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M. Muniswamiah and Sons Vs. E.K. Govinda Raj - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1011 of 1963
Judge
Reported inAIR1965Kant156; AIR1965Mys156
ActsMysore House Rent and Accommodation Control Act, 1951 - Sections 8(2), 8(3) and 17; Code of Civil Procedure (CPC), 1908 - Sections 115
AppellantM. Muniswamiah and Sons
RespondentE.K. Govinda Raj
Excerpt:
tenancy - bona fide requirement - sections 8 (3), 8 (5) and 17 of mysore house rent and accommodation control act, 1951 - revision application under section 17 against eviction order - landlord required additional accommodation for his own use and occupation - once landlord establishes that he bona fide requires premises for his occupation, he is entitled to recover possession from tenant as per section 8 (3) (c) irrespective of fact whether he would occupy premises without making alterations to them - in case application is one seeking possession of premises for personal use and occupation then inspite of statement that premises also requires repairs, landlord is entitled to get premises for occupation and effect necessary repairs to suit his own needs - where application is made for.....order(1) this revision application is by the defendant under s. 17 of the mysore house rent and accommodation control act, 1951 (which hereafter shall be referred to as the act), against the order, dated the 5th of july 1963, passed by the district judge, civil station, bangalore, in h.r.c. appeal no. 102 of 1962. by that order, he reversed the order passed by the munsiff, civil station, bangalore, in h.r.c. no. 290 of 1960.(2) the respondent landlord is the owner of premises no. 3 mahatma gandhi road, bangalore. he is in possession of two thirds portion thereof, and the remaining one third portion is in the possession of the tenant. he, (landlord) therefore, made an application in the court of the munsiff civil station, bangalore, under s. 8(2)(ix) and s. 8(3)(c) of the act to seek.....
Judgment:
ORDER

(1) This revision application is by the defendant under S. 17 of the Mysore House Rent and Accommodation Control Act, 1951 (which hereafter shall be referred to as the Act), against the order, dated the 5th of July 1963, passed by the District Judge, Civil Station, Bangalore, in H.R.C. Appeal No. 102 of 1962. By that order, he reversed the order passed by the Munsiff, Civil Station, Bangalore, in H.R.C. No. 290 of 1960.

(2) The respondent landlord is the owner of premises No. 3 Mahatma Gandhi Road, Bangalore. He is in possession of two thirds portion thereof, and the remaining one third portion is in the possession of the tenant. He, (landlord) therefore, made an application in the Court of the Munsiff Civil Station, Bangalore, under S. 8(2)(ix) and S. 8(3)(c) of the Act to seek possession of the premises. He therein stated that since the house is an old one, it required reconstruction and remodeling which could not be undertaken without the same being vacated by the tenant. He further stated that after the completion of the said work, he would occupy the same himself for his own business. He, therefore, requested that the tenant may be directed to quit and deliver possession of the premises to him.

(3)The application of the landlord was contested by the tenant. He contended inter alia that it is not true that the landlord needs the premises in question as a additional accommodation for his own business, that he has been occupying the premises in question as a tenant for a considerable period of time and that great hardship and loss would be caused to him if he is directed to vacate the premises. He also contended that the premises needs no repairs and that the same is in good condition. He, therefore, stated that the claim made by the landlord for possession is not true and that his application should be dismissed.

(4) The learned Munsiff found that the landlord failed to prove that he bona fide required the premises for his own use and occupation. He further found that it is not true that the landlord requires the premises for reconstruction since he led no evidence to indicate hi intention to reconstruct it. He further held that since the tenant is carrying on his business in the premises for a pretty long time, he would be put to great hardship if he is evicted therefrom. As a result of these findings, he dismissed the application of the landlord.

(5) Against the said order, an appeal was preferred by the landlord in the Court of the District Judge, Civil Station, Bangalore. The learned District Judge, differing from the view taken by the trial Court, held that the premises are bona fide and reasonably required by the landlord as an additional accommodation for his own use and occupation. He also held that the possession of the premises is required by the landlord for the purpose of effecting repairs and reconstruction and that the hardship which may be caused to the tenant on his eviction will not outweigh the advantage to the landlord. He, therefore, reversed the order of the trial Court and allowed the appeal, with the result that the application made by the landlord was granted and an order of eviction was passed directing the tenant to hand over possession of the premises to the landlord. It is against this order of the learned District Judge that the tenant has preferred this revision application under S. 17 of the Act.

(6) Mr. M.S. Gopal, appearing for the petitioner, has submitted two points for my consideration. The first is that the finding of the learned District Judge that the house in question is reasonably and bona fide required by the landlord either under clause (ix) of sub-section (2) of S. 8 or under clause (c) of sub-section (3) of S. 8 read with clause (e) of the said section is illegal and without jurisdiction as it has been arrived at by not taking into consideration the relevant circumstances which are necessary to be considered in recording a finding as to the bona fides of the landlord and, therefore, this Court would be entitled to interfere with it under S. 17 of the Act.

(7) His second submission is that the application falls under clause (ix) of S. 8(2) of the Act and that the tenant is entitled to the benefit of the provisions of S. 8(5) of the Act. Further it is contended that the eviction of the tenant is sought on two grounds which, according to him, are mutually exclusive and independent of each other and the landlord could not claim eviction of the tenant on such grounds, since the eviction, if ordered, would result in denying the tenant the right or advantage given to him under S. 8(5) of the Act. He, therefore, urges that the learned District Judge has no jurisdiction to order the eviction of the tenant resulting in violation of the said provisions. On these two submissions, he contends that the order passed by the learned District Judge is liable to be set aside.

(8) On the other hand, Mr. Sundaraswamy appearing for the landlord, submits that it is not open to the petitioner tenant to challenge the finding of the learned District Judge as to the bona fide requirements of the landlord for possession of the premises for his own use and occupation after the constructing the same; that finding being a finding of fact, this Court has no jurisdiction under S. 17 of the Act to interfere with it. He further submits that the application of the landlord really fails under clause (c) of section 8(3) of the Act, i.e. an application seeking possession of the premises for his own use and occupation as an additional accommodation after effecting the necessary repairs and reconstruction to suit his own purpose, and, therefore, the applications does not fall under clause (ix) of S. 8(2) of the Act. In such circumstances, the provisions of the S. 8(5) of the Act have no application, and the order of the learned District Judge directing the tenant to hand over possession really involves no violation of the said provisions. He, therefore, argues that the order passed by the learned District Judge is perfectly legal and valid and requires to be confirmed.

(9) These, in brief, are the submissions made by the learned counsel on either side in support of their respective cases.

(10) Before, I proceed to consider the respective submissions, I must find out what is the jurisdiction of this Court while dealing with a revision application under section 17 of the Act.

(11) Under sub-section (1) of this section, it is open for the High Court to consider in revision as to the legality or correctness of a decision or order passed by the District Judge provided that order had been passed by him without or in excess of the jurisdiction vested in him. In other words, if the order of the learned District Judge is within his jurisdiction and he is competent to pass it, then, however erroneous that order may be, this Court shall have no power to interfere with it.

(12) In Misrilal Parasmal v. H.P. Sadasiviah, reported in : AIR1965SC553 their Lordships of the Supreme Court have considered the scope of the power of the High Court to interfere with the order of the District Judge under section 17 of the Act, and stated :

'No doubt sub-section (1) of S. 17 would indicate that the High Court has wide powers in dealing with revision applications, but the proviso to it which was added by Act 22 of 1954, restricts the powers of the High Court in any case in which an appeal lies under S.15 of the Act to the District Court.

.........Now, under the proviso it is clear that the powers of the High Court while dealing with an appeal from the order of the District Court are exactly the same as those conferred on it by S. 115 of the Code of Civil Procedure. That is to say, it can interfere with an order of the subordinate court only if there is an error pertaining to jurisdiction in that order.

The High Order has thus no power to reverse the order of a District Court merely on the ground that it was vitiated by an error of law or upon the ground that a question of fact, however vital it may be, was erroneously decided by the District Court........'

Thus it is obvious that the powers of the High Court in dealing with revision under section 17 of the Act are very much limited, and therefore unless it is shown that the order complained of is passed without jurisdiction, this Court could not interfere with that order.

(13) I shall now deal with the first submission made by Mr. M.S. Gopal for the tenant that the finding of the learned District Judge that the premises are bona fide and reasonably required by the landlord, is without jurisdiction in that, as contended by him, in arriving at that finding, the learned District Judge has failed to consider the relevant circumstances which are necessary to be considered in finding out the bona fides of the landlord, whether his application is either under section 8(2)(ix) or clause (c) of section 8(3) of the Act.

(14) Sub-section (1) of section 8 gives protection to the tenant against eviction. Sub-section (2) enables a landlord who seeks to evict a tenant in possession to apply to the court for a direction in that behalf, and if the Court, after giving the tenant a suitable opportunity of showing cause against such application, is satisfied that the house is required by the landlord on any one or more of the grounds mentioned in that sub-section, it shall make an order directing the tenant to put the landlord in possession of the house, and if it is not so satisfied, it shall make an order rejecting the application,. Therefore, what is necessary for the landlord when he makes an application under section 8(2)(ix) of the Act, is to satisfy the court that the house is bona fide required for carrying out the repairs or reconstruction, and while finding out the reasonableness or the bona fides of the landlord, the Court must have, it is contended, regard to the surrounding circumstances in which the application has been made by the landlord, the nature and condition of the premises sought to be reconstructed, the ability of the landlord either to repair or reconstruct the house and such other circumstances which are material should be considered by it. In this case, it is contended by the learned counsel, the District Judge has not considered any of the circumstances stated above, and therefore, his finding is not a correct finding which should be accepted by this Court.

(15) In support of his contention, Mr. Gopal relies on a decision of the Supreme Court in Neta Ram v. Jiwan Lal, reported in : AIR1963SC499 . In that case, their Lordships were considering the provisions of S. 13(3)(a)(iii) and (b) of the Patiala and East Punjab States Union Urban Rent Restriction Ordinance (8 of 2006 BK). The landlord made an application seeking to eject the tenant on the ground of bona fide requirements for reconstruction or re-erection of the premises. The relevant provisions have been quoted by their Lordships in their Judgment which are to the following effect:

'13(1)...........................................

(3)(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:--

..........................................................

(iii) in the case of any building, if he requires it for the re-erection of that building or for its replacement by another building, or for the erection of other buildings;

......................................

(b) The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller and if the Controller is not so satisfied, he shall make an order rejecting the application.'

These were the relevant provisions which came for consideration by their Lordships who stated the scope and effect of clause (b) as follows:

'Clause (b) clearly shows both affirmatively and negatively that the landlord must satisfy the Controller about his claim, before he can obtain an order in his favour. The Controller has to be satisfied about the genuineness of the claim. To reach this conclusion, obviously the Controller must be satisfied about the reality of the claim made by the landlord, and this can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation, the possibility of its being put to a more profitable use after construction, the means of the landlord comes forward and says that he entertains a particular intention, however strongly, said to be entertained by him. The clause speaks not of the bona fides of the landlord, but says, on the other hand, that the claim of the landlord that he requires the building for reconstruction and re-erection must be bona fide, that is to say, honest in the circumstances. It is impossible, therefore, to hold that the investigation by the Controller should be confined only to the existence of an intention in the mind of the landlord to reconstruct. This intention must be honestly held in relation to the surrounding circumstances.....'

(16) It is obvious that while considering the scope and effect of clause (b) of the Act, their Lordships emphasised the fact that what is necessary to consider is that the claim of the landlord must be bona fide, and that it cannot be said to be bona fide unless it satisfies the Controller about the reality of the claim made by him in regard to the surrounding circumstances set forth above. But the reasonableness or the bona fides of the landlord is not the same thing as the claim of the landlord being bona fide. The two are quite distinct and one should not be confused with the other. Clause (ix) of section 8(2) of the Act speaks about the reasonable and bona fide requirements of the landlord and not about the claim of the landlord being bona fide. The scope of the said clause has been considered by their Lordships of the Supreme Court in : AIR1965SC553 .

(17) One of the arguments that was advanced on behalf of the appellant-tenant in that case related to the bona fides of the landlord since it was contended that the claim made by the landlord was mala fide, and it was urged that since it was essential for the landlord to establish his bona fides so as to be able to take advantage of the statutory provisions, the question of jurisdiction was involved and that, therefore, it was open to the High Court to go into that question. Their Lordships negatived the contention stating that sub-section (2) of S. 8 of the Act.

'empowers the Court to grant such permission if it is satisfied that one of the several circumstances set out in that sub-section exists.'

They stated further :

' One of those circumstances is set out in clause (ix) of that section, which runs thus:

'That the house is reasonably and bona fide required by the landlord for carrying out repairs or reconstruction which cannot be carried out without the house being vacated;................'

Thus jurisdiction is conferred upon the Court to order eviction of the tenant upon its satisfaction as regards the bona fide requirement of the landlord to obtain possession of the house. Thus the condition which confers jurisdiction upon the court is its satisfaction about the bona fide requirement of the landlord. If the Court is not satisfied about such 'requirement of the land it will have no jurisdiction to make an order with the aid of that clause. If, however, it says that it is satisfied it cannot be regarded as having committed an error pertaining to jurisdiction merely because it may have formed a wrong conclusion as to the bona fides of the landlord in requiring possession of the house. No illegal assumption of jurisdiction is involved in arriving at a wrong finding on the matter'.

(18) Their Lordships, in the case reported in : AIR1963SC499 have pointed out that clause (b) speaks mot of the bona fides of the landlord but says, on the other hand, that the claim of the landlord that he requires the building for reconstruction or re-erection must be bona fide. Thus their Lordships have made a clear distinction between the two, namely, the reasonableness and bona fide requirements of the landlord, and the claim of the landlord being reasonable and bona fide. Thus in my opinion, the decision of their Lordships : AIR1965SC553 being direct on the interpretation of clause (ix) of S. 8(2) of the Act is the reasonableness and bona fide requirements of the landlord only.

(19) In this context, Mr. M.S. Gopal has brought to my notice the decision of this Court in M/s. Misrilal Parasmall v. H.P. Sadasiviah 1963 (1) Mys. LJ 100 which deals with the interpretation of clause (ix) of section 8(2) of the Act, and a single Judge of this Court has held:

'Section 8(2)(ix) of the Act stipulates that the landlord should first establish that he wants to reconstruct the suit house and thereafter he should establish that the suit is reasonably and bona fide required for reconstruction purposes. The words 'reasonably and bona fide' have reference to the requirement of landlord. they do not control the words 'repair or reconstruct'. It is unnecessary for the landlord to prove that there are any compelling grounds to reconstruct the house. He may effect reconstruction with a view to put his house or site into a better use or as a measure of investment.'

This decision has been recently followed by me in C.R.P. No. 964 of 1963 dt.17-8-1964 (Mys.). This decision, according to Mr. Gopal, runs counter to the decision of their Lordships of the Supreme Court in : AIR1963SC499 , and he invites me to state that the decision of mine following that of the earlier decision runs counter to that decisions of their Lordships of the Supreme Court and therefore, is not a good law. He further states that the learned District Judge has, while considering the bona fide requirements of the landlord, relied upon the decision of this Court and, therefore, he argues that the order of the learned District Judge, relying upon the decision of this Court, is not a valid order.

(20) I am unable to agree with the learned council that our decision runs counter to the decision of their Lordships of the Supreme Court. I have already referred to the decision reported in : AIR1965SC553 where their Lordships have in clear terms stated that what is necessary to be considered under clause (ix) of section 8(2) of the Act is the reasonableness and bone fide requirement of the landlord.

(21) In the decision rendered by the Supreme Court reported in : AIR1963SC499 , their Lordships were dealing with an altogether different provision in the Patiala and East Punjab States Union Urban Rents Restriction Ordinance, and that decision was rendered with reference to the specific provision of that Act, unless Mr. Gopal contents that there is no difference in the two provisions and, therefore, there is a conflict between the two decisions of the Supreme Court, in : AIR1965SC553 and the other reported in : AIR1963SC499 . Since the decision of the Supreme Court : AIR1965SC553 being direct on the interpretation of clause (ix) of section 8(2) of the Act, I must state that the decisions of this Court are consistent with the decision of the Supreme Court.

(22) The District Judge has found on the evidence that the house is reasonable and bona fide required by the landlord for repairs and reconstruction. His attention was drawn to the decision of the Supreme Court : AIR1963SC499 on which Mr. Gopal relies and he found on the evidence, applying all the tests, stated in that decision, that the business of the landlord is expanding and that he needs the house as an additional accommodation for his business. Thus the District Judge was satisfied about the bona fides of the landlord under both the clauses. But Mr. Gopal contends that the landlord has placed no evidence on record to justify his claim that he requires additional accommodation for his own use and occupation. The learned District Judge has given reasons, which are substantiated by evidence, for holding that the landlord requires additional accommodation for his own use and occupation and, therefore, that finding cannot be interfered with in this revision. the learned District Judge has also found as required by clause (e) of section 8(3) of the Act that the claim of the landlord is bone fide, and that finding is supported by the evidence on record. He has further found, as required by the proviso to clause (e) of sub-section (3) of section 8 of the Act that he was satisfied that the hardship which may be caused to the tenant by granting the application under clause (c) would not outweigh the advantage to the landlord. These being findings of fact are not liable to be disturbed in this revision petition.

(23) Therefore, the first submission made by Mr. Gopal that the finding of the learned District Judge regarding the reasonable and bona fide requirements of the landlord is without jurisdiction must fail.

(24) The next submission of Mr. Gopal is that the application of the landlord falls under clause (ix) of section 8(2) of the Act and the tenant is entitled to the benefit of the provision of section 8(5) of the Act and that his eviction is sought two grounds which are mutually exclusively and independent and that such an application is not permissible, since, if such application is granted, it would result in denying the tenant of the advantage given to him under section 8(5) of the Act. Mr. Sundaraswamy for the landlord contends that it is true that the application states, to begin with that it has been made under section 8(2)(ix) and section 8 (3)(c) of the Act, but he states that it is essentially an application which falls under clause (c) of section 8 (3) of the Act, requiring possession of the suit premises as additional accommodation for the personal use and occupation of the landlord which he wants to occupy and make use of only after reconstructing and modernising it. Such an application of composite requirements is not prohibited by any of the provisions of the Act, and if there is no prohibition it would be perfectly competent for a landlord to seek possession of the premises for his own use as additional accommodation and to reconstruct and to repair it to suit his own purpose. In that event, he contends that the provisions of section 8(5) of the Act have no application.

(25) As I stated earlier, sub-section (2) of S. 8 of the Act enables a landlord to evict the tenant and seek possession of the premises if he satisfies any one of the conditions mentioned in that section. The landlord has mentioned in his application clause (ix) of S. 8(2) and also stated that he seeks possession of the suit premises as additional accommodation for his own use under clause (c) of section 8(3) of the Act. This sub-section also enables the landlord to apply to the Court for an order directing the tenant to put him in possession of the premises subject to the provisions of clause (d) of that sub-section. Under clause (ix) of section 8(2), the landlord may apply for evicting the tenant on the ground that the house is reasonably and bona fide required by him for carrying out repairs (or contractions) which cannot be carried out without the house being vacated.

(26) Therefore, the question whether the application falls under clause (c) of section 8(3) or clause (ix) of section 8(2) of the Act, requires determination. The trial court did not consider that aspect of the case, since, it held that the landlord failed on both the grounds. The District Judge disagreeing with trial court, held that the landlord wanted the premises on both the grounds and, therefore, did not consider whether the application falls under clause (c) of section 8(3) or clause (ix) of section 8(2) of the Act. But, in this court, the question is raised and, therefore, needs determination.

(27) The landlord in his application has stated that his business is expanding and that he requires additional accommodation for the purpose of his own business. He has further stated that the house is old and requires repairs and reconstruction and after completing the said works, he will occupy the same himself for the purpose of his own business. That is how he sought possession of the premises.

(28) The District Judge has found in favour of the landlord on both the grounds,. In my opinion, the application falls under clause (c) of section 8(3) of the Act for the following reasons. The District Judge has found on evidence that the landlord requires the house as an additional accommodation for the purpose of his business which he is carrying on. The mere fact that he intends to repair and reconstruct the house either on account of his own volition or on account of the condition of the house, does not affect the question of his requiring the house bona fide and reasonably for his own occupation, when he has proved his need for occupying the house. There is no such prohibition in the language of clause (c) of section 8(3) of the Act, or in the other provisions of the Act, to the effect that the landlord must occupy the house without making any alterations in the house. There could not be any logical reason for such a prohibition.

(29) It is to be remembered that under ordinary law of the land, the landlord is entitled to eject the tenant whenever he likes, after following certain procedure. This right of the landlord is now restricted by the Act, by giving certain protection to the tenant. Section 8(2) of the Act enables the landlord to evict the tenant on the grounds mentioned in it, and under section 8(3) of the Act, the landlord can apply for an order directing the tenant to put him in possession of the house, if he satisfies the requirements mentioned therein. There are no restrictions mentioned in the grounds; if so, there is no reason why restrictions not mentioned in the grounds should be read into them. Therefore it would not be right to hold that clause (c) of section 8(3) of the Act applies only when the landlord bona fide needs to occupy the house without making any alterations in it.

(30) Further there are provisions in the Act, which ensure that the provisions of clause (c) of section 8(3) are not abused. Section 8(4) provides that where the possession of the house is obtained by the landlord under section 8(3) of the Act, if the house is not occupied by him, or having occupied it, he vacated it without reasonable cause, the tenant who has been evicted may apply for an order directing that he shall be restored to the possession of the house. This tends to ensure that the landlord does not eject the tenant unless he really requires the house for occupation by himself.

(31) It has not been pointed out to me that there is any prohibition in the Act against making such an application of composite requirements. I have not been able to find that there are any restrictions either, mentioned in any of the provisions of the Act that such an application could not be made. Therefore I see no impediment in the way of the landlord, either on principle or otherwise, making such an application. In such circumstances, if the application is really an application for an order directing the tenant to put the landlord in possession of the house in the ground of personal use and occupation as an additional accommodation and that he would occupy the premises after suitably repairing or reconstructing it to suit the needs, and the landlord gets possession of the house under clause (c) of sub-section (3) of section 8 of the Act for his own use and occupation then, he as the owner of the house would be free to exercise his right and deal with the property in any way he likes. He may repair or reconstruct it so as to suit his own requirements and, therefore, if the landlord, while seeking possession of the house for his own use and occupation also states that the premises are required for reconstruction or repairs, it would not render the application an application under section 8(2)(ix) of the Act.

(32) I am, therefore, of the opinion, for the reasons stated above, that the application falls under clause (c) of section 8(3) of the Act. In that view of the matter, Mr. Gopal's contention that the two grounds for ejectment are mutually exclusive and therefore the landlord cannot take advantage of clause (c) of section 8(3), when his application falls under clause (ix) of section 8(2) of the Act, in view of the immediate steps he has to take after getting possession of the house, needs no examination.

(33) The question which arises is whether the provisions of section 8(5) of the Act apply to cases where the landlord reasonably and bona fide requires the house for his own occupation as an additional accommodation under clause (c) of section 8(3) of the Act even if he had to repair and reconstruct it and then occupy it himself.

(34) Now Clause (c) of sub-section (3) of S. 8 provides that a landlord who is occupying only a part of a house whether residential or non-residential, may notwithstanding anything contained in clause (a) apply to the court for an order directing the tenant occupying the whole or any portion of the remaining part of the house to put him in possession thereof, if he requires additional accommodation for residential purposes or for the purposes of a business which he is carrying on, as the case may be.

(35) Clause (e) which is material runs as follows :

'The Court shall, if it is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the house on such date as may be specified by the court and if the court is not so satisfied, it shall make an order rejecting the applications :

'Provided that, in the case of an application under clause (c), the Court shall reject the application if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord......'

The other provisos are not relevant.

(36) Then clause (a) of sub-section (5) of S. 8 provides as follows:

'The Court shall while passing an order of eviction on the ground specified in clause (ix) of sub-section (2) ascertain from the tenant whether he elects to be placed in occupation of the house or part thereof from which he is to be evicted and if the tenant so elects shall record the fact of such election in order and specify in the order the date on or before which he shall deliver possession so as to enable the landlord to commence the work of repairs or reconstruction.'

This would show that the provisions of sub-section (5) of S. 8 would come in only when the Court is passing an order of eviction on the ground specified under clause (ix) of sub-section (2) of S. 8 of the Act, i.e., in cases where the landlord claims the possession of the house reasonably and bona fide for carrying out repairs or construction, and after reconstruction or repairs, he intends to let it to a tenant.

It is, therefore, in such cases that sub-section (5) of S. 8 provides that when an order of eviction passed in pursuance of clause (ix) of sub-section (2) of S. 8. the Court must ascertain from the tenant whether he elects to be placed in occupation of the house or part thereof from which he is to be evicted, and if the tenant so elects, the Court shall record the fact of such election. But in case where the possession of the house is sought on the ground of personal use and occupation and it is also stated that before the landlord occupies the premises he wants to reconstruct or repair it so as to suit his own needs, such application falls under clause (c) of S. 8(3) of the Act. If so, can it then be said that the provision of sub-section (5) of S. 8 are attracted? In my opinion, it would not. The provisions of sub-sec (5) of S. 8 would apply only to cases where the landlord seeks possession of the house on the ground of repairs or reconstruction and thereafter intends to let it out to a tenant. But if he seeks possession of the premises under clause (c) of S. 8(3) of the Act and wants to occupy the same himself, the provisions of sub-section (5) of S. 8 of the Act would have no application even if the landlord states that he wants its possession under clause (ix) of S. 8(2) of the Act also.

(37) In support of his contention that sub-section (5) of S. 8 of the Act has no application where the landlord seeks possession of the premises for his own use and occupation stating also that the premises requires reconstruction or repairs, Mr. Sundarswamy has placed reliance on Ramniklal Pitambardas v. Indradaman Amratlal, reported in : [1964]8SCR1 . In that case their Lordships were required to consider the provisions of cls. (g) and (hh) of S. 13(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) and to determine whether the application of the landlord really fell under clause (g) or under clause (hh) of sub-section (1) of S. 13 of that Act. These clauses which have been quoted in their judgment are as follows:

'13 (1)(g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust;'

'(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.'

The question was whether the application made by the landlord as already stated, came under clause (g) or clause (hh) of sub-section (1) of S. 13 of that Act. Their Lordships stated that the application really fell under clause (g) of that section. There also it was contended that those two clauses are mutually exclusive, and, therefore, the landlord cannot take advantage of clause (g) when his case falls under clause (hh)--a contention similar to the one raised by Mr. Gopal.

(38) Their Lordships held that the case of the landlord really falls under clause (g) of S. 13(1) of the Act 57 of 1947, and gave reason for their conclusion. Their Lordships further stated that the landlord's right under ordinary law is restricted in the special circumstances prevailing in regard to the availability of accommodation and the incidental abuse of those circumstances by landlords in demanding unjustifiably high rents. The contentions that when the landlord seeks possession of the house, he should occupy it as it is without any alteration, was rejected by their Lordships. They have pointed out that there is no prohibition in the Act that the landlord must occupy the house as it is without either repairing or altering the same, and stated:

'There is, therefore, no reason why restrictions not mentioned in the grounds be read into them' It was further stated by their Lordships that when the landlord bona fide needs to occupy the premises, he would be justified in occupying them after making the necessary alterations in the premises so as to suit his needs and that it cannot be justifiably be contended that the landlord must occupy the identical building which the tenant occupies. They further stated that there is no ground or justification to give such a narrow construction either to the word 'premises' or to the word 'occupies'. Their Lordships then pointed out that the provisions of clause (hh) which have been quoted above apply to cases where the landlord does not require the premises for his own occupation but requires them for erecting a new building which is to be let out to tenants. And in support of that conclusion, their Lordships referred to the various provisions of the Act and finally held:

'These provisions clearly establish that the provisions of clause (hh) apply when the landlord desires to demolish the premises for the purpose of erecting a new building on the premises for being let to tenants.'

(39) In my opinion for the same reasons, the provisions of sub-section (5) of S. 8 of the Act must similarly be interpreted, i.e., when the landlord seeks possession of the premises for repairs or reconstruction, then the repairs or reconstruction are intended for letting out the premises to tenants.

(40) There are similar provisions embodied in cls. (a), (b) and (c) of sub-section (5) of S. 8 of the Act. If the tenant is sought to be evicted on the ground mentioned in clause (ix) of sub-section (2) of S. 8 of the Act, then he must be given all the benefits mentioned in sub-section (5) of S. 8 of the Act, and not otherwise. Therefore, in my opinion, once the landlord establishes that he bona fide requires the premises of his occupation, he is entitled to recover possession thereof from the tenant in view of the provisions of clause (c) of sub-section (3) of S. 8 of the Act, irrespective of the fact whether he would occupy the premises without making any alterations to them or after effecting necessary alterations or reconstruction. If so, the contention of Mr. Gopal that the learned District Judge was in error in not giving to the tenant the benefit of the provisions of sub-section (5) of S. 8 of the Act, cannot be entertained.

(41) Mr. Sundaraswamy then relied upon a decision of the House of Lords in Matthew's James McKenna v. Porter Motors Ltd. 1956 AC 688. The facts of that case have been stated by their Lordships as follows:

'By S. 24 of the Tenancy Act, 1948, of New Zealand :

'(1) An order for the recovery of possession of any...... urban property........may........ be made on one or more of the grounds following... (h)... that the premises are reasonably required by the landlord.. for his.. own occupation... (m) That the premises are reasonably required by the landlord for demolition or reconstruction,. Where (in the circumstances of the present case) a year's notice to quit has been given under S. 25 of the Act an order may be made under S. 24(1)(h) although the landlord does not offer alternative accommodation to the tenant, whereas paragraph (m) is available to the landlord only if he offers suitable accommodation.

The suit premises in that case were a hotel of which the appellants had been lessees for a long time. The landlords intended to demolish it and build a garage for the purposes of their own business, and after serving a year's notice, they instituted the proceedings claiming possession of the premises on the ground specified in S. 24(1)(h)--that they required that premises for their own occupation. They made no offer of alternative accommodation. The appellants contended that ' the premises' in paragraph (h) meant the subject matter of the lease, that that included the hotel, and that there must, therefore, be an intention to occupy the hotel in order to satisfy paragraph (h) and that intention was absent. Their Lordships held :

'That in both paragraphs (H) and (m) of S. 24 (1) of the Tenancy Act the word 'premises' meant the subject matter of the lease, but that the landlord nevertheless required the premises, 'for his own occupation' although he was intending for the purposes of his occupation to make substantial alterations or to put up a wholly new building. The respondents were accordingly entitled to possession...'

They pointed out that '

'The scope of paragraph (m) was limited by paragraph (h) to cases where the landlord required the premises for demolition or reconstruction with a view to letting or selling them or making some use of them other than for his own occupation.'

Thus it is clear on the authority of this case also that it cannot be reasonably held that when a landlord seeks possession of the premises, he must occupy them as they are. He entitled to make suitable alterations in the premises according to his needs, and though it was incumbent on the landlord to make suitable accommodation for the tenant who had to be evicted, such a limitation could not operate in cases where the landlord seeks possession of the premises for his own use and occupation. Similarly, in the present case, when the landlord sought possession of the suit premises for his own use and occupation after reconstruction, the limitation imposed by sub-section (5) of S. 8 would have no application to such a claim by the landlord.

(42) The other case on which reliance has been placed by Mr. Sundaraswamy is Krishna Das Nandy v. Bidhan Chandra Roy, reported in : AIR1959Cal181 . There, their Lordships were considering the scope and effect of proviso (b) to sub-section (1) of S. 12 of the West Bengal Premises Rent Control (Temporary Provisions) Act (17 of 1950). In paragraph 44 of their Lordships judgment, proviso (h) has been quoted as follows:

'Now, proviso (h) permits ejectment where the premises are reasonably required by the landlord either for purposes of building or rebuilding or for how own occupation.'

It would be seen that this proviso is of a composite character which enables a landlord to eject the tenant when the premises are reasonably required by him either for purposes of building or rebuilding or for his own occupation.

(43) In our Act, there are two separate provisions made, as I have pointed out, in cl.(ix) of sub-section (2) of S. 8 and also in clause (c) sub-section (3) of S. 8 of the Act. But the proviso (h) to sub-section (1) of S. 12 of the West Bengal Premises Rent Control (Temporary Provisions) Act is of a composite character. In that case, the landlord made an application that the premises were required for how own occupation after building and/or rebuilding the same as the premises in their present condition were not fit for his residence or habitation. Their Lordships, in the circumstances, held that where the landlord's case is that he requires the disputed premises for building and/or rebuilding for his own occupation, or, in other words, that he requires them for his own occupation and for that purpose, he will build and/or rebuild them, such a requirement of the landlord would come within the phrase 'for his own occupation of the premises.'

(44) Thus it is clear from this decision that where an application, although of a composite character, is one seeking possession of the premises for personal use and occupation, then, in spite of the statement that the premises also requires repairs and reconstruction, the landlord would be entitled to get the premises for occupation and effect the necessary repairs or rebuild them to suit his own needs, and where the application is made for possession for effecting repairs and reconstruction with a view to let out them to tenants, then the limitation, such as the one imposed in sub-section (5) of S. 8 of the Act would come into operation.

(45) Therefore, in my opinion, the contention of Mr. M.S. Gopal that the order of the learned District Judge is in violation of the provisions of sub-section (5) of S. 8 of the Act, cannot be accepted for the reasons mentioned by me above.

(46) For the reasons stated above, I confirm the order passed by the lower appellate Court and dismiss this revision petition with costs.

(47) The learned District Judge gave three months' time to the tenant to vacate and deliver possession of the premises to the landlord. The said period will run from the date of this order

AI/LGC/DVV

(48) Petition dismissed.


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