Krishanlal Ishwarlal Desai Vs. Bai
Vijkor & Ors [1963] INSC 4 (18 January 1963)
18/01/1963 GAJENDRAGADKAR, P.B.
GAJENDRAGADKAR, P.B.
SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N.
HIDAYATULLAH, M.
SHAH, J.C.
CITATION: 1967 AIR 375 1966 SCR (1) 553
ACT:
Rents and Rates Control-Recovery of
possession by landlord--Reasonable and bonafide requirement for occupation or
construction-Failure of landlord to occupy within one monthWhether tenant
entitled to get possession-Bombay Rents, Hotel and Lodging House Rates Control
Act., 1947 (Bom. 57 of 1947), ss. 13 (1) (g), 13 (1) (i), 17 (1).
HEADNOTE:
The appellant is the owner of a vacant plot
of land of which the respondents were the tenants. The former applied to the
court for ejectment of the latter and for getting possession under S. 13 (1)
(g) and (e) of the Bombay Rents, Hotel and Lodging House Rates Control Act,
1947 on the grounds that he reasonably required the land for occupation by
himself and for erection of new buildings. The trial court found in favour of
the appellant on the first ground but rejected his claim under the second
ground. Though cross appeals were filed the appellate court substantially
upheld the order of the court below' Thereafter the appellant took possession
about four months later and started storing materials for sanitary works and
buildings even though at the trial his case was that he wanted the land for
storing of timber. The respondents applied under s. 17 (1) of the Act to the
trial court to obtain possession of the premises on the ground that the
appellant had failed to occupy the premises within one month of his recovery of
possession. The trial court rejected their application but the appellate court
allowed the appeal filed by them. The revision petition filed by the appellant
was summarily rejected by the High Court. The present appeal is byway of
special leave granted by this Court.
The appellant's contention before this Court
was that the period of limitation of one month prescribed under s. 17 (1) would
be applicable to an order under s. 13 (1) (i) and not to one passed under s. 13
(1) (g).
Held, that s. 17 (1) makes a distinction
between occupation and possession. The period of limitation of one month 554
applies as much to the case of occupation as to the case of erection of the
work, contemplated by cl. 13 (1) (g) and (i) respectively. Since the appellant
did not occupy the premises within one month he has failed to comply with the
first part of s. 17 (1) and hence the respondents are entitled to an order for
the possession of the premises.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 804 of 1962.
Appeal by special leave from the order dated
April 11, 1962, of the Gujarat High Courtin Civil Revision Application No.
335 of 1962.
M.C. Setalvad, and I. N. Shroff, for the
appellant.
S.T. Desai, J. B. Dadachanji, O. C. Mathur
and Ravinder Narain, for the respondents.
1963, January 18. The judgment of the Court
was delivered by GAJENDRAGADKAR, J.-This appeal by special leave raises a short
question about the construction of section 17 of the' Bombay Rents'. Hotel and
Lodging House Rates Control Act, 1947 (No. 57 of 1947 (hereinafter called the
Act). The said question arises in this way. The appellant Krishanlal Ishwarlal
Desai is the landlord who owns an open plot of land named Hathi Khada in
Kalaswadi town in the district of Surat. The said plot measures 32,406 sq. ft.
This plot was in the possession of the respondents Bai Vijkor & others as
tenants. In 1951, the appellant sued the respondents in ejectment. He claimed that
under s. 13 (1) (g) and (i) of the Act he was entitled to recover possession of
the premises consisting of the open plot in question. This claim was resisted
by the respondents. The trial Court held that the appellant had not established
his case under S. 13 (1) (i) but had proved his claim under s. 13 (1) (g).
Having recorded i this finding, the trial
Court 555 proceeded to examine the extent of the requirement proved by the
appellant. Section 13 (1) (g) provides inter alia, that notwithstanding anything
contained in the Act, a landlord shall be entitled to recover possession of any
premises if the Court is satisfied that the premises are reasonably and bona
fied required by the landlord for occupation by himself. Section 13 (1) (i)
provides that the landlord would be similarly entitled to recover possession if
the premises being land, they are reasonably and bonafide required by the
landlord for the erection of a new building.
The trial Court found that the requirement of
the appellant would be adequately met if he is given a decree for the
possession of 2/3rds of the plot in suit. Accordingly, a decree was passed in
his favour to that extent on March 16, 1955.
This decree was challenged both by the
appellant and the respondents by cross-appeals in the District Court. The
District Court held that the view taken by the trial Court was substantially
right and there was no reason to interfere with the decree passed by it. In the
result, both the appeals were dismissed on April 28, 1956.
The appellant then filed an execution
application and obtained possession of 2/3rds of the premises in question on
June 29, 1957. It appears that at the trial, the appellant's case was that he
wanted the said premises for the purpose of his timber business. Eventually, however,
the appellant occupied the said premises on October 24, 1957, not for carrying
on his timber business but for storing or stocking materials of sanitary works
and building contracts which business he had started in partnership on that
day. The appellant had constructed a shed for the watchmen to look after the
articles which were stored on the open plot.
On July 29, 1958, the respondents applied
under s. 17 (1) of the Act to the trial Court to obtain 556 possession of the
said premises on the ground that the appellant had failed to occupy the said
premises within a period of one month from the date when he recovered
possession as required by s. 17 (1). The trial Court held that the respondents
had failed to make out a case under s.
17 (1) and so, their application was
dismissed.
The respondents then preferred a revisional
application in the District Court. This revisional application was treated as
an appeal because the order passed by the trial Court was applicable. The
District Court held that the appellant had failed to occupy the premises within
the period prescribed by s. 17 (1) and so, the respondents were entitled to an
order against the appellant for the possession of the said premises. This order
was challenged by the appellant by preferring a revisional application before
the High Court of Gujarat. The revisional application was, however, summarily
dismissed. It is this revisional decision of the High Court of Gujarat that has
given rise to the present appeal, and the only question which is raised for our
decision is about the construction of s. 17 (1) of the Act.
We have already seen that s. 13 provides for
cases where the landlord is entitled to-recover possession of the premises from
the tenant and that the appellant in fact obtained a decree for possession
under s. 13 (1) (g) on the ground that 2/3rds of the premises were reasonably
and bonafide required by him for occupation by himself. The respondents' case
is that under s. 17 (1) it was obligatory on the appellant to occupy the premises
within one month after June, 29 1957 when possession was delivered to him in
execution proceedings; since he had failed to comply with this requirement,
they became entitled to obtain back possession of the said premises; and as the
present application had been made by them within 13 months from June, 29 1957,
as 557 required by s. 17 (1), an order for possession ought to be passed in
their favour. The appellant, on the other hand, contends that the stipulation
as to the period of one month on which the respondents relied does not apply to
the case of occupation which would arise in the case of a decree passed under
s. 13 (1) (g). The said period applies to the case of a decree passed under s.
13 (1) (i) That is how the controversy between the parties raises the question
of construction of s. 17 (1).
Let us now read s. 17 (1). Section 17 (1)
reads as under :" where a decree for eviction has been passed by the Court
on the ground specified in clause (g) or (i) of sub-section (1) of s. 13 and
the premises are not occupied or the work of erection is not commenced within a
period of one month from the date the landlord recovers possession or the
premises are relet within one year of the said date to any person other than
the original tenant, the Court may on the application of the original tenant,
made within thirteen months of such date order the landlord to place in
occupation of the premises on the original terms and conditions, and, on such
Order being made, the landlord and any person who may be in occupation of the
premises shall give vacant possession to the original tenant." It is clear
that when s. 17 (1) refers to the requirement that the premises must be
occupied by the landlord, the occupation intended by the provision is different
from possession, because the first clause of 17 (1) makes a clear distinction
between occupation and delivery of possession.
The effect of this clause is that when a
landlord who has obtained a decree for possession executes the decree and
obtains possession of the premises in question he must occupy them 558 in terms
of the case made out by him under s. 13 (1) (g) and held proved at the trial.
Whether or not the occupation by the landlord should be for the same purpose
which he set out at the trial or can be for a different purpose, is a question
which it is unnecessary to decide in the present appeal. What is, however.,
clear beyond any doubt is that when the possession is obtained in execution it
must be followed by an act of occupation which must inevitably consist of some
overt act in that behalf and this overt act was, on the finding of the District
Court, done by the appellant on October 24, 1957. That means that the appellant
occupied the premises beyond the period of one month prescribed by s. 17 (1).
Does the stipulation about the period of one
month apply to the case of a decree passed under s. 13 (1 That is the next
question to, consider. It would be noticed that the first clause of s. 17 (1)
deals with decrees passed under s. 13 (1) (g) and (i) and reading the clause,
there appears to be no difficulty in holding that the requirement as to one
month applies to both categories of decrees. On a fair and reasonable
construction of that clause, there appears to be no escape from the conclusion
that the period of one month applies as much to the case of occupation as to
the case of erection of the work contemplated by ss. 13 (1) (g) and (i)
respectively.
Besides, the scheme of s. 17 (1) clearly
supports this construction. Section (13) (1) has allowed the landlord to eject
the tenants from the Dresden in their possession for specified reasons and s.
17 (1) affords' a protection to the tenants where a decree for ejectment has
been passed against them under cl. (g) or (i) of s. 13 (1). If the legislature
thought it necessary to require the landlord to commence the work of erection
if he has obtained a decree for possession under s. 13 (1) within one month,
there is.
559 no reason why the legislature should not
have provided for the same or similar period in respect of occupation which is preferable
to the decree passed under s. (13) (1) (g). Mr. Setalvad contends that the
occupation could be effected within a reasonable time for he suggests that no
limitation having been prescribed in that behalf, the general rule would be
that it should be done within a reasonable time.
We think this construction cannot be accepted
because it is extremely unlikely that the legislature should have provided the
period of one month for one category of decrees and should have made no
specific provision in that behalf in respect of decrees of the other category.
Besides, the construction of the clause according to the rules of ordinary
grammar is decisively against the appellant's contention.
The second clause of s. 17(1) refers to a
case where the landlord re-lets the premises within one year of the date on
which he obtains possession in execution proceedings to any person other than
the original tenant. In other words, this clause covers cases where the
landlord obtains a decree for possession and instead of using the premises for
purposes pleaded by him and on proof of which a decree. was passed in his
favour he proceeds to re-let them to a stranger and it provides that if this
re-letting takes place within one year of the date specified by it, the
original tenant is entitled to claim possession of the said premises. This
clause also shows that s.17(1) is intended to afford protection to the rights
of tenants who have been ejected under s. 13(1)(g) and (i).
Similarly, a period of limitation is prescribed
for the exercise of the rights conferred on the tenants by the last clause of
s. 17(1). This clause provides that the tenants who want to claim the
protection of s. 17(1) must apply within 13 months of the date on which
possession was delivered to the landlord-decree holder. The scheme of s. 17(1)
thus clearly proves 560 that all the relevant clauses have prescribed
respective periods of limitation, and so, it would. be idle to suggest that the
liability imposed on the landlord to occupy the premises possession of which
had been decreed in his favour under s. 13(1)(g) is without any relevant
limitation.
There is another consideration which supports
this conclusion. Section 17(2) provides for a penalty against a landlord who
contravenes the provisions of s. 17(1). This provision lays down, inter alia,
that any landlord who recovers possession on the grounds specified under cl.
(g) or (i) of s. 13(1) and keeps the premises unoccupied or does not commence
the work of erection without reasonable excuse within the period of one month
from the date on which he recovers possession, shall on conviction be
punishable in the manner specified in the said provision. Similar penalty is
imposed on a landlord or other person in occupation of the premises who fails
to comply with the order of the Court under s. 17(1). It is obvious that when
the first clause of s. 17(2) refers to the failure of the landlord either to
occupy or to commence erection of the work without reasonable excuse within the
period of one month, absence of reasonable excuse and the period of one month
apply as much to cases falling under cl. (g) as to cases falling under cl.
(i) of s. 13(1). The plea open to the
landlord that he failed to occupy the premises or he failed to commence the
work of construction within the specified period because of a reasonable excuse
is available to him in both categories of cases and so, absence of reasonable
excuse applies equally to both the said categories. If that is so, the period
of one month which is the crucial point must govern both the categories of
cases. Therefore, in our opinion, the High Court was right in agreeing with the
decision of the District Court that the appellant in the present case had
failed to comply with the first part of s. 17(1) and so, the respondents were
entitled 561 to-an order for possession of the premises in question. The appeal
accordingly fails and is dismissed with costs.
Appeal dismissed.
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