Bombay High Court
M/S. G.V. Patel And Company, Thr. ... vs Shri. Dilip Kumar S/O Ramjibhai Patel ... on 29 April, 2019
Equivalent citations: AIRONLINE 2019 BOM 1450
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.449 OF 2019
PETITIONERS: M/s G. V. Patel & Company through Shri
(Original Gangaram Valjibhai Patel (Expired)
Appellants/
through legal heirs:
Defendants)
1. Maniben wd/o Gangaram Patel,
Aged about 71 years, occupation-
Household, R/o Ashish Apartment,
Ramdaspeth, Nagpur.
2. Shri Shailesh s/o Gangaram Patel,
Aged about 37 years, occupation-
Business, R/o Sardar Patel Timber
Market, Ghat Road, Nagpur.
Petitioner No.3 3. Smt. Kanchan w/o Suresh Patel,
died without
aged about 40 years, Occupation-
intestate during
the course of Business, R/o Jeevandhara Society,
R.C.A.
Flat No.106, Satnami Nagar,
No.246/11 and
having no any Lakadganj, Nagpur.
legal heirs hence
deleted.
-VERSUS-
RESPONDENTS: 1. Shri Dilip Kumar S/o Ramjibhai Patel,
(Original Aged about 45 years, Occupation-Nil,
Respondents/Plai
ntiffs)
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2. Shri Lalit Kumar S/o Ramjibhai Patel,
Aged about 46 years, Occupation-Nil,
Both R/o Royal Apartment, 302,
Fafadih, Raipur (C.G.).
Shri K. B. Ambilwade, Advocate for the petitioners.
Mrs. Rashi Deshpande, Advocate for respondent Nos.1 and 2.
CORAM: A.S. CHANDURKAR, J.
DATED: 29th APRIL, 2019.
ORAL JUDGMENT :
1. The original defendants being aggrieved by the decree for eviction as passed by the trial Court and affirmed by the appellate Court have filed the present writ petition challenging the said orders.
2. The facts in brief are that it is the case of the respondent Nos.1 and 2 herein - plaintiffs that they are the owners of plot No.4 situated at Sardar Patel Timber Market, Ghat Road, Nagpur. The said premises consists of five residential rooms with a running Saw Mill. The same were let out to the petitioners - defendants on rent of Rs.2700/- per month. The amount of rent was disputed by the defendants and they were paying rent at the rate of Rs.1000/- per month. The plaintiffs had filed separate proceedings for determination of standard rent under Section 8 of ::: Uploaded on - 03/05/2019 ::: Downloaded on - 08/04/2020 06:09:04 ::: WP449.19.odt 3/10 the Maharashtra Rent Control Act, 1999 (for short, the said Act). The plaintiffs had bonafide need of the suit premises. The family of the plaintiffs consisted of about seven to eight members and the premises were required for residential as well as for business purposes. The defendants had secured alternate accommodation at MIDC Hingna besides other properties in the suit. On that basis the plaintiffs filed suit for eviction of the defendants under Section 16(1)(g) of the said Act.
3. In the written statement the pleadings as made were denied. It was denied that the defendants were liable to pay Rs.2700/- per month and the rent payable was Rs.1000/- per month. The need of the plaintiffs was denied. On the contrary, the defendants had taken various steps to operate the Saw Mill as it was in a dilapidated condition. The plaintiffs had various other businesses and it could not be said that their need was bonafide. It was thus pleaded that the suit was liable to be dismissed.
4. Before the trial Court the plaintiffs examined two witnesses while the defendant examined one witness. On consideration of the entire evidence on record, the trial Court recorded a finding that the plaintiffs had bonafide need of the suit premises. Greater hardship was likely to be caused to the plaintiffs if the decree was not passed. It was also found that the defendant ::: Uploaded on - 03/05/2019 ::: Downloaded on - 08/04/2020 06:09:04 ::: WP449.19.odt 4/10 had alternate business premises and hence by the judgment dated 16-4-2004 the suit came to be decreed. The defendants then filed an appeal and the appellate Court affirmed the findings recorded by the trial Court as regards bonafdide need and acquisition of alternate premises by the defendants. The appeal was accordingly dismissed. Being aggrieved, the present writ petition has been filed.
5. Shri K. B. Ambilwade, learned Counsel for the petitioners submitted that both the Courts erred in decreeing the suit for eviction. He submitted that before the appellate Court various contentions were raised to the effect that the suit property was within the slum area and in view of provisions of Section 22 of the Slum Area (Improvement, Clearance and Development) Act, 1971 (for short the Act of 1971) the decree for eviction could not have been passed. It was further submitted that the plaintiffs had sought renewal of the license of the Saw Mill in their name but the competent Authority had refused to grant any license of the Saw Mill in favour of the plaintiffs. He referred to the adjudication in Writ Petition No.64/2013 (Lalitkumar Ramjibhai Patel and anr. vs. Dy. Conservator of Forests Department, Nagpur) as well as the orders passed by the Forest Authorities in that regard. It was then submitted that the findings recorded that the defendants had ::: Uploaded on - 03/05/2019 ::: Downloaded on - 08/04/2020 06:09:04 ::: WP449.19.odt 5/10 alternate business premises was incorrect and that the same could not have been a ground for directing eviction of the defendants. Greater hardship was likely to be caused to the defendants in case the decree for eviction was maintained. It was thus submitted that in the light of the aforesaid submissions the decree for eviction was liable to be set aside and the suit as filed was liable to be dismissed. In support of his submissions, the learned Counsel placed reliance on the decisions in Laxmi Ram Pawar vs. Sitabai Balu Dhotre and another (2011)1 SCC 356, Taj Mohamed Yakub vs. Abdul Gani Bhikan 1991 Mh.L.J. 263, S. R. Ahmad vs. Qazi Shahabuddin S/o Qazi Ikramuddin 2004(4) ALL MR 394 and Sant Ram vs. Rajinder Lal AIR 1978 SC 1601.
6. Ms. Rashi Deshpande, learned Counsel for the respondents - plaintiffs supported the decree for eviction. She referred to the pleadings in the plaint as well as evidence on record and submitted that the bonafide need of the plaintiffs had been duly established and accepted by both the Courts. It was submitted that the plot in question was a lease hold plot owned by the Nagpur Improvement Trust and therefore in view of provisions of Section 26 of the Act of 1971 the provisions of Section 22 of the Act of 1971 did not come into operation. Moreover, the grounds as sought to be raised by amending the memorandum of appeal ::: Uploaded on - 03/05/2019 ::: Downloaded on - 08/04/2020 06:09:04 ::: WP449.19.odt 6/10 were not brought on record by amending the written statement. Hence, merely on that basis it could not be said that the grounds sought to be raised by amending the memorandum of appeal were liable to be accepted. She further submitted that the adjudication of the proceedings in respect of the license of the Saw Mill were not very relevant and that the plaintiffs could always apply for a fresh license if they intended to again start the Saw Mill and that could not be a ground for refusing to grant a decree for eviction. On the question of hardship it was submitted that considering the number of family members in the family of the plaintiffs coupled with the fact that it was found that the defendants had alternate premises for carrying on business, the aspect of hardship was rightly held in favour of the plaintiffs. In the light of concurrent findings of fact recorded by both the Courts, no interference with the decree for eviction as passed was warranted under Article 227 of the Constitution of India.
7. I have heard the learned Counsel for the parties at length and I have perused the evidence on record. The eviction of the defendants has been sought on the ground of their bonafide need. It has been pleaded that initially the plaintiffs' father was carrying on the Saw Mill business but due to losses sustained by him the premises were let out to the defendants. However, the ::: Uploaded on - 03/05/2019 ::: Downloaded on - 08/04/2020 06:09:04 ::: WP449.19.odt 7/10 plaintiffs now had bonafide need as they wanted to shift back to Nagpur. The details in respect of the family members were also given. Similarly, the availability of alternate accommodation with the defendants was also pleaded. Though the aforesaid aspects were denied by the defendants, the plaintiffs examined themselves and brought substantial evidence on record. The defendants also examined one witness in that regard. On considering the entire evidence on record, the trial Court accepted the bonafide need of the plaintiffs by taking into consideration the aspect that the plaintiffs intended to do business at Nagpur. Another fact that was accepted by the trial Court was that alternate premises were available to the defendants for doing similar business. It was further found that the defendants were not themselves doing business in the premises in question which was let out to another relative. It is on this count that the bonafide need of the plaintiffs was held to be proved coupled with the finding that the greater hardship was likely to be caused to the plaintiffs. As noted above, the defendants amended the memorandum of appeal before the appellate Court and raised certain grounds as regards applicability of the provisions of Act of 1971 and the adjudication by the forest authorities in the matter of license of the Saw Mill. The written statement however was not amended by the defendants. The ::: Uploaded on - 03/05/2019 ::: Downloaded on - 08/04/2020 06:09:04 ::: WP449.19.odt 8/10 appellate Court has noted that the Saw Mill was located on the property owned by the Nagpur Improvement Trust and in view of Section 26 of the Act of 1971 the provisions of Section 22 were not applicable. On the aspect of bonafide need, it was noted that the defendant No.1 had admitted that he was not residing at the residential premises of the Saw Mill and the defendants had alternate accommodation for running similar business elsewhere. The plea raised by the defendants that the plaintiffs were doing business at Raipur and hence they had no need of the premises at Nagpur had not been substantiated.
8. In the aforesaid backdrop it can be seen that the contentions sought to be raised by the defendants in the present writ petition were raised by them even before the appellate Court. It is found that the appellate Court has considered all relevant aspects while maintaining the decree for eviction. In view of the fact that the plot in question was owned by the Nagpur Improvement Trust, the question of applicability of the provisions of Section 22 of the Act of 1971 would not arise in the light of provisions of Section 26 of that Act. Moreover, the defendants merely amended the memorandum of appeal without amending the written statement. As regards bonafide need of the plaintiffs, it has been found by both the Courts that the said need was genuine. ::: Uploaded on - 03/05/2019 ::: Downloaded on - 08/04/2020 06:09:04 ::: WP449.19.odt 9/10 The plaintiffs intended to settle at Nagpur and in the light of the fact that the defendants themselves were not occupying the residential premises but had permitted another relative to reside in the premises coupled with the further finding that they had got alternate premises at MIDC area, Hingna Road, Nagpur was a relevant factor in that regard. The aspect of hardship therefore was also answered in favour of the plaintiffs. The decisions relied upon by the learned Counsel for the petitioners pertain to applicability of the provisions of the Act of 1971. In the light of the fact that the suit property is situated in the area that belongs to the Nagpur Improvement Trust, the provisions of Section 26 of the Act of 1971 would apply. Hence the ratio of those decisions do not support the case of the defendants. In exercise of writ jurisdiction under Article 227 of the Constitution of India, I do not find any jurisdictional error committed by the Courts in upholding the bonafide need of the plaintiffs. All relevant factors have been taken into consideration and in view of the fact that greater hardship was liable to be caused to the plaintiffs, the decree as passed does not call for any interference. There is no case made out to interfere in the writ jurisdiction.
9. Hence, for aforesaid reasons, the writ petition stands dismissed with no orders as to costs. The decree for eviction shall ::: Uploaded on - 03/05/2019 ::: Downloaded on - 08/04/2020 06:09:04 ::: WP449.19.odt 10/10 however not be executed for a period of eight weeks from today.
JUDGE /MULEY// ::: Uploaded on - 03/05/2019 ::: Downloaded on - 08/04/2020 06:09:04 :::