Madhya Pradesh High Court
T.R. Sah vs Smt. Kundan Kaur And Ors. on 25 August, 2005
Equivalent citations: 2005(4)MPHT304
Bench: R.V. Raveendran, Chief Justice, Shantanu Kemkar
JUDGMENT
1. This is a tenant's Second Appeal under Section 100 of Code of Civil Procedure, against the judgment and decree dated 20-3-1996 passed by IX Additional District Judge, Bhopal in Civil Appeal No. 8-A/95 affirming the judgment and decree dated 1-5-1995 passed by the First Civil Judge, Class-I, Bhopal in Civil Suit No. 35-A/93 decreeing the eviction suit in favour of the plaintiffs/respondents under Section 12(1)(e) of the M.P. Accommodation Control Act, 1961 (for short 'the Act').
2. This appeal was admitted on 5-5-1997 on the following substantial question of law:--
"Whether the requirement of the respondents could be said to be bona fide under Section 12(1)(e) of the M.P. Accommodation Control Act, 1961 when the appellant has filed a suit under Section 12(1)(h) of the Act also ?"
When this appeal came up for hearing, the learned Single Judge being of the view that Smt. Parmeshwari Devi v. Thakur Natthu Singh, 1998 (I) MPJR 462, was not correctly decided, referred the matter for decision to the Larger Bench by order dated 8-11-2000, as the following point arose for consideration :--
"Whether the landlord who seeks eviction of his tenant under Sections 12(1)(e) and 12(1)(h) of the Act, without specifically pleading that he would occupy the premises after its reconstruction, is not entitled to the decree for eviction under Section 12(1)(e) or/and 12(1)(h) of the Act ?"
Facts of the Case
3. Plaintiffs Sadhu Singh (since dead) instituted a civil suit (C.S. No. 35-A/87/1993) for eviction of his tenant (the defendant/appellant) from the suit premises known as "Walia House", Idgah Hills, Bhopal, which had been let-out for residential purpose, on a monthly rent of Rs. 500/-. He alleged that the suit premises was required bona fide for the occupation of himself and his family and that they had no other reasonably suitable residential accommodation of their own in their occupation in the city of Bhopal; and that the roof of the suit premises had become damaged, as the premises was situated on a slope, and constant flow of rain water directly on the Building had damaged the roof and that the Engineer had expressed an opinion that the roof requires to be dismantled for necessary repair. The plaintiff also alleged that he was residing in a rented premises and his landlord had initiated eviction proceedings against him.
3.1. During the pendency of the suit the original plaintiff (Sadhu Singh) died and his legal representatives, namely, widow, five sons and seven daughters (respondents herein) came on record and continued the proceedings. They amended the plaint alleging that respondents 1 and 11 were residing with Sardar Sadhu Singh in a rented premises and an eviction decree has been passed against them in RCS No. 69-A/86 on the file of II Civil Judge, Class II, Bhopal and therefore they required the suit premises for their residential purpose.
3.2. The defendant/appellant denied the need put forth by the landlord. The learned Trial Judge framed appropriate issues, recorded evidence and decreed the suit on 1-5-1995 in favour of the plaintiff holding that the grounds mentioned in Section 12(1)(e), (g) and (h) of the Act, were established.
3.3. The tenant (appellant) challenged the said judgment and decree by filing an appeal in RCA No. 8-A/95. The learned IX Addl. District Judge, Bhopal by the impugned judgment and decree allowed the appeal in part. He affirmed the decree for eviction under Section 12(1)(e) of the Act but set aside the decree for eviction under Section 12(1)(g) and (h) of the Act. Feeling aggrieved, the present second appeal has been filed under Section 100 of the Code of Civil Procedure.
Legal Question
4. We will now deal with the question of law. It is evident from the scheme of the Act, that a landlord can seek eviction of his tenant on one or more of the grounds enumerated under Section 12(1) of the Act. Clause (e) provides for eviction of a tenant, if the accommodation is required bona fide for residential use [Clause (f) for non-residential]. Clause (g) provides for eviction for carrying out repairs if the accommodation has become unsafe or unfit for human habitation. Clause (h) provides for eviction if the accommodation is required for building or rebuilding or for making substantial additions or alterations. The said three clauses of Section 12(1) are extracted below for ready reference:--
"(e) that the accommodation let for residential purposes is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held an3 that the landlord or such persons has no other reasonably suitable residential accommodation of his own in his occupation in the city of town concerned;
(g) that the accommodation has become unsafe, or unfit for human habitation and is required bona fide by the landlord for carrying out repairs which can not be carried out without the accommodation being vacated;
(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 re-building or alterations can not be carried out without the accommodation being vacated."
An order under Clause (e) or (f) is subject to the obligation under Section 17 not to re-let the premises for a period of two years. Passing an order under Clause (h) is subject to Court's satisfaction in regard to the matters mentioned in Sub-section (7) of Section 12. Where the eviction is ordered under the grounds specified in (g) or (h), Section 18 requires that the Court shall ascertain from the tenant whether he elects to be placed in occupation of the accommodation from which he is to be evicted and if he so elects, record the fact of election in the order. The said section also casts an obligation on the landlord in such an event to place the tenant in occupation within one month of the completion of the repair/reconstruction work.
5. A careful reading of the said three provisions clearly show that each ground is independent, distinct and mutually exclusive. They do not overlap each other. The rights of the landlord under each of these grounds and the corresponding obligations do not overlap each other. The ground under Clause (e) is however wider in scope than the grounds under Clauses (g) and (h). This is evident from several decisions of the Supreme Court.
6. In Ramniklal Pitambardas Mehta v. Indradaman Amratlal Sheth , the Supreme Court considered a case arising under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The landlord therein had sued for ejectment on the ground of personal requirement under Section 13(1)(g) of that Act. He also pleaded that he wanted to make additions and alterations to the premises. He did not however file the petition under Section 13(1)(hh) which related to eviction on the ground of demolition and reconstruction. The question for consideration was whether a decree for ejectment could be passed on the ground of personal requirement under Section 13(1)(g), where it was proved that the landlord also wanted to demolish and reconstruct and then occupy it. The Supreme Court held :--
"We agree with the Courts below that the respondent's case falls under Clause (g) when he bona fide requires the premises for his own occupation. The mere fact that he intends to make alterations in the house either on account of his sweet will or on account of absolute necessity in view of the condition of the house, does not affect the question of his requiring the house bona fide and reasonably for his occupation, when he has proved his need* for occupying the house. There is no such prohibition either in the language of Clause (g) or in any other provision of the Act to the effect that the landlord must occupy the house for residence without making any alternations in it. There could not be any logical reason for such a prohibition....
We do not, therefore, agree with the contention that Clause (g) will apply only when the landlord bona fide needs to occupy the premises without making any alteration in them, i.e., to occupy the identical building which the tenant occupies.
We are therefore of 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.
The provisions of Clause (hh) can not 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."
In K.A. Anthappai v. C. Ahammed, , the Supreme Court while dealing with provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, while following the decision in Ramniklal reiterated that the claim of the landlord that he needs the building bona fide for his personal occupation can not be negatived on the ground that building requires repairs and alterations before landlord can occupy the same.
7. The issue again came up for consideration before the Supreme Court in Radhey Shyam v. Kalyan Mal, . In fact, in this decision, the very provisions of M.P. Accommodation Control Act, namely, Section 12(1)(f) and 12(1)(h) were considered. Section 12(1)(f) is similar to Section 12(1)(e). While Clause (e) relates to residential accommodation, Clause (f) relates to non-residential accommodation. The appeal before the Supreme Court was by the tenant whose eviction had been ordered by all the Courts below under Section 12(1)(f) and (h) of the Act on the ground that the landlord required the premises bona fide, for his business after demolishing the existing building and putting up a new building. The tenant contended that as the eviction was ordered under Section 12(1)(h) also, Section 18 of the Act was attracted and it was obligatory on the part of the landlord to provide equal accommodation in that new building to be constructed by him. The tenant was also aggrieved by the findings of the Courts below that as the order of eviction was under Clause (e) on the ground of bona fide need, Section 18 was not attracted and there was no need for the landlord to deliver possession of any accommodation to the tenant in the new building. Negativing the tenant's contention, the Supreme Court held as follows :--
"Though the Courts below have passed the order of eviction under Section 12(1)(f) and (h) we are of the opinion that the order of eviction is based really and substantially only under Section 12(1)(f) of the Act. The fact that Section 12(1)(h) is also mentioned in the orders of the Courts below does not make the order of eviction purely one under that section, for the main ground of requirement of the landlord is bona fide personal requirement for locating his proposed factory for the manufacture of gold and silver ornaments. A case more or less similar on facts had come up before this Court in Ramniklal Mehta v. Indradaman, , which arose from proceedings taken under the Bombay Rents, Hotel and Lodging House, Rates Control Act. There the eviction was sought under Section 13(1)(g) and Section 13(1)(hh) of that Act. Section 13(1)(g) of that Act corresponds to Section 12(1)(f) of the Madhya Pradesh Accommodation Control Act and Section 13(1)(hh) of that Act corresponds to Section 12(1)(g) namely that the building is required for effecting either repairs or alterations. This Court has observed in that case that once the landlord establishes that he bona fide requires the premises for his occupation, he is entitled to recover possession of it from the tenant under the provisions of Sub-clause (g) of Section 13(1) irrespective of the fact whether he would occupy the premises without making any alterations or after making the necessary alterations.
Though the facts of that case are slightly different in that the requirement was for occupation after making some alterations whereas in the present case the requirement is for locating the landlord's factory after demolishing and reconstruction the building, the principle deducible from that decision would apply to the facts of even these cases. We agree with Mr. U.R. Lalit, learned Counsel for the respondent landlord that the order of eviction is based mainly under Section 12(1)(f) of the Act and that from the mere fact that Section 12(1)(h) also is added would not make the order of eviction only one under Section 12(1)(h) of the Act and Section 18 of the Act will not be attracted."
8. A learned Single Judge of this Court in Parmeshwari Devi, distinguishing all the above three decisions, held as follows :--
"Now, if we study both the aforesaid grounds together, we find that respondent wanted to evict the appellants on the ground of bona fide requirement under Section 12(1)(e) and Section 12(1)(h) of 'the Act' apart from Section 12(1)(a) thereof. Indeed, the Trial Judge negatived the claim of the respondent, based on Section 12(1)(a) and Section 12(1)(e) of 'the Act' and granted the decree only on the ground under Section 12(1)(h) thereof. It is more than possible that the respondent would have been satisfied with the decree under Section 12(1)(h) of 'the Act' alone, had he not received the notice of the first appeal filed by the appellants. He then filed a cross- objection seeking for eviction under Section 12(1)(e) of 'the Act' and pursuaded the Lower Appellate Court to pass a decree under Section 12(e) of 'the Act' as well. Now, since the decree for eviction is under Section 12(1)(h) of 'the Act', we must not interpret that section in an isolated manner. We must read the other sections which are intimately connected with Section 12(1)(h) of 'the Act'. If we read Section 12(7) of 'the Act', it would be apparent that this section prohibits passing of a decree under Section 12(1)(h) of 'the Act' unless it is proved that proposed reconstruction shall not radically alter the character of building unless public interest so requires and the plans and estimates have been so made. Therefore, there is no question of demolition under Section 12(1)(h) of 'the Act', unless it is in public interest. Apart from that, Section 18 of 'the Act' provides for re-entry after reconstruction or alteration is over, if the tenant so opts. Thus, here again, the Legislature has taken care of the situation when a landlord may try to evict a person on this ground totally with ulterior motive. Now, a bona fide requirement for residence totally shuts the door in the face of tenant and he can not hope to re-enter unless the Rent Controlling Authority, at the instance of landlord, exercises his powers under Section 17 of 'the Act'. On the other hand, so far as a decree under Section 12(1)(h) of 'the Act' is concerned, if the tenant, in exercise of his option, under Section 18 of 'the Act' so demands, the door of re-entry has to be re-opened. Thus, both pleas can not stand together. There is a head on collision. They are mutually destructive of each other. The aims of two grounds under Section 12(1)(e) and 12(1)(h) of 'the Act' are different. One refers to requirement for residence of the landlord and the focal point of the other requirement is reconstruction for further letting. Therefore, both the requirements can not be bona fide, and for this reason the respondent can not say with head held high that his both the needs are in good faith.
... the plea of the respondent/landlord that he required the suit house bona fide for the residence of himself and that of the members of his family can not stand together with the plea of the landlord that he required the suit house bona fide for reconstruction. On the contrary, the requirement of bona fide reconstruction of the suit house can not be pleaded simultaneously with the plea of bona fide requirement for personal residence. Both the pleas are mutually destructive of each other and the very fact that they were pleaded together shows that none of them are bona fide. They are so inconsistent that one can not be alternative of the other. The landlord can take only one of pleas so that is be bona fide. The moment he chooses the second with the first, both destroy each other."
He held that the decision in Ramniklal was not applicable as in that case there was no specific plea for eviction under Section 13(1)(hh) of the Bombay Act for demolition and reconstruction and the Supreme Court had stated that the bona fide requirement for residence could be claimed even if the landlord wanted to reconstruct the whole premises. He further held that the question whether the landlord can plead both the grounds together and whether relief could be claimed under both grounds at the same time was neither raised nor considered and, therefore, the said decision was not applicable.
The learned Single Judge distinguished the decision in Anthappai's case by stating the question whether the landlord who claims eviction under both grounds, forfeited both grounds, was not considered. In so far as Radhey Shyam is concerned, the learned Single Judge distinguished it on the following reasoning :--
"It is obvious that the Supreme Court assumed that a decree under Section 12(1)(f) {in our case it would be 12(1)(e)} could be passed along with Section 12(1)(h) of the Act. This assumption can not be treated as a precedent for the reason that the Court was not called upon to decide the point in issue before this Court. At best, it could be argued that it logically follows from the decision that a decree under Section 12(1)(e) or 12(1)(f) could be passed along with a ground under Section 12(1)(h) of the Act."
We are afraid the learned Single Judge while deciding Parmeshwari Devi, missed the principle laid down in these three decisions and in fact committed a serious error in failing to follow the law laid down in Radhey Shyam.
9. We may now refer to the subsequent decision of the Supreme Court in Modem Tailoring Hall v. H.S. Venkusa, . In that case, Section 2(1)(h) and (j) of the Karnataka Rent Control Act, 1961 was considered. Clause (h) enabled a claim for eviction on the ground that the premises was bona fide and reasonably required for own use and Clause (j) enabled a right to seek eviction for demolition and reconstruction subject to right of re-entry of the tenant. The Supreme Court settling the legal position clearly observed thus :--
"These two rights arc encircled with corresponding obligations inasmuch as under the former provision the landlord is required to enter the premises himself within the statutory period failing which the tenant has a right of re-entry, and in the latter provision, the landlord is required to give an undertaking so as to ensure observance of the terms of re-entry on reconstruction of the building. The present cases are such in which the landlord has sought eviction of the tenants under Section 21(1)(h) of the Act on the ground that he bona fide requires the premises for his own use and occupation but after demolition and reconstruction. The point arising for consideration is whether the landlord's claim was rightly based under Section 21(1)(h) or was it founded under Section 21(1)(j) ?
The consistent view of the Karnataka High Court in a series of decisions starting from the case titled as Smt. Rohinibai v. Vishnumurty, ILR (1980) 1 Kant 340, is that the two provisions, i.e., Section 21(1)(h) and Section 21(1)(j) are mutually exclusive and that demolition and reconstruction of a premises by the landlord for his own use and occupation, after getting an order of eviction, clearly falls under Clause (h) of Section 21(1) and not under Clause (j). It has been viewed that the plea of the landlord for bona fide requirement, for his own use and occupation of the premises under Section 21(1)(h), would include the occupation of the premises after making any alteration or a new construction on securing an order of eviction. This extended meaning was given by the Karnataka High Court on the basis of a decision reported in Ramniklal Pitambardas Mehta v. Indradaman Amratlal Sheth, , a decision by a three Member Bench of this Court. Identical provisions of the Bombay Rents, Hotel and Lodging House Rents Control Act, 1947 were examined and it was held that the demolition of the existing building and subsequent erection of a new building were only intermediate steps in order to make the building fit for occupation by the landlord. It was also held that the provisions relating to demolition and reconstruction saddled with the obligation to provide to the tenant re-entry could not possibly apply to the case where the landlord reasonably and bona fidely requires the premises for his own occupation even if he had to priorly demolish the premises and erect a new building on it. And further, it was viewed that qualitatively the eviction under the provision, such as provided under Section 21(1)(j) of the Act presently in hand, would apply to cases where the landlord does not require the premises for his own occupation, but requires it for erecting a new building to be let out to the tenants. Thus, it is obvious that the Karnataka High Court has maintained the distinction between the two provisions sharply and has never let these provisions overlap with each other.
The ground of eviction given in the two provisions being mutually exclusive have flowing therefrom separate individual rights and obligations and they can not be permitted to overlap so as to confer on the Court the discretion of employing one provision over the other. An application of the landlord, if not falling under Section 21(1)(h), would on its own, merit dismissal. The Court can not treat it in its discretion as one under Section 21(1)(j) and order an unwanted eviction. The distinction qualitatively has to be maintained."
(Emphasis supplied)
10. It is evident from the decisions of the Supreme Court that the ground of eviction under Section 12(1)(e) or (f) on the one hand and ground of eviction under Section 12(1)(g) or (h) on the other, are mutually exclusive with separate rights and obligations.
10.1. Many a times, the landlords in their anxiety to get decree for eviction, or on wrong advice, tend to raise as many grounds as possible. In several cases, where they want to occupy the premises for their own use and for that purpose if they want to demolish the existing building and construct a new building before occupying the same, instead of filing the suit only under ground (e) or (f), they may file the suit under ground (g) or (h) also in addition to ground (e) or (f). They over-look the fact that where the ground of eviction is need for self occupation, the averments relating demolition and reconstruction are only a step in fulfillment of their need to occupy the premises, and such averments form an integral part of the averments relating to bona fide requirement for own use and there is no need to invoke ground (g) or (h). In such cases, if the bona fide requirement pleaded under Clause (e) or (f) is made out by the landlord, the ground under (g) and (h) even if mentioned would be redundant and shall have to be ignored. To reject the case relating to a genuine and relevant ground, merely because a redundant ground is also mentioned, is neither just or logical.
10.2. It is also possible that landlords in their anxiety, or on advice, after pleading the ground under (e) or (f), may alternatively and independently plead a ground under Clause (g) or (h). In that event, if the prayer under Clause (e) or (f) is allowed, then the ground under Clause (g) or (h) will not survive for consideration. On the other hand, if the ground under Clause (e) or (f) should fail, the grounds under Clause (g) or (h) will survive and will have to be considered separately. Therefore, whenever a landlord pleads a case for eviction under Clause (e) or (f) and also pleads a specific alternative case for eviction under Clause (g) or (h), the ground under Clause (g) of (h) will have to be considered only in the event of ground of eviction under Clause (e) or (f) being rejected. Under no circumstance, the landlord can be non-suited merely on the ground he has invoked a ground under Clause (g)/(h) in addition to the ground under Clause (e)/(f). We therefore overrule the decision of the learned Single Judge in Parmeshwari Devi.
11. We may also notice, at this juncture, that the question came up recently before a learned Single Judge in Babukhan v. Dr. R.D.S. Ahluwalia, 2003(5) M.P.H.T. 398 : 2003(3) MPLJ 69. The learned Single Judge after referring to the decision of the Supreme Court in Modem Tailoring Hall, held that the decision in Parmeshwari Devi is no longer good law.
Conclusion
12. The answer of the question of law formed in the order of reference is as under :--
When a suit is filed by a landlord under Section 12(1)(e) and 12(1)(h), pleading that he requires the accommodation for his own use and also states that he wants to demolish and reconstruct the building, and he establishes a case for eviction under Section 12(1)(e), he will be entitled to an order under Section 12(1)(e) and the averments relating to demolition and reconstruction will be construed as a part of ground under Section 12(1)(e). In such an event, it will be immaterial whether he demolishes the building or not. When a Court grants an eviction under Clause (e), it shall dispose of the claim under Clause (h) as having become infructuous or rendered redundant. When granting a decree under Section 12(1)(e), the question of applying Section 12(7) or Section 18 does not arise. On the other hand if the ground under Section 12(1)(e) is rejected, then the Court may consider the ground under Section 12(1)(h) independently subject to Section 12(7) and Section 18.
13. The question of law on which the petition was admitted, is answered thus : Mere invoking the ground under Section 12(1)(h) or filing the case under Section 12(1)(h) in addition to the ground under Section 12(1)(e) will not invalidate the claim for eviction under Section 12(1)(e). Where the bona fide requirement of the landlord under Section 12(1)(e) of the Act is proved, the claim can be allowed under Section 12(1)(e), ignoring the ground under Section 12(1)(h).
14. In this case, as already noticed, the plaint did not even refer to Clause (g) or (h) in the suit. After pleading that he required the premises bona fide for occupation of himself and his family, he also stated that the premises was in a damaged condition and required repairs. Therefore, the averments relating to dismantling the roof and reconstructed it is not an independent ground but a part of the ground under Clause (e). As a consequence, the concurrent finding that the landlord has made out a case for eviction under Section 12(1)(e) of the Act does not call for interference. The second appeal is therefore, dismissed with costs.