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Analysis of supreme court's recent decision on landlord's
requirement for "occupation by himself"
by Narender Kumar Rohatgi *
Cite as : (1977) 2 SCC (Jour) 12
In view of the shortage of residential accommodation, which seems to have become a permanent feature of our life, legislation for rent control has assumed great practical importance. It is proper that academic literature should, in regard to problems relating to such legislation, show an interest commensurate with its practical importance. This article is intended to deal with one question concerning such legislation.
It is well-known that legislation on rent control usually contains provisions restricting the eviction of tenants except on specified grounds—thereby converting a contractual tenancy into a statutory one. Problems arise when a tenant dies after acquiring the status of a statutory tenant. Do the statutory tenant's heirs get the statutory protection? This question has been debated at length.1 This time, however, we are concerned with the position of heirs of the landlord.
It would appear from a recent decision of the Supreme Court that the matter needs to be examined in depth. Before that decision is discussed, however, it would be desirable to refer to an earlier decision—also of the Supreme Court—which has been overruled in the recent case.
In Phul Rani v. Naubat Rai Ahluwalia2, one P, a landlord of residential premises, filed an application for eviction against the tenant N under Section 14(1)(e) of the Delhi Rent Control Act, 1958 in 1962 on the ground that the premises were required 'for occupation as a residence for himself and members of his family'. The Additional Rent Controller, Delhi dismissed the application on the preliminary ground that the notice to quit was not valid. P went in appeal to the Rent Control Tribunal, Delhi under Section 38. Pending the appeal, P died. The legal representatives of P, who included his widow, son, two married daughters and two children of a pre-deceased daughter, were brought on record. The Rent Control Tribunal, Delhi set aside the order of the Additional Rent Controller and remanded the application for decision on the merits. N's appeal against this order of remand was dismissed by the High Court of Delhi. On remand, the Additional Rent Controller passed a decree for eviction in favour of the legal representatives of P. This decree was confirmed by the Rent Control Tribunal, Delhi in the first appeal. For the first time the plea that P's right to sue did not survive to his legal representatives was taken in the first appeal but was rejected by the Tribunal. N filed a second appeal under Section 39, before the High Court of Delhi. Kapur, J. of the Delhi High Court allowed the appeal3, holding that the right to sue did not survive to the legal representatives of P, but left it open to the legal representatives to bring a fresh proceeding under Section 14(1)(e) of the Delhi Rent Control Act, 1958. Against this order the legal representatives of P appealed to the Supreme Court by special leave.
The question before the Supreme Court was whether the cause of action would survive to the legal representatives of P or whether the application would abate under Order 22, Rule 1 of the Code of Civil Procedure, 1908? Holding that P's cause of action, his right to sue, would not survive to his legal representatives, the Supreme Court dismissed the appeal. Chandrachud, J. delivering the judgment of the court took the view :
... ... ... the requirement pleaded in the ejectment application and on which the plaintiff has founded his right to relief is his requirement, or to use an expression which will effectively bring out the real point, his personal requirement. If the ejectment application succeeds—we will forget for a moment that the plaintiff is dead—the premises in possession of the tenant may come to be occupied by the plaintiff and the members of his family but that does not make the requirement pleaded in the application any the less a personal requirement of the plaintiff. That the members of his family must reside with him is his requirement, not theirs. Such a personal cause of action must perish with the plaintiff.
The above reasoning on the question decided in Phul Rani case came up for reconsideration before a Bench of three judges of the Supreme Court in Shantilal Thakordas v. Chimanlal Maganlal Telwala4 In this case one T, the father of three appellants S, D and H, was the owner of the suit premises. He was a partner in a firm Jai Hind Silk Weaving Works with S and two outsiders. T filed a suit for eviction against C, the tenant, under Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 i. e., on the ground of bona fide requirement for occupation by himself. The necessity pleaded was for his partnership firm. The trial court decreed the suit in part under the second paragraph of Section 13(2). Both parties appealed. During the pendency of appeal in the first appellate court, T died and his heirs, the present appellants S, D and H, were brought on record. The constitution of the firm Jai Hind Weaving Works also changed. S and D joined the partnership in the same name with some outsiders. H, a minor, was not admitted to the benefits of this partnership. The first appellate court affirmed the partial decree of the trial court with certain modifications. Both parties then preferred revisions to the High Court of Gujarat. The High Court remanded the case to the first appellate court on an additional issue of comparative hardship of the landlord and tenant under the first paragraph of Section 13(2) of the Bombay Rent Act as also the question whether the substituted heirs of the original plaintiff required the premises reasonably and bona fide for their occupation. The first appellate court again passed a partial decree on remand of the case. Both parties again went in revisions to the High Court. This time, following Phul Rani case the High Court of Gujarat allowed the respondent's revision but rejected that of the appellants (heirs of T) and dismissed the suit in toto. The appellants preferred two appeals against this decision to the Supreme Court by special leave.
Two questions fell for determination before the Supreme Court :
1. Whether the decision of the two judges of the Supreme Court in Phul Rani case was correct?
2. If not, whether the appellants were entitled to get a decree for eviction in respect of the suit premises against the defendant-respondent?
The Supreme Court decided both the questions in the negative and dismissed the appeals, though without costs.
Explaining why Phul Rani case was not correctly decided, Untwalia, J. speaking for the court said :
In our considered opinion, in face of the wordings of Section 14(1)(e) of the Delhi Rent Act, the view expressed in Phul Rani case.. ... is not correct. If the law viz., Section 14(1)(e) of the Delhi Rent Control Act, 1958 permitted the eviction of the tenant for the requirement of the landlord 'for occupation as a residence for himself and members of his family', then the requirement was both of the landlord and the members of his family. On his death the right to sue did survive, to the members of the family of the deceased landlord.5
In support of the negative answer to the second question the Supreme Court gave two reasons. First, it was doubtful whether the requirement for occupation by the partnership firm in which the landlord was a partner would tantamount to 'occupation by himself' i. e., by the landlord within the meaning of Section 13(1)(g) of the Bombay Rent Act. Secondly, even if it be assumed that the requirement of the premises for the use of the partnership firm by the landlord in which he was a partner was covered by Section 13(1)(g) of the Bombay Rent Act, it would not help the appellants. There had been a change in the constitution of the partnership firm after the death of T. Appellant H was not a partner in it. H, therefore, had no interest in the partnership firm. Thus, the firm's requirement could not be the requirement of appellant H, even assuming that it could be said to be the requirement of the appellants S and D.
The submission of the appellants that a decree had already been passed in favour of the original plaintiff by the trial court and that decree could not be disturbed on his death either in appeal or in revision was repelled by the Supreme Court in the following words :
In Phul Rani case no final opinion was expressed on this question. Moreover, we find that on the earlier occasion the High Court had set aside the decree and remanded the suit to the first appellate court for a fresh decision. There was, therefore, no decree in existence... ... 6
This judgment is significant in one respect. In the field of Constitutional Law and Labour Law, we find instances where the Supreme Court has overruled its earlier decisions. In the field of Rent Control Law, however, such instances are rare. But this decision has injected this healthy trend, hitherto followed in other branches of law, in the Law of Rent Control viz., the overruling by the Supreme Court of its earlier decisions when the situation so warrants, instead of distinguishing them on the facts or on provisions of the statutes being differently worded.
There are, however, a few features of this decision which, with great respect, require serious consideration.
In the first place, the earlier decision in Phul Rani case has been held as incorrect in Shantilal Thakordas case on the basis of the peculiar wording of Section 14(1)(e) of the Delhi Rent Control Act, 1958. Under Section 14(1)(e) of the Delhi Rent Act, the eviction of the tenant is permitted for the requirement of the landlord 'for occupation as a residence for himself or for any member of his family dependent on him'. On this wording of Section 14(1)(e) of the Delhi Rent Act, the overruling of Phul Rani case is correct. But in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 the corresponding Section 13(1)(g)—as applicable to Gujarat—reads as under:
(g) that the premises are reasonably and bona fide required by the landlord for occupation by himself ... ... ...
The words "or for any member of his family dependent on him" which are to be found in Section 14(1)(e) of the Delhi Rent Control Act, 1958 are conspicuously absent in Section 13(1)(g) of the Bombay Rent Act. It would have been better if the Supreme Court had made it clear in specific terms that the phrase "for himself" in Section 13(1)(g) of the Bombay Rent Act would include "any member of his family" also. This would have clarified the real intention in overruling Phul Rani case, viz., the ground of bona fide requirement of landlord for evicting a tenant under Section 13(1)(g) of the Bombay Rent Act as applicable to Gujarat, is not a personal cause of action and the word "himself" is to be construed in a wider sense.
In the second place, difficulties are likely to recur in view of the doubt created by the Supreme Court as to the correctness of the proposition that the requirement of the premises by the landlord for occupation by the partnership firm in which he is a partner will be tantamount to 'occupation by himself' i. e., by the landlord. The Supreme Court noted :
Certain decisions of some High Courts were brought to our notice taking the view that it is so. We refrain from expressing our opinion in that regard.7
This point ought to have been specifically decided, for two reasons. First, on the assumption of the correctness of the above proposition, the Supreme Court found that S and D could succeed but not the third appellant H. So to dismiss the claim of S and D, a decision on the correctness of the proposition stated above was warranted. Secondly, a decision on the correctness of the proposition stated above would have settled the position as to the proper interpretation of the expression "occupation by himself" and furthered a uniform interpretation by the High Courts.
By way of conclusion, the writer would venture to make suggestions for amendment of the provision in Rent Control Legislation relating to requirement for bona fide occupation. The judgments discussed above illustrate the need for clarifying the scope of the relevant clause in the Rent Control Act, with reference to at least four points :
(a) How far does the right to sue for eviction under such clause survive to the landlord's heirs?
(b) How far does the right to sue for eviction survive to the landlord's family?
(c) How far does the right survive to the landlord's partners?
(d) Whether, apart from the question of death of a partner, if there is a change in the constitution of a partnership firm, does the change affect the right to sue mentioned above ?
- See the writer's various works on the subject ; in particular :
(a) Need of Reform in the Definition of 'Tenant' under the Delhi Rent Control Act, 1958, 1972 Ren C. J., i-iv (March issue).
(b) In Quest of a Better Definition of "Tenant" for the Delhi Rent Control Act, 1958 (Delhi, Bahri Bros., 1973).
(c) A Case for the Heritability of Statutory Tenancy in Law of Evictions (With Special Reference to Delhi)-A dissertation submitted to the University of Delhi in partial fulfilment of the requirements for the award of the degree of the Master of Laws, 1975.
(d) Heritability of Statutory Tenancy in the Delhi Rent Act Re-examined, (1975) XV, The Indian Advocate, 43-49 (July-December Issue).
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- (1973) 1 SCC 688 : (1973) 3 SCR 679 (J. M. Shelat and Y. V. Chandrachud, JJ.)
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- ILR (1971) 2 Delhi 610.
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- (1976) 4 SCC 417, 418 : (A. N. Ray, C. J., N. L. Untwalia and P. N. Shinghal, JJ.).
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- Shantilal Thakordas case, (1976) 4 SCC 417, 419 (para 4).
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- Ibid. at p. 420 (para 6).
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- Shantilal Thakordas case, (1976) 4 SCC 417, 419 (para 5).
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