Hameedia
Hardware Stores, Represented by its Partner S. Pee Vs. B. Mohan Lal Sowcar
[1988] INSC 88 (29
March 1988)
Venkataramiah,
E.S. (J) Venkataramiah, E.S. (J) Ojha, N.D.
(J)
CITATION:
1988 AIR 1060 1988 SCR (3) 384 1988 SCC (2) 513 JT 1988 (1) 664 1988 SCALE
(1)615
CITATOR
INFO : D 1989 SC 751 (9) RF 1991 SC2160 (18) RF 1992 SC2166 (3)
ACT:
Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960 Whether it is necessary for a
landlord who institutes a petition under section 10 (3)(a)(iii) thereof to
establish that his requirements is bona fide or not.
HEAD NOTE:
% The
respondent's brother was carrying on his business in the front portion of the
ground floor of the premises in question, which belonged to the father of the
respondent.
The
appellant purchased the said running business from the brother of the
respondent. After purchasing the business, the appellant became a tenant under
the father of the respondent. In the rear portion of the ground floor of the
premises, one Mrs. Janaki Ammal was residing as a tenant.
Mrs. Janaki
Ammal vacated the said residential portion and the appellant took that portion
also on rent from the father of the respondent. The ownership of the premises
in question was transferred in favour of the respondent by his father.
On
9.6.1982, an agreement was entered into in respect of both the portions
specifying that the lease should remain in force till 8.5.1983. After the
expiry of the said period, the respondent instituted a petition for eviction of
the appellant in the Court of the Controller under section 10(3)(a)(iii) of the
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, on the ground that the
premises in question were needed by his wife for carrying on her business which
she was carrying on somewhere else. The appellant contended inter alia that the
requirement of the wife of the respondent was not bona fide. The Controller
dismissed the petition, holding that the tenancy in question was in respect of
both the residential and non-residential portions and the respondents could not
seek eviction of the appellant as the major portion of the demised premises was
of residential character. Aggrieved by the decision of the Controller, the
respondent preferred an appeal before the Appellate Authority. The Appellate Authority
dismissed the appeal. The respondent filed a revision petition before the High
Court. The High Court allowed the revision petition holding that it was not
necessary for the respondent to establish that his requirement was bona fide as
the question of the bona fides of a landlord's requirement did not 385 arise in
a case under section 10 (3)(a)(iii) of the Act. It, however, held the claim of
the respondent to be bona fide.
Aggrieved
by the decision of the High Court, the appellant filed this appeal before this
Court for relief by special leave.
Allowing
the appeal, the Court, ^
HELD:
The crucial question which arose for consideration in this case was whether a
landlord, who sought eviction of a tenant from a non-residential building
(other than a non-residential building used for keeping a vehicle or adapted
for such use) under section 10 (3)(a)(iii) of the Tamil Nadu Buildings (Lease
and Rent Control) Act, 1960 (the Act) was required to prove that he required
the said building for his own use or for the use of any member of his family
bona fide. [390C-D] The Act was enacted to amend and consolidate the law
relating to the regulation of the letting of residential and non-residential
buildings and the control of the rents of such buildings and the prevention of
unreasonable eviction of the tenants therefrom in the State of Tamil Nadu. The Act is an ameliorating piece
of legislation. Similar Acts are in force in almost all the States in India. The provision in question-section
10(3)(a)(iii)-has to be examined against this background. [390D;392G] Having
regard to the pattern in which clause (a) of sub-section (3) of section 10 of
the Act is enacted and also the context, the words "if the landlord
required it for his own use or for the use of any member of his family",
found in sub-clause (ii) of section 10 (3)(a) of the Act, have to be read also
into sub-clause (iii) of section 10 (3)(a) of the Act. Subclauses (ii) and
(iii) both deal with the non- residential buildings. They could have been
enacted as one sub-clause by adding a conjunction 'and' between the said two
sub-clauses, in which event the clause would have read thus: 'in case it is a
non-residential building which is used for the purpose of keeping a vehicle or
adapted for such use, if the landlord required it for his own use or for the
use of any member of his family and if he or any member of his family is not
occupying any such building in the city, town or village concerned which is his
own, and in case it is any other non-residential building, if the landlord or
any member of his family is not occupying for purposes of a business which he
or any member of his family is carrying on, a non-residential building in the
city, town or village concerned which is his own.' If the two sub- clauses are
not so read, it would lead to an absurd result.
The
non-residential building referred to in sub-clause (ii) is a building used for
the purpose of keeping a vehicle or adapted for such use, and all other non-
386 residential buildings fall under sub-clause (iii). The State legislature
cannot be attributed with the intention that it required a more stringent proof
by insisting upon proof of bona fides of his requirement or need also when a
landlord is seeking eviction of a tenant from a garage than in the case of a
non-residential building occupied by a large commercial house for carrying on
business. It is no doubt true that the Court, while construing a provision
should not easily read into it words not expressly enacted, but having regard
to the context in which a provision appears and the object of the statute in
which the said provision is enacted, the Court should construe it in a
harmonious way to make it meaningful. [398C-H; 399A] In the present case, by
insisting on the proof of the bona fide of the requirement of the landlord, the
Court is not doing any violence to the statute nor embarking upon any
legislative action. The Court is only construing the words of the statute in a
reasonable way having regard to the context. [399E] By merely proving that the
premises in question is a non-residential building and that the landlord or any
member of his family is not occupying, for the purpose of a business which he
or any member of his family is carrying on, any residential building in the city,town
or village concerned which is his own, the landlord cannot in the context in
which section 10 (3)(a)(iii) appears, get a tenant evicted. He must show in
view of clause (e) of section 10 (3) that his claim is bona fide. The word
'claim' means "a demand for something as due", or "to seek or
ask for on the ground of right", etc. In the context of the Rent Control
Law, which is enacted for the purpose of giving protection to the tenants
against unreasonable evictions and for the purpose of making equitable
distribution of buildings amongst persons who are in need of them, in order to
prove that his claim is bona fide, a landlord should establish that he deserves
to be put in possession of the premises which is in the occupation of a tenant.
Any decision on the question whether a landlord deserves to be put in
possession of a premises in the occupation of a tenant should naturally depend
upon the bona fides of the landlord's requirement or need. The word 'claim' in
clause (e) of section 10(3) of the Act should, therefore, be construed as 'the
requirement' of the landlord or his deservedness. Since clause (e) of section
10(3) of the Act is also applicable to a petition filed under sub-clause (iii)
of section 10(3)(a) of the Act, it becomes necessary to examine whether the
requirement of the landlord is bona fide; otherwise, a landlord will be able to
evict a tenant to satisfy his whim by merely proving the ingredients mentioned
in section 10(3)(a)(iii) of the Act. If the requirement of "claim"
being "bona fide" as contained in section 10(3)(e) is construed 387
to mean that genuineness of the need of the landlord for the non-residential
building is not to be considered and the circumstances that the landlord on the
date of making the application is factually carrying on business and has no
non-residential building of his own in his occupation in the city, town or
village concerned, is to be construed sufficient to make his claim bona fide,
the tenancy of no non-residential building will be secure. It will be
preposterous to attribute such an intention to the legislature. The need of the
landlord should be genuine. The landlord should bona fide need the premises for
his own use and occupation or for the occupation by any of the members of his
family, as held by this Court in Phiroze Bamanji Desai v. Chandra Kant M. Patel
and Ors., [1974] 3 S.C.R. 267 and Mattulal v. Radhe Lal, [1975] 1 S.C.R. 127.
[399F-H; 400A-G] The High Court was in error in this case in holding that the
landlord need not prove that his requirement was bona fide but that his claim
was bona fide as provided in clause (e) of section 10(3) of the Act. The High
Court made a distinction between 'requirement' and 'claim' without there being
a difference. [400H; 401A] The Court was of the view that M/s. Mahalakshmi
Metal Industries v. K. Suseeladevi, [1982] 2 Mad. L.J. 333; M. Abdul Rahman v.
S. Sadasivam, [1984] 1 Mad. L.J. 410 'and A. Khan Mohammed v.
P. Narayanan Nambiar & Ors., 99 Law Weekly 965, relied upon by the
respondent, were wrongly decided and were liable to be over-ruled. The Court
overruled them. A landlord seeking eviction of a tenant from a non-residential
premises under section 10(3)(a)(iii) of the Act should in order to succeed in
his petition, establish that he bona- fide requires the premises in addition to
proving the other ingredients referred to therein. The judgment of the High
Court set aside. Since the High Court had approached the case from a wrong
angle, the Court directed the High Court to decide the case afresh in the light
of what the Court had said in this appeal. Case remanded to the High Court to
decide it afresh. If the High Court found that the case should be remanded to
the Trial Court to enable any of the parties to lead evidence on the question
of bona fide requirement of the landlord, it might remit the case to the Trial
Court. [401B-D] Mahalakshmi Metal Industries v. K.Suseeladevi, [1982] 2 Mad.
L.J. 333; M. Abdul Rahman v. S. Sadasivam, [1984] 1 Mad. L.J. 410, and A. Khan
Mohammed v. P.Narayanan Nambiar and others, 99 Law Weekly 965, overruled.
388 Moti
Ram v. Suraj Bhan and Others, [1960] 2 S.C.R. 896;
Neta
Ram v. Jiman Lal, [1962] 2 Supp. S.C.R. 623; Nathala Sampathu Chetty v. Sha Vajingjee
Bapulal, [1967] 1 Mad. L.J.
289;
Madras District Central Co-operative Bank Limited, Mylapore Branch, Madras-4 v.
A. Venkatesh, 99 Law Weekly 714; M/s. Thilagaraj Match Works, through its
partner S. Chidambaram v. C. Sundresan, [1985] 1 Mad, Law J. 106; P. Thanneer-Malai
Chettiar v. S.J. Dhanraj and another, [1986] Mad. L.J. 115; Seaford Court Estates Ltd. v. Asher, [1949] 2
All. E.R. 155 at 164; M. Pentiah and Ors. v. Muddala Veeramallappa and Ors.,
[1961] 2 S.C.R. 255 at 314;
Bangalore Water Supply & Sewerage Board,
etc. v. R. Rajappa
Chandrakant
M. Patel & Ors., [1974] 3 S.C.R.267 and Mattulal v. Radhe Lal, [1975] 1
S.C.R.127,referred to.
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No.1014 of 1988.
From
the Judgment and Order dated 25.1.1988 of the Madras High Court in C.P.P. No.
215 of 1986.
Mrs. Nalini
Chidambaram, Ms. Setia Vaidalingam, N. Thiagarajan and Ms. Radha for the
Appellant.
S. Srinivasan
for the Respondent.
The
Judgment of the Court was delivered by VENKATARAMIAH, J. The question which
arises for consideration in this case is whether a landlord who seeks eviction
of a tenant from a non-residential building (other than a non-residential
building which is used for keeping a vehicle or adapted for such use) under
section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act,
1960 (hereinafter referred to as 'the Act') is required to prove that he
requires the said building for his own use or for the use of any member of his
family bona fide in the proceedings instituted before the Controller.
The
appellant is a partnership firm represented by its partner, 5. Peer Mohammed.
The respondent's brother was carrying on business in hardware in the front
portion of the ground floor of the premises bearing No. 157, Kutcheri Road, Mylapore, Madras-4. The appellant
purchased the said running business from the brother of the respon-dent on
5.7.1974.
The
said building, however, belonged to the father 389 of the respondent. After
purchasing the business, the appellant became a tenant under the father of the
respondent by paying an advance of Rs.1,500 and agreeing to pay a rent at the
rate of Rs.450 per month for the portion in which it commenced to carry on the
business. In the rear portion of the ground floor of the premises one Mrs. Janaki
Ammal was residing as a tenant. Mrs. Janaki Ammal vacated the said residential
portion in October, 1974. With effect from 5.10.1974 the appellant took the
portion vacated by Mrs. Janaki Ammal also on rent from the father of the
respondent by paying Rs.525 as advance and agreeing to pay a monthly rent of
Rs.175. The rent of this portion was increased subsequently to Rs.315 per
month. On 25.11.1980 the appellant received a notice from an advocate, who was
acting on behalf of the father of the respondent terminating the tenancy of the
appellant in respect of both the portions with effect from 31.12.1980 and
requiring the appellant to deliver possession of the two portions of the ground
floor of the premises in question to the father of the respondent on the ground
that he needed the premises for the occupation of his son. The appellant sent a
reply denying the right of the respondent's father to evict the appellant from
the premises. Thereafter it is stated that the ownership of the premises in
question was transferred in favour of the respondent by his father. Thereafter
the respondent asked the appellant to increase the rent payable for the
premises.
In
order to avoid litigation, the appellant agreed to pay a consolidated amount of
Rs.1,000 per month by way of rent for both the portions in the year 1981 and
also paid a sum of Rs.7,500 as advance. On 9.6.1982 an agreement was entered
into in respect of both the portions specifying that the lease should remain in
force till 8.5.1983. After the expiry of the said period, it is stated, the
respondent again demanded enhanced rent. On the appellant not complying with
the said demand the respondent instituted a petition for eviction of the
appellant in the Court of the Controller at Madras under section 10(3)(a)(iii)
of the Act on the ground that the premises in question were needed by his wife
for carrying on pawn broker business which she was carrying on elsewhere. The
appellant resisted the petition. It was inter alia contended by the appellant
that the requirement of the wife of the respondent was not bona fide and the
petition was liable to be dismissed. After trial, the Controller dismissed the
petition holding that the tenancy in question was in respect of both the
residential and non-residential portions and that the respondent could not seek
eviction of the appellant as the major portion of the demised premises was of
residential character. Aggrieved by the decision of the Controller the
respondent preferred an appeal before the Appellate Authority. The Appellate
Authority dismissed the appeal. Thereupon the respon- 390 dent preferred a
revision petition before the High Court of Madras inCivil Revision Petition No. 215 of 1986. That petition was allowed by
the High Court holding that it was not necessary for the respondent to
establish that his requirement was bona fide as the question of bona fides of a
landlord's requirement did not arise for consideration at all in case falling
under secti10 10(3)(a)(iii) of the Act.
It,
however, held that the claim of the respondent was bona fide. Accordingly, the
High Court allowed the revision petition and directed the appellant to quit and
deliver vacant possession of the premises in question to the respondent. This
appeal by special leave is filed against the judgment of the High Court of
Madras.
The
crucial question which arises for consideration in this case is whether it is
necessary for a landlord, who institutes a petition under section 10(3)(a)(iii)
of the Act, to establish that his requirement is bona fide or not.
As can
be seen from the long title of the Act it was enacted by the State Legislature
to amend and consolidate the law relating to the regulation of the letting of
residential and non-residential buildings and the control of rents of such
buildings and the prevention of unreasonable eviction of tenants there from in
the State of Tamil Nadu. Section 10 of the Act provides that a tenant shall not
be evicted whether in execution of a decree or otherwise except in accordance
with the provisions of section 10 or sections 14 to 16 of the Act. The material
portion of sub-section 3(a) of section 10 of the Act, which is relevant for
purposes of this case reads thus:
"10(3)(a).
A landlord may, subject to the provisions of clause (d), apply to the
Controller for an order directing the tenant to put the landlord in possession
of the building.
(i) in
case it is a residential building, if the landlord required it for his own
occupation or for the occupation of any member of his family and if he or any
member of his family is not occupying a residential building of his own in the
city, town or village concerned;
(ii)
in case it is a non-residential building which is used for the purpose of
keeping a vehicle or adapted for such use, if the landlord required it for his
own use or for the use of any member of his family and if he or any member of
his family is not occupying any such building in the city, town or village
concerned which is his own;
391
(iii) in case it is any other non-residential building, if the landlord or any
member of his family is not occupying for purposes of a business which he or
any member of his family is carrying on, a non-residential building in the
city, town or village concerned which is his own;
.............................................
(e)
The Controller shall, if he is satisfied that the claim of the landlord is bona
fide, make an order directing the tenant to put the landlord in possession of
the building on such date as may be specified by the Controller and if the
Controller is not so satisfied he shall make an order rejecting the
application." For purposes of sub-section (3) of section 10 of the Act the
buildings are classified into two categories by the Act, namely, residential
buildings and non-residential buildings. Sub-clause (i) of clause (a) of
sub-section (3) of section 10 of the Act provides that a landlord may subject
to the provisions of clause (d) apply to the Controller for an order directing
the tenant to put the landlord in possession of a residential building, if the
landlord required it for his own occupation or for the occupation of any member
of his family and if he or any member of his family is not occupying a
residential building of his own in the city, town or village concerned. Sub-
clause (ii) of clause (a) of sub-section (3) of section 10 of the Act relates
to eviction from a non-residential building which is used for the purpose of
keeping a vehicle or adapted for such use. If the landlord required such a
building for his own use or for the use of any member of his family and if he
or any member of his family is not occupying any such building in the city,
town or village concerned which is his own he can apply for the eviction of the
tenant therefrom. Sub-clause (iii) of clause (a) of sub- section (3) of section
10 of the Act deals with other kinds of non-residential buildings. If the
landlord or any member of his family is not occupying for purposes of a
business which he or any member of his family is carrying on, a non-
residential building in the city, town or village concerned which is his own, a
landlord may, subject to the provisions of clause (d), apply to the Controller
for an order directing the tenant to put the landlord in possession of such a
building. It may be stated here that the words 'if the landlord required it for
his own use or for the use of any member of his family' are not to be found in
sub-clause (iii) of section 10(3)(a) of the Act. Clause (e) of section 10(3) of
the Act, however, provides that the Controller shall, if he is 392 satisfied
that the claim of the landlord is bona fide make an order directing the tenant
to put the landlord in possession of the building on such date as may be
specified by the Controller and if the Controller is not so satisfied he shall
make an order rejecting the application. Clause (e) of section 10(3) applies to
all cases of eviction falling under section 10(3) of the Act. The decision in
this case depends upon the effect of the omission of the words 'if the landlord
required it for his own use or for the use of any member of his family' in
sub-clause (iii) of section 10(3)(a) of the Act. It is argued on behalf of the
appellant that reading sub-clause (ii) and (iii) of section 10(3)(a) of the Act
together, which relate to the eviction from non- residential buildings, the
words 'if the landlord required it for his own use or for the use of any member
of his family' which are found in sub-clause (ii) of section 10(3)(a) should be
read into sub-clause (iii) of section 10(3)(a) also and that a landlord should
establish in order to succeed in a petition for eviction filed under section
10(3)(a)(iii) of the Act that his requirement or the requirement of a member of
his family is bona fide. It is also argued in the alternative that the word
'claim' in the words 'that the claim of the landlord is bona fide' in clause
(e) of section 10(3) of the Act refers only to the requirement of the landlord
and to nothing else. On the other hand it is urged on behalf of the respondent
relying upon three decisions of the High Court of Madras in (i) M/s. Mahalakshmi
Metal Industries v. K. Suseeladevi, [1982] 2 Mad. L.J. 333; (ii) M. Abdul Rahman
v. S. Sadasivam, [1984] 1 Mad. L.J. 410 and (iii) A. Khan Mohammed v. P.
Narayanan Nambiar & Others, 99 Law Weekly 966 that there was no need for a
landlord to establish the bona fides of his requirement or the requirement of a
member of his family when a petition is filed under section 10(3)(a)(iii) of
the Act and it is enough if his claim is proved to be bona fide.
The
High Court has upheld the said plea of the respondent relying upon the said
three decisions. The correctness of these three decisions is questioned before
us by the appellant.
We
have already noticed that the object of the Act was to prevent unreasonable
evictions of tenants from buildings.
The
Act is an ameliorating piece of legislation. Similar acts are in force in
almost all the States in India. The provision in question has to
be construed against this background. The Act has been in force from 1960.
In Moti
Ram v. Suraj Bhan & Other, [1960] 2 S.C.R. 896 this Court was required to
construe section 13(3)(a)(iii) of the East Punjab Urban Rent Restriction Act,
1949 which at the relevant time provided that a landlord might apply to the
Controller for directing a tenant to 393 put the landlord in possession of the
building in question if he required it for the re-construction of that building
or for its replacement by another building or for the erection of other
buildings. In that case the Rent Controller and the Appellate Authority had
rejected the claim of the landlord on the ground that the landlord had not
established that the premises in question were required by him bona fide. The
High Court while accepting that the requirement in question must be shown to be
bona fide held that on the evidence the findings of the Courts below that the
landlord's requirement was not bona fide were not correct. The High Court
accordingly directed the eviction of the tenant in question. This Court while
affirming the decision of the High Court held that the landlord had, in fact,
made out that he required the premises bona fide for purposes of
re-construction. Thus it is seen that in the context of a law enacted for
preventing unreasonable evictions this Court read into a ground on which a
landlord could seek the eviction of his tenant that the landlord should
establish that his requirement was bona fide. A mere desire on the part of the
landlord to re-construct a building was not sufficient to evict a tenant from
the premises. He had to establish that he needed the premises bona fide for
re-construction it. In a later case, i.e., Neta Ram v. Jiwan Lal, [1962] 2
Supp. S.C.R. 623 which arose under the provisions of the Patiala and East
Punjab States Union Urban Rent Restriction Ordinance, one of the grounds on
which the landlord sought the eviction of the tenants in occupation of the premises
involved in that case was that the premises were in a state of disrepair and
were dilapidated and, therefore, the landlord wished to rebuild on the premises
after dismantling the structure. On the said issue the Rent Controller held
that in deciding whether the tenant should be ordered to hand over the
possession to the landlord the Courts must have regard to the bona fide
requirement of the landlord which meant that the desire to rebuild the premises
should be honestly held by the landlord but that the condition of the building
also played an important part in determining whether the landlord had the
intention genuinely and the landlord was not using the said excuse as a device
to get rid of the tenants. In that connection the Rent Controller observed that
the state of the building, the means of the landlord and the possibility of the
better yield by way of rent should be kept in mind.
The
Controller, holding that the claim of the landlord was not bona fide, decided
the said issue against him. On appeal the Appellate Authority held that the
shops and chobaras were in good condition and that the landlord was not, in
good faith, wanting to replace the building, when he had no means to build it.
The High Court, however, allowed the revision petition filed before it holding
that upon the evidence on record it had been established 394 beyond doubt that
the landlord genuinely and bona fide required the premises for re-building. On
appeal by special leave to this Court, this Court observed that the very purpose
of the Rent Restriction Act would be defeated if the landlords were to come
forward and to get tenants turned out, on the bare plea that they wanted to
reconstruct the house without first establishing, that the plea was bona fide
with regard to all circumstances, viz. that the houses needed reconstruction or
that they had means to reconstruct them. Accordingly, the judgment of the High
Court was reversed and the petitions for eviction were dismissed.
Following
the observations made in the above decisions in Nathella Sampathu Chetty v. Sha
Vajingjee Bapulal, [1967] 1 Mad. L.J. 289 a Division Bench of the High Court of
Madras construed section 10(3)(a)(iii) of the Act thus:
"Section
10 of the Madras Buildings (Lease and Rent Control) Act, 1960, provides for
eviction of tenants in certain circumstances. Sub-section 3(a)(iii) of the
section allows a landlord to apply to the Controller for an order directing a
tenant to put him in possession of the building if the landlord is not
occupying for purposes of business which he is carrying on, a non- residential
building in the city, town or village concerned which is his own. The second
proviso to this clause is to the effect that where a landlord has already
obtained possession of a building under this provision, he shall not be
entitled to apply again for possession of another non- residential building of
his own. If the conditions of these provisions are satisfied, the Controller
may make an order as asked for by the landlord provided he is further satisfied
that the claim of the landlord is bona fide.
(underlining
by us) In the Madras District Central Co-operative Bank Limited, Mylapore
Branch, Madras-4 v. A. Venkatesh, 99 Law weekly 714 a single Judge of the High
Court disagreed with the views expressed by another single Judge in Abdul Rahman's
case (supra) and observed thus:
"The
question now is whether an order directing the tenant to put the landlord in
possession should be made. It is pointed out by the learned counsel for the
respondent landlord following a ruling of this Court in Abdul Rahman v. S. Sadasivam,
that there is no jurisdiction for the Rent Controller to go into the question
of bona fide requirement 395 in a claim under s. 10(3)(a)(iii) of the Act.
Ramanujam,
J. took the view that a distinction has to be made between the two sections, s.
10(3)(a)(i) and s. 10(3)(a)(iii) in view of the word 'require', occurring in s.
10(3)(a)(i) and in the absence of that word, in s. 10(3)(a)(iii) in other
words, what the learned Judge points out is that the Rent Controller has no
jurisdiction to go into the question whether the requirement of the landlord is
bona fide, as the Rent Controller has to pass an order of eviction in case the
landlord is not occupying for the purpose of business which he is carrying on,
any non-residential building in the city which is his own. The learned Judge
further pointed out that when the provisions of s.
10(3)(a)(i)
and s. 10(3)(a)(iii) use different expressions, it should be taken that the
Legislature intended these provisions to have different operations. With
respect to the learned Judge, I may point out that the mere absence of the word
'require' in s. 10(3)(a)(iii) would not necessarily lead to the inference that
the Legislature did not intend that the Rent Controller should go into the
question of bona fides of the requirement of the landlord in respect of the
requirement of a non-residential premises under s. 10(3)(a)(iii) of the Act. My
reasons for holding so are as follows: S. 10 enumerates certain grounds for the
eviction of the tenant. In other words eviction under the Rent Control Act can
be effected only on the grounds mentioned in s. 10. The landlord may have a
right to evict the tenant under the general law. S. 10(3)(a) says that the
landlord may, subject to the provisions of Cl. (d), apply to the Controller for
an order directing the tenant to put the landlord in possession of the
buildings. S. 10(3)(a)(i) deals with residential buildings. S. 10(3)(a)(ii)
deals with non-residential buildings used for purpose of keeping vehicles. S.
10(3)(a)(iii) is in respect of non-residential buildings. S. 10(3)(b) gives a
right to religious, charitable, educational or other public institutions, to
institute proceedings before the Controller if the institution requires the
building. S. 10(3)(c) is for additional accommodation. S. 10(3)(d) speaks of
tenancy for specified period agreed between the landlord and the tenant and it
prohibits the landlord from applying, before the expiry of such period. Now
after these sections, S. 10(3)(e) runs thus:
'The
Controller shall, if he is satisfied that the claim 396 of the landlord is bona
fide make an order directing the tenant to put the landlord in possession of
the building on such date as may be specified by the Controller and if the
Controller is not so satisfied he shall make an order rejecting the
application.' I find in the judgment of Ramanujam, J. this S. 10(3)(e) has not
been adverted to. S. 10(3)(e) applies to Ss. 10(3)(a)(i), 10(3)(a)(ii) and
10(3)(a)(iii) and also to Ss. 10(3)(b) and 10(3)(c). If the Legislature
intended that the provisions of S. 10(3)(a)(i) and S. 10(3)(a)(iii) to have
different operations, the Legislature would not have stated in S. 10(3)(e) that
the Controller should be satisfied that the claim of the landlord is bona fide,
before he makes an order directing the tenant to put the landlord in
possession, and the further words 'if the Controller is not so satisfied, he
shall make an order rejecting the application' very clearly show that the
Controller should, before passing an order for eviction, be satisfied with the
bona fide of the claim, or else he should dismiss it." The main ground on
which the learned Judge who decided the above case disagreed with the decision
in Abdul Rahman's case (supra) is that in Abdul Rahman's case (supra) section
10(3)(e) of the Act, which applied to all the three sub- clauses, namely (i),
(ii) and (iii) in section 10(3)(a) of the Act had not been adverted to. The
learned Judge also held that the mere absence of the word 'require' in section
10(3)(a)(iii) of the Act did not necessarily lead to the inference that the
Legislature did not intend that the Controller should not go into the question
of bona fides of the requirement of the landlord in a petition for eviction
filed under that provision. Another learned Judge of the Madras High Court has
taken the same view in M/s. Thilagaraj Match Works, through its partner S.
Chidambaram v. C. Sundaresan, [1985] 1 Mad. Law J. 106. It is observed in that
case thus:
"In
the present case, the Appellate Authority has not adverted to these features at
all and in one place he observes that the bona fide of the claim of the
landlord is extraneous and it should not be tested too severely. This exposes
his wrong approach to the question of bona fide which is a relevant one. The
very ingredient of section 10(3)(e) of the Act requires that the question of
bona fide has got to be tested and it has got a due place while 397
adjudicating a petition for eviction by the landlord under the concerned
provisions. It is not the desire of the landlord, but there must be an element
of need for the landlord before it could be stated that he requires the
premises for his own occupation. The features referred to above, cannot be
eschewed as irrelevant, for after all bona fide will have to be proved in an
ordinary manner like any other fact in issue, and the entire gamut of facts and
circumstances has to be adverted to on this question. As already stated, I am
not expressing any opinion over these features on merits, and it is for the
Appellate Authority to advert to them and adjudicate upon the question afresh
one way or the other. The discussions above oblige me to interfere in revision
and accordingly the revision is allowed and the matter stands remitted to the
Appellate Authority for him to consider it afresh taking note of all the
relevant features and factors of the case on the question of bona fides, and
pass appropriate orders. Both the counsel represent that for the purpose of
comprehensive adjudication of the matter, further evidence has to be adduced. I
take note of the request of both the counsel and I direct that the Appellate
Authority will permit the parties to place further evidence and he will decide
the matter afresh after such evidence is placed, the Appellate Authority will
do well to dispose of the matter expeditiously and in any event within a period
of three months from the date of receipt of the copy of this order." In P.
Thanneermalai Chettiar v. S.J. Dhanraj, [1986] Mad. L.J. 115 another learned
Judge of the High Court of Madras has construed section 10(3)(e) of the Act
thus:
"It
is not disputed that section 10(3)(e) of Act 18 of 1960 is applicable to the
case of residential building as well as non-residential building and it is
provided therein that if the Controller is satisfied that the claim of the
landlord is bona fide, he shall make an order directing the tenant to put the
landlord in possession of the building; otherwise, he has to reject the
application. In the instant case, considering the various circumstances and
also the fact that the petitioner was residing in a house of his own at Devakottai
where he has got vast extent of properties and was carrying on business along
with other members of his family, the 398 claim of the petitioner that he
required the premises for his own use and occupation is not proved and in any
event there is no bona fide in the same" The main ground on which the
learned Judge who decided Abdul Rahman's case (supra) held that it was not
necessary to establish the bona fide equipment of the landlord when he made an
application for eviction under section 13(3)(a)(iii) of the Act was that, the
word 'require' was not to be found in section 10(3)(a)(iii) of the Act. We are
of the view that having regard to the pattern in which clause (a) of sub-
section (3) of section 10 of the Act is enacted and also the context, the words
'if the landlord required it for his own use or for the use of his any member
of the family' which are found in sub-clause (ii) of section 10(3)(a) of the
Act have to be read also into sub-clause (iii) of section 10(3)(a) of the Act.
Sub-clause (ii) and (iii) both deal with the non-residential buildings. They
could have been enacted as one sub-clause by adding a conjunction 'and' between
the said two sub-clause, in which event the clause would have read thus: 'in
case it is a non-residential building which is used for the purpose of keeping
a vehicle or adapted for such use, if the landlord required it for his own use
or for the use of any member of his family and if he or any member of his
family is not occupying any such building in the city, town or village
concerned which is his own; and in case it is any other non-residential
building, if the landlord or any member of his family is not occupying for purposes
of a business which he or any member of his family is carrying on, a
non-residential building in the city, town or village concerned which is his
own.' If the two sub-clauses are not so read, it would lead to an absurd
result. The non-residential building referred to in sub- clause (ii) is a
building which is used for the purpose of keeping a vehicle or adapted for such
use and all other non- residential buildings fall under sub-clause (iii). The
State Legislature cannot be attributed with the intention that it required a
more stringent proof by insisting upon proof of bona fides of his requirement
or need also when a landlord is seeking eviction of a tenant from a garage than
in the case of a non-residential building which is occupied by large commercial
house for carrying on business. The learned counsel for the respondent was not
able to explain as to why the State Legislature gave greater protection to
tenants occupying premises used for keeping vehicles or adapted for such use
than to tenants occupying other types of non- residential buildings. It is no
doubt true that the Court while construing a provision should not easily read
into it words which have not been expressly enacted but having regard to the
context in which a provision appears and the object of the statute in which the
said provision is 399 enacted the court should construe it in a harmoneous way
to make it meaningful.
In
Seaford Court Estates Ltd. v. Asher, [1949] 2 All. E.R. 155 at 164. Lord
Denning L.J. said:
"When
a defect appears, a judge cannot simply fold his hands and blame the draftsman.
He must set to work on the constructive task of finding the intention of Parliament
..... and then he must supplement the written word so as to give 'force and
life' to the intention of the legislature ..... A judge should ask himself the
question how, if the makers of the Act had themselves come across this ruck in
the texture of it, they should have straightened it out? He must then do as
they would have done. A judge must not alter the material of which the Act is
woven but he can and should iron out the creases." This rule of
construction is quoted with approval by this Court in M. Pentiah and Ors. v. Muddala
Veeramallappa and Ors., [1961] 2 S.C.R. 295 at 314 and it is also referred to
by Beg, C.J. in Bangalore Water-Supply & Sewerage Board, etc. v. R. Rajappa
& Ors., [1978] 3 S.C.R. 207. In the present case by insisting on the proof
of the bona fides of the requirement of the landlord, the Court is not doing
any violence to the statute nor embarking upon any legislative action. The
Court is only construing the words of the statute in a reasonable way having
regard to the context.
We are
of the view that by merely proving that the premises in question is a
non-residential building and that the landlord or any member of his family is
not occupying for the purpose of a business which he or any member of his
family is carrying on any residential building in the city, town or village
concerned which is his own, the landlord cannot in the context in which section
10(3)(a)(iii) appears get a tenant evicted. He must show in view of clause (e)
of section 10(3) that his claim is bona fide. The word 'claim' means "a
demand for something as due" or "to seek or ask or for on the ground
of right" etc. In the context of Rent Control Law which is enacted for the
purpose of giving protection to tenants against unreasonable evictions and for
the purpose of making equitable distribution of buildings amongst persons who
are in need of them in order to prove that his claim is bona fide a landlord
should establish that he deserves to be put in possession of the premises which
is in the occupation of a tenant. Any decision on 400 the question whether a
landlord deserves to be put in possession of a premises in the occupation of a
tenant should naturally depend upon the bona fides of the landlord's
requirement or need. The word 'claim' in clause (e) of section 10(3) of the Act
should, therefore, he construed as 'the requirement' of the landlord or his
deservedness. 'Deserve' means 'to have a rightful claim' or 'a just claim'.
Since clause (e) of section 10(3) of the Act is also applicable to a petition
filed under sub-clause (iii) of section 10(3)(a) of the Act it becomes
necessary to examine whether the requirement of the landlord is bona fide.
Otherwise a landlord will be able to evict a tenant to satisfy his whim by
merely proving the ingredients mentioned in section 10(3)(a)(iii) of the Act.
Take a case where a landlord for some oblique reason wishes to get rid of his
tenant from a non-residential building of the category mentioned in section
10(3)(a)(iii) and to achieve his aim fakes to start money-lending business (for
which indeed no specified separate portion in a building may be needed) in a
building not belonging to him and to create evidence even actually lends money
to some of his friends or relatives and a week thereafter applies for eviction
of the tenant on the ground that he is carrying on business and has no non-
residential building of his own in his occupation in the city, town or village
concerned. Apparently, the conditions prescribed in the aforesaid sub-clause
(iii) are fulfilled.
If the
requirement of "claim" being "bona fide" as contained in
section 10(3)(e) is construed to mean that genuineness of the need of the
landlord for the non-residential building is not to be considered and the
circumstances that the landlord on the date of making the application is
factually carrying on business and has no non-residential building of his own
in his occupation in the city, town or village concerned is to be construed
sufficient to make his claim bona fide, the tenancy of no non-residential
building will be secure. It will be preposterous to attribute such an intention
to the legislature. Such a contingency should be avoided as it would be against
the very object of the Act itself. The need of the landlord should be genuine.
That is the object of enacting clause (e) of section 10(3) of the Act. When
once we reach the above conclusion it is not enough that the landlord should
merely desire to use or occupy the premises.
What
is necessary is that he should bona fide need them for his own use and
occupation or for occupation by any of the members of his family as held by
this Court in Phiroze Bamanji Desai v. Chandrakant M. Patel & Ors., [1974]
3 S.C.R. 267 and Mattulal v. Radhe Lal, [1975] 1 S.C.R. 127.
The
learned Judge who decided the case out of which this appeal arises was,
therefore, in error in holding that the landlord need not prove that his
requirement was bona fide but that his claim was bona fide as provided in
clause (e) of section 10(3) of the 401 Act. The learned Judge has made a
distinction between `requirement' and `claim' in the present case without there
being a difference.
In the
circumstances we are of the view that M/s. Mahalakshmi's case (supra), M. Abdul
Rahman's case (supra) and A. Khan Mohammed's case (supra) have been wrongly
decided. They are liable to be overruled. We accordingly overrule them. We hold
that a landlord seeking eviction of a tenant from a non-residential premises
under section 10(3)(a)(iii) of the Act in order to succeed in his petition
should establish that he bona fide requires the premises in addition to proving
the other ingredients referred to therein. The judgment of the High Court which
has proceeded on a wrong basis has, therefore, to be set aside. Since the High
Court while allowing the revision petition has approached the case from a wrong
angle, it is necessary to direct the High Court to decide it afresh in the
light of what we have stated above. We, therefore, set aside the judgment of
the High Court and remand it to the High Court again to decide it afresh. If
the High Court finds that the case should be remanded to the Trial Court to
enable any of the parties to lead evidence on the question of the bona fide
requirement of the landlord it may remit the case to the Trial Court.
The
appeal is accordingly allowed. There shall be no order as to costs.
S.L.
Appeal allowed.
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