Madanlal Rangilal Daga vs Gurunath Laxman Patange

D.V. Patel, J.—This revisional application involves the construction of section 15 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (hereinafter referred to as the Act of 1954) under the following circumstances: The petitioner is the owner of the premises in suit. The petitioner made an application to the Rent Controller at Latur on November 5, 1962, against the opponent u/s 15 of the Act of 1954 for possession. Ho had terminated the tenancy of the opponent on October 13, 1962. The grounds for the claim of possession were that, the petitioner required the premises'' reasonably and bona fide for his own use; that he had a number of members in his family; that he had no shop hi the market; that his whole income from agriculture was only Rs. 1,000 per year and it was not sufficient for his big family; that his four major sons were unemployed and in spite of his efforts they could not have any employment; that he had decided to start business cloth and engage his four sons in the said business and that he required the suit premises for this business. In short, his claim was that he required the'' premises for bona fide purpose of starting his own business in it. The opponent, resisted the suit contending inter alia that the petitioner did not need the premises for his own personal purpose.

Before the Rent Controller issues on merit were tried and the Controller was satisfied that the petitioner''s case was genuine. He further found that the conditions for granting possession under the section were fully satisfied. He accordingly made an order in favour of the petitioner.

The opponent went in appeal to the District Court. Before the learned Assistant Judge it was contended that the petitioner had no right to take the proceedings inasmuch as section 15 (3) (a) (Hi) of the Act of 1954 had no application, and if it did not apply the petitioner had no remedy. The learned Judge acceded to this contention and dismissed the petitioner''s suit. The petitioner comes here u/s 26 of the said Act in revision.

The provision with which we are concerned is a part of section 15 of the said Act, which deals with eviction of tenants. Sub-section (1} provides that a tenant shall not be evicted otherwise than in accordance with the provisions of this section, and it is a counterpart of section 12 (1) of the Bombay Rent Act. Sub-section (2) lays down the circumstances under which, if the tenant has not complied with the terms of the tenancy, he could be evicted and sub-section (3) lays down the circumstances under which the landlord can obtain possession of the premises which he needs. Sub-section (3) (a) reads as follows:

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 house:-

(i) in case it is a residential house, if the landlord requires it for his own occupation and if he is not occupying a residential house of his own in the city, town or village concerned;

(ii) in case it is a non-residential house which ia used for the purpose of keeping a vehicle or adapted for such use, if the landlord requires it for his own house and if he h not occupying any such building in the city, town or village concerned which is his own or to the possession of which he is entitled;

(iii) in case it is any other non-residential house, if the landlord ia not occupying for purpose of a business which he is carrying on, a non-residential house ia the city, town or village concerned which is his own or to the possession of which he is entitled;....

The rest of the portion of this sub-section is not material for the present controversy. It was argued before the learned appellate Judge that because of the words "a business which he is carrying on" contained in sub-clause (iii) it is a necessary condition for the landlord being able to evict the tenant, that, the landlord must have a business in the city, town or village in which the property is situated, and for which he wants the tenant to be evicted. In other words the landlord cannot evict the tenant for starting a new business.

The learned Judge has not given any reasons why this construction must follow merely because those word have been used in the said sub-clauses. After all, it is a well-settled rule of construction that- a provision should be reasonably and fairly read. It should be so construed as to cause least inconvenience and mischief if it can be avoided. In construing this provision one cannot forget that the Rent Control Act though intended to prevent evictions from premises, was not intended to be an absolute prohibition but was intended to achieve a proper balance for social benefit. It was not intended to prevent a landlord from recovering the premises when he bona fide and reasonably requires it for his own use. subject to the limitations contained in the Act. Unless, therefore, the words of the section are so clear as to work the result which the learned Judge has brought about, it is impossible to "construe the language in the manner in which the learned Judge has construed it.

Sub-clause (i) relates to residential premises. One condition is that the landlord requires it for his own occupation. There is also a further condition that the landlord must not be occupying a residential house of his own in the city, town or village concerned. If the meaning which is sought to be put by the learned appellate Judge on sub-clause (iii) were to be put on Sub-clause (i) it must mean that in order that the landlord can obtain possession even of a residential house, the necessary condition must be that he not only requires it for his own use but also that he is actually occupying a house though not his own in the same place and that a person who comes to his town or village from outside would not be entitled to obtain possession. Similar qualification is also contained in sub-clause (ii>. Sub-clause [iii) applies to "any other non-residential house" i. e. a house which does not fall within sub-clause (ii), and the condition there is that the landlord is not occupying for the purpose of a business which he is carrying on, a non-residential house in the City, town or village concerned which is his own or to the possession of which he is entitled. The words used "a business which he is carrying on" cannot be taken out of the context and transposed in such a way as to read it as a condition precedent to the landlord being able to obtain possession. The words merely qualify the words "if the landlord is not occupying for the purpose of" and no more. In order to read the sub-clause in the manner suggested not only the whole arrangement of the sub-section will have to be challenged but even the manner of writing it will have to be changed. Reading the subsection fairly and squarely so as not to create any injustice and to effectuate the purpose of the Act, it is impossible to hold that it lays down one of the conditions for eviction of the tenant to the effect that the landlord must have an actual business at the time of eviction. If we construe it in this manner every landlord will have to start a business may be of hawker to show that he has got a business in the city or town but he is not occupying any premises there. There is no warrant for any such assumption..

In the conclusion to ''which I have reached, I am supported by the judgment of my learned brother, Chandrachud J. in Kanhayalal Katuram v. Amolakchand (1). The case arose in a slightly different form. The landlord in that case was carrying on a timber business in another premises. He sought eviction of the tenant from the premises in the occupation of that tenant on the ground that in those premises he wanted to start ft furniture shop. The learned District Judge held that as it was not the same business that the landlord intended to start in the new premises, he was not entered to apply under the Act of 1954. Chandrachud J. refused to give this construction to sub-clause (iii) and he held:

...what is required by clause (iii) is (sic) the landlord must not be occupying, for the purpose of a business which he is earring on, a non-residential house within certain limits, which is his own or to the possession of which he is entitled as an owner or any other similar capacity, and that it was no "necessary that it should be for the same business".

Mr. Kurdukar, for the opponent, argued that this is a revisional application and this Court cannot in exercise of its revisional jurisdiction interfere which the finding made by the learned appellate judge, whether it be right or wrong. He argues that the finding ia one merely of law and has no connection with jurisdiction. There are evidently two answers to this contention. One is that section 21 of the Act of 1954 gives a right of revision against any order made by the subordinate Court whether original or appellate and is in somewhat wider terms than section 115, Civil Procedure Code. The first two clauses of section 21 are practically a reproduction of the two clauses of section 115, Civil Procedure Code. Clause (c), however, is differently worded and it permits a revisional application to the High Court on the ground amongst others that

in following the procedure of passing the order, the original or appellate authority acted illegally or with material irregularity.

Acting illegally means making an illegal order and not mere error of procedure in connection with the illegal order, because illegality or irregularity of the procedure is provided for separately in the same clause. It therefore, clearly means that if the order is illegal, then the High Court would have jurisdiction to interfere with such an order. The second answer is that the learned Judge had clearly denied to himself the jurisdiction which was rested in him by saying that the application itself does not lie under the said clause. It is true that a Court has jurisdiction to decide rightly or wrongly. But, in the present case, what the learned Judge has done is not that he decided on merit any dispute between the parties but he decided on the interpretation of the section that the Court cannot determine the matter which the petitioner has brought before it. It denied him the right to sue under the Act. The result is similar when a Court decides that a suit is barred by limitation, and the Privy Council and also the Supreme Court have decided that where a point of limitation is wrongly decided the High Court would have jurisdiction u/s 115, Civil Procedure Code. In my view, therefore, even if section 115, Civil Procedure Code, had applied I would have been entitled to interfere in my revisional jurisdiction.

In the result, I set aside the order made by the learned Assistant Judge and direct that the matter decided on merits. The petitioner will get the costs from the opponent.