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Vikram Madhoba Ghodkhande Vs. the Medical Officer - Court Judgment

LegalCrystal Citation
SubjectTenancy;Constitution
CourtMumbai High Court
Decided On
Case Number W.P. No 1400 of 1982 (Nagpur Bench)
Judge
Reported in(1983)85BOMLR168; 1983MhLJ190
AppellantVikram Madhoba Ghodkhande
RespondentThe Medical Officer
Excerpt:
.....discrimination and arbitrariness.;for entitlement of relief under clause 13(3)(vi) of the rent control order, two classifications between needy landlords are made by the statute--(a) landlords having some accommodation, (b) landlords having no accommodation. the obvious object of the rent control order in general and this clause in particular is to permit the needy landlords to occupy their own houses to the extent of their need. the mere fact of having some accommodation--however insignificant it may be--divorced from the extent and nature of genuine need of the landlord cannot justifiably non-suit such a landlord. this is not what the legislation sought to achieve. if for some mysterious reason this is the object of the legislation, the object itself would be violative of.....mohta, j.1. does proviso to clause 13(3) (vi)of the c.p. and berar letting of houses and rent control order, 1949 ('the rent control order' for short) deny the guarantee of 'equality before the law or the equal protection of laws' enshrined in article 14 of the constitution is a cardinal point that arises in this matter.2. the petitioner vikram ghodkhande is the owner of a house in the town of wardha. he is occupying a part of this house for residence and the remaining part is leased out to the state of maharashtra (respondent no. 2) which is running there a research cum training centre (respondent no. 1). his application for permission to determine the lease on the ground of bona fide need for additional accommodation under clause 13(3)(vi) of the rent control order has been turned down.....
Judgment:

Mohta, J.

1. Does proviso to Clause 13(3) (vi)of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 ('the Rent Control Order' for short) deny the guarantee of 'equality before the law or the equal protection of laws' enshrined in Article 14 of the Constitution is a cardinal point that arises in this matter.

2. The petitioner Vikram Ghodkhande is the owner of a house in the town of Wardha. He is occupying a part of this house for residence and the remaining part is leased out to the State of Maharashtra (respondent No. 2) which is running there a Research cum Training Centre (respondent No. 1). His application for permission to determine the lease on the ground of bona fide need for additional accommodation under Clause 13(3)(vi) of the Rent Control Order has been turned down by the Rent Control Authorities and hence this petition. Proviso to this clause creates at the very threshold a bar against maintainability of application under this clause by a landlord who is in occupation of even a portion of a house in the town or city concerned. It is in this context that the point arises.

3. By virtue of authority conferred by Section 2 of the Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946 ('the Act' for short), the Rent Control Order is made by the then Provincial Government. It provides, inter alia, for (i) fixation of rent and other terms, (ii) prohibition against creation of sub-tenancy except in certain manner, (iii) prohibition against termination of tenancy except on specified grounds, (iv) prohibition against change of user except under certain contingencies, (v) collection of information and letting of accommodation, (vi) statutory duty to intimate vacancy, (vii) prohibition against occupation of such vacant houses except in certain manner, (viii) letting out of such houses to certain classes of needy persons, (ix) releasing such house to the landlord for his bona fide occupation, etc. The Act as well as the Rent Control Order is a regulatory measure brought on the statute book in the war time and continued even in the peace time to tackle the ever increasing accute problem of accommodation of houses in urban areas. This problem is common to the whole country and is not the peculiarity of only this region. This explains existence of similar, if not exact, legislations throughout the length and breadth of the country. The State of Maharashtra has the unique distinction of having three different legislations on the subject prevailing in three different parts of the State-Vidarbha, Marathwada and the rest. The necessity of having a unified law in the State and scrapping of this obsolete legislation has been conceded at all levels and by all relevant quarters since long. All that has remained is the implementation of that policy. Having noticed the general objects sought to be achieved by this legislation - a relevant consideration while testing the proviso on the touch stone of Article 14, it will be appropriate to concentrate on this controversial clause, containing one out of the nine grounds on which determination of lease is permitted.

4. In the first place, its legislative as well as interpretative history may be noticed. This clause, as originally enacted, reads as follows:

13(3) If after hearing the parties the Controller is satisfied,

(vi) that the Landlord needs the house or a portion thereof for the purpose of-

(a) his bona fide residence, provided he is not occupying any other residential house of his own in the city or town concerned, or

(b) his bona fide residence on medical grounds whether or not he is occupying any other residential house of his own; or

(c) a bona fide business of his own which he intends to start or is already carrying on in the city or town concerned; or

he shall grant the landlord permission to give notice to determine the lease as required by Sub-clause (1).

This item (vi) after its amendment with effect from November 21, 1952 reads as under:

That the Landlord needs the house or a portion thereof for the purpose of his bonafide residence provided he is not occupying any other residential house of his own in the city or town concerned.

By the Central Provinces and Berar Letting of Houses and Rent Control (Amendment) Order, 1963, which was brought into force with effect from July 20, 1963, this item was further amended. Following are its present wordings:

that the landlord needs the house or a portion thereof for the purpose of his bona fide occupation, provided he is not occupying any other house or his own in the city or town concerned.

Upto the decision given by the Division Bench of this Court in Abdul Latif Jusabhai v. D.R. Jaadekar, Deputy Collector, Yeotmal (1960) N.L.J. 130 it was nearly consistently held that the mere fact that the landlord is occupying a portion of his house did not debar him from determining the lease. However, in Motilal v. Deputy Collector, Wardha (1962) S. C.A. 119 of 1961 decided on February 9, 1962 (Nagpur Bench) (Unrep.) another Division Bench took the contrary view. This conflict of decision led to the constitution of a Full Bench which in Eknath Bhanudas v. Shankarrao (1971) M. LJ. 546, agreeing with the later view held that the landlord in occupation of a house or a portion of a house of his own in the town or city concerned has no right at all to apply for permission to evict his tenant on the ground of his bona fide need irrespective of its extent or purpose. The ultimate consequence of this decision was that, that class of landlords who had even a portion of the house in their occupation could not maintain an application under this clause, howsoever genuine the need may be. Very close to the pronouncement of this judgment, followed a challenge to this proviso as interpreted by the Full Bench, based on Article 19(1)(f) and 14 of the Constitution. In Ramcharan v. Resident Deputy Collector, Yeotmal (1970) Mh. LJ. 975, the proviso was declared unconstitutional under Article 19(l)(f) by the Single Bench of this Court. Though some observations relating to its discriminatory nature were made in the said decision, the point about validity on the basis of Article 14 was left open. Thus, in practice and in effect such landlords in this area on establishing the bona fide need continued to get the permission to determine the lease. After a lapse of nearly 12 years, another Single Bench of this Court in Sheshraa v. Sonchand (1982) Mh. LJ. 84 took the view that as with effect from June 20, 1979 by the 44th Amendment to the Constitution art 19(l)(f) was deleted, the eclipse of invalidity on this proviso on that ground was removed and thus the proviso stood revived. Consequently position as it obtained immediately before striking down of the proviso was restored. It is apparent that it is this decision which has given an occasion for revival of challenge under Article 14.

5. How oppressively the proviso as interpreted by the Full Bench, operates is well illustrated in a very exhaustive and well considered judgment in Ramcharan's case (supra). Some of the observations highlighting the patent unjustness and arbitrariness may be noticed:

Let us consider the matter more objectively. Let us take a case of a landlord who at a given time may not require large accommodation and is satisfied with only a portion of the house. For example, the landlord is alone and single and is taking education in the city where he owns a house and for that purpose a room in the house may be sufficient for his needs at that time and he lets out the remaining portion of the house to a tenant.

The C.P. and Berar Letting of Accommodation Act has been now in operation for the last, about 24 years and during this period the landlord completes his education, gets married, is doing a good business or is having a good service, gets also some children. The family thus has grown from one member to serveral members during the course of years. No one could say that the room which was sufficient or suitable for any one member would still be suitable for the larger family which the landlord now has. On the construction which has been put on Clause 13(3)(vi) of the Rent Control Order by the Full Bench, such a landlord, though his need is compelling and genuine, would not be able to get any more accommodation from the remaining portion of the house which is occupied by a tenant. What is he expected to do in such circumstances. Must he leave even that portion which he is occupying and go to the streets or leave the town itself? If that, landlord is not 11 person holding office of profit, or an employee of the Electricity Board or a displaced person or an evictee, which he is not, he cannot be allotted any house by the Rent Controller. He, in those circumstances, will have either to seek for a house which is not governed by the Rent Control Order and pay an exorbitant rent which lie may not afford to or leave the town or squat on some body's land. Is such a hardship to the landlord commensurate which the propose or object which is sought to be achieved by the impugned Act and the Order thereunder? Has it really any relation to the object?

The rigour of the proviso is so stringent that even if the premises are needed for residential purposes and the landlord is in occupation of a non-residential premises, the bar operates. In this connection it is observed:

The further effect would be that if the house or a portion of the house hi the landlord's occupation is being used for his bona fide residence and he wants the house or portion occupied by his tenant for, say, running a business, for which purpose the house already occupied by him is unsuitable or insufficient, he would not be entitled to evict the tenant. This would also be so if the landlord is occupying a house for non-residential purpose but wants the house occupied by the tenant for the propose of his bonafide residence.

My attention has been invited to the recent decision given by Single Bench of this Court in Narayan Rambhau Karale v. Vasant Mahadeo Patwardhan (1982) W.P 271 of 1980 (Nagpur Bench) decided on April 5, 1982 (Unrep.) in which a different note is struck on this aspect. It is held:

In my view, the bar contained in the. proviso to Clause 13(3)(vi)(a) is net so generals as to prevent a landlord, who is in possession of residential accommodation, from taking possession of shop premises or vice versa. It contemplates that the landlord is in possession of the premises which can be used or are being used for the same purpose for which the premises, of which possession is sought, arc being used

It is apparent that what has been interpreted is original Clause 13(3)(vi)(a) and not Clause 13(3)(vi) as it stands today. Moreover, it appears that the decision of Full Bench of this Court and so also the decision in Ramcharan's case (supra) was not brought to the notice of the learned Judge. In my view while interpreting proviso to Clause 13(3)(vi) as it now stands there is no scope to draw such distinction in view of Full Bench decision which has a binding force.

It is undoubtedly true that the observations in Ramcharan's case (supra) have to be viewed in the context of an attack on the basis of Article 19(1)(f). None the less, some of the observations are quite relevant even for judging the validity of challenge under Article 14 No other article of the Constitution is so simple in words and so complex in its practical application. The concept of equality is a notion of varied shades and is incapable of single universal definition. No two opinions about what is equal may tally. The following oft-quoted observations of Bose J. in Bidi Supply Co. v. Union of India [1956] A.T.R. S.C. 479 are to the point (at page 485, para. 16):

Article 14 sets out, to my mind, an attitude of mind, a way of life, rather than a precise rule of law. It embodies a general awareness in the consciousness of the people at large of some thing that exists and which is very real but. which cannot, be pinned down to any precise analysis of fact save to say in a given case that it falls this side of the line or that and because of that decisions on the same point will vary as conditions vary, one conclusion in one part of the country and another somewhere else, one decision today and another tomorrow when the basis of society has altered and the structure of current social thinking is different. It is not the law that alters but the changing conditions of the times and Article 14 narrows down to a question of fact which must be determined by the highest judges in the land as each case arises.

Equality as a principle amounts to no more than that men should be treated in the same way, save where there is sufficient reason for treating them differently. Thus discrimination between two different classes of men is permissible. Whole point to be seen is whether it is with good reason or without it. Entire doctrine of classification is based on this distinction. It postulates a rational nexus with the object sought to be achieved. In this connection it has also to be borne in mind that object itself cannot be discriminatory. If it is so, the object itself would be violative of principle of equality.

6. Though for quite some time classification theory was held to be inseparable part of Article 14 by the Courts in India since the decision in E.P. Royappa v. State of Tamil Nadu : (1974)ILLJ172SC , a new trend of thinking has been set in. This article is held to be having a highly activist magnitude and embodying a guarantee against arbitrariness. It is observed (at page 583, para. 85):

From a positivistic point of view, equality in anticlastic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it, is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14.

This view is reiterated in Maneka Gandhi v. Union of India : [1978]2SCR621 , and so also in Ajaya Hasia v. Khalid Mujib : (1981)ILLJ103SC .

7. Applying any of these principles, it seems to me that the proviso is clearly ultra vires of Article 14. It is apparent that for entitlement of relief under this clause, two classifications between needy landlords are made by the statute - (A) landlords having some accommodation, (B) landlords having no accommodation. The obvious object of the Bent Control Order in general and this clause in particular is to permit the needy landlords to occupy their own houses to the extent of their need. While examining the need, the nature and extent of the accommodation sought, the status of the landlord, the number of his family members, etc. and so also the extent of area in his occupation have all to be considered. Thus the circumstance that the landlord has some portion in his occupation has always to be borne in mind while assessing the need. In a given case it may even be proved that present accommodation is quite sufficient considering all relevant factors. But the mere fact of having some accommodation - however insignificant it may be - divorced from the extent and nature of genuine need of the landlord cannot justifiably non-suit, such a landlord. This is not what the legislation sought to achieve, as rightly held in Ramcharan's case (supra). If for some mysterious reason this is the object of the legislation, the object itself would be violative of Article 14. It is not very difficult to conceive of a case of a landlord of class A being in more pressing need of accommodation than landlord of class B. Yet the proviso permits determination of lease in favour of a lesser needy landlord and prohibits the same relief to the more needy landlord. Thus, the consideration of genuine need - which is most germane to the issue becomes wholly irrelevant and the sole factor of having some accommodation (which is merely a relevant consideration) operates as a complete bar. I is not the vice of invidious discrimination and arbitrariness writ large on the proviso

8. In the endless examples of unreasonableness and hostile discrimination, few more may be noticed. If the landlord in occupation of a tenanted house in the town concerned applies under this clause, the bar of the proviso does not operate. Similarly, this bar does not operate against a landlord who applies for permission to occupy for bona fide use the vacant portion while giving intimation of vacancy. Proviso to Clause 23(1) of the Rent Control Order which permits this course does not contain any such bar. Thus the operation of bar instead of depending upon need depends upon happening of an event. At this stage, the provision of Clause 13(8) may also be noticed. It provides that in case the Rent Controller is satisfied that the need of the landlord can be met with occupation of a portion of the house he can. give permission only in respect of that limited portion irrespective of consideration of splitting the tenancy. It is pertinent to notice that the provision relating to consideration of comparative hardship between landlord and tenant as contained in the Section 13(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 is conspicuously absent in the Act or the Rent Control Order and as rightly observed in the case of Abdul Latif (supra)

The intention, of the framers of the Act is that bona fide need of the landlord to occupy his own house for hiss residence should prevail over the Deed of u tenant.

Thus, the concept of genuine need of the landlord - and nothing else - pervades the entire scheme of the Rent Control Order on this aspect. Proviso quite unjustifiably shatters this concept to pieces.

9. It is contended by Shri Paunikar, the learned Assistant Government Pleader, appearing for the respondents as well as the Advocate General that the Rent Control Order is essentially meant for the protection of the tenants and therefore, each and every provision must be interpreted in their favour. It is difficult to accept this proposition. While it cannot be disputed that general scheme of the Act and the Rent Control Order is for the benefit of the tenants, to say that each and every provision is for his benefit is to ignore some of the provisions. There are few provisions such as Clauses 12, 15 which cannot be construed as being favourable to the tenants. This unusual proviso appears to be the peculiarity only of the Rent Control Order.

10. I am informed by Shri Madkholkar, the learned Counsel for the petitioner - and this statement is not controverted on behalf of the respondents - that no other Rent Control Legislation in the country produces such harsh and unreasonable effects. Not that the laws of different legislatures can be grouped together for the purposes of comparison or contrast to show that provisions of one are discriminatory or manifestly unjust; when compared to the provisions of the other, but the total absence of such a provision even in the other legislations of this very state cannot be lightly brushed aside. After all the complex problem of shortage of accommodation is common throughout the country and is not peculiar to this region only. Indeed several bigger, commercial and more important cities are situated outside this region.

11. The conclusion thus is inevitable that the proviso to Clause 13(3)(vi) of the Rent Control Order is violative of Article 14 of the Constitution and has therefore, to be struck down. Consequently, the application of the petitioner cannot be thrown out merely because he has claimed additional accommodation.

12. Now about the merits. First of all the basic proved facts. The landlord is in occupation of four rooms of about 1000 sq. feet carpet area, a garage and 1500 sq. feet of open compound. He resides in a village and is an old man. He has separated major sons one of whom is residing in a house of his own in the town. That son Ramesh is a lawyer having office in the house in question. The landlord's declared need is three fold; (1) He wants to shift from village to the town which is at a distance of about 7 miles on account of sickness, (2) His son Ashok has appeared for examination of Chartered Accountant and he would start practice in the house after passing, (3) He needs some portion as godown for stocking agricultural produce. The landlord also applied under Clause 13(3)(vii) on the ground that the house has become dilapidated and could not be repaired without tenant vacating the same. Now in evidence, it has come out that the sons are major and separated by a regular partition deed and that they were not dependent on the father. At appellate stage, the case about need of Ashok was given up and that of Ramesh was put forth. No expert about condition of building was examined.

13. Considering all these circumstances both the Authorities concurrently recorded a finding of fact that no genuine need for additional accommodation was established by the landlord either for himself or for members of his family or the dependents. It was also held that dilapidated condition of the house was not proved. Shri Lambat, the learned Counsel for the petitioner, has submitted that, even the need of the major independent son could be considered as need of the landlord. It is not possible for me to accept this contention specially in view of the changing stand on the point. Having considered all aspects I am not impressed that any case for interference in writ jurisdiction on merits of the matter exists.

14. To conclude, proviso to Clause 13(3)(vi) of the Rent Control Order is struck down as ultra vires of Article 14 of the Constitution but on merits the petition is dismissed and the rule is discharged. Under the circumstances, there shall be no order as to costs.


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