Bombay High Court
Rajendrakumar Sharandas Sharma vs Shrikrushna Babanrao Guhe on 7 May, 2010
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 4167 OF 2007.
Rajendrakumar Sharandas Sharma,
Aged about 68 years, Retired S.D.O.
Telephone, R/o. Narsing Colony,
Akot, Tq. Akot,
District - Akola. ....PETITIONER.
VERSUS
Shrikrushna Babanrao Guhe
(Dead) through Legal heirs.
1.Asha d/o Shrikrushna Guhe,
Aged about 35 yeas, Occupation - Household;
2.Usha d/o Shrikrushna Guhe,
Aged about 37 years, Occupation -
Household,
Both residents of Gandhi Ground,
Akot, Taluq Akot, District Akola. . ....RESPONDENTS.
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Mr. A.M. Ghare, Advocate for Petitioner.
None for respondents though served.
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2
CORAM : B.P. DHARMADHIKARI, J.
DATED : MAY 07, 2010.
ORAL JUDGEMENT.
The matter is part heard. None was present for
respondents/tenants yesterday. There is no appearance even today.
The order sheets show that this Court issued Rule in the matter on 05.10.2007 and though respondent nos. 1 and 2 are served, they have chosen not to appear.
2. The challenge is to judgment and decree dated 05.10.2002 delivered by the Additional District Judge, Akola in Regular Civil Appeal no.162/2002. It was filed by the predecessor of present respondents under Section 96 of the Code of Civil Procedure read with Section 35 of the Maharashtra Rent Control Act, challenging the judgment and decree dated 06.07.2002 passed by the Joint Civil Judge, Junior Division, Akot in Regular Civil Suit No. 140/2002. By that judgment and decree the Trial Court at Akola has allowed the suit filed by the present petitioner and passed a decree of eviction on account of bonafide need against the original tenant.
::: Downloaded on - 09/06/2013 15:56:41 ::: 33. Shri A.M. Ghare, learned counsel appearing on behalf of petitioner has contended that the possession was sought because petitioner - landlord is residing in tenanted premises and needed the suit premises for his occupation. The petitioner is retired Sub Divisional Officer from Central Government Service and his wife was also serving as Teacher. The suit premises consists of a plot ad-
measuring 1750 sq. ft. and there is tin shed ad-measuring 16 x 12 feet upon it. The respondents are tenants in that tin shed. The petitioner/ plaintiff wanted to construct on the said plot for his own residence and this need is proved by him. The trial Court accordingly appreciated that need and passed a decree for eviction.
The learned Appellate Court unnecessarily mixed the issue of bonafide need with need for immediate purpose of demolition and has set aside that decree with permission to the petitioner / plaintiff to construct on remaining portion of plot by leaving the tin shed as it is i.e. intact for tenant. He therefore, contends that the bonafide need for his occupation has not been denied by that Court.
4. In this background the learned counsel for petitioner has invited attention to the provisions of Section 16[1][g] of the Maharashtra Rent Control Act, 1999 and has read that provisions in ::: Downloaded on - 09/06/2013 15:56:41 ::: 4 contra-distinction with the provisions of Section 16[1-i] and 16[1-k] to urge that all these provisions operate in separate and distinct fields. It is contended that once landlord points out that he is residing in a tenanted premises and wants the suit premises for his residence, the bonafide need stands established and nothing more is required to be done. Attention is invited to the judgment of learned Single Judge in the case of Balwant P. Doshi .vrs. Shantaben Dhirajlal Shah and another reported at 2002 [4] Mh.L.J. 473, in support. The other judgment in case of Pralhad Dagadu Kalyankar .vrs. Laxman Rambhau Palange and another reported at 2005 [4] Mh.L.J. 304, is also relied upon to show that inhabitable condition of premises cannot be a ground to refuse a decree for possession under section 16[1][g] of the Maharashtra Rent Control Act. Judgment in case of Sharadchandra Vasant Chitnis .vrs. Mrs. Neela Ashok Korde and another reported at 2008 [4] Mh.L.J. 873, is relied upon to urge that the distinction in the scheme of Maharashtra Rent Control Act in so far as Section 16[1][g] and 16[1[k] or 16[1][i], is noticed therein.
Attention is also invited to the judgment of Hon'ble Apex Court in the case of Kunhamma @ Laxmi Ammas Children and another .vrs.
Akkali Purushothaman and others reported at 2007 [5] SCALE 719, to urge that personal necessity of landlord includes repossession of ::: Downloaded on - 09/06/2013 15:56:41 ::: 5 demised premises by landlord for the purpose of its demolition.
Lastly, the judgment in case of Vishwamitra Ram Kumar .vrs. Vesta Time Company reported at [2007] 4 SCC 374 is also pressed into service to urge that the Courts have to adopt a liberal view in such circumstances.
5. The Trial Court as also the Appellate Court has accepted the fact that the petitioner - landlord is staying in tenanted premises.
The tenants have attempted to show that apart from the suit plot/property, the family of landlord has two other plots in the same town. The Trial Court has found that those other plots cannot be said to be premises suitable for residence for landlord. In any case, the said contention of tenants is not relevant, because, it is for landlord to choose on which plot he will construct his house and reside. Tenant cannot object to such election by his landlord.
6. The Appellate Court has found that need was for demolition and hence provisions of Section 16 [1][i] was applied. It noticed that the landlord was constructing not only a residential house, but also certain shop blocks and the total area with landlord was 1750 sq. ft. out of which the tenant was occupying only 150 sq. ::: Downloaded on - 09/06/2013 15:56:41 ::: 6 ft. and landlord proposed to construct only 900 sq. ft. The tenant had also pleaded the landlord can construct house on remaining area in his possession. The Appellate Court then proceeded to observe that it was not the case of landlord that area in possession of tenant could not be excluded as proposed construction then becomes impermissible or contrary to the bye laws of municipal council. This line of application of mind has proceeded further and in paragraph no.22 the Appellate Court has observed that the landlord was constructing three shops in the basement and three shops on ground floor. Because of these observations, it found that landlord was constructing some thing more than what was needed for his personal requirement. It also noticed that it was not the case of the landlord that the shop premises were needed by him for his personal occupation or then by his sons and it concluded that under section 16[1][g], landlord can obtain possession of the suit premises only for his personal occupation and cannot obtain possession for construction of house with additional non residential premises not intended for his self-occupation. It has opined that he has to obtain possession under section 16[1][i] for said purposes. It has relied upon the judgment reported at (2001) 2 SCC 355 (M.L. Prabhakar .vrs. Rajiv Singal), to note that the plaintiff had alternate ::: Downloaded on - 09/06/2013 15:56:41 ::: 7 accommodation available with him. This finding is reached on the basis of the Sale deed at Exh.54 which admittedly is in the name of son of landlord and when sale deed was obtained that son was about 18 years old. In the judgment referred to above, the Hon'ble Supreme Court has observed that availability of alternate accommodation with landlord has adverse bearing on the finding as to bonafides of landlord, if he is unreasonably refusing to occupy the available premises to satisfy his need. It is also observed by the Hon'ble Apex Court that such alternative accommodation to entail denial of claim of the landlord must be suitably available. The facts show that there is no construction on plot purchased vide Exh.54, and this judgment of Hon'ble Apex Court has been used by the Appellate Court only to note that the plaintiff was constructing a house with more of non residential premises and for that purpose he wanted possession of suit premises. It therefore concluded that said need was not sincere and honest. The finding is unsustainable.
7. The Appellate Court has failed to note that Exh.54 Sale deed did not show ownership of any structure and it was only a open plot. It has only found that a house can be constructed more suitably on that plot. Such an exercise to advise landlord is not permissible ::: Downloaded on - 09/06/2013 15:56:41 ::: 8 in law. It therefore, cannot be said that the alternative accommodation is available to the present petitioner.
8. The judgment of this Court in case of Chandrakant Pundlikrao Randive .vrs. Lalit Kantilal Thakkar and others reported at 2009 [5] Mh.L.J. 287, relied upon by Shri Ghare, learned counsel for petitioner, shows that plaintiff there wanted to construct his house at Umred and he was staying at Nagpur in tenanted premises.
On the plot at Umred there was a godown and it was the specific case of plaintiff that he had no other house either at Nagpur or at Umred. In this background, this Court has applied its mind to note that the facts were sufficient to make out a case for bonafide requirement. This Court has also found that the size of the house to be constructed was in absolute discretion of the landlord and then has proceeded to consider the aspect of comparative hardship.
9. In Sharadchandra Vasant Chitnis .vrs. Mrs. Neela Ashok Korde (supra), the learned Single Judge of this Court has considered the facts where plaintiff / landlord wanted to demolish a building which was more than 100 years old and in dilapidated condition.
The Municipal Corporation had issued notice for demolition of said ::: Downloaded on - 09/06/2013 15:56:41 ::: 9 building and the landlord then terminated the tenancy of the defendants. He stated that he was residing in a small house insufficient for family, his son had completed M.B.B.S., and was prosecuting Post Graduate studies, married to a Doctor wife and the couple wanted to have their own dispensary. Existing structure was claimed to be small which required demolition and landlord wanted to construct a new building for his residence and for son and daughter in law to start practice. The facts therefore show that the provisions of Sections 16[1][g] and 16[1][k] of the Maharashtra Rent Control Act, were relied upon for seeking a decree of eviction and in paragraph no.11, the learned Single Judge of this Court has found that section 16[1][g], deals with reasonable and bonafide requirement of premises by landlord for his occupation. Under section 16[1][k], the eviction can be ordered for demolition, if the premises required immediate demolition as per the orders of the Municipal Council. It is to be noticed that there is no provision in any of these clauses requiring the landlord to provide accommodation or restore possession of dispossessed the tenant. In this background, provisions of Sections 16[1][k] and 16[1][i] are noticed and it is found that there legislature specifically provided for restoration of possession to the tenant after repairs or reconstruction.
::: Downloaded on - 09/06/2013 15:56:41 ::: 10It is also noticed that the work of reconstruction under Section 16[1] [j] is taken up for his own benefit and optimum utilization of FSI by landlord. In paragraph no.15, judgment of Hon'ble Apex Court in case of Ramniklal Pitamardas Mehta .vrs. Indraman Amratlal Seth reported at AIR 1964 SC 1676 has been relied upon, and observations made in paragraph no.13 by the Hon'ble Apex Court are quoted. The learned Single Judge has noted that the provisions of Clause [g] applies not only when landlord proves his bonafide need to occupy the premises, but also apply when he proves that need and points out that some alterations and repairs were necessary. In paragraph no. 16 of this judgment, the Hon'ble Apex Court has observed that the provisions of Clause [hh] of Section 13 before it were not applicable when landlord reasonably and bonafidely required the premises for his own occupation, even if he had to demolish those premises and erect a new building on it. It is apparent that the provisions of clause [hh] are pari materia with the provisions of Section 16[1][i], and the Hon'ble Apex Court has further noticed that the said clause [hh] applied to cases where landlord did not require premises for his own occupation, but required them for erecting new building which can be let out to tenants.
::: Downloaded on - 09/06/2013 15:56:41 ::: 1110. The provisions of Section 16[1]k] clearly show that the premises are required to be demolished as per order of the Municipal Authority or any other competent authority. Thus action for demolition is not at the volition of landlord, but as per the dictate of some third person, which landlord is legally obliged to comply with.
Section 16[1][i] speaks of landlord reasonably and bonafide requiring the premises for immediate purpose of demolition. It is therefore, apparent that in the scheme of section 16[1][i], it is the action or intention of landlord which is important. Section 16[1][k] does not make any provision for allotment of any portion or part of new structure which may be raised after demolition of old structure to the tenant, and this aspect is already considered by the two judgments of learned Single Judges of this Court mentioned above.
The obligation upon landlord to accommodate the tenant is only under section 16[1][i], and it is because of the fact that the demolition is for the purpose of erecting a new building on the premises sought to be demolished. It is therefore, clear that the reasonable and bonafides of need of the landlord for the purpose of immediate demolition are required to be viewed in this background.
It, therefore, appears that when the balance FSI is proposed to be ::: Downloaded on - 09/06/2013 15:56:41 ::: 12 utilized by landlord for his own benefit or then he proposes to demolish old building with a view to erect a new building, subject to fulfillment of the ingredients of section 16[1][i], a decree for eviction can be passed with obligation upon him to restore possession to tenant as per the provisions of Section 16[6] of the Maharashtra Rent Control Act.
11. Section 16[1][g] speaks of reasonable and bonafide need of landlord for his occupation. Thus the reasonable and bonafide requirement of landlord for self occupation is the factor on which the said provision operates. If that need is proved, the decree for eviction can be passed against the tenant. The phrases and words used in Sections 16[1][g] and 16[1][i] clearly shows that under section 16[1][i], the premises are not required for his occupation by landlord. The moment landlord shows that the premises are needed by him for his own occupation, there is no question of therefore going to Section 16[1][i] and it is section 16[1][g] which is only applicable. The need of demolishing the house in occupation of tenant or desire not to restore the possession of tenant, cannot be a circumstance, to doubt the bonafide personal requirement proved by the landlord. Here the landlord is stating that he wants to construct ::: Downloaded on - 09/06/2013 15:56:41 ::: 13 a house for self-occupation on suit plot, after tenant vacates it.
There is no question of doubting his bonafides in this situation. In the process if he is constructing a big house and if he wants to let out portion thereof, either for residential or for commercial purposes, that action will not dilute the bonafides of or reasonableness of his need. Such design by him may be on account of various contingencies but that is not relevant to hold that clause 16[1][g] is not attracted. In a given case he may be required to arrange for finance and make provision for its repayment. Such planning cannot be viewed as indication of any bad faith or malafides. I find that it is the need for his self-occupation which is of prime importance and all material ingredients in the scheme of Section 16[1][g] are established here and once such ingredients are established there is no need to go to other provisions of Section 16.
12. It is an admitted position that after decree of eviction is passed under Section 16[1][g], the legislature has not put any obligation upon the landlord to restore possession to tenant. Section 16[1][g] and Section 16[1][i] operate in distinct and mutually exclusive fields. Section 16[1][[i] or [k] cannot and do not eclipse the sweep of Section 16[1][g] of the Maharashtra Rent Control Act, 1999.
::: Downloaded on - 09/06/2013 15:56:41 ::: 1413. I, therefore, find that the application of mind by the Appellate Court is perverse and contrary to law. The judgment and decree dated 05.10.2002 delivered in Regular Civil Appeal No. 162/2002 is therefore, quashed and set aside. The said appeal is dismissed and the judgment and decree passed in Regular Civil Suit No. 140/2000 by the Joint Civil Ju8dge, Junior Division, Akot on 06.07.2002 is restored. Writ Petition is allowed. Rule is made absolute in the aforesaid terms, with no order as to costs.
JUDGE Rgd.
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