Bombay High Court
Kanhaiyalal S/O Babulal Srivastava vs Bapurao S/O Ganpatrao Nandanwar on 2 March, 1988
Equivalent citations: 1988(3)BOMCR89
JUDGMENT M.S. Deshpande, J.
1. This Letters Patent Appeal by the landlord is directed against the judgment of the learned Single Judge in Writ Petition No. 1388 of 1982, by which the learned Single Judge allowed the tenant's petition and reversed the orders passed by the Rent Control authorities granting permission to the landlord to determine the lease of the tenant under Clause 13(3)(vi) of the C.P. & Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as 'the Rent Control Order').
2. The appellant filed two application before the Rent Controller the first on 21-2-1974 and Clause 13(3)(i), (ii) & (vii) and the other on 18-9-1976 under Clause 13(3)(i), (ii) & (vii) of the Rent Control Order. In the first application, arrears of rent for 52 months were claimed, while in the second arrears of rent from March 1974 onwards were claimed. There were some disputes about the actual amount of rent, the landlord alleging that the rent was Rs. 45/- per moth and the tenant saying that it was Rs. 30/- per month; but the Rent Control authorities held the rent to be Rs. 45/- per month. By the common order, which came to be passed on 10-11-1977, the Rent Controller granted permission to the landlord to determine the lease of the respondent-tenant under Clause 13(3)(ii) & (vi) of the Rent Control Order. In the tenant's appeal to the Resident Deputy Collector, the permission granted under Clause 13(3)(vi) of the Rent Control Order alone came to be confirmed and that under the other provisions was set aside. Both the parties applied for review of the order of the Resident Deputy Collector passed in appeal, but both the applications were dismissed on 7-10-1981.
3. It is necessary to set out only the allegations in the second application, dated 18-9-1976, regarding the ground raised under Clause 13(3)(vi) of the Rent Control Order. In para-2 of that application, the appellant stated that there were eleven members in his family and he resided in Vitthal Rukhmai Temple, but the temple was old and dilapidated and the accommodation in his possession was out of a built up area of 750 sq. ft., which included the area occupied by the idol of Vitthal Rukhmai. His contention was that the accommodation in his possession was not sufficient to meet the just and bare demands of himself and his family members. While denying these allegations in para 3 of his written-statement, the respondent contended that the appellant resided in a two storied building and had two rooms in his possession on the first-floor of the house and that he was the only member of his family.
4. The Rent Controller found that the space of the ground-floor of the temple, was 750 sq. ft. and excluding the area occupied by the temple the appellant had in his possession only 300 sq. ft. area for his use, and the house was dilapidated. He held that there were ten members in the appellant's family including five adults, namely, he, his sister, her husband, his niece, her husband and children, who all lived together, and for a family of that size, the area in the occupation of the appellant was wholly inadequate. The appellate authority observed, while confirming these findings, that the other members were living with the appellant because he wanted them to live with him and he had neither a wife nor a progeny and their stay was not of a short duration, but for all purposes; they were the members of the family and this fact was proved beyond doubt by the documents like the voters list.
5. This position is also apparent from the observations in para 2 of the learned Single Judge's Judgement, and the position that those relations were residing with the appellant for the period of 4 to 5 years was not questioned before him. What was urged on behalf of the respondent and found favour with the learned Single Judge was that all the relations, who resided with the appellant, could not be said to be his dependents, because admittedly the husband of his sister was an earning member and that the members, who resided with him, belonged to two different families, one of his and the other of his niece, and it was not the case of the landlord that they were dependent upon him or that he was dependent upon them. In these circumstances, the learned Single Judge accepted the contention raised on behalf of the respondent and reversed the permission granted by the Rent Control authorities under Clause 13(3)(vi) of the Rent Control Order.
6. Shri J.N. Chandurkar, the learned Counsel for the appellant urged before us that while construing the provisions of Clause 13(3)(vi) of the Rent Control Order, the question whether the members wee dependent upon the landlord or otherwise could not come up for consideration The requirement under that clause is that the landlord needs the house or a portion thereof for the purpose of his bona fide occupation, and the assumption of the learned Single Judge, that the need must be of the dependents as settled by the decisions of this Court and the erstwhile Nagpur High Court, was not correct. If we were to take a survey of the decisions of the Nagpur High Court, a Division Bench of that Court in Balbhadra Biharila v. Premchand Lalchand, 1953 Nagpur Law journal 233 took the view that the word "his" as used in Clause 13(3)(vi) of the Rent Control Order must be interpreted liberally and not in a narrow way. So interpreted it would include not only the members of the landlord family but also all those persons who are dependent on him and whose responsibilities he has accepted. Where in pursuance of moral obligation arising out of blood relationship, a father affords support to his widowed daughter and her children, their needs become his. Where the landlord residing out of town requires the house occupied by the tenant in the town for the residence of his widowed daughter and her children living in a rented house in the town he is entitled to have the house vacated. We may point out that the Division Bench for taking this view relied on the observations of Chagla, C.J., in Parikh v. Occhalal Parikh, Civil Revision Application No. 751 of 1950, decided on 28-11-1950. In that case, after referring to Institute of Radio Technology v. Pandurang, 1944 Bombay Law Reporter 825, where Divatia, J., while interpreting the words "his own occupation", occurring in section 11 of the Bombay Rent Restriction Act, 1939, has observed that the occupation in question meant occupation of the landlord and all persons dependent on him, it was held that Divatia, J., had not intended to lay down an all embracing and comprehensive definition of the expression "his own occupation", so that it would apply to the expression "Occupation by himself", occurring in section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, for it is not the intention of the Act 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 or in whose name the premises stand. The landlord's requirement may be equated to his family's requirement.
7. Two other decisions of a learned Single Judge (Bhatt, J.) of the Nagpur High Court may be noticed. In Smt. Narayanibai v. Keshorilal, 1956 NLJ Note No. 203 the landlady applied for permission to evict the tenant on the ground that she had become infirm and required the help of her adopted sons' family which could not be accommodated in the portion in her occupation, that the adopted son was living separately, and the learned Judge observed that since the services of the adopted son who resided separately, were required by the petitioner the need to accommodate the adopted son, and his family was tantamount to meeting petitioner's own need. In the other case, Badanibai v. N.R. Lakhkar, 1956 NLJ-Note No. 271, it was held that the word "his" in Clause 13(3)(vi) of the Rent Controller Order has to be interpreted liberally. There, the tenancy was sought to be terminated as the landlady's relation and his family as also one boy whom, it was alleged, she intended to adopt, required the premises. The learned Judge held that though Laxmichand (relation of the landlady) may not be a dependent of the petitioner, that was not sufficient to held him as a member wholly unconnected with the household; that would depend on the determination of circumstances under which he was living in the household; and that if an adoption was contemplated that would be an additional ground for treating the landlord's need as extending to providing accommodation for Laxmichand's family so that proper environments leading to the creation of natural affection between the petitioner and the boy she intends to adopt may be established. In Balbhadra Beharilal v. Premchand Lalchand, A.I.R. 1953 Nagpur 144, the need of widowed daughter and her children was deemed to be the need of the landlord, because the fact of marriage does not server the blood relationship which exists between a father and his daughter, and the existence of the relationship does give rise to certain moral obligations. The Division Bench there held that where, in pursuance of such moral obligations, a father affords support to his daughter and her children, their need become his need, and there is nothing in the Rent Controller Order which restricts a landlord's needs to his personal needs.
8. The word "his" came to be construed by a Division Bench of the Nagpur High Court in V.M. Deshmukh v. K.M. Kothari, A.I.R. 1951 Nagpur 51. In the context of the need for business, and it was said that though the word is used in the last part of the clause in conjunction with the word `own', it does not show that the `business' must be one which the landlord himself is carrying on, because such an interpretation would be in conflict with the meaning accorded to the word `his' in the clause. Thus, what is meant by the word `own' is something in which the landlord or his family have pecuniary interest and looked at this way the business of running Maternity Home by the landlord's wife would clearly fall within sub-Clause (vi) of Clause 13 of the Order.
9. Some of these cases were considered by the learned Single Judge of this Court in Indirabai Ganpatrao Kuhikar v. House Allotment Officer, 1984 Mh.L.J. 397. There, while dealing with the proviso to Clause 23(1) of the Rent Control Order, the learned Judge took the view that where a landlady in her old decrepit age needed the help of her near relative like her sister's and son had decided to accommodate him and accepted his responsibility, her prayer for occupation under proviso to Clause 23(1) of the Rent Control Order cannot be rejected on the ground that her sister's son is not a member of her family.
10. Our attention was drawn to the decision of the Supreme Court in Baldeo Sahai Bangia v. R.C. Bassin, where the word 'family' was given not a restricted but a wide meaning so as to include not only the head of the family but all members of descendants from the common ancestors who are actually living with the same head, and it was said that beneficial provision must be meaningfully construted so as to advance the object of the Act, and curing any lacuna or defect appearing in the same. Thus, the term 'family must always be liberally' and broadly construed so as to include near relatives of the head of the family. That was a case which arose out of the provisions of the Delhi Rent Control Act (59 of 1958) but some marginal difference in the provisions of the two Acts mould not make any difference to the meaning of the expression "family" which would have to the considered while applying the provisions of both the Acts, Raghavendra P. Mudhol v. Hanuman R. Kulkarni, is another case in which the expression "himself" was widely construed as recognising landlord's right to live with persons of his choice whether they were brothers, parents or friends, and it was held that the definition of 'family' in section 3(ff) of the Karnataka Rent Control Act (22 of 1961) did not warrant a narrow construction of the provision in section 21(1)(h) of the said Act. The learned judge observed, however, that the choice and enlargement of the members of the family should not be fraudulent. Another Single Judge of this Court in ( pointed out that the expression "himself" occurring in section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), has been defined to mean not only the landlord alone but also his wife and children, and it would cover the case of a family and all persons staying together including dependents and other relations and also in certain circumstances a servant, and a depending may not be member of the family. Nevertheless, if he is staying with the landlord and if depending upon him, he would be considered as a member of the family and one whose requirements will have to be considered in the expression 'himself'.
11. It is apparent that while construing the provisions of Clause 13(3)(vi) of the Rent Control Order, the emphasis is on 'himself' and the expression must take in family as understood by giving a wide meaning to that expression as including the descendants of a common ancestor whose interest would be the same as the interest of the landlord. The question of dependency, either of the members of the family on the landlord or the landlord's own dependence on the relations residing with him, would not be consequential. In R.K. Bhatnagar v. Smt. Sushila Bhargave, , it was said that the word "dependent" cannot be construed as wholly dependent in the sense of earning nothing at all and being entirely dependent on parents for board, lodging or maintenance but in the context in which that term appears in Clause (e) of the proviso to section 14(1) of the Delhi Rent Control Act (59 of 1958), it connotes a wider concept and covers a larger field. There, two married daughters of the landlord, though they were earning themselves had to look to their parents for residence because they were not living with their husbands and for reasons of security etc., it was difficult for them to live all alone in Delhi, and came to be deemed to be the members of the landlord's family.
12. Shri Somalwar, the learned Counsel for the respondent, urged that it we were to give such a wide interpretation to the expression "his bona fide occupation" in Clause 13(3)(vi) of the Rent Control Order, that would gave the way for fantastic claims to be made only for the purpose of evicting the tenant and any one and every one would be brought in on the pretext that he was the member of the landlord's family, for securing the eviction of the tenant. We do not think that this fear is justified, because it is not only the need for the landlord's occupation that has to be considered but also his bona fide occupation, and the courts and Tribunals will have to be vigilant in order to ascertain whether the claim is made in good faith or not, or it is only an extravagant claim for the purpose or obtaining possession of the premises. In the present case, it was not the contention of the respondent that the ten members, who are residing with the appellant, were brought in only for the purpose of evicting the respondent tenant. On the other hand, as pointed out by the authorities below, they had been residing with the appellant for a long time an even the learned Single Judge has observed that their stay was for more than four or five years before the application. The contention, therefore, that the claim could not be allowed in the present case, appears to us to be groundless. Disagreeing with the learned Single Judge, we find that the considerations of dependency of the members of the landlord's family could not have been imported for determining the landlord's need upon the facts of this case, and no interference with the permission granted by the Rent Control Authorities for determination of the lease of the respondent, was called for.
13. In the result, we allow the appeal, set aside the order passed by the learned Single Judge and discharge the rule in Writ Petition No. 1388 of 1982 with costs. The respondent is granted four months time to vacate the premises, subject to his depositing in the Court all the amount by way of rent and costs within one month.
Appeal allowed.