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Ratilal Bros. Petnrs. v. The Govt. Of Mysore & Another Resps.
Structured Summary of the Opinion — Venkata Ramaiya, J.
Factual and Procedural Background
This petition under Article 226 sought writs of certiorari and prohibition to quash and restrain execution of an order passed by respondent No. 1 for eviction of the petitioners from premises owned by respondent No. 2. Respondent No. 2 is described as an unregistered association of Jains (Swetambar) which purchased the property around 1947 to run a residential Hindi school. The petitioners were tenants of the premises long prior to that purchase. Respondent No. 2 applied to the House Rent Controller for eviction on the ground that the premises were required for opening the school; the first such application was unsuccessful, a second application the following year was allowed by the House Rent Controller, dismissed by the Labour Commissioner on appeal, but ultimately granted by the Government. The petition challenges the Government's order granting eviction and contends that the order was without jurisdiction under the Mysore House Rent & Accommodation Control Order.
Legal Issues Presented
- Whether the Government's order granting eviction was passed without jurisdiction under the Mysore House Rent & Accommodation Control Order.
- Whether a second application for eviction based on the same ground (need for the premises to run a school) is maintainable when a prior application on the same ground had been dismissed.
- Whether Clause 12 (requiring written permission of the Controller to convert a residential building into a non-residential one) is a condition precedent to the landlord’s application for eviction under Clause 9.
- Whether the running of a school in the building qualifies as "occupation" under Clause 9(3)(i) (i.e., whether the landlord must personally reside in the premises to invoke that clause).
Arguments of the Parties
Petitioners' Arguments (as advanced by their counsel)
- Once an application for eviction based on the need to run a school was dismissed, a second application on the same ground is not maintainable.
- Clause 12 of the House Rent Control Order requires written permission from the Controller to convert a residential building to non-residential use; since respondent No. 2 did not obtain such permission, the eviction application was not maintainable.
- Running a school in the building cannot be regarded as "occupation" under Clause 9(3)(i); the provision requires the landlord himself to live there (i.e., "occupation" should mean personal residence).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| King v. Electricity Commissioners, (1924) 1 K.B. 171 at p. 204 (93 L.J. F.B. 390) | Explains the nature and scope of writs of prohibition and certiorari — these writs control inferior tribunals or bodies acting judicially where they exceed their legal authority. | The court relied on this passage to frame the scope of certiorari/prohibition available under Article 226 and to stress that such writs address excess of jurisdiction by bodies performing juridical acts. |
| Ryots of Garabandho v. Zamindar of Parlakimedi, A.I.R. (30) 1943 P.C. 164 (I.L.R. (1944) Mad. 457) | Certiorari does not lie to correct purely executive/ministerial acts; it applies where the inferior body's act is juridical rather than merely ministerial. | Used to determine whether the Government's order was juridical (so as to be amenable to certiorari). The court concluded the Government order was not merely ministerial. |
| Baladin…Objector v. Lakhan Singh…Opposite Party, A.I.R. (14) 1927 ALL. 214 (99 I.C. 376) | Held that the word "occupation" in statutory contexts (specifically S.60(c), Civil P.G.) does not necessarily mean residence only. | Applied to support a wider construction of "occupation" in the House Rent Control Order, indicating it need not be restricted to personal residence. |
| Emperor v. Taylor, 10 Bom. L.R. 38 | Illustrates that "occupation" may be actual or constructive and is a question of fact involving rights to use and superintendence; the occupier may not be in actual physical possession. | Relied on to show that occupation of premises can be constructive and depends on factual considerations such as the right to use and control the premises. |
| Queen v. The Justices of the West Riding of Yorkshire, (1842) 114 E.R. 198 (2 Q.B. 504) | Explains that while "occupy" commonly conveys living in a house, "actual occupation" does not necessarily equate with residence; a person may occupy without residing. | Used to demonstrate the uncertain and varied meanings of "occupy/occupation" and to counter the petitioners' contention that occupation must mean personal residence. |
| Stroud's Judicial Dictionary (authority cited in the opinion) | Distinguishes 'possession' and 'occupation': occupation includes possession and more; legal possession alone does not constitute occupation. | Invoked to emphasize the legal distinction between "possession" and "occupation" when interpreting Clauses 9 and 12 of the Order. |
Court's Reasoning and Analysis
The court began by acknowledging its jurisdiction under Article 226, then explained the proper scope of certiorari and prohibition by reference to King v. Electricity Commissioners and related authority. The key threshold question was whether the Government's order was a juridical act susceptible to challenge by certiorari; relying on Ryots of Garabandho, the court held that the Government's order was not purely ministerial but juridical and therefore reviewable on jurisdictional grounds.
The court then addressed the specific contentions raised by the petitioners' counsel and analyzed the statutory provisions relied upon (Clauses 9 and 12 of the House Rent & Accommodation Control Order), proceeding point by point:
- On the objection that a second application was barred because a prior application on the same ground had been dismissed, the court noted the admitted fact that at the time of the first application there was no provision enabling a landlord to seek possession for his own occupation; an amendment later permitted such relief and respondent No. 2 availed itself of that amendment in the subsequent application. Accordingly, the objection that the second application was barred failed.
- On Clause 12 (requiring written permission to convert a residential building into non-residential use), the court observed that while Clause 12 imposes the requirement of written permission for conversion, that requirement is not imposed under Clause 9 as a condition precedent to disposal of an application under Clause 9. In other words, the existence of the Controller's permission for conversion is not a precondition to a valid eviction application under Clause 9. The court therefore rejected the contention that absence of written permission under Clause 12 rendered the eviction application invalid.
- On whether running a school constituted "occupation" under Clause 9(3)(i), the court examined the language of Clause 9 (quoting sub-clauses (i) and (ii)), and analyzed the distinction between the words "possession" (used with reference to an order of the Controller) and "occupation" (used with reference to the landlord's requirement). The court noted that "occupation" is not defined in the Order and has been construed more broadly in other statutes and authorities. Citing Baladin… v. Lakhan Singh, Emperor v. Taylor, Queen v. The Justices of the West Riding of Yorkshire, and Stroud's Judicial Dictionary, the court concluded that "occupation" can include constructive occupation and need not be synonymous with personal residence.
- The court further observed that the legal definition of "landlord" includes entities such as guardians, trustees and receivers, and that where a landlord is an association (as respondent No. 2 was), it is unrealistic to require that all members personally reside in the premises to claim occupation. The association could have the building in its occupation directly (if members themselves conduct the school) or constructively (by others conducting the school on its behalf).
- Finally, the court noted that Clause 9(3)(b) permits the Controller to direct a tenant to give possession if satisfied that the landlord's claim is bona fide. The Government's order necessarily implied such satisfaction of bona fides and therefore could not be regarded as beyond jurisdiction.
Holding and Implications
Petition dismissed.
Direct effect: The petition challenging the Government's grant of eviction was dismissed, which means the Government's order (as described in the opinion) was not held to be without jurisdiction and therefore stood unquashed by this court.
The opinion contains the court's interpretative conclusions regarding Clauses 9 and 12 of the Mysore House Rent & Accommodation Control Order (noting that Clause 12's permission requirement is not a condition precedent to a Clause 9 eviction application, and that "occupation" may be construed broadly to include constructive occupation). The opinion does not purport to announce that it is establishing any broader binding precedent beyond the resolution of the petition; the direct consequence recorded in the text is dismissal of the petition.
Venkata Ramaiya, J.:— This petn. is under Art. 226 of the Constitution of India fox the issue of writs of certiorari & prohibition to quash the, order passed by resp. 1 & for a direction that the said order should not be executed. The ground on which the writs are sought is that the order passed by resp. 1 for eviction of the petnrs. from the premises of which resp. 2 is the owner is without jurisdiction under the provisions of the Mysore House Rent & Accommodation Control Order; Respondent 2 is said to be an unregistered association of Jains of the Swetambar cult & purchased the building in about the year 1947 for the purpose of running a residential Hindi school. The petnrs. have been the tenants of the premises from a time: long prior to the date of the purchase by resp. 2. An appln. made by resp. 2 to the House Rent Controller for eviction of the petnrs. on the ground that it was needed for opening the school was unsuccessful. A similar appln. filed in the following year was allowed by the House Rent Controller dismissed by the Labour Comr. on appeal but eventually granted by the Govt. It is this order of Govt. which is attacked by the petnrs. & with respect to which the writs are prayed for.
2. It is beyond dispute, this Ct. has jurisdiction to issue the writs as this is clearly provided for in Art. 226 of the Constitution of India, but the conditions for the exercise of the power are not mentioned therein.
3. The nature of these write is explained by Atkin L.J in The King v. Electricity Commrs., (1924) 1 K.B 171 at p. 204 : (93 L.J F.B 390) thus:
“The matter comes before us upon rules for writs of prohibition & certiorari which have been discharged by the Divisional Ct. Both writs are of great antiquity, forming part of the process by which the King's Cts. restrained Cts. of inferior jurisdiction from exceeding their powers. Prohibition restrains the tribunal from proceeding further in excess of jurisdiction; certiorari requires the record or the order of the Ct. to be Bent up to the King's Bench Division, to have its legality inquired into, & if necessary, to have the order quashed. It is to be noted that both writs deal with questions of excessive jurisdiction, & doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Ct. of Justice. But the operation of writs has been extended to control the proceedings of bodies which do not claim to be, & would not be recognised as Cts. of Justice. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, & having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.”
4. Aa observed by Lord Chancellor (Viscount Simon) in Ryots of Garabandho v. Zamindar of Parlakimedi, A.I.R (30) 1943 P.C 164 : (I.L.R (1944) Mad. 457) the writ of certiorari does not issue to correct purely executive acts but, on the other hand, its application is not narrowly limited to inferior “Courts” in the strictest sense. Broadly Speaking, it may be said that if the act done by the inferior body is a juridical act, as distinguished from being a ministerial act, certiorari will lie. The order passed by the Govt. against; the petnrs. cannot be said to be of a ministerial kind & it is, therefore, necessary to see as to whether it was beyond the powers given to them by the House Rent & Accommodation Control Order.
5. Sri B. Shankar Rao, the learned counsel on behalf of the patnrs. has advanced three contentions to show that the order is one passed in excess of the powers conferred by the House Rent & Accommodation Control Order & these are: (1) when once an appln. for eviction based on the allegation that the premises were required for running a school was dismissed, a second appln. setting forth the same reason does not lie: (2) Clause 12, House Rent Control Order, requires permission to be obtained for converting a residential building into a non-residential one & since no such permission has been obtained by rasp. 2, to make use of the building for running the school, the appln. for eviction was not maintainable & (3) running a school in the building cannot be regarded as occupation under Cl. 9(3)(i), House Rent Control Order. & it is necessary that resp. 2 should himself live there for the application of that provision.
6. As it is conceded that on the date of the first appln. there was no provision for enabling the landlord to seek possession of the property for his own occupation & resp. 2 availed himself of the amendment subsequently made in this behalf in the later appln., the objection to the second appln. as being barred on account of the need for the building being staled to be the same as that in the prior petn. fails. The second objection relates to the effect of Cl. 12. Clause 12 no doubt states that without the written permission of the Controller a residential building cannot be converted into a non-residential one. But this is not a condition imposed under Cl. 9 for disposal of an appln. made by the landlord, in other words the existence of the permission of the Controller for converting a residential building into a non residential one is not a condition precedent to a valid appl. for eviction under el. 9. Clause 9(3)(a) for the application of which exception is taken reads as follows:
“A landlord may also apply to the Controller for an order directing the tenant to put him in possession of a house in the following cases
(i) if the house, being a residential building, is required for the bona fide occupation of the landlord & he is not already occupying another residential building of his own in the same city, town or other area;
(ii) if the house, being a non residential building, is required for a business which the landlord is carrying on or which he wants to start & be is not already in occupation of a non-residential building in the same city, town or other area for purposes of such business.”
7. It is thus seen that the word ‘possession’ is used with reference to the order the Controller makes & ‘occupation’ for the requirement of the landlord. The word ‘occupation’ occurs in both sub-cls. 1 & 2 with reference to residential as well as the non-residential buildings. Whether the meaning to be attached to these is the same or different is not clear but a distinction is male between ‘possession’ & ‘occupation’ in the strict legal sense. While occupation includes possession & also something more, legal possession does not of itself constitute possession (Stroud's Judicial Dictionary). If as contended for the petnrs. ‘occupation’ is synonymous with ‘residence’, then the word could not find a place in Bub-cl. (ii) & the word ‘residence’ in the place of ‘occupation’ in sub-cl. (i) would be more appropriate & have better fitted with the petnrs' construction.
8. The term ‘occupation’ is not defined in the House Rent Control Order & seems to have wider signification than ‘residence’. Such a construction has been placed on it in the application of other enactments in which the word is used. In Baladin…Objector v. Lakhan Singh…Opposite Party ., A.I.R (14) 1927 ALL. 214 : (99 I.C 376) it was observed that the word “occupation” in S. 60(c), Civil P.G does not necessarily mean residence only. In Emperor v. Taylor, 10 Bom. L.R 38, the question as to how the word “occupation” in the Factories Act is to be construed arose for consideration, Chandavarkar, J., remarked:
“What is an occupation is a question of fact in each case to be determined with reference to certain well-known principles of law. The learned Mag. who has made the reference seems to think that the legal meaning of “occupier” is a person who is in actual possession. But a person may occupy or possess a land or building actually or constructively ….. The question who is the occupier of a factory must therefore depend among others upon these considerations namely who alone has the right of using the factory for the purpose for which it is constructed & worked …. whose is the predominant possession of & general superintendence over it.”
9. The word ‘occupy’ is a word of uncertain meaning. Sometimes it indicates legal possession in the technical sense. At other times ‘occupation’ denotes nothing more than physical presence in a place for a substantial period of time. In Queen v. The, Justices of the West Biding of Yorkshire, (1842) 114 E.R 198 : (2 Q.B 504) Patteson J. expressed thus:
“Now I quite concede that the word ‘occupy’ applies to a house, conveys to any man the meaning of living in the house; ninety-nine persons in a hundred, at least would so understand it …. Even “actual occupation” would not necessarily mean ‘residence’, because a man might dwell in one parish & “rent a house & land in the adjoining one, occupying it by his servants. Some other words therefore, are necessary to show residence.
10. Wightman, J., explicitly said “A man may occupy either land or dwelling house without residing.” The definition of ‘landlord’ includes guardians, trustees & receivers for any other person & if such persons happen to be more than one should they all or all the legal owners reside in the premises in order to invoke the and of Cl. 9(3)(I), House Bent Control Order? In this case resp. 2 is not an individual person but an association the members of which cannot possibly reside together. But they want to conduct a school & for this the building must be in their occupation, directly if the members themselves conduct it or constructively if it is done through others. Clause 9(3)(b) states that if the Controller is satisfied that the claim of the landlord is bona fide, he can direct the tenant to put him in possession of the building. The order of the Govt. implies that it is so & cannot be considered to be without jurisdiction. The petn. is therefore, dismissed.
D.H
Petition dismissed.
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