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H. Mohammad Sikandar Vs. Badrunissa Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 951 of 1973
Judge
Reported inAIR1975Ori130
ActsConstitution of India - Articles 226 and 227; Orissa House Rent Control Act, 1968 - Sections 7 and 7(4)
AppellantH. Mohammad Sikandar
RespondentBadrunissa Bibi and ors.
Appellant AdvocateR.C. Mohanty, Adv.
Respondent AdvocateGovt. Adv. and ;Y.A. Rahim, Adv.
DispositionPetition dismissed
Cases Referred(Sadhana Ausadhalaya v. Moningi Nookamma). The
Excerpt:
.....an order directing the tenant to put him in possession of the house, if he requires the house in good faith for the occupation or use of himself, any member of his family or of any person or persons for whose benefit the house is held by him. 1 does not purport to shift his practice to cuttack and even if he does, the shifting cannot be considered as requirement in good faith for occupation by the landlady. section 7 (4) of the act clearly provides that even if the occupation is required for any member of the family of the owner it will be a requirement of the house in good faith. 6. it is further contended that the landlady wants to remodel and repair the house for occupation after dismantling the same and that dismantling a house cannot be said to be requirement in good faith for..........an order directing the tenant to put him in possession of the house, if he requires the house in good faith for the occupation or use of himself, any member of his family or of any person or persons for whose benefit the house is held by him.'4. mr. mohanty did not rightly challenge the findings about sub-letting and damage caused to the house which are pure findings of fact. these two grounds are sufficient to sustain the order of eviction.5. it is, however, contended by him that the husband of opposite party no. 1 does not purport to shift his practice to cuttack and even if he does, the shifting cannot be considered as requirement in good faith for occupation by the landlady. section 7 (4) of the act clearly provides that even if the occupation is required for any member of the.....
Judgment:

Das, J.

1. Opposite party No. 1 is the landlady of the house situated in Oriya Bazar in Cuttack City. Petitioner is the monthly tenant thereof. Opposite party No. 1 filed a petition under Section 7 of the Orissa House Rent Control Act, 1967 (hereinafter referred to as the Act) for eviction of the petitioner on three grounds: (a) husband of opposite party No. 1 who is a practising lawyer in Puri town wants to shift his practice to Cuttack and as such the house is to be remodelled and made fit for occupation; (b) the house has been sub-let by the petitioner without consent of opposite party No. 1; and (c) according to the terms of the oral agreement which was entered into by the parties, petitioner was to effect necessary annual thatching and incidental repair to the suit premises, but without effecting any such repair or thatching he had deducted the amount from the monthly rent payable by him and thereby has caused acts of damage which has materially impaired the value of the house. The petitioner combated all the grounds of eviction.

2. The Rent Controller and the appellate authority have concurrently upheld all the grounds of eviction. The tenant has filed the writ application under Articles 226 and 227 of the Constitution challenging all the grounds of eviction.

3. Section 7 (2) of the Act, so far as material, is to the following effect:

'(2) If the Controller, after giving the tenant a reasonable opportunity ofshowing cause against the application, is satisfied-

(i) xx xx xx(ii) that the tenant has without consent of the landlord-

(a) transferred his right under the lease or sub-let the entire house or any portion thereof (if the lease does not confer on him any right to do so) or

(b) used the house for a purpose other than that for which it was let out; or

(iii) that the tenant has committed such acts of damage as are likely to impair materially the value or utility of the house;

(iv) xx xx xxhe shall make an order directing thetenant to put the landlord in possessionof the house.........'

Sub-section (4) of Section 7 runs as follows:

'The landlord may, subject to the provision of this Act, apply to the controller for an order directing the tenant to put him in possession of the house, if he requires the house in good faith for the occupation or use of himself, any member of his family or of any person or persons for whose benefit the house is held by him.'

4. Mr. Mohanty did not rightly challenge the findings about sub-letting and damage caused to the house which are pure findings of fact. These two grounds are sufficient to sustain the order of eviction.

5. It is, however, contended by him that the husband of opposite party No. 1 does not purport to shift his practice to Cuttack and even if he does, the shifting cannot be considered as requirement in good faith for occupation by the landlady. Section 7 (4) of the Act clearly provides that even if the occupation is required for any member of the family of the owner it will be a requirement of the house in good faith. The authorities below have concurrently found that the husband intends to shift his practice to Cuttack. This finding is essentially one of fact and cannot be assailed in writ jurisdiction.

6. It is further contended that the landlady wants to remodel and repair the house for occupation after dismantling the same and that dismantling a house cannot be said to be requirement in good faith for occupation. Reliance is placed on (1973) 39 Cut LT 946 (Sadhana Ausadhalaya v. Moningi Nookamma). The landlord in that case wanted eviction on the ground that he wanted a vacant parking area for his adjacent cinema house and for that purpose wanted to dismantle the house. He did not plead and adduce evidence satisfactorily that the area covered by the house was necessary for parking of cars. The Division Bench doubted whether the space occupied by the house was big enough to provide accommodation for two ordinary vehicles to be parked conveniently. In paragraph 6 of the judgment the following observations occur while the scope of Section 7 (4) of the Act was discussed.

'From the tenor of the section, there can be no doubt that what the legislature contemplated is that the house must be required by the owner 'as a house' and not as a vacant space after demolishing the same. At least, such an interpretation is incompatible with the italic portions wherein all emhpasis has been laid on 'the house' as such. Of course, if any particular rented house has become dilapidated and the owner needs it for his own occupation and use, he can bring a proceeding for eviction of the tenant, the ultimate object being to pull down the dilapidated house, reconstruct it and then use it as a house. But it is doubtful, at least as the wordings of Section 7 (4) indicate, if the landlord can legitimately bring an eviction proceeding for demolishing a house so as to use the vacant surface, for example, either for haying a lawn, badminton court or a swimming pool as in the present case for enlarging the parking area.'

With respect, we are unable to agree with the aforesaid view. Section 7 (4) does not prohibit eviction from a house for dismantling the same for use as a vacan site if it is required in good faith. The expression 'if he requires the house in good faith for the occupation or use of himself' does not restrict the operation of eviction from the house for use of the space on which the house stands as a vacant site. If the house is in a dilapidated condition, the owner is quite within his rights to dismantle it. He is not bound to have a new house in its place nor is he bound to repair the same if it involves heavy work. It may be that the land lord's financial condition is such that he may not afford to construct a new house or make heavy repairs. It is quite open to the landlord to keep the site vacant after dismantling the house. The protection to which the tenant is entitled is not an absolute one and does not impose any restriction on the landlord's right not to have the house at all. The tenant is entitled to continue in possession of the house if the landlord does not require the house in good faith for himself. The crux of the matter is 'good faith'. The eviction from the house may not be for occupation by the landlord as a house. This is sufficiently expressed by the words 'for the occupation and use of himself'. It is not restricted to occupation or use of the house as a house.

As in (1973) 39 Cut LT 946, the case was ultimately remanded to consider the question whether house was required in good faith after dismantling for parking of cars, we do not construe the decision as laying down the wide proposition that in no circumstances a house can be required in good faith by the landlord for having it as a vacant site, it will depend on the facts and circumstances of each case. If, however, the decision purports to lay down the wider proposition, it is contrary to law.

(1973) 39 Cut LT 946 has, however, no application to the, facts of this case as the landlord requires the house for occupation of her husband after remodelling and not as a vacant site.

7. All the points raised by the petitioner fail and the writ petition is dismissed with costs. Hearing fee of Rs. 100.

G. K. Misra, C.J.

8. I agree.

Mohanty, J.

9. I agree.


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