Mongibai Hariram Vs. State of
Maharashtra & ANR [1965] INSC 220 (25 October 1965)
25/10/1965 SARKAR, A.K.
SARKAR, A.K.
DAYAL, RAGHUBAR RAMASWAMI, V.
CITATION: 1966 AIR 882 1966 SCR (2) 322
ACT:
Bombay Rents, Hotel and Lodging House Rates
Control Act (57 of 1947), ss. 13 and 17-Bombay Land Requisition Act (33 of
1948), ss. 4(3) and 6-Room in a building-If "Premises"Eviction of
tenant on ground of landlord's bona fide requirement-If premises could be
requisitioned.
HEADNOTE:
P, the tenant of a room, in a block of
buildings owned by a trust of which the appellants were trustees, left the room
without informing the appellants and leaving K in occupation thereof. The
appellants never recognised K as a tenant. No rent was paid from 1st January
1956. The appellants gave the tenant P a notice to quit and thereafter filed a
suit against P and K for recovery of possession of the room under the Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947 on three grounds,
namely, sub-letting without permission, non-payment of rent and bona fide
requirement the room for their own use and occupation. Evidence was led on the
second and last grounds. An ex parte decree in ejectment was passed and on 30th
April 1959, the appellants obtained possession. On 1st May 1959, K wrote to the
Accommodation Controller that he was evicted and rendered homeless, and the
Controller on September 10, 1959 passed two separate orders under the Bombay
Land Requisition Act, 1948, requisitioning the room by one, and allotting the
room to K by the other. The appellants moved the High Court under Art. 226 for
quashing these orders but were unsuccessful.
In appeal to this Court, it was contended by
the appellants that : (i) Since the appellants obtained an ejectment decree on
the ground that they wanted the room for their own use and they did not intend
to let it out at the time of requisition, the room would not be 'premises'
under s. 4(3) of the Act of 1948 which could be requisitioned; and (ii) the
order of requisition was passed mala fide.
HELD: (i) (By Full Court) : The room was
'premises' within the definition of that word in the Act of 1948 and could be
requisitioned. [327 H; 338 F] Per Sarkar J : The expression "let or
intended to be let separately" in the definition of premises in the Act of
1948 is only applicable to a' part of a building for there is no question of a
whole building being let separately. The words "intended to be let"
in this definition do not refer to any intention to let, actually existing at
the time of the requisition; they have been used to indicate that a part of a
building which had never been let before would not be "premises"
within the Act unless the lessor had intended to let it separately. If it is
proved that the landlord had at any time let or intended to let a part of a
building separately, it would for all time to come be 'premises' within the Act
of 1948. [326 H; 327 D, E] Per Raghubar Dayal and Ramaswami, JJ : The words
'let or intended to be let separately' can apply only to the letting of a part
of building, as rightly, a landlord of a building is not to be forced to let a
part of the building when he is in occupation of it. Therefore, from the date
of the 323 enforcement of the Requisition Act, every building comes within the
expression "premises" and a part of a building comes within the
expression, if it is let or if it is intended to be let separately on that
date. It would be impracticable to decide every time a part of a building fell
vacant, whether the landlord intends or does not intend to let it. [337 G-H;
338 B, E] (ii) Per Raghubar Dayal and Ramaswami, JJ. : The facts that the
allottee had not paid rent previously to the appellants, took various steps to
delay the execution of the decree for ejectment and applied to the
Accommodation Controller for allotment to himself on the day following the
ejectment, do not, in law, make the requisition order mala fide, when the order
was not made on account of any animus against the appellants or for a purpose
for which requisition could not be made. [339 F-H] Requisitioning of premises
for allotment to a person who is homeless is requisitioning for a public
purpose. The allotment to a person who was a tenant of the premises and who
remiss in his duties as a tenant and had been evicted in execution of a decree
of a court, in pursuance of the practice that the first informant of the
existence of a "suppressed vacancy" would be allotted the premises,
is not against law. Moreover, the conditions of allotment of the requisitioned
premises ensure that the landlord would not be put to any further trouble so
far as the collection of rent is concerned. [339 H; 340 B-D] The first part of
s. 13 (1) (g) of the Rent Act refers to persons who receive or are entitled to
receive rents on their own account and not to persons who receive or are
entitled to receive 'rents as a trustee. Such a trusteel and lord can require
the premises under the section for occupation for purposes of the trust, but
since the suit was uncontested, no occasion arose in the ejectment suit for the
court to determine whether reasonable accommodation was available for the
tenant and whether greater hardship would be caused to the landlord if no
ejectment was ordered. If the Government happens to requisition the premises
for the person who had been evicted there from in execution of a decree of a
civil court, it does not mean that the Government is not respecting the decree
of the court and is acting against public interest or against the interests of
administration of justice. [341 A-C; 343 B-C] There is no conflict between the
provisions of s. 6 of the Requisition Act and the provisions of ss. 13 and 17
of the Rent Act and the requisition was valid. [342 C] Under s. 17(1) of the
Rent Act, the court may order the landlord to reallot the premises to the
tenant who had been evicted in case the landlord does not occupy the premises
within a period of one month, or, if the landlord reallots the premises to
another person within a year of the eviction. Since the Requisition Act
provides by s. 6, that the landlord cannot occupy the premises which had become
vacant on the eviction of the tenant within a month of the receipt of the
intimation of vacancy by the State Government, the court will not exercise its
discretionary power of reallotment to the tenant when another enactment by its
language provides for the landlord's non-occupation.
Under s. 17(2), a landlord is liable to
conviction if he keeps the premises unoccupied without reasonable cause or if
he fails to comply with the order passed under s. 17(1).
The non-occupation of the premises within one
month of the ejection of the tenant, when s. 6(1) of the Requisition Act
applies to the premises, will be non-occupation for a reasonable cause and
therefore, there can be no, occasion for a conviction on the ground that the
premises were kept unoccupied. [341 F-G, H; 342 A-B] 324 Further, the
Requisition Act was enacted later than the Rent Act and since no exception from
requisition with respect to premises becoming vacant on the eviction of a
tenant on the ground of bona fide requirement by the landlord had been made,
the Requisition Act would apply to such premises also.
[342 C-E] The fields of operation of the two
Acts are different.
Under the Rent Act, the civil court in
deciding a suit for eviction, simply takes into consideration the needs of the
landlord vis-a-vis the tenant and the grounds of eviction.
Under the requisition Act, the State
Government, when considering the question of requisitioning the premises does
not consider such matters but considers only whether the purpose for which it
is to requisition is a public purpose or not. To hold that the benefit of the
Act cannot be given to persons evicted on the ground that the landlord required
the premises for his own use would not only deprive the evicted person from
getting the premises allotted to himself but would also deprive many other
homeless persons besides some special class of persons, allotments to whom
would clearly come within public purpose. [342 F, G, H; 343 C-D] It is not open
'to the appellants to urge that the premises did not become vacant or were not
vacant when the requisition order was passed, because, a declaration was made
in the requisition order that the premises were vacant and such a declaration
operates as conclusive evidence of the premises being vacant. [339 A-B] The
fact that the allottee was not made a party to the proceedings, is also fatal
to the maintainability of the writ petition. [343 F] Per Sarkar, J.
(Dissenting) : The orders of requisition and allotment passed in this case were
not within the contemplation of the Act. In the circumstances of the case it
has to 'be held that the ejectment decree was passed on the ground mentioned in
s. 13(1)(g) of the Act of 1947, that is to say, the court ordering ejectment found
that the appellants required the room for their own occupation and they were
entititled to it in preference to the defendants P and K. The result of the
orders under the Act of 1948 was to annul the decision of the court granting
the ejectment. It cannot be said that the powers under the Act of 1948 were
intended to be exercised to set at naught the judgment of a court. [329 A-B, D]
If the powers to requisition and allot under the Act of 1948 could be exercised
in a case where an ejectment decree had been passed under s. 13(1)(g) of the
Act of 1947, a conflict would arise between s. 17 of the Act of 1947 and s. 6
of the Act of 1948. This conflict has to be harmonised and the only way to do
so is to say that the Requisition Act does, not apply to, a case where the
landlord has been permitted to recover possession for his own occupation. [330
H; 331 A-B] The Act of 1948 does not contemplate a requisition in vacuo;
there must be a prospective or actually
homeless person in view before an order requisition can be passed. [331 H] The
Act of 1948 does not give larger powers of requisition where the landlord has
failed to give notice of a vacancy as required by s. 6 of that Act. [332 D-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 577 of 1964.
Appeal by special leave from the judgment and
order dated September 13/14th 1960, of the Maharashtra High Court in Appeal No.
14 of 1960.
32 5 A. V. Viswanatha Sastri, B. R. Agarwala,
H. K. Puri, for the appellants.
Purushottam Trikamdas, B. R. K. G. Achar and
R. H. Dhebar, for the respondents.
Sarkar, J. delivered a dissenting Opinion.
The Judgment of Raghubar Dayal and Ramaswami, JJ. was delivered by Raghubar
Dayal, J. Sarkar J. The appellants are trustees of a certain trust which owns a
big block of buildings situate at Matunga in the city of Bombay. The rooms in
this block of buildings are let out to various tenants. One P. S. Nambiar was a
tenant of room No. 26 in this block for a long time. He had left the room
without informing the appellants and having put one K. A. Nambiar in
possession.. It is not known when P. S. Nambiar left. The appellants never
accepted K. A. Nambiar or anyone else as the tenant. No rent. had been paid in
respect of the room since January 1, 1956 which was prior thereto being paid in
the name of P. S. Nambiar.
The appellants terminated the tenancy of P.
S. Nambiar by a notice to quit, expiring on December 31, 1957, and thereafter
on March 26, 1958 filed a suit in the Court of Small Causes, Bombay against P.
S. Nambiar and K. A. Nambiar for recovery of possession of the room, P. S.
Nambiar being sued as the tenant and K. A. Nambiar as the person in occupation
of the room. The grounds on which ejectment was sought were that (1) P. S.
Nambiar had sublet the room without the permission of the appellants, (2) he
had been in arrears with his rent from January 1, 1956 and (3) the premises
were required by the appellants for their own use and occupation. On proof of
any of these grounds an ejectment decree could be passed against the tenant under
the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act,
1947, hereafter referred to as the Rent Act. The defendants could not be
personally served and eventually service of the summons was effected by
affixing it on the room. That was due service of' the summons but the
defendants did not enter appearance to the suit.
Evidence was led on behalf of the appellants
to prove that the rents were in arrear as stated and that they required the
room reasonably and bona fide for their own use and occupation as such
trustees. No evidence appears to have been led as to any subletting by P. S.
Nambiar. So this ground of eviction may be left out of consideration.
An ex parte decree in ejectment was passed in
the suit on August 18, 1958. The execution of that decree was obstructed in
various 326 ways including an application by K. A. Nambiar to set aside the
decree on the ground of non-service of summons which was dismissed by the trial
Court and an appeal from that order also failed. Eventually the appellants
obtained possession of the room on April 30, 1959. On the next day, that is,
May 1, 1959, K. A. Nambiar wrote to the Controller of Accommodation appointed
under the Bombay Land Requisition Act, 1948, stating that he was evicted from
the room in execution of a decree and requesting that the room be requisitioned
and allotted to him under the Requisition Act as he had no other accommodation.
Thereafter, by a notice dated July 11, 1959 the appellants were called upon to
show cause why the room should not be requisitioned under the Act and after
certain enquiries had been made, an order was passed on September 10, 1959
declaring the room to be vacant and requisitioning it and by another order
dated the same day, it was allotted to K. A. Nambiar. The appellants took
certain steps under the Requisition Act in the nature of an appeal to have
these orders annulled but their attempts were unsuccessful.
On September 30, 1959, the appellants moved
the High Court at Bombay under Art, 226 of the Constitution for a writ
directing the State of Bombay and the Accommodation Officer appointed under the
Requisition Act to withdraw the orders of requisition and allotment and also
for a writ quashing these orders. The petition was heard by a learned Single Judge
of the High Court who dismissed it. The appellants then went up to a Division
Bench in appeal against the judgment of the learned Single Judge but in this
appeal also they were unsuccessful. They have now appealed to this Court with
special leave.
On behalf of the appellants it was pointed
out that the premises which could be requisitioned under the Act were defined
as any "building or part of a building let or intended to be let
separately". It was said that where a building or a part of it was not
intended to be let, it would not be premises and the intention to let had to be
determined at the date of the order of requisition. It was, therefore,
contended that as the appellants had obtained an ejectment decree on the ground
that they wanted to occupy the room themselves, they did not intend to let it
out and so, in the absence of such intention at the date of requisition, the
room was not premises within the Act and could not be requisitioned. According
to the appellants the order of requisition was hence bad. This argument does
not seem to me to be well founded. The words "let ,or intended to be let
separately" are only applicable to a part of a building for there is no
question of a whole building being let 327 separately; a whole building is not
joint with anything else separately from which it can be let. That being so, it
seems to me that the words "let or intended to be let, were used only to
indicate that a part of a building is not to be understood as premises capable
of being requisitioned unless the landlord let it or intended to let it
separately from the rest which might be in his occupation. The reason for
treating a part of the building in this way was apparently that it would cause
hardship to a landlord to force him to accept in a part of his house a stranger
as a tenant. A part of building was considered by the statute to be fit for
requisition only when the landlord had out of his free choice let it separately
from the rest or intended so to let it. Such a view would be understandable for
in such a case there would be no question of any hardship on him.
The words "intended to be let" did
not, in my view, therefore refer to any intention to let actually existing at
the time of the requisition. They had been used to indicate that a part of a building
which had never been let before would not be premises within the Act unless the
lessor had intended to let it separately at any time. It would not be taking an
unreasonable view to hold that if it is once proved that the landlord had at
any time intended to let a part separately, it would for all time to come be
premises within the Act, for if once the landlord had wanted to let out the
part, the letting could not cause any hardship to him. If the Act thereafter
did not take any notice of any change in the landlord's mind regarding the
letting of a part, that would only mean that it did not think it right to give
him the luxury of changing his mind from time to time.
That does not seem to me to be an unnatural
interpretation of the Act.
Again, the definition does not say that the
building or a part of it must have been intended to be let at the date of the
requisition. I find no justification either in the context or the intendment of
the Act to warrant the addition of words to that definition to support the
appellant's contention. Furthermore, if the words "intended to be
let" were meant to refer to an intention at the time of requisition, it
had also to be held that the word "let" meant that the premises to be
requisitioned were let at the time of requisition. That would, of course, be
absurd for what could be requisitioned under the Act was what was not let and
not occupied by a landlord or a tenant, namely, vacant premises. I am,
therefore, unable to agree that the room was not "premises" within the
definition of that word in the Act. The order of requisition is not open to
challenge on the ground that it related to premises as defined in the Act.
3 28 That however does not, in my opinion,
conclude the matter.
I confess that this case has caused me great
anxiety but having given it the utmost thought that I could, I have not been
able to persuade myself that the orders that were made in this case can be
sustained. I think that though they may be within the letter of the Act, they
are not within its spirit or intendment. In my view, the requisition made in
this case was not for a public purpose contemplated by the Act nor was the
power of requisition conferred by the Act intended to be exercised in the
circumstances that prevailed. There has been in a legal sense, a mala fide use
of the powers conferred by it. I proceed to set out the reasons which have led
me to this view. I should state here that this aspect of' the matter had not
been presented to the High Court for its consideration.
Under the Act premises could be requisitioned
only for a public purpose. Public purpose would no doubt include the purpose of
finding a shelter for a homeless person. This has indeed been held by this
Court in The State of Bombay v. Bhanji Munji(1). A person evicted from a
premises in his occupation may be a homeless person. Now in the present case
the requisition had been made for K. A. Nambiar. He had no doubt been evicted
from the premises in question. I will assume he had no other home in which he
could take shelter and that he was a homeless person. But the question still
remains whether he was a homeless person within the contemplation of the Act,
that is, whether his requirement was a public purpose within the Act. I do not
think he was.
Now S. 13(1)(g) of the Rent Act provides that
an order for eviction from premises may be made against a tenant where the
landlord requires them reasonably and bona fide for his own occupation. Section
12 of this Act provides for eviction for non-payment of rent. As I have said
earlier, the appellants had asked for eviction on both these grounds and had
given evidence in support of them. It is not necessary to consider the ground
of nonpayment of rent for the purposes of this judgment for it does not annul
the other ground of eviction and does not affect the order of eviction made
under S. 13(1)(g). With regard to S. 13(1)(g) the appellants' case was that
they required possession of the room for storing building materials of the
trust and also for their occupation when they came from Calcutta where they
resided to Bombay to look after the properties of the trust of which they were
trustees as they had no residential accommodation in Bombay. It has not. been
disputed that this, if proved, would satisfy S. 13(1)(g). They (1) [1955] 1
S.C.R. 777.
329 gave evidence to prove this requirement.
This they repeatedly stated in their affidavits and it has not 'been denied by
the respondents. That evidence was unchallenged, as it must be held in view of
the proceedings in the ejectment suit earlier referred to, that the tenant and
occupier had deliberately kept away from the hearing of the ejectment suit. It
follows, therefore, that the ejectment must have been ordered also on the
ground that the appellants wanted the room for their occupation. It is true
that there was no judgment in the ejectment suit but only an order for,
ejectment. without stating the reasons on which it was based but that cannot
affect the rights of the appellants. The omission of the Court to state the
reasons for its order would not show that the order had' not been passed on the
ground of the bona fide personal requirement of the premises by the landlord.
The result of this-order is that the Court
acting under the Rent Act found after due trial that the appellants were also
homeless persons and between them and the defendants they had a greater right
to occupy the room: see s. 13 (2). The result of the re-question order was to
annul this decision.
It does not seem to me that powers under the
Requisition Act were intended to be exercised to set at naught the judgment of
a Court and restore possession to the evicted tenant. In my opinion, in the
circumstances prevailing, the premises could not be requisitioned at all for if
they were requisitioned even for putting a third person in possession the
result might be that the evicted tenant rendered homeless for no fault of his
own would have to go without a shelter while the third person to whom the
premises were allotted was provided with a home. It would be unnatural to think
that the Act intended such an anomalous situation. 1, therefore, think that the
requisition,. order was outside the Act and invalid.
This view finds some support from the
judgment of the Appellate Bench of the High Court. It was there said that if
the premises had been allotted to K. A. Nambiar though he was in arrears with
the rent and for that reason evicted, then it would have to be held that the
orders of requisition and allotment "were not free, from mala fide".
The learned Judges however held that K. A. Nambiar had no liability for rent as
he was not the tenant, that liability being only that of P. S. Nambiar who was
the tenant, and, therefore.
the orders could not be said to have been
made male fide.
With respect, I am unable to see what difference
the fact that K. A. Nambiar was not liable for rent and could not be said to
have been evicted for non-payment of rent by him, made. Admittedly, he was in
occupation of the premises all along. He 330 knew that rents had not been paid
and that he was occupying the premises free. Is not that fact as strong to show
mala fides as the fact, if it had been so, that he was liable to pay rent and
did not pay ? It seems to me impossible that the Act contemplated a requisition
to restore possession to him. It is not necessary however to pursue this aspect
of the matter further. The point that I wish to make is that the learned Judges
of the Appellate Bench of ,the High Court thought it a mala fide application of
the Act to allotpremises to a tenant who had been evicted from them on the
ground that he had not paid rent. I find no distinction between that case and
one allotting premises to a person who has been directed by a ,court to be
evicted on the ground that the landlord is entitled to their possession in preference
to the person in whose right he was there. In my view, the Requisition Act was
not intended to be utilised for putting the evicted person back in possession
in either case; in each case the requisition would be mala fide. The
requisitioning authorities were fully aware of all the facts of the litigation
between the appellants and the Nambiars and I cannot help wondering how
notwithstanding that they thought fit to make the order of requisition. I do
not wish to say that they deliberately set the decree of court at naught but I
am clearly of opinion that they completely misconceived their powers under the
Requisition Act.
There is yet another aspect of the case which
has led me to the view that the requisition order was outside the Act. I have
already stated that the Rent Act provides by s. 1 3 (1) (g) that an order of
eviction may be made against a tenant where the premises 'are reasonably and
bona fide required by the landlord for his own occupation. Section 17 of the
Act states that where a decree for eviction has been passed on such a ground I
have held that the decree for eviction in the present case was passed on that
ground-and the premises are not occupied within a period of one month from the
date the landlord recovers possession, the landlord is liable to a penalty of
imprisonment or fine and, what is important, the Court may also on the
application of the evicted person order the landlord to place him in occupation
of the premises on the original terms and conditions. Now s. 6 of the Requisition
Act says that when premises become vacant as a result of the tenant having been
evicted, the landlord shall give intimation of the vacancy to the prescribed
authority within seven days and he shall not occupy the premises or permit them
to be occupied by anyone before giving the intimation of vacancy and also for
one month from the date when the intimation given is received by the authority.
It would appear, therefore, that a conflict will arise between the two Acts if
both were applicable at the same 331 time in a case where the tenant has been
evicted on the ground that the landlord required the premises for personal
occupations under one the landlord has to occupy the premises within a month
while under the other he cannot occupy them for a month or longer. This
conflict must be harmnonised and the only way to, do so is to say that the
Requisition Act does not apply to a case: where the landlord has been permitted
to recover possession for his own occupation. This would leave both the Acts a
fair field on which to operate. Otherwise the provision of the Rent Act
requiring the landlord to occupy the premises earlier referred to would become
completely ineffective. I may also add that the Rent Act is a special law
dealing with the relations between landlords and tenants while the Requisition
Act is a general Act dealing with the requisition of all vacant premises. To
give the Requisition Act preference over the Rent Act would be to hold that a
general statute overrides a special one. This would be against the accepted
canons of interpretation. To my mind, this affords a further ground for saying
that it was not intended that the Requisition Act would apply to such a case.
The present is, precisely a case of the same kind.
A suggestion was made on behalf of the
respondents that the, order of requisition and the order of allotment were
separate and that being so the requisition order would not become invalid
because the allotment had been made to a person to whom it could, not be made
under the Act. I should at once state that in the view that I have earlier
taken, the question does not arise for in, my view the requisition order made
in this case was itself bad for,,. no requisition could be made in a case where
a landlord has been,, held entitled by court to evict the tenant as he requires
the premises for his personal occupation. I will also consider the argument
apart from this. aspect of the case. I do not think that the, two orders were
separate.
Assume however that they were so. Even then
ex concess is the order of allotment is outside the Act and therefore bad.
If both were good or both were bad, it would
be to no purpose to discuss whether there were two orders or one.
The allotment order has, therefore, in any
event, to go. If the, allotment order was unjustified, the requisition order
would also fall, for it is not said that there was any homeless person other
than K. A. Nambiar to whom the allotment had been made, for whom it was
necessary to requisition the premises. I do not think the Act contemplates a
requisition in vacuo; there must be a public, that is to say, a prospective or
actually homeless person in view. before a requisition can be made. I think
that there are observa332 tions in Bhanji Munji's case(1) supporting that view.
It is not in dispute that in this case there was no homeless person prospective
or actual to the knowledge of the requisitioning authorities who required
accommodation, except K. A. Nambiar. He had given intimation of the vacancy and
had at the same time requested that the room be requisitioned and allotted to
him. Both the orders were besides made on the same day. It is obvious that the
two orders are connected and, therefore, really one. The contention that the
orders were separate is, to my mind, too naive to be accepted. There is in the
present case, therefore, really one order and that must go.
In the course of the hearing in this Court
our attention was repeatedly drawn to the fact that this was a case of a
"suppressed vacancy". What was meant by "suppressed
vacancy" was that the appellants had failed to give notice of the vacancy
as required by S. 6 of the Requisition Act.
On the facts, it has to be held that the
appellants had not given the necessary notice. But I do not see that makes any
difference to the present case. The Requisition Act nowhere says that larger
powers of requisition may 'be exercised where the required notice has not been
given. Those powers are the same whether notice has or has not been given. All
that the Act says is that on the failure to give notice the landlord would
incur a penalty by way of imprisonment or fine : see S. 6(5). 1 find nothing in
the case of Bhanji Munji(1) contrary to this view or contrary to anything that
I have said in this judgment.
I would for these reasons allow the appeal
with costs through-out.
Raghubar Dayal, J. The appellants, in this
appeal by special leave, are the trustees-owners of Kutchi House situate at
Brahmanwada Road, Matunga, Bombay. They purchased the -property in 1948.
One P. S. Nambiar was at the time tenant in
occupation of room No. 26 on the second floor of the Kutchi House. He paid rent
at Rs. 20.68 per month exclusive of electricity.
He did not pay rent from January 1, 1956. He
left the premises sometime without informing the appellants and after putting
K. A. Nambiar in possession of the room. In 1958 the appellants sued for (1)
[1955] 1 S.C.R. 777.
33 3 ejectment of P. S. Nambiar and K. A.
Nambiar from room No. 26 in the Court of Small Causes, Bombay, on grounds :
(a) that the defendant P. S. Nambiar has
sublet and / or assigned his interest in the suit premises without the
permission of the plaintiffs and in breach of the provisions of Bombay Act
57/47;
(b) that the said defendant No. 1 has been in
arrears of rent and/or compensation from 1st January, 1956 at the rate of Rs.
20.68 exclusive of electricity charges; and (c) that the premises are required
by the plaintiffs for their own use and occupation bona fide and reasonably.
On any of these grounds the landlord could
evict the tenant in view of the provisions of S. 13 of Act 57/47 viz.'. the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter
called the Rent Act). The proceedings were to be taken in the Court of Small
Causes, Bombay, in view of s. 28 of that Act.
The suit was decreed ex parte on August 5,
1958. The decree directed the defendants to vacate the room by August 16, 1958.
The decree-holders actually got possession of the room on April 30, 1959 as
proceedings were taken against K. A. Ramakrishnan who had obstructed the
execution of the warrant of possession on September 30, 1958 and as K. A. Nambiar
also took proceedings for the setting aside of the ex parte decree.
On May 1, 1959 K. A. Nambiar applied to the
Controller of Accommodation for requisitioning the premises, room No. 26, under
the Bombay Land Requisition Act, 1948 (Act XXXIII of 1948), hereinafter called
the Act, and for allotting it to him as he had been evicted there from on April
30, 1959. On July 1 1, the Accommodation Officer issued a notice to the
appellants to show cause why the room be not requisitioned under the Act. The
appellants showed cause and, by his letter dated August 17, 1959, the
Accommodation Officer informed the appellants that on the evidence available to
him he had come to the conclusion that it was a case of suppressed vacancy.
Against this order of the Accommodation Officer the appellants appealed to the
Government of Bombay.
334 On September 10, 1959 the Government of
Bombay issued the requisition order. It reads :
"Whereas. on inquiry it is found that
the premises specified below had become vacant on the 30th day of April, 1959.
Now, therefore, in exercise of the powers
conferred by clause (a) of sub-section (4) of section 6 of the Bombay Land
Requisition Act, 1948 (Bom. XXXIII of 1948), the Government of Bombay, is
pleased to declare that the said premises had become vacant after 4th December,
1947 and to requisition the said premises for a public purpose, namely, for
housing a homeless person.
Premises Room No. 26, 2nd Floor, Kutchi House
etc.
By the order and in the name of the Governor
of Bombay.
Sd/Accommodation Officer." On September
12, room No. 26 was allotted to K. A. Nambiar.
He was required to pay to the land-lord on
behalf of the Government, in advance, on or before the 10th day of every month,
compensation at the rate of Rs. 20.68 per month in respect of the premises and
to send to the Controller of Accommodation a certificate of such payment
counter-signed by the land-lord on or before the 15th day of each month.
The appellants then addressed an application
to the Revenue Minister on September 14, 1959. On September 25, the Deputy
Minister of Revenue interviewed the representatives of the appellants in the
presence of K. A. Nambiar and the Controller of Accommodation.
On September 30, the appellants filed a
petition in the High Court of Bombay against the State of Bombay and the
Accommodation Officer, Bombay, praying inter alia for the issue of a writ of
mandamus under art. 226 of the Constitution against the respondents directing
them to cancel or withdraw the orders of requisition and allotment. The
petition was contested by the respondents. The learned Single Judge who heard
the petit I ion held 335 that room No. 26 came within the definition of
'premises' and that the requisition order was not mala fide. The contention to
the effect that the appellants had given necessary intimation of vacancy by
their letter dated May 3, 1959, was not pressed in view of the denial of the
receipt of any such notice by the Government. The other contention about the
requisition order being against the pronounced policy of the Government was
rejected. The result was that the appellants' petition was dismissed.
The appellants then filed an appeal under the
Letters Patent. This appeal also failed. The appellate Bench agreed with the
findings of the learned single Judge on the question of room No. 26 being
'premises' within the definition of that word in the Act and on the requisition
order being not made mala fide. The contention that there was no statutory
vacancy in respect of room No. 26 which could have been the subject matter of
requisition by the respondents was not pressed. It is against this order of the
appellate Bench of the High Court that this appeal has been filed.
Besides the two contentions urged before the
High Court, it has also been contended for the appellants that the premises
were not vacant as contemplated by the Act and that therefore they could not
have been requisitioned.
The requisition order is made under s. 6(4)
of the Act.
Sub-s(1) of s. 6 reads If any premises
situate in an area specified by the State Government by notification in the
Official Gazette, are vacant on the date of such notification and wherever any
such premises are vacant or become vacant after such date by reason of the
landlord, the tenant or the subtenant, as the case may be, ceasing to occupy
the premises or by reason of the release of the premises from requisition or by
reason of the premises being newly erected or reconstructed or for any other
reason the landlord of such premises shall give intimation thereof in the
prescribed form to an officer authorised in this behalf by the State
Government." Sub-s. (2) requires the landlord to give an intimation to the
State Government by registered post within 7 days of the premises become vacant
or becoming. available for occupation. Sub-s. (3) prohibits the landlord
without the permission of the State Government to let, occupy or permit, to be
occupied such premises before giving the intimation and for a period of one
month from 2 Sup CI/668 336 the date on which the intimation is received by the
State Government. Sub-s. (4) reads :
"Whether or not an intimation under subsection
(1) is given and notwithstanding anything contained in section 5, the State
Government may by order in writing(a) requisition the premises for any public
purpose and may use or deal with premises, for any such purpose in such manner
as may appear to it to be expedient;.
Provided that where an order is to be made
under clause (a) requisitioning the premises in respect of which no intimation
is given by the landlord, the State Government shall make.
such inquiry as it deems fit and make a
declaration in the order that the premises were vacant or had become vacant, on
or after the date referred to in sub-section (1) and such declaration shall be
conclusive evidence that the premises, were or had so become vacant."
Sub-s. (5) provides for penalty for failure to give the necessary intimation
required by subs. (2). Explanation to s. 6 reads "For the purposes of this
section(a) premises, which are in the occupation of the landlord, the tenant or
the sub-tenant, as the case may be, shall be deemed to be or become vacant when
such landlord ceases to be in occupation or when such tenant or subtenant
ceases to be in occupation upon termination of his tenancy, eviction,
assignment or transfer in any other manner of his interest in the premises or
otherwise, notwithstanding any instrument or occupation by any other person
prior to the date when such landlord tenant or sub-tenant so ceases to be in
occupation;
(b) premises newly erected or reconstructed
shall be deemed to be or become vacant until they are first occupied after such
erection or reconstruction." It is true that the State Government can
requisition premises ,Only. 'Premises' is defined in cl. (3) of S. 4.
The relevant portion of the definition is
premises' means any building or part of a building let or intended to be let
separately." 3 3 7 The contention for the appellants. is that the
appellants had sought and got decree for the ejectment of P. S. Nambiar and K.
A. Nambiar inter alia on the ground that they required the premises reasonably
and bona fide for occupation by themselves, a ground mentioned in s. 13 (1) (g)
of the Rent Act, that room No. 26 could not be said to be intended to be let on
the ejectment of the Nambiars on April 30, 1959 and therefore did not come
within the term 'premises'. The argument is that the intention about the
letting of the building or part of it is not to be determined once for all when
it is let but is to be determined on each occasion the part of the building
falls vacant. If the same intention exists then, the part of the building will
answer the definition of premises, but if such an intention does not exist and
the landlord intends to occupy the building himself or even does not intend to
let it, the, building would not come within the definition of the, word
'premises'. We consider this argument unsound.
If accepted, the purpose of the Act will be
mostly defeated.
While the object of the Rent Act was to
control the rent payable by a tenant and his eviction from the premises, the
object of the Act was to requisition premises for making them available to the
persons in need of accommodation.' Both sections 5 and 6 empower the State
Government to requisition land or premises for a public purpose. The Government
has to have complete control over the buildings from the time the requisition
Act came into force, so that it could effectively meet the requirements of the
persons in need of accommodation. Such a control has been given to the
Government by the provisions of the Act.
The word 'premises' means, as already stated,
any building or part of a building let or intended to be let separately.
It has been urged for the appellant that the
expression 'let or intended to be let separately' govern both the word
'building' and the expression part of a building'. We are of the view that this
is not really so and that this expression governs only the clause 'part of a
building'.
Intended to be let separately' cannot have
any reasonable meaning with. reference to a building. There is no question of
its being intended to be let separately. It is to be let or not to be let. 'Let
Or intended to be let separately' can apply only to the letting of a part of a
building as rightly a landlord of a building is not to be forced to let a, part
of the building when he be in occupation of it. It follows then that all
buildings, irrespective of the fact whether they were let or were intended to
be let at the time the Act came into force came within the expression
'premises' and therefore could be requisitioned by the Government if the
requirements of 338 SS. 5 and 6 were satisfied. If the buildings come under the
control of the Government from the date of the enforcement of the Act, there is
no reason why part of a building which was let or which was intended to be let
separately on such a date be not thereafter under the control of the Government
for the purposes of the Act. It would be impracticable to decide every time a
part of a building fell vacant, whether the landlord intends or does not intend
to let it. It appears that the Act contemplated every building to be available
for letting whenever it fell vacant be it in the occupation of the tenant or of
the landlord at the time the Act came into force, as sub-s. (1) of S. 6
contemplates premises becoming vacant after the date of the notification by the
State Government under that section by reason of the landlord ceasing to occupy
premises or by reason of the release of the premises from requisition. The
premises on the landlord's ceasing to occupy them, become vacant and therefore
subject to an order of requisition by the State Government. So long as the
landlord was occupying the building or part of a building, it would not come
within the definition of 'premises' if the argument for the appellants that the
intention to let must be determined on each occasion of a building or part of a
building falling vacant.
The expression 'premises' in S. 6(1) of the
Act clearly contemplates buildings in the occupation of the landlord, buildings
which were neither let nor could possibly be said during the period of
occupation to be intended to be let.
We are therefore of the view that from the
date of the enforcement of the Act, every building comes within the expression
'premises' and that a part of a building comes within the expression if it is
let or if it is intended to, be let separately on that date. Room No. 26, which
had been let, was 'premises' within the meaning of that term in the Act. The
fact that the appellants got the Nambiars ejected from room No. 26 on the
ground that they themselves reasonably and bona fide required the premises for
their use and intended to occupy it, does not make room No. 26 cease to be
'Premises'.
The second contention about the premises
being not vacant when requisitioned has no force. There is no doubt that the
Government can requisition premises which are vacant. Subs. (2) of S. 6
requires the landlord to give notice of the vacancy of the premises within a
week of its falling vacant.
If such notice is received and the Government
requisitions the building within a month of receiving the notice, no question
about the vacancy of the premises can arise for determination.. If no such
intimation is given by the landlord. the, proviso to cl. (a) of sub-s. (4) of
S. 6 33 9 requires the State Government to make such enquiry as it deems fit
and make a declaration in the order of requisition itself that the premises
were vacant or had become, vacant on or after the date of the notification
under sub-s. (1) of s. 6. Such a declaration is made conclusive evidence of the
premises being vacant or having become vacant. Such a declaration is made in
the requisition order dated September 10, 1956 requisitioning the premises in
suit. It is therefore not open to the appellant to urge successfully that the
premises in suit did not become vacant or were not vacant when the requisition
order was passed.
It may be further mentioned that the premises
became vacant in view of sub-s. (1) of S. 6 and explanation to s. 6 when the
tenant ceased to occupy it due to eviction in execution of the decree secured
by the appellant. The premises became vacant on April 30, 1959. The act that
the appellants secured the eviction of P. S. Nambiar and K. A. Nambiar inter
alia on the ground that they required the, premises for their use, does not
affect the question of the premises, becoming vacant on April 30. Even if the
appellants had actually occupied the premises after April 30, 1959, of which
there is no good evidence on record, the fact remains that the premises had
become vacant on the eviction of the tenant. In view of these considerations,
we reject the second contention.
The other contention is that the requisition
order was made alia fide. There is no allegation that the State Government is
in any way interested in K. A. Nambiar in whose favour the allotment order was
made after the requisitioning of the premises. Mala hides are alleged merely on
the ground that the premises were requisitioned for allotting them to, K. A. Nambiar
who had illegally occupied them when P. S. Nambiar ceased to occupy them, had
not paid the rent to the landlords-appellants, took various steps to delay the
execution of the decree for ejectment secured by the landlords-appellants and
applied to the Accommodation Officer for allotment of the, house on the day
following the ejectment. These circumstances, do not, in law, make the
requisition order mala fide when the order was not made on account of any
animus against the appellants or for a purpose for which requisition could not
have been made.
Sub-s. (4) of s. 6 empowers the State
Government to requisition premises for a public purpose. It has, been held that
requisitioning the premises for allotment to a person who is homeless i.e., who
has no premises to occupy, would be requisitioning for a 340 public purpose,
vide The State of Bombay v. Bhanji Munji(1) where this, Court said at p. 785 :
"If therefore a vacancy is allotted to a
person who is in fact houseless, the purpose is fulfilled." It may not
appear very right, on grounds of sentiment and propriety, that a tenant who has
not behaved properly towards the landlord and had been remiss in his duties as
a reasonable tenant be allotted the same premises after he had been evicted in
execution of a decree passed by a Court of law in pursuance of the practice
that the first informant of the existence of a suppressed vacancy would be
allotted those premises but allotment to such a person is not against the law.
One homeless person is, as good as another. The conditions of allotment of
requisitioned premises ensure that the landlord would not be put to any further
trouble so far as the collection of rent is concerned.
Section 8B of the Act empowers the State
Government to realise the dues which the allottee has to pay and has failed to
pay as arrears of land revenue. The allotment order, Exhibit J, dated September
12, 1959, required the allottee to deposit a certain sum by way of security for
the due observance of the terms and conditions subject to which the allotment
was made. It also required the allottee to pay to the landlord in advance, on
or before the 10th day of every month, compensation at the rate of Rs. 20.68
per month in respect of the premises. The allotment order is subject to some
other conditions also which, in the ultimate analysis, enures to the benefit of
the landlord.
It has been urged that 'homeless person' does
not include one who has been evicted on the ground that the landlord requires
the premises for his own use and occupation as the decree for ejectment on such
a ground can be passed only if the Court is satisfied that having regard to the
circumstances of the case, including the question whether other reasonable
accommodation will be available for the landlord or the tenant, greater
hardship would not be caused by passing the decree than by refusing to pass it.
Section 1 3 (1) (g) of the Rent Act entitles.
the landlord to recover possession of the premises if the Court is satisfied
that the premises are reasonably and 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 (1) [1955] 1 S.C.R. 777.
34 1 charitable trust that the premises are
required for occupation for the purposes of the trust. It is open to doubt
whether a trusteelandlord, as the plaintiffsappellants are, can be said to
require the premises for, occupation for himself. The first part of s. 1 3 ( 1
) (g) appears to contemplate persons who receive or are entitled to receive
rents on their own account and not to persons who receive or are entitled to
receive rents as a trustee. A trustee-landlord can require the premises under
s. 13(1)(g) for occupation for purposes of the trust. The trustee landlord
himself need not be a homeless person. No occasion arose in the ejectment suit
for the Court to determine whether reasonable accommodation was available for
the tenant and whether greater hardship would be caused to the landlord if no
ejectment be ordered as the suit was uncontested.
The provisions of s. 13 (2A) of the, Rent Act
show that the needs of the armed forces of the Union or their families get
precedence over the needs of the landlord. The needs of the landlord therefore
are not such a controlling factor as to over-ride the provisions of the Act if
the requisition of the premises in suit comes within them. Requisition under
the Act is for a public purpose and there seems to be no good reason why the
needs of the landlord be not deemed subservient to the requirements of public
purpose as judged by the State Government.
Another ground for the non-applicability of
the Act to such ejected person, is urged on the basis of the provisions of s.
17 of the Rent Act. Sub-s. (1) of s. 17 empowers the Court to order the
landlord to reallot the premises to the tenant who had been evicted there from
in case the landlord does not occupy the premises within a period of one month
or if the landlord reallots the premises to another person within a year of the
tenant's eviction. The Court has a discretion to pass such an order on the
application of the tenant. If the Act provides by s. 6 that the landlord cannot
occupy the premises which had become vacant on the eviction of the tenant
within a month of the receipt of the intimation of vacancy by the State
Government, there is no conflict between that provision and the discretionary power
vested in the Court under sub-s. (1) of s. 17. The Court, undoubtedly, cannot
exercise such a discretionary power when another enactment by its language
provides for the landlord's not occupying the premises for a period in excess
of a month. Under sub-s. (2) of s. 17, a landlord is liable to conviction if he
keeps premises unoccupied without reasonable cause or if he fails to comply
with the order passed under sub-s. (1) of s. 17. No question of conviction in 3
4 2 the latter circumstances arises if as indicated earlier the Court will not
pass an order of re-allotment to the evicted tenant in case the premises are
subject to the provisions of s. 6 of the Act. The non-occupation of the
premises within one month of the ejection of the tenant on the ground that the
premises are situate in an area covered by the notification under S. 6(1) of
the Act will be non-occupation of the premises for reasonable cause and
therefore there can be no. occasion for a conviction on the ground that the premises
were kept unoccupied within a period of one month from the date of recovery of
possession.
We do not therefore consider that there is
any real conflict between the provisions of s. 6 of the Act and the provisions
of ss., 13 or 17 of the Rent Act.
It is also to be noticed that the Act was
enacted later than the Rent Act. The legislature is presumed to know the
provisions of the Rent Act. It did not make an exception from requisition with
respect to premises becoming vacant on the eviction of a tenant on the ground mentioned
in S. 1 3 ( 1) (g) of the Rent Act. On the contrary, not only sub-s. (1) of S.
6 speaks of the vacancy of the premises on a tenant ceasing to occupy them but
the Explanation to S. 6 clearly states that the premises which are in the
occupation of a tenant shall be deemed to become vacant when such tenant ceases
to be in occupation by eviction. An exception could have been made in case of
evictions for a particular reason, such as in cl. (g) of sub-s. (1) of s. 13 of
the Act. The legislature made no such exception.
The fields of operation, of the two Acts, the
Rent Act and the Act, are different. The Rent Act deals with the question
arising between the landlord and the tenant on account of the incidents of
tenancy, while the Act deals with the necessities of a public purpose as
determined by Government in a particular area for which a notification under
sub-s. (1) of S. 6 has been issued, keeping in mind the interests of the
land-lord also.
The Civil Court, in deciding a suit for
eviction, simply takes into consideration the needs of the landlord vis-a-vis
the tenant and the grounds of eviction. It does not take into consideration the
requirements of any public purpose.
It adjudicates between the rights of the
landlord and the tenant in accordance with the statutory provisions of the Rent
Act. The State Government, on the other hand, when considering the question of
requisitioning the premises under sub-s. (4) of S. 6 does not consider such
matters 3 4 3 but considers only whether the purpose for which it is to
requisition the premises is a public purpose or not. If it is satisfied that it
requires the premises for a public purpose, it has not to consider the
considerations affecting the landlord except when the landlord applies for
permission under s. 6(3) of the Act. It has certainly no occasion to consider
the interests of the tenant as the premises can be requisitioned only when they
are vacant or are deemed vacant in view of somebody occupying it in
contravention of the provisions of the Act. If the Government happens to
requisition the premises for the person who had been evicted there from, in
execution of a decree of a civil Court, it do is not mean that the Government
is not respecting the decree of the Court and is acting against public interest
or the interests of administration of justice.
To hold that the benefit of the Act cannot be
given to persons evicted on the ground that the landlord required the premises
for his use would not only deprive the evicted person from getting the premises
allotted to himself but would also deprive many other homeless persons besides
some special class of persons allotments to whom would clearly come within
public purpose. Merely because there is a possibility of the evicted person
getting allotted the premises he had been evicted from, does not appear to us
to be good reason for holding that the provisions of s. 6 of the Act do not
apply to the requisitioning of premises when the premises became vacant on the
eviction of a tenant by a Civil Court on the ground that the landlord required
the premises for his own use.
K. A. Nambiar is no. party to these
proceedings and this should also prove fatal to the writ petition by the
appellants when the appellants seek the quashing of the order of requisition
and the order of allotment to K. A. Nambiar.
We therefore agree with the High Court that
the requisition order cannot be said to be mala fide. The result will be that
the appeal fails and is dismissed with costs.
ORDER In accordance with the opinion of the
majority the appeal is dismissed with costs.
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