Krishanlal Ishwarlal Desai vs Bai Vijkor And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 804 of 1962

Decision Date: 18 January 1963

Coram: P.B. Gajendragadkar, Bhuvneshwar P. Sinha, K.N. Wanchoo, M. Hidayatullah, J.C. Shah

In this matter, the Supreme Court recorded that the petitioner, Krishanlal Ishwarlal Desai, had brought an action against the respondents, Bai Vijkor and others, with the judgment delivered on 18 January 1963. The judgment was authored by Justice P. B. Gajendragadkar and the bench comprised Justices P. B. Gajendragadkar, Bhuvneshwar P. Sinha, K. N. Wanchoo, M. Hidayatullah and J. C. Shah. The case was cited as 1967 AIR 375 and 1966 SCR (1) 553 and concerned the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947, specifically sections 13(1)(g), 13(1)(i) and 17(1). The headnote summarized that the appellant owned a vacant plot of land which the respondents occupied as tenants. The appellant sought an order of ejectment and possession under section 13(1)(g) and section 13(1)(i) on the basis that he required the land for his own occupation and for the erection of new buildings. The trial court granted relief on the first ground of personal occupation but rejected his claim for construction. After cross‑appeals, the appellate court largely affirmed the trial court’s decision. Subsequently, the appellant entered into possession about four months later and began storing materials for sanitary works and building activities, although at the trial he had contended that the land was needed for storing timber. The respondents then invoked section 17(1) of the Act, seeking possession on the ground that the appellant had failed to occupy the premises within one month of recovering possession. The trial court dismissed the respondents’ application, but the appellate court permitted the respondents’ appeal. The appellant’s revision petition was summarily dismissed by the High Court, and the present appeal arose by special leave from that order. Before the Supreme Court, the appellant contended that the one‑month limitation prescribed in section 17(1) applied only to orders under section 13(1)(i) and not to those under section 13(1)(g). The Court held that section 17(1) distinguishes between occupation and possession, but the one‑month limitation applies equally to cases of occupation and to cases involving erection of work as contemplated by clauses 13(1)(g) and 13(1)(i). Because the appellant did not occupy the premises within the one‑month period, he failed to satisfy the first requirement of section 17(1); consequently, the respondents were entitled to an order granting them possession of the premises. The judgment was recorded under civil appellate jurisdiction as Civil Appeal No. 804.

The appeal was filed by special leave against the order dated 11 April 1962 of the Gujarat High Court in Civil Revision Application No 335 of 1962. Counsel M C Setalvad and I N Shroff appeared for the appellant, while S T Desai, J B Dadachanji, O C Mathur and Ravinder Narain appeared for the respondents. The judgment was delivered on 18 January 1963 by Justice Gajendragadkar. The Court observed that the appeal raised a concise question concerning the interpretation of section 17 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (No 57 of 1947), hereinafter referred to as the Act. The factual backdrop was that the appellant, Krishanlal Ishwarlal Desai, was the landlord of an open plot called Hathi Khada situated in Kalaswadi town, Surat district, measuring 32,406 square feet. The respondents, Bai Vijkor and others, were in possession of the plot as tenants. In 1951 the appellant instituted ejectment proceedings, asserting that under sections 13(1)(g) and 13(1)(i) of the Act he was entitled to recover possession of the land. The respondents contested this claim. The trial court held that the appellant had not established a case under section 13(1)(i) but had successfully proved his entitlement under section 13(1)(g). After recording this finding, the trial court examined the extent of the appellant’s requirement. Section 13(1)(g) provides, inter alia, that notwithstanding any other provision of the Act, a landlord may recover possession of any premises if the court is satisfied that the premises are reasonably and bona‑fide required by the landlord for his own occupation. Section 13(1)(i) similarly empowers a landlord to recover possession of land if the court is satisfied that the land is reasonably and bona‑fide required for the erection of a new building. The trial court concluded that the appellant’s requirement would be satisfied by granting him possession of two‑thirds of the plot and consequently issued a decree in his favour to that extent on 16 March 1955. Both parties filed cross‑appeals before the District Court challenging the decree. The District Court affirmed that the trial court’s view was substantially correct and found no reason to disturb the decree, thereby dismissing both appeals on 28 April 1956. Following the dismissal, the appellant filed an execution application and obtained possession of the two‑thirds share of the premises on 29 June 1957. Initially, at trial, the appellant had contended that he needed the premises for his timber business. However, he actually entered the premises on 24 October 1957, not to carry on timber operations but to store materials relating to sanitary works and building contracts, constructing a shed for watchmen to look after the stored articles.

In this case the appellant had started a partnership business on the same day and built a shed on the plot for watchmen to guard articles that were stored in the open area. On 29 July 1958 the respondents filed an application under section 17(1) of the Act in the trial court, asking that the possession of the premises be returned to them because they said the appellant had not taken physical occupation of the premises within one month after he received possession, as required by section 17(1). The trial court examined the material placed before it and concluded that the respondents had not established a case under the provision, and therefore dismissed their application. Unsatisfied, the respondents filed a revisional application in the District Court, which was treated as an appeal because the order of the trial court was an appealable order. The District Court held that the appellant had indeed failed to occupy the premises within the period prescribed by section 17(1) and consequently ruled that the respondents were entitled to an order directing the appellant to surrender possession of the premises. The appellant challenged this order by filing a revisional application before the High Court of Gujarat; the High Court, however, dismissed the application summarily. That dismissive decision of the High Court of Gujarat gave rise to the present appeal, and the sole question referred for determination is the proper construction of section 17(1) of the Act. The judgment noted earlier that section 13 deals with situations in which a landlord may recover possession of premises from a tenant, and that the appellant had obtained a decree for possession under clause (g) of subsection (1) of section 13 on the ground that two‑thirds of the premises were reasonably and bona fide required by him for his own occupation. The respondents argued that, under section 17(1), the appellant was obligated to physically occupy the premises within one month after 29 June 1957, the date on which possession was delivered to him in the execution proceedings, and that his failure to do so made them entitled to regain possession. They further contended that they had filed their application within the thirteen‑month period prescribed by section 17(1), and therefore a possession order should be made in their favour. The appellant, on the other hand, maintained that the one‑month occupation requirement relied upon by the respondents does not apply to a decree issued under clause (g) of section 13(1); rather, that requirement applies only to a decree issued under clause (i) of the same section. Thus the dispute between the parties centered on the interpretation of section 17(1). The Court then read the full text of section 17(1), which provides that when a decree for eviction has been passed on the grounds specified in clause (g) or clause (i) of subsection (1) of section 13, and the premises are not occupied or erection work is not begun within one month from the date the landlord recovers possession, or the premises are relet within one year to any person other than the original tenant, the original tenant may, within thirteen months of that date, apply for an order directing the landlord to place the premises back under the original terms and conditions, and that, upon such an order, the landlord and any occupant must give vacant possession to the original tenant.

Section 17(1) provides that when a decree for eviction is passed on the basis of clause (g) or clause (i) of sub‑section (1) of section 13, and when the premises are neither occupied nor is any erection work commenced within one month from the date the landlord regains possession, or when the premises are re‑let within one year of that date to anyone other than the original tenant, the court may, on an application made by the original tenant within thirteen months of that date, order the landlord to place the premises back under the original terms and conditions. Once such an order is issued, the landlord and any person subsequently occupying the premises are required to surrender vacant possession to the original tenant. The Court observed that the reference in section 17(1) to the landlord’s occupation creates a concept that is distinct from mere delivery of possession. The first clause of the provision deliberately separates “occupation” from the act of handing over possession. Consequently, when a landlord who has obtained a decree for possession executes that decree and actually takes possession, he is mandated to occupy the premises in accordance with the case he established under section 13(1)(g) and which was proven at trial. Whether the landlord’s occupation must be for the identical purpose set out at trial or may be for a different purpose was deemed unnecessary to resolve in the present appeal.

The Court further noted that, once possession is obtained through execution, it must inevitably be followed by a tangible act of occupation, which necessarily involves an overt act on the landlord’s part. The District Court had found that the appellant performed such an overt act on 24 October 1957, thereby occupying the premises after the one‑month period specified in section 17(1) had elapsed. This finding meant that the appellant’s occupation occurred beyond the statutory one‑month limit. The next issue was whether the one‑month stipulation applied to a decree issued under section 13(1). The Court examined the opening clause of section 17(1), which addresses decrees made under both sub‑clauses (g) and (i) of section 13(1). Reading the provision as a whole revealed no difficulty in holding that the one‑month requirement applies equally to both categories of decrees. On a fair and reasonable construction, the provision cannot be interpreted to limit the one‑month period solely to the commencement of erection work; it must also govern the landlord’s occupation of the premises. Moreover, the overall scheme of section 17(1) supports this interpretation, as section 13(1) authorises the landlord to remove tenants from possession for the specified reasons, and the protection afforded by section 17(1) is intended to operate uniformly across the relevant categories of decrees.

In the present case, the Court observed that section seventeen of the relevant Act granted protection to tenants when an ejectment decree was issued against them under clause (g) or clause (i) of section thirteen. The statute required a landlord who obtained a possession decree under section thirteen to begin the work of erection within one month. The Court found no reason why the legislature would not impose a similar one‑month requirement on a landlord who was required to occupy the premises after a decree was passed under clause (g). Counsel for the appellant argued that the landlord could occupy the premises within a reasonable time, contending that the statute did not prescribe a specific limitation for occupation and therefore the general rule of reasonableness should apply. The Court rejected this construction, noting that it was highly unlikely that Parliament would fix a one‑month period for one category of decrees while omitting any comparable provision for the other category. Moreover, the ordinary grammatical construction of the clause supported the view that the one‑month period applied equally to both types of decrees. Consequently, the Court held that the appellant’s contention was untenable and that the statutory scheme uniformly required the landlord to occupy the premises within the prescribed one‑month period.

The Court then turned to the second clause of section seventeen, which dealt with a situation where a landlord re‑let the premises to a third party within one year after obtaining possession through execution proceedings. Under this provision, if the landlord re‑lets the premises within the one‑year window, the original tenant was entitled to claim back possession. The Court explained that this clause demonstrated the protective purpose of section seventeen for tenants who had been ejected under clauses (g) and (i) of section thirteen. The final clause of the same section imposed a limitation period of thirteen months on tenants who wished to invoke the protection of section seventeen, requiring them to make an application within that time after possession was delivered to the landlord‑decree‑holder. The overall scheme of the statute showed that each relevant clause contained its own limitation period, making it unreasonable to suggest that the landlord’s obligation to occupy the premises was without any temporal restriction. Supporting this conclusion, the Court noted that section seventeen‑two prescribed a penalty for any landlord who violated the provisions of section seventeen‑one. Specifically, the penalty applied to a landlord who, after recovering possession under clause (g) or clause (i), kept the premises unoccupied without a reasonable excuse, thereby reinforcing the statutory requirement of timely occupation.

The provision stipulated that a landlord who, after regaining possession of the premises, either failed to occupy the premises or failed to begin the erection of the required work without presenting a reasonable excuse within a period of one month from the date of recovery, would, upon conviction, be punished in the manner prescribed by that provision. In addition, the same kind of penalty was also imposed on any landlord or any other person who was in occupation of the premises and who did not obey a Court order issued under section 17(1). It was clear that the first clause of section 17(2) dealt with the landlord’s failure either to take occupancy or to commence erection of the work without a reasonable excuse within the stipulated one‑month period. The requirement of “absence of reasonable excuse” together with the one‑month time limit applied equally to cases that fell under clause (g) and to those that fell under clause (i) of section 13(1). The defence that the landlord could raise – that he was unable to occupy the premises or to start the construction work within the prescribed period because of a reasonable excuse – was available to him in both categories of cases. Consequently, the condition of “absence of reasonable excuse” operated in the same way for both the said categories, and the one‑month period remained the decisive factor for both. On this basis, the Court held that the High Court had correctly concurred with the decision of the District Court, finding that the appellant in the present matter had not complied with the first part of section 17(1). Accordingly, the respondents were entitled to an order granting possession of the disputed premises. The appeal was therefore dismissed, and the appellant was ordered to bear costs. The appeal was dismissed.