PHUP TSHERIN BHUTIA Vs. GAURI SHANKAR PRASAD

JUDGEMENT

(1.) in the suit for ejectment giving rise to this appeal, the landlord-respondent No. 1 has such the tenants for the recovery of the suit-premises on as many as six -ground and these are-(1) default in the payment of rent, (2) material additions and alterations of the suit-premises made by the tenants without the consent of the landlord (3) bona fide requirement of the landlord for his own occupation and business (4) user of the premises by the tenant for purposes other than for which these were originally let out, (5) nuisance created by the tenants in the suit premises and (6) bona fide requirement for building and rebuilding. It would thus appear that the landlord has fired almost all the shots available under the law for firing out the tenants and the triggering of all these volleys of grounds might give rise to an impression that the landlord is determined to drive out of the tenants from the suit-premises on any ground possible. But as many as four of the shots misfired in the trial Court of the Additional District Judge who has, however, decreed the suit on two grounds only, namely, (1) default in the payment of rent for more than four mouths and (2) the landlord requiring the premises for his bona fide occupation, these being two of the grounds on which eviction of a tenant of premises can he decreed under the provisions of the Gangtok Rent Control and Eviction Act, 1956. It is true that, as pointed out by this Court in Naurang Lall Vs. Pasant Kumari AIR 1981 Sikkim 22 at 25. , the landlord-respondent No. 1 having obtained a decree for ejectment in his favor on two of these grounds, could have, the provisions of Order 41, Rule 22, of the Code of Civil Procedure, sought to support the decree, even without preferring any cross-objection, one or more of the other grounds also which have been decided against him in the Court below; but since the learned counsel appearing for the landlord-respondent has not urged any of those grounds in support of the decree, these need not be gone into in this appeal.

(2.) I am, however, afraid that it would be difficult to sustain the decree for eviction on the ground of bona fide requirement of the landlord for his business. As pointed out by this Court in Paul Sangay Vs. Mahabir Prasad, AIR 1980 Sikkim 13 at 17-18. , and then in Naurang Lal versus Basant Kumari (supra) and also recently in Jiwan Ram Vs. Topgyal Wangchuk 1983 (2) R.C.J. 538. the Preamble of the Gangtok Rent Control and Eviction Act, 1956, shows that the avowed and proclaimed object of the Act is to control eviction of tenants and that the language of Sec. 4 of Act, declaring that "the landlord may not ordinarily eject a tenant" but that "when, however" any of the grounds mentioned in that Section, like requirement for bona fide occupation or rents in arrears amounting to four months' rent or more, is made out, "the landlord may evict the tenant by filling a suit", would inevitably give rise to the impression that the law-making authority regarded continuity of tenancies as the ordinary and the desired state of affairs and termination of tenancies as something extra ordinary, or, to put it in other words, non-ejectment of the tenants to be the exception. Following the observations of the Supreme Court in Mattulal Vs. Radhe Lal AIR 1974 Supreme Court 1596. , and in Neta Ram Vs. Jivan Lal AIR 1963 (S.C.) 499. while construing similar restrictive enactments relating to eviction of premises tenants, it was observed in Paul Sangay (supra, at 17-18) that the Gangtok Rent Control and Eviction Act, 1956, has imposed a restriction on the right of the landlord to evict and on the jurisdiction of the Court to decree the eviction of tenants and that the onus of proving the conditions on proof of which alone the tenant may be evicted lies squarely and heavily on the landlord. In Deccan Merchant Cooperative Vs. Dalichand AIR 1969 Supreme Court 1320. , the Supreme Court observed (at 1323) that "the scheme of the various "lent Acts and the Public purpose underlying them are clear; the policy is to give protection to the tenants", and these observations have been quoted with approval by the Supreme Court in the much later decision in Natraj Studio Vs. Navrang Studio AIR 1981 Supreme Court 537 at 545 . The observations of this Court in Paul Sangay (supra) have been quoted with approval by this Court in the later decision in Naurang Lall (supra). In Hari Ram Vs. Khvali Ram 1983 (1) R.C.J. 169 this Court has again observed that the provisions of the Gangtok Rent Control and Eviction Act, like the provisions of most of the allied statutes operating in different States, clearly demonstrate that they are more protective of the interest of the tanants than of the landlords. It may be that, as Sir Henry Maine observed, "the movement of progressive societies had been" (at least up to the time when Mahe wrote his "Ancient Law") "from status to contract;" but as pointed out by Lord Simond in Johnson versus Merston (1974-8 All England Reporter 37;, since the days of Maine, the movement of the progressive societies in various fields has been the reverse, that is, from contract to status. As in the field of master and servant, the present legislative tenancy in matters relating to landlord and tenant is also obviously a march from contract to status and the tenants have now been clothed with some status not terminable save on specified grounds, very much unlike as it was before under the earlier laws when the relationship being mainly, even if not solely, contractual, was terminable according to the terms of the contract.

(3.) It is true that that the relevant expression in Sec. 4 of the Gangtok Act is "When the whole or part of the premises are required for the bona fide occupation of the landlord". As observed by the Supreme Court in Mattulal versus Radhe Lal (supra) relying on earlier decisions, the word 'require' signifies that mere desire, however sincere and genuine on the part o f the landlord, is not enough but there should be an "element of need" and that the landlord must show, the burden being upon him, that he genuinely requires, and not merely desires, the premises and the mere assertion on the part of the landlord, however honest, that he requires the premises is neither enough nor decisive. It has been observed further that the test which has to he applied is an objective test and not a subjective one and merely because a landlord asserts that he genuinely wants the accommodation for any particular purpose, that would not be enough to establish that he requires it for that purpose and that this requirement is bona fide. To the same effect is the observation of the Supreme Court in Phiroze Barnonji Vs. Chandrakant AIR 1974 Supreme Court 1059. Lexically the expression "bona fide no doubt means "good faith" and as defined in Sec. 3(18) of the Sikkim Interpretation and General Clauses Act, 1977 (as in Sec. 3(22) of the central General Clause Act, 1897 a thing is "deemed to be done in good faith when it is in fact done honestly, whether it is done negligently or not". This might have furnished some basis for the argument that under the Gangtok Act, an honest requirement of the landlard is good enough to warrant a decree for ejectment and that the requirement must not he shown to be reasonable also. This argument has been rejected by this Court in Hari Rain versus Khyali Ram (supra) where (at pp. 176-178), after referring to the various allied enactments in other States, some of which use the expression "bona fide", some "reasonable" and some both "bona fide" and "reasonable" while qualifying the expression "require", and to the various case-laws thereon, it has been held that the requirement in order to be "bona fide" and to satisfy the requirement of the Statute authorising eviction of tenant on the ground of such requirement, must also be it reasonable one. In fact, in Kamla Soni Vs. Rup La1 1970 R C.J. 34 . a three-Judge Bench of the Supreme Court, while construing the relevant provisions of Sec. 14 4,1 h.) of the Delhi Rent Control Act, 1958, authorising eviction of tenant when the premises are required bona fide by the landlord for occupations, has clearly ruled (at 36) that "in determining whether the claim is bona fide, the court is entitled and indeed bound to consider whether it is reasonable". The decision in Kamla Soni versus Rup Lai (supra) has been followed by the Supreme Court in Mattual versus Radhe Lal (supra), though it may be noted that the observation made in the former decision to the effect that a finding as to the bona fide requirement "is a mixed question of law and fact" has not been followed in the latter decision in view of the contrary observation on that point in an earlier larger decision in T.B. Sarvate Vs. Nemichand AIR 1966 Madhya Pradesh 26 . In D.N. Sanghavi V. Ambala AIR 1974 Supreme Court 1026 . the Supreme Court, while considering similar restrictive provisions of the Madhya Pradesh Accommodation Control Act, 1961 has observed that "the direct and immediate object of the Act is to ensure occupation of accommodation by them who are in need of it and that "broadly speaking, a construction which fulfills this purpose should be preferred to the alternative construction which frustrates it" and by that test also, the bona fide requirement to justify eviction of a tenant must also be reasonable. It is, therefore, obvious that the very purpose behind these legislation's like the Gangtok Rent Control and Eviction Act, 1957, would be defeated if the landlords are allowed to come forward and to get the tenants turned out on a bare plea that they require more accommodation for their occupation for the purpose of occupation or business or other- wise. In the light of the aforesaid observations let me, therefore, consider whether on the evidence on record the landlord-respondent can be regarded to have discharged the onus to prove that "the premises are required for the bona fide occupation of the landlord" within the meaning of Sec. 4 of the Gangtok Act.