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Mohmad Ahmed Vali Mohmad Vs. Ranchhoddas Tribhovandas and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR279
AppellantMohmad Ahmed Vali Mohmad
RespondentRanchhoddas Tribhovandas and ors.
Excerpt:
.....in this act but subject to the provisions of section is a landlord shall be entitled to recover possession of any premises if the court is satisfied (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 purposes of the trust; 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..........will always be relevant on the question whether landlord reasonably and bona fide required the suit premises for occupation by himself or by any person for whose benefit the premises are held. the learned judge rightly held that if the landlord wanted to convert the suit premises for business purposes that would affect the question whether the landlord reasonably or bona fide required the premises for occupation by himself or by any person for whose benefit the premises are held. the decision of the learned judge of the bombay high court is on different points altogether and is not applicable to the facts of the instant case. 3. on the question of hardship the contention is that the learned judges below considered the hardship of the trustees of the trust and that this was irregular......
Judgment:

V.B. Raju, J.

1. The petitioner in this civil revision application was the original defendant. The opponents had filed a suit against him for possession of the suit property, namely premises bearing No. 4130, situated in ward 4, Begampura, Surat, on the ground that the suit property, originally belonged to one Shri Maganlal, who created trust in respect of the property and by the said trust directed that the said property be used for a maternity home, and he transferred the property to the trustees for administration as a public charitable trust by a registered deed. The plaint proceeded to allege that the suit property was required by the trustees for converting the property into a maternity hospital. The trial Court decreed the suit for eviction and also decreed the rent due and mesne profits. The decree was confirmed in appeal. In this revision application only that part of the decree which relates to eviction is challenged and four points are urged

It is contended that Section 25(1) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 which will hereinafter be referred to as the Act controls Section 13(1)(g) of the Act (2) that the Courts below have wrongly considered the hardship of the Tapi Brahmacharya Sabha which was appointed as a trustee (3) that the suit was for a relief under Clause (hh) of Section 13(1) and not Clause (g) of Section 13 of the Act and (4) that in the case of a trust also requirement must be reasonable and bona fide.

These arguments will be dealt within their order. Section 13(1)(g) and Section 13(1)(hh) read as follows:

13 Notwithstanding anything contained in this Act but subject to the provisions of section is a landlord shall be entitled to recover possession of any premises if the Court is satisfied

(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 purposes of the trust; or

(hh) that the premises consist not more than two floors and are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting new building on the premises sought to be demolished.

Section 25 of the Act reads as follows:

(1) A landlord shall not use or permit to be used for a non-residential purpose any premises which on the date of the coming into operation of this Act were used for a residential purpose.

(2) Any landlord who contravenes the provisions of Sub-section (1) shall on conviction be punishable with imprisonment for a term which may extend to three months or with fine or with both.

2. The contention is that if it is intended to convert the suit property into a maternity hospital that would be an offence under Section 25 of the Act. Sections 25 and 13 of the Act deal with different topics and there is no question of one section controlling the other. But all the sections in the Act must be kept in mind when deciding any question falling under the Act In the present case the question is whether the decree for eviction is properly passed under Section 13 or not. The question whether the landlord should be prosecuted if he converts the suit property into a maternity hospital is not a question for consideration at this stage and when that question will be considered the provisions of Section 6(1) of the Act namely in areas specified in Schedule I this Part shall apply to premises let for residence education business trade or storage will have to be kept in mind. But this question need not be decided now.

The Learned Counsel for the applicant relies on judgment of Tarkunde J. of the Bombay High Court in Civil Revision Application No. 2172 of 1957 The learned Judge of the Bombay High Court there considered the case where the landlords wanted to convert residential premises for business purpose. As observed by the learned Judge such intention of the landlord will always be relevant on the question whether landlord reasonably and bona fide required the suit premises for occupation by himself or by any person for whose benefit the premises are held. The learned Judge rightly held that if the landlord wanted to convert the suit premises for business purposes that would affect the question whether the landlord reasonably or bona fide required the premises for occupation by himself or by any person for whose benefit the premises are held. The decision of the learned Judge of the Bombay High Court is on different points altogether and is not applicable to the facts of the instant case.

3. On the question of hardship the contention is that the learned Judges below considered the hardship of the trustees of the trust and that this was irregular. The second part of Clause (g) of Sub-section (1) of Section 13 of the Act was added by an amendment by Bom. 61 of 1953. Sub-section (2) of Section 13 of the Act reads as follows:

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.

Whereas the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises the Court shall pass the decree in respect of such part only....

Sub-section (2) was there even prior to the amendment of Clause (g) of Sub-section (1) of Section 13 of the Act. But when Clause (g) of Sub-section (1) was amended no amendment was made in Sub-section (2). Sub-section (2) as it stands refers to the whole of Clause (g) of sub Section (1). But if we study carefully the wording of Sub-section (2) it would be clear that it is applicable only to the first part of Clause (g) and not to the second part of Clause (g). In particular the following words are important: 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. There is no question of the availability of accommodation for a trust. A trust is not a human being although a trust is a legal entity. It is an impersonal and nonhuman. entity. It cannot suffer hardship. It cannot require accommodation by itself. The first part of Clause (g) refers to the requirement of the landlord for occupation by himself or by any person for whose benefit the premises are held. The second part of Clause (g) refers to the requirement of the premises for occupation for the purpose of the trust. The premises must be required for occupation for the purpose of the trust whereas in the first part of Clause (g) the premises must be reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held. The requirement of reasonableness and bona fide nature which is essential under the first part is not at all necessary under the second part. What is essential under the second part is that the premises must be required fog occupation for the purpose of the trust. I am therefore of the opinion 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.

4. The third argument urged by the Learned Counsel is that both under the terms of the trust and a cording to the trustees the suit premises are to be renovated and altered before they are converted into a maternity hospital and that therefore the case falls under Clause (hh) of Section 13 of the Act and not under Clause (g) of the said section. Clause (hh) would not apply because the landlord in this case is a trust and the trust itself does not require the premises. The trust as observed is a non-human entity which has no need and no requirement for accommodation. Even assuming that Clause (hh) applies the case would also fall under the second part of Clause (g) and if a decree for eviction can be passed under the second part of Clause (g) of Sub-section (1) of Section 13 of the Act and can be justified under that clause it is necessary to consider whether the decree can be justified under some other clause. Clause (hh) would apply in a case where the sole purpose for which the premises are required is to demolish and erect a new building. That is not so in the instant case. The sole purpose in the instant case is to use the suit premises for a maternity hospital and for the sake of proper and efficient use of the suit premises as a maternity hospital to demolish the present premises and to make suitable alteration. The instant case does not therefore fall under Clause (hh) of Sub-section (1) of Section 13 of the Act.

All the contentions of the Learned Counsel for the applicant are therefore rejected and the revision application is dismissed. The applicant will pay half the costs of this revision application to opponents Nos. 1 3 and 4.


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