary steps for the purpose of securing compliance with the provisions of the Rent Control Order. Looked at from another point of view, what the tenant is claiming is that the landlord be prevented from contravening the provisions of this Order. That being the case, the Deputy Commissioner clearly had jurisdiction to deal with such a claim under Clause 28 of the Rent Control Order.

7. Shri Banerjee, learned Counsel for respondents Nos. I and 2, contends that the provisions of snb-cl. (1) of Clause 28 are intended to secure compliance with or prevent contravention of the orders made by the Rent Control authorities under the Rent Control Order and is not intended for the purpose of securing compliance with or preventing or rectifying any contravention of the Rent Control Order itself. It is not possible for us to accept this contention of Shri Banerjee. The word used in this Sub-clause (1) of Clause 28 is 'Order' and not 'an order made under this Order'. It is, therefore, in our opinion, clear that the jurisdiction conferred under Sub-clause (1) of Clause 28 of the Rent Control Order is to secure compliance Avith the provisions of the Rent Control Order itself or to prevent contravention of the Rent Control Order itself.

8. Shri Banerjee next argued that the authorities concerned have made specific provisions wherever -they thought it proper that any contravention of the provisions of the Rent Control Order should be dealt with by the Rent Control authorities and in this connection Shri Banerjee referred us to Sub-clauses (4) and (5) of Clause 13 of the Rent Control Order.

9. Turning to Sub-clause (4) of Clause 13, it provides that where the landlord who has obtained possession of a house or a portion thereof in pursuance of the permission granted by the Controller under Sub-clause (1) on the ground specified in item (vi) of Sub-clause (3), does not himself occupy it without good cause, for the purpose specified in such ground, within one month of the date of obtaining possession, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored possession of the house or a portion thereof and the Controller shall make an order accordingly. Now, it would be seen that by Sub-clause (4) jurisdiction is conferred on the Rent Controller to deal with a claim relating to the contravention of item (vi) of Sub-clause (3) of Clause 13 of the Rent Control Order. This only shows that wherever the authority is of opinion that the matter be dealt with not by the Deputy Commissioner but by the Rent Controller himself it has so specifically provided. It does not follow that in other cases the framers of the Order had no intention to confer jurisdiction on the Deputy Commissioner. Similarly is the case with Sub-clause (5) of Clause 13 of the Rent Control Order. Sub-clause (5) provides that where the landlord has obtained possession of a house or a portion thereof in pursuance of the permission granted by the Controller under Sub-clause (1) on the ground specified in item (vi) of Sub-clause (3), he shall not let the said house or portion thereof to any person other than the evicted tenant except with the previous approval in writing of the Controller in that behalf. This again is another side of Sub-clause (4) It would be seen that Sub-clause (4) gives a right to the tenant to claim back possession of the premises in the event the landlord does not occupy it himself, while Sub-clause (5) prohibits the landlord from letting out the premises to anybody else without the consent of the evicted tenant and the jurisdiction to deal with this particular subject-matter has been conferred on the Rent Controller himself under the Rent Control Order.

10. Lastly, Shri Banerjee contends that the construction placed by us would lead to heavy accumulation of work before the Deputy Commissioner and each and every contravention of the Rent Control Order would become the subject-matter of a complaint before him and that would result in burdening the file of the Deputy Commissioner with heavy work. We are not concerned with this aspect of the case. We are concerned only with construction of the provisions of the Eent Control Order. As to how the work is to be disposed of is a matter which has to be considered by the authorities concerned. Apart from it, we find it difficult to accept the contention of Shri Banerjee. If we accept his contention then it would mean that though Sub-clause (7) of Clause 13 of the Rent Control Order confers a right on the evicted tenant to claim back possession of the premises on completion of the alterations or repairs, the landlord could with impunity go on denying his right and the evicted tenant would have no remedy to get the wrong done to him redressed by the Rent Control authorities. It is difficult to assume that the authors of the Rent Control Order after conferring this right on the evicted tenant provided no remedy for its enforcement. We have already stated that there are no clear words in Sub-clause (1) of Clause 28 of the Rent Control Order to restrict its operation to the orders made under the Rent Control Order. In these circumstances, we see no reason why we should so construe Clause 28(1) of the Rent Control Order as would render enforcement of the right conferred by it difficult. It is, therefore, not possible for us to accept the contention of Shri Banerjee. We, therefore, hold that the Additional Deputy Commissioner was in error in holding that he had no jurisdiction to deal with the application to grant the relief prayed for by the petitioner in the event of his establishing other facts which entitled him to that relief. This conclusion, however, is not sufficient for the purpose of granting any relief to the petitioner. As already stated, the petitioner would be entitled to claim back possession of the premises after the completion of the repairs or alterations.

11. The fact found in the instant case by the Additional Deputy Commissioner is that the repairs to the house have not been completed as yet and the house is not ready for occupation. This is a finding of fact and that being the case the application of the petitioner wherein he claimed reinstatement was premature and was not well-founded and in this view of the matter it cannot be said that the dismissal of the application by the Additional Deputy Commissioner was erroneous.

12. In the result, therefore, the petition fails and is dismissed. However in view of the facts and circumstances of the case we direct that the costs shall be borne as incurred.


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