TMI Blog1948 (2) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... of the matter. With the consent of the parties, we have heard the suit after framing the necessary issues. The issues framed are as follows: (1) Whether the order of the Collector dated 30th April 1947 passed in B.B.C. Case No. 26 of 1947 and the order of the Commissioner in appeal dated 26th August 1947 in Case No. 159 of 1947 is ultra vires and. (2) Whether the plaintiff is entitled to a permanent injunction restraining the defendants from enforcing the order passed by the Collector and the Commissioner as in issue No. 2 and to what relief, if any, is the plaintiff entitled. 2. The facts' of the case lie within a very narrow compass, and are neither in doubt nor in dispute. The plaintiff obtained a registered lease of the premises for a period of two years ending with 15th September 1938. The monthly rent fixed for the premises was ₹ 60 and ₹ 40 was fixed as the rent for the furniture, etc., already there on the premises. Later on, the sum of ₹ 100 was increased on different occasions to ₹ 151 per month. The purpose of the tenancy was the running of a cinema house, although there were attached premises for the use of the staff necessary fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary residential purposes either by the petitioners or by the opposite party, but the real question is as to whether one party U to have the benefit of the building and business or the other. The petitioners being the owners of the building, they have undoubtedly got prior claims and had it not been for this Act, they would certainly have had the right to eject the tenant and enter into possession of the building. 3 . The plaintiff preferred an appeal to the Commissioner from the order of the Controller as quoted above, and the learned Commissioner passed his orders on 26th August 1947, dismissing the appeal but, in the circumstances, granting further extension of the time, namely, up to 81st December 1947, for vacating the premises. While making the order dismissing the appeal, the learned Commissioner made the following observations: There was an argument that the landlord does not want the premises for genuinely opening a cinema house. If the petition is proved to be mala fide then remedy is provided by Sub-section (4) of Section 11, by which in case of mala fide petition the original tenant would be restored to the building. Hence, it would appear that, having l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd may apply to the Controller for an order directing the tenant to put the landlord in possession of a building if he requires it reasonably and in good faith for his own occupation or for the occupation of any person for whose benefit the building is held by him: Provided that where the tenancy is for a speoiflo period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this Sub-section before the expiry of such period. (b) The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller-in the order and if the Controller is not so satisfied, he shall make an order rejecting the application: Provided that the Controller shall give the tenant a seasonable time ordinarily not less than three months (but not exceeding six months in any case for putting the landlord in possession of the building. 7. It has been argued on behalf of the plaintiff that the premises in question in this suit are not required by the defendants in good 'faith for their own occupation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Occupation and residence, the author says the following: The word 'occupation' does not necessarily mean residence only. 9. He relies upon the decision of a single Judge of the Allahabad High Court, in the case of Baladin v. Lakhan Singh AIR1927All214 besides other cases. In Wharton's Law Lexicon the word occupation has been used as synonymous with possession or the act of taking possession. But reliance was placed upon the legal significance of the term occupier as given in that treatise. Occupier the author says, is the person residing in or upon or having a right to reside in or upon any house, a land or place. The authorities referred to above, that is to say, the reported cases have reference to certain other statutes which are not in pari materia with the statute which has to be construed, in the present case.. Some of the cases referred; to above have reference to the provisions of Section 60, Civil P.C. In that section, Clause (c) of Sub-section (1) speaks of bemuses and other buildings belonging to an agriculturist and occupied by biro being immune from attachment, and the decided cases have laid it down that the houses, to which the immuni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uilding or hot or part of a building or but, let or to be let separately for residential or non-residential purposes, and includes (4) the garden, ground andante houses, if any appurtenant to such building or hut or part of such building or hut and (ii) any furniture sop plied by the landlord for us in such building or hut or part of a building or hut. The Act has been enacted with a view to controlling the rent of buildings and to prevent unreasonable eviction of tenants there from. Hence, the scope of the present Act has been very much enlarged, and is apparently much larger than the scope of the Bihar House Rent Control Order, 1942, in which the word house ' has been defined as a building or part of a building suitable for occupation as a residence (omitting the other unnecessary portions of the definition). It would thus appear that the provisions of Act III [3] of 1947 have been so enacted as to include within their scope buildings used for non residential purposes also. It is a well, established canon of construction of statutes that the same word used in different parts of the same statute must be construed in be same sense unless expressly enacted to the contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that conclusion. In my opinion, such is not the case in the present instance. It must, therefore, be held that the word occupation in Sub-section (3) of Section 11 has been used in its ordinary dictionary sense meaning the actual user of the property for the purpose for which it is meant, and that it cannot be restricted in its meaning by making it synonymous with residence. In that view of the matter, it is manifest that the entire cause of action as disclosed in para. 7 of the plaint is not well founded in law. 11. At the time the issues were being joined, learned Counsel for the plaintiff made a belated attempt to bring into controversy the entire provisions of the Act in the sense that it was ultra vires of the Provincial Legislature. But, as no such allegations had been made in the plaint and as the defendants had no notice of such a contention, which would have necessitated the appearance of the Advocate-General to represent the view point of the Legislature, we ruled that contention out of order, and refused to frame an issue as suggested by the plaintiff. 12. Apart from the allegations in the plaint, at the time of argument it was urged on behalf of the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff, and, in my opinion, there is no substance in any one of them. It must, therefore, be held that the orders passed by the Controller as affirmed by the Commissioner are not ultra vires of the Act. As that is the only ground on which the orders have been impugned, it must be held that there is no basis for the suit itself. It follows that the prayer for a permanent injunction must also be refused. 15. In the result, the suit must be dismissed with costs. The application in revision must similarly be dismissed with costs. There will be one consolidated hearing fee of ₹ 250 for both the cases in this Court. M. Prasad, J. 16. I agree. Mr. Sarjoo Prasad on behalf of the plaintiff, in support of his contention that the words for his own occupation in Sub-section (3) of Section 11 should read as meaning for his own residence, referred us to Sub-section (4) of the same section. He drew our attention to the words ' does not himself occupy it. in Sub-section (4). His argument is that the provision contained in Sub-section (4), enabling the tenant to get back the possession of the premises from which he may have been evicted under the provisions of Sub-section ..... 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