Balmakund v. Harinarain

Sinha, J.:— This suit was originally filed in the Court of the 1st Subordinate Judge of Patna for a declaration that the orders of the Controller and the Commissioner passed under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, to be referred to in detail presently, were ultra vires and without jurisdiction and for a permanent injunction, restraining the defendants from taking steps to enforce the said orders or to interfere with the plaintiff's possession. An application for a temporary injunction in similar terms, was filed and refused by the Court below. Against that order, the plaintiff moved this Court in revision. The application in revision was admitted, and, after hearing both the parties, it became clear that the questions in controversy in the application were exactly the same as the questions in the suit itself. Therefore, with the consent of the parties, we directed that the suit itself be heard by this Court as expeditiously as possible in view of the urgency of the matter. With the consent of the parties, we have heard the suit after framing the necessary issues. The issues framed are as follows:—

“(1) Whether the order of the Collector dated 30th April, 1947 passed in B.B.C Case no. 26 of 1947 and the order of the Commissioner in appeal dated 26th August, 1947 in Case no. 159 of 1947 is ultra vires; and

(2) Whether the plaintiff is entitled to a permanent injunction restraining the defendants from enforcing the order passed by the Collector and the Commissioner as in issue no. 2; and to what relief, if any, is the plaintiff entitled.”

The facts of the case be within a very narrow compass, and are neither in doubt nor in dispute. The plaintiff obtained a registered lease of the premises for a period of two years ending with 15th September, 1938. The monthly rent fixed for the premises was Rs. 60, and Rs. 40 was fixed as the rent for the furniture, etc., already there on the premises. Later on, the sum of Rs. 100 was increased on different occasions to Rs. 151 per month. The purpose of the tenancy was the running of a cinema house, although there were attached premises for the use of the staff necessary for running the show. It appears further that, on the expiry of the term of the lease, the plaintiff held over, though not exactly on the same rent. Hence, it was not strictly speaking, a holding over but was the created of a tenancy from month to month on payment of Rs. 151 as the monthly rent. All these years, the plaintiff has been running the cinema house, and a portion of the premises is occupied by his staff. Hence, the buildings are mainly being utilized for running the cinema house, though a small portion is also being utilized for residential purposes. On the 10th of February, 1947, the defendants made an application to the relevant authority for eviction of the plaintiff from the premises on the ground that they required the premises for their own use, as they intended to run a cinema house themselves. On the 13th of March, 1947, the plaintiff showed cause by alleging that the application was not bona fide but was a mere device further to enhance the rent, for which several attempts had been made previously without any success. The, plaintiff as opposite party in those proceedings also alleged that he had spent a considerable sum of money over improving the building and the furniture for the purpose of running the cinema house. He further stated that any further increase in rent would amount to rack-renting, and he ended by pointing out the difficulties in shifting to another place to run his business, into the details of which it is not necessary to enter for the present purposes. After the plaintiff had shown cause against his eviction, the Deputy Magistrate in charge of these proceedings, after hearing the parties, made a recommendation to the Collector, who was ex-officio the Controller under the Act, that the application of the defendants, who were the petitioners in those proceedings, was not bona fide, and that, therefore, it should be rejected. After this report was made, the learned Collector as Controller passed an order on the 30th of April, 1947, directing, the plaintiff to vacate the buildings by the 30th of October, 1947, thus giving the plaintiff the maximum time permissible within the statute for vacating the premises. In making this order, the learned Controller made the following observations:

“In any case there is nothing to show that they do not really want it in good faith for their own occupation.

This is not a case where the building is required for necessary residential purposes either by the petitioners or by the opposite party, but the real question is as to whether one party is to have the benefit of the building and business of, the other. The petitioners being the owners of the building, they have undoubtedly got prior claims and, had it not been for this Act, they would certainly have bad the right to eject the tenant and enter into possession of the building.”

The plaintiff preferred an appeal to the Commissioner from the order of the Controller as quoted above, and the learned Commissioner passed his orders on the 26th of August, 1947, dismissing the appeal but, in the circumstances, granting further extension, of the time, namely, up to the 31st of December, 1947, for vacating the premises. While making the order dismissing the appeal, the learned Commissioner made the following observations:

“There was an argument that the landlord does not want the premises for genuinely opening a cinema house. If the petition is proved to be mala fide then remedy is provided by sub-section (4) of section 11, by which in case of mala fide petition the original tenant would he restored to the building.”

Hence, it would appear that, having lost in both the Courts created by the Act in question, the plaintiff instituted the suit for the reliefs already indicated.

The defendants, who are admittedly the owners of the premises in question, have vehemently contested the suit, and have denied the allegations made by the plaintiff that the application for eviction filed in the Court of the Controller under the Act was not bona fide or that the owners did not require, the premises for their own use. The whole cause of action for this suit is contained in paragraph 7 of the plaint, which is as follows:—

“For that the plaintiff begs to submit that the said orders of the Collector in the capacity of the Controller and that of the Commission under Bihar Buildings. Control Act, 1947, purporting to be under section 11 clause (3) of the said Act is ultra vires and without jurisdiction inasmuch as the said section confers jurisdiction on the Controller to exercise is jurisdiction only when the building in question is required by the landlord for his own occupation and not for the purpose of carrying on trade or business. But in order to assume jurisdiction the said authorities have wrongly interpreted the word occupation in the section referred to, and have actually gone beyond the scope and object of the legislature in passing the enactment aforesaid.”

I have quoted the entire allegations of the plaintiff bearing on the question of the jurisdiction of the Controller under the Act with a view to showing that the plaintiff in this Court has sought to attack the orders of the Controller and the Commissioner as the appellate authority on other grounds not disclosed in the plaint. The plaintiff has gone to the length of attacking the Act itself as ultra vires. Those arguments will be dealt with in due course; but it is manifest that the whole suit must depend upon the construction of section 11 of the Act, and, if I can summarise the arguments for the plaintiff on this part of the case, it is this that the word “occupation” is synonymous with “residence”. If that argument is well-founded, the suit must succeed if it is not so, it is equally clear that there is no cause of action for the suit which must, in the circumstances, be dismissed. The relevant portion of section 11 for the purposes of this suit is contained in sub-section (3) of section 11 of the Act, and is in these terms:—

“(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession of a building if he requires it reasonably and in good faith for his own occupation or for the occupation of any person for whose benefit the building is held by him:

Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub-section before the expiry of such period.

(b) The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put, the landlord in possession, of the building on such date as may be specified by the Controller in the order and if the Controller is not so satisfied, be shall make an order rejecting the application:

Provided that the Controller shall give the tenant a reasonable time ordinarily not less than three months but not exceeding six months in any case for putting the landlord in possession of the buildings.”

It has been argued on behalf of the plaintiff that the premises in question in this suit are not required by the defendants “in good faith for their own occupation”. It is said, and rightly enough, that the premises have been used, and are meant to be used, as a cinema house with appurtenant rooms for the use of the staff employed for running the show. It has, therefore, rightly been pointed out that the predominant purpose of the tenancy was the running of the cinema business, and that purpose could not be said to be residential even though a portion of the premises is being utilized for residential purposes for the use of the staff employed by the lessee hence, it is clear that the defendants as petitioners in the Court of the Controller did not require the premises for residential purposes, and it is argued that, that being so, the case did not come within the purview of sub-section (3) of section 11 of the Act. Hence, the whole question in controversy between the parties is whether “occupation” means only a residence or much more than what is conveyed by the term “residence”. In this connection reference has been made to the cases of Radhakishan Hakumji v. Balvant Ramji, The Bank of Chettinand v. Ko San Ok, Zen Khan v. Emperor and Gopal Ambadas Chawre v. Emperor. Reliance has also been placed on Wharton's Law Lexicon and on the Law Lexicon of British India by Ramanatha Aiyar. The last quoted book contains the following under the heading “Occupation and possession”:—

“Occupation includes possession as its primary element, but it also includes something more. Legal possession does not, of itself constitute an occupation. The owner of vacant house is in possession, and may maintain trespass against any one who invades it; but as long as he leaves it vacant be is not in occupation; nor is he an occupier.

There is a distinction between ‘occupation’ and ‘possession’ because there may be a legal or constructive possession where there is no actual occupation.

The word ‘occupy’ is a word of uncertain meaning. Sometimes it indicates legal possession in the technical sense, as when occupation is made the test of rateability; and it is this sense that it is said that the occupation of premises by a servant if such occupation is subservient and necessary to the service is the occupation of the master. At other times occupation denotes nothing more than physical presence in a place for a substantial period of time.”

Under the heading “Occupation and residence”, the author says the following:—

“The word ‘occupation’ does not necessarily mean residence only.”

He relies upon the decision of a single Judge of the Allahabad High Court in the case of Baladin…Objector v. Lakhan Singh…Opposite Party . besides other cases. In Wharton's Law Lexicon, the word “occupation” has been used as synonymous with possession or the act of taking possession. But reliance was placed upon the legal significance of the term “occupier” as given in that treatise. “Occupier”, the author says, is “the person residing in or upon or having a right to reside in or upon any house, land, or place”. The authorities referred to above, that is to say, the reported cases, have reference to certain other statutes which are not in pari materia with the statute which has to be construed in the present case. Some of the cases referred to above have reference to the provisions of section 60 of the Code of Civil Procedure. In that section, clause (c) of sub-section (1) speaks of houses and other buildings belonging to an agriculturist and occupied by him being immune from attachment, and the decided cases have laid it down that the houses, to which the immunity granted by the section applies; must be those which are used by the agriculturist as his residence or for purposes immediately concerning his profession of a cultivator. The other cases have reference to the Explosives Act (IV of 1884). In section 8 of that Act, the word “occupier” occurs. It has been laid down in those cases that the word “occupier” means a person who was in actual possession of the premises and control of the operations in progress there. But it will be seen that none of those cases goes to the length of laying it down that the word “occupation” is synonymous with the personal residence of the person concerned. A cattle-shed or a shed used by a cultivator for storing his implements of husbandry would come within the term “occupation” by the Agriculturist. Similarly, “occupation” as used, in the Explosives Act would not be confined to the personal residence of the manager or other members, of the staff but would include the user of the premises for the purposes for which, they are intended; for example, running of factory which might include the user of explosives or things of that kind. Hence, in my opinion, no direct authority has been cited on behalf of the plaintiff in support of the contention that the term “occupation” invariably implies personal residence. The ordinary dictionary meaning of “occupation” is the act of occupying, which does not necessarily mean residing in the premises it may mean residing, but it may also mean much more than that. If a person has a godown meant for storing his wares, he is in occupation of the godown by storing his wares, even though he may not be residing in any portion of the same. Similarly, in my opinion, the owner of a cinema house may be in occupation of the house without residing in it or in any portion of it, though in the present case it is common ground that a portion of the premises is used also for residential purposes, that is to say, for residence of the members of the staff attached to the cinema house.

Apart from these general considerations, the provisions of the statute itself have to be examined with a view to judging the soundness of the proposition propounded by learned Counsel for the plaintiff that the word “occupation” in section 11, as quoted above, must necessarily mean residence. In section 2 of the Act, the word “building” has been defined as meaning

“any building or but or part of a building or hut, let or to be let separately for residential or non-residential purposes, and includes (i) the garden, grounds and outhouses, if any, appurtenant to such building or but or part of such building or hut; and (ii) any furniture supplied by the landlord for use in such building or but or port of a building or hut.”

The Act has, been enacted with a view to controlling the rent of buildings and to prevent unreasonable eviction of tenants therefrom. Hence, the scope of the present Act has been very much enlarged, and is apparently much larger than the scope of the Bihar House Rent Control Order, 1942, in which the word “house” has been defined as

“a building or part of a building suitable for occupation as a residence.”

(omitting the other unnecessary portions of the definition).

It would thus appear that the provisions of Act III of 1947 have been so enacted as to include within their scope buildings used for non-residential purposes also. It is a well-established canon of construction of statutes that the same word used in different parts of the same statute must be construed in the same sense unless expressly enacted to the contrary. Hence, the word “building” as used in sub-section (3) of section 11 of the Act must include buildings for non-residential purposes also. If that is a correct statement of the legal position then there is no escape from the conclusion that the word “occupation” must have reference to buildings used for non-residential purposes in other words, “occupation” should not in the context of the Act be restricted in its operation to residential purposes only. If it is held, as contended on behalf of the plaintiff, that the word “occupation” as used in sub-section (3) of section 11 of the Act is confined in its operation to residential buildings only, the results following from such a construction would be rather anomalous. On such a construction, the suit must be decreed, and the defendants restrained from putting into operation the orders passed by the Controller as affirmed by the Commissioner, leaving the owners of the premises to their remedies under the general law. Naturally, the owners will have to institute a suit in ejectment. There being no defence to such a suit, it is bound to be decreed. But then sub-section (1) of section 11 comes in. Under the provisions of that sub-section, the tenant, that is to say, the plaintiff in this case, would be entitled to seek the protection of the authorities created by this Act, and to ask for an order in terms of that sub-section, at the same time asserting that he was all the time ready to pay the rent of the premises, and that there had been no breach of the conditions of the tenancy. The result of such an application, which is bound to succeed on the assumptions made as aforesaid, would be that the person in the position of the plaintiff would be entitled to invoke the aid of sub-section (1) of section 11 for his protection; but, at the same time, the landlord, that is to say, the defendants in this suit, would be debarred from getting the benefit of the provisions of sub-section (3) of section 11. Such an anamalous result can be possible only when it is held that the word “building” as used in section 11, sub-section (1), has reference to both residential and non-residential purposes; whereas the same word in sub-section (3) will have reference only to residential purposes. In my opinion, such a contention has nothing to commend it, and should be repelled unless the words of the statute unmistakably point to that conclusion. In my opinion, such is not the case in the present instance. It must, therefore, be held that the word “occupation” in sub-section (3) of section 11 has been used in its ordinary-dictionary sense, meaning the actual user of the property for the purpose for which it is meant, and that it cannot be restricted in its meaning by making it synonymous with residence. In that view of the matter, it is manifest that the entire cause of action as disclosed in paragraph 7 of the plaint is not well-founded in law.

At the time the issues were being joined, learned Counsel for the plaintiff made a belated attempt to bring into controversy the entire provisions of the Act in the sense that it was ultra vires of the Provincial Legislature. But, as no such allegations had been made in the plaint and as the defendants had no notice of such a contention, which would have necessitated the appearance of the Advocate General to represent the view point of the legislature, we ruled that contention out of order, and refused to frame an issue as suggested by the plaintiff.

Apart for the allegations in the plaint, at the time of argument it was urged on behalf of the plaintiff that there was no regular application before the Controller under the Act, as the application, as already indicated, had been made to the officer who was functioning under the Bihar Buildings (Lease, Rent and Eviction Control) Ordinance (Bihar Ordinance no. II of 1946). We ruled this contention also out of order because no such allegations had been made in the plaint, and the defendants had, therefore, no opportunity of meeting such a case. In this connection, it was also sought to be argued that, in view of the notification in the Official Gazette of the 21st of March, 1947, the District Supply Officer had been appointed Controller, and the order impugned in this case had not been passed by him. This argument loses sight of the definition of “Controller” as given in section 2(b) which includes the Collector of the district also in that category, apart from such other officers as may be appointed in that behalf by the Provincial Government to perform the functions of a Controller under the Act.

It was also contended on behalf of the plaintiff that the order passed by the Controller as affirmed by the Commissioner relates only to the cinema house and not to the residential purposes of the premises, though they admittedly formed part of the same tenancy. This argument was apparently advanced with a view to supporting the argument already dealt with that the word “occupation” has reference to residential purposes only. But it cannot be validly contended that the residential portion of the premises admittedly included in the tenancy was not within the purview of the eviction order passed by the Controller. The application was in respect of the entire tenancy, and, if the residential portion were excluded from the operation of the order passed by the Controller, it would mean that the eviction order was passed in respect only of a portion of the tenancy. As, in the orders passed by the Controller, there is a mention of the cinema house and not of the residential portion of the premises, this argument was sought to be advanced. But, in my opinion, there is no substance in this contention. The order on the face of it has reference to the entire tenancy including that portion of the premises which is being admittedly used for residential purposes which ore incidental to the running of the cinema house.

These are all the contentions raised on behalf of the: plaintiff, and, in my opinion, there is no substance in any one of them. It must, therefore, be held that the orders passed by the Controller as affirmed by the Commissioner are not ultra vires of the Act. As that is the only ground on which the orders have been impugned, it must be held that there is no basis for the suit itself. It follows that the prayer for a permanent injunction must also be refused.

In the result, the suit must be dismissed with costs. The application in revision must similarly be dismissed with costs. There will be one consolidated hearing fee of Rs. 250 for both the cases in this Court.

Mahabir Prasad, J.:— I agree. Mr. Sarjoo Prasad on behalf of the plaintiff, in support, of his contention that the words “for his own occupation” in sub-section (3) of section 11 should be read as meaning for his own residence, referred us to sub-section (4) of the same section. He drew our attention to the words “does not himself occupy it” in sub-section (4). His argument is that the provision contained in sub-section (4), enabling the tenant to get back, the possession of the premises from which he may have been evicted under the provisions of sub-section (3) makes it obligatory on the landlord to occupy the premises himself within fifteen days of the date of obtaining possession. He can only occupy it within the meaning of that sub-section if he resides in the premises. His contention, therefore, is that, if that is the meaning of the expression “himself occupy it”, the word “occupation” in sub-section (3) must also mean that he requires it for his own residence. The answer to this contention is that the word “occupy” or “occupation” must be construed with reference to the context in which these words occur. As has already been pointed out by my brother Sinha, J., the provisions of this Act being applicable to buildings which may be used for residential or for non-residential purposes, the premises in the present case must be occupied by putting it to such use as it may be capable of. It is common ground that these premises were let out as cinema house. In fact, these premises were being used before they were let out for that purpose. If the plaintiff is entitled to the protection offered by the Act for the purpose of running the cinema business in these premises, the defendants, who are the owners of this house, must be entitled to evict the plaintiff from this house if they require it for running a cinema show themselves. If they do not occupy the premises by putting it to the use that it is capable of, that is to say, by using the premises for the purpose of running a cinema show, the plaintiff will certainly be entitled, under the provisions of sub-section (4) of section 11, to apply and get back the premises. If the defendants allow somebody else to run a cinema show in these premises, they will certainly not be occupying the premises themselves within the meaning of Sub-section (4). But, so long as they do not do that but make use of these premises, for the purpose of running a cinema show, in my opinion, the provision in sub-section (4) “himself occupy it” is complied with and the meaning, therefore, to be attached to the words “for his own occupation” must be, in the circumstances of the present case, that the landlords require it for the purpose of running their own cinema show in these premises.

K.D

Suit dismissed.

Application rejected.