Madhya Pradesh High Court
Radha Kishan vs Bhagwan Das Choubey on 15 September, 1987
Equivalent citations: AIR1988MP241, AIR 1988 MADHYA PRADESH 241, 1988 MPRCJ 123
JUDGMENT T.N. Singh, J.
1. The crucial provision, of which interpretation is in issue, in this case, of the Madhya Pradesh Accommodation Control Act, 1961, for short, the Act, deserves to be quoted, at the outset, in extenso :
"' 18. Recovery of possession for repairs and re-building and re-entry.-- (1) In making any order on the grounds specified in Clause (g) or Clause (h) of Sub-section (1) of Section 12, the Court shall ascertain from the tenant whether he elects to be placed in occupation of the accommodation or part thereof from which he is to be evicted; and if the tenant so elects, shall record the fact of the election in the order and specify therein the date on or before which he shall deliver possession so as to enable the landlord to commence the work of repairs or building or re-building, as the case may be.
(2) If the tenant delivers possession on or before the date specified in the order, the landlord shall, on the completion of the work of repairs or building or re-building place the tenant in occupation of the accommodation or part thereof as the case may be, within one month of the completion of such work.
(3) If, after the tenant has delivered possession on or before the date specified in the order, the landlord fails to commence the work of repairs or re-building within one month of the specified date or fails to complete the work in a reasonable time or having completed the work, fails to place the tenant in occupation df the accommodation in accordance with Sub-section (2), the Court may on an application made to it in this behalf by the tenant within such time as may be prescribed, order the landlord to place the tenant in occupation of the accommodation or part thereof or to pay to the tenant such compensation as the Court thinks fit."
2. However, it is necessary also to keep in view relevant primary provisions of the Act directly relatable to the right contemplated under Section 18(3) aforequoted. Those provisions are to be read in Clause (h) of Sub-section (1) and Sub-section (7) of Section 12, but I would extract Subsection (7) at appropriate stage. What follows below is Section 12(1) with relevant Clause (h) --
"12. Restriction on eviction of tenants --(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only namely :
Clauses (a) to (g) -- not relevant....
(h) that the accommodation is required bona fide by the landlord for the purpose of building or re-building or making thereto any substantial additions or alterations and that such building or alterations cannot be carried out without the accommodation being vacated".
3. The respondent had filed a suit for appellant's eviction, which was decreed in Courts below on more than one ground. Finally, that matter was disposed of by this Court on 16-12-1978 in Second Appeal No. 41 of 1971 sustaining the order of ejectment of appellant in terms of Section 12(1)(h) of the Act, with the direction undermentioned :
"It is further directed that the plaintiff-landlord shall commence reconstruction within one month from the date of delivery of possession and shall complete it within a reasonable time. Because the tenant elects to re-occupy the premises the subject matter will thereafter be governed by the provisions of Section 18, if the plaintiff landlord fails to comply with the provisions of Sub-section (2) and Sub-section (3) of Section 18 of the Act."
4. What is not disputed is that in January, 1979, the judgment-debtor/tenant, herein the appellant, delivered possession of the suit premises in compliance with the direction aforequoted. After four years had passed, the decree-holder/landlord, herein the respondent, having taken no steps to commence reconstruction of the suit house, the instant appellant made an application in the Executing Court under provisions of Section 18 of the Act for restoration of his possession and therein, a further prayer was also made for grant of compensation to the applicant/judgment-debtor at the rate of Rs. 150/- per month to enable him to discharge the liability of rent which he was paying for the premises to which he had shifted after vacating the suit house. The instant respondent filed a reply to the application submitting that for want of permission from the Municipal Corporation, the construction work could not be undertaken. The Executing Court having refused restoration and granting instead, compensation to the applicant/ appellant, he preferred an appeal, but without success. The Court of appeal below accepted respondent's contention that it was not possible for him to commence the construction work in the absence of permission from the Municipal Corporation.
5. Shri N. K. Jain, who appears for the respondent, has supported the order submitting that it was well within the jurisdiction of the Court below to pass any of the two orders contemplated under Subsection (3) of Section 18, aforequoted, and two courts having rightly exercised their discretion in making an order for payment of compensation and refusing to restore suit premises to the possession of the appellant, this Court shall not interfere with the impugned order. Indeed, counsel's contention is also that when the suit was decreed finally by this Court, even then the view expressed was that the suit premises had become dangerous for habitation and it was still unfit for human habitation and in that view of the matter, order for restoration of possession could not be passed and indeed, this Court also cannot pass that order today. He has cited a decision of a learned single Judge of this Court in the case of Brajvallabh (1981) 1 MPWN 151, wherein, however, the only question decided was whether the lower appellate Court had rightly passed the order for restoration of possession under Section 18(3). Vacating the order of compensation passed by the trial Court without ordering an enquiry as to whether the suit premises was fit for human habitation and possession thereof could be restored to the tenant for his occupation.
6. In my view, the provisions afore quoted bear a careful examination and in that context, the provision of Sub-section (3) of Section 37 of the Act has also to be borne in mind. Accordingly, these also are extracted :
Where any repairs without which the accommodation is not habitable or usable except with undue inconvenience are to be made and the landlord neglects or fails to make them after notice in writing, the tenant may apply to the Rent Controlling Authority for permission to make such repairs himself and may submit to the Rent Controlling Authority an estimate of the cost of such repairs, and thereupon, the Rent Controlling Authority may, after giving the landlord an opportunity of being heard and after considering such estimate of the cost and making such inquiries as it may consider necessary, by an order in writing, permit the tenant to make such repairs at such cost as may be specified in the order and it shall thereafter be lawful for the tenant to make such repairs himself and to deduct the cost thereof, which shall in no case exceed the amount so specified, from the rent or otherwise recover it from the landlord:
Provided that the amount so deducted or recoverable in an year shall not exceed one-half of the rent payable by the tenant for that year;
Provided further that if any repairs not covered by the said amount are necessary in the opinion of the Rent Controlling Authority, and the tenant agrees to bear the excess cost himself, the Rent Controlling Authority may permit the tenant to make such repairs.
7. At the outset, it has to be stated that the object of the Act has been noted by me in Lachhobai Rathore (1987 MRPCJ 23), taking the view that the Act, like other Rent Control Acts enacted in other States, protects the "existing possession of law-abiding tenants (becoming "statutory tenant" under such Act) by interdicting their eviction by unscrupulous landlords. This Act also, like other similar Acts ensures a fair return to the landlords of their property, but prevents rent-racking. The jurisdiction of the Court passing an order for eviction from any accommodation of a tenant is, therefore, strictly circumscribed by exhaustively detailing under different clauses of Sub-section (1) of Section 12, the grounds on which only the suit for eviction of a tenant can be filed. It is, therefore, to be borne in mind that the curtailment of courts jurisdiction enures throughout the entire life of the lis when proceedings are initiated for eviction. When a tenant is made to vacate any accommodation on the ground that it had to be newly built or rebuilt or substantial additions or alterations in the building have to be made and that cannot be carried out without vacant possession of the accommodation being delivered to the landlord, the necessity for the tenant to vacate the accommodation temporarily being deemed compelling necessity, the order for eviction is passed. In doing so, the Court merely suspends his tenancy, though "eviction" is ordered. What also bears emphasis is that Sub-section (7) imposes further restraint on court's jurisdiction to pass an order of eviction under Section 12(1)(h) which is best exposed, in legislature's own language, which I quote :
"No order for the eviction of a tenant shall be made on the ground specified in Clause (h) of Sub-section (1), unless the Court is satisfied that the proposed reconstruction will not radically alter the purpose for which the accommodation was let or that radical alteration is in the public interest, and that the plans and estimates of such reconstruction have been properly prepared and that necessary fund for the purpose are available with the landlord."
The provision of Sub-section (1) of Section 18 put a third restraint on court's jurisdiction requiring that before passing an order under Section 12(1)(h), "the court shall ascertain from the tenant whether he elects to be placed in occupation of the accommodation or part thereof from which he is to be evicted and the tenant, if so elects, shall record the fact of election in the order and specify therein the date on or before which he shall deliver the possession to enable the landlord to commence work of repairs or building or rebuilding, as the case may be". I have no doubt, therefore, that only when election in clear terms is made by the tenant before the Court passes an order under Section 12(1)(h), the tenancy in respect of the accommodation in question shall terminate. When election is made, despite the order of eviction, the tenancy will continue and the tenant would have a right to claim re-possession of the accommodation after the repairs therein are done or it is newly built or re-built, as the case may be. Indeed, the statutory tenancy can also terminate earlier when the tenant forfeits his right to seek protection of the Court when he has disobeyed court's order to deliver possession of accommodation to the landlord by the specified date. It will then be possible for the landlord to execute the decree and recover possession of the accommodation in question through Court on the ground of tenant's forfeiture of protection envisaged under the decree itself. The entitlement of the tenant under the decree to be restored possession in full or part of the accommodation (which had been let out to him) after repair or re-building within a time-bound programme (one month) is explicitly envisaged under Sub-section (2) of Section 18 itself.
8. The provision of Sub-section (3) of Section 18 must, therefore, be construed in a manner conformable to the tenant's entitlement in law envisaged under Section 12(1)(h) as also Sub-sections (1) and (2) of Section 18. The ambit of the jurisdiction of the Court to pass order under Subsection (3) of Section 18 must, for same reason, be so construed as not to vest absolute discretion in the Court to pass any of the two types of orders contemplated thereunder. The right of the tenant to be put back in possession of the accommodation may accrue in two ways when reconstruction is completed or when work of repair or construction has not at all commenced. In both cases, the nature of the entitlement is the same, though the content or purpose of the right may differ. Indeed, when no work is commenced and the accommodation remained unaltered, though not repaired and not built, there would be no difficulty for the tenant to claim to be restored to possession in the same accommodation which he had vacated. Difficulty will only arise when accommodation is rebuilt as it may then take a different shape with altered area etc. It may not be beneficial for the tenant to claim possession of the 'new' accommodation as area and other incidental benefits may have undergone change in the course of building or re-building. In that event, the Court may be required to put the tenant, on his application, if he so chooses, in possession only of a "part" of the 'new' accommodation.
9-10. In this context, it is necessary also to stress once again the source, origin and nature of tenant's entitlement to be restored to possession under Sub-section (3) of Section 18. As I have earlier said, despite eviction being decreed under Section 12(1)(h), the decree has to conform to Section 18(1) by which the tenancy would merely remain suspended temporarily under the decree and on tenant's making application to be put back in possession, the tenancy cannot be terminated by the Executing Court passing an order for payment of compensation to the tenant. Indeed, the suspension statutorily terminates when tenant makes an application under Sub-section (3) because tenant's right to "re-entry" or resumption of tenancies is contemplated in absolute terms in Sub-section (3) by vesting in him the right to make an application thereunder. Indeed, the amplitude of that right is only circumscribed by the single condition that such application must be made "within such time as may be prescribed'. In any other manner, the right of the tenant to terminate the suspension and or to resume the tenancy, by the application, cannot be defeated. This I say notwithstanding use of the words "the Court may" because the option which is given to the tenant under Sub-section (1) is an indefeasible option inasmuch as Section 12(1)(h) merely contemplates, along with Sub-section (7), a decree being passed, but that must be in terms of Section 18(1). Ex hypothesi, Court's jurisdiction to grant compensation will be similarly conditioned and controlled by tenant's option made in the application, or otherwise made before the application is disposed of. The tenant may express his option in case of a 'new' accommodation to be put in occupation even of a "part" thereof. He may not even opt for the 'new' accommodation offered to him and demand payment of compensation for deprivation of the right to be restored to possession in the 'new' accommodation when it is substantially altered and is unsuitable for him. There may be cases when the tenant may ask for compensation, instead of being restored to possession of the unbuilt and unrepaired accommodation, when the work thereof has not at all commenced.
11. On the other hand, there would be no question at all for the Court, according to me, to pass any order for compensation if the tenant by his application contemplated under Sub-section (3) exercises his option which had become part of the decree rendered under Section 18(1). Any other view would render the provision of Section 18(1) otiose inasmuch thereunder, the Court is mandated to ask the tenant to make his election by requiring that the fact of election shall be recorded in the decree and specifying the date by which possession is to be delivered by the tenant to enable the landlord to commence work of repairs or building or re-building, as the case may be. If the right of the tenant to make election under Section 18(1) has to be given effect to carry out the legislative intent of Section 18(1), then that right cannot, in any manner, be defeated by an order of compensation passed by the Court under Subsection (3). By thus construing the provisions of different parts of Section 18, not only both provisions are harmonised, but their coexistence with the parent provision of Sections 12(1)(h) and 12(7) is appropriately ensured. A tenant could be made to vacate the accommodation only after the Court was "satisfied" that landlord shall undertake the construction of proposed reconstruction and the prayer for eviction was not a subterfuge. The decree, as I have earlier said, which may be passed under Section 12(1)(h), is doubly conditioned by the requirements contemplated not only thereunder, but also under Sub-section (7) and Section 18(1) at. Obviously consideration of the maxim ut res magis valeat quam pereat assumes paramount importance in this exercise. The court is duty bound not only to effectuate fully the legislative intent but the relevant statutory provisions must be construed reasonably and sensibly in such manner that the intent is not defeated and the object of the enactment is properly served. ( See D. Sanjeevaiah, AIR 1967 SC 1211; Amarnath, AIR 1972 SC 1548, Krishna Gopal, AIR 1974 SC 209]. It is the duty of the Court, in my opinion, to ensure that no unscrupulous landlord can play fraud upon the Court and obtain a decree under Section 12(1)(h) only to violate subsequently the statutory condition thereof. If that is allowed to happen then the object of the Act would be frustrated, paving way for rent-racking.
12. The next question is, whether the court can refuse to put the tenant, despite exercise by him of the decretal option, by the application contemplated under Section 19(3), in possession of the unrepaired and unbuilt accommodation on the ground that it is unfit for human habitation. I would think that the tenancy having remained suspended only when the suspension is statutorily revoket on presentation by the tenant of an application under Section 18(3), despite the tenant being out of possession of the tenanted premises his right to invoke aforequoted Section 37 would become alive and enforceable. When that right is exercised, the enquiry contemplated in Brijballabh (1981-1 MPWN 151) (supra) would not be necessary. Indeed, the landlord by his conduct would be deemed to have forfeited his right to notice contemplated under Section 37(2) to undertake repairs inasmuch as he was ordered under the decree to put the tenant back in possession of the accommodation after it is rebuilt and made fit for use, occupation am habitation. On tenant's application under Section 18(3) the court would be required rather to make an order against the landlort to restore the accommodation to tenant's possession by a specified date, duly repaired and made fit for human habitation, even if the accommodation had not been built or rebuilt as per decree. In the event of non-compliance with the order, the Court would be required to sanction such repairs to be made, acting under the second proviso to Section 37(3), by the tenant, if he agrees to do so, and bear the "excess cost" to make the accommodation habitable. No doubt, no order can be passed for restoration of possession o an accommodation which is unsafe or unfit for human habitation but an order under Section 37(3) can still be passed and tenant's right under Section 18, Sub-sections (1) and (3), can be thereby enforced.
13. In the instant case, some important and relevant facts, duly established on record, have to be noted. In the eviction suit, a finding is recorded by the first appellate court in its judgment dated 7-1-1974 rendered in Civil-Appeal No. 2-A of 1974 that the plaintiff had obtained permission from the Municipality for rebuilding the house. From the application filed by the appellant on 3-2-1981 it appears that the Municipality had demanded Rs. 136/-as Projection Tax from the respondent to permit him to start the construction work and that being not deposited deliberately, the appellant had offered to deposit the same himself so that the re-building work could commence. The same prayer was repeated on 21-9-1981. Indeed, on 29-8-1980 the appellant had complained that without repairing or re-building the suit accommodation the respondent had instead started using that. In his application dated 22-12-1979 the appellant categorically rejected the offer of compensation asserting that the house was fit for use, occupation and human habitation. In this context, another finding of the lower appellate Court in its judgment above referred may be profitably noticed. That court has noted that some alterations in the walls and the ceiling of the suit accommodation were required and that work could not be carried out until the entire accommodation was vacated as building materials would be required to be kept in some rooms.
14. In the premises aforesaid the orders passed by the two courts below cannot be upheld. Both courts have granted compensation and refused appellant's prayer for restoration of possession ignoring the provisions of Section 37(3) of the Act and the facts and circumstances of the case are manifest of the position that suit accommodation was in a repairable state and that necessary repairs could tie carried out by the tenant on being allowed to do so in accordance with the provisions aforesaid. Courts below have misconstrued the provisions of Section 18 and have defeated the decretal right of the appellant, statutorily envisaged, by refusing to put him in possession. of the suit accommodation and granting instead compensation which he had refused.
15. The impugned orders are accordingly set aside. It is hereby directed that if the respondent, after carrying out the necessary repairs to make the suit accommodation fit for human habitation, does not restore possession thereof to the appellant, on or before 15-10-1987, it shall be open to the appellant to apply to the Executing Court to take proceedings under Section 37(3) and sanction necessary repairs to be carried out by him before he occupies the accommodation. The Executing Court shall pass necessary orders apportioning the cost of repairs between the parties, after hearing them, in accordance with the provisions, aforesaid.
16. In the result the appeal succeeds and is allowed in terms of the directions aforementioned. No costs.
Let the records go down and this order be communicated as well to the courts below with due despatch.