Bodani v Seth (Civil Appeal No. 742 of 1950) [1951] EACA 329 (1 January 1951)

# APPELLATE CIVIL

### Before BOURKE, J

## ODHAVJI BECHAR BODANI, Appellant (Original Respondent)

#### v

# PRABHUDAS PURSHOTTAM SETH, *Respondent* (Original Claimant)

### Civil Appeal No. 742 of 1950

(Appeal from the decision of the Central Rent Control Board at Nairobi)

Landlord and Tenant—Premises unoccupied—Good cause—Section 5 (1) $(h)$ — The Increase of Rent (Restriction) Ordinance, 1949.

The landlord of a dwelling house added four new rooms to the second storey in March. 1950. In April he applied for an occupation permit and was refused on the ground that the premises were already overcrowded and the landlord proposed to put more people in the four new rooms. In May the landlord applied to the Rent Control Board for electment of certain tenants including the respondent. In May the landford again applied for an occupation permit for the four rooms. This was refused because of inadequate sanitary and bathroom accommodation having regard to the large number of persons in occupation, but the landlord was offered a permit to allow persons occupying the basement area to reside in the new rooms. The respondent and his family occupied the basement. In June the respondent applied to the Rent Control Board for allocation of the new rooms. The Board in July ordered that the four new rooms be taken by the Board under section 5 (1) $(h)$ of the Increase of Rent (Restriction) Ordinance, 1949, and let to the respondent at a rent to be fixed by the Board on 1st August. The landlord appealed.

**Held** (11-4-51).—The landlord had not acted unreasonably and without good cause in leaving<br>the premises unoccupied. The order of the Board made under section 5 (1) (h) was bad. Appeal allowed.

Hunter for appellant.

D. N. Khanna for respondent.

JUDGMENT.—This is an appeal from a determination by the Central Rent Control Board made on 27th July, 1950. The appellant is the landlord of a dwelling house premises to the second storey of which he added four new rooms in March, 1950. In April he applied for a permit of occupation under by-law 351 of the Nairobi Municipality By-laws, 1948, and this was refused on the ground that the premises were already overcrowded (44 people resided in them), and the landlord proposed to put more people into the four new rooms. The reasons given were inadequacy of latrine and bathroom accommodation. The appellant applied on 5th May to the Board for the ejectment of certain tenants already occupying the premises, including the respondent, on the ground of overcrowding. These proceedings were set down for hearing on 21st August. In May the appellant again applied for a permit of occupation in respect of the four rooms and this was refused on the grounds set forth in the letter of 19th May from the Town Clerk, objection was taken to the inadequate sanitary and bathroom accommodation in the premises having regard to the large number of persons in occupation. The appellant was, however, informed that he could have a permit of occupation to allow persons occupying the basement area to take up residence in the new portion. The respondent and the numerous members of his family occupied the basement; in June he applied to the Rent Control Board for allocation of the accommodation newly constructed. On 27th July the Board after hearing the parties arrived at the decision that is questioned in this appeal. It was ordered that the four rooms be taken over by the Board under section $5(1)$ $(h)$ of the Ordinance and let to the respondent at a rent to be fixed by the **Board from 1st August, 1950.** An application for a stay of execution was refused but was granted on application to this Court. Section 5 (1) (h) (i) gives power to the Board-

"to allocate to any suitable tenant at such rent as the Central Board or the Coast Board, as the case may be, may fix, any house or portion thereof which, without good cause has been left unoccupied for a period exceeding one month and, if any house is in an unfinished condition, to cause such house to be finished in all respects and rendered fit for habitation."

The first two grounds of appeal set out in the memorandum have been abandoned. As to the ground relied upon in paragraphs 4 and 5 of the memorandum, I am unable to discern any good reason for interfering with the determination of the Board because it declined an adjournment of the present proceedings until after the hearing of the appellant's application for ejectment fixed for 21st August; nor am I satisfied that section 7 of the Increase of Rent (Restriction) Ordinance, 1949, which provides for appeals, enables this Court to consider on appeal an order in the exercise of a discretion in the Board to adjourn or refuse to adjourn proceedings in which it adjudicates.

It is strongly argued in support of the ground of appeal set forth in paragraph 3 of the memorandum that the Board did not have sufficient material before it to enable a decision that the four rooms had been left unoccupied "without good cause" for a period exceeding one month. The question to my mind is one of mixed law and fact. It is submitted for the appellant that this new portion of the house was left unoccupied for very good cause, namely, that the appellant could not allow it to be occupied without committing an offence under the by-laws unless he had been granted a permit of occupation; which had been twice applied for and twice refused. The advocate for the respondent argues that the rooms were unoccupied for a period exceeding a month prior to the date of the decision of the Board on 27th July. In fact they had never been occupied. Then it is said that though on 19th May the Municipal authority concerned refused the appellant's second application for a permit of occupation, it was intimated to him that such a permit would be granted but only to allow persons then occupying the basement portion to take up residence in the new portion. Because the appellant did not act on that intimation and accept as his tenants of the new portion persons residing elsewhere in the building, it is submitted that he left this new portion of the house unoccupied without good cause. The reason for this conditional undertaking to provide a permit of occupation is of course made clear; it is that the Municipal Authorities were not prepared to regard the premises as fit for occupation by any more people than then resided in it owing to the inadequate sanitary and bathroom accommodation, but were agreeable to regard the new portion as "fit for habitation" (see by-law 351 (a)), if it was occupied by persons then residing elsewhere in the building. The position, then, was that the appellant landlord could have a permit of occupation if he chose to accept as tenants the persons residing in the basement. The appellant, who had already taken proceedings with a view to relieving the situation as to overcrowding, did not elect to grant a right of occupation as his tenants of the new portion to these persons occupying the basement, and did not apply for the necessary permit of occupation which it was indicated to him the Municipality would be prepared to grant if he accepted such persons as his tenants of the new portion.

Has the landlord acted unreasonably in declining or neglecting to take the permit offered thus binding himself to accept particular persons as his tenants of the new portion? Has he by so declining or neglecting left this portion of the premises unoccupied for the statutory period without good cause? It is to be borne in mind that he had commenced proceedings to alleviate the overcrowded position in the basement section. That he did so after he had been refused an occupation permit seems to have weighed with the Board, but I fail to appreciate how that circumstance affects the question because it was apparently only then that he became acquainted with the views of the Medical Officer of Health which constituted the ground for refusal of the permit. It is evident from the file of the Board that the question of good cause was argued before the Tribunal but nowhere in the reasons given for its decision do I find it indicated that the Board approached the problem as it has been put forward here by the advocates for the parties. The whole crux of the matter is whether the appellant left the premises unoccupied without good cause. He was refused a permit of occupation and then he was offered the permit on condition that he allowed other persons, being his tenants of another part of the building, to become his tenants of the new portion. I have yet to learn that it can properly be considered unreasonable in a landlord to decline to have particular tenants imposed upon him in this way. I think he is fully entitled to say in effect: "I am permitted to contract with whom I choose: I do not want these particular persons suggested by another as my tenants of this new portion of my premises and I decline to be moved<br>by this conditional offer of a permit. Without a permit my hands are tied, but if I am successful in getting rid of some of my tenants elsewhere in the building so as to relieve the conditions of overcrowding as to which complaint is made, then from all that has been indicated to me, for there seems to be no objection to the new structure as such, I may reasonably expect the grant of a permit to allow occupation of this new portion. I will then seek to enter into contractual relations with such person or persons as I please; if I do not do so within the period of one month I will take the consequences.

In my judgment, I have been referred to no authority in point, it cannot validly be said that the appellant in the circumstances left the new portion of the building unoccupied for a period exceeding one month without good cause. and since I have come to that conclusion I am obliged to hold that the Order $\phi$ of the Board made under section 5 (1) (h) of the Ordinance was bad. I allow the appeal and set aside the Order with costs here and below to the appellant.