Skip to content


Khimchand Parshottam Vs. Shah Bhupatray Nathalal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 109 of 1965
Judge
Reported inAIR1971Guj81
ActsCode of Civil Procedure (CPC), 1908 - Sections 100; Saurashtra Rent Control Act, 1951 - Sections 13(1) and 16
AppellantKhimchand Parshottam
RespondentShah Bhupatray Nathalal and ors.
Appellant Advocate N.S. Parghi, Adv.
Respondent Advocate H.P. Sompura, Adv.
Cases ReferredIn Tata Chemicals Ltd. v. Kailash
Excerpt:
.....service and that appears to be reason why the legislature has used general words in the opening part of section 16, sub-section (1) of the act and has used in the latter part of that sub-section as well as other sub-sections the word 'repairs'.18. it is further observed by the division bench in the aforesaid decision: i, therefore, see no good reason to refer this question to a larger bench......submitted that such demolition and reconstruction would not be included within the meaning of the word 'renovation'. this question has been concluded by the decision of a division bench of this court in maganlal shivlal v. memon daudbhai mithabhai, (1969) 10 guj lr 336. it has been observed therein: 'then term 'renovation' in section 13(1)(h) of the saurashtra rent control act would include the demolition of an existing building and re-construction of the building on the same site. whenever thing or a part of a thing is worn out and a new thing is replaced in its place, such replacement of a new thing amounts to repair of the thing. the term 'renovation' as seen from the meanings given in the dictionaries includes the making of repairs and also includes the act of making or creating a.....
Judgment:

1. This is a second appeal filed by the original defendant-tenant against the judgment and decree passed by the learned Assistant Judge, Bhavnagar, in Civil Appeal No. 11 of 1964, confirming the judgment and decree passed by the learned 4th Joint Civil Judge, Junior Division, Bhavnagar in Civil Suit No. 55 of 1962.

2. The plaintiffs-respondents filed Regular Civil Suit No. 55 of 1962 in the Court of the Fourth Joint Civil Judge, Junior Division, Bhavnagar, for recovery of possession of the suit godown from the appellant-defendant, on the ground that the suit premises are in old and dilapidated condition and they are required to be demolished and to construct a new building on the same. They required the suit premises reasonably and bona fide for renovation, which cannot be carried out without the premises being vacated.

3. It was their case that the disputed building was absolutely in a dilapidated condition and most of the part of the building had fallen down and there was every possibility that the walls of it might fall down and as such, they had received notices from the municipality calling upon them to pull down the suit building as the same was likely to fall down. On receipt of the notices, they had approached the defendant and the defendant had agreed to vacate the same and other tenants did vacate the other portions of the building in question, of which they were tenants. The defendant ultimately did not keep up his promise and hence they had to file a suit against him for eviction on the aforesaid ground.

4. The defendant by his written statement, Ex. 12, contended inter alia that the plaintiffs have made out this ground only to harass him and to take possession from him. To enable them to get possession, the plaintiffs themselves had got demolished the back side wall. The suit premises were not in old and dilapidated condition and they did not require them reasonably and bona fide to renovate the same.

5. Both the Courts below came to the conclusion on appreciation of evidence that the plaintiffs-respondents required the suit premises reasonably and bona fide for renovation. It is significant to note that even the municipality had given notices to the effect that the premises were in a dilapidated condition and they were likely to fall down and thereby endanger the safety of the public. Both the Courts below even inspected the site as a challenge was made on behalf of the defendant about such condition of the suit premises. On evidence, the two Courts below came to the conclusion that the plaintiffs required the suit premises reasonably and bona fide for renovation, which cannot be carried out without the premises being vacated. That finding is not shown to be erroneous in law. There is reliable evidence to support that finding. That finding is a finding of fact and it cannot be assailed in the second appeal.

6. Mr. Parghi, learned Advocate appearing for the appellant-defendant, submitted that such demolition and reconstruction would not be included within the meaning of the word 'renovation'. This question has been concluded by the decision of a Division Bench of this Court in Maganlal Shivlal v. Memon Daudbhai Mithabhai, (1969) 10 Guj LR 336. It has been observed therein:

'Then term 'renovation' in Section 13(1)(h) of the Saurashtra Rent Control Act would include the demolition of an existing building and re-construction of the building on the same site.

Whenever thing or a part of a thing is worn out and a new thing is replaced in its place, such replacement of a new thing amounts to repair of the thing. The term 'renovation' as seen from the meanings given in the dictionaries includes the making of repairs and also includes the act of making or creating a new thing but the term 'repair' would not include the meaning of creating or making of a new thing. In so far as the original building is kept as it is and portions of it are restored to good condition or such portions as are worn out or broken or damaged or replaced by new portions or the weak portions are strengthened, the building is said to be repaired. Such acts would no doubt also amount to renovation. But when the building itself is demolished and a new building is constructed on the site, it cannot be said that the old building is repaired; but in view of the dictionary meanings, it can be said that the building is renovated. The term 'renovation' is not restricted to repairs only but includes demolition of a building and construction of another building on the same site.

In order to prove that a landlord bonafide requires the building for renovation as defined in Section 13 (1) (h) of the Saurashtra Rent Control Act, he must prove that his claim is real and honest and this can be judged by the Court after taking into consideration the surrounding circumstances. In order to show that the requirement is bona fide, it is not enough to show that the plaintiff has a mere desire or intention to demolish the building and reconstruct it.

It was held that in the instant case, the circumstances which lead to the conclusion that the requirement of the plaintiff is bonafide are also sufficient to show that the requirement is reasonable. It is not unreasonable for the plaintiff who has purchased a building which is about 70 or 80 years old and which is illventilated and which is below the level of the footpath in front of it, to think of pulling it down and to build another building in its place so as to improve his property'.

7. The aforesaid decision of a Division Bench of this Court has given a meaning to the word 'renovation'. It is observed therein that the term 'renovation' is not restricted to repairs only, but includes demolition of a building and construction of another building on the same site. It has also been observed therein at page 339:

'Under Section 13 (1) (h) of the Act, the requirement of the plaintiff can be either for repairs or renovation. Since the two words are used distinctively by the legislature, it must be assumed that the legislature used the two words to express two distinct and separate meanings. The word 'repair' conveys the idea of replacing worn, broken or lost parts in a thing or restoring the thing to a good condition. In Greg v. Planque, (1936) 1 KB 669, Salter, L.J., States:

'I take the word 'repair' as meaning in the language of Lord Blackburn in Inglis v. Buttery & Co., (1878) 3 AC 552, the making good defects, including renewal where that is necessary.' Therefore, whenever a thing or a part of a thing is worn out and a new thing is replaced in its place, such replacement of a new thing amounts to repair of the thing. The term 'renovation' as seen from the meanings given in the dictionaries includes the making of repairs and also includes the act of making or creating a new thing but the term 'repair' would not include the meaning of creating or making of a new thing. In so far as the original building is kept as it is and portions of it are restored to good condition or such portions as are worn out or broken or damaged are replaced by new portions or the weak portions are strengthened, the building is said to be repaired. Such acts would no doubt also amount to renovation'.

These observations indicate that the repairs may be included in renovation in certain circumstances. But renovation would not necessarily mean 'repairs' only. It would include something else also and that is why the legislature used two different terminologies in Section 13 (1) (h) of the Act, joined by disjunctive 'or'. It has been, therefore, observed further in the aforesaid decision:

'But when the building itself is demolished and a new building is constructed on the site, it cannot be said that the old building is repaired; but in view of the dictionary meanings, it can be said that the building is renovated. Since it must be assumed that the legislature has meant to use the two words 'repair' or 'renovation' to express two separate meanings, it must be held that the term 'renovation' is not restricted to repairs only but includes demolition of a building and construction of another building on the same site'.

The finding arrived at by the two Courts below that the plaintiffs required the suit premises reasonably and bona fide for renovation which cannot be carried out without the premises being vacated is supported by reliable evidence and that finding has been arrived at in accordance with law. Such 'renovation' is covered within the meaning of clause (h) of Section 13 (1) of the Act. The plaintiffs would, therefore, be entitled to get possession on that ground.

8. The main contention raised by Mr. Parghi before me is that in view of the provisions of Section 16 of the Act, which I will presently refer to, the learned, District Judge was not justified in coming to the conclusion that in case of such renovation, the tenant was not entitled to the right of re-entry as contemplated by Section 16 of the Act. It has been urged by Mr. Parghi that the Division Bench had not focused its attention on the material and relevant wording of Section 16 of the Act and hence it appears, according to his submission, that such right of re-entry was not given to the tenant in that case. There are decisions of A.D. Desai, J. and Sompura, J., also on this point. I will make reference to those decisions at an appropriate stage. He tried to distinguish those decisions on the ground that the learned Judges of this Court who decided those cases did not take into consideration the important argument that could be advanced that the legislature had through oversight, omitted the word 'renovation' along with the word 'repairs' in Section 16 of the Act. On that ground he urged that those decisions should not be followed by this Court or at any rate this question should be referred to a larger Bench as it is a question of great public importance.

9. In my opinion, none of these arguments advanced by Mr. Parghi is well founded. His argument that the word 'renovation' should be equated with the word 'repairs' cannot be accepted in view of the aforesaid decision of the Division Bench of this Court. Furthermore, the Division Bench of this Court has given a very good reason why the two words cannot be given the same meaning. It is significant to note that the two words that are used in Section 13 (1) (h) are joint with disjunctive 'or'. If really the same meaning was to be given to both the words, that would not have been the position. 'Renovation' would include 'repairs' in certain cases as has been observed by the Division Bench. At the same time, 'renovation' would include the demolition of a building and reconstruction of a building on the same site. That being the position, the legislature has, in my opinion, advisedly referred to phrase the 'work of repairs' in Section 16 of the Act. The heading of that section 'recovery of possession for repairs and re-entry' is indicative of the legislative mind to a certain extent. It indicates that the legislature intended to give a right of re-entry in cases where there is recovery of possession for repairs and not in cases of such renovation where an old building is to be demolished and a new building is to be constructed on the same site. It is true that in the opening part of Section 16 of the Act, there is a general reference of clause (h) of sub-section (1) of Section 13.

10. To appreciate the rival contentions urged at the Bar, it will be proper at this stage to refer to the material part of Section 16 of The Act. It reads:

'(1) The Court shall, when passing a decree on the ground specified in clause (h) of sub-section (1) of Section 13, ascertain from the tenant whether he elects to be placed in occupation of the premises or part thereof from which he is to be evicted, and if the tenant so elects, shall record the fact of the election in the decree and specify in the decree the date on or before which he shall deliver possession so as to enable the landlord to commence the work of repairs'.

It thus appears that though in the opening part of this sub-section (1) of Section 16 of the Act there is a reference that in case the Court is passing a decree on the ground specified in clause (h) of sub-section (1) of Section 13, which would include the case of repairs as well as of renovation, a statement has to be recorded about the election of the tenant. But that fact has to be recorded, in case the possession is to be delivered, in the decree and it is obligatory to specify in the decree the date on or before which the tenant shall deliver possession so as to enable the landlord to commence the work of repairs. It could, therefore, be reasonably said that such a fact has to be ascertained only in a case where the landlord is given a decree for eviction under clause (h) of sub-section (1) of Section 13 of the Act, as the landlord requires reasonably and bona fide the premises for repairs which cannot be effected without vacating.

11. Sub-section (2) of Section 16 of the Act reads:

'If the tenant delivers possession on or before the date specified in the decree, the landlord shall, on the completion of the work of repairs, place the tenant in occupation of the premises or part thereof on the original terms and conditions'.

Therein also there is a reference to the work of repairs. A duty is cast on the tenant to deliver possession on or before the date specified in the decree and a duty cast on the landlord to place the tenant in occupation of the premises or part thereof, on the completion of the work of repairs, on the original terms and conditions. If really the legislature had intended to give a wider meaning to the word 'repairs' used in this Section 16, as has been contended by Mr. Parghi, so as to include such 'renovation' wherein an old building is demolished and a new building is reconstructed on the same site, one could not reasonably expect the legislature to direct the landlord to give possession of such reconstructed building on the original terms and conditions. We can illustrate this by taking a hypothetical case:

A cottage like building may be existing on the site leased to a tenant on a rent of Rs. 5/- or so per month. That building may be demolished by the landlord after getting a decree for recovery of possession on the ground mentioned in Section 13 (1) (h) of the Act. On the same site he might construct a new building with all the modern amenities and using the best materials. Could have the legislature intended to give a tenant a right to get possession of such a newly and beautifully constructed building on the same rent or Rs. 5/- per month The answer would be certainly, in my opinion, in the negative. It can, therefore, certainly be said that the legislature has advisedly used the word 'repairs' in this S. 16 and it is not through oversight that the word 'renovation' has been left out, as has been urged by Mr. Parghi. It could be plausibly urged that where the renovation was not of such a nature as is in the present case, namely, the demolition of an old building and reconstruction of a new building on the same site but renovation was only of the nature of repairs, referred to in the observations of the Division Bench, quoted by me earlier, possession of such a building repaired, could be reasonably contemplated to be delivered to the tenant on completion of the work of repairs on original terms and conditions.

12-13. In sub-section (3) of Section 16, there is reference only to the work of repairs and there is no reference to such renovation as it is in the present case. Similarly, in sub-section (4) of Section 16 of the Act which is a penal one, there is also reference to the work of repairs and not to such renovation.

14. Mr. Parghi invited my attention to the decision of the Mysore High Court in H.K. Swaranavar Nashar v. State of Mysore, AIR 1963 Mys 49. The relevant observations made at page 58, are:

'Our duty in interpreting a statute like the impugned Act extends clearly even to the supply of careless omissions made by the legislature, in order to give the legislation an effective meaning and to prevent it from becoming devoid of effect'.

15. In Tata Chemicals Ltd. v. Kailash, AIR 1964 Guj 265, Bhagwati, J., (as he then was), has observed:

'The intention of the legislature is to be gathered from the language used and the Court's function is not to say what the legislature meant but to ascertain what the legislature has said it meant'.

There is no dispute with this rule enunciated regarding the interpretation of a statute.

16. On consideration of the wording of Section 16 of the Act, there is absolutely nothing to indicate that there was careless omission on the part of the legislature in not mentioning the word 'renovation' along with the word 'repairs' used in the relevant parts of Section 16 of the Act. As said earlier by me, the legislature advisedly used only the word 'repairs' and advisedly did not use the word 'renovation' along with it.

17. It is not correct to say that the Division Bench of this Court in (1969) 10 Guj LR 336 (supra) did not consider this question at all. In paras 15 and 16, at pages 342 and 343, this aspect of the case has been considered to a certain extent, for the purpose of arriving at a correct meaning of the word 'renovation'. The relevant observations made therein are:

'We may also note the provisions of S. 16 of the Saurashtra Rent Control Act. In that section a provision is made for re-entry of the tenant into the premises after the repairs are completed. No provision is made for re-entry of a tenant after the completion of the renovation. Therefore, the legislature has differentiated between a building which is repaired and a building which is renovated. It is true that 'renovation' may be partaking in the nature of repairs, in so far as renewals are included in the term 'repairs'. By enacting that a tenant will have a right of re-entry after repairs are completed the legislature included a right of the tenant for re-entry even where renovation in the nature of repairs is made'.

These observations lend support to my conclusion that if the renovation is in the nature of repairs and a decree for eviction is passed on the ground of such renovation, the renovation being in the nature of repairs, the provisions of Section 16 of the Act can be pressed into service and that appears to be reason why the legislature has used general words in the opening part of Section 16, sub-section (1) of the Act and has used in the latter part of that sub-section as well as other sub-sections the word 'repairs'.

18. It is further observed by the Division Bench in the aforesaid decision:

'But Section 16 of the Saurashtra Act does not give a right of re-entry to a tenant in a 'renovated' building. If the term 'renovation' were to include only repairs and nothing more, why should the legislature draw this distinction between repairs and renovation? One would not be justified in holding that the legislature lost sight of the word 'renovation' used in Section 13 (1) (h) when it wanted to provide for re-entry of a tenant who has been asked to vacate the building under that provision. Moreover Section 4 (2) of the Saurashtra Act, provides that the Act would not apply to new buildings erected and let after 1st January, 1951. The policy of the legislature is, therefore, to see that new buildings are not brought under the operation of the Act. Since the word 'renovation' would also mean demolition of the existing building and re-building on the same site, there would be a new building for all practical purposes and, therefore, the legislature might have thought fit, in pursuance of its policy relating to new building not to provide for the re-entry of a tenant in a renovated building, that is, a building which is demolished and re-built. The language of Section 16 of the Saurashtra Act, therefore, also supports the view that the term 'renovation' in Section 13 (1) (h) would include in its scope the demolition of an existing building and re-building on the same site'.

It thus appears on a critical reading of the decision of the Division Bench in the aforesaid case that the view of the Division Bench was also that the legislature had not through oversight omitted to use the word 'renovation' along with the word 'repairs' in Section 16 of the Act. It was the view of the Division Bench also that the Legislature did not provide for en-entry of a tenant in a renovated building, i.e., where a new building is constructed on the same site.

19. A.D. Desai, J., has taken a similar view in Second Appeal No. 797 of 1961, D/-18-6-1968 (Guj), following the decision of Vyas, J., in Second Appeal No.140 of 1967, D/-8-1-1967 (Guj), Sompura, J., in Second Appeal No. 142 of 1965, D/-30-10-1968 (Guj), has also taken the same view. A.D. Desai, J., has taken the same view in two other Second Appeals Nos. 260 and 261 of 1965, decided by him on 15-11-1968 (Guj). In my opinion, a correct view has been taken in all these decisions. I agree with the reasoning advanced in those decisions. I, therefore, see no good reason to refer this question to a larger Bench. On a careful reading of the wording of Section 16 of the Act, I am also of the same view. The submission made by Mr. Paghi, therefore, is not a valid submission. The result is that the appeal fails.

20. The question whether the demolition of an old building and re-construction of a new building on the same site would be included within the meaning of the word 'renovation' used in Section 13 (1) (h) was a debatable question. That question has been decided by a Division Bench of this Court during the pendency of this appeal. It will, therefore, be proper and just to order each party to bear its own costs in this second appeal.

21. The second appeal is hearby dismissed. Each party is ordered to bear its own costs in this second appeal.

22. As the second appeal is decided, the stay order granted, gets automatically vacated. No order, therefore, remains to be passed in Civil Application No. 39 of 1970, given by the plaintiffs-respondents to vacate the interim stay granted.

23. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //