M. PADMANABHA SETTY

K. P. PAPIAH SETTY

Marclz I I, I 966

(P. B. GAJENDRAGADKAR, C.J., K.N. WANCHOO, M. HIDAYA-

TULLAH, J. C. SHAH AND S. M. S!KRI, JJ.)

Mysore House Rent and Acco1nntodation Control A.er (30 of 1951), s. 8(3) (a)(ii)-'"Elltitled to possession'", meaning of.

The appellant and the respon.dcnl were the tenant and landlord re"- :pectively, of the non-residential premises in dispute.

The respondent's upplication under s. 8(3)(a) (ii) of the Mysore House Rent and Accommodation Contnrol Act, 1951, for eviction of the appeUant on the ground

1hat the respondent required the prcmiscS for the purpose of shifting hi3 tbmusiness which he was carrying on in a rented building, was ordered,

but the order was set aside by the appellate court.

The High O>urt .in revision set aside the appellate order nd restored the order ot eviction. ·

Ia appeal to this Court, it was contended that :

(i) since the rc.1pondent was, within the meaning of s. 8(3)(a)(ii). '"entitled to poosession" of the building in his occupation he had no right to ask for the ..appellant's eviction; and (ii) the High Court should not have interfered in re'wision under s. 17 of the Act.

HELD :

(i) The High Court was right in ordering the eviction of the appellant from the premises. • The respondent, who was in occupation of a build"ng as a tenant. and over which he had no absolute right of possession but only a right 1:0 remain in possession till one of the conditions in s. 8(2) is satisfied. could not be srud to be "entitled to possess'on" of that building.

Tho.•e ·, vords are more akin to the right of possession which an owner has in respect of a building owned and occupied by him. [873 E-GJ

(ii) In not following the decision of the High Court in Narayanappa v.

F Narasimhlali, [1962) Mys. L.J. 760, the appellate court acted with mate- Tial irregularity and so the High Court could set aside the appellate orcler

in revision. [874 BJ

Tfianappa Chetty v. Govindaswami Naicker, A.l.R. 1952 Mad. 553. overruled.

Crv!L APPELLATE JURISDICATION: Civil Appeal No. 756 of 1%5.

Appeal by special leave from the judgmenf'and order dated April 9, 1965 of tbe Mysore High Court in Civil Revision Petition No. 1044 of 1962. '4,

S. K. Venkatarangaiengar G. L. Sanghi, J. B.

Dadacl1anji, O. C. Mathur and Ravinder Narain, for the appellant. 1 H

Mirle N. Lakshminaraynappa 0. P. Malhotra, S. S. Khm1d11ja <llnd Ganpat Rai. for the respondant.

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The Judgment of the Court was delivered by

Sikri, J. This appeal by special leave is directed against the judgment of the High Court of Mysore in Civil Revision Petition No. 1044 of 1962, filed under s. 17 of the Mysore House Rent and Accommodation Control Act, 1951 (Mysore Act 30 of 1951)- hereinafter referred to as the Act-whereby the High Court set aside the order passed by the III Additional District Judge, Bangalore. The III Additional Judge had set aside the order of the First Munsiff, Bangalore, who had directed the eviction of the ten.int from the premises in dispute.

The appellant before us, Padmanabha Setty, hereinafter referred to as the tenant, was the tenant of a non-residential premises No. 281, Old Tharagupet, Bangalore City. The tenant had installed some machinery in the premises. The respondent, K. P.

Papiah Setty, is the landlord.

He had purchased the premises for his own use and occupation, namely, for the purpose of shifting his business which he was carrying on in a rented building to the premises in dispute.

The landlord filed an application under s.8(3)(a)(ii) of the Act for the eviction of the tenant on the ground that he required the premises m dispute for his own use and occuption.

It is not necessary to give the other allegations made in the application as both the First Munsiff, Bangalore, and the III Additional District Judge, Bangalore, have found that the landlord required the premises for his honafide use and occupation, namely, for shifting his business from the rented premises to the premises in dispute. The Ill Additional District Judge, however, held that under s. 8(3)(a)(ii) the landlord was not entitled to possession of the premises in dispute unless and until he was prepared to vacate the shops in which he was trading at the time. This finding of the learned Additional Judge was contrary to the decision of the Mysore High Court in S. G. Narayanappa and Bros. v. A. N. Narasimhiah(' ). The landlord then filed a revision petition under s. 17 of the Act, and the High Court, following the decision in S. G. Narayanappa and Bros. v.

A. N. Narasimhiah( 1) set aside the order of the Additional District Judge. The tenant having obtained special leave, the matter is now before us.

Two points are raised before us: ( 1) that the construction put upon s. 8(3)(a) (ii) of the Act by the Mysore High Court is erroneous and the construction put upon a similar provision by the Madras High Court in V. Thanappa Che tty v. Arcot Govindaswami Naicker(') is correct; and (2) that the High Court was not right in setting aside the order of the Additional District Judge in a revision under s.17 of the Act.

-- . --~------ (!) [1962) Mys. L. J. 76"l. {:!) A.T.R. 1952 Mad. 553.

The Act was passed to regulate the letting of residential and A non-residential houses and to control the rents of such houses and to prevent unreasonable eviction of tenants therefrom m the State of Mysore. The word "tenant" is defined as follows in sub-s.

(9) of s. 2 of the Act:

" 'tenant' means any person by whom or on whose account rent is payable for a house and includes the surv1vmg spouse or any son or <laughter of a deceased tenant who had been living with the tenant in the house as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a house by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter-house or of rents for shops has heen farmed out or leased by a local authority." There is no doubt that the definition of the word "tenant" 1s wider than the ordinary meaning of the word and includes a person rontinuing in possession after the termination of the tenancy in his favour.

Section 4 deals with the determination of fair rent ands. 5 with lawful increase of or addition to or reduction in fair rent.

Section 6 prohibits the landlord from claiming or receiving anything in excess of fair rent or agreed rent. Section 7 deals with issue of receipts for rent.

Sections 7 A and 7-B deal with the right of tenant to deposit rent in certain cases and time for deposit and savings. Section 7-C deals with eviction of tenant 1n occupation of a house under an allotment order. Section 8 deals with eviction of tenants and provides that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of s.7-C or of this section. Sub-section (2) provides the circumstances in which a landlord would be entitled to seek eviction of a tenant in possession.

For instance, a landlord is entitled to evict a tenant if the tenant has not tendered or paid the rent due by him in respect of the premises within the time fixed in the agreement of tenancy with the landlord

-011 in the absence of any such agreement, by the last day of the month next following that for which the rent is payable; if he has transferred his right under the lease or sublet the entire premises or any portion thereof; or med the premises for the purpose other than that for which they were leased; or if the tenant ha~ committed such acts of waste as are likely to impair materially the value or utility of the house; or if the tenant has without the landlord's consent in writing erected on the hou, e or any portion thereof aRy permanent structu; e; or if the tenant or any person residing with the tenant has been guilty of such acts and conduct as amounts to nuisance or annoyanc" to the adjoining or neighbouring occupiers

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A or has been using the house or allowing the house to be used for immoral or illegal purposes; or that the house is reasonably and bona fide required by the landlord for carrying out repairs or reconstruction which cannot be carried out without the house being vacated; or that the house has not been used without reasonable cause for the purpose for which it was let for a continuous period B of three months immediately preceding the date of application; or that the tenant, after the commencement of the Act, has built, .acquired vacant possession of or been allotted a suitable house.

We have set out these conditions in detail because it would be relevant to consider whether in view of these conditions a tenant can be said to have a right to possession of the premises of which he is a tenant. Then we come to sub-s. (3) (a) which reads as follows:

"(3)(a) A landlord may, subject to the provisions of clause ( d) apply to the court for an order directing the tenant to put the landlord in possession of the hoJJse-

(i) in case it is a residential building, if the landlord requires it for his own occupation or for the occupation of a member of his family and ifhe or such member, as the case may be, is not occupying a residential building of his own in the city, town or village concerned;

(ii) in case it is a non-residential building, if the landlord requires it for a business which he or a member of his family is carrying on and if for the purposes of the said business is not in occupation of a non-residential building which is owned by or to the possession of which the landlord or such member, as the case may be, is entitled whether under this Act or otherwise."

It is not necessary to set out the Explanation or the first proviso but the second proviso is relevant and runs thus:

"Provided further that where a landlord has obtained possession of a house for his own use or occupation or for the use or occupation of a member of his family under this clause he shall not be entitled to apply again under this clause-

(i) ..... .

(ii) for possession of another non-residential building of his own, for himself or for the same member of his family, in case he ha!i obtained possession of a nonresidential building." The Madras High Court held in V. Thannappa Chetty v.

Arco/ Govindaswami Naicker (') that the tenant under the Madras

(I) A, I.R. 1952 Mad. 553 at p. 554-555.

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SUPREME COURI REPORTS

(1966] 3 S<.R.

Buildings (le:isc and Rent Control) Act (Madra' Act 15 of 1946) had a right to possession unless and until he was evicted under the provisions of the Madras Act, and, therefore, the landlord would not be entitled to possession of a non-residential building if he was. in possession of another non-resi.dential building as a tenant, for in such a case he would he entitled to possession of those premises. The reasoning of Subba Rao. J., then a Judge of the lli!!h Court of !Vladras, was as follows:

"It will. therefore, he seen that the relationship hctwccn the landlord and tenant even in cases in which such rc13tionship terminated under the provisions of the Transfer uf Property Act. conlinues subject to the provisions of the Act. The rights of the tenants as well as the landlord arc defined. The tenant under the Act has a right to possession unless and until he is evicted under the provisions of the Act.

Under the provisions of the Act, a landlord will not be entitled to the possession of his non-residential buildings, if he ohtains an order for eviction against another tenant in respect of another non-residential building, or if he is in possessi<>n of another non-residential building as a tenant; for in either case he is entitled to possession of that premises. 1 he words used in the section, viz., "to the possession of which he is entitled" are wide and I do not see any reason why the latter category should be e\cluded from the express words used which in their ordinaT\ meaning take in !hat class." "It was argued that a statutory immunity is differenl from a right to possession.

Hut in my view a statutory immunity is not inconsistent with a right to possession.

The statutory immunity itself creates a right in him to continue in possession till he is evicted under the provisoins of the Ac1." The Mysore High Court dissented from this decision of the Madras High Court, and the reasoning of Ahmed Ali Khan. J .. in S. G. Narayanappa and Bros. v. A. N. Narasimhiah(') is as under:

"After a careful consideration of the arguments advanced before me. I am of the opinion that the provision of the Act on the strength of which a tenant may resist the landlord's claim to evict him cannot be described as a right to possession, but only as a statutory immunity from eviction as observed by the Federal Court in the case Kai

Khushrdo v. Bai Jerbai. (2).

It appears that his Lordship in the Madras case distinguished the said observations in the said case of the Federa Court by stating that a statutory immunity is not inconsistent with the right to posses- (\) 1196ifMy;:-(~ J 76:.i

12) A. I. R. l'l49 F. C. 1:!4 (l!!liJ.

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sion and that such immunity may itself create a right. The right to immunity from eviction involves a negative element in it. In other words it restricts the right of possession of the landlord. Hence, it cannot be construed to have an effect of creating a right of possession to a tenant.

Though the statutory immunity from eviction may not be consistent with the right to possession, the fact remains in view of the inherent element involved in both the rights, that the immunity from eviction cannot be equated to the right to possession. Therefore, with great respect, I am of the view that we will not be justified in adopting the strict view while interpreting the words which occur in s. 8(3) (a)(ii) of the Mysore House Rent and Accommodation Control Act, as taken in the Madras ruling cited above."

In our opinion, with great respect to Subba Rao, J ., Ahmed Ali Khan, J., arrived at the correct conclusion. A tenant who can be evicted under the conditions prescribed in s. 8(2) of the Act cannot be said, in our view, to be entitled to the possession of the premises of which he is a tenant. No doubt he cannot be evicted till one or more of the conditions prescribed by the section are fulfilled, but it is difficult to equate his right to stay in the premises till he is evicted to an entitlement of the possession of the premises. Section 8(3)(a)(ii) deals with two types of cases; first where the landlord is in occupation of a non-residential building which is owned by him, and secondly, a non-residential building of which he is in occupation not as a landlord but otherwise. The object of the Act is to prevent unreasonable evictions of tenants.

Can it be said that the Legislature is considering it to be unreasonable for a landlord to shift to his own premises while he is in occupation of tenanted premises over which he has not an absolute right of possession but only a right to remain in possession till one of the conditions in s. 8(2) is satisfied, and over one of .which he has no control. For instance, the landlord may require the premises for repairs or reconstruction or the neighbours may complain that the tenant is guilty of nuisance "ir annoyance, or the landlord may think that the tenant has committed some acts of waste as are likely to impair materially the value or utility of the house. If any of these conditions is proved, he is liable to be evicted. In our view, in the context the words "entitled to possession" have a more positive content and are more akin to the right of possession which an owner has in respect of the building owned and occupied by him.

In conclusion we are of the view that the High Court was right in holding that the Additional District Judge erred in not following the decision of the Mysore High Court in S. G. Narayanappa and Bros. v. A. N. Narasimhiah.(1)

(!) (1962) Mys. L.J. 760.

M12Sup.C.l./66-!0

There is no force in the second point raised by the learned counsel of the tenant. It is true that the jurisdiction of a High Court under provisions similar to s.17 of the Act is limited, but we cannot say that the High Court was wrong in holding that the

Additional District Judge acted with material irregularity in not following the decision of the Mysore High Court when that decision had been rendered in a case arising from an earlier order of the same Additional District Judge. It may be that this decision was not pointed out to the Additional District Judge but we cannot, in exercise of our jurisdiction under Art. 136 of the Constitution, say that the High Court should not have set aside the order of the Additional District Judge on this ground.

In the result the appeal fails and is dismissed with costs.

The tenant is granted two months' time from today to vacate and deliver possession of the premises in dispute to the landlord.

Appeal dismissed.