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Tribhovandas Khushaldas and ors. Vs. Mulchandbhai Damodardas - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 759 of 1972
Judge
Reported inAIR1976Guj118; (1975)GLR525
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 13(1)
AppellantTribhovandas Khushaldas and ors.
RespondentMulchandbhai Damodardas
Appellant Advocate N.R. Oza and; S.N. Shelat, Advs.
Respondent Advocate I.C. Bhatt, Adv.
Cases ReferredChimanlal Maganlal Shah v. Shantilal Chhaganlal Shah
Excerpt:
.....the landlord constructs a new building, it shall contain not less than two times the number of residential tenements and not less than two times the floor area, is satisfied. if that is so, can it be said that the requirement of the plaintiffs constructing not less than two times the number of residential tenements is satisfied? since 'premises' include both residential as well as non-residential premises, it cannot be said that the provisions of clause (hh) of sub-section (1) of section 13 apply only to residential premises and not to other premises. after having satisfied the requirement of law if a landlord wants to occupy a part of the building, it cannot be said for that reason that his reasonable and bona fide requirement within the contemplation of clause (hh) of sub-section..........of letting them out o the tenants, the plaintiffs' requirement of the suit premises for the purpose of clause (hh) of sub-section (1) of section 13 is not reasonable and bona fide.14. it may be noted that clause (a) of sub-section (3a) of section 13 requires the landlord to construct not less than two times the number of residential tenements. a landlord may construct a larger number of residential tenements or he may construct a building which will have two times the number of residential tenements contained in the premises which he has demolished and also some more residential accommodation. if a landlord after having constructed such a building lets out in the new building double the number of residential tenements contained in the premises which he has demolished and occupies.....
Judgment:
ORDER

1. The plaintiffs filed the present suit against the defendant for recovering possession of the suit premises on the ground that they reasonably and bona fide require them for the immediate purpose of demolition and that such demolition is to be made for the purpose of erecting a new building. The defendant in his turn contended that the suit was barred by res judicata.

2. The learned Trial judge negatived the defendant's contention that the suit was barred by res judicata. On merits he held that the suit premises are required by t4e plaintiffs reasonably and bona fide for the immediate purpose of demolition. However, he recorded the conclusion that the plaintiff did not want to demolish it for the purpose of erecting a new building. In view of his last mentioned finding he dismissed the suit.

3. The plaintiffs appealed against that decree to the District Court. The learned Appellate judge confirmed the findings recorded by the learned Trial judge and dismissed the appeal.

4. It is that appellate decree which is called in question by the plaintiffs in this Civil Revision Application.

5. Mr. Oza, who appears for the plaintiffs, has contended that the learned Appellate judge was in error in holding that the plaintiffs do not require reasonably and bona fide the suit premises for the immediate purpose of demolition in order to construct a new building there. He has further contended that the learned Appellate judge was in error in mixing up the consideration of Section 13(1)(g) with Section 13(1)(hh).

6-7. X X x X x

8. The findings and the observations made by the learned Appellate judge and re produced above go to show that the plaintiffs have made all preparations for immediately demolishing the suit premises and for constructing a new building thereon. They also show that the plaintiffs have the means and, the capacity to do so.

9. The learned Appellate judge has, however, recorded the conclusion that the plaintiffs requirement is not bona fide and reasonable because the plaintiffs themselves want to occupy a part of the new building. That is what he describes as the ulterior motive of the plaintiffs. In my opinion, while considering the case under Section 13(1)(hh) the learned Appellate judge has erroneously mixed up with it the consideration of the provisions of Section 13(1)(g). The requirement which Section 13(1)(g) contemplates must be reasonable and bona fide. Similarly, the requirement which Section 13(1)(hh) contemplates must also be reasonable and bona fide. However, the purpose of requirement so far as section 13(1)(g) is concerned is different from the purpose of the requirement so far as Section 13(1)(hh) is concerned. Both clause (g) and clause (hh) protect the tenants. Sub-section (2) of Section 13 protects the tenant where possession of the premises is sought by the landlord from his tenant under clause (g) of sub-section (1) of Section 13. When the landlord seeks possession of the premises under clause (hh) of subsection (1) of Section 13 the tenant is firstly protected by the obligation cast upon the landlord under sub-section (2A) of Section 13 and secondly he is protected by Section 17-B which confers upon him the right to occupy a tenement in the new building. The learned Appellate judge appears to have been overwhelmingly influenced by the decision of the Supreme Court in Ramniklars case AIR 1964 SC 1676 (supra). In that case the landlord had sought possession of the premises on the ground that he required them reasonably and bona fide for his own occupation after demolishing them. It was contended on behalf of the tenant in that case that since the landlord wanted to demolish the premises the case was governed by clause (hh) of subsection (1) of Section 13. This was the argument which the Supreme Court negatived. The claim which the landlord had made in that case was based upon his reasonable and bona fide requirement as contemplated by clause (g) of sub-section (1) of Section 13. In that context the Supreme Court has observed that once the landlord establishes that he reasonably and bona fide requires the premises for his occupation, he is entitled to recover possession of it from tenant in view of the provisions of sub-clause (g) of Section 13(1) irrespective of the fact whether he would occupy the premises without making any alterations to them or after making the necessary alterations. It was also argued in that case that if the landlord wanted to demolish the building after recovering possession thereof, it would not amount to his occupation of the building even though he might occupy it after having demolished and reconstructed it. fn that behalf the Supreme Court has explained that occupation of the premises in clause (g) does not necessarily refer to occupation as residence. In its view, the owner can occupy a place by making use of it in any manner. Therefore, according to the Supreme Court, if a landlord after having obtained possession starts the work of demolition within the prescribed period, he can be said to have occupied the premises in order to erect a building fit for his occupation. It is true that the Supreme Court has observed in that case that what clause (hh) of sub-section (1) of Section 13 contemplates is erection of a new building for the purpose of letting out to the tenants. The learned Appellate judge appears to have been overwhelmingly influenced by that observation of the Supreme Court. He bar, overlooked the fact that in the aforesaid case the landlord had made a claim under Section 13(1)(g) and the tenant had tried to meet the landlord's case by invoking clause (hh) of sub-section (1) of Section 13. In the instant case, the landlords have invoked clause (hh) of sub-section (1) of Section 13 and the tenant is trying to repel his case by invoking clause (g) of sub-section (1) of Section 13. If the requirements of clause (hh) of sub-section (1) of Section 13 are satisfied, decree for possession has got to be passed in favour of the plaintiffs. The learned Appellate judge has recorded the conclusion, on appreciation of evidence, that the plaintiffs have the means, the capacity and the intention to immediately demolish the suit premises and to erect a new building on the premises which he seeks to demolish. If that is so, the only conclusion which can be recorded is that their requirement is both reasonable and bona fide. By mixing up consideration of clause (hh) with clause (g) of sub-section (1) of Section 13 decree for possession - cannot be refused to the plaintiffs. All that clause (hh) read with sub-section (3A) of Section 13 and Section 17-B requires is that the landlord should construct the new building of a particular size and type and that the interests of the tenant ortenants against whom orders for possession are made must be protected. If the ingredients laid down by Clause (hh) of sub-see. (1) of Section 13 are satisfied and if the interests of tenants who are sought to be evicted are protected, then the only irresistible conclusion is that the decree for possession must be passed in favour of the plaintiffs. It is, there fore, necessary to see in that context the provisions of ub-section (3A) of Section 13. It provides as follows:-

'No decree for eviction shall be passed on the ground specified in clause (hh) of subsection (1), unless the landlord produces at the time of the institution of the suit a certificate granted by the Tribunal tinder sub-section (3B) and gives an undertaking-

(a) that the new building to be erected by him shall subject to the provisions of any rules, by-laws or regulations made by a local authority contain not less than two times the number of residential tenements, and not less than two times the floor area, contained in the premises sought to be demolished;

(b) that the work of demolishing the premises shall be commenced by him not later than one month, and shall be completed not later than three months, from the date he recovers possession of the entire premises; and

(c) that the work of erection of the new building shall be completed by him not later than fifteen months from the said date:

Provided that, where the Court is satisfied that the work of demolishing the premises could not be commenced or completed, or the work of erection of the new building could not be completed, within time for reasons beyond the control of the landlord, the Court may by order extend the period by such further veriod, not exceeding three months at a time, as may, from time to time be specified.'

10. In the instant case, the landlords have produced the certificate of the Tribunal constituted under sub-section (3B) of Section 13 and also given to the Court the necessary undertaking. However, the point which has arisen for my consideration relates to the type of the building which the plaintiffs seek to construct. It is the plaintiffs' case that they will let out a tenement to the defendant and will occupy the rest of the building themselves. The suit premises are business premises. The defendant has been carrying on business there. Mr. Bhatt has tried to argue that though the suit premises are business premises they should be regarded as residential premises because they are situate in a residential zone. It is difficult to accept this argument advanced by Mr. Bhatt. The suit premises were let out to the defendant under the rent-note dated 16th February 1956, Ex. 23. It does not state for what purpose the suit premises were let out by the plaintiffs to the defendant. There is no other evidence to show the purpose for which the suit premises were let out to the defendant. Therefore the purpose for which the suit premises were let to the defendant can be legitimately infer red from the use of the suit premises which the defendant has been making.

11. It has been laid down by a Full Bench of the Madras High Court in T. Dakshinamoorthy v. Thulja Bai AIR 1952 Mad 413 (FB) that for the purpose of determining whether a building is residential or non-residential, one has to bear in mind a few salient considerations: (1) Where there is an instrument of tenancy specifically and explicitly declaring the purpose of the letting as residential or non-residential, no difficulty generally arises; (2) where there is no such instrument of tenancy the question will have to be considered on the basis of direct evidence aliunde concerning the purpose of the letting which may be adduced in a case; (3) If no such evidence is forthcoming, the Court can look at the evidence concerning the user of the premises by the tenant down to the date of the application for eviction as acquiesced in by the landlord. Such user and such acquiescence afford a safe basis for an inference of agreement between the parties as to the purpose of the letting. I have accepted that test and applied it in Civil Revn. Applns. Nos. 263, 264 and 266 of 1970 decided by me on loth July 1974 (Gui). In view of the fact that the rent-note, Ex. 23 is silent on the point and in view of the fact that there is no evidence to show the purpose for which the suit premises were let by the plaintiffs to the defendant it is legitimate for. me to infer the purpose from the use of the suit premises made by the defendant. The evidence shows that the defendant has been using the suit premises for business purpose. It is quite clear, therefore, that they are business premises. Bearing in mind this fact I have to see whether the requirement laid down by sub-section (3A) of Section 13 that when the landlord constructs a new building, it shall contain not less than two times the number of residential tenements and not less than two times the floor area, is satisfied. There is no doubt about the fact that the plaintiffs have given an undertaking to the Court that they shall construct in the new building not less than two times the floor area contained in the premises which are sought to be demolished. However, the difficulty has arisen because the plaintiffs have stated that after 'having let out to the defendant a tenement in the new building upon its construction' they want to occupy the rest of it. If that is so, can it be said that the requirement of the plaintiffs constructing not less than two times the number of residential tenements is satisfied?

12. Mr. Oza has argued that that requirement is not applicable to business premises. The expression used is 'not less than two times the number of residential tenements'. It, therefore, presupposes that a building which is sought to be demolished contains residential tenements. - In such a case it requires that in the new building to be constructed the number of residential tenements shall be double the residential tenements in the old building which has been demolished. Now, a 'tenement' has been defined by sub-section (12) of Section 5 in the following terms:-

'tenement' means a room or group of rooms rented or offered for rent as a unit.'

It is quite clear that if a building whose demolition is sought by a landlord under clause (bh) of sub-section (1) of Section 13 contains residential tenements, then the landlord must construct in the new building double the number of such tenements for the purpose of letting them or offering them for rent to tenants. Unless a landlord gives such an undertaking, decree for eviction under clause (hh) of sub-section (1) of Section 13 cannot be passed. However, what will happen in a case where a building which is sought to be demolished has no residential tenements? It has been argued by Mr. Oza that to such a building the aforesaid requirement of clause (a) of sub-section (3A) of See. 13 does not apply.

13. In support of this proposition he has invited my attention to the decision Of this Court in Chimanlal Maganlal Shah v. Shantilal Chhaganlal Shah, (1971) 12 Gui LR 229. It has been observed in that decision that the provisions of Section 13(1)(hh) refer to all types of premises as defined in the Act. Since 'premises' include both residential as well as non-residential premises, it cannot be said that the provisions of clause (hh) of sub-section (1) of Section 13 apply only to residential premises and not to other premises. Though clause (bh) of sub-section (1) of Section 13 is applicable to all premises-whether residential or non-residential-the provisions of clause (a) of sub-section (3A) of Section 13 in so far as they require the landlord to cod structure not less than two times the number of residential tenements in 'the new building, applies only to a residential building. That requirement of clause (a) of sub-section (3A) of Section 13 has no application to premises which do not have residential tenements. The argument raised by Mr. Bhatt that the expression 'residential tenements' connotes a building situate in a residential zone irrespective, of whether it is used for residential o non-residential purpose cannot be accepted In my opinion, therefore, if a building which is sought to be demolished by a landlord has no residential tenements, then the requirement that he shall construct not less than two times the number of residential tenements has no application The learned Appellate judge was, therefore, in error in reading clause (a) of sub-section (3A) of Section 13 with clause (g) of sub-section (1) of Section 13 and concluding that since the plaintiffs do not want to construct the new building with not less than two times the number of residential tenements therein for the purpose of letting them out o the tenants, the plaintiffs' requirement of the suit premises for the purpose of clause (hh) of sub-section (1) of Section 13 is not reasonable and bona fide.

14. It may be noted that clause (a) of sub-section (3A) of Section 13 requires the landlord to construct not less than two times the number of residential tenements. A landlord may construct a larger number of residential tenements or he may construct a building which will have two times the number of residential tenements contained in the premises which he has demolished and also some more residential accommodation. If a landlord after having constructed such a building lets out in the new building double the number of residential tenements contained in the premises which he has demolished and occupies the rest of the building himself, even then the provisions of clause (g) of subsection (1) of Section 13 do not come into play at all. After having satisfied the requirement of law if a landlord wants to occupy a part of the building, it cannot be said for that reason that his reasonable and bona fide requirement within the contemplation of clause (hh) of sub-section (1) of Section 13 is a motivated requirement or is a dishonest requirement. What use a landlord makes of his new premises after satisfying or complying with all the statutory requirements which he is required to comply with is immaterial for the purpose of the Act. The purpose of the Act is to protect the sitting tenants and to see that some more residential accommodation becomes available to intending tenants. If the interests of all the sitting tenants are protected by the landlord by constructing for them residential tenements in his new building and letting them out to them and by constructing another set of residential tenements in equal number and offering them to the intending tenants for rent and yet if there is some more accommodation left for him to occupy, he can certainly do so. Such an act on his part does not reflect upon his reasonable and bona fide requirement of the premises as contemplated by clause (hh) of sub-section (1) of Section 13. The question which the Court has to ask itself is whether the requirement as to protection which the statute grants to the sitting tenants and the requirement as to extension of the benefit to the intending tenants are satisfied. If they are satisfied, the object of the statute is fulfilled. It is not the object of the statute to deprive a landlord, who has satisfied the statutory requirements, of an opportunity to construct some more accommodation for himself. In my opinion, therefore, the provisions of Section 13(1)(g) do not project themselves into a case under section 13(1)(hh) merely because the landlord states that he wants to occupy a part of the new building which he seeks to construct after demolishing the old one if the landlord satisfies other requirements laid down in sub-section (3A) of Section 13. In the instant case, the defendant is the only sitting tenant. The landlords have given an undertaking to the Court that they will let out to him a tenement after they have constructed the new building and that they will do so in accordance with the provisions of Section 17-B of the Bombay Rent Act. The interests of the defendant. who is the only sitting tenant are, there-2ore, fully protected. If the plaintiffs have filed that undertaking, there are ways and means to enforce it against them. So far as the extension of not a residential building and, therefore, the plaintiffs are not required to construct not less than two times the number of residential tenements therein. In my opinion, therefore, the learned Appellate judge was in error in confirming the decree of dismissal passed by the learned trial judge. This is a case which is more governed by the decision of this Court in the case of Chimanlal Maganlal Shah (1971) 12 Gui LR 229 (supra). It is not governed by the decision of the Supreme Court in the case of Ramniklal Mchta, AIR 1964 SO 1676 (supra).

15. It is indisputable that all the requirements of Section 13(1)(hh) and Section 13(3A) have been satisfied in the instant case. The plaintiffs are therefore entitled to a decree for possession. They cannot be denied the decree merely on the ground that they have stated in addition that they want to occupy a part of the new building after having constructed it.

16. In the result, I allow this Civil Revision Application, set aside the decree passed by the Courts below and pass in favour of the plaintiffs the following decree

17. The defendant shall hand over the possession of the suit premises to the plaintiffs within two months from today. On the plaintiffs receiving the possession of the suit premises from the defendant they shall start its demolition within a period of not less than three months from the date of receipt of possession by them. They shall erect a new building within 12 months after the premises are demolished. After completing the new structure, they shall hand over possession of one tenement to the defendant in accordance with the provisions of Section 17B of the Bombay Rent Act at a rent which may be agreed upon by the parties or at a rent which may be fixed by the Court in that behalf.

18. Rule is made absolute with no order as to costs

19. Revision allowed.


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