Agarwal, C.J.
1. This writ application arising out of an eviction proceeding has been referred to a larger Bench for examining the correctness of the Full Bench decision of this Court in H. Mohammad Sikandar v. Badrunissa Bibi (1975) 41 Cut LT 460 : (AIR 1975 Orissa 130) and to reconcile the observations made in some decisions.
2. The core question for consideration is, whether a landlord can secure eviction of his tenant from a building in order to demolish the same. It would be better to split up the question into the following three partsso that it may be answered in a comprehensive manner : --
(1) when the building has become dilapidated and dangerous for occupation,
(2) when the landlord desires to construct altogether a new building for personaloccupation according to his own requirement, and
(3) when he wants to demolish otherwise.
3. Aproceeding for eviction of the present petitioner was initiated under Section 7 of the Orissa House Rent Control Act, 1967 (for short, 'the Act') in the year 1976 before the House Rent Controller, Jajpur, from the premises bearing Municipal Holding No. 29(A) in Ward No. Ill of the Jajpur Municipality on the following allegations : --
'(1) The building is a very old building and is in a most dilapidated condition. At any time it may fall down and cause loss to human life. Its condition is so worse that any repair attended to would have a very short life and would incur heavy expenses. It will not be wise to invest any money for a prudent man
(2) That after reconstruction of the building the petitioners want to carry on business personally in the houses as they have no other building in the town. The Zamindary Abolition Act has taken away most of the properties.'
4. The application was contested by the tenant on the ground that although the building was old, it was not in a dilapidated condition and the portion which was in his occupation was not likely to fall down. Proceeding further, the written statement contained the following statement : --
'That the demised premises is a small part of a very big two-storied building. The front side of the ground floor has been let out to about a dozen persons for commercial purpose. The back side of the ground floor bearing 2 to 3 rooms and the whole of upstairs has been abandoned since over 20 years and therefore the up-stairs of the whole building without any repair or habitation got damaged.'
The tenant also challenged the report of the Municipal Engineer regarding the condition of the building. He also denied the alleged necessity of the landlord for personal occupation.
5. The House Rent Controller (opp. party No. 4) on a consideration of the evidence adduced by the parties recorded the following findings: --
'.....I believe, the requirement of the petitioners is not a mala fide one, rather a bona fide one, and in good faith he requires to construct a new building along with other petitioners in place of old and dilapidated' building in order to start a business.'
He accordingly directed the tenant-petitioner to deliver vacant possession of the premises within two months from the date of his order dated 21-2-79 (Annexure 3).
6. The appeal filed by the tenant-petitioner also proved abortive, where the following findings were recorded : --
'...Underthe circumstances, I am inclined to hold, in agreement with the learned controller that the disputed house is in a most dilapidated condition and needs dismantling to prevent loss of human life.
7. On question of bona fide requirement, it is seen that the petitioners originally belonged to Zamindar family and after abolition of the Zamindary system, they have become poorer like any other former Zaminders. This is also borne out from the fact that two of the petitioners have taken up government service and one of them namely, the petitioner No. 1 is maintaining himself by cultivation. It is therefore quite likely that in order to properly maintain themselves the petitioners may be desirous of starting some business in the disputed premises after reconstruction of a new house thereon. I, therefore, hold, in agreement with the learned Controller, that the requirement of the petitioners is in good faith.'
7. The tenant has now filed this writ application.
8. Recently, in the case of Sanjay Kumar Singh v. Keshari Devi (1967)64 Cut LT 681 : (AIR 1988 NOC 60), sitting in the Division Bench with brother D. P. Mohapatra, I had the occasion to consider a somewhat similar question as to whether the expression 'personal necessity' in Section 7(4) of the Act could be interpreted so widely as to include within its purview the desire of the landlord, bereft of any other circumstances, to reconstruct the building after demolishing the same. On a consideration of various decisions and the statutory provisions of theOrissa Act, it was held that the eviction of a tenant on the mere ground of construction is not permissible since that is not covered under the scheme of the statute. There I distinguished the two earlier decisions of this Court, namely (1975) 41 Cut LT 460 : (AIR 1975 Orissa 130) (FB), H. Mohammad Sikandar v. Badrunisa Bibi and (1977) 43 Cut LT 465, (AIR 1977 Orissa 210). T. Bhagirao v. Panduranga Subudhi. Both the cases have been cited again. Let me once again consider the earlier decisions having a bearing on the case under consideration.
The first case of this Court is Sadhana Ausadhalaya v. Moningi Nookama (1973) 39 Cut LT 946. In that case the landlord who had constructed a cinema house was required to enlarge the parking area. For that purpose, he wanted eviction of the tenants from his adjacent house in order to demolish it and utilise the vacant land as the parking area. Although this court observed that the house must be required by the landlord as a house and not as a vacant space after demolishing the same, after stating this general proposition, qualified it in these words : --
'.... Of course, if any particular rented house has become dilapidated and the owner needs it for his own occupation and use, he can bring a proceeding for eviction of the tenant, the ultimate object being to pull down the dilapidated house, reconstruct it and then use it as a house. .,...'
But then again the Court expressed a doubt as to whether a landlord could legitimately bring an eviction proceeding for demolishing a house to use the vacant site for the purposes of 'a lawn, a badminton court and a swimming pool;' i.e.. the purposes which could not be covered under the umbrella of requirement of the house in good faith for occupation.
The above case was considered by a Full Bench of this court in H. Mohammad Sikandar v. Badrunissa Bibi (1975) 41 Cut LT 460 : (AIR 1975 Orissa 130). In that case the eviction was sought for by the landlady to provide accommodation to her husband, a practising lawyer in Puri. in the town of Cuttack where he wanted to shift his practice after remodelling and making it fit for use and occupation and Full Bench disapproved the view of this Court in Sadhana Ausadhalaya's case (supra) in these words : --
'...Section 7(4) does not prohibit eviction from a house for dismantling the same for use as a vacant site if it is required in good faith. The expression 'if he requires the house in good faith for the occupation or use of himself' does not restrict the operation of eviction from the house for use of the space on which the house stands as a vacant site,'
The Full Bench also made the following observation : --
'...If the house is in dilapidated condition, the owner is quite within his rights to dismantle it. He is not bound to repair the same if it involves heavy work. It may be that the landlord's financial condition is such that he may not afford to construct a new house or make heavy repairs. It is quite open to the landlord to keep the site vacant after dismantling the house....'
9. In T. Bhagirao v. Panduranga Subudhi (1977) 43 Cut LT 465 : (AIR 1977 Orissa210), eviction was sought inter alia on the ground that the landlord wanted the house for the purpose of his profession after remodelling and making it suitable for that purpose. The Controller had accepted the plea of the landlord, but the appellate authority accepted the requirement of the landlord only for remodelling of the house and maintained the order of eviction. The High Court set aside the order on the view that the requirement of the landlord in good faith was a pre-condition for bringing the case within the ambit of this provision.
10. On a reference to the ratio of the above decisions, held in Sanjay Kumar's case (AIR 1988 NOC 60) (supra) : -
'A landlord cannot be allowed to evict a tenant from his premises merely on the ground of construction, reconstruction, demolition or under any of the provisions of Section 7 of the Orissa Act.'
In the penultimate paragraph of the judgment, I had made the following observation : --
'......The other possible view against thelandlady's case may be that she did not require the premises in question as it existed, in order to satisfy her requirement, it had to be reconstructed..... the requirement urged inthe application for eviction was the demolition of the cabin as such for putting up a masonry structure -- a ground which is not available to a landlord under the Orissa Act.'
11. Before proceeding further to consider the other submissions, I would unhesitatingly state that on a further consideration, I now feel dubitant regarding the correctness of the said view taken in (1987) 64 Cut LT 681 : (AIR 1988 NOC 60), quoted just above, as it is in apparent conflict with the decision of the Full Bench in (1975) 41 Cut LT 460 : (AIR 1975 Orissa 130). This was one of the reasons why I thought it proper to refer this case to a larger Bench of five Judges so that the casual and some what conflicting observations made in different cases by this Court may be properly examined and the correct exposition of law authoritatively laid down.
12. I would now proceed to examine the submissions made by Mr. Patra, learned CQunsel for the petitioner. The learned counsel for the petitioner has referred to the definition of the word 'house' in Section 2(3) of the Act It reads as follows :
' 'house' includes any building or part of a building with its appurtenances and outhouses used for any purpose whatsoever.'
He then referred to the preamble of the Act to emphasise that the Act only purported to deal with the houses as they existed and therefore, the line of approach that the house might have become dilapidated requiring demolition or for that matter, bone fide requirement of the landlord can be decided and examined with reference to his fanciful needs after remodelling or re-constructing the house; which in essence would amount to dealing with an altogether a different house beyond the pale of the 'house' which the legislature intended to be dealt with by the Controller under the authority of Section 7 of the Act. In this connection, he submitted that the consideration by the Controller relating to the conditions for eviction laid down in Section 7(4) would amount to adding an additional ground in the Statute.
In order to support his contention, counsel referred to a decision of this Court in the case of Jammula Narasimhulu v. Kotini Sitaram (1965) 31 Cut LT 331 where anobservation was made that the expressions 'good faith' and 'requires the house' have been construed to mean 'something more than mere wish and involve the element of need to some extent at least. The need must obviously be the need at the time of the application for eviction and it cannot refer to any possible use to which the building might be put at a future date.'
The landlord in that case had claimed eviction also on the ground of personal necessity as his business as an iron dealer had expanded so much that his existing shop room in the main bazar was inadequate. The High Court rejected the plea of personal necessity on the ground that the landlord had failed to establish that the existing accommodation with him was inadequate, i.e., on or about the date of his application to the Controller the landlord had made some preparations to expand his iron ware business in the main bazar.
In other words, the stand of Mr. Patra was that under the scheme of Section 7(4) of the Act, requirement of the landlord for his personal occupation must be with respect to the house as it exists and if it can be satisfied only on remodelling it or re-constructing a different house, then that would be beyond the ambit of Section 7(4) of the Act. He also referred to the observations made in paragraphs 1 and 6 of the decision of the Full Bench of this Court which I have already discussed above. That decision does not support the contention of Mr. Patra; rather it goes against him as the Full Bench did not disapprove the ultimate order passed by the Division Bench in Sadhana Ausadhalaya's case (1973-39 Cut LT 946) directing remand of the case to consider the question whether the house was required in good faith after dismantling it for parking of cars and further disapproved the observation that in no circumstances a house can be required in good faith by the landlord for having it as a vacant site.
Mr. Patra then strongly submitted that the finding recorded by the authorities regarding personal necessity being vague and not supported by evidence was not legal and binding. In this connection he referred to the evidence of the landlord (P.W. 2) who made a very brief statement only stating that hewanted to demolish the entire building to construct a new one in its place 'in order to start my own business'. Undisputedly, there was no supporting evidence or any cross-examination made by the petitioner. It was, therefore, submitted that the evidence fell short of the legal requirement to discharge the burden of proof. The Controller's finding in this regard may be said to be not very happy. He deals with this question in these words : --
'.. the petitioner (P.W. 2) has not elaborately elicited the nature of business which he intends to carry out in the new building..... although it is not elicited by the petitioner regarding the nature of the business which he intends to carry out..... but thereby it cannot be presumed that the very plea of the petitioner..... is a concocted and false one and he has taken this plea with a mala fide intention to evict the O. P.'
The authorities have repeatedly said that the word 'requires' involves something more than a mere wish and an element of need to some extent at least, and the 'to require' is not the same thing as 'to desire'. The landlord must show certain circumstances or facts proving some needs or necessities. See Kasi Rout v. Mohammed Saleh (1972) 38 Cut LT 532 : (AIR 1972 Orissa 245). The Supreme Court in Mst. Bega Begum v. Abdul Ahad Khan, AIR 1979 SC 272 has expressed a caution in these words : --
'..... The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire....'
I myself have made a similar observation while delivering the judgment for the Bench in Basudeb Sahu v. Balabhadra Sahu (1988) 65 Cut LT 635.
13. Mr. G. Rath, however, vehemently refuted this argument of Mr. Patra on the ground that it was not a case of 'no evidence' and all that it could be said might be a case of 'insufficient evidence'. The learned counsel further submitted that on the evidence which was ex parte in nature, the authorities have believed the case of the landlord after taking into consideration all the facts and circumstances governing him and, therefore, this court was not entitled in the writjurisdiction to interfere with the same. He referred to three decisions of the Supreme Court, namely,-Babhutmal Raichand Oswal v. Laxmibai R. Tarte, AIR 1975 SC 1297, Mrs: Labhkuwar Bhagwani Shaha v. Janardhan Mahadeo Kalan, AIR 1983 SC 535 and Mohd. Yunus v. Mohd. Mustaquim, AIR 1984 SC 38. These decisions go to support the contention of Mr. Rath, and this Court following the decision in Satyapriya Mohapatra v. Ashok Pandi, AIR 1985 Orissa 187 also held that a concurrent finding of fact in a case under the Act, if not perverse, could not be reversed by the High Court in the writ jurisdiction and that this court could not correct errors of fact by examining the evidence and reappreciating it. The same view was reiterated in Mohanlal Modi v. Jadunath Mohapatra, AIR 1985 Orissa 236. I find myself in respectful agreement with the view expressed by this Court in these decisions.
14. In order to combat these decisions, Mr. Patra also referred to two decisions of the Supreme Court, namely Variety Emporium v. R. M. Mohd. Ibrahim Naina, AIR 1985 SC 207 and State of U.P. v. Malik Zarid Khalid, AIR 1988 SC 132, but none of them are beyond the point.
15. After all, the provisions of the Act are only regulatory and not prohibitory. The proprietary rights of the landlord over the building have not been taken away. The statute simply lays down provisions giving protection to the tenants against vexatious eviction by unscrupulous landlords. If the Court feels satisfied on the materials brought on the record that the need or requirement pleaded by the landlord is genuine then the landlord must be left free to satisfy needs or requirements in the manner most suitable to him according to the exigencies and circumstances indicated by him in the case. I may give an illustration to explain my point of view. Take for example a house which might have been built 50-60 years before by the ancestor of the landlord in an area since lying undeveloped or being a slum containing small rooms. By gradual improvement, the area might have become a posh/commercial area and the landlord now wants to build a show-room or commercial complex/shops or modern residential building. If the landlordwants to demolish the existing old patterned house for construction of a modern residential building or a show-room for his business or any type of construction suiting to his requirement which is found to be bona fide by the Court of fact, then, in my opinion, the 'necessity for personal occupation' would be covered within the frame work of Section 7(4) of the Act and demolition, even if the house is not in a dilapidated condition, can be permitted The essence of the matter is the requirement which is the sine qua non for getting an order for the tenant's eviction.
16. It is nobody's case that in coming to the conclusion regarding the bona fides of the landlord, the authorities have failed to take into consideration any relevant material or have misconstrued or misread the same. The conclusions are obviously based on the facts and circumstances appearing on the record and the appellate authority has drawn the inference on the same which in my view, was within the realm of his authority and the findings so recorded satisfy the anxiety of the law although it cannot be disputed that the evidence produced by the landlord is not very satisfactory and a court of fact might not have accepted his case.
17. Having given my anxious consideration to the entire legislative intendments of the Orissa Act and on a reconsideration of the views expressed in the latest Bench decision in Sanjaya Kumar's case (AIR 1988 NOC 60). I must hold that the proposition of the Full Bench in Mohammad Sikandar's case (AIR 1975 Orissa 130) to the effect that Section 7(4) does not prohibit eviction from a house for the purpose of dismantling the same for its use as a vacant site if it is required in good faith, has been too widely enunciated, particularly when the Full Bench had itself disapproved the doubt expressed in Sadhana Ausadhalaya's case (1973-39 Cut LT 946) whether a landlord could claim demolition so as to use the vacant surface for the purposes of such as, a lawn, a badminton court or a swimming pool.
18. Some argument was also made as to the right of a landlord to seek eviction where a building is in a dilapidated condition and has become dangerous for occupation. In myopinion, this circumstance is not covered under Section 7(4) and, therefore, the remedy of a landlord, if any, may be elsewhere and not within the four corners of the Orissa House. Rent Control Act.
19. The requirement of the landlord for personal occupation within the meaning of Section 7(4) of the Act, in my opinion, is not confined to the existing building as such. In appropriate cases wherehesuccessfully makes out a case that the nature of his requirement or necessity can be fulfilled only on its reconstruction or remodelling which would necessitate an order for eviction from the house, then the law does not appear to impose any restriction for passing an order of eviction from the house against a tenant.
I would record my agreement with theview expressed in some of the cases discussedearlier that demolition of a house can beordered also where the landlord's requirementis only of the vacant site on which the tenantedhouse stands. Such a necessity is coveredwithin the four corners of the expression'personal occupation'. Similarly, a landlordmay require the vacant land for otherpurposes, say, for having a garage, makingaddition to the existing building, providingaccommodation to his growing family,providing a motorable approach road to hisadjacent building or for other amenitiesdepending upon the facts of each case, all ofwhich have to be established by him in theproceeding. But a landlord cannot be allowedto seek eviction for the purpose of demolishinga building to enable him to reconstructanother building only for augmenting hisincome, as personal requirement is a pre-conditioa Reconstruction for such purposewhich could not be covered under the Statutecannot be allowed. Similarly requirement ofa vacant space for fanciful purposes ascontemplated in Sadhana Ausadhalaya's case(1973-39 Cut LT 946) also cannot be permittedeven if there be a thing of personalconvenience. The decisions of this courttaking a view to the contrary would be deemedto be hereby overruled to that extent. .
20. Before parting with the judgment, let me give a brief analysis of my conclusions in the form of answers to the questions posed earlier in paragraph 2.
Answer to question No. 1
A landlord has got no right under the scheme of Section 7(4) of the Orissa Act to seek eviction of a tenant to enable him to demolish a dilapidated house simply because it has become dangerous for occupation, shorn of any necessity in any form.
Answer to question No. 2
The landlord is entitled to get an order of eviction to enable him to demolish a house and build altogether a new one according to his own needs for personal occupatioa This right would also include the right of remodelling or making suitable additions or alterations to the existing building.
Answer to question No. 3
Similarly,' a landlord is also entitled to demolish a house even though it may not be in a dilapidated condition his case being not covered under the answer to question No. 2 when he needs the vacant land in appropriate cases for personal occupation as already discussed in detail in the body of the judgment.
21. In the present case, the landlord wants to demolish the house to construct a new building for his personal occupation where he would carry on a business. For the view that I am taking, this ground is fully covered under the scheme of Section 7(4) of the Act, and, therefore, the landlord is entitled to an order of eviction. The subordinate authorities have therefore taken a correct view in the matter of directing the tenant to give vacant possession of the house to the landlord.
22. This application has got no merit and it is hereby dismissed In the circumstances of the case, I shall not burden the parties with the costs of this proceeding. The petitioner, however, must vacate the premises as early as possible and preferably within three months as the proceeding was started way back in the year 1976.
P.C. Misra, J.
23. I agree.
G.B. Patnaik, J.
24. I agree.
D.P. Mohapatra, J.
25. I agree.
A.K. Padhi, J.
26. I agree.