28 April 1964
Supreme Court


Case number: Appeal (civil) 61 of 1964






DATE OF JUDGMENT: 28/04/1964


CITATION:  1964 AIR 1676            1964 SCR  (8)   1  CITATOR INFO :  RF         1984 SC1890  (7)  R          1985 SC 139  (3)  RF         1986 SC1789  (3)  F          1992 SC1696  (11)

ACT: Bombay  Rents,  Hotel and Lodging House Rates  Control  Act, 1947,  s.  13(1) (g), (hh)-Premises  required  bonafide  for occupation   after  carrying  out  repairs--sub-section   if applicable.

HEADNOTE: The  appellant was a tenant of the ground floor of  a  house owned  by respondent.  The respondent sued for ejectment  of the  appellant  on the ground that he  required  the  entire house  including the portion occupied by appellant, for  his residential  purpose.  The defence of the appeRant was  that respondent  did  not reasonably and bona  fide  require  the premises  for his occupation and for carrying  out  repairs. The  trial court decreed the suit of the respondent  on  the ground  that respondent bona fide required the premises  for his occupation.  Ile appeal of the appellant was  dismissed, His  revision  petition was -also dismissed by  High  Court. The appellant came to this Court by special leave.  The only question for decision before this Court was whether the case of respon’dent came within the provisions of s. 13 ( I ) (g) or s. 13 (1) (hh), Dismissing the appeal, HELI):-The  case  of  respondent fell under cl.  (g)  as  he required the premises for his own occupation.  The mere fact that he intended to, make alterations in the house either on account  of  his  sweet  will  or  on  account  of  absolute necessity  in  view of the condition of the house,  did  not affect the question of his requiring the house bonafide  and reasonably  for his occupation, when he had proved his  need for  occupying  the house.  There was  no  such  prohibition either in the language of cl. (g) or in any other  provision of  the Act to the effect that the landlord must occupy  the house  for  residence without making any alteration  in  it, There  could  be no logical reason for such  a  prohibition. The provisions of s. 13 are for the benefit of the  landlord and  the  various grounds for ejectment  mentioned  in  that



section  are such which reasonably justify the ejectment  of the  tenant in the exercise of the landlord’s general  right to  eject his tenant.  There is no reason  why  restrictions not  mentioned  in  the  grounds be  read  into  them.   The provisions of cl. (hh) cannot possibly apply to a case where a  landlord reasonably and bona fide requires  the  premises for  his  own  occupation even if he  had  to  demolish  the premises  and erect a new building on them.  The  provisions of  cl.  (hh)  apply to cases where the  landlord  does  not require  the  premises for his own occupation  but  requires them  for erecting a new building which is to be let out  to tenants. 2 Krishanial  Ishwarlal  Desai v. Bai Yijkor [19641  1  S.C.R. 553,  Krishna Das v. Bidhan Chandra, A.I.R. 1959  Cal.  181, McKenna V. Porter Motors Ltd. [1956] A.C. 688, Betty’s Cafes Ltd.  v.  Phillips Furnishing Stores Ltd.  [1959]  A.C.  20, Manchharam  Ghelabhai  Pittalwala v. Surat  Electricity  Co. Ltd.   Civil  Revision  Application  No.  204/56  dated  1st February,  1957  by  the  Bombay  High  Court  and  Allarkha Fakirmahomed v. Surat Electricity Co.  Ltd., Civil  Revision Application  No.  164/57,  dated 8th October,  1957  by  the Bombay High Court, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : CIVIL APPEAL No. 61 OF 1964 Appeal  by special leave from the judgment and decree  dated October  28,  1963  of the.  Gujarat  High  Court  in  Civil Revision Application No. 697 of 1962. Purshottam Trikamdas, M. 1. Patel and I. N. Shroff, for  the appellant. S.   T. Desai, B. J. Shelat, J. B. Dadachanji, 0. C.  Mathur and Ravinder Narain, for the respondent. April 28, 1964.  The Judgment of the Court was delivered by RAGHUBAR  DAYAL,  J.-This  appeal,  by  special  leave,   is directed  against  the order of the Bombay  High  Court  and raises the question of the true construction of sub-cis. (g) and  (hh) of sub-s. (1) of S. 13 of the Bombay Rents,  Hotel and  Lodging  House  Rates Control Act, 1947  (Act  LVII  of 1947), hereinafter called the Act. The  facts  leading to the appeal, in short,  are  that  the appellant  is a tenant of the ground-floor of a house  owned by the respondent.  The respondent sued for the ejectment of the  appellant  on the ground that he  required  the  entire house, including the portion occupied by the appellant,  for his residential purpose.  He further stated in the plaint-. "The  whole suit bungalow is very old-built about  75  years ago  and at present its different parts are likely  to  give way  and collapse.  Before sometime, a little portion of  an upper balcony had collapsed.  In the circumstances, on find- ing  it  unsafe  to stay in  it  without  making  additions, alterations  and  necessary changes, I,  the  plaintiff,  am obliged to wait till I get possession of the whole bungalow. 3 1.   the plaintiff, have got the upper portion of the said suit  bungalow vacated at present and only after  the  whole bungalow is got overhauled as -stated in para above, 1,  the plaintiff can utilize it for my personal use." ’Me   appellant  contested  the  suit  on  various   grounds including  the ones that the respondent did  not  reasonably and  bona fide require the premises for his  occupation  and that  he  did  not  reasonably and  bona  fide  require  the premises for carrying out repairs.



The trial Court found that the respondent bona fide required the premises for his occupation.  It repelled the contention of  the  appellant that the provisions of s. 1 3  (  I)  (g) would  not be applicable when the landlord did not  wish  to occupy the premises as such but intended to occupy it  after carrying  out  major repairs. and decreed  the  respondent’s suit for ejectment. The  defendant  went up in appeal.  It was  dismissed.   The appellate  Court, agreed with the views of the trial  Court. The defendant then presented a revision petition to the High Court.   It was rejected.  It is against this order that  he has filed this appeal. A preliminary objection has been taken that the revision  to the  High  Court was incompetent as no  question  of  juris- diction was involved.  For the appellant it is urged that on the facts found. the trial Court assumed jurisdiction  which it did not have and that therefore the revision was  compet- ent.  We uphold the preliminary objection and hold that  the revision was incompetent. The question raised was whether a decree in ejectment should be passed on the ground of personal requirement under s. 1 3 (1)  (g)  of the Act where it was proved that  the  landlord wanted to pull down the premises and build another and  then occupy  it.   It  was said that in such a  case  he  had  to proceed  under cl. (hh) of s. 13(1).  It is clear  that  the question  so  raised is one of interpretation of  these  two clauses.   Section 28 of the Act gives jurisdiction  to  the Court specified in it, to try a suit or proceeding, between a  landlord  and  tenant  relating  to  possession  of   the premises.   That section expressely provides that  no  other Court, subject to the provisions of sub-s. (2) which do  not apply  to  this  case, has jurisdiction  to  entertain  such suits.   It is clear from this section that the trial  Court had  full jurisdiction to entertain the suit for  ejectment. That being so, it had jurisdiction to interpret whether  cl. (g)  of  s.  13(1) would apply to  the  present  case.   The appellate  Court had jurisdiction to hear the  appeal.   The High Court could not, therefore, interfere in revision  with the  decision  of the appellate Court, even if it  had  gone wrong, on facts or law, in the exercise of its jurisdiction. It follows that the revision application had to be dismissed by the High Court and that this appeal too must fail. Since  the merits of the case have been argued fully  before us, we express our opinion on the law point urged before us. The sole question to determine in this appeal is whether the respondent’s case came within the provisions of s.   13 (1) (g) of the Act or fell within the provisions of s.   13 (1) (hh).  We may now set out these provisions: "13(1)  Nothwithstanding anything contained in this Act  but subject to the provisions of section 15, a landlord shall be entitled to recover possession of any premises if the  Court is satisfied... (g)  that the premises are reasonably and bona fide required by  the landlord for occupation by himself or by any  person for  whose  benefit  the  premises are  held  or  where  the landlord is a trustee of a public charitable trust that  the premises are required for occupation for the purposes of the trust; or (hh)  that the premises consist of not More than two  floors and  are reasonably and bona fide required by  the  landlord for  the  immediate  purpose of demolishing  them  and  such demolition  is  to be made for the purpose of  erecting  new building on the premises sought to be demolished." 5 A  landlord can sue for the ejectment of his tenant in  view



of  s. 13(1) for various reasons including the one  that  he requires  the  premises reasonably and bona fide  for  occu- pation  by himself.  The respondent alleged, and the  Courts below have found, that he bona fide required the premises in the  suit for occupation by himself.  The respondent  stated in  the plaint that he would take up residence in  the  pre- mises after overhauling it.  It is on this account that  the appellant submits that the case falls under s. 13 (1)  (hh), as  the  respondent  wants the premises  for  the  immediate purpose of demolishing it and erecting a new building. It  is  further  contended for the appellant  that  the  two grounds  for ejectment under cls. (g) and (hh) are  matually exclusive and therefore a landlord cannot take advantage  of cl.  (g) when his case falls under cl. (hh) in view  of  the immediate  steps he has to take after getting possession  of the premises.  We need not express an opinion on this point, as, for reasons to be mentioned later, the case falls  under cl. (g) and not under cl. (hh) of s. 13 (I) of the Act. We  agree with the Courts below that the  respondent’s  case falls under cl. (g) when he bona fiede requires the premises for  his own occupation.  The mere fact that he  intends  to make alterations in the house either on account of his sweet will  or  on account of absolute necessity in  view  of  the condition of the house, does not affect the question of  his requiring  the  house bona fide and reasonably for  his  oc- cupation,  when  he has proved his need  for  occupying  the house.  There is no such prohibition either in the  language of  cl.  (g)  or in any other provision of the  Act  to  the effect that the landlord must occupy the house for residence without making any alterations in it.  There could at be any logical reason for such a prohibition.  Under ordinary  law, the  landlord  is entitled to eject his tenant  whenever  he likes,  after  following certain procedure except  in  cases where  he  has  contracted  not  to  eject  him  before  the happening  of  a  certain event.   The  Act  restricts  that general  right of the landlord in the special  circumstances prevailing  in regard to the availability  of  accommodation and the incidental abuse of those circumstances by landlords in demanding un’ustifiabl high rents. 6 The  Act has provided sufficient protection to  the  tenants against  being harassed by threat of ejectment in case  they are unable to satisfy landlords’ demands.  Various  restric- tions have been placed on the right of the landlord to eject the tenant.  Section 12(1) provides that the landlord  shall not  be  entitled  to  the recovery  of  possession  of  any premises so long as the tenant pays or is ready and  willing to  pay  the  amount  of the  standard  rent  and  permitted increases,  if  any,  and observes and  performs  the  other conditions  of the tenancy in so far as they are  consistent with  the  provisions  of  the  Act.   Section  13  provides exceptional cases in which the landlord can eject the tenant even  though he had been paying rent regularly or  be  ready and  willing to pay rent.  The provisions of s. 13  are  for the  advantage of the landlord and the various  grounds  for ejectment   mentioned  in  that  .section  are  such   which reasonably  justify  the  ejectment of  the  tenant  in  the exercise  of  the  landlord’s general  right  to  eject  his tenant.   There is therefore no reason why restrictions  not mentioned  in  the  grounds be read into them.   We  do  not therefore agree with the contention that cl. (g) will  apply only  when  the  landlord  bona fide  needs  to  occupy  the premises  without  making any alteration in them,  i.e.,  to occupy  the  identical building which the  tenant  occupies. There is no justification to give such a narrow construction



either  to  the word ’premises’ or to  the  word  ’occupies’ which  have  been  construed by  this  Court  in  Krishanual Ishwarlal Desai v. Rai Vijkor(1) referred to later. There  are  provisions  in the Act  which  ensure  that  the provisions  of cl. (g) are not abused.  Section 17  provides that if the premises are not occupied within a period of one month from the date the landlord recovers possession or  the premises are re-let within a period of one year of the  said date to any person other than the original tenant, the Court may  order the landlord, on the application of the  original tenant, within the time prescribed, to place him in  occupa- tion  of the premises on the original terms and  conditions. This tends to ensure that a landlord does not eject a tenant unless  he  really requires the premises for  occupation  by himself. (1)  [1964] 1. S.C.R. 553. 7 We  are  therefore of opinion that once the  landlord  esta- blishes  that  he bona fide requires the  premises  for  his occupation. he is entitled to recover possession of it  from the  tenant in view of the provisions of sub-cl. (g)  of  s. 13(1)  irrespective of the fact whether he would occupy  the premises  without  making any alterations to them  or  after making the necessary alterations. The provisions of cl. (hh) cannot possibly apply to the case where  a  landlord  reasonably and bona  fide  requires  the premises  for his own occupation even if he had to  demolish the  premises  and  to erect a new building  on  them.   The provisions  of  cl. (hh) apply to cases where  the  landlord does  not  require the premises for his own  occupation  but requires them for erecting a new building which is to be let out to tenants.  This is clear from the provisions of  subs. (3A)  which  provide  that a landlord has  to  give  certain undertaking  before a decree for eviction can be  passed  on the ground specified in cl. (hh).  He has to undertake  that the new building will have not less than two times the  num- ber of residential tenements and not less than two times the floor area contained in the premises sought to be  demolish- ed, that the work of demolishing the premises shall be  com- menced  by  him not later than one month and shall  be  com- pleted not later than three months from the date he recovers posession of the entire premises and that the work of  erec- tion of the new building shall be completed by him not later than fifteen months from the said date.  These  undertakings thus  provide  for a time schedule for the new  building  to come  up into existence and ensures atleast the doubling  of the  residential tenements, i.e., rooms or groups  of  rooms rented  or offered for rent as a unit: vide s. 5(12) of  the Act. Such undertakings would be unnecessary if the landlord seeks to eject the tenant from the premises in order to occupy the premises  himself after making the necessary alterations  to suit  his  conveniences.  Further, s. 17A provides  for  the ejected tenant’s re-occupying the premises in case the land- lord does not start the work of demolition within the period specified  in  sub-s. (3A).  Section 17B  provides  for  the ejected tenant to notify to the landlord within six months 8 from  the  date on which he delivered vacant  possession  of the,  premises of his intention to occupy a tenement in  the new  building on its completion on the conditions  specified in  the  section.  Section 17C provides  that  the  landlord would intimate to the tenant the date when the new  building would  be complete and that the tenant would be entitled  to occupy the tenement on that date.  These provisions  clearly



establish  that  the provisions of cl. (hh) apply  when  the landlord  desires. to demolish the premises for the  purpose of erecting a new building on the premises for being let  to tenants. We  may  mention that the provisions of clauses  similar  to cls.  (g)  and (hh) of sub-s. (1) of s. 13 of the  Act  have been  construed  in  this  way  in  Krishna  Das  v.  Bidhan Chandra(’),  McKenna v. Porter Motors Ltd.(’),  and  Betty’s Cafes Ltd. v.   Phillips Furnishing Stores Ltd.(’). The appellant has referred us to two cases of the Bombay High Court which tend to support him in so far as it is held in  them that in circumstances similar to the  present  one, the  case  would come under cl. (hh) of s. 1 3 (I)  and  not under  cl. (g).  They are : Manchharam Ghelabhai  Pittalwala v. The Surat Electricity Co. Ltdt. (4 ) and Allarkha  Fakir- mahomed  v. The Surat Electricity Co. Ltd. (5).  The  latter case followed the previous one.  In the former case the High Court said: "Indeed the expression ’occupation’ occurring in clause  (g) means ’possession followed by actual occupation’, while  for the purpose of clause (hh) what is necessary is  ’possession for the purpose of demolition’.  ’Occupation’ within  clause (g)  would include ’possession’, as it is obvious  that  one cannot occupy unless one is able to possess. but in the case of  clause  (hh)  it is clear that it is  not  necessary  to occupy for the purpose of demolition.  What is necessary  is that the land- (1)  A.I.R. 1959, Cal. 18i (3)  [1959] A. C. 20 ;                    (2) [1956] A. C. 688; (4)-Civil Revision Application NO. 204/56 decided on  1-2-57 by the Bombay, High Court. (5)  Civii Revision Application No. 164/57 decided On  8-10- 57 by the Bombay High Court. 9 lord  must  possess in order to enable him to  demolish  and erect a new building." Demolition of the existing building and subsequent  erection of  a new building are only intermediate steps in  order  to make the building fit for occupation by the landlord; In  Krishanlal Iswarlal Desai’s case(’) this Court  said  in connection with the provisions of s. 17(1) of the Act: "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...... " ’Occupation’ of the premises in cl. (g) does not necessarily refer  to occupation as residence.  The owner can  occupy  a place by making use of it in any manner.  In a case like the present, if the plaintiffs on getting possession start their work of demolition within the prescribed period, they  would have occupied the premises in order to erect a building  fit for their occupation. We therefore hold that the respondent’s case came within cl. (g) of sub-s. (1) of s. 13 of the Act and therefore  dismiss the  appeal with costs.  Three months allowed  for  vacating the  premises on the defendant tenant undertaking to  vacate the premises himself during this period. Appeal dismissed.