P.K. Mohanti, J.
1. This writ application is directed against an order of ejectment made under Section 7 of the Orissa House Rent Control Act, 1967 (hereinafter referred to as the 'Act').
2. Opposite party No. 1 claiming himself to be the owner of the house in question filed an application under Section 7 of the Act for ejectment of the petitioner on the ground that he had wilfully defaulted in the payment of rent and further that the house in question was required by opposite party No. 1 for his own use and occupation to start a hardware shop for his sons.
3. The petitioner filed counter denying the allegations of default in payment of rent and bona fide requirement of the house. It was contended that the house in question belongs to the deity Shri Nilakantheswar Swamy of Berhampur town and the rent of the house was meant to be used for the bhograg of the deity and that the opposite party No. 1 had no legal right to maintain the case in his personal capacity.
4. The House Rent Controller allowed the application on the findings that there was relationship of landlord and tenant between the parties; that the petitioner was a wilful defaulter and that the house in question was required by the landlord in good faith for his own use. On appeal, the learned Chief Judicial Magistrate agreed with the Controller that there was relationship of landlord and tenant between the parties and that there was bona fide requirement of the house by the opposite party No, 1 for his own use. But he differed from the finding of the Controller that the petitioner was a wilful defaulter. He maintained the order of ejectment only on the ground of bona fide requirement of the house by the landlord.
5. It is urged on behalf of the petitioner that the deity being the owner, the courts below have committed an error of law apparent on the face of the record in allowing the petition for ejectment on the ground of requirement of the house for the personal use of opposite party No. 1. It is argued that the house being a trust property, the requirement of the same must be for the purposes of trust and requirement by the opposite party No. 1 for his personal use cannot be made the basis of an order of ejectment.
6. On a perusal of the pleadings of the parties and the evidence adduced in the case it appears that the petition under Section 7 of the Act was filed by the opposite party No. 1 in his personal capacity without disclosing the ownership of the deity. The petitioner in his written statement specifically pleaded that the house belongs to the deity, that the rent of the house was meant to be used for the purpose of the deity and that the opposite party No. 1 has no legal right to maintain the case in his personal capacity.
7. Construing the definition of 'landlord' in Section 2 (4) of the Act and taking into account the fact that the opposite party No. 1 had been realising rent since the inception of the tenancy, both the courts below concurrently held that the opposite party No. 1 came within the definition of 'landlord' though none of them recorded a specific finding that he was only a trustee-landlord. The appellate authority found that in the Municipal Assessment Register the deity Shri Nilakantheswar Swamy has been recorded as the owner of the house and that the Municipal tax was being paid by opposite party No. 1 on behalf of the said deity. Opposite party No. 1 in his evidence admitted that the public have free access to the deity and that the entire income of the house in question is spent for the purposes of the deity. In view of this clear admission, it must be held that the house is held by him as a trustee for the benefit of the deity. He has no case that it was a nominal debuttar and that he was the real owner. The oral and documentary evidence referred to above leaves no room for doubt that the deity is the real owner of the house and the opposite party No, 1 has been collecting rent as a trustee,
8. The opposite party No. 1 in his evidence stated that he required the house for locating a hardware shop for his two sons. So the pertinent question to be considered in the case is whether requirement of the house for the personal use of the opposite party No. 1 can be said to be the requirement of the landlord.
9. Section 7 (4) of the Act provides:--
'The landlord may, subject to the provisions 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.'
10. A plain reading of the above provisions makes it clear that the Controller shall make an order of eviction if he is satisfied that the house is bona fide required by the landlord for occupation by himself or by any person for whose benefit the house is held by him. The house in question is held by the opposite party No. 1 as a trustee for the benefit of the deity. He has no legal right to occupy the same. Being a trustee-landlord he can require the house for occupation for purposes of the trust, but he cannot require the same for his personal occupation. His personal requirement of the house would not be the requirement of the person for whose benefit the house is held by him as a trustee. The case of the opposite party No. 1 does not therefore come within the purview of Section 7 (4) of the Act. Thus the order of ejectment passed in the case suffers from an error apparent on the face of the record. The appellate authority having differed from the finding of the Controller on the issue relating to wilful default in payment of rent should not have allowed the petition for ejectment on the ground that the opposite party No. 1 required the house for his personal use, This view is supported by authorities. The case reported in (1977) 79 Bom LR 5 (Framroze Maneckji Bilimoria v. Suhrid Geigy Trading Ltd.) deals with the provisions of S. 13 (1) (g) of the Bombay Rents, Hotel and Lodging House Rates Control Act. The provision is to the effect that a landlord shall be entitled to recover possession of any premises if the Court is satisfied 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 and the premises are required for occupation for the purpose of the trust. It was held that the provision consists of three parts. The first part applies to a landlord who is the full owner; the second part applies to the case of a landlord who is more or less a trustee of a private trust with a beneficial interest and the third part provides for the case where the landlord is a trustee of a public trust. The petitioners of that case were the trustees appointed under a deed of settlement and the possession was sought by them on the ground of bona fide and reasonable requirement by petitioner No. 1 who was one of the trustees and the son of the settlor, The suit was resisted on the ground that the petitioners were not entitled to claim possession of the premises on the ground of bona fide and reasonable requirement as the petitioner No, 1 was not the person for whose benefit the premises were held, The High Court held as follows:--
'A plain reading of Section 13 (1) (g) clearly shows that according to the first part a landlord who has a right to occupy the premises because he is a owner, can always seek possession of the premises for his personal occupation. The case of the petitioners, in my view cannot be stretched to come within this part of the section. It cannot also come under the second part because petitioner No. 1 has no legal right to occupy the suit premises. If the trustees in their absolute discretion refuse to give him the premises on rent, he cannot assert that he has a right to occupy the premises. If that is so, then in my view the petitioner cannot complain that he is entitled to occupy because of his bona fide requirement.'
Reliance was placed on the observations of the Supreme Court made in the easel of Mongibai Hariram v. State of Maharashtra, (1966) 68 Bom LR 781; (AIR 1966 SC 882). That was a case in which the Bombay Land Requisition Act was considered along with the provisions of the Bombay Rent Act. The relevant observations are as follows:--
'...... It is open to doubt whether a trustee-landlord, as the plaintiffs-appellants are, can be said to require the premises for occupation for himself. The first part of Section 13 (1) (g) appears to contemplate persons who receive or are entitled to receive rents on their own account and not to persons who receive or are entitled to receive rents as a trustee. A trustee-landlord can require the premises under Section 13 (1) (g) for occupation for purposes of the trust.'
11. We allow the writ petition and quash the order of ejectment in Annexure 1 and 2. Parties are, however, left to bear their own costs.
R.N. Misra, J.
12. I agree.