Leelawante v. Shrichand — 1990 DIGILAW 160 (MP)

JUDGMENT S. Awasthy, J. -- 1. This appeal arises out of the judgment and decree dated 8.4.1986 passed by Shri K.K. Shrivastava, Additional Judge to the Court of District Judge, Satna in Civil Appeal No. 13-A/85 arising out of the judgment and decree passed in Civil Suit No. 37-A/82 of the Court of Civil Judge, Class-I, Satna. 2. The plaintiff-appellant filed a suit for ejectment of the defendant-respondent from open plot area 50 ft. x 60 ft. on Kh. No. 429/75 situated in ward No. 11 of Maihar Nagar Palika. The trial Court decreed the suit, but the appeal of the defendant-respondent was allowed by the Lower Appellate Court, hence this appeal of the following substantial questions of law: "(a) Whether the Court below committed an error of law by observing that the suit was not filed on the ground of construction under section 12(1)(n) of the M.P. Accommodation Control Act. (b) Whether the finding of bonafide non-residential requirement under section 12(1)(f) of the Act is erroneous in law because the Court below mixed up the question of bonafide requirement for non-residential purpose and bonafide requirement for construction resulting in a perverse finding?" 3. The plaintiff alleged that she is the owner of a plot situated in Ward No. 11 Station Road, within the Municipal area at Maihar 150 ft. x 76 ft. bearing No. 429/5. The defendant was inducted as a tenant for 3 years on 6.10.1971. She has 3 major sons. They want to carryon their business at Maihar. She has no other accommodation in Maihar for the said purpose. The suit plot is most suitable for the business of her sons. Since, it is an open plot, she wants to construct a house on the said plot which shall be used for the business of her sons. The defendant denied the allegations of the plaintiff and submitted that plaintiff does not require the plot in suit for business of her sons. Two of her sons were doing the business at Calcutta and the other son is already carrying on the business at Maihar. The defendant also alleged that the plaintiff has several houses and plots at Maihar. The defendant also denied that the plaintiff wants to construct a house on the suit plot. It is submitted that the plea raised by the plaintiff is false. 4. The defendant also alleged that the plaintiff has several houses and plots at Maihar. The defendant also denied that the plaintiff wants to construct a house on the suit plot. It is submitted that the plea raised by the plaintiff is false. 4. The Lower Appellate Court has considered whether the plaintiff required the suit plot for the business of her sons and for that purpose she requires the suit plot for constructing a house thereon. In that context, the Lower Appellate Court has discussed the evidence of the plaintiff and has held that her husband has a big business in Calcutta and her two sons are with their father in the said business. They will not leave the business at Calcutta for establishing another business at Maihar. The elder son is also doing a business at Maihar with his uncle. He would not start a new business at Maihar. The plaintiff had not stated that she needs the suit plot for constructing a house thereon. Though her son PW-2 Prathviraj Sahagal had stated that he would construct a house on the suit plot. Ultimately, the Lower Appellate Court came to the conclusion that the suit is not filed under section 12(1)(n) of the M.P. Accommodation Control Act (hereinafter referred to as the 'Act') and the plaintiff does not require the suit plot for starting the business of her sons. 5. The counsel for the appellant referred to the provision under section 12(1)(n) of the 'Act' which reads as under: "(n) In the case of accommodation which is open land, that the landlord requires it for constructing a house on it." 6. The learned counsel appearing for the appellant argued that the requirement under this clause would be satisfied, if the landlord states that he wants to build a house on the open land without proving that he required the house for any of his personal needs. Accordingly, the intention of a landlord to build a house on the land satisfies the requirement of this clause. It is true that the intention of the landlord must be a real intention and not a mere desire to construct. Reliance was placed on Second Appeal No. 415/61 decided on 16.4.1962 (S. Bootasingh v. Jamnaprasad 1963 MPLJ-SN 134 which was relied and approved in the case of Prabhudayal v. Smt. Savitri Devi and another 1972 JLJ 897 = 1972 MPLJ 904 . 7. Reliance was placed on Second Appeal No. 415/61 decided on 16.4.1962 (S. Bootasingh v. Jamnaprasad 1963 MPLJ-SN 134 which was relied and approved in the case of Prabhudayal v. Smt. Savitri Devi and another 1972 JLJ 897 = 1972 MPLJ 904 . 7. It was further argued that it is for the defendant to prove that the plaintiff has no real desire to construct but he only wants to get land vacated for some other purpose on that pretext. The learned counsel referred to the case of Sushila Devi v. Madan Lal S.A. No. 172/81 decided on 6.3.1985 reported in 1986 M.P. Rent Control Journal Note No. 84. In the said case, it was held that the approach of the Lower Appellate Court that the son of the appellant was in service, therefore, the submission of the landlady that he would start business after constructing .a house on the open land was not correct. "The learned Lower Appellate Court should have considered whether the plaintiff requires the tenanted open land for constructing a building thereon. It is not the case of the defendant nor the finding of the Appellate Court that the plaintiff is unable to construct a building on the tenanted open land. In the circumstances, the finding of the Lower Appellate Court that the plaintiff failed to prove that she required the tenanted open land for construction of a building thereon is vitiated being based on irrelevant consideration." 8. In the case of (Kikabhai Abdul Hussain v. Kamlakar and others 1974 JLJ 675 = 1974 MPLJ 485 (DB), it has been held that the word of the landlord must prima facie. be accepted. If the intention of the landlord has been established the landlord can claim ejectment of the defendant/tenant from the open land. In the case of (Abdul Hussain v. Abdul Gani S.A. No. 64/82, decided on 20.2.1984 (1984 MPRCJ-N 82), it has been held that if the Court is satisfied that the landlord wants to construct over the land in question the plaintiff was entitled to get decree for eviction. Even though the plaintiff in that suit had failed to establish a ground under section 12(1)(f) which was the main ground at the time of filing of the suit and the ground under section 12(1) (n) was introduced by amendment decree for ejectment was passed. 9. Even though the plaintiff in that suit had failed to establish a ground under section 12(1)(f) which was the main ground at the time of filing of the suit and the ground under section 12(1) (n) was introduced by amendment decree for ejectment was passed. 9. The learned counsel for the respondent argued that "the Act professes to control letting and rent of accommodation and the eviction of tenants therefrom. The Act restricts the power of the landlord to let and to rack-rent at will. It also restricts his power to eject the tenant at will. Thus, the direct and immediate object of the Act is to ensure occupation of accommodation by them who are in need of it. Broadly speaking a construction which fulfils this purpose should be preferred to the alternative construction which frustrates it. 10. The learned counsel relied on the case of (Murlidhar Aggarwal and another v. State of Uttar Pradesh and other (1974) 2 SCC 472 ) and submitted as under: "The conception of public policy is not only quite distinct from that of the policy of law but has in fact always been so except in some exceptional instances of confusion which have had no substantial effect on the general course of authority. The Courts must certainly weigh the interests of the whole community as well as the interests of a considerable section of it. If the decision is in their favour it means no more than that there is nothing in their conduct which is prejudicial to the nation as a whole. Nor is the benefit of the whole community always a mere tacit consideration. The Courts may have to strike a balance in express terms between community interests and sectional interests. Public policy does not remain static in any given community. It may vary from generation to generation and. even in the same generation. Public policy would be almost useless if it were to remain in fixed moulds for all time. It is intended to protect a weaker section of the community with a view to ultimately protecting the interest of the community in general by creating equality of bargaining power. Although the section is primarily intended for the protection of tenants only, that protection is based on public policy." 11. It is intended to protect a weaker section of the community with a view to ultimately protecting the interest of the community in general by creating equality of bargaining power. Although the section is primarily intended for the protection of tenants only, that protection is based on public policy." 11. The learned counsel referred to the case of (Mani Subrat Jain v. Raja Ram Vohra AIR 1980 SC 299 ):- "It is too platitudinous to preach and too entrenched to shake, the proposition that rent accommodation shortage is a country of terrible accommodation shortage is a beneficial measure whose construction must be liberal enough to fulfil the statutory purpose and not frustrate it. So construed, the benefit of interpretative doubt belongs to the potential evictee unless the language is plain and provides for eviction. That intendment must, by interpretation, be effectuated. This is the essence of rent control jurisprudence. The Rent Control Act is a piece of social legislation designed to protect the tenant from eviction by landlords on frivolous, insufficient or purely technical grounds." 12. The learned counsel, then referred to the case of (Mohammed Hasnuddin v. State of Maharashtra (1979) 2 SCC 572 ) for the meaning of the word 'requires' and submitted that this word implies compulsion, therefore, mere statement of the plaintiff would not be sufficient to pass a decree under section 12(1)(n) of the 'Act'. The reason shown was that the plaintiff wanted to construct a house on the said plot, hence there should be a sufficient material before the Court for holding that there was some compulsion which led her to construct a house on the open plot. Otherwise, the very purpose of the legislation would be frustrated. He also made a request to refer this matter to a larger bench for considering, if the cases referred by the learned counsel for the appellant have been correctly decided. 13. The plaintiff in this case has filed the sanctioned map for construction of houses on the suit plot. Said map sanctioned by the Municipality is Ex.P-5 and the sanction order is Ex.P.6 (proved by PW -4 Ramlubhaya Sahagal). There is no suggestion that she does not possess sufficient money to construct the house as per map sanctioned by the Municipality. Ramlubhaya Sahagal PW-4 is the son of the landlady. Said map sanctioned by the Municipality is Ex.P-5 and the sanction order is Ex.P.6 (proved by PW -4 Ramlubhaya Sahagal). There is no suggestion that she does not possess sufficient money to construct the house as per map sanctioned by the Municipality. Ramlubhaya Sahagal PW-4 is the son of the landlady. He has specifically stated that about 1½ lakh would be required for constructing the said house which his mother would invest. The mother has also stated that she would give the money to her sons. There is nothing in the cross-examination of the plaintiff's witnesses to suggest that it is merely a pretext to get the suit plot vacated and in fact the plaintiff does not wish to construct a house on the suit plot. Merely because the Lower Appellate Court has found that the plaintiffs' sons shall not start a business at Maihar, it cannot be held that the plaintiff shall not construct a house on the open plot (suit land). 14. The defendant's witnesses Vindheshwari Prasad (DW-1) and Abdul Rahim (DW-2) do not throw any light on this aspect. The defendant had stated that the plaintiff's husband or sons do not wish to start any business at Maihar. They merely want to get the suit plot vacated from him. This evidence pertains to section 12(1)(f) only and not to section 12(1)(n) of the 'Act'. He has not stated a single sentence regarding the plea of the plaintiff under section 12(1)(n) of the 'Act'. In the same manner, Anand Singh (DW-4) has also not stated anything pertaining to the plea under section 12(1) (n) of the 'Act'. 15. From the discussion aforesaid, it is clear that the Lower Appellate Court .committed an error by not considering the plea under section 12(1)(n) independently of the plea under section 12(1)(f). Since, the Lower Appellate Court was of the view that case under section 12(1)(f) has not been established, the plaintiff's suit under section 12(1)(n) of the 'Act' was also dismissed. The documents and the evidence of the plaintiff in this regard have been completely ignored. 16. According to me the judgment and decree of the Lower Appellate Court need be reversed and that of the trial Court affirmed. For the reasons aforesaid, I allow the appeal of the plaintiff and grant a decree for ejectment of the defendant from the suit plot under section 12(1)(n) of the 'Act'. 17. 16. According to me the judgment and decree of the Lower Appellate Court need be reversed and that of the trial Court affirmed. For the reasons aforesaid, I allow the appeal of the plaintiff and grant a decree for ejectment of the defendant from the suit plot under section 12(1)(n) of the 'Act'. 17. However, due to paucity of accommodation and difficulty in finding out suitable alternative accommodation in the town of Maihar, I direct that the defendant-respondent would not be ejected from the suit plot till 31st of December 1990. In case the defendant does not vacate the plot by that date the plaintiff-appellant shall have the right to execute the decree and take possession of the suit plot thereafter. The defendant-respondent shall pay the occupation charges at the rate of agreed monthly rent till the plaintiff gets the possession of the suit plot. The defendant-respondent to bear his cost of litigation and to pay the cost of the plaintiff-appellant throughout. Counsel's fee Rs.250/- if certified.