T. Bhagirao Vs. K. Panduranga Subudhi and ors. - Court Judgment

Shankar, C.J.

1. Challenge in this petition filed by the tenant is to Annexures 1 and 2. Annexure 1 is the order passed by the House Rent Controller in proceedings under the Orissa House Rent Control Act (hereinafter referred to as the Act) granting a decree against the petitioner to deliver vacant possession of the suit house to O. P. No. 1 within two months. Annexure 2 is the order in appeal passed by the learned Chief Judicial Magistrate on 8-9-75 confirming the order of eviction.

2. The order of eviction was granted against the petitioner by the House Rent Controller on the ground that the house in question was required in good faith by O. P. No. 1 for purposes of his profession and also that the same was bona fide required by him for remodelling to make it suitable for the aforesaid purpose. The learned appellate Court negatived the first ground, but agreed with the learned House Rent Controller that the house was required for remodelling and on this basis maintained the eviction order.

3. It was strongly urged on behalf of the petitioner that mere remodelling of the house without the proof of any 'requirement' by the landlord did not justify the grant of a decree of eviction under Section 7 (4) of the Act. Reliance in support of this contention was placed on (1975) 41 Cut LT 460: (AIR 1975 Orissa 130 (FB)) (H. . Mohammad Sikandar v. Badrunissa Bibi).

4. We have heard the learned counsel for the parties. While setting aside the finding of the learned House Rent Controller as to the need of opposite party No. 1, the appellate authority held that the plea of necessity for the house for use for professional purposes was 'too remote' and contingent upon O. P. No. 1 passing B. Com. examination which he had not done up till then and therefore was not acceptable. The learned counsel for the petitioner contends that after this finding the case for eviction should have been dismissed. The argument of the learned counsel is that the remodelling had to be done only for the purpose and in the event of the house being required for use for professional purposes and once that requirement was not proved, the basis for the plea vanished. We see force in this submission of the learned counsel. Section 7 (4) of the Act reads as under:--

'The landlord may, subject to the provisions of this Act, apply to the Controller for an order directing the tenant to put him in possession of the house, if he requires the house in good faith for the occupation or use of himself, any member of his family or of any person/persons for whose benefit the house is held by him.'

The expression 'if he required the house in good faith for the occupation or use of himself, any member of his family or of any person or persons for whose benefit the house is held by him' is significant. Requirement by the landlord is the precondition. Mere wish to demolish the house without actually 'requiring it' for one of the uses of the nature mentioned in this Sub-section will not attract this provision to justify a decree for eviction. In the absence of the proof of the need of opposite party No. 1, the decree for eviction on the ground of remodelling alone is thus not sustainable in law and is beyond the scope of Section 7 (4) of the Act.

5. In Mohamrnad Sikandar's case (AIR 1975 Orissa 130 (FB)) referred to by the learned counsel we find that this aspect of the matter has specifically been noticed. While differing from the view taken by the Division Bench in (1973) 39 Cut LT 946 (Sadhana Ausadhalaya v. Moningi Nookama) the Full Bench observed:--

' ......Section 7 (4) does not prohibiteviction 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.'

6. Mr. Mohanty, the learned counsel appearing for opposite party No. 1, also specifically relied on the aforesaid observation in this judgment and urged that these observations warranted a decree for eviction even if the house was not required for any purpose whatever. We are unable to agree with him. The requirement of the landlord in good faith is a precondition for bringing the case within the ambit of this provision.

7. For these reasons, we allow this writ petition. The decree for eviction against the petitioner is quashed, but there shall be no order as to costs.

B.K. Ray, J.

I agree.