Bombay High Court
Smt. Sushilabai Laxminarayan Mudliyar ... vs Nihalchand Waghajibhai Shaha And Ors. on 17 March, 1993
Equivalent citations: 1994(2)BOMCR393, (1993)95BOMLR901
JUDGMENT G.D. Patel, J.
1. The Letters Patent Appeal is directed against the judgment delivered by the learned single Judge of this Court on 26th April, 1988 in Writ Petition No. 1305 of 1986. By that petition the respondent-tenants had challenged the order passed by the Resident Deputy Collector, Amravati, rejecting their application for restoration of possession under Clause 13(4) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (here inafter referred to as "the Rent Control Order"). The circumstances leading to the filing of the said application arose as narrated below :
2. The original owner of the property in dispute was one Laxminarayan Vyankatesh Mudliyar. The appellant Nos. 1 to 4 are the legal heirs of Laxminarayan, the erstwhile owner of the said property. The respondent Nos. 1 to 3 are the partners of Rasik Stores, a partnership firm, who was a tenant occupying the three storied building on a monthly rent as fixed between them and the landlord.
3. In the year 1957, Laxminarayan applied for grant of permission under Clause 13(3)(ii) and (vi) of the Rent Control Order. The case was registered as Revenue Case No. 384/72(2) of 1957-58. The application was rejected vide order passed on 5-2-1962. Laxminarayan hence preferred an appeal to the Resident Deputy Collector (hereinafter referred to as "the R.D.C."). The R.D.C. allowed the appeal only in respect of the ground of bona fide residence under Clause 12(3)(vi) of the Rent Control Order. This order was passed on 11-3-1963. After lapse of some time suo motu review proceedings were initiated by the R.D.C. himself in order to ascertain the extent of the need of the landlord. By order dated 1-1-1964 the R.D.C. limited the permission in respect of the entire first and second floors as also the two rooms on the ground floor. The order passed by the R.D.C. came to be confirmed in Writ Petition Nos. 481 of 1964 and 549 of 1964. The case was, however, remanded to the R.D.C. for determining as to what portion of the hall should be granted to the landlord for creating a passage as an access to the premises. The original owner Laxminarayan Mudliyar died on 24th May, 1967. The appellant Nos. 1 to 4 being the legal representatives continued the proceedings. The R.D.C. by this order dated 18-10-1967 allowed the creation of a passage 4 feet wide in frontal portion of the hall parallel to left side wall. The civil suit was instituted after quit notice was served on the respondent-tenants seeking possession of the premises. A decree for possession came to be passed on 23-3-1977 and possession of the premises was obtained on 4-12-1980. It may be relevant to note that it took 23 years for the landlord to get possession of the premises in question.
4. The hall on the ground floor had remained in possession of the respondent-tenants Separate proceedings were hence instituted before the Rent Controller under Clause 13(3)(i), (ii), (v) and (vi). It was registered as Revenue Case No. 220/71(2) of 1969-70. The Rent Controller granted permission to the landlords only under Clause 13(3)(vi) of the Rent Control Order vide order passed on 16-2-1971. The appeal filed by the respondent-tenants came to be dismissed. The decree for possession in favour of the appellant Nos. 1 to 4 was passed on 12-3-1979. The possession of the hall on the ground floor was obtained on 17-11-1980.
5. The respondent No. 1, Nihalchand Shah, in his capacity as a partner of the firm Rasik Stores filed two separate applications under Clause 13(4) of the Rent Control Order against the present appellant Nos. 1 to 4. The two applications were registered as Revenue Case No. 162/71(2) of 80-81 and Revenue Case No. 163/71(2) of 80-81. It was contended therein that the suit premises were not occupied by the present appellant Nos. 1 to 4 within one month of the date of taking possession of the premises and, therefore, the possession should be restored back to them. They even contended that the premises were not occupied by the appellant Nos. 1 to 4 without any good cause within one month of obtaining any possession and their intention was to sell the property as such.
6. The appellant Nos. 1 to 4 contested both the applications by filing separate replies. In para 5 they described the condition of the house which, according to them, was in a very bad shape. The stair case, the ceiling, the wooden beams of the roof were stated to be in a hopeless condition. They even specified that there were holes in the walls and flooring had practically given way. The electric fitting and fixtures were snapped and cut off. The suit premises were not at all in a suitable or usuable condition. It required extensive repairs and new electric fittings. In para 7 we find further averment that the premises were kept locked since the year 1971 onwards. After obtaining possession, it was revealed that the premises were not in a condition fit for human habitation unless extensively repaired and new wiring is done. In para 10 of the reply containing specific pleading the appellants reiterated that the possession had to be obtained through Court by filing execution proceedings. The premises were kept locked without any use from the year 1971. Soon after taking possession of the premises with the help of Court Bailiff, the appellants found that the house was in such a bad shape that no one could have occupied it. Therefore, an Architect of Amravati Shri Deopujari was contacted for giving him the work of repairs, painting and new fixing of electric wiring and fitting. It was also pleaded that though the appellant Nos. 1 to 4 were in possession of the premises, it was not possible for them to use it. They had a good cause for not residing in the premises unless the house was repaired and painted and had electric connection.
7. It seems that there were further developments during the pendency of the applications and those developments were sought to be incorporated by the respondent-tenants. Accordingly they applied for amendment of the application. It is alleged therein that the appellant Nos. 1 to 4 sold the three storied building to appellant Nos. 5 to 7 by two registered sale-deeds both dated 3-6-1982. The Appellant Nos. 5 to 7 were aware of the fact that the respondent Nos. 1 to 3 had applied for restoration of possession by filing two separate applications under Clause 13(4) of the Rent Control Order. They also pleaded that the respondent Nos. 1 to 3 also published a notice in the news paper regarding the right of restoration of possession of the suit building and pendency of proceedings in that regard. After purchase of the building the appellant Nos. 5 to 7 deliberately tried to demolish the building hurriedly and hence Regular civil suit seeking relief of permanent injunction came to be filed. The application for temporary injunction as well as the civil suit came to be dismissed. An appeal preferred by the respondent Nos. 1 to 3 and temporary injunction was granted restraining the appellant Nos. 5 to 7 from demolishing the building. By that time only two room remained to be demolished. The appeal was ultimately allowed.
8. One more plea which comes for the first time was that the repairs needed to the house were only minor ones. The building is sold without using the same for the purpose for which it was got vacated.
9. The appellant Nos. 1 to 4 also amended their pleadings by incorporating further development leading to sale of the property. While admitting the sale of the property they clarified that the applications filed under Clause 13(4) of the Rent Control Order were dismissed on 26-5-1982 for the reason of want of prosecution as well as on merits. Before the sale, the building was shown to an Architect Shri Tiwaskar who inspected the building and opined that the building was in dilapidated condition and should be demolished without any delay. In the opinion of the Architect, the extensive major repairs would serve no purpose and the money spent on it would be wasted. The appellant Nos. 1 to 4 had no funds to demolish as well as reconstruct the building. In this background the property had to be sold and upon its sale the appellant Nos. 5 to 7 demolished the structure. The appellants were not aware that the building would be unfit and unsafe for human habitation at the time the possession was taken. The public notice stated to have been published was not in the knowledge of the appellants. The other appellants have raised the same contentions as those raised by the appellant Nos. 1 to 4.
10. The Rent Controller also had an occasion to inspect the building as would be evident from the notes of inspection available on record. It is observed therein that the suit premises were in a dilapidated condition and as such unfit for human habitation.
11. Both the applications filed under Clause 13(4) of the Rent Control Order were rejected by the Rent Controller vide his order passed on 26-5-1982 for want of prosecution as well as for reasons mentioned in the order, that is, on merits. The orders passed in the two cases were challenged by the respondent Nos. 1 to 3 by filing two separate appeals. By order dated 13-10-1983 the case was remanded back to the House Rent Controller and further enquiry and recording evidence and thereafter to send the enquiry report within specified time. The House Rent Controller submitted his report on 29-3-1985 holding that the respondent Nos. 1 to 3 were not entitled to claim restoration of possession. After hearing the parties the R.D.C. by his order dated 23-4-1986 dismissed both the appeals.
12. The respondent Nos. 1 to 3 filed Writ Petition No. 1305 of 1986. The learned single Judge of this Court allowed the petition and directed the appellants to restore the premises to the present respondent Nos. 1 to 3. Aggrieved by the said judgment, the present appeal is filed.
13. In order to decide the controversy involved in this appeal, it is first necessary to decide the scope and ambit of Clause 13(4) of the Rent Control Order. The said Clause reads as under.
"13(4) Where the landlord who has obtained possession of a house or a portion thereof in pursuance of a permission granted by the Controller under sub-Clause (1) on the ground specified in item (vi) of sub-Clause (3) does not himself occupy it without good cause, for the purpose specified in such ground, within one month of the date of obtaining possession, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored possession of the house or a portion thereof and the Controller shall make an order accordingly."
On plain reading of the Clause it is clear that the landlord who has secured possession as a result of permission granted on the ground of need for bona fide occupation, he is required to occupy the vacant premises for the purpose specified in such ground within one month from the date of obtaining possession. Failure to do so without a good cause would entitle the tenant to seek restoration of possession. The Clause uses the word "possession" as well as the word "occupation" in so far as the landlord is concerned. In other words, the landlord after obtaining 'possession' of the vacant premises must also 'occupy' it. The two words though synonymous are used in different sense. This is indicated by the word "himself occupy" and that occupation should be "for the purpose specified in such ground". It indicates that the intention of the Legislature was to distinguish a mere formal possession from occupying himself for the purpose for which the premises were got vacated. Therefore, to contend that "occupation" would include "possession" is not enough. It must be something more like "control" or "use".
14. Clause 13(4) further requires that in case the landlord fails to occupy the vacant premises within a month, he has to show good cause for not doing so in order to deprive the tenant of his right to seek restoration of possession. The phrase 'good cause' would mean adequate, sound and genuine ground or reason. It is thus clear that in case the landlord defends the claim for restoration of possession, he must necessarily show that he had adequate, sound and genuine reason not to occupy the premises himself as envisaged by the Clause. The period of one month as prescribed by the Clause appears to have been inserted as a stating point for the tenant to move the authority. In other words, the tenant must wait for one month from the day the possession is obtained by the landlord and only if he finds that the landlord has not occupied the premises, he derives a right to seek restoration of possession. It must be remembered that Clause 13(4) of the Rent Control Order appears to have been enacted with a view to protect the interest of the tenant so as to prevent the landlord from abusing the provision of getting the tenant ejected on the ground of bona fide need. Though outer limit for the tenant to move the application under Clause 13(4) is not fixed, it would be proper for the tenant to avail of the right conferred by this Clause within reasonable time and such reasonable time would depend upon the facts of each case. The respondent Nos. 1 to 3 moved the application on 16-1-1981, that is, soon after completion of one month from the date the possession was obtained by the appellant Nos. 1 to 4.
15. The narrow question which initially falls for determination is about the condition of the suit building at the time the possession was taken by the appellant Nos. 1 to 4. Was it in a habitable condition? If the answer is in the affirmative, the respondent Nos. 1 to 3 must succeed and will be entitled to possession. It will not be so if the answer is in the negative. There can be no doubt about the position that if it is necessary to effect repairs before occupation, it would furnish a good cause for not occupying the premises within one month or even latter on. The parties before the Rent Controller led voluminious oral and documentary evidence. We will shortly point out that there is enough material on record to hold that the building in question was rendered totally useless for occupation of the appellant Nos. 1 to 4 at the time when possession was obtained in December, 1980 and such a situation continued till the building was demolished by the appellant Nos. 5 to 7.
16. The first to examine the building soon after the possession was obtained was the Architect Shri Deopujari, Who was examined as a witness by the respondent Nos. 1 to 3. His report is at Exh. 'A'. The said report indicates that the condition of the building is not fit for human habitation. Shri Tiwaskar was the other Architect who was examined by the appellant Nos. 1 to 4. His report though subsequently made out gives every details of the condition of the house which would indicate that the house in question was not habitable for human dwelling. Shri Tiwaskar, however, differs from Shri Deopujari to the extent that the building could not have been repaired. The authorities below have rightly relied upon the evidence of Shri Tiwaskar in preference to that of Shri Deopujari because there is material on record to show that the latter had given contrary opinions to the litigant parties in Small Cause Suit No. 206 of 1979.
17. Besides the evidence of the Architect Shri Tiwaskar, the authorities also relied upon the evidence of the Court Bailiffs Shri Bhoge and Shri Tolan through whom the appellant Nos. 1 to 4 obtained possession. According to him, the building was in a dilapidated condition having cracks and holes in the wall. Vishwanath Gaikwad, the contractor, who demolished the building also deposed about its dilapidated condition. The notice issued by the Municipal Council on 21-10-1982 (Exh. 24) to the appellant Nos. 5 to 7 substantiates the contention that the building needed demolition apprehending danger to human life.
18. There is evidence on record to show that Rasik Stores which was the firm operating in the suit building came to be shifted in the year 1970 at another place near Jaistambh square. There is also evidence on record to show that the electricity was disconnected and the meter removed on 5-10-1976. The building was empty and had accumulated a lot of dust when possession of the building was taken. Factually it has been found by the authorities below and rightly so that the building was not in use since 10-12 years before the possession was obtained in the year 1980. It was not used even as a godown as was the contention of respondent Nos. 1 to 3. It appears that the building deteriorated very fast. There can therefore be no doubt that the building was found to be in dilapidated condition and was beyond repairs. The learned Authorities below were right in coming to such a conclusion and is not liable to be interfered in writ jurisdiction.
19. The suit building came to be purchased by the appellant Nos. 5 to 7 vide two sale-deeds both dated 3-6-1982. The purchasers were aware of the litigation that was going on between the parties. This is clear from the clauses in the sale-deed itself. It may be that the Rent Controller had rejected the applications filed by the respondents Nos. 1 to 3 under Clause 13(4) of the Rent Control Order and the appeal was yet to be filed. There can be no doubt that the right of tenant for restoration of possession would continue even against the purchaser under the said Clause. The right which is created is qua the building from which the tenant is ejected. The appellant Nos. 5 to 7 were bound to restore possession to respondent Nos. 1 to 3 if the building was in a condition to be occupied. As discussed above, the building was in a a dilapidated condition and repairs would not have served the purpose. There is evidence on record to show that the premises were sold because the appellant Nos. 1 to 4 had no funds either to demolish the building or to reconstruct it over again. The structure of the building being in such a condition, only the plot came to be sold. Soon after the purchase the dilapidated structure came to be demolished. With the demolition of the structure, the provisions of the Rent Control Order cease to apply and the right of the tenant for restoration of possession came to an end. As a matter of fact the said right of respondent Nos. 1 to 3 stands extinguished. This is so because the provisions of the Rent Control Order do not presently apply to open plots. We are not called upon to decide whether the right of the tenant would revive upon re-construction of the building. The fact remains that the appellants could not utilise the building which came to be vacated for the purpose specified in Clause 13(3)(vi) of the Rent Control Order, but no right accrued to the respondent-tenants because of the 'good cause' shown by the appellants upto the period the suit building came to be demolished.
20. The learned single Judge failed to consider the aforesaid aspect and simply proceeded on the assumption that the case of the landlord as initially pleaded did not show that the suit building was in a dilapidated condition, necessitating demolition. The factual position was otherwise. We also do not agree with the observations of the learned single Judge, which read as follows :
"Once there is a tenant, who has a right of restoration, there is no absolute right in the landlord to demolish the building, even though it may be dilapidated and thereby defeat the right of the tenant under sub-clauses (4) to (7) of Clause 13 of the Rent Control Order."
Such a finding would compel the landlord to occupy the building at the risk of his life as well as the life of family members. At this stage it would be appropriate to consider the decision of this Court in Gurudasprasad and etc. v. Additional District Magistrate and others, , wherein a question arose whether it is possible for the landlord to remodel or reconstruct the house after taking possession from the tenant who has been evicted on the ground of bona fide need. Relying upon the decision of the Supreme Court in the case of Ramniklal v. Indramohan, it was held that it is open for the landlord to occupy the suit permises after remodelling or reconstructing the same or after carrying out necessary repairs without even asking for permission separately under Clause 13(3)(vii) of the Rent Control Order. The said cause enables the landlord to obtain permission on the ground of extensive repairs or alterations. The finding of the learned single Judge as quoted above runs counter to the decision in Guruprasad's case and hence it is even not otherwise possible for us to endorse such a view.
21. Based on a decision in Krishanlal Ishwarlal Desai v. Bai Vijkore and others, , it was urged that getting the premises examined by an Architect soon after taking possession was an act in futherence of occupation of the premises and it cannot be said that the appellant Nos. 1 to 4 failed to occupy the premises in question. Since we have already held that the appellants had good cause for not occupying the premises, it is not necessary now to dwell upon this aspect of the case.
22. In the result, we allow the appeal. The judgment impugned is set aside. Consequently the order passed by the Resident Deputy Collector is restored. The parties shall bear the costs of this appeal as respectively incurred.