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Ratilal Bros. Vs. the Govt. of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Petn. No. 17 of 1950-51
Judge
Reported inAIR1951Kant66; AIR1951Mys66; ILR1951KAR99
ActsMysore House Rent and Accommodation Control Order; Constitution of India - Article 226
AppellantRatilal Bros.
RespondentThe Govt. of Mysore and anr.
Appellant AdvocateR. Shankar Rao, Adv. for K.V. Subbarao, Adv.
Respondent AdvocateAdv. General and M.V. Srinivasa Iyengar, Adv. for Resp. No. 2
DispositionPetition dismissed
Excerpt:
.....'occupation' occurs in both sub-clauses 1 & 2 with reference to residential as well as the non-residential buildings. while occupation includes possession & also something more, legal possession does not of itself constitute possession (stroud's judicial dictionary). if as contend-ed for the peters 'occupation' is synonymous with 'residence',then the word could not find a place in sub-clause (ii) & the word 'residence' in the place of 'occupation' in sub-clause (i) would be more appropriate & have better fitted with the petnrs' construction. , remarked :what is an occupation is a question of fact in each case to be determined with reference to certain well-known principles of law. clause 9 (3) (b) states that if the controller is satisfied that the claim of the landlord is bona fide,..........from a time long prior to the date of the purchase by resp. 2. an appln. made by resp, 2 to the house rent controller for eviction of the petnrs. on the ground that it was needed for opening the school was unsuccessful. a similar appln. 61ed in the following year was allowed by the house rent controller dismissed by the labour comr. on appeal but eventually granted by the govt. it is this order of govt. which is attacked by the petnrs. & with respect to which the writs are prayed for.2. it is beyond dispute, this ct. has jurisdiction to issue the writs as this is clearly provided for in article 226 of the constitution of india, but the conditions for the exercise of the power are not mentioned therein. the nature of these writs is explained by atkin l. j. in the king v. electricity.....
Judgment:

Yenkata Ramaiya, J.

1. This petn. is under Article 226 of the Constitution of India for the issue of writs of certiorari & prohibition to quash the order passed by reap. 1 & for a direction that the said order should not be executed. The ground on which the writs are sought is that the order passed by resp. 1 for eviction of the petnrs. from the premises of which resp. 2 is the owner is without jurisdiction under the provisions of the Mysore House Rent & Accommodation Control Order. Respondent 3 is said to be an unregistered association of Jains of the Swatambar cult & purchased the building in about the year 1947 for the purpose of running a residential Hindi school. The petnrs. have been the tenants of the premises from a time long prior to the date of the purchase by resp. 2. An appln. made by resp, 2 to the House Rent Controller for eviction of the petnrs. on the ground that it was needed for opening the school was unsuccessful. A similar appln. 61ed in the following year was allowed by the House Rent Controller dismissed by the Labour Comr. on appeal but eventually granted by the Govt. It is this order of Govt. which is attacked by the petnrs. & with respect to which the writs are prayed for.

2. It is beyond dispute, this Ct. has jurisdiction to issue the writs as this is clearly provided for in Article 226 of the Constitution of India, but the conditions for the exercise of the power are not mentioned therein. The nature of these writs is explained by Atkin L. J. in The King v. Electricity Commrs., (1924) 1 K. B. 171 at p. 204 : (93 L. J. K. B. 390) thus :

'The matter comes before us upon rules for writs of prohibition & certiorari which have been discharged by the Divisional Ct. Both writs are of great antiquity, forming part of the process by which the King's Cts. restrained Cts. of inferior jurisdiction from exceedingtheir powers. Prohibition restrains the tribunal from proceeding further in excess of jurisdiction; certiorari requires the record or the order of the Ct to be sent up tothe King's Bench Division, to have its legality inquiredinto, & if necessary, to have the order quashed. It is to benoted that both writs deal with questions of excessivejurisdiction, & doubtless in their origin dealt almost exclusively with the jurisdiction of what is described inordinary parlance as a Ct. of Justice. Bat the operation ofwrits has been extended to control the proceedings ofbodies which do not claim to be, & would not be recognised as Cts of Justice. Wherever any body of persons having legal authority to determine questions affecting therights of subjects, & having the duty to act judicially, actin excess of their legal authority they are subject to thecontrolling jurisdiction of the King's Bench Division exercised in these writs.'

As observed by Lord Chancellor (Viscount Simon) in Ryots of Garabandho v. Zamindar of Parlakimedi the writ of certiorari does not issue to correct purely executive acts but, on the other hand, its application is not narrowly limited to inferior 'Courts' in the strictest sense. Broadly speaking it may be paid that if the act done by the inferior body is a juridical act as distinguished from being a ministerial act, certiorari will lie. The order passed by the Govt. against the petnrs. cannot be said to be of a ministerial kind & it is, therefore, necessary to see as to whether it was beyond the powers given to them by the House Rent & Accommodation Control Order.

3. Sri B. Shankar Rao, the learned counsel on behalf of the peters has advanced three contentions to show that the order is one passed in excess of the powers conferred by the House Rent & Accommodation Control Order & these are: (i) when once an apply for eviction based on the allegation that the premises were required for running a school was dismissed, a second appln. setting forth the same reason does not lie; (2) Clause 12, House Rent Control Order, requires permission to be obtained for converting a residential building into a non-residential one & since no such permission has been obtained by Respondent 2, to make use of the building for running the school, the appln. for eviction was not maintainable & (3) running a school in the building cannot be regarded as occupation under Clause 9 (3) (i), House Rent Control Order & it is necessary that resp. 2 should himself live there for the application of that provision.

4. As it is conceded that on the date of the first appln. there was no provision for enabling the landlord to seek possession of the property for his own occupation & Respondent 2 availed himself of the amendment subsequently made in this behalf in the later appln., the objection to the second appln. as being barred on account of the need for the building being staged to be the same as that in the prior petn. fails. The second objection relates to the effect of Clause 12. Clause 12 no doubt states that without the written permission of the the Controller a residential building cannot be converted into a non-residential one. But this is not a condition imposed under Clause 9 for disposal of an appln. made by the landlord, in other words the existence of the permission of the Controller for converting a residential building into a non residential one is not a condition precedent to a valid appl. for eviction under Clause 9. Clause 9 (3) (a) for the application of which exception is taken reads as follows:

'A landlord may also apply to the Controller for an order directing the tenant to put him in possession of a house in the following cases.'

(i) if the house, being a residential building, is required for the bona fide occupation of the landlord & he is not already occupying another residential building of his own in the same city, town or other area ;

(ii) if the house, being a non residential building, is required for a business which the landlord is carrying on or which he wants to start & he is not already in occupation of a non-residential building in the same city, town or other area for purposes of such business.'

It is thus seen that the word 'possession' is used with reference to the order the Controller makes & occupation' for the requirement of the landlord. The word 'occupation' occurs in both Sub-clauses 1 & 2 with reference to residential as well as the non-residential buildings. Whether the meaning to be attached to these is the same or different is not clear but a distinction is male between 'possession' & 'occupation' in the strict legal sense. While occupation includes possession & also something more, legal possession does not of itself constitute possession (Stroud's Judicial Dictionary). If as contend-ed for the peters 'occupation' is synonymous with 'residence', then the word could not find a place in Sub-clause (ii) & the word 'residence' in the place of 'occupation' in Sub-clause (i) would be more appropriate & have better fitted with the petnrs' construction. 5. The term 'occupation' is not defined in the House Rent Control Order & seems to have wider signification than 'residence. Such a construction has been placed on it in the application of other enactments in which the word is used In Baladin v. Lalchan Singh, A. I. R. (14) 1927 ALL. 314 : (99 I. C. 876) it was observed that the word 'occupation' in Section 60(c), Civil P. C., does not necessarily mean residence only. In Emperor v. Taylor, 10 Bom L. R. 38, the question as to how the word 'occupation' in the Factories Act is to be construed arose for consideration, Chandavarkar J., remarked :

'What is an occupation is a question of fact in each case to be determined with reference to certain well-known principles of law. Tbe learned Mag. who has made the reference seems to think that the legal meaning of 'occupier' 'is a person who is in actual possession. But a person may occupy or possess a land or building actually or constructively ..... The question who is the occupier of a factory must therefore depend among others upon these considerations namely who alone has the right of using the factory for the purpose for which it is constructed & worked . . . . whose is the predominant possession of & general superintendence over it.'

The word 'occupy' is a word of uncertain meaning. Sometimes it indicates legal possession in the technical sense. At other times 'occupation' denotes nothing more than physical presence in aplace for a substantial period of time. In Queen v. The Justices of the West Biding of Yorkshire, (1842) 114 E. B. 198 : (2.Q. B. 501) Patteson J. ex-pressed thus:

'Now I quite concede that the word 'occupy' applies to a house, conveys to any man the meaning of living in the house; ninety-nine persons in a hundred, at least would so understand it .... Even 'actual occupation' would not necessarily mean 'residence', because a man might dwell in one parish & 'rent a house & land in the adjoining one, occupying it by his servants. Some other words therefore, are necessary to show residence.

Wightman J., explicitly said 'A man may occupy either land or dwelling house without residing.' The definition of 'landlord' includes guardians, trustees & receivers for any other person & B such persons happen to be more than one should they all or all the legal owners reside in the premises in order to invoke the aid of Clause 9 (3) (i), House Rent Control Order? In this case resp. 2 is not an individual person but an association the members of which cannot possibly reside together. But they want to conduct a school & for this the building must be in their occupation, directly if the members themselves conduct it or constructively if it is done through others. Clause 9 (3) (b) states that if the Controller is satisfied that the claim of the landlord is bona fide, he can direct the tenant to put him in possession of the building. The order of the Govt. implies that it is so & cannot be considered to be without jurisdiction. The petn. is, therefore, dismissed.


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