JUDGMENT
Hari Lal Agrawal, J.
1. This is an appeal by the defendants against the judgment and decree of the Additional Subordinate Judge, Ranchi, decreeing the plaintiff’s suit in part directing the defendants to vacate the suit premises.
2. The property in suit consists of two shop units, Nos. A and B out of the block of six shop rooms in ‘J. J. Park* along with the adjoining lands and structures at its back being part of plot No. 1772, holding No. 420 in Ward No. III of the Ranchi Municipality, which is fully described in the schedule of the plaint, in which the defendants are running a laundry business commonly known as Messrs Tip Top. The defendants were in occupation of the suit premises since a year before the execution of a document forming the basis of the present suit which was executed on 10-9-1958 and has been marked as Ext. 2. The document has been described as a usufructuary mortgage bond or Bhugutbandha bond. According to the stipulations in this document, the mortgagees, namely, the defendants, were to remain in possession of the suit premises from 13-9-1858 for a period of five years, I shall refer to the stipulations and the covenants evidenced under this document in greater detail later, but at the outset I may indurate that the plaintiff instituted the suit for recovery of khas possession of the suit properties as mortgagor on the expiry of the period of the usufructuary mortgage, with mesne pro-fits from the period 13-9-1988. Alternatively, the plaintiff pleaded that in case the transaction evidenced by the mortgage bond was treated as a lease then even in that case it was for a fixed period of live years which stood terminated by efflux of time on 12-9-1963 and, therefore, the plaintiff became entitled to recover possession thereof with mesne profits. A money decree for Rupees 2,750/- on account of arrears of rent inclusive of taxes was also claimed in the alternative, representing the arrears of rent amounting to Rs. 2,175/-and Rs. 575/- on account of municipal taxes for the period after 23-3-1964.
Yet another alternative plea was advanced in the plaint to the effect that in case the transaction is deemed to have created only a monthly tenancy, then even the defendants were liable to vacate the premises on the grounds of (1) personal necessity of the plaintiff-landlady, namely, ‘for setting up her sons in business who had come of age and were sitting idle without any occupation, the family being a trading one’, and, (2) the defendants being defaulters having not paid any amount for the period after 12-9-1963. Some other grounds of creating nuisance by flowing foul water in the adjoining area etc. were also urged, but the same were not established and have not been pressed in this Court either.
3. One written statement was filed by defendants Nos. 1, 2, 4 and 5 and another by defendant No. 3, followed by an additional written statement. The relevant pleas of defence with which we are concerned in this appeal are that the defendants were in possession of the premises as monthly tenants and the mortgage deed in question (Ext. 2) was executed in order to defeat the provisions of law, namely, the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947 and, therefore, their possession was neither of mortgagees nor lessees for any fixed period. They also disputed the grounds of their eviction indicated above, namely, defaults in payment of rent or requirement of the premises for occupation by the plaintiff in good faith.
4. The trial court framed various issues and the relevant of them were issues Nos. 6, 7 and 8 which read as follows :–
“6. Was the nature of possession of the defdts. over the suit premises on the basis of the deed (dated) 10-9-1958 as mortgagees or tenants for fixed period or as tenants from month to month during the period of the deed and after expiry of the same?
7. Are the defendants liable to be evicted from the suit premises on the primary ground of being trespassers or on any of the alternative grounds of the plaintiff’s personal necessity or the defendants being defaulters?
8. Is the plaintiff entitled to a decree for Rs. 2,750/-, as claimed, or to anv amount?”
The findings recorded on these issues are as follows :
(i) The defendants were occupying the suit premises in the capacity of monthly tenants during the period of Ext. 2 and also after the expiry of the same and Ext. 2 was merely a colourable device meant to circumvent the mischief of the B. B. C. Act.
(ii) The plaintiff did not reasonably and in good faith require the suit premises for the purpose of setting up her sons in business. The defendants’ case about having offered rent @ Rs. 75/-per month after the termination of the period of Ext. 2 during the first month hand to hand to the plaintiff’s husband and then through money orders till before the filing of the suit was well proved.
(iii) The municipal tax which the defendants had agreed to pay over and above the sum of Rs. 75/- per month would also be included in the term "rent" and admittedly the defendants having not paid the dues of those taxes for years together prior to the institution of the suit they were "obviously defaulters within the purview of the said Act.....The defendants are liable to be evicted from the suit premises on the ground of being defaulters for more than two months' rent". (iv) The plaintiff's claim for mesne profits cannot stand but the defendants are clearly liable to pay the sum of Rupees 2,750/- to the plaintiff.
5. Before I enter into the discussions and consider the arguments advanced by learned counsel for the respective parties, I may do better to advert to the relevant stipulations evidenced by the controversial usufructuary mortgage bond. It is executed for a consideration of Rs. 4,500/- promised to be advanced from time to time by the mortgagee to the mortgagor through her husband, her constituted attorney, in instalments. The first instalment of Rs. 900/~ was to be paid at the time of the registration of the document and the balance of Rupees 3,600/- in four equal yearly instalments of the same amount of Rs. 900/-payable on the 13th September of the succeeding years, namely, 1959, 1960, 1961 and 1962. The above mortgage money and other sums payable on the mortgage account were deemed to be fully satisfied by the possession and enjoyment of the mortgaged property by the mortgagee for the said period of five years and the mortgagee was to give up possession immediately thereafter. Clause 6 of this document contained a stipulation with respect to the payment of certain taxes etc. in the following terms :
“6. That the mortgagee shall pay all charges for consumption of electricity, latrine tax and water taxes and rates appertaining to the mortgaged property during the subsistence of the mortgage and shall also keep the same in good habitable condition and shall deliver the entire property in such good condition immediately on expiry of the period of the mortgage. The mortgagors shall be liable to pay all other taxes and rates and the costs of annual and major repairs that may be reasonably necessary.”
6. The parties had also entered into an agreement simultaneously on 10-9-1958 which has been marked as Ext. E (1). Relevant clause of this agreement, namely, clause No. 5, reads as follows :
“That should the second party feel that he would require the mortgaged premises for his business even after the expiry of the period of mortgage, he, the second party shall apply to Shri Rikhab Chand Sarawgi of Ranchi before a fortnight of the expiry of the period of mortgage for a lease for such further period as he, the second party may require, and if the first party requires any loan, the transfer shall be a complete usufructuary mortgage for such period as may be sufficient to satisfy the loan keeping the net value of the usufruct at Rs. 75/- per month. If the first party does not require any loan the transfer shall be a lease for such period not exceeding four years from 13.9. (torn) as the second party elects on a monthly rent of Rs. 75/- only.”
7. On the evidence adduced by the
parties it remains undisputed that although a proposal was made by the plaintiff for execution of a fixed period lease by the defendants in respect of the suit premises after the expiry of the period of five years stipulated under the mortgage bond (Ext. 2), the lease agreement did not come through as the defendants were not agreeable to any fixed period lease term and insisted for a monthly tenancy.
8. It is clear that the plaintiff has failed in the trial court on her main grounds, namely, recovery of possession of the premises either as a mortgagor or a fixed period lessor. She has also failed to prove default in payment of the monthly rent of Rs. 75/- as such as well as the ground of personal necessity. The defendants, however, have been treated as defaulters on account of the non-payment of the municipal taxes to the plaintiff treating the same as payable to her as part of the rent and, therefore, the learned counsel appearing for the appellants in the first instance advanced arguments to overcome this finding of the trial court.
9. The main argument of Shri Balbhadra Prasad Singh, the learned counsel for the appellants, in this regard was regarding the obligation to pay the latrine and water taxes etc. under the terms of the document (Ext. 2). The liability for it and its non-payment was, however, not disputed by him which could not be treated as part of the “rent” as such and, therefore, its non-payment did not attract the rigours of Clause (d) of Section 11 (1) of the 1947 Act. With reference to the various provisions of the Bihar & Orissa Municipal Act, to which I shall presently refer, he argued that even in case of its non-payment the defendants were liable to the municipal authorities who could initiate an appropriate proceeding for recovery of the same and even if the landlord could claim the same, that would give an independent cause of action to the plaintiff and on this account no forfeiture of the tenancy right could be incurred under Clause (d) referred to above.
10. The expression “rent” has not been defined in the Bihar Buildings Control Act, but Mr. K. D. Chatterji referred to a passage from the commentary on Transfer of Property Act by Mulla. At page 658 of the 6th edition he has discussed “rent” in the following way :
“According to the old English authorities ‘rent’ has three essential features, (1) that it must be reserved to the lessor and not to any stranger, (2) that it must be reserved by apt words, and (3) that it cannot be a reservation of something in case which forms part of the demised premises.”
The third ingredient of the ‘rent’, according to the English authorities, does not appear to have found favour in some of the Indian courts. The third ingredient, however, is not very much relevant for the purposes of this case. Under the Indian law, any payment by the lessee that is part of the consideration of the lease, is rent, as was laid down by the Supreme Court in the case of State of Punjab v. British India Corporation (AIR 1963 SC 1459). Thus when the lease provides for collection charges in addition to rent such charges would form part of the rent; so also stipulation to pay assessment or taxes payable by the lessor according to several cases. In this connection reference was made by Mr. Chatterji to the case of Kishanlal Singol v. Hari Kisson Lohia (AIR 1956 Assam 113) where the learned Chief Justice was considering the case of a default by a tenant in paying the municipal and other maintenance charges to the landlord. Under the terms of the contract executed by the defendants the rent was payable in the first week of each month, with all requisite taxes, municipal, latrine etc. (r) 10% of the rent, i.e.. Rs. 60/- as rent and Rs. 6/-as municipal and other maintenance charges. After a certain time the defendants refused to pay Rs. 6/- and were agreeable to pay only Rs. 60/- plus Rupees 3/- as municipal taxes. In these circumstances, it was held that having agreed to pay 10% of the rent to the landlord the tenant was not entitled to reduce the same and its non-payment amounted to default in payment of rent. The ratio of this case, in my view, is based upon the first two ingredients of ‘rent’ as indicated above, as payment of 10% of the rent as maintenance and municipal taxes etc. was reserved to the lessor by apt words.
In the case of Karnani Properties Ltd. v. Miss Augustine (AIR 1957 SC 309) the Supreme Court also had to consider the term “rent” with reference to Houses and Rents — West Bengal Premises Rent Control Act (17 of 1950). There also this term was not defined and in that view of the matter it was observed by the learned Judge that the term “rent” must be taken to have been used in its ordinary dictionary meaning which was comprehensive enough to include all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also of furnishings, electric installations and other amenities agreed between the parties, provided by and at the cost of the landlord. Here also the emphasis was on the payments which were agreed to be paid to the landlord, thus attracting again the first ingredient.
Somewhat similar question also came to be considered before a Bench of this Court in the case of Sagarmal Agarwalla v. Smt. Annapurna Neogi (1963 BLJR 334); (AIR 1964 Pat 298) where the Court found that the tenant had agreed to pay municipal taxes also as a part of the rent. The landlord had sued him for recovery of the arrears of rent as well as the municipal taxes as in the present case. Answering the legality of such a contract, i.e., to pay municipal taxes over and above the monthly rental, it was held that “as no provision of the Act applies to a contract for payment of municipal taxes by a tenant to a landlord, it must be held that the defendant is liable to pay the municipal taxes to the plaintiff in addition to the rent fixed by the Controller”. I must, however point out that this decision was rendered before the 1947 Act was amended by the Bihar Act 16 of 1965 changing the basis of fixation of fair rent.
11. In this context let us examine the facts of the case in hand with respect to the payment of the latrine tax and water tax. The terms of the agreement (Ext. 2) do not clearly speak that these taxes were to be paid by the defendants to the plaintiff. All that was intended by the stipulations between the parties (as extracted above), in my view, was that the lessor shifted the burden of payment of these taxes upon the defendants without specifically saying that they were to make the payments of these taxes to the plaintiff as was the position in all the reported cases which were either cited or I could find out, referred to above. Apparently, therefore, the payments of these taxes were not reserved to the lessor by apt words as such, although from the evidence it appears that the tenant paid these taxes on some occasions to the landlady under Exts. 3 series. Ext, 3 is a water tax receipt dated 23-3-1964 granted by the plaintiff to the defendant No. 1 for a sum of Rs. 150/- only on account of the water tax for the year 1958-59. Similarly Ext. 3 (a) is a receipt of the same date for the year 1959-60 and Ext. 3 (b), again of the same date, is a receipt for the subsequent year, i.e., 1960-61. It is evident that the amount of water tax was not paid along with the rents but at one time for three consecutive municipal years and that also several years after they had fallen due.
12. Let us now come to the relevant provisions of the Bihar & Orissa Municipal Act. Sestions 100 and 34 thereof are the two relevant sections in this respect. According to Sub-section (2) of Section 100, latrine tax, subject to the provisions of Section 135, is payable by the per-son in actual occupation of a holding during the relevant period, but this liability is also not absolute and in certain circumstances it shifts on the owner of the holding. For example, where the occupier does not approach the municipality for the assessment of the latrine tax in his name or if the owner does not make a similar prayer, the occupier cannot be sued for latrine tax (see Dalbhum Traders & Industries Ltd. v. Commrs. of Jugsalai Notified Area Committee, 1969 BLJR 283). Section 134 deals with the water tax. According to the scheme of this provision when the owner pays water tax himself, he can recover from the tenant 3/4th of the entire amount of water tax paid by him. The liability to pay water tax, therefore, under the municipal law is squarely on the owner of a holding having a right to recoup himself to the extent indicated above. The obligation with respect to the water tax of a tenant arises only in case he is mutated in the municipal records as the occupier and not otherwise. According to Section 135 where a holding is occupied in severally by more than one person, the Commissioners may levy the latrine tax from the owner who may recover from each occupier such sum as shall bear to the entire amount of the tax so levied in the same proportion as the value of the part of the holding in the occupation of such person bears.
13. From the discussions made above, I have no doubt in my mind to hold that although the plaintiff landlady had a right to recover from the tenant-defendants all the payments of the latrine and water tax in pursuance of the provisions of the Municipal Act discussed above, but their failure to pay it to her formed independent cause of action and cannot go hand in hand with the default in the payment of the monthly rent and, therefore, the default in this regard would not attract the mischief of Clause (d) of Section 11 (1) of the 1947 Act. I would accordingly hold that the trial court took a wrong view of law in holding that on account of the non-payment of the water and latrine taxes, the defendants committed a default in payment of house rent within the meaning of Section 11 (1) (d) and, therefore, were liable to be evicted.
14. It is admitted case of the plaintiff that the defendants paid the yearly instalments of Rs. 900/- in terms of the mortgage bond (Ext. 2). The trial court has also accepted the defendants’ case that after the expiry of the period of 5 years of the bond, the defendants had tendered a sum of Rs. 75/- to the plaintiff’s husband, being the first month’s rent after the expiry of the period of 5 years which was refused by him. On the evidence I do not feel inclined to take a different view in this regard, although Mr. K. D. Chatterji had contended that the evidence of PW 4, the son of the plaintiff who had denied this plea of the defendants, should be accepted.
It is also undisputed that thereafter the defendants had started remitting the rent for each subsequent month by money order according to Section 13 of the Bihar Act which were all refused by the plaintiff’s representative. The money order coupons are Ext. D series and printed in the paper book in a tabular form. Sub-section (1) of Section 13 of the 1947 Act reads as follows :
“(1) When a landlord refuses to accept any rent lawfully payable to him by a tenant in respect of any building, the tenant may remit such rent, and continue to remit any subsequent rent which becomes due in respect of such building, by postal money order to the landlord.” The above provision entitles a tenant, on the landlord’s refusal to accept any rent, to remit the said rent and go on remitting the rent for the subsequent months falling due by postal money orders. Clause (d) of Section 11 (1) itself provided that in the absence of any contract between the parties regarding the time for payment of the rent of any particular month, the said rent could be paid by the “last day of the month next following that for which the rent is payable or by not having been validly remitted….” in accordance with Section 13.
15. Ext. D (22) is the remittance of the rent for the period of one month commencing from 13-9-1963 to 12-10-1963 which was refused by the landlord. It was stated in the money order coupon that rent was being remitted by money order as it was earlier refused by him. Other money order coupons are for the subsequent months. The dates of the remittances of the rents, however, are not clear from the exhibits printed in the paper book, but it was not contended before us on behalf of the respondents that there was any default in making the remittance in the sense that it was not handed over to the post office within the grace period of one month allowed un-der Clause (d) just referred to above, for being paid to the payee. All that was contended was that the defendants were bound to make the remittances with such a margin that it should have been reached (tendered) to the landlady (payee), within the said period of one month. In other words, the argument was that as in the case of hand to hand payment so in the case of remittance under Section 13, the rent should have reached the landlord within the grace period of one month -and it was not sufficient that it was simply remitted within the said period.
16. Mr. Chatterji placed reliance on a Bench decision of this Court in the case of Madholal v. Madan Mohan Agrawalla (AIR 1975 Pat 154) for this contention. If I may say so with due respect, Mr. Chatterji has entirely misdirected himself in placing reliance on this case. It was a case where the tenant was remitting the rents to his landlord not in the situation contemplated by Section 13, i.e., in a case where the landlord had refused to accept the rent, but he had adopted that mode of tender for his convenience instead of going to the landlord personally, and although he was remitting the rent within the grace period of one month the remittance obviously did not reach within the said period of one month, and were tendered after its expiry. In this context it was held that the post office was acting as the agent of the tenant and the remittances could not be held to be legal as the tender by the plaintiff’s agent, namely, the post office, was made to the landlord beyond the period of one month. The learned Chief Justice (Untwalia, C. J. as he then was) in para 7 of his judgment has clearly observed as follows :
“…..If the tender of money through the agency of the post office by money order was in accordance with the general law, then the post office acted as the agent of the tenant and the tender to the landlord would be on the date when it tendered to him the money sent by Money Order. If of course the case could be covered by Section 13 (1) of the Act, then remittance by money order would necessarily be after the last day of the next following month…..”
17. We would have expected Mr. Balbhadra Prasad Singh, learned counsel, who took pains to cite so many English decisions, to have pointed out the fallacy in the argument of Mr. K. D. Chatterji with reference to this decision, but he also, perhaps, did not examine this decision closely. It is, therefore, clear, that according to the scheme of Section 13 all that was required by a tenant was to remit the rent for the month which was refused, within a reasonable time after the expiry of the next following month and then to remit the rent for the subsequent months by the last day of each succeeding month. These remittances being not under the general law but being permissible under the statute, the post office cannot be said to be an agent of the remitter, namely, the tenant and actual tender of the rent to the landlord beyond the grace period of one month would not make the remittance in any way invalid. Similarly, if the landlord is not met or not found and the money is returned to the tenant then also the remittance cannot be held to be invalidated as the law, in my view, did not put so much risk on a tenant and all that was required of him was to make the remittance within the stipulated period and if he did that he discharged the statutory obligation. Taking any other view of the matter would lead to gross injustice and, on the other hand, defeat the very purpose and the scheme envisaged under Section 13 of the Act and would give the landlord a handle to put the tenant as a defaulter at any time. It is, therefore, not possible to accept the contention of Mr. Chatterji, on the facts mentioned above, that the defendants should he held to be defaulters within the meaning of Section 11 (1) (d) of the Act.
18. Now I will take up the other issue, namely, as to whether Ext. 2, the usufructuary mortgage bond, can be treated to be a mortgage bond as such or it is rendered invalid under Section 23 of the Contract Act in view of Section 3 of the Bihar Buildings Act which prohibited the landlord, inter alia, to receive “the payment of any sum exceeding one month’s rent of such building as rent in advance”. The trial court has discussed this aspect of the matter in great detail and has taken the view that the only intention of the landlord by taking recourse to this document was to secure the payment of one year’s rent of the premises at, a time in advance. Mr. Chatterji’s argument was that there being no bar under the Transfer of Property Act for a mortgagor to secure a debt by creating a usufructuary mortgage by receiving it in instalments: the document must be accepted as a mortgage bond on its face. With reference to some income-tax cases laying down the principle that it was open to a person to arrange his affairs in such a manner to bring down the rate of taxes as far as possible, he contended that although the payment of rent for a period of more than one month might be prohibited under the Buildings Control Act, there being no such restriction for realising the same by giving the property in usufructuary mortgage, the document should not be held to be invalid.
This argument, of course, is attractive but has got to be rejected as none of the authorities has said that a person can arrange his affairs in conflict with any legal provision. It has been already said that the intention of the plaintiff on the fact of it does not appear to raise money for the purpose of construction but it was only to realise the rents in a particular mode
19. The plaintiff’s son (P.W. 4) has said that the property could be let out at a monthly rental of Rs. 250/- at the time Ext. 2 was executed. It is said that the plaintiff was in need of money for construction purposes. In these circumstances, in agreement with the trial Court I hold that it does not stand to reason as to why the property could be given in mortgage for a period of five years taking only Rs. 900 at a time and thereby defeating the very purpose of taking the loan at such a ridiculous rate of rent, i.e., Rs. 75 per month only. It seems apparent, therefore, that the only intention to take recourse to this document was to get the rent for the whole year in advance and this being directly prohibited by Section 3 of the Buildings Control Act, the mortgage bond must be held to be illegal and, therefore, it cannot be made any basis for recovery of possession in court, being directly hit by Section 23 of the Indian Contract Act, the court being fully entitled to tear the veil and examine the real intention of a transaction. The case, therefore, has been rightly examined treating the relationship between the parties as a landlord and a monthly tenant.
20. Now I take up for consideration the two other grounds for eviction pressed into service by Mr. K. D. Chatterji on behalf of the landlord, namely, (1) eviction on the ground of personal necessity, and (2) eviction on the ground of breach of the conditions of tenancy.
Personal necessity.
21. We have seen the ground of personal necessity advanced by the plaintiff, namely, for setting up her sons in business; who belong to a trading family. P W. 4 Bijay Kumar Sarawgi, the eldest son of the plaintiff aged about 32 years has said in his evidence that out of five brothers two were reading in Calcutta in the year 1969 when he was examined and one was in service. The remaining two were idle and wanted to open a shop. It is also an admitted position that by the side of the disputed shops the plaintiff has got another room. With respect (o this accommodation the statement of P.W. 4 was that this was too small a place and was, therefore, not suitable for business. This place was being kept vacant for them so that they can amalgamate it with the shop katras after eviction of the defendants and then to start their business. He further said that in Sept., 1966 he had opened a sweelmeat shop in a tenanted accommodation available by the side of the disputed shop as indicated above, but the shop in the tenanted premises had to be vacated on account of the insistence of its landlord and the shop started in their own premises had to be closed. It also appears that the plaintiff has got another house in a lane about 10 ft. wide approximately 60 ft. further north of the shop in question which is on the Main Road in Ranchi town. The size of the rooms/ shops is only 8′ x 10′ and that several shops in this block were vacant. P.W. 7, Harakchand Sarawgi, a relation of the plaintiff, was the owner of the building in which the sweetmeat shop was opened. According to his evidence also in the room by the side of the suit premises no good business can he started (Bara karobar nahi ho sakta hai). According to the evidence of the defendants’ witnesses, however, the accommodation by the side of the suit premises was sufficient for opening a sweetmeat shop. The trial Court has not disbelieved as such the necessity of the plaintiff for starting a business but it has held that the claim for eviction from the suit premises on this account was not bona fide within the meaning of Clause (c) of Section 11 (1) of the Act inasmuch as the plaintiff had Other alternative accommodations, namely, the shop-katras in the lane indicated above as well as the space available by the side of the suit premises. In paragraph 18 of the judgment the trial Court has disposed of this question in these words:
“In the present case, as indicated above, the plaintiff has a number of shop rooms, including one by the side of the Main Road, lying vacant in which her sons could have easily started some business. If that business would have expanded and necessitated larger accommodation there could have been justification for getting the suit premises vacated but having not done that if the pre-sent suit was filed by making the above grounds, to my mind, it cannot be said that the alleged requirement is reasonable and in good faith…..”
22. It is, no doubt, true that Clause (c) speaks of the requirement of the landlord to be “reasonable and in good faith”, but the question is that when the plaintiff established this kind of need, namely, for starting a business of her choice, can a court defeat her on the ground that instead of doing the business in a commercial area she should go to a lane beyond that area? Before recording my conclusion I may refer to some of the decisions in this regard.
23. In the case of Basant Lal Saha v. P. C. Chakravarty (AIR 1950 Cal 249) dealing with the West Bengal Premises Kent Control (Temporary Provisions) Act, the learned Judge while discussing the question of bona fide observed as follows;
“What is ‘bona fide’ under the statute is always a question of fact and the Court with a view to find out whether the requirement of the landlord is bona fide is entitled to look to every relevant fact or circumstances affecting the landlord and his position, such as the nature and character of the landlord’s temporary accommodation at the time when he is asking for the decree for possession, the ins curity or otherwise of the tenure that he might be holding at the time, the fact that he himself is under a notice to quit and the scope, size and character of his requirement. But the hardship which might be caused to the tenant by granting the decree for possession or the fact that tenant on the facts of the case does not need the premises is not a proper or relevant consideration for deciding the question of bona fide.”
This was a case with respect to eviction from a house and alternative accommodation was available to the landlord. The defendant wanted to defeat the landlord on this ground. Proceeding further it was observed:
“The Statute thereby recognizes a wholesome principle that a man should not be deprived of his own house if he bona fide requires it for his own occupation. Under the common law or the Transfer of Property Act, the landlord has considerable rights to evict a tenant from his property. A good many of these rights have been taken away by the Act in order to meet the prevailing acute shortage of housing accommodation for the citizens of this province. A statute like the West Bengal Premises (Temporary Provisions) Rent Control Act, 1948 is designed to meet the fugitive exigencies of the hour and in doing so the Legislature in its wisdom has still left the landlord with that remnant of his right, which is an incident of ownership to be able to evict a tenant, when he bona fide requires his property for his own occupation. This Court will be loath to confiscate that valuable right of the landlord without express statutory provision.”
This view was reiterated by the same High Court in the case of Sumatibala Sen v. Heramba Kumar Roy ((1956) 60 Cal WN 783).
The Supreme Court also had considered the expression “reasonable requirement” with reference to J & K Houses and Shops Rent Control Act in the case of Mst. Bega Begum v. Abdul Ahad Khan (AIR 1979 SC 272) and observed as follows (para 13) :
“Section 11 (1) (h) of the Act uses the words ‘reasonable requirement’ which undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire. The connotation of the term ‘need’ or ‘requirement’ should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree foi eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds.”
24. I may incidentally mention that during the course of hearing of this appeal time was taken by the parties for the possibility of a compromise by giving to the defendants the vacant accommodation by the side of the suit premises in lieu of the suit premises on cer-tain terms and conditions but the defendants did not become agreeable. I am stating this fact not to prejudice the case of the defendants on this account but only for the purpose of showing the fact that had the available accommodation in the main road house been quite proper and sufficient, the defendants would have gladly agreed to shift there. This circumstance also supports the case of the plaintiff that the vacant space is not a suitable space for the business. It is not a case of a residential premises where a Court can adjudge as to whether the defendant should be evicted from the entire house or only from a part of that. The suit premises is a unit of shop katra and the fact that the plaintiff’s sons want to start a business has not been disbelieved but this requirement has not been held to be “bona fide” because they have had at their disposal two alternative accommodations, one in the lane and the other just by the side of the suit premises. In my considered opinion, in view of the principle flowing from the above authorities it would be denying the landlord with that remnant of her right which is an incident of ownership and this could not be the intention of the legislature. Once a
landlord establishes his personal necessity then the law gives him the choice of: selection of the most suitable accommodation which may suit him according to the facts of each case. No cross-exam in action was directed against P.W. 4 as to why he had said that the vacant space on the Main Road was insufficient. The fact that that is kept vacant from several years (20 years) also supports the case of the plaintiff’s bona fide requirement of the suit premises. Then there is some protection for a vexatious plea on this ground of personal necessity provided in the statute itself and that is contained in Section 12 of the Act which provides that where the landlord recovers possession of any building from the tenant by virtue of a decree secured under Clause (c) of Sub-section (1) of Section 11 and the building is not occupied by him, or by the person for whose benefit the building is held, within one month of the date of vacation of the building by such tenant, or the building, having been so occupied, is re-let within six months of the date of such occupation to any person other than such tenant without the permission of the Controller, the Court may, on the application of such tenant made within nine months of his vacating the building, after hearing both the parties put the tenant to possession or to pay him such compensation or both, as may be fixed by the Court.
I do not lay much stress on this provision, but on the evidence and the circumstances mentioned above I am unable to agree with the trial Court on the question of personal necessity. I, therefore, in disagreement with the trial Court, would hold that the plaintiff requires the suit premises for her personal occupation in the sense of starting business by her sons. The plaintiff is, therefore, entitled to a decree for eviction of the defendants on this ground. Breach of the condition of tenancy.-
25. One of the grounds of eviction of a tenant from a building is provided in Clause (a) of Sub-section (1) of Section 11 of the Act and that is for breach of the condition of the tenancy or for subletting the building or any portion thereof without the consent of the landlord etc.
The argument of Mr. Chatterji in this regard was that even assuming for the sake of argument that the tenants cannot be held to be defaulters within the meaning of Clause (d) of Section 11 (1) of the Act, on account of the non-payment of the latrine and water taxes, they must be deemed to be guilty of breach of the conditions or terms of the tenancy on this account within the meaning of Clause (a) mentioned above. The argument of Mr. Balbhadra Prasad Singh in this regard was that the default in this regard, which, of course, was undisputed, could not be held to be a breach of the conditions of the tenancy, but only a breach of the stipulations thereof. I, however, fail to appreciate this argument of making a distinction between the “conditions” and “stipulations” of the terms of a tenancy. There might be a thin distinction between these two, but in my view, there being an express covenant in Ext. 2 which was also acted upon by the tenants as evidenced by Ext. 3 series already seen above, the default in payment of these taxes amounted to a breach of the conditions of tenancy and, therefore, on this account also the defendants are liable to be evicted.
26. No other point remains for consideration and for the reasons discussed above, I do not fiid any merit in this appeal and would maintain the decree for eviction of the defendants passed by the trial Court but for grounds entirely different from those given by it. I would accordingly direct the appellants to Rive the vacant possession of the premises in question within a period of four months failing which the plaintiff would be entitled to recover possession through the process of law. On the facts and in the circumstances of the case, I shall make no order as to costs.
Nazir Ahmad, J.
27. I agree.
