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PETITIONER: KRISHANLAL ISHWARLAL DESAI

       Vs.

RESPONDENT: BAI VIJKOR AND OTHERS

DATE OF JUDGMENT: 18/01/1963

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C.

CITATION:  1967 AIR  375            1966 SCR  (1) 553

ACT: Rents  and  Rates Control-Recovery of  possession  by  land- lord--Reasonable and bonafide requirement for occupation  or construction-Failure of landlord to occupy within one month- Whether  tenant  entitled to  get  possession-Bombay  Rents, Hotel and Lodging House Rates Control Act., 1947 (Bom. 57 of 1947), ss. 13 (1) (g), 13 (1) (i), 17 (1).

HEADNOTE: The appellant is the owner of a vacant plot of land of which the respondents were the tenants.  The former applied to the court for ejectment of the latter and for getting possession under  S. 13 (1) (g) and (e) of the Bombay Rents, Hotel  and Lodging House Rates Control Act, 1947 on the grounds that he reasonably  required the land for occupation by himself  and for  erection  of new buildings.  The trial court  found  in favour of the appellant on the first ground but rejected his claim  under the second ground.  Though cross  appeals  were filed the appellate court substantially upheld the order  of the  court below’ Thereafter the appellant  took  possession about  four months later and started storing  materials  for sanitary  works and buildings even though at the  trial  his case was that he wanted the land for storing of timber.  The respondents applied under s. 17 (1) of the Act to the  trial court  to  obtain possession of the premises on  the  ground that the appellant had failed to occupy the premises  within one  month of his recovery of possession.  The  trial  court rejected  their application but the appellate court  allowed the  appeal filed by them.  The revision petition  filed  by the appellant was summarily rejected by the High Court.  The present  appeal  is byway of special leave granted  by  this Court. The  appellant’s contention before this Court was  that  the period of limitation of one month prescribed under s. 17 (1) would be applicable to an order under s. 13 (1) (i) and  not to one passed under s. 13 (1) (g). Held, that s. 17 (1) makes a distinction between  occupation and possession.  The period of limitation of one month 554

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applies as much to the case of occupation as to the case  of erection of the work, contemplated by cl. 13 (1) (g) and (i) respectively.   Since  the  appellant  did  not  occupy  the premises  within one month he has failed to comply with  the first  part  of  s. 17 (1) and  hence  the  respondents  are entitled to an order for the possession of the premises.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 804 of 1962. Appeal by special leave from the order dated April 11, 1962, of  the Gujarat High Courtin Civil Revision Application  No. 335 of 1962. M.C. Setalvad, and I. N. Shroff, for the appellant. S.T.  Desai, J. B. Dadachanji, O. C. Mathur and  Ravinder Narain, for the respondents. 1963,  January 18.  The judgment of the Court was  delivered by GAJENDRAGADKAR,  J.-This  appeal by special leave  raises  a short question about the construction of section 17 of  the’ Bombay  Rents’.  Hotel and Lodging House Rates Control  Act, 1947 (No. 57 of 1947 (hereinafter called the Act).  The said question  arises  in  this way.   The  appellant  Krishanlal Ishwarlal  Desai  is the landlord who owns an open  plot  of land named Hathi Khada in Kalaswadi town in the district  of Surat.  The said plot measures 32,406 sq. ft. This plot  was in the possession of the respondents Bai Vijkor & others  as tenants.   In  1951, the appellant sued the  respondents  in ejectment.   He claimed that under s. 13 (1) (g) and (i)  of the  Act  he  was  entitled to  recover  possession  of  the premises  consisting  of the open plot  in  question.   This claim was resisted by the respondents.  The trial Court held that the appellant had not established his case under S.   13 (1)  (i)  but  had proved his claim under  s.  13  (1)  (g). Having recorded i this finding, the trial Court  555 proceeded to examine the extent of the requirement proved by the appellant.  Section 13 (1) (g) provides inter alia, that notwithstanding  anything contained in the Act,  a  landlord shall  be entitled to recover possession of any premises  if the Court is satisfied that the premises are reasonably  and bona  fied  required  by  the  landlord  for  occupation  by himself.   Section  13 (1) (i) provides  that  the  landlord would  be  similarly entitled to recover possession  if  the premises  being  land,  they  are  reasonably  and  bonafide required by the landlord for the erection of a new building. The trial Court found that the requirement of the  appellant would  be  adequately met if he is given a  decree  for  the possession  of 2/3rds of the plot in suit.   Accordingly,  a decree was passed in his favour to that extent on March  16, 1955. This  decree  was challenged both by the appellant  and  the respondents  by  cross-appeals in the District  Court.   The District  Court held that the view taken by the trial  Court was substantially right and there was no reason to interfere with  the  decree  passed by it.  In the  result,  both  the appeals were dismissed on April 28, 1956. The  appellant  then  filed  an  execution  application  and obtained possession of 2/3rds of the premises in question on June   29,  1957.   It  appears  that  at  the  trial,   the appellant’s  case was that he wanted the said  premises  for the  purpose of his timber business.   Eventually,  however, the  appellant  occupied the said premises  on  October  24, 1957,  not  for  carrying on his  timber  business  but  for

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storing or stocking materials of sanitary works and building contracts  which business he had started in  partnership  on that  day.   The appellant had constructed a  shed  for  the watchmen to look after the articles which were stored on the open plot. On July 29, 1958, the respondents applied under s. 17 (1) of the Act to the trial Court to obtain 556 possession of the said premises on the ground that     the appellant  had failed to occupy the said premises  within  a period  of  one  month  from  the  date  when  he  recovered possession  as required by s. 17 (1).  The trial Court  held that the respondents had failed to make out a case under  s. 17 (1) and so, their application was dismissed. The  respondents then preferred a revisional application  in the District Court.  This revisional application was treated as an appeal because the order passed by the trial Court was applicable.  The District Court held that the appellant  had failed  to occupy the premises within the period  prescribed by  s.  17 (1) and so, the respondents were entitled  to  an order  against the appellant for the possession of the  said premises.   This  order was challenged by the  appellant  by preferring a revisional application before the High Court of Gujarat.  The revisional application was, however, summarily dismissed.  It is this revisional decision of the High Court of  Gujarat that has given rise to the present  appeal,  and the only question which is raised for our decision is  about the construction of s. 17 (1) of the Act. We have already seen that s. 13 provides for cases where the landlord  is entitled to-recover possession of the  premises from  the tenant and that the appellant in fact  obtained  a decree for possession under s. 13 (1) (g) on the ground that 2/3rds of the premises were reasonably and bonafide required by him for occupation by himself.  The respondents’ case  is that  under s. 17 (1) it was obligatory on the appellant  to occupy  the  premises within one month after June,  29  1957 when   possession   was  delivered  to  him   in   execution proceedings;  since  he  had  failed  to  comply  with  this requirement, they became entitled to obtain back  possession of  the  said premises; and as the present  application  had been made by them within 13 months from June, 29 1957, as  557 required  by s. 17 (1), an order for possession ought to  be passed  in their favour.  The appellant, on the other  hand, contends that the stipulation as to the period of one  month on  which the respondents relied does not apply to the  case of  occupation  which would arise in the case  of  a  decree passed under s. 13 (1) (g).  The said period applies to  the case of a decree passed under s. 13 (1) (i) That is how  the controversy  between  the  parties raises  the  question  of construction of s. 17 (1). Let us now read s. 17 (1).  Section 17 (1) reads as under :-               "  where a decree for eviction has been passed               by the Court on the ground specified in clause               (g) or (i) of sub-section (1) of s. 13 and the               premises are not occupied or the work of erec-               tion  is not commenced within a period of  one               month  from  the date  the  landlord  recovers               possession  or the premises are  relet  within               one year of the said date to any person  other               than the original tenant, the Court may on the               application  of  the  original  tenant,   made               within thirteen months of such date order  the               landlord   to  place  in  occupation  of   the               premises on the original terms and conditions,

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             and,  on such Order being made,  the  landlord               and any person who may be in occupation of the               premises  shall give vacant possession to  the               original tenant." It  is clear that when s. 17 (1) refers to  the  requirement that  the  premises must be occupied by  the  landlord,  the occupation  intended  by  the provision  is  different  from possession, because the first clause of 17 (1) makes a clear distinction  between occupation and delivery of  possession. The  effect of this clause is that when a landlord  who  has obtained  a  decree for possession executes the  decree  and obtains  possession  of  the premises in  question  he  must occupy them 558 in terms of the case made out by him under s. 13 (1) (g) and held proved at the trial.  Whether or not the occupation  by the landlord should be for the same purpose which he set out at  the  trial  or  can be for a  different  purpose,  is  a question  which it is unnecessary to decide in  the  present appeal.   What is, however., clear beyond any doubt is  that when  the  possession is obtained in execution  it  must  be followed  by  an  act of occupation  which  must  inevitably consist of some overt act in that behalf and this overt  act was,  on  the  finding of the District Court,  done  by  the appellant  on  October  24,  1957.   That  means  that   the appellant  occupied  the premises beyond the period  of  one month prescribed by s. 17 (1). Does the stipulation about the period of one month apply  to the case of a decree passed under s. 13 (1  That is the next question  to, consider.  It would be noticed that the  first clause  of s. 17 (1) deals with decrees passed under  s.  13 (1) (g) and (i) and reading the clause, there appears to  be no  difficulty  in holding that the requirement  as  to  one month applies to both categories of decrees.  On a fair  and reasonable construction of that clause, there appears to be no  escape from the conclusion that the period of one  month applies as much to the case of occupation as to the case  of erection of the work contemplated by ss. 13 (1) (g) and  (i) respectively. Besides,  the  scheme  of s. 17 (1)  clearly  supports  this construction.  Section (13) (1) has allowed the landlord  to eject  the tenants from the Dresden in their possession  for specified reasons and s. 17 (1) affords’ a protection to the tenants where a decree for ejectment has been passed against them under cl. (g) or (i) of s. 13 (1).  If the  legislature thought it necessary to require the landlord to commence the work of erection if he has obtained a decree for  possession under s. 13 (1) within one month, there is.  559 no  reason why the legislature should not have provided  for the same or similar period in respect of occupation which is referable  to the decree passed under s. (13) (1) (g).   Mr. Setalvad  contends  that the occupation  could  be  effected within a reasonable time for he suggests that no  limitation having  been  prescribed in that behalf,  the  general  rule would  be that it should be done within a  reasonable  time. We think this construction cannot be accepted because it  is extremely unlikely that the legislature should have provided the  period  of one month for one category  of  decrees  and should have made no specific provision in thatbehalf  in respect of decrees of the other category. Besides,    the construction of the clause accordingto   the  rules   of ordinary  grammar  is  decisively  against  the  appellant’s contention. The  second  clause of s. 17(1) refers to a case  where  the

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landlord re-lets the premises within one year of the date on which he obtains possession in execution proceedings to  any person other than the original tenant.  In other words, this clause covers cases where the landlord obtains a decree  for possession  and instead of using the premises  for  purposes pleaded by him and on proof of which a decree. was passed in his  favour he proceeds to re-let them to a stranger and  it provides that if this re-letting takes place within one year of the date specified by it, the original tenant is entitled to claim possession of the said premises.  This clause  also shows  that s.17(1) is intended to afford protection to  the rights  of tenants who have been ejected under  s.  13(1)(g) and (i). Similarly,  a  period of limitation is  prescribed  for  the exercise of the rights conferred on the tenants by the  last clause  of s. 17(1).  This clause provides that the  tenants who  want  to claim the protection of s.  17(1)  must  apply within  13  months  of  the date  on  which  possession  was delivered  to the landlord-decreeholder.  The scheme  of  s. 17(1) thus clearly proves 560 that  all  the relevant clauses have  prescribed  respective periods of limitation, and so, it would. be idle to  suggest that  the  liability imposed on the landlord to  occupy  the premises possession of which had been decreed in his  favour under s. 13(1)(g) is without any relevant limitation. There   is   another  consideration  which   supports   this conclusion.  Section 17(2) provides for a penalty against  a landlord  who contravenes the provisions of s. 17(1).   This provision  lays  down,  inter alia, that  any  landlord  who recovers  possession on the grounds specified under cl.  (g) or (i) of s. 13(1) and keeps the premises unoccupied or does not commence the work of erection without reasonable  excuse within  the  period of one month from the date on  which  he recovers  possession, shall on conviction be  punishable  in the manner specified in the said provision.  Similar penalty is  imposed on a landlord or other person in  occupation  of the premises who fails to comply with the order of the Court under s. 17(1).  It is obvious that when the first clause of s.  17(2)  refers to the failure of the landlord  either  to occupy   or  to  commence  erection  of  the  work   without reasonable excuse within the period of one month, absence of reasonable excuse and the period of one month apply as  much to cases falling under cl. (g) as to cases falling under cl. (i)  of  s. 13(1).  The plea open to the  landlord  that  he failed  to occupy the premises or he failed to commence  the work of construction within the specified period because  of a  reasonable excuse is available to him in both  categories of  cases  and  so, absence  of  reasonable  excuse  applies equally  to  both the said categories.  If that is  so,  the period  of one month which is the crucial point must  govern both  the categories of cases.  Therefore, in  our  opinion, the  High Court was right in agreeing with the  decision  of the  District Court that the appellant in the  present  case had failed to comply with the first part of s. 17(1) and so, the respondents were entitled  561 to-an order for possession of the premises in question.  The appeal accordingly fails and is dismissed with costs. Appeal dismissed.