Gujarat High Court
Hasmukhlal Raichand Shah vs Arvindbhai Mohanlal Kapadia on 14 December, 1987
Equivalent citations: (1988)2GLR1442
Author: M.B. Shah
Bench: M.B. Shah
JUDGMENT M.B. Shah, J.
1. The only question which calls for determination in this revision application is whether the acquisition of a residential accommodation by a wife of a tenant who resides with her husband would be covered by the provisions of Section.
2. 13(1)(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act 947, hereinafter referred to as the "Bombay Rent Act". Section 13(1)(1) reads as under:
13. (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.
(1) that the tenant after coming into operation of this Act has built, acquired vacant possession of or been allotted a suitable residence.
3. In this case the plaintiff-landlord had filed Regular Civil Suit No. 286 of 1984 in the Court of the Civil Judge (J.D.), Ankleshwar, for recovering the possession of a suit house on the ground that the defendant had acquired suitable alternative residential accommodation. Before the trial Court it was the contention of the defendant that he had not acquired any residential accommodation but his wife had built one bungalow in Amrutkunj Society from her own income and that his wife had taken loan of Rs. 25,000/- from Ankleshwar Nagrik Sahakari Bank Ltd. that does not mean that he had acquired any suitable residential accommodation or the construction of bungalow in the name of his wife is benami. Both the Courts below arrived at the concurrent finding of fact that the said transaction is not benami and that the wife of the tenant i.e. of the defendant has constructed a bungalow in Amrutkunj Society and that the plaintiff has failed to prove that the defendant is a real owner of the property and that his wife is a benamidar. Both the Courts below, however, held that as the wife of the defendant has built and acquired possession of the premises situated in Amrutkunj Society, the defendant is required to be evicted under the provisions of Section 13(1)(1).
4. Both the Courts relied upon the decision of the Delhi High Court in the case of V.I. Malhotra and Anr. v. Smt. Ranjit Kaur 1985(1) RCJ 250. In that case also it was the contention of the tenant that his wife had acquired other accommodation. The Delhi High Court relying upon the judgment of the Supreme Court in the case of Prem Chand and Anr. v. Sher Singh 1981 DRJ 287 held that the finding of the authority below that the tenant has acquired possession of the premises through his wife and, therefore, the requirement of Clause (b) to the proviso to Sub-section (1) of Section 14 of the Act was complied which was proper. The entire Supreme Court judgment which was relied upon and was quoted by the Delhi High Court reads as under:
I am afraid the Supreme Court was very much conscious of the provisions of the aforesaid Clause (h) to the proviso to Sub-section (1) of Section 14 of the Act and the judgment of the Supreme Court is based while applying that provision. It is not an obiter as I would like to quote the entire judgment of that case which reads:
Y.V. Chandrachud, C.J.
The respondent tenant is out of possession since October 9, 1976. He was dispossessed during the pendency of the appeal before the Rent Control Tribunal.
The respondent's son is a business executive, who was at one time, allotted a flat by his employers. On December 12, 1980 the respondent's wife purchased a flat at Saket from the Delhi Development Authority, at a cost of about Rs. 1,20,000/-. The flat is available to the respondent though his explanation is that it has been let out by his wife to their son. The respondent has now no case to be put back in possession of the flat in dispute.
We had allowed the appellants to amend their application for possession by pleading that the respondent has acquired possession of a vacant residence within the meaning of Section 14(1)(h) of the Delhi Rent Control Act, 59 of 1958. The respondent has filed his reply to the amended application. Having considered the averments of the parties on the point at issue we are satisfied that the respondent has through his wife acquired vacant possession of a residence in Delhi. The application of the appellants for possession of the flat is therefore allowed and the judgment of the High Court is set aside. There will be no order as to costs throughout.
5. In this revision application it is the contention of the learned Advocate for the petitioner that both the Courts below materially erred in interpreting the provisions of Section 13(1)(1) of the Bombay Rent Act. He submitted that the provisions of Section 13(1)(1) would be applicable only in those cases where the tenant himself has acquired vacant possession of or been allotted a suitable residence and if his family members build or acquire possession of suitable residence, the provisions of Section 13(1)(1) would not be attracted. It is his further contention that the provisions of Rent Act are for the benefit of tenants and the same should be construed accordingly.
6. In my view, the submission of the learned Advocate for the petitioner cannot be accepted. The question whether the provisions of Section 13(1)(1) would be attracted or not where the wife or the son of the tenant acquires or builds a suitable residential accommodation, would depend upon the facts of each case. The words "landlord" and "tenant" have been given larger meaning under the Rent Act. This would be clear from the definition of the word "tenant" given under Section 5(11) which reads as under:
5(11) "tenant" means any person by whom or on whose account rent is payable for any premises and includes.
(a) such sub-tenants and other persons have derived title under a tenant before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance. 1969:
(aa) any person to whom interest in premises has been transferred under the proviso to Sub-section (1) of Section 15;
(b) any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959;
(c) (i) in relation to premises let for residence, any member of the tenant's family residing with the tenant at the time of, or within three months immediately preceding, the death of the tenant as may be decided in default of agreement by the Court, and
(ii) in relation to premises let for business, trade or storage, any member of the tenant's family carrying on business, trade or storage with the tenant in the said premises at the time of the death of the tenant as may continue, after his death, to carry on the business, trade or storage, as the case may be, in the said premises and as may be decided in default of agreement by the Court;
Taking into consideration this Section 5(11)(c), if the premises are let out for residence, then any member of the tenant's family residing with the tenant at the time of, or within three months immediately proceding, the death of the tenant would be the tenant of the said premises.
7. Further, Section 13(1)(g) of the Bombay Rent Act provides the grounds for recovering the tenanted premises if the premises are reasonably 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, the premises are required for occupation for the purposes of the trust. It has been held that the requirement of the "landlord" himself would include the requirement of himself as well as his family members. In the case of Mohanlal Narottamdas v. Bechardas [1967] 8 GLR 620, this High Court interpreted the aforesaid clause and held that the word "for occupation by himself occurring in Section 13(1)(g) of the Bombay Rent Control Act cannot be construed as having a narrow meaning as being limited to the use of only the landlord himself. It may be that the family may not, in law, be joint and still the members of the family may be living together, messing together and looking upon themselves as a unit. In such a case, the Court will be entitled to consider the requirement of the members as the requirement of the landlord who is seeking to eject the tenant. While dealing with such questions, one cannot miss sight of the normal conditions obtaining in a Hindu Society. The family is the unit of our civilization. When father and sons live in the same houses and mess together, irrespective of the fact that they constitute members of the Joint Hindu Family or hold the property jointly as such, ordinarily, they would be deemed to be members of one unit and the requirement of one would be the requirement of the other. In the said decision the Court has taken into consideration the decision of the Division Bench of the Bombay High Court in the case of Institute of Radio Technology v. Pandurang Baburao 47 Bom. LR 825, and the unreported decision of Bombay High Court by Chagla, C.J., as he then was, in the case of Jayantilal Muljibhai Parikh v. Ochhavlal Vithaldas Parikh Civil Revision Application No. 751 of 1950 decided on November 23, 1950. The Court further relied upon the observations of the learned Chief Justice in Jayantilal's case and held as under:
The learned Chief Justice has then observed as under:
I do not think it is the intention of the Rent Restriction Act, however drastic its provisions are, to disrupt a family and to drive members of the family out because they start earning and are not dependent upon a member who pays the rent and in whose name the premises stand. There is evidence here that the plaintiff and his brothers, his father, his grandfather, were all living together. It is immaterial whether they were members of a joint family or not. But if mem bers of a family live together, mess together and look upon themselves as a unit, the Court is entitled to consider their requirements as requirements of the landlord who is seeking to eject the tenant.
The learned Chief Justice has further observed that:
The position might have been different if a member of family who is not a dependent wanted for the first time to come and stay with the plaintiff and if the plaintiff wanted additional accommodation for the benefit of that member of the family. But when we have a case as we have here of all the members staying together, than the members of the family are in the same position as the dependents or the landlord.
The learned Chief Justice has further observed that:
I do not see why, if it is permissible to consider the claims of a man's wife and children, it is not permissible to consider the claims of his father or grandfather or brothers, if they all stay together and constitute, if not in law, in fact a joint family, a family which is looked upon as a unit.
I respectful agreement with the aforesaid observations of the learned Chief Justice. In my view, the words 'for occupation by himself, occurring in Section 13(1)(g) of the Act cannot be construed as having a narrow meaning as being limited to the use of only the landlord himself as was contended by the learned Advocate General. It may be that the family may not, in law, be joint and still the members of the family may be living together and looking upon themselves as a unit. In such a case, the Court will be entitled to consider the requirement of the members as the requirement of the landlord who is seeking to eject the tenant. While dealing with such questions, one cannot miss sight of the normal conditions obtaining in a Hindu Society. The family is the unit of our civilization. When father and sons, live in the same house and mess together, irrespective of the fact that they constitute members of the Joint Hindu Family or hold the property jointly as such, ordinarily, they would be deemed to be members of one unit and the requirement of one would be the requirement of the other.
In my view, with regard to the interpretation of Section 13(1)(1) also, the same would be the position. If there is evidence on record that tenant and his family members are living together, one of them has acquired suitable residential accommodation and if there is no evidence to the effect that they had not been looking upon themselves as one unit or when the members of the family live together, mess together then, acquisition of suitable residential accommodation by one of them would be considered to be the acquisition of suitable residential accommodation by the tenant. The position might be different in some cases. In the cases where the husband and wife are staying separately because of the dispute or for some other reason or where the son is staying in other premises because of the dispute or because after marriage he might consider that he should reside separately and acquires other suitable residential accommodation, then in those cases it can be said that the tenant has not acquired suitable residential accommodation. But while considering this question one cannot miss sight of the normal conditions obtaining in the Indian Society where husband and wife with their children reside together as one unit and mess together. In my view, if Section 13(1)(1) is interpreted only to mean that the tenant himself must have acquired suitable residential accommodation, then the said provision can be defected by the tenant easily. This should not be permitted because that is not the intention of the Legislature. The object underlying this clause clearly appears that if the tenant acquire some premises, then he should be directed to vacate the tenanted premises. Even though the Rent Act is for the protection of the tenant, at the same time under the protection of the said provision the tenant cannot be permitted to do business out of the said protection.
8. Learned Advocate Mr. Shah further submitted that it cannot be said that the tenant has acquired possession of the other alternative premises. The reference was made to "Salmond on Jurisprudence", Twelth Edition, Paragraph 56 which deals with the acquisition of possession and it was sought to be contended by the learned Advocate that the petitioner has not acquired vacant possession of the suitable residential accommodation because at present the petitioner is not residing in the said premises. As against this, Mr. Desai, learned Advocate for the opponent, has rightly pointed out the passage from the said Book which reads as under:
The test then for determining whether a man is in possession of anything is whether he is in general control of it. Unless he is actually holding or using it-in which event he clearly has possession we have to ask whether the facts are such that we can expect him to be able to enjoy the use of it without interference on the part of others.
He submitted that this Paragraph is referred to and relied upon by the Supreme Court in the case of Supdt. and Remembrancer, Legal Affairs v. Anil Kumar . The relevant paragraphs are Paragraphs 13, 14 and 15 which read as under:
13. "Possession" is a ploymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the contexts of all statutes. Dias & Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorising it is that of "possession". Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Edition, 1966, caused by the fact that possession is not purely a legal concept. "Possession", implies a right and a fact; the right to enjoy annexed to the right of property and the fact of real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid).
14. According to Pollock & Wright "when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or one house or land occupied by him or any receptacle belonging to him and under his control, he is in physical possession of the thing.
15. While recognising that 'possession' is not a purely legal concept but also a matter of fact; Salmond (12th Edition, pages 52) describes 'possession, in fact', as a relationship between a person and a thing. According to the learned author the test for determining 'whether a person is in possession of anything is whether he is in general control of it.
Therefore, when the person is in general control of the premises or can assume or resume manual control or it at pleasure, it can be said that he has acquired the possession of the premises. If the tenant has domain over premises which he can reasonably and alternatively use as a substitute for the place he is using in the tenancy, it cannot lead to a forfeiture of his right to occupy his tenanted premises. It cannot be laid down as a general proposition of law that acquisition of premises by wife or other members of the family in the circumstances would or would not amount to acquisition by the tenant. It depends upon the facts and circumstances of each case.
9. In the present case it is an admitted fact that the wife of the tenant has constructed a bungalow in Amrutkunj Society. On the date of the suit the said premises was vacant. The opponent has given an undertaking before the appellate Court in Miscellaneous Appeal No. 95 of 1984 that if the suit is decreed in favour of the appellant, then he would not claim any equity on the ground that at present bungalow No. 4 in Amrutkunj Society was not vacant. Husband and wife are residing and messing together and stay as one unit. There is no dispute between them. They constitute normal Hindu family where husband would have domain over his wife's properties. He also used to collect rent on her behalf. He himself had handed over the key of the said bungalow to the Court Commissioner before the trial Court and, therefore, it can be said that the tenant had acquired suitable residential accommodation for which the provision of Section 13(1)(1) would not be applicable. Same view is taken by the Punjab and Harayana High Courts in the case of Laxman Dass Aggarwal v. A.K. Bahal 1986 (1) RCJ 190. While dealing with the similar question where the wife of the tenant had constructed a house in the urban area concerned, the Courtheld that would be a ground for evicting a tenant under Section 13(3)(a)(iv) of the Haryana Urban (Control of Rent and Eviction) Act, 1973. Section 13(3)(a)(iv) reads as under:
13(3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:
(a) in the case of a residential building, if.
XX XX XX XX
(iv) the tenant has already in his own possession a residential building or subsequently acquires possession of, or erects such a building reasonably sufficient for his requirement in the urban area concerned.
10. In this view of the matter, there is no substance in this revision application and it is rejected. Notice discharged.
11. At this stage, the learned Advocate for the petitioner submits that the operation of the judgment and decree be stayed for six weeks. The operation of the judgment and decree is stayed for a period of six weeks from today.
12. After the judgment was dictated in open Court and before it could be signed, Mr. Shah, learned Advocate for the petitioner requested that before signing the judgment the Court should take into consideration the judgment of the Supreme Court in the case of B.R. Mehta v. Atma Devi , which deals with the similar point. Mr. Shah was asked to file a written note. Thereafter Mr. Shah had filed a note on 11th November, 1987. Subsequently the matter was fixed for hearing today. Both the Counsel made their respective submissions.
13. Mr. Shah, learned Advocate for the petitioner, submitted that in the case of B.R Mehta (supra) the Court has overruled the decision rendered by Chandrachud, CJ. in Prem Chand v. Sher Singh 1981 DRJ 287, and the Supreme Court has considered Section 14(1)(h) of the Delhi Rent Control Act which is similar to Section 13(1)(1) of the Bombay Rent Act. According to his submission, the Court has laid down that if a wife or husband acquires a property and the other spouse if he/she is a tenant, has a legal right by virtue of such acquisition and stays there, then only such acquisition or allotment of premises would disentitle or attract the provisions of the Clause (h) of Section 14(1) of the Delhi Rent Control Act. He, therefore, submitted that the decision rendered by this Court should be reviewed or reconsidered in the light of the aforesaid decision.
14. As against this, Mr. Desai, learned Advocate for the opponent submitted that once the judgment is dictated in open Court in presence of parties and when it is acted upon by them, there is no question of reconsidering the decision. He relied upon the Supreme Court judgment in the case of Vinod Kumar Singh v. The Banaras Hindu University and Ors. Civil Appeal No. 2976 of 1987 decided on 11-11-1987 wherein it is observed as under;
Ordinarily judgment is not delivered till the hearing is complete by listening to submissions of Counsel and perusal of records and a definite view is reached by the Court in regard to the conclusion. Once that stage is reached and the Court pronounces the judgment, the same should not be reopened unless there be some exceptional circumstance or a review is asked for and is granted. When the judgment is pronounced, parties present in the Court know the conclusion in the matter and often on the basis of such pronouncement, they proceed to conduct their affairs. If what is pronounced in Court is not acted upon, certainly litigants would be prejudiced. Confidence of the litigants in the judicial process would be shaken. A judgment pronounced in open Court should be acted upon unless there be some exceptional feature and if there be any such, the same should appear from the record of the case.
He further relied upon Order 47 Rule 1 Explanation which provides that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. He further submitted that in the case of B.R. Mehta (supra) the Supreme Court had not overruled its decision in Prem Chand's case but had distinguished it on facts.
15. In my view, in the case of B.R. Mehta the Supreme Court has not overruled the decision in the case of Prem Chand as contended by the learned Advocate for the petitioner. This would be clear from the following observations of the Court:
The said decision rested on the facts of that case. Therein that case, this Court found that the respondent's wife had purchased a flat in Saket and further found that the flat was available to the respondent. In those circumstances it was held that there was acquisition of vacant possession of a residence and as such Section 14(1)(b) of the Act would be attracted. It cannot however be laid down as a general proposition of law that acquisition of flat by the wife in all circumstances would amount to acquision of flat by the tenant.
Further, even in the beginning of Paragraph 4 of the judgment the Court considered only one question and that is whether under Clause (h) of Section 14(1) of the Act allotment of a house to a wife who is a Government employee in all circumstances disentitled the tenant to retain the tenanted premises. So the question which was considered by the Supreme Court in that case is also with regard to the particular facts of that case. The following observations in Paragraph 5 of the judgment make this point clear:
What is necessary is that unless there is a positive evidence, and here there is none, of acquisition of property prima facie in the name of the tenant or allotment of flat to the tenant, it cannot be said to have been acquired by or allotted to some members of the tenant's family other than the wife in her name. That cannot defeat the tenant's right under Clause (h) of Section 14(1). If there is such an acquisition by or on behalf of the tenant then the tenant and members of the tenant's family would have dominion over the acquired residence. Such acquisition would bring to the tenant the mischief of Section 14(1) of the Act.
Even in Paragraph 6 the Court has held as under:
The premises in question which the wife occupied was indisputably not the matrimonial home. It is nobody's case. The husband would not, therefore, have any statutory or legal right against the Government to use and enjoy the allotted premises to the wife of the tenant because of her job. Looked at from any point of view, the tenant cannot be made to lose his tenancy because of wife acquiring possession of a flat or allotment of a flat because of her official duties over which the husband has no right or domain or occupation.
16. From the aforesaid discussion therefore it appears that the Supreme Court has not overruled its previous decision in Prem Chand's case (supra). Further, under Explanation to Order 47 Rule 1 of the Civil Procedure Code the Court would not have jurisdiction to review the judgment on the ground that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of the Supreme Court in any other case. Apart from this, in my judgment I have taken into consideration the facts of the case and decided the matter after taking into consideration the provisions of the Bombay Rent Act. In this view of the matter, the judgment does not require to be reviewed or reconsidered. Hence no orders on the note.
At the request of the learned Advocate for the petitioner, it is ordered that the decree shall not be executed up to 20th January, 1988.