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PETITIONER: MAHARAJ JAGAT BAHADUR SINGH

       Vs.

RESPONDENT: BADRI PRASAD SETH

DATE OF JUDGMENT: 20/03/1962

BENCH:

ACT: Rent  Control-Requirement  of possession  by  land-lord  for carrying out repairs-Whether repairs can be effected without evicting  tenant-Powers of the High Court  in  revision-East Punjab  Urban  Rent Restriction Act, 1949 (East Punj.  3  of 1949), ss. 13(3)(a), 15(5).

HEADNOTE: Appellant  landlord  applied  to  the  Rent  Controller  for eviction of the Respondent tenant on 1.12.56 under s.  13(3) of  the  Punjab  Urban Rent Restriction  Act  for  remedying certain defects in the based building.  The Municipal Commi- ttee on 11.4.57 issued an amended notice requiring only that the  cracked pillar be reinforced so as to make it  a  solid block.   Respondent  carried out the repairs.   On  June  8, 1957,  the Executive Engineer inspected again in  compliance with  tile  order of the Rent Controller And  was  satisfied that the pillar had been repaired satisfactorily.  The  Rent Controller  held that the case fell within s. 13 (3) (a)  of the  Act and ordered eviction of the Respondent.  On  appeal the  District  judge  taking note of the  state  of  repairs allowed  the appeal.  In revision under s. 15(5) of the  Act the High Court judge held that the powers of the High  Court in revision were similar to those under s. 115 of the  Civil Procedure   Code   and  that  there  was  no   question   of jurisdiction  involved in the case.  He,  however,  affirmed the decision after considering the evidence. Held,  that the powers of the High Court under s. 15 (5)  of the Act were manifestly wider than those under s. 115 of the Civil  Procedure Code and were not confined to questions  of jurisdiction.   That  under s. 13(3z(a) the  requirement  of vacant  possession.  by the landlord could only be  for  the purpose  of  carrying  out such  fundamental  and  extensive repairs  as  could not be carried out without  evicting  the tenant and not for minor repairs and that it Was open to the District  Judge to consider the subsequent events  upto  the time when eviction was ordered by the controller in view  of the scheme and purpose of the legislation.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 340 of 1959. Appeal by special leave          from the judgment  953 and  order dated May 21, 1958, of the Punjab High  Court  in Revision Application No. 27 of 1958. M.C.  Setalvad, Attorney-General of India, S. N.  Andley, Rameshwar Nath and P. L. Vohra, for the appellant.

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H.N.  Sanyal, Additional Solicitor General of India,  and I. N. Shroff, for the respondent. 1962.  March 20.  The Judgment of the Court was delivered by DAS, J.-This is an appeal by special leave from the judgment and order of a learned single Judge of the Punjab High Court dated May 21, 1958, hi Civil Revision application No. 27  of 1958 of that Court.  By that order the learned single  Judge dismissed  an application in revision made by the  appellant herein in the following circumstances. The  appellant, Maharaj Jagat Bahadur Singh is the owner  of the premises known as Ranzor Hall in Simla.  The respondent, Badri  Prasad  Seth, is in occupation of the premises  as  a tenant  and is running a cinema’ therein which is  known  as Revoli theatre or Revoli cinema.  The correspondence between the  parties  shows  that on or about  April  12,  1956  the Executive Engineer, Simla Provincial Division, inspected the cinema  building  on  behalf  of  the  Licensing  Authority, namely,  Deputy Commissioner, Simla, and noted six  defects, one  of  which  was,  to use  the  words  of  the  Executive Engineer,  "the right hand pillar of the screen has  cracked and  has gone out of plumb." The existence of these  defects was communicated to the respondent and also to the Municipal Committee,  Simla.  The respondent in his turn  communicated the existence of these defects to the appellant by a  letter dated  April  17,  1956.   In  that  letter  the  respondent suggested  to  the appellant that the defect in  the  pillar should  be-removed before the beginning of June, 1956,  when the rains were likely to 954 commence.   The respondent removed the other  defects  which were  of  a  minor nature; but getting  no  reply  from  the appellant, he again wrote to him on September I’d, 1956, and asked him to take early steps to repair the pillar  to-avoid any mishap.  The respondent also intimated to the  appellant that  the cost of repairs to the pillar was likely to be  in the  neighbourhood  of Rs. 5000/-.  The  appellant  took  no action  in the matter for some time.  On September 24,  1956 the  East  Punjab  Urban Rent Restriction  Act,  1949  ’East Punjab  Act No.III of 1949) (hereinafter referred to as  the Act)  was amended and a clause was inserted in  s.  13(3)(a) thereof  which  entitled the landlord to apply to  the  Rent Controller  for  an order directing the tenant  to  put  the landlord  in  possession in the case of any building  if  he required  it to carry out any building work at the  instance of  the  Government or local authority or  any  Improvement, Trust under some improvement or development scheme or if the building had become unsafe or unfit it for human habitation. Oil  April  9, 1956, the appellant wrote to  the  President, Simla  Municipal Committee, asking him to get the pillar  in the Ranzor Hall inspected by the Executive Engineer in order to  have  his  opinion whether the pillar was  really  in  a dangerous  condition and required any action on the part  of the Municipal Committee under s. 116 of the Punjab Municipal Act, 1911 (Punjab Act III of 1911). On  October  30, 1956, the Secretary,  Municipal  Committee, Simla,  wrote to the respondent about the defect in  respect of  the  right hand pillar of the screen  and  required  the respondent  by  means of a notice to do the  repairs  within fifteen  days of the receipt of the notice.   The  Secretary issued the notice purporting to act under so. 113 and 114 of the  Punjab  Municipal  Act,  1911.   It  appears  that  the Municipal  Committee  had  the  pillar  inspected  again  in November, 1956, by the Executive Engineer,  955 Simla  Central Division.  This time the  Executive  Engineer

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suggested  that the two end. walls (pillars) supporting  the beams  for  the screen were cracked and  therefore  must  be replaced   by  thicker  walls.   The   Municipal   Committee considered this report and came to the conclusion that as  a precautionary  measure  what was necessary was to  fill  the doorway  in the pillar with masonry so that the whole  might become  a  solid block.  On April 11,  1957,  the  Municipal Committee  wrote to the appellant asking the latter to  fill the  doorway  with masonry so that the  whole  pillar  might become  a  ,solid block.  This was in  modification  of  the earlier notice which had suggested more extensive repairs to the pillar.  But before April 11, 1957, when the new  notice from the Municipal Committee was received, the appellant had already made an application on December 1,1956, under s.  13 of  the  Act  praying  for  an  order  from  the  Controller directing the respondent to put the appellant in  possession of  the property on the ground that the  appellant  required the  building  for replacing the end  walls  supporting  the beams of the screen by thicker walls.  This application  was contested  by the respondent mainly on the ground  that  the appellant’s  claim was not bona fide and that the  appellant did  not really require the building to be vacated  for  the purpose of making the repairs to the pillar in question. The Rent Controller came to the conclusion that the case was fully  covered  by  cl.  (iii) of 8.13  (3)(a)  of  the  Act inasmuch as on the evidence on the record it was established that  the appellant required the building to carry  gut  the necessary  building  work  which  the  Municipal  Committee, Simla,  had directed to be done,.  There was an appeal  from the  order of the Rent Controller to the District Judge  who was the relevant appellate authority under s.15 of the  Act. The  learned District Judge came to the conclusion that  the notices under a. 113 and 114 of the Punjab Municipal 956 Act,  191 1, had been manipulated by the landlord after  the amendment  made in a. 13 of the Act on September  24,  1956, and  that  the  appellant  did not  bona  fide  require  the building  for  carrying out the repairs  in  question.   The learned  District Judge pointed out that on April  11,  1957 the  Municipal Committee had asked the landlord to fill  the doorway with masonry so that the whole might become a  solid block  and though the Municipal Committee bad  modified  its earlier  requirement of thicker walls by means of  a  notice after the filing of the application by the appellant, it was open to the Court to take into consideration facts which had come into existence after the filing of the application.  He also  pointed  out  that  the  evidence  of  the   Executive Engineer,  Central  P.W.D.,  showed that  he  inspected  the building  on  June  8,  1957, in  the  compliance  with  the directions  of the Court and was satisfied that  the  pillar had  been  satisfactorily  repaired.  In this  view  of  the matter  the  learned District Judge allowed the  appeal  and dismissed the application. Then, there was an application in revision under a. 15(5) of the Act to the High Court.  This application was dealt  with by  K.  L. Gosain, J. who wrongly proceeded on  the  footing ,that the application in revision was one under s. 115, Code of  Civil Procedure.  Though the learned Judge said that  he had  gone through the evidence and agreed with the  findings arrived at by the District Judge,. he came to the conclusion that as no question of jurisdiction was involved within  the meaning of s.115, Code of Civil Procedure, he saw no reasons to interfere and dismissed the application in revision.  The present appeal is directed against this order of the learned single Judge.

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The learned Attorney General who appeared on behalf of  the appellant has rightly pointed out that the, learned Judge of the High Court was in 957 error in disposing of the case as though the application  in revision made to the High Court was an application under  a. 115, Code of Civil Procedure.  The application was really an application under a.     15(5) of the Act which is in  these terms               "15.  (5) The High Court may, at any time,  on               the  application of any aggrieved party or  on               its  own  motion,  call for  and  examine  the               records  relating  to  any  order  passed   or               proceedings  taken  under  this  Act  for  the               purpose   of  satisfying  itself  as  to   the               legality   or  propriety  of  such  order   or               proceedings   and  may  pass  such  order   in               relation thereto as it may deem fit." It is manifest that the scope of sub-a. (5) of a. 15 of  the Act  is not the same as the scope of a. 115, Code  of  Civil Procedure.   The  learned Attorney  General  has  submitted, rightly  in our opinion, that the scope of sub-a. (5) of  a. 15  of the Act is wider and is not confined to questions  of jurisdiction only. But even if the learned Judge of the High Court was in error in  treating  the application as one under a. 115,  Code  of Civil  Procedure, the fact ’-still remains that he  affirmed the findings of the learned District Judge and one of  these findings was that the landlord did not require the  building to  carry  out the repair work which was  suggested  by  the Municipal Committee.  The Municipal Committee had  suggested a  very  simple work of repair, namely, filling  up  of  the doorway in the pillar so that the pillar might be one  solid wall  to  support  the screen.  It has  not  been  seriously disputed before us that such repairs could be easily carried out  with.  out the necessity of asking  the  respondent  to vacate  the building.  As a matter of fact the learned  Dis- trict  Judge  has pointed out that the  Executive  Engineer, Central P.W.D. had, subsequent to the application,  examined the pillar and found that 958 the repair work had already been done ’by the respondent. The learned Attorney General has contended that the  learned District  judge was in error in holding that  the  appellant had  manipulated  the notices under s. 113 and  114  of  the Punjab  Municipal Act.  We think it unnecessary to  go  into that question because the relevant provision in s.  13(3)(a) of the Act makes it quite clear that the landlord is  entit- led to an order from the Controller directing the tenant  to put the landlord in possession of the building only when the landlord  requires  it to carry out any building  work  etc. The relevant provision reads as follows .lm15 "13. (1) A tenant in possession of a building or rented land shall  not be evicted therefrom x. x x except in  accordance with the provisions of this section, x x x. (2)  x x x. (3) (a) A landlord may apply to the Controller for an  order directing the tenant to put the landlord in possession- (1)  x x x (ii)  x x x (iii)in  the case of any building or rented land if  he requires  it to carry out any building work at the  instance of  the  Government or local authority  or  any  Improvement Trust under some improvement or development scheme or if’ it

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has become unsafe or unfit for human habitation. x    x X. We  emphasise the word "requires" in the provision.   Having regard  to the scheme and purpose of the legislation  it  is abundantly clear that cl. (iii) of 959 a.13(3)(a)  of the Act is attracted only when  the  building work is such that the landlord requires that the building be vacated  by the tenant in order to carry out the work  ;  in other  words,  the  repairs  needed  are  so  extensive  and fundamental in character that they cannot be carried out  if the tenant remains in possession.  Then only it can be  said that  the  landlord requires the building to carry  out  the building  work.  We think that it is absurd to suggest  that any  such small work as whitewashing, or filling up the  gap in  the  doorway as in the present cage,  comes  within  el. (iii) of s. 13(3)(a) of the Act. The  learned  Attorney General has argued that  the  learned District  Judge wrongly took into consideration facts  which had come into existence after the filing of the  application under  s.  13 of the Act.  Here again we think  that  having regard to the scheme and purpose of the.. legislation it was open  to the learned District Judge to take into  considera- tion  such facts as existed at the time when the  order  for vacation  was to come into effect.  Section (13)  says  that 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.   In  the present  case the Controller made  the order in July,  1957, and  directed  the building to be vacated by  September  25, 1957.   But long before that date, namely, on June 8,  1957, the  Executive ’Engineer, Central P.W.D., had inspected  the building  and  found  that  the  pillar  had  been  repaired satisfactorily.    The  ,Controller  did  not   accept   the testimony of the Executive Engineer and the learned District Judge  pointed  out  that the  testimony  of  the  Executive Engineer  had  been  rejected  by  the  Controller  on  very insufficient grounds.  It was, open to the learned  District Judge  to  take  into consideration  the  testimony  of  the Executive Engineer and having regard 960 to  that testimony, the learned District Judge rightly  came to the conclusion that cl. (iii) of a. 13(3) (a)  of the Act was not attracted to the case. For these reasons we have come to the conclusion that  there is  no  merit in the appeal which is  accordingly  dismissed with costs. Appeal dismissed.