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Krishna Qurudayal Sharma Vs. Hansraj Jiwandas and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1961)2GLR572
AppellantKrishna Qurudayal Sharma
RespondentHansraj Jiwandas and ors.
Excerpt:
- - it may also be mentioned at this stage that the appellant was in arrears of rent and had failed to pay rent in respect of the premises from 1 june 1954. though the tenancy of the applicant was terminated by a notice to quit given by the respondents the appellant refused to vacate the premises and the respondents were therefore obliged to file the present suit against the appellant for obtaining possession to the premises and recovering arrears of rent and electric charges amounting to rs. it was also stated in the plaint that the appellant was in arrears of rent from 1st june 1954 and had also failed to pay the electric charges in respect of the premises. lastly it was contended that the notification was meant only for the purpose of benefiting the present trust which was a trust.....p.n. bhagwati, j.1. this second appeal arises out of a suit filed by the respondents as plaintiffs against the appellant as defendant in the court of civil judge (junior division) rajkot for ejecting the appellant from certain premises belonging to the respondents and for recovering arrears of rent in respect of the premises. the respondents are trustees of a trust called the rajkot lohana boarding house and as such trustees the respondents own various immovable properties one of which is known as sitaram blocks. this immovable property known as sitaram blocks was constructed sometime in 1945 and was immediately after construction let out to the tenants. the appellant has been a tenant of rooms nos. 13 and 14 on the first floor and shops nos. 2 5 and 6 on the ground floor of this.....
Judgment:

P.N. Bhagwati, J.

1. This Second Appeal arises out of a suit filed by the respondents as plaintiffs against the appellant as defendant in the Court of Civil Judge (Junior Division) Rajkot for ejecting the appellant from certain premises belonging to the respondents and for recovering arrears of rent in respect of the premises. The respondents are trustees of a trust called the Rajkot Lohana Boarding House and as such trustees the respondents own various immovable properties one of which is known as Sitaram Blocks. This immovable property known as Sitaram Blocks was constructed sometime in 1945 and was immediately after construction let out to the tenants. The appellant has been a tenant of Rooms Nos. 13 and 14 on the first floor and Shops Nos. 2 5 and 6 on the ground floor of this immovable property since about 1945-1946. At the time when this immovable property was constructed the number of students who required accommodation in the boarding house of the trust was small and this immovable properly was therefore not required for the purpose of housing the students and was therefore let out to the tenants. In course of time the number of students gradually increased and the respondents as trustee of the trust around that it was necessary to have more accommodation for the purpose of housing appellant with a notice to quit the premises in the occupation of the appellant. It may also be mentioned at this stage that the appellant was in arrears of rent and had failed to pay rent in respect of the premises from 1 June 1954. Though the tenancy of the applicant was terminated by a notice to quit given by the respondents the appellant refused to vacate the premises and the respondents were therefore obliged to file the present suit against the appellant for obtaining possession to the premises and recovering arrears of rent and electric charges amounting to Rs. 772-12-6. It was stated by the respondents in the plaint that the premises were exempted from the operation of the Saurashtra Rent Control Act 1951 (hereinafter referred to by me as the Act) and that the premises were required for the bona fide use and occupation for the purpose of housing the students. The exemption from the operation of the Act was claimed by the respondents in respect of the premises on the basis of a notification dated 27th December 1954 issued by the Government under Section 4(3) of the Act and a certificate from the Government that the premises fulfilled the terms and conditions laid down in the notification. It was also stated in the plaint that the appellant was in arrears of rent from 1st June 1954 and had also failed to pay the electric charges in respect of the premises. On these grounds the respondents claimed to recover possession of the premises from the appellant. The appellant raised several contentions in his written statement. One of the contentions was that the premises were not exempted from the operation of the Act and it was also in any events contended that the premises were not required for the bona fide use and occupation for the purposes for which they were meant It. The appellant contended that the respondents were not entitled to recover possession of the premises and urged that the suit should be dismissed with costs.

2. The learned Judge who tried the suit held that the premises were exempted from the operation of the Act and that they were required for the bona use and occupation for the purpose of accommodating the growing number of students. The learned trial judge also held that the appellant had not paid rent from 1st June 1954 upto the date of the suit and that the appellant was also in arrears of electric charges to the extent of Rs. 25/-. The learned trial Judge accordingly passed a decree for eviction against appellant in so far as Rooms Nos. 13 and 14 on the first floor of the Sitaram Blocks were concerned. But so far as Shops Nos. 2 5 and 6 on the ground floor were concerned the learned trial Judge held that these shops were not fit in their present condition to house the students all that the respondents would have sufficient accommodation for the students even without obtaining possession of these shops and that great hardship would be caused to the appellant if decree for eviction was passed against the appellant also in respect of these shops and he accordingly refused to pass a decree for eviction against the appellant in respect of these shops. So far as the arrears of rent and electric charges were concerned the trial Judge passed a decree for Rs. 772-12-6 against the appellant.

3. The appellant appealed against the decree passed by the learned trial Judge but the appeal was summarily dismissed by the learned District Judge Madhya Saurashtra Rajkot The learned District Judge confirmed the findings of the learned trial Judge and held that there was no sufficient ground for interference with the decree passed by the learned trial Judge. It is against this decree passed by the learned District Judge that the appellant has filed the present Second Appeal in this Court.

4. Mr. Hathi learned advocate on behalf of the appellant principally challenged the exemption of the premises from the operation of the Act Mr. Hathis argument was that the notification dated 27th December 1954 issued by the Government under Section 4(3) of the Act granting exemption to certain classes of premises was invalid and illegal inasmuch as no inquiry was made of the Government before issuing the notification and that the persons who would be affected by the notification were also not given any opportunity to show cause way the notification should not be issued. It was also argued by Mr. Hathi that even if the notification was validly issued by the Government the notification could not become effective in respect of any premises until a certificate was obtained from the Government to the effect that thee premises fulfilled the terms and conditions laid down in the notification and such certificate could not be issued by the Government unless an inquiry was held by the Government and the persons who would be affected by Such certificate were given an opportunity of showing cause why such certificate should not be granted. Mr. Hathis contention was that in the present case no inquiry was held and no notice was given to the appellant to show cause Why a certification in respect of the premises in question should not be issued and that the certificate issued by the Government was therefore invalid. If the certificate was invalid the notification could not be effective in respect of the premises and in that view of the matter the exemption would not be operative. It was further argued by Mr. Hathi that even if the notification and the certificate were valid and the exemption was operative in respect of the premises the premises were not required for bona fide use and occupation for the purposes for which they were meant and that the respondents were therefore not entitled to evict the appellant from the premises. This argument was based on 2 construction of condition (1) specified in schedule A to the notification. I shall refer to this condition a little later in the course of this judgment. Lastly it was contended that the notification was meant only for the purpose of benefiting the present trust which was a trust for the exclusive benefit of members of the Lohana community and that the notification was therefore bad as being discriminatory. Mr. Hathi urged on the strength of these arguments that the respondents were not entitled to recover possession of the premises from the appellant and that the respondents suit should have been dismissed with costs. These arguments were contested by Mr. Shah appearing on behalf of the respondents.

5. Before I proceed to examine the arguments advanced on behalf of the parties it would be convenient to set out Section 4(3) in the Act which is the section which authorizes the Government to grant exemptions from the operation of the Act.

4(3) the Government may by notification in the Official Gazette direct that all or any of the provisions of this Act shall not subject to such conditions and terms as it may specify apply:

(i) to premises used for a public purpose of a charitable nature or to any class of premises used for such purpose;

(iii) to premises used by a public trust for a religious or charitable purpose and let at a nominal or concessional rent; or

(ii) to premises held by a public trust for a religious or charitable purpose and let with a view to applying the proceeds of rents to such purposes:

Provided that no such notification shall be effective in respect of any particular premises until the owner occupier manager trustee or any other person in charge of the management of Such premises obtains a certificate from Government in such form as may be prescribed that the said premises full the terms and conditions laid down in such notification. Such certificate shall be granted after holding such inquiry as may be considered necessary.

It was under this section that the Government issued the notification mentioned above. Since almost the entire argument in the case turns on the notification it is necessary to set out the notification in extenso. The notification was in the following terms:

'Rajkot dated 27th December 1954.

No. AB/15(17)/51 55:In exercise of the powers conferred by Sub-section (3) of Section 4 of the Saurashtra Rent Control Act 1951 (Act No. XXII of 1951) (hereinafter referred to as the Act Government is pleased to direct in supersession of all previous notifications on the subject that the provisions of the said Act except the provisions in Sections 23 24 and 25 shall not subject to the conditions and terms specified in Schedule A appended thereto apply:

(i) to the classes of premises mentioned in Schedule B appended thereto used for a public purpose of charitable nature;

(ii) to premises used by a public trust for a religious or charitable purpose and let at a nominal or concessional rent; and

(iii) to premises held by a public trust for a religious or charitable purpose and let with a view to applying the proceeds of rents of such premises to such purposes.

Schedule A.

1 Except where the premises are required for the bona fide use and occupation for the purposes for which the premises are meant no tenant of such premises to whom thee same may have been learned on or before 21st December 1948 shall be evicted provided such tenant agrees to increase the monthly rent paid by immediately before the said date by 50% and does not allow except for valid reasons the rent amount due at any time to run in arrears for more than two consecutive months.

2 The owner occupier manager trustee or any other person in charge of the management of the premises shall publish annually a printed report of its regular accounts for the information of all concerned or of the public generally and shall frame regular rules for the constitution management audit etc. of the funds in his charge or under his control.

Schedule B

1 Boarding for students.

2 Dharmashala's.

3 Panjarapole.

4 Anath Ashrams.

5 Hospitals Dispensaries Clinics and similar institutions.

6 Balashrams.

7 Educational Institutions.

It may be mentioned that the certificate referred to above was granted by the Government in pursuance of the notification and the certificate was in respect of the immovable properties of the trust including Sitaram Blocks. The certificate was as follows:

No. AB/15(7). 53-54.

Public Works Department Government of

Saurashtra Rajkot 7 March 1955.

Certificate.

Certified that the premises shown in the margin of the institution named the Rajkot Lohana Boarding House Rajkot are exempted from the operation of

1 Reghuvir Bhuvan Blocks with workshop. 1 to 17. all the provisions of2 Sitaram Blocks. 1 to 21. the Saurashtra Rent3 Motor Garages Res. 1 to 10. Control Act 1951 except4 One Godown in the compound of Sitaram Block, those of Sections 23 20 5 One Godown in the compound of and 25 subject to the Boarding house, conditions and terms specified in Schedule 'A'appended to the Public Works Department Notification No. AB/15(17)54-55 dated 27th December 1954.

By Order and in the name of the Raj Pramukh of Saurashtra.

Sd. P.R. Vibhakar.

Under Secretary to the Govt, of Saurashtra P.W.D.

The first argument urged by Mr. Hathi need not detain me long for the argument requires to he only stated in order to be negatived. It is difficult to see how it can be contended that the notification is invalid on the ground that no inquiry was held by the Government before issuing the notification and no opportunity was given by the Government to the persons affected to show case why the notification should not be issued. Turning to Section 4(3) of the Act under which the notification has been issued I find that there is no provision in that section which prescribed any inquiry to be held by the Government before issuing notification under that section nor does that section require the Government to issue any notice to the persons affected to show case against the proposed notification. There is no provision in Section 4(3) making an inquiry or notice a condition precedent to the issuing of a notification. I also do not know of any principle of law on the basis of which any such requirement can be imported in the language of Section 4(3). Mr. Hathi has also not been able to point out to me any such principle of law. All that Mr. Hathi could do was to place reliance on Article 245 of the Constitution which deals with the power of the Parliament to make laws. I do not see how Article 245 of the Constitution is even remotely communicated with the present question. The notification under Section 4(3) is in the nature of subordinate legislation and there is no rule of law which requires that before making subordinate legislation in virtue of the authority granted under an enactment the Government should hold an inquiry or observe the principle of natural Justice. The only requirement of Section 4(3) is that the notification should be published in the Official Gazette and that has been done in the present case.

6. The challenge to the notification must therefore fail. The challenge to the certificate was also based on the same ground namely that the certificate was issued by the Government without holding any inquiry and without giving any opportunity to the appellant to show case why such certificate should not be granted. Mr. Hathi placed reliance on the last part of Section 4(3) which enacts that the certificate shall be granted after holding such inquiry as may be considered necessary. The contention of Mr. Hathi was that no inquiry was held in the present case and that the certificate granted by the Government was therefore invalid. Now this argument appears to have been urged for the first time at the hearing of this Second Appeal. The question whether an inquiry was or was not held by the Government is essentially a question of fact and if the appellant wanted to put in issue the fact that an inquiry was held by the Government the appellant should have raised the question before the learned Civil Judge who tried the suit and asked the learned Civil Judge to frame an issue in that behalf so that evidence could be led upon it. The respondents averred in the plaint that the premises were exempted from the operation of the Act. The exemption could only be by virtue of the notification issued under Section 4(3) and the notification was published in the Official Gazette. The holding of an inquiry and the grant of a certificate in respect of the premises were conditions precedent to the exemption granted by the notification becoming effective in respect of the premises and it was not necessary for the respondents to aver the fulfillment of the conditions precedent. If the appellant wanted to contest the fulfillment of the conditions precedent it was for the appellant to raise the necessary plea and in that event an issue would have been framed and the have would have to had that the conditions precedent had been fulfilled. I however find that no such plea was raised by the appellant and naturally no issue in that behalf was framed by the learned Civil Judge. It also appears from the judgment of the learned Civil Judge that this particular point namely that no inquiry was held before the certificate was granted by the Government does not seem to have been advanced before the learned Civil Judge. The point also does not seem to have been raised in the Memorandum of Appeal before the learned District Judge and it does not appear to have been an issue before him. The question being essentially a question of fact I cannot permit Mr. Hathi to urge the point for the first time at the hearing of this Second Appeal before me. But apart for this I do not this there is any substance in this argument of Mr. Hathi. All that Section 4(33) 4(3) is that the certificate should be granted after holding such inquiry as may be considered necessary. The section does not state that the inquiry should be held in any particular manner. The nature as well as the manner and procedure of the inquiry are left to the subjective satisfaction of the Government and the section does not require that any inquiry should be made from the persons affected or that any notice of such inquiry should be given to the persons affected. In this view of the matter the argument of Mr. Hathi that no notice of the inquiry was given to the appellant and that the certificate is therefore invalid cannot be accepted.

7. The main argument of Mr. Hathi turned on the construction of Clause (1) of Schedule A to the notification. Mr. Hathi did not dispute that Sitaram Blocks were premises held by a public trust for a religious or charitable purpose and let with a view to applying the proceeds of rent of such premises to such purpose so as to fall within the ambit of Clause (iii) of the notification. But he contended that the exemption which was granted by the notification was subject to the condition specified in Clause (1) of Schedule A to the notification. According to Mr. Hathi Clause (1) of Schedule A provided that no tenant of the premises covered by the exemption to whom the premises were leased on or before 20th December 1948 shall be liable to be evicted so long as such tenant agreed to the monthly rent by 50 and did not allow except for valid reasons the rent amount due at any time to due in arrears for more than two consecutive months and the only exception to this rule was that the premises were required for the bona fide use and occupation for the purposes for which the premises were meant. Mr. Hathi argued that the appellant was a tenant of the premises since about 1945-1946 and that the only ground on which he was sought to be ejected was that the premises were required for the bona fide use and occupation for the purpose of housing students, new the purpose of housing students argued Mr. Hathi was not the purpose for which the were meant and even if the respondent case was accepted as correct the premises could not be said to be required for the bone find use and occupation for the purpose for which the premises were meant. The final step in the argument of Mr. Hathi was that since the premises were not required for the bona fide use and occupation for the purpose for which the premises were meant the appellant was not liable to be evicted from the premises Mr. Shah on the other hand argued that the premises belonged to the trust and were meant for the purpose of housing students and merely because at the date when the premises were constructed the premises were not needed for the purpose of housing students and were therefore let out to the tenants it does not mean that the premises were always meant for the purpose of being let out. Mr. Shahs argument was that it is at the date when the premises are required that it must be seen as to what is the purpose for which the premises are meant and if this is the true construction of Clause (1) of Schedule A it is clear that the premises were meant for the purpose of housing students and were required for the bona find use and occupation for the purpose for which the premises were meant within the meaning of that clause. It is to this argument that I shall now address myself.

8. It is undisputed that the premises in question are premises belonging to the trust. At the date when the premises were constructed the number of students was not large and there was sufficient space in the premises which were that being used for the purpose of housing students and that Sitaram Blocks were therefore let out to the tenants. There is no doubt that the immediate intention of the trustees at the time when Sitaram Blocks were constructed was at let them out to the tenants inasmuch as the accommodation then required for the students was sufficient and more space was not required. But can it be suggested that the intention was that Sitaram Blocks should always be let out to the tenants no matter what the number of students was at any particular point of time? Can it on said that Sitaram Blocks were always meant for the purpose of being let out to the tenants even though the number of students might grow and increased accommodation might be required for the purpose of housing students? The intention or purpose must be ascertained from the provisions of the trust deed for Sitaram Blocks are held by the respondents as trustees subject to the rules powers and provisions contained in the trust deed. It is specifically provided in the trust deed which is Exhibit 6 in the case that the trustees shall stand possessed of all the funds and properties subject to the rules powers and provisions contained in the Scheme annexed anti marked Schedule III to the trust deed. Schedule It declares the scheme for the management and administration of the trust and its funds and properties and Clause 3 runs as under:

3 The objects for which the said Boarding House is established are:

(1) To allow poor Lohana students free boarding and lodging in the said Boarding House and pay fees and supply free books to such of them as may be studying in the 4 and higher standards of a High School and who shall be called resident students and to assist also non-resident Lohana students studying in any technical commercial or scientific institute outside Rajkot but the number of such non-resident students shall not be run than 1/8 (one-eighth) of the number of resident students for the time being.

(2) To admit Lohana students who are able and willing to pay for their boarding as paying boarders in the said Boarding House provided that so far as the funds of the said institution and the available accommodation shall permit the students not able to pay for their boarding shall always be entitled to admission in priority to the paying boarders. xx xx xx xx

9. It is therefore obvious that all the properties of the trust including Sitaram Blocks are under the terms of the trust deed to be primary applied for objects set out above. It was merely because at the date when Sitaram Blocks were constructed there was sufficient accommodation for the students in the existing premises and it was not necessary to have more space for boarding and lodging of Lohana students that Sitaram Blocks were let out to the tenants. The letting of Sitaram Blocks to the tenants did not destroy the primary purpose to which Sitaram Blocks were liable to be applied under the terms of the trust deed. It cannot therefore be contended that merely because Sitaram Blocks were once let out to the tenants they were always meant to be let out and were never meant to be utilised for boarding and lodging of Lohana students. Such an inference would be contrary to the terms of the trust deed itself. The words for the purposes for which the premises are meant must be construed in the context in which they occur. It is in relation to premises used or held by a public trust for a religious or charitable purpose that the words for purposes for which the premises are meant are used. The context and the collocation of these words make it clear that the purposes for which the premises are meant must be determined having regard to the nature and object of the public trust which uses or holds the premises It would not be correct to determine the purposes for which the premises are meant without having regard to the terms of the trust deed for the premises are held subject to the terms of the trust deed and the purposes to which the premises can be applied must be gathered from the terms of the trust deed. If one has regard to the terms of the trust deed in the present case it is clear that the premises were meant for boarding and lodging Lohana students for that was the primary purpose to which the premises were liable to be applied under the terms of the trust deed. If that is the correct construction of Clause (1) of Schedule A there is little doubt that the premises in question were required for the bona fide use and occupation for the purpose for which the premises were meant. There is a finding of fact given by the learned District Judge that the premises were required for the bona fide use and occupation of the students and having regard to this finding of fact it must follow that the premises were required for the bona fide use and occupation for the purpose for which the premises were meant within the meaning of that expression as used in Clause (1) of Schedule A. If the construction suggested by Mr. Hathi were to be put upon Clause (1) of Schedule A the result would be that in the case of premises held by a public trust for a religious or charitable purpose and let with a view to applying the proceeds of rent of such premises to such purposes the trustees would in no case be entitled to recover possession of the premises from a tenant to whom the premises were let on or before 20th December 1948 provided such tenant agreed to increase the monthly rent by 50% and did not allow except for valid reasons the rent amount due at any time to run in arrears for more than two consecutive months. Once the premises were let out with a view to applying the proceeds of rent of such premises to the purposes of the trust the possession of the premises would not be recoverable by the trustees even though the trustees required the premises for the purpose of carrying out the objects of the trust because the argument would always be that the purpose for which the premises were meant was letting out and that the requirements of the trustees were therefore not for the bona find use and occupation for the purpose for which the premises were meant. This would lead to the absurd result that though the trustees would have been entitled to recover possession of the premises under Section 13(g) of the Act if the exemption had not been granted in respect of the premises as a result of the exemption the right of the trustees to recover possession of the premises would become more restricted and the trustees would not be entitled to recover possession of the premises even though the premises were required for the bona fide use and occupation of the students Which is the main object of the trust. The intention of the Government in making subordinate legislation by issue of the notification could never have been to impose greater limitations on the right of trustees to recover possession. The notification was issued under Section 4(3) which is a section which authorizes the Government to exempt premises from the operation of this Act because the Act imposes several restrictions on the right of landlords and confers several rights on the tenants and the Government could not possibly have intended under the guise of an exemption to impose greater restrictions on the right of the trustees to recover possession of premises from tenants the those imposed by the Act itself. The construction contended for by Mr. Hathi would lead to this extraordinary result that the exemption instead or relieving the trustees from the rigour of the Act would impose greater restrictions on their right to recover possession of premises from their tenants. Such a result obviously could not have been intended and I on my part would be loath to accept a construction which would lead to such a result In view of this the present argument of Mr. Hathi must be rejected.

10. I must confess that I find it rather difficult to follow the last argument of Mr. Hathi. Mr. Hathis argument was to use his own language that the notification was meant only for the purpose of benefiting the Rajkot Lohana Boarding House which was a trust for the exclusive benefit of the Lohana community and was therefore discriminatory against the members of the other communities. I have carefully gone through the notification and scanned every line and word of it but I have not been able to find anywhere in the notification anything to suggest that the notification is meant only for the purpose of benefiting the Rajkot Lohana Boarding House. The notification in clear and explicit terms exempts from the provisions of the Act except the provisions in Section 23 24 and 25 three classes of premises and none of these classes is defined by reference to any community much less the Lohana community. The exemption granted by the notification is available to the premises with which we are concerned in the present case because they fall within the ambit of Clause (iii) of the notification and the notification is not confined in its application to premises belonging to any particular trust much less to the premises belonging to the Rajkot Lohana Boarding House. This argument of Mr. Hathi is without any substance and must therefore be rejected.

In the result the appeal fails at will be dismissed with costs.


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