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Kanasara Abudulrehman SadruddIn Vs. Trustees of the Maniar Jamat Ahmedabad, Musaji Abdulkarim and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 387 of 1966
Judge
Reported inAIR1968Guj184; (1968)GLR64
ActsBombay Rents, Hotel and Lodging Housing Rates Control Act, 1947 - Sections 13(1) and 13(2)
AppellantKanasara Abudulrehman Sadruddin
RespondentTrustees of the Maniar Jamat Ahmedabad, Musaji Abdulkarim and ors.
Appellant Advocate S.B. Vakil, Adv.
Respondent Advocate P.V. Nanavary, Adv.
Cases ReferredShamrao V. Parulekar v. District Magistrate
Excerpt:
tenancy - trustee - section 13 (2) of bombay rents, hotel and lodging housing rates control act, 1947 - section 13 (2) of rent act includes trustee in respect trust property given on rent - claim for possession under section 13 (1) (g) by such trustee is also subject to prohibition contained in section 13 (2) of act - it is necessary to consider comparative hardship before passing decree - - (1) notwithstanding anything contained in this act but subject to the provisions of section 15 a landlord shall be entitled to recover possession of any premises if the court is satisfied :x x x x x (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.....v.r. shah, j.(1) this revision application raises a short question of law as to whether the provisions of section 13 (2) of the bombay rents, hotel and lodging house rates control act , 1947 (hereinafter referred to as the 'rent act') are applicable to a case where a trustee of a public charitable trust asks for possession of the premises from a tenant on the ground that he requires it for occupation for the purposes of the trust the purposes of the trust . the opponents are the trustees of a public trust namely 'maniar jamat' at ahmedabad. the suit premises originally belonged to one bai amina, daughter of jusab mohmed, and she gave the land by way of gift to a public trust named maniar jamat to make a madresa and jamatkhana. the opponents have brought the suit for possession of the.....
Judgment:

V.R. Shah, J.

(1) This revision application raises a short question of law as to whether the provisions of Section 13 (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act , 1947 (hereinafter referred to as the 'Rent Act') are applicable to a case where a trustee of a public charitable trust asks for possession of the premises from a tenant on the ground that he requires it for occupation for the purposes of the trust the purposes of the trust . The opponents are the trustees of a public trust namely 'Maniar Jamat' at Ahmedabad. The suit premises originally belonged to one Bai Amina, daughter of Jusab Mohmed, and she gave the land by way of gift to a Public Trust named Maniar Jamat to make a Madresa and Jamatkhana. The opponents have brought the suit for possession of the premises from the petitioner-tenant on the ground that the premises are required for purposes of the trust. The petitioner, contested the character of the opponents as his landlords and also disputed the claim of the opponents for possession. The learned trial Judge found in favour of the opponents about their requirement of the premises for the purposes of the trust. The learned trial Judge observed that the question of comparative hardship mentioned in Section 13 (2) of the Rent Act need not be considered in such a case. He accordingly passed a decree evicting the defendant from the suit premises.

(2) In the appeal filed by the petitioner, the appellate Court upheld the finding of the trial Judge, that the plaintiffs required the suit premises for the purposes of the trust. That Court also held that question of application of the provisions of Section 13 (2) of the Rent Act relating to comparative hardship did not arise for decision in this case. Accordingly, the appellate Court confirmed the decree for possession passed by the trial Court against the petitioner.

(3) In this revision application by the petitioner the only point raised before us was that both the Courts below were in error in coming to the conclusion that the provisions of Section 13 (2) of the Rent Act do not apply to a case of this nature. It is clear from the record of the case that this question of comparative hardship has not been considered by either of the Courts below and if the contention of the petitioner were to be upheld, the matter will have to be remanded back to the trial Court for a decision on that question.

(4) Clause (g) of sub-section (1) of Section 13 of the Rent Act reads as follows:

'(1) Notwithstanding anything contained in this Act but subject to the provisions of Section 15 a landlord shall be entitled to recover possession of any premises if the Court is satisfied :-

x x x x x (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 purpose of the trust.'

The words under-lined (in marks here-Ed) in Cluase (g) above were added to the original Clause (g) by the amending Act No. 61 of 1953.

(5) Sub-section (2) of Section 13 of the Rent Act reads as follows:-

'(2) No decree for eviction shall be passed on the ground specified in Clause (g) of sub section (1) if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant greater hardship would be caused by passing the decree than by refusing to pass it'.

(6) Section 5 (3) of the Rent Act defines the term 'landlord' as including a trustee.

(7) The argument on behalf of the petitioner is that the word 'landlord' used in Section 13 (2) of the Rent Act includes a trustee in respect of a trust property given on rent and therefore the claim for possession under Cl, (g) of Section 13 (1) by such a trustee is also subject to the prohibition contained in Section 13 (2) of the Rent Act. The argument, therefore, is that in case of a claim for possession by a trustee of a public charitable trust on the ground that he requires the premises for occupation for the purposes of the trust, the decree for possession may be made after weighing the comparative hardship of the landlord-trustee on the one hand if the decree for possession is not passed and the hardship of the tenant in case the decree for possession is passed against him. The answer to this argument on behalf of the components is that by the amendment in 1953, the legislature intended to relieve the trustees of a public charitable trust from the burden of showing that their requirement was reasonable and bona fide and that the application of the provisions of Section 13 (2) of the Rent Act to a claim for possession by a trustee of a public charitable trust would be contrary to the presumed intention of the legislature that the trustees of a public charitable trust should be enabled to get the possession of the premises immediately upon proof that the premises are required for the purposes of the trust. It was also urged that if there is a casual omission by the legislature in making necessary amendment in Section 13 (2) of the Rent Act to exempt the trustees of a public charitable trust from its operation, the Court should so construe the language of Section 13 (2) of the Act as to supply that casual omission by the legislature. Finally, the learned advocate for the opponents urged that the language used in Section 13 (2) of the Act is inconsistent with the inclusion of the trustees of a public charitable trust within the meaning of the term 'landlord' as used therein and therefore, the provisions of Section 13 (2) of the Act do not apply to the trustees of a public charitable trust. For this purpose, the learned advocate for the opponent relied upon a decision by our learned brother Raju, J. In Mohamad Ahmad Vali Mohmad v. Ranchhoddas Tribhovandas, 1963 4 Guj LR 279. We will consider each of these arguments separately.

(8) It is true that prior to the amendment of Clause (g) of Section 13 (1) in 1953, all landlords, including trustees of public charitable trusts, would be required to prove the reasonableness and bona fide nature of their requirement for personal occupation of the properties in possession of the tenants. It is possible in certain circumstances to hold that though the landlord may be requiring a certain premises, his requirement may either not be reasonable or it may not be bona fide. Since the term 'land lord includes trustees would be required to show the reasonable and bone fide nature of their claim for possession on the ground of occupation so long as Clause (g) stood unamended upto 1953. If the premises were to be used by the trustees for the purposes of the trust, it can be said that the trustees in their capacities as landlords required the properties for occupation by themselves in their character of trustees. Prior to the amendment of 1953, therefore, there appears no doubt that the trustees of public charitable trusts would be required to prove the reasonableness and bona fide nature of their claim for possession of the properties. By the amendment in 1953, the legislature added the latter part of Clause (g) relating to trustees of public charitable trusts and made specific provision for those cases in which such trustees required the premises in possession of a tenant for occupation for the purposes of the trust. After the amendment, Clause (g) is divisible into two parts; the first part refers to landlords who require the premises for occupation by themselves or by any person for whose benefit the premises are held; and the second part relates to those landlords who are trustees of public charitable trusts and who require the premises for occupation for the purposes of the trust.

(9) Section 13 (2) of the Act comes into operation when the Court comes to the conclusion that a decree for eviction should be passed on the ground specified in Clause (g) of sub section (1) of Section 13 of the Rent Act. If the ground mentioned in Clause (g) of Section 13 (1) is satisfied then, notwithstanding anything contained in the Rent Act, 1947, a landlord is entitled to recover possession of the premises. This means that if the conditions specified in Clause (g) are satisfied, a decree for eviction would be normally passed in favour of the landlord. Section 13 (2) however, says that no such decree shall be passed on the ground specified in Clause (g) of Section 13 (1), if the Court is satisfied that greater hardship would be caused by passing the decree than by refusing to pass it. Section 13 (2) would therefore, come into play as soon as a decree is sought to be passed by the Court on the ground specified in Clause (G). Now, Clause (g) consists of two parts, the first part refers to the case of landlords who require the properties for the occupation by themselves or by any person for whose benefit the premises are held, provided their requirement is both reasonable and bona fide, Clause (g) also refers separately to the case of all landlords who are trustees of public charitable trusts and who require the premises for occupation for the purposes of trusts. Section 13 (2) does not make any distinction between the decree to be passed on the grounds specified in the first part of Clause (g) or a decree to be passed under the second part of the said clause, it will still be a decree which is sought to be passed on a ground specified in Clause (g). On a plain reading of Section 13 (2) of the Rent Act, therefore, it will be noticed that the said section will come into play both when a decree for eviction is sought to be passed under the first part of Clause (g0 or under the second part of the said clause, because in each case, it would be a decree passed on the ground specified in Clause (g). Section 13 (2) does not, therefore, make any exception in a case where a decree is passed under the second part of Clause (g). The argument on behalf of the opponents is hat after the amendment of 1953, a particular category of landlords, who answered the description of trustees of public charitable trusts have been carved out from the whole category of landlords and a separate provision is made for the requirement of such trustees for occupation for the purposes of the trust. It is contended that by carving out this particular category of trustees of public charitable trust, from out of the whole category of landlords, the legislature has intended to exempt them from discharging the burden of reasonable and bona fide nature of the requirement, which burden is continued in respect of the other landlords who would be governed by the first part of Clause (g). The argument further proceeds that the legislature has thereby expressed an intention that where a trustee of a public charitable trust proves that the premises are required for the purposes of the trust, the reasonableness and bona fide nature of his requirement should be presumed and that he should be given the possession of the properties without anything more being asked to be shown by him. The final stage of the argument on behalf of the opponents therefore, is that the legislature has expressed an intention that as soon as the trustees of a public charitable trust prove that the premises are required for occupation for the purposes of the trust, they would be entitled to recover possession without any more hindrance. It is therefore, urged that if Section 13 (2) were to be made applicable to such landlords who are trustees of public charitable trusts, a further hindrance would be put in the way of such trustees because they would be then required to show that greater hardship would be caused to them if a decree is not passed, and this would be against the expressed intention of the legislature. It is on the strength of this argument that the learned advocate for the opponents has contended that in construing the term 'landlord' as used in Section 13 (2) of Rent Act, the Court should construe that term of 'landlord' as excepting this category of landlords who are the trustees of a public charitable trust. In our opinion, this argument cannot be accepted. It may be, as urged by the learned advocate for the opponents, though it may not be taken that we accept it, that the legislature intended to exempt the trustees of public charitable trusts from the burden of proving the reasonableness and bona fide nature of their requirement when the legislature amended Clause (G) by introducing therein the second part of that clause. It would at the most, manifest an intention of the legislature that the trustees of public charitable trust may not be required to prove the reasonableness and bona fide nature of their requirement and it would be sufficient if they proved that the premises are required for occupation for the purposes of the trust. This amendment does not, at all, in our opinion, indicate any further intention on the part of the legislature that they should be exempted from the operation of Section 13 (2) of the Act. This Section 13 (2) deals with a wholly separate and distinct point. Section 13 (1), in its Clause (G) deals with the circumstances in which, notwithstanding the provisions of the Act, a landlord will be entitled to recover possession from the tenant for his own occupation. This clause therefore, deals only with the requirement of the landlord and with no other matter. If the landlord fails to prove his requirement, he cannot the possession of the premises, regardless of the fact that the tenant may not suffer any hardship. In Section 13 (1) of the Act, the legislature confines itself to considering the case from the landlords' view point only and it lays down the circumstances under which the landlord may obtain the possession of the premises. In Section 13 (2) of the Act, the legislature not only considers the situation from the view point of the landlords, but also considers the situation from the view point of the tenants. Before Section 13 (2) of the Rent Act could come into play, there must be a finding in favour of the landlord under Clause (g) of sub-section 91) of Section 13 of the Rent Act, which means that the Court ought to come to the conclusion that the landlord has made out a ground specified in Clause (g). Having reached that stage but before passing a decree, the Court is thereafter called upon to consider an entirely different matter. So for as Clause (g) is concerned, the Court considers the situation with a view whether a decree should be passed or not. Having reached that stage, under the provisions of Section 13 (2) of the Act, the Court is required to pause and consider as to what would be the consequences of passing that decree. The Court is required to consider as to what hardships would be felt by the landlord if the decree is not passed, even though the ground specified in Clause (g) is fulfilled by the landlord. The Court is also required to consider what hardships would be felt by the tenant if the decree were passed. It is then required to weigh the hardship of the one against the hardship of the other and come to a conclusion as to which party will have to bear greater hardship. If the landlord has to bear greater hardship, the Court will relieve him by passing a decree; if the tenant were to feel greater hardship, the Court will decline to pass a decree; if the tenant were to feel greater hardship, the Court will decline to pass a decree for possession, even though the requirement is proved by the landlord. The question which is considered under Section 13 (2) of the Rent Act is quite distinct and different from the question that is considered in Clause (g) of sub-section (1) of Section 13 of the said Act. The legislature, by amending Clause (g) of Section 13 (1) may be taken, if the argument on behalf of the opponents were accepted, to have shown some favour to the landlords in the categories of trustees of public charitable trusts. But since the question to be considered in Section 13 (2) of the Act is distinct and different from the question to be considered in Clause (g), it cannot be said that the legislature by the said amendment has also manifested an intention to show favour to the landlords in categories of trustees of public charitable trusts by exempting them from the operation of that section, that is, by allowing them a decree for possession regardless of the consideration of hardships felt by the tenant by passing such decree. In our opinion, the argument on behalf of the opponents on the basis of manifest intention of the legislature to exempt them from the operation of Section 13 (2) is without any substance and we do not accept it.

(10) The second argument was that there was casual omission on the part of the legislature to amend Section 13 (2) of the Rent Act at the same time when it amended Clause (g) of Section 13 (1) of the said Act. This contention is based on the argument that the legislature has manifested an intention to exempt this particular category of landlords consisting of trustees of public charitable trusts to obtain possession of the properties regardless of hardship to the tenant, provided the requirement is for occupation for the purposes of the trust.

(11) The learned advocate for the opponents referred to the following statement on page 12 of 'Maxwell on Interpretation of statutes (Eleventh Edition)' :-

'It is but a corollary to the general rule of literal construction that nothing is to be added to or to be taken from a statute, unless there are similar adequate grounds to justify the inference that the legislature intended something which it omitted to express. 'It is a strong thing to read into an Act of Parliament words which are not there, and, in the absence of clear necessity it is a wrong thing to do'. 'We are not entitled to read into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself'.

(12) Since for the reasons already stated above, we have come to the conclusion that there is no indication anywhere by the legislature manifesting such an intention, we do not think that this is a case of casual omission to amend Section 13 (2) as contended. On the other hand, the provisions of Section 13 (2) were before the legislature when it amended Clause (G) of Section 13 (1) of the Act. If the legislature had also an intention to show favour to such landlords who were trustees of public charitable trusts by allowing them to recover possession of the premises irrespective of the amount of the hardships felt by the tenants, it would certainly have proceeded to suitably amend Section 13 (2) of the Act also. Obviously the legislature has not done so and since the legislature, though it had an opportunity to amend Section 13 (2) of the Rent Act, has chosen not to do so, it is reasonable to conclude that the legislature though it wanted to show favour to a landlord who is a trustee of a public charitable trust in so far as the conditions specified in Clause (g) are concerned, had no intention to absolve him from the operation of the Section 13 (2) of the Rent Act.

(13) The last argument on behalf of the opponents is that on a construction of the language employed in Section 13 (2) of the Act, landlords in the category of trustees of public charitable trusts are not included in the term 'landlord' used in Section 13 92) of the Act and therefore the question of comparative hardship adumbrated in Section 13 (2) of the Rent Act does not arise for decision in their case. In support of this argument, the learned advocate for the opponents relied upon a decision in 1963-4 Guj LR 279, referred to in the commencement of this judgment. That is a decision by our learned brother Raju, J., sitting singly. That was the case where trustees of public charitable trust had filed a suit for possession of the suit premises on the ground that the premises were required for occupation for purposes of the trust. The trial Court decreed the suit for eviction and that decree was confirmed in appeal. In revision application before Raju, J., one of the points taken was that the Courts below have wrongly considered the hardships of the trustees. This point is considered by Raju, J., on page 261 of the Report. The learned Judge has first noted that though Clause (g) was amended by the legislature in 1953, no amendment was made in Section 13 (2) of the Act. The learned Judge, however, construed the words 'having regard to . . . . by refusing to pass it', appearing in Section 13 (2) of the Act and came, on a consideration of those words, to the conclusion that:-

although, prima facie sub-section (2) of Section 13 of the Act would seem to apply to both the parts of Clause (g) of sub-section (1) of Section 13 of the Act, in fact, it applies to the first part of Clause (g) and not to the second part of the said clause. The question of comparative hardship need not be considered when a decree for eviction is passed under the second part of Clause (g) of sub-section (1) of Section 13 of the Act.'

In coming to this conclusion the learned Judge has considered that the matters which are required to be considered under Section 13 (2) of the Act would be inappropriate in the case where a trust was concerned. The learned Judge has stated that 'a trust is not a human being, although a trust is a legal entity'. It is on the basis of this statement-that the trust is a legal entity-that the learned Judge has concluded that Section 13 92) of the Act would be inapplicable to the case of a trust. The learned Judge has stated that (1) there is no question of availability of accommodation for a trust; (2) the trust cannot suffer hardships and (3) the trust does not require accommodation by itself. In our opinion, the learned Judge is not correct when he states that the trust is a legal entity. A trust, as defined in Section 3 of the Indian Trust Act 1882, is an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another, or of another and the owner. The 'trust property' is nothing but the subject matter of the trust that is, a property which is impressed with the obligation giving rise to a trust. When we speak of a trust, we speak merely of the requisite obligation which is annexed to the ownership of a property. This obligation is not a legal entity in any sense; as for example, the trust cannot own any property - the property is owned by the trustee who is an entity by himself different from the trust; a trust cannot sue and a trust cannot be sued; it is only a trustee who can sue and who can be sued. It is only a trustee who can hold properties. A 'trust' cannot be a landlord since the trust properties vest in the legal ownership of the trustees. It is the trustee alone who can be a landlord. Since the trust is not a legal entity, no question of hardship suffered by the trust or accommodation required by the trust can arise for consideration. It is the trustee who administers the trust, who may suffer hardship or who may require accommodation. The learned Judge has also considered that the requirement of reasonableness and bona fide nature which is essential under the first part of Clause (g) is not at all necessary under the second part of that clause. It is not necessary for us in this case to say whether this statement is correct or not; but assuming that it is correct, it has no application to the consideration of the language in Section 13 (2) of the Act. It may be, as we have stated earlier, that under Clause (g) of Section 13 (1) as it stands at present, it is possible to argue that a landlord who is a trustee of a public charitable trust need not show that his requirement is reasonable and bona fide. Even if such a favour is held to have been shown to such a trustee, it would be limited to the making out a ground for possession under Clause (g). The question contemplated in Section 13 (2) of the Rent Act, is a separate and distinct question. In our opinion, therefore, the favour which is said to have been shown in second part of Clause (G) to such landlords who are trustees of public charitable trusts has no relevance in construing the language of Section 13 (2) of the Rent Act. Section 13 (2) applies to all landlords who make out a ground for possession under Clause (g). It therefore, applies to landlords who fall in the first part of Clause (g) as well as to landlords who fall under the second part of the said clause, that is, it applies to trustees of public charitable trusts also, because they fall in the category of landlords mentioned in second part of Clause (g). When a trustee requires the premises for the purposes of the trust, a question will generally arise whether for the purpose of the trust other reasonable accommodation is available to the trustee or not. It is also possible, even in those cases where the Courts come to the conclusion that the premises are required for occupation for the purposes of the trust, that the trustee may be refused a decree on the ground that tenant will suffer greater hardship. There is nothing in the language of Section 13 (2) therefore, which is not applicable to the case of the landlords who are trustees of public charitable trusts. The language used in Section 13 (2) of the Rent Act applies equally to such landlords who are trustees as well as to landlords who are not trustees of public charitable trusts. In our opinion, the decision by Raju, J., in the case stated above, is not correct and with respects, we do not agree to it. In our opinion, therefore, the last argument on behalf of the opponents is also no correct and we have no hesitation in rejecting the same.

(14) The learned advocate for the opponents relied upon two cases in Tirath Singh v. Bachittar Singh, AIR 1955 SC 830 and State of Madhya Pradesh v. Azad Bharat Finance Co., AIR 1967 SC 276. These cases were cited by the learned advocate for the opponents on the basis that his argument that there is manifested or indicated an intention of the legislature to absolve opponents from the operation of Section 13 (2) of the Act, is accepted by us. Since we have not accepted that argument of the learned advocate for the opponents, it is not necessary for us to refer to these two cases. The learned advocate for the opponents also referred to a decision in the case of Shamrao V. Parulekar v. District Magistrate, Thana, AIR 1952 SC 324. He referred to the Head Note (b) which says that:-

'when a subsequent Act reads an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed in such a way that there is no need to refer to the amending Act at all'.

In our opinion, this case has no relevance here. The Supreme Court was there dealing with an Act which was to expire in 1952, but which, after amendment, was prolonged for six months more. The Supreme Court had to deal with a case of detention order which was passed before the Act was amended. It was urged that the detention order came to an end when the original Act would expire and that the amending Act cannot prolong the validity of the detention order. It was in the context of these fact, that the Supreme Court held that the amending Act need not be referred to at all when it had incorporated itself into the original Act. That situation does not exist here and this case is therefore, of no help to us in deciding this matter.

(15) Section 13 (2) of the Rent Act, as we have stated above, applies to all cases when a decree for possession is sought to be passed on the ground specified in Clause (g). Since in this case, the opponents as landlords, are trustees of a public charitable trust and have made out a case for possession on the ground specified in Clause (g) the provisions of Section 13 (2) of the Act would apply equally to them as to those landlord who are mentioned in the firs part of the said clause. It is, therefore, necessary before a decree can be passed in favour of the opponents to consider the question of comparative hardship after taking into consideration the points specified in Section 13 (2) of the Act and the opponents would be entitle to a decree only if the Court finds hat greater hardship would be caused to them, if the decree is not passed than to the petitioner, if the decree is passed.

(16) It appears from the record of the case that no specific issue pertaining to Section 18 (2) of the Rent Act was raised by the trial Court and the trial Judge did not think it necessary to consider this question, in view of the decision in 1963-4 Guj LR 279, mentioned above, The appellate Bench of the Small Causes Court also did not consider this question. The matter, will therefore, have to be remanded back to the trial Court so that an issue pertaining to Section 13(2) of the Rent Act may be framed and evidence taken thereon. The opponents have succeeded on the other points in dispute namely, that they require the suit premises for occupation for the purposes of the trust. It was agreed before us by both the sides that the findings on those points may not be disturbed. The following order is therefore, passed.

(17) The decrees of the trial Court and the appellate Court are set aside and the suit is remanded back to the trial Court with a direction that it should frame a proper issue regard being had to the language of Scion 113 (2) of the Rent Act, 1947. The trial Court is directed to record evidence, if any, offered by the parties to this suit in relation to the above issue and to record a finding thereon, and thereafter to dispose of the suit in accordance with law on the basis of the finding on the above issue, as well as on the findings already recorded on the other issues. It is made clear that the findings on the issues already framed by the trial Court are not to be re-opened. There will be no order as to costs.

(18) Order accordingly


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