Sumitra Devi Motidas Udasi vs Chunilal Bhimjibhai

B.A. Masodkar, J.—The petitioner is the land-lady owning Municipal House No. 316 in Ward No. 25 of Amravati town and the respondent her tenant who occupies a shop-premises, on monthly basis, rental Rs. 36/- plus Rs. 4 / as taxes.

The petitioner took proceedings for permission to give quit notice on three counts, in that the tenant was in arrears with rent for more than 3 months, that he was a habitual defaulter being irregular is payment of rent and further that she wanted to remodel her premises and had taken steps in that regard. On the first two counts, serious dispute was not raised and ultimately, on the last count, i e. the landlady was desirous of rebuilding her house, the permission was sought.

Both the authorities under the Rent Control Order, 1949, found on the evidence of the parties that the requirements of Clause 13 (3) (vii) have not been established as the opinions of experts on the condition of the house materially differed. The Rent Controller also thought that this was a method to harass the tenant. However, the appellate authority restricted the findirg to the contest as to whether the landlady had proved that the house was in a dilapidated condition on the evidence led by the parties.

Now, this approach of both the authorities is untenable. The requirements of Clause 13 (3) (vii) which permits the Rent Controller according pre-sanction to give a quit notice are in the following terms:-

"13.-

(3) If after hearing the parties the Controller is satisfied-

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(vii) that the landlord desires to make essential repairs or alterations which cannot be made without the tenant vacating the house;

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he shall grant the landlord permission to give notice to determine the lease as required by sub-clause (1)."

The requirement of the above provision, firstly, is that it must be the case on merits of the landlord seeking permission of the Rent Controller to make essential repairs to the premises or, secondly, he must be a landlord who seeks to effect alterations of the premises, either of which cannot be made without the tenant making the house available for such essential repairs or alterations.

The word and concepts following "alterations" to the premises are of wide connotation. It would obviously take in the reconstruction of the house and the premises. That term is not controlled by the qualification "essential" which controls "repairs". It is plain that after the verb "to make" in the body of the sub-clause itself, "essential repairs" or "alterations" have been disjunctively put to indicate separate categories operating upon the premises. The qualifying terra "essential" if were to control "alterations" would by itself defeat its plain meaning. "Alterations" in the premises should be separately understood and construed. Such structural changes may take in constructions anew. Such reconstructions cannot be said to be inhibited. On the other hand that appears to be permissive. It therefore structural changes or constructions that cannot be done without getting the premises vacated would answer the requirement. If permission is sought to make essential repairs and the controversy arises whether the requirements of essential or compelling repairs have been established or not, different considerations would obviously govern such controversy. Those however would not govern the essential and inherent power of the landlord to remodel or rebuild his house which is his property and cannot be fettered by considerations which attend upon the case of essential repairs. To hold otherwise would be unreasonable, for the corollary to have a building is to have the power to rebuild or make structural changes necessary for its proper enjoyment which may in a given case accelerate its value as well as its percent and potential utility. It cannot be presumed in the present age of "architectural revolution" that legislative intent is to have static structures that would not permit changes in premises. Everywhere around us there is vigorous architectural movement. From facelift of the old houses to artistic tapestry flushing out all light and shade, beauty and colour is decorating our old road-lines. To have new designs and have better comfortable houses attuned to fast changing life is a reasonable desire of the property holder. Can it be said that only by the fact that premises are tenanted this ever unfolding desire to have better, and beautiful house by remodelling or reconstructing them is kept frozen or is dampened by this legislative premise ? It is difficult to attribute such intention to the legislature.

That construction of statute which will preserve the known rights without eroding them to a extinction and which subserves at the same time the regulatory requirement would meet the ends of justice here. The Rent Control legislation is in pith and substance regulatory of proprietary rights. It operates upon the relationship called "lease" between persons who become related as "landlord" and lessee". That seeks to protect unjust and arbitrary eviction of tenants from premises under lease. "Regulation" being thus the aim of these measures as far as possible permissive rights of property and their enjoyment will have to be allowed to have its play. Fairly it is well settled that measures to regulate do not take in nor are to be understood putting total prohibition or full embargo on reasonable and inherent rights so that the very object of regulation is lost or is left extinct. (See lyar v. Targ 1973 A C 254; and cases relied on therein, viz. Attorney General for Ontario v. Attorney General for the Dominion 1896 A C 348, Ward v. The Folkstone Waterworks Company 24 Q.B.D. 334 and Birmingham and Midland Motor Omnibus Co Ltd v. Worcestershire County Council 1967 1 W L R 409.

A landlord reasonably and bona fide seeking permission on the ground that he wants to reconstruct or remodel his house, though tenanted, clearly answers the terms of clause 13 (3) (vii) in the latter clause. Landlord would however be bound to lay before the authorities all relevant data that will substantiate his ground. Satisfaction of the Authorities is an objective phenomenon and as such it would be right to expect the landlord to place all material and lead evidence that will make up his ground. Mere desire without anything more is not enough; plea for alteration of the house should be supported by plans drawn or sanction along with the proof of the purse that can materialise such plan. If the landlord is without funds or has not taken steps towards planning his structure hardly he can satisfy the ground. Similarly all this must be genuine and not mere ruse or pretext to eject the tenant. Houses recently built having all the life and sought to be pulled down may in a given case arouse suspicion of the authority against the landlord though on the other hand old houses having lived a reasonable life may add strength to his case. Objective considerations must therefore, of necessity, enter the ken of consideration of the authority and its satisfaction should be based on such data.

This right of the landlord to seek permission for "alterations" to give quit notice to tenant is further balanced by the right of the tenant under sub-clause (7) of Clause 13, where it is provided that if the landlord ejects tenants upon such permission, he is bound to restore the possession of the house or premises to the tenant on the basis of same tenancy. This right of restoration of tenancy balances the injury temporarily the tenant suffers; for landlord after building is obliged by statute to let the same tenant on the premises. That was and is enough safeguard in the present scheme of the Rent Control Order. The Authorities charged with duty to give permission would there-fore be right and emitted to find that after the proposed "alteration" this right of tenant is not destroyed. A construction of premises which will affect such a right of the tenant would therefore be impermissible. It will be implicit in such proceeding to expect the landlord to satisfy the Authority by laying material to show that tenant''s right under this clause is well protected and would be sub served .

10 Under this Clause therefore if the landlord reasonably satisfies by proof of his ability to reconstruct, that he has taken steps necessary to reconstruct his house or premises and that it is not a mere scheme to eject the tenant and further if his proposed reconstruction does not impair the right of the tenant to restoration of his tenancy, the Rent Control Authorities would not be justified is refusing to accord permission. All that Authority may expect is to have assurance of a time schedule reasonably required for a given type of construction after the premises become available for such construction.

Coming to the controversy, the landlady had pleaded that the premises were in dilapidated condition. Its appearance was shabby and she wanted to make essential repairs or alterations by remodelling the shops. Along with that she had tendered the sanctioned maps showing that there was sanction to reconstruct the premises. Maps clearly show how the shops would be rebuilt. That is not in dispute. That also at once proves that after reconstruction tenancy can be restored. There is no doubt about the capacity to finance such a building. In fact no dispute about the same is raised before this Court.

The evidence led by the parties, however, mainly concentrated itself on the condition of the present premises as if the reconstruction was a repair oi the premises. The landlady tried to establish that the house was quite a old construction. There is clear evidence that the landlady was desirous to rebuild the same for it has outlived its utility and life. That evidence can hardly be questioned and even the respondent in his testimony did not dispute it. The evidence of Bhalchandra Gurjar led by him is to the effect that the premises were in good condition, there is a tin roof which is old, the floor was of ordinary tiles and the premises have been recently repaired 4 or 5 years back. In his view, the if present construction as it is is kept up, it may have a life of another 100 years. He was unable however to say what was the life of the present structure. His opinion is based on the cuter observations of the walls. As against this, there is positive evidence coming from the landlady''s witness Motidas who had drawn and submitted maps for sanction. Engineer Mr. Deo deposed that the house requires reconstruction. In his view the eastern wall had in fact bent and is weak and he opined that it was a dilapidated construction. He also proves the maps which were drawn in his office. In the cross-examination he was asked about the life of the premises and he has said that it is a very old structure and outlived its life of 60 to 70 years.

Thus the landlady had established that she was desirous and genuinely wanting to reconstruct the shop premises. Ample material was placed by her to prove this. There was nothing to doubt the same. She had in fact taken all the steps in that regard. Under such circumstances, looking to the construction which is admittedly pretty old, it was not proper on the part of the Rent Control Authorities to seek proof whether the construction itself was essential to the house. Once the objective facts that the house is pretty old, that steps have been taken by the landlady in getting sanction to the plans from the public Authorities for its reconstruction and that she was in a position to effectively reconstruct the house and after such reconstruction the tenant''s right would not be jeopardised, all the conditions were fully satisfied. 1 he case has been really misunderstood as the case of essential repairs and the error in the orders of the Rent Control Authorities is apparent.

Upon such proof, the Rent Control Authorities should be slow to refuse permission for reconstruction of the houses, for that right appears to be kept intact advisedly by the Order itself and is only subject to condition of the right of the tenant which operates upon the premises which will be rebuilt and which the landlady is obliged to let him back on the same tenancy. The scheme of sub-clause (3) (vii) and sub-clause (7), of Clause 13, itself indicates that there should not be stoppage of building activity only because tenants are occupying the premises, on the other hand, better, newly constructed premises may further the process of growing urbanisation.

That being the position, the argument of Mr. Deshpande that the petitioner is not entitled to give quit notice only because there must be some ulterior motive in the mind of the petitioner so as to affect his business, does not stand to reason, In fact, the facts and circumstances of the present case negatives such an inference. The respondent in writing, it appears, in the earlier proceedings had agreed that in case there was a case for reconstruction of the premises, he would never object for the same. That was in a compromise effected before the Rent Controller. The application dated December 2, 1965 filed is on the record and its contents are admitted. Reconstruction of the house and desire to Reconstruct being the only question that was required to be considered, the submission that it is for some ulterior motive has no basis nor foundation.

In the result, the petition succeeds and is allowed. The petitioner will have permission to give quit notice under Clause 13 (3) (vii) of the Rent Control Order. It is expected that the petitioner will not delay the starting of construction of the premises after getting the same vacated and is expected to complete it in reasonable time.

Though the petition thus succeeds, there will be no orders as to costs.