V. Khalid, C.J.
1. The defendant, in a suit for ejectment, instituted by the respondent in the Court of Munsiff, R. S. Pura, on the ground that the premises were reasonably required for his occupation, is the appellant The suit was resisted by the defendant contending that the grounds put forward were a ruse to evict him. The suit was originally dismissed. In appeal, the appellate Court remanded the case to the trial Court for fresh consideration of the issues involved. The trial Court by its judgment dt. 13-6-1981 held against the plaintiff on the ground of personal requirement for occupation. However, it held that the plaintiff required the premises for re-building and a decree for ejectment was passed. The trial Court directed the plaintiff to offer to the defendant the building after re-building. The defendant preferred an appeal against the decree for ejectment. The plaintiff filed a cross appeal against the finding about personal requirement. The appellate Court dismissed the appeal and the memorandum of cross-objections but vacated the direction to the plaintiff to offer the building to the defendant on reasonable rent after re-construction. Hence the second appeal.
2. The appellant's counsel submits that the Court below committed an error of law in vacating the direction made by the trial Court in conformity with the amended Section 13(3) of the J&K; Houses and Shops. Rent Control Act, hereinafter referred to as the Act. According to him, when the ground of personal requirement was found against, and the decree was only on the basis of requirement for re-building, the landlord should be directed to offer the building to the tenant after rebuilding as contained in Section 13(3) and the Court below went wrong in vacating the said direction.
3. Respondent's Counsel, on the other hand submits that the direction to the landlord to offer the building to the evicted tenant comes in only when the landlord intends to let it out. If he intends to occupy it the question of offering the building to the tenant does not arise.
4. To appreciate these contentions it is necessary to understand the scope of Section 11(1)(h) of the Act and the facts of the case. The petition was filed for ejectment with the plea that the respondent reasonably required the building for the purposes of his own occupation and for the purposes of re-building. It is necessary to note that the requirement put forward is not for building or re-building alone. It is for occupation and for that purpose to rebuild the building. The petition also contains a prayer--and this is how the Courts below understood the claim--that the building is required for re-building. The trial Court considered these two grounds and held that the plaintiff failed to make out a case for personal requirement for occupation but established a case of reasonable requirement for the purpose of re-building and hence gave the direction as envisaged by Section 13(3). However, the appellate Judge approached the question differently. In para. 18 he has discussed the question thus:
'.....It did not consider the question of reasonable requirement but instead proceeded to return a finding on the comparative advantage and disadvantage of the parties without deciding the question of requirement. This approach was not, however, warranted by law. But this finding in any case in no way prejudices the plaintiff because where the premises are dilapidated and the allegation is that they are incapable for living unless re-built the plea of reasonable requirement for self-occupation is a surplusage. It is more so when re-building of such premises is also a ground of ejectment. This is because once the plea of re-building is allowed and it is held that the premises are completely dilapidated unfit for human living, the question of personal occupation would arise only after such reconstruction. Hence such a plea is incompatible with the condition of the building as the question of occupation will arise only after its re-building because after re-building an option is given to the landlord whether to occupy it himself or to lease it out, but in case he wants to lease out the premises after rebuilding he is bound to make the offer to the tenant who was ejected and will be bound to accept the market rate of the rent from the tenant as rent In other words the tenant, who is ejected, continues to have a lien in the premises, but only if there are to be leased out and not if the landlord decide to occupy the premises personally. So the question of personal requirement in this case is irrelevant and a totally contradictory plea...'
In my view this approach by the appellate Court is defective and fails to take note of the scope of the section.
5. To understand the contentions it is necessary to quote Section 11(1)(b) :--
'(h) Where the house or shop is reasonably required by the landlord either for purposes of building or re-building, or for his own occupation or any person for whose benefit the house or shop is held :
xx xx xx xx xx xx'
This Section consists of two parts; reasonable requirement by the landlord for purposes of building or re-building or reasonable requirement for his own occupation or for any person for whose benefit the shop is held The two parts are independent of one another, though they are not mutually exclusive. One part may take in the ingredients of the other part also. In a given case the landlord may seek eviction only on reasonable requirement for building or re-building. In other cases the landlord may sue for ejectment on the ground of reasonable requirement for occupation of the building as it is or for that purpose build or re-build. In the first case, the landlord has to satisfy the Court that the building needs building or rebuilding. The expression used is 'reasonably required'. Building or rebuilding cannot be according to the whims and fancies of the landlord. However, for this ground he need not establish a personal requirement for occupation of the building. In the latter case, he has to establish that he reasonably requires the building for his personal occupation. He can say that he would occupy it after re-building it. In such cases the two parts can coalesce. A landlord cannot be asked to occupy a building in a dilapidated condition if he puts forward a case of personal requirement after re-construction. The law does not forbid a suit for ejectment on the ground of personal requirement to permit the landlord to occupy it after re-construction. But law forbids a landlord in occupying a building, the possession of which he secured by a decree for ejectment solely on the ground that he required the building for the purposes of building or re-building. While in the first class of cases, that is, where he secures a decree for ejectment on the ground of personal occupation, after rebuilding, there is no obligation on his part to offer the building to the tenant on a reasonable rent, in (he latter class of cases where the decree for ejcetment is obtained only on the ground that he required the building for re-building, law enjoins on the landlord to offer the building on a reasonable rent to the evicted tenant. It is this benefit that Section 13(3) confers on the tenants.
6. Viewed in this light the appellate Court has committed a clear error. The appellate Court has not entered a finding whether the landlord reasonably requires the building for his occupation either as it is or after re-building. The appellate Judge seems to think that this is a case which need be considered after re-construction. To take this view would be to clothe the landlord with a power to eject a tenant on the ground that the building needs repairs or re-construction and then occupy it without establishing reasonable requirement for his occupation. Section 11(1)(h) does not admit of such an interpretation.
7. I may profitably refer to a decision reported in AIR 1959 Cat 181. In that case Section 12(1)(h) of the West Bengal Rent Control Act fell for consideration, which section is pari materia with Section 11(1)(h) of our Act. At page 189, Mukerjee, J. refers to the submissions made by the tenant's counsel before him, as follows :
'............ Where the requirement is for building and re-building, that must be for purposes other than the landlord's own occupation and where the requirement is for the landlord's own occupation, no question of building and re-building should arise; or, to put it straight, if the landlord's case is that he requires the premises for building and re-building, he cannot claim to occupy it himself and if his case be that he requires it for his own occupation, he must occupy it as it is and must not think for building and/or re-building it and if, on his own showing or admission, it will not be fit for his own occupation unless built and/or re-build his case of requirement for his own occupation must fail under the statute.'
This submission was met by the learned Judge as follows :
''.... Whatever may be said with regard to the first part of this argument which does not really concern us here but in which there may be a good deal of substance, we are wholly unable to accept the latter part. In the course of arguments, I put to Mr. Gupta one concrete illustration. That was the case of a landlord who was about to be ejected from a rented premises but who had a premises of his own, let out to a tenant and unsuitable for his own occupation unless built and/or re-built, and I asked Mr. Gupta whether, in such circumstances, the landlord would be entitled under the proviso to get possession of the premises on the ground that he required it for his own occupation and he intended to build and/or re-build it for that purpose and to occupy it after such building and/or re-building. Mr. Gupta's answer was an emphatic 'no'. I do not think, however, that that would be a reasonable construction of the statute and I refuse to believe that the legislature intended to leave the landlord without a remedy and without a residence for himself and his family, even though he had a premises and a reasonable requirement of it for his own occupation or residence and also the means of making it fit for his habitation. The extreme position,--and its utter reasonableness--which Mr. Gupta had to take up to support or sustain his argument makes it clear that his said argument cannot be sound and we find no justification for accepting the unreasonable view of the statute which is necessarily involved in Mr. Gupta's submission. There is nothing in the Act which compels such acceptance and Section 15, to which, our attention was particularly drawn by Mr. Gupta, does not present any obstacle to our point of view as occupation of the premises for purposes of building and/or re-building in order to make it fit for one's own occupation would be part of such occupation. We, accordingly overrule this extreme argument of Mr. Gupta.'
With respect I agree with this approach.
8. In AIR 1964 SC 1676 considered the above Calcutta case while dealing with Section 13(1)(3) and Section 13(1)(hh) of the Bombay Rent Control Act. Section 13(1)(hh)-deals with personal requirements for occupation; Section 13(1)(hh) deals with reasonable requirement for demolishing the building and for erecting a new building on the premises. The scope of the two sections was outlined by the Supreme Court in paras. 15 and 16 as follows:
'(15) We are therefore of the opinion that once the landlord establishes that he 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 alteration to them or after making the necessary alterations.
(16) The provisions of Clause (hh) cannot possibly apply to the case where a landlord reasonably and bona fide requires the premises for his own occupation even if he had to demolish premises and to erect a new building on them. The provisions of Clause (hh) apply to cases where the landlord does not require the premises for his own occupation but requires them for erecting a new building which is to be let out to tenants. This is clear from the provisions of Sub-section (3A) which provides that a landlord has to give certain undertaking before a decree for eviction can be passed on the grounds specified in Clause (hh)....'
9. It is, therefore, clear that in a suit for ejectment on the ground of personal requirement, the landlord has to establish that he reasonably requires the building for his occupation. There should be a clear finding in this behalf by the Court. The landlord is not in such cases, prevented after eviction, from re-building or from remodelling the building to suit his purposes. But if the suit for ejectment is on the basis that he requires the building for reconstruction alone, then the element of personal occupation is not present. The element of re-construction alone is present. Understood thus it would be clear that the benefit conferred by amended Section 13(3) comes into operation only where the tenant of a building is sought to be evicted on the ground of personal requirement for re-building. The trial Court was justified in living the direction to the landlord to offer the building to the tenant on reasonable rent after re-building since the decree by the trial Court was only on the ground of personal requirement for re-building and not for the personal requirement for occupation. The appellate Court committed an error in vacating the direction contained in the trial Court's decree in conformity with Section 13(3) of the Act without entering a finding that the landlord needed the building for personal occupation also.
10. Since, the Courts below have concurrently found that the building requires re-construction no fresh consideration is necessary so far as this ground is concerned. Section 13(3) of the Act reads as follows :
'(3) Where the landlord obtains a decree for ejectment in terms of Clause (h) of Sub-section (1) of Section 11 and the tenant is ejected on the ground that the house or shop is required by him for building or re-building, the tenant thereof shall have first right to tenancy :
Provided that the tenant shall pay the rent at market rate notwithstanding anything contained in Section 8.'
I do not agree with the submissions made by the respondent's counsel that the expression 'shall have the right to tenancy' in Section 13(3) contemplates a direction to offer the building to the tenant only if the landlord does not occupy. The section does not admit of such a construction. The second part of the section admits of no doubt. It is only in cases where the decree for ejectment is obtained on the ground of personal requirement for occupation that such a direction is not necessary. I, therefore, set aside the judgment of the Court below in so far as it vacated the direction contained in the judgment of the trial Court to offer the building to the tenant.
11. However, 1 do not want to dismiss the suit but would prefer to give an opportunity to the parties to agitate the case of reasonable requirement for occupation afresh before the appellate Court. The appellant's counsel submits that the respondent obtained possession of the building in 1961 on reasonable requirement from another tenant and then gave it to the appellant and that therefore no fresh opportunity should be given to the respondent. In my view, since the appellate Judge did not enter a finding, an opportunity has to be given to the parties regarding this aspect. I, therefore, remand the case back to the appellate Court for consideration whether the landlord requires the building for personal occupation and for that purpose to rebuild the same.
12. I allow the appeal and remit the case back to the appellate Court for consideration of the only point on the evidence now available, whether the personal requirement for occupation put forward by the landlord has been made out or not. No order as to costs.