Full Judgment Text
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PETITIONER:
BAPUBHAI MOHANBHAl
Vs.
RESPONDENT:
MAHILA SAHAKARI UDYOG MANDIR
DATE OF JUDGMENT26/08/1975
BENCH:
GUPTA, A.C.
BENCH:
GUPTA, A.C.
BEG, M. HAMEEDULLAH
CHANDRACHUD, Y.V.
CITATION:
1975 AIR 2125 1975 SCC (4) 731
CITATOR INFO :
R 1984 SC 505 (15,17)
ACT:
Bombay, Rents, Hotel and Lodging House Rates Control
Act, L Vll of 1947-S. 13, 25,-Scope of.
HEADNOTE:
Section 13 of the Bombay Rents, Hotel and Lodging House
Rates Control. Act, 1 VII of 1947 (which was the Act in
force in Gujarat) enumerates the grounds on which a landlord
may obtain possession of the premises let out to a tenant.
Clause (g) of that section provides that the landlord can
obtain possession only if he satisfies the Court that the
premises are reasonably and bona fide required for
occupation by himself. Section 25 provides that a landlord
cannot use nor can he permit to be used for a non-
residential purpose any premises which, on the date when the
Act came into force, were used for a residential purpose.
Sub-section (2) of this Section makes contravention of the
provisions of sub-s.(1) punishable with imprisonment.
On the date on which the Act came into operation, the
premises in dispute belonging to the respondent were used
for residential purposes. The respondent sought possession
on the ground that it wanted them for its office for running
a fair price shop, for establishing a godown, for conducting
a tailoring and sewing class and such other purposes. The
trial cannot and the first appellate court found that the
respondent needed the premises for its business: but
dismissed the suits on the ground that in view of the
provisions of s. 25 of the Act The requirement could not be
said to be reasonable and bona fide. The High Court, while
accepting that the premises were required by the respondent
for its business, took the view that since the legislature
dill not subject the right conferred on the landlord by
s.13(1) to any other provision save the one contained in s
15 s.25 cannot be permitted to override s.13(1).
Allowing the appeal,
^
HELD: Though the respondent required the premises for
the purposes of its business, no decree for possession could
be passed in its favour as its requirement could not be said
to be reasonable. The requirement runs across the statutory
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prohibition and is, therefore, not reasonable. [415 E]
(1) Under s.13(1)(g) it is not sufficient for a
landlord to establish that the premises was e required by
him but it has to be shown further that the requirement is
reasonable and bona fide. The requirement of the respondent
in the instant case could not be called reasonable if the
very statute under which it seeks relief contains an
injunction that it shall not use residential premises for a
non-residential purpose. Not only does the statute contain
an injunction against the user of residential premises for a
non residential purpose but it makes it penal For a landlord
to use for a non-residential purpose any premises which were
used for a residential purpose on the date when the Act came
into force. [414C-E]
(2) (a) The approach of the High Court is misconceived.
The true question for consideration is not whether as
between s.13(1) and s.25(1), one over-rides the other, and
indeed. in view of the wording of the non-obstane clause of
s. 13 (1), the provisions of that section must have priority
over the rest of the Act except for what is contained in
s.15. But conceding to s.13(1) its rightful precedence and
granting that it stands supreme except for s.15,. according
to its own terms the Court has to be satisfied that the
requirement of the landlord is reasonable. [415A-B]
(b) If the respondent fails it is not because s.25
overrides s.13(1) but because of its failure to prove the
reasonableness of its requirement whether the requirement of
the landlord ms reasonable or not ms to be judged from all
the facts and circumstances of the case and a truly relevant
circumstance-
412
bearing on the reasonableness of the landlord’s requirement
is that the purpose A for which the possession was sought
was a purpose for which the premises could not be used save
on pain of’ penal consequences. [415-CD]
(3) Courts sought not to construe a statute in a manner
which will encourage the breach of any of its provisions and
a decree ought not to be passed which, is’ honored, will
attract penal consequences. To pass a decree in favour of
the respondent on the grounds accepted by the High Court is
to invite the respondent to commit a breach of the statutory
injunction contained in s.25(1).[415-D]
Laxmi Co-perative Bank Ltd. v. Mohan Govind Diwanji, 74
B.L.R 186, approved.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal NOS. 574-575
of 1974.
From the judgment and decree dated the 19th April, 1973
of the Gujarat High Court in Civil Revision Application Nos.
1193 & 1194 of .1967.
P. H. Parekh and Manju Jaitley" for the appellant.
I. N. Shroff, for respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, J. The appellants in these two appeals are
monthly tenants of the respondent, the Mahila Sahakari Udyog
Mandir. The respondent filed suits against the appellants
for possession of the premises let out to them, on the
ground of arrears of rent and on the ground that the
premises were reasonably and bona fide required by the
respondent for its own purposes. On both counts the trial
court held against the respondent and dismissed the suits.
The decree of the trial court was confirmed in appeal by the
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learned Assistant Judge, Surat but the High Court of Gujarat
allowed the respondent’s revision application and decreed
the suits. On March 11, 1974 the High Court granted to the
appellants a certificate to appeal to this Court under the
amended Article 133(1) of the Constitution.
The Bombay Rents, Hotel and Lodging House Rates Control
Act, LVII of 1947, is in force in Gujarat with certain
modifications. Section 12(1) of the Act provides that a
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 permit-ted 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 of the
Act sets out the various grounds on which a landlord may
recover possession of the premises let out to the tenant.
Sub-section (1) clause (1) of that section Provides:
"13. (1) Notwithstanding 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--
413
"(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;"
Section 15(1) provides that notwithstanding anything
contained in any Law, but subject to any contract to the
contrary, it shall not be lawful after the coming into
operation of the Act for any tenant to sub-let the whole or
any part of the premises let to him or to assign or transfer
in any other manner his interest therein. Section 15(2)
legalises sub leases, assignments and transfers effected in
favour of persons as have entered into possession and have
continued in possession on the date of the commencement of
the ordinance of 1959.
The trial court and the First Appellate Court found
that the respondent required the premises for the purpose of
its business but they dismissed the suits on the ground that
ill view of the provisions of section 25 of the Act. the
requirement could not be said to be reason able and bona
fide. The High Court accepted the finding of the courts
below that the penalises were required by the respondent for
the purpose of its business but it differed from them on the
question of the applicability of section 25. The High Court
has taken the view that section 13(1)(g) is not subject to
section 25 and therefore the question whether the
requirement of the landlord is reasonable and bona fide has
to be decided apart from the provisions of section 25. The
correctness of this view is challenged by the tenants in
these appeals.
The scheme of the Act is that ordinarily the landlord
shall not be entitled to evict a tenant so long as the
latter pays or is ready and will Judg to pay the standard
rent and permitted increases and so long as he observes and
performs the other conditions of the tenancy, in so far as
they are consistent with the provisions of the Act. This
rule is enunciated in section 12(1). Section 13 of the Act
is in the nature of an exception to section 12. It
enumerates the grounds on which not withstanding the
injunction contained in section 12, a landlord may obtain
possession of the premises Act out to the tenant. Under
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section 13(1) (g), the landlord can obtain possession only
if he satisfies the court that the premises are required by
him "reasonably and bona fide". If the issue as regards the
reasonableness of the landlord’s requirement is to be
decided without reference to the provision contained ill
section 25 the respondent would be entitled to succeed
because all the three courts have found that the respondent
requires the premises genuinely for occupation by itself for
the purpose of its business and that the requirement, apart
from section 25. is reasonable and bona fide. The short
question for consideration in these appeals is whether the
reasonableness of the landlord’s requirement can be judged
in the light of the provision contained in section 25 or
whether, as held by the High Court, section 25 is to be kept
out of way in judging that question.
By section 25, a landlord cannot use nor can be permit
to be used for a non-residential purpose any premises which
on that date when the Act came into force were used for a
residential purpose. Under sub
414
section (2) of section 25, a landlord who contravenes the
provisions of sub-section (1) is punishable with
imprisonment for a ter which may extend to three months or
with fine or with both. In the instant case, the premises
were admittedly used for a residential purpose on February
13, 1948 being the date on which the Act came into
operation. It is plain from the language of section 25(1),
that the respondent cannot convert the user of the premises
from a residential to a non-residential purpose. If it did
so, it would be liable to be, prosecuted and punished under
section 25(2).
The respondent sought possession of the premises let
out to the appellants and three other tenants on the ground
that it wanted one room for its office, two rooms for
running a fair-price grain-shop, two rooms for conducting a
provision stores, two rooms for preparing pickles, cleaning
spices and for keeping the finished products for sale, two
rooms for establishing a godown and some more space for
conducting a tailoring and sewing class. The respondent
succeeded in proving its requirement but its very success in
establishing that it required the premises for a non-
residential purpose is its failure to establishing the
ingredients of section 13(1) (g) of the Act. Under that
provision, it is not sufficient for a landlord to establish
that the premises are required by him but it has to be show
further that the requirement is reasonable and bona fide.
The requirement of the respondent in the instant case cannot
ever be called reasonable, if the very stable under which it
seeks relief contains an injunction that it shall not use
residential premises for a non-residential purpose. Not only
does the statute contain an injunction against the user of
residential premises for a non-residential purpose, but it
makes it penal for a landlord to use for a non-residential
purpose any premises which were use for a residential
purpose on that date when the Act came into force. In the
light of section 25(1), granting a decree to the respondent
for possession of the residential premises on the ground
that it requires those premises for a non-residential
purpose is to pave the way for its prosecution and
punishment under section 25(2). In fact, such a decree would
be self-defeating because whereas the decree shall have been
passed on the ground that the respondent requires the
premises for a non-residential purpose, it will not be able
to use those premises for the purpose for which the decree
was granted, save on pain of prosecution.
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Learned counsel for the respondent places great
reliance on the non-obstante clause of section 13 (1) and
argues that legislature , having considered the question
whether section 13 should be made subject to any other law
or to any other Provision of the Act came to the conclusion
that it should be made subject to the provisions of section
15 only and therefore it would be wrong to subject the
provisions contained in section 13(1) to section 25. The
High Court also approached the problem before it by saying
that the material question for consideration was whether
section 13(1) can be made subject to section 25. This
auction was answered by the High Court by saving that since
the legislature did not subject the right conferred on the
landlord by section 13(1) to any other provision save the
one contained in sec
415
tion 15, section 25 cannot be permitted to override section
13(1). This approach, in our opinion, is misconceived. The
true question for consideration is not wether as between
section 13(1) and section 25(1) one overrides the other and
indeed, in view of the wording of the non obstante clause of
section 13 (1), the pervasions of that section must have
priority over the rest of the Act, except for what is
contained in section 15. But conceding to section 13(1) its
rightful precedence and granting that it stands supreme
except for section 15, according to its own terms the court
has to be satisfied that the requirement of the land lord is
reasonable A requirement which runs in the teeth of section
25 and which, if established, may throw the landlord open to
the risk of a prosecution cannot be called reasonable.
Therefore, if the respondent shall have failed, it is not
because section 25 overrides section 13 (1) hut because of
its failure to prove the reasonableness of its requirement.
Whether the requirement of the landlord is reasonable or not
is to be judged from all the facts and circumstances of the
case and a highly relevant circumstance bearing on the
reasonableness of the land lord’s requirement is that the
purpose for which the possession is sought is a purpose for
which the premises cannot be used save on pain of penal
consequence. Courts ought not to construe a statute in a
manner which will encourage the breach of any of its
provisions and, most certainly, a decree ought not to be
passed which, if honored, will attract penal consequences.
To pass a decree in favour of the respondent on the grounds
accepted by the High Court is to invite the respondent to
commit a breach of the statutory injunction contained in
section 25 (1) .
In short, therefore, though the evidence led by the
respondent is sufficient to prove that it requires the suit
premises for the purpose of its Business, no decree for
possession can be passed in its favour as its requirement
cannot be said to he reasonable. The requirement runs across
a statutory prohibition and is therefore not reasonable.
The view taken by the Bombay High Court in Civil
Revisionary Application No. 2172 of 1957 decided on
September 3, 1959 and in Laxmi Cooperative Bank Ltd. v.
Mohan Govind Diwanji(1), as also the view taken by a learned
Single Judge of the Gujarat High Court in Civil Revision
Application No. 896 of 1963 decided on March 7, 1967, is in
our opinion correct. The learned Judges of the Gujarat High
Court were in error in the instant case in departing from
that view.
For these reasons we allow the appeals, set aside the
judgement of the High Court and direct that the suits filed
by the respondent against the appellants shall stand
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dismissed. Respondent shall pay to the appellants the costs
of these appeals. One set of hearing for only.
P.B.R. Appeals allowed.
416