Bombay High Court
Smt. Bhagem Anant Shirodkar vs Shri Bascore Vitola Sinai Vaglo And Ors. on 11 August, 1994
Equivalent citations: 1995(3)BOMCR559
JUDGMENT E.S. Da Silva, J.
1. The challenge in this writ petition is the judgment and order of the Administrative Tribunal dated 21st June, 1990 in Eviction Appeal No. 13/84 which has affirmed the judgment and order of the Additional Rent Controller, Goa North Division, Panaji, dated 31st March, 1989. By the said order given in Case No. Rent/34/78 the Additional Rent Controller has allowed an application of the respondent No. 1. (hereinafter called 'the respondent') under section 23(1) and directed the petitioner to hand over peaceful and vacant possession of the suit premises to him within 45 days from the date of the order.
2. The case of the petitioner is that he is a tenant of a building situated at Fountain has, Mala, Panaji, in the property described in the Land Registration Office under No.1998 belonging to the respondent who is her landlord. On 12-10-1978 the respondent filed an application before the Rent Controller for the eviction of the petitioner from the leased premises on the ground that he required the same for his personal occupation and residence. The petitioner opposed the application by filing her written statement on 21-12-1978 in which she denied that the respondent was bona fidely requiring the premises for his personal occupation. However, by the impugned order dated 31-3-1989 the Additional Rent Controller allowed the petitioner's application although in its judgment an observation was made that the premises sought to be re-occupied by the said respondent had already collapsed during the pendency of the proceedings.
Aggrieved by the order of the Rent Controller the petitioner filed an appeal before the Administrative Tribunal wherein a submission was made that once the premises had collapsed the petitioner's application for eviction should have been rejected by the Rent Controller on that count alone. On 7-1-1988 the petitioner filed an affidavit before the Tribunal at its instance stating that the premises had already collapsed. On. 14-1-1988 the respondent also filed an affidavit acknowledging that the suit premises had collapsed in 1981 and it was no longer in existence. After the filing of these affidavits the Tribunal took up the matter for hearing and vide order dated 17-3-1988 dismissed the petitioner's appeal on the ground that it has become infructuous instead of saying that the very application of the respondent has been rendered infructuous as a result of collapse of the building The petitioner then approached this Court in writ petition being Writ Petition No.24/88 seeking to quash the order of the Tribunal which was allowed by judgment of this Court dated 17-3-1988 as a result whereof the matter was remanded to the Tribunal for fresh adjudication. After the appeal was restored and sent back to the Tribunal on 5-7-1989 the respondent filed an application under section 32(4) before the Tribunal saying that the petitioner has failed to deposit rents during the period of proceedings. This application was subsequently withdrawn and thereafter the appeal was disposed by the Tribunal on merits. By order dated 21-6-1990 which is impugned in this petition the Tribunal dismissed the petitioner's appeal and upheld the eviction order passed by the Rent Controller.
3. Mr. Lotlikar, learned Counsel appearing for the petitioner, after taking me through the judgments of the Administrative Tribunal dated 17-3-1988 and 21-6-1990 as well as the judgment of the High Court dated 28-2-1989 in Writ Petition No.24/88 has submitted that the impugned decision of the Tribunal is clearly in practical contempt of the aforesaid judgment of the High Court dated 28-2-1989 wherein it has been held that in view of the collapse of the suit premises the respondent's application for eviction on the ground of personal occupation had become infructuous. According to the learned Counsel the High Court has given a clear finding to the effect that the appeal should have been rejected or dismissed by the Tribunal as a result of the collapse of the building. This finding was to be respected by the Tribunal while disposing the appeal on merits. The learned Counsel urged that the Tribunal grossly misunderstood the scope of the word "merits" used in the judgment delivered by this Court and overlooked the fact that strictly speaking the said merits of the appeal had been already adjudicated by the High Court itself.
4. As against this, Mr. Thali, learned Counsel for the respondent, has contended that the limited question to be determined in this petition is to find out whether in an application moved by a landlord for eviction of the tenant on the ground of his personal occupation what would happen if in the meantime the leased premises collapse. Mr. Thali said that the answer to this question by Mr. Lotlikar appears to be that if the premises collapsed then the ground of personal occupation for the landlord does not survive any more. However, Mr. Thali contended that even if the building had collapsed the lease relationship between the tenant and the landlord would continue with all the rights and liabilities emerging therefrom till the same is determined by the landlord in accordance with the law. Hence the right of the landlord to terminate this relationship could not be said as lost or forfeited and because the original structure which was the subject-matter of the lease at the time of its execution was no more in existence, the learned Counsel submitted that if that was not the case then there was no question of the High Court having remanded the matter to the trial Court and obviously it would be impossible to accept that this remand has been done by the High Court only for the sake of academic purposes. The Tribunal therefore was not expected to act in such circumstances just as a mere rubber-stamp if the matter has been actually remanded by the High Court to be decided by the Tribunal on merits. Therefore the contention of the petitioner's learned Counsel that the merits had been already adjudicated by the High Court at the time of the order of the remand was not permissible and was bound to be rejected.
The learned Counsel then tried to explain as to how the whole proceedings took place before the matter was remanded to the Tribunal again for adjudication. In this connection it was urged that after the Rent Controller having firstly decided, on the basis of the evidence produced by the parties, that is to say, by adjudicating on merits, that the respondent's ground for personal occupation was bona fide and that the petitioner could be evicted, he has come in appeal saying that the findings of the Rent Controller regarding the respondent's bona fide need of the suit premises was neither genuine nor according to law. During the course of the appeal it was brought to the notice of the Tribunal that the premises having collapsed the appeal has become infructuous. The Tribunal accepted the respondent's contention and the appeal was thus summarily dismissed without even a proper evaluation of the evidence recorded by the parties before the Controller. The grievance of Mr. Lotlikar before this Court in the writ petition filed against such order of dismissal was that the same ground adopted by the Tribunal to reject the petitioner's appeal should have been relied upon by the Tribunal to dismiss the respondent's landlord's application for eviction. This was exactly what the High Court was inclined to accept from the arguments raised by the petitioner before it while allowing the petition against the dismissal of his appeal and remanding the case to the Tribunal for fresh adjudication and disposal of the appeal on merits.
5. There is a lot of substance in the submissions of the learned respondent's Counsel in this regard. Indeed it is a settled law that the factual and legal position is that consequent upon the collapse of the rented premises the relationship between the landlord and the tenant does not collapse also till the tenancy is not determined or terminated by the landlord. This much has been expressly recognized by this Court in the case of Krishna Laxman Yadav and others v. Narsinghrao Vithalrao Sonawane and another, , wherein it has been held, by relying on some observations of Supreme Court, that the destruction of the premises did not determine the tenancy and that if in the place of the old structure new one is erected this does not make any alteration to the legal position because the tenant would be entitled to specific performance of their rights in respect of the construction that will be put up in place of the old house which is annexed and part of the land which was let under the tenancy. Thus inspite of the destruction of the house the right of occupation is incidental to the contract of tenancy which continues to exist between the parties. By applying the ratio of this judgment which was dealing with a right of tenants to re-occupy new premises put up in the place of the old structure which had been demolished it is obvious that the landlord has also a similar right to exercise whatever rights are provided to him in the law with regard to a lease agreement irrespective of the fact that the superstructure existing at the time of the execution of the agreement has collapsed during the pendency of the eviction proceedings instituted by the landlord on the ground of personal occupation. If the tenant has a right to occupy the new premises in case the landlord reconstructs the old collapsed structure it is only proper and fair that the landlord should also be acknowledged a similar right or for that matter to show that inspite of the re-construction the need to take possession of it entirely for his personal occupation is genuine and bona fide. Mr. Thali has placed reliance on several decisions some of which appear to be pertinent to this case although others are distinguishable and not attracted and to which I need not make any reference.
My attention was drawn to the aforesaid case of Krishna Yadav, , which has reiterated the position that the landlord-tenant relationship is something which transcends the right of occupation by the landlord of the premises and subsists even if the premises are raised to the ground and are no more in existence. Thus the right of occupation is only incidental to the contract of tenancy which is deemed to continue to exist between the parties irrespective of the existence of the superstructure which was being occupied by the tenant. Therefore the tenants would be always entitled to specific performance of their rights in respect of the construction that would be put up in the place of the old construction, and the existence of the new construction is not necessary for the purpose of granting to the tenants the relief to which he is entitled under the law. My attention was also invited by the learned Counsel to the case of State of Uttar Pradesh and others v. VII, Additional District Judge and others, 1993(1) Mah. L.R. 399. This was for the purpose of showing that under the Act the land beneath the structure along with the superstructure constitutes one composite unit and although this was held in the case of enhancement of rent of a building, the Supreme Court has observed that while determining the value of the building the value of the land has to be added to the value of the structure standing thereon while assessing the market value of the building for determining the rental value. The Court has further held that the definition of "building" under the Act shows that the building thereunder means the roof, structure including the land underneath the said structure.
The learned Counsel has placed reliance also on the judgment in the case of George, J. Ovungal v. Peter, . This was a case of eviction under the Kerala Buildings (Lease and Rent Control) Act, 1965, namely, its section 11 and the question which was being considered by the Court was as to whether the destruction of leased premises would automatically cause the termination of the landlord-tenant relationship. The Court held that the destruction of a shop room leased out on rent would not automatically terminate the lease and put an end to the landlord-tenant relationship. The meaning of the word "building" includes site of the building which is integral and inseparable part of it. Without the site, the superstructure of a shop room on land cannot normally exist. Thus when a lease of a residential house or a shop-room on land is granted for occupying the same, such a lease would normally take in the site unless it is excluded either expressly or impliedly from the lease. So long as there is no total destruction of the subject-matter of the lease in the sense that the superstructure as well as the land underneath the superstructure are destroyed completely, the particular principle of automatic termination of the tenancy of the shop-room in favour of the plaintiff cannot be applied. Even after the destruction of the super-structure of the shop-room, the tenant is entitled to continue in possession of the land upon which the superstructure of the shop-room stood before its destruction; as part of the property demised subject to all the rights and liabilities as a tenant, since the landlord-tenant relationship between the plaintiff and defendant continues to exist. The tenant may be bound to pay the rent under the lease. He may be entitled to exercise an option to give up tenancy under the Transfer of Property Act. So also it may be open to the landlord to claim rent or exercise any other right as landlord of the property including a right to terminate the lease with reference to the part of the demised property even now remaining, namely, the land which formed the floor of the shop-room.
The learned Counsel has also drawn my attention to the case of Ramniklal Pitambardas Mehta v. Indraman Amratlal Sheth, , wherein the Supreme Court has observed in the context of an application for termination of the lease on the ground of bona fide need of the premises and for the purpose of demolishing and re-building it before occupation that occupation of the premises in Clause (g) of section 13(1) of Bombay Rents, Hotel and Lodging House Rates Control Act does not necessarily refer to occupation as residence. The owner can occupy a place by making use of it in any manner. If the landlord on getting possession starts the work of demolition, occupation under the clause includes occupation for demolition to make it fit for residence.
In another decision relied by Mr. Thali in the case of Raghaba Chandra Das v. Bipin Behari Mohapatra and others, , a Full Bench of that High Court has held that for the purpose of eviction on the ground of personal occupation the necessity for personal occupation could be of vacant land after demolishing the tenanted premises. The Court observed that demolition of a house can be ordered also when the landlord's requirement is only of the vacant site on which the tenanted house stands. Such a necessity is covered within the four corners of the expression "personal occupation". The landlord may require the vacant land for other purposes, namely, for having a garage, making addition to the existing building, providing accommodation to his growing family, providing a motorable road for his adjacent building and for other amenities depending on the facts of each case. But the landlord cannot be allowed to seek eviction for the purpose of demolishing the building to enable him to re-construct another one only for augmenting his income, as personal requirement as a pre-condition.
6. It thus follows and as such I have no difficulty in so holding in the light of the ratio of the decisions mentioned above that the right of the landlord who asked for eviction of his tenant and also the right of the tenant to re-occupy the premises under section 30 or even the right of the tenant to continue to occupy the premises flow always from the lease relationship and once the relationship continues irrespective of the fact the premises have collapsed or ceased to exist then all the rights are deemed to continue to both the landlord and the tenant. Thus the collapse of the building leased does not affect this relationship unless the same is determined in accordance with law. Hence if a landlord files an application for eviction of the tenant and in the meantime the building collapses that by itself does not defeat the landlord's right to get the eviction of the tenant from the demised premises adjudicated on its merits in view of the subsistence of the relationship once we have to bear in mind that the actual and factual occupation of the leased premises is only incidental to the existence of a lease.
7. It was then urged by Mr. Lotlikar that the respondent could not have argued before the Rent Controller and for that matter before the Tribunal as well a case which he had not actually pleaded in the original application. The respondent having filed an application that he required the suit house which means the house which was in existence at the time the application was moved, for his personal occupation, it was not open for the landlord when that house had collapsed to argue and say that the new structure which would eventually be erected in its place was also required by him for his personal occupation. According to the learned Counsel the ground of personal occupation is to be ascertained in relation to a specific building or premises which is the subject-matter of the lease relationship when an application for re-occupation of the premises is filed by the landlord. Undoubtedly, the learned Counsel conceded, the respondent could have come with a different case and pleaded that he wanted to demolish the old structure and put up a new one for the purpose of his occupation. But the learned Counsel insisted that the landlord should have pleaded this ground in that case and made a case for that purpose. The learned Counsel has attempted to explain as to why the High Court in the first writ petition instituted by the petitioner against the order of the dismissal of the appeal had not directly interfered with the order of the Controller inspite of having the knowledge of the non-existence of the suit premises consequent upon its collapse even prior to the passing of this judgment, because, according to the learned Counsel, the limited issue before the High Court in that writ petition was whether the order of the dismissal of the appeal by the Tribunal has become infructuous and was maintainable or not. Thus, the learned Counsel urged, a landlord having not come before the Court with a specific case of demolition and re-construction for the purpose of his personal occupation, no such case could be considered by the Controller after the collapse of the old structure. The learned Counsel submitted that the landlord could not in such circumstances plead one case and seek to prove another. In the present case, it was urged by the learned Counsel, there was no evidence at all to suggest that the landlord wanted to re-construct the premises. Therefore in the context of the application filed by the respondent, as it stands, collapse of the premises amounts to the total destruction of the subject-matter of the lease agreement. Hence the respondent's application could not have been granted.
It was contended that in the circumstances the least that the Tribunal ought to have done in view of the decision of the High Court in Writ Petition No. 24 of 1988, which has preceded the new impugned order of the Tribunal, was to take into consideration the impact of the collapse of the premises on the so-called need of the landlord in respect of the same premises. The Rent Controller while taking notice of this fact has, however, not considered the relevancy of this circumstance to assess the bona fide need of the landlord to use the premises for his personal occupation. In the context of the new development of its physical collapse and destruction which was within his knowledge and had occurred very much prior to the disposal of the respondent's application. In this regard the learned Counsel has made a grievance that if the Rent Controller could be forgiven for this lapse on his part in overlooking this important aspect of the physical destruction of the premises from which the petitioner was sought to be evicted, the Tribunal could never be condoned because it had before it the benefit of the order of the Controller and inspite of that there was not even a mention of the collapse of the building and the consequence which this fact might bring to the very maintainability of the respondent's application before the Controller. It was further urged that the need of the landlord was to be adjudged always with regard to the point of time when the final order of eviction was required to be passed. It was not to be governed by the state of things existing on the date of the application. Thus all subsequent events had to be borne in mind either by the Rent Controller or by the Tribunal. An order passed without taking into consideration any of these facts which could not be described as irrelevant would fatally vitiate the order It was also submitted by the learned Counsel that the fact of the landlord having come into possession of another premises for his personal occupation during the pendency of his application has certainly rendered the application not maintainable unless he had applied for an additional accommodation on the ground that what he was seeking to obtain by filing the original application was insufficient for his needs as well as for the needs of his family. That apart, the learned Counsel urged, even assuming that the application would continue to be maintained the only concern of the Controller and for that matter of the Tribunal should have been to examine the effect of the subsequent development of the collapse of the building vis-a-vis the alleged need of the landlord in respect of the suit premises which were no more, in the sense that the authorities concerned were liable to address themselves to the question as to whether the portion already acquired by him from other tenant of the same building would satisfy or not the need of the landlord in which case the eviction of the petitioner in respect of the portion occupied by him would not become necessary. It was also contended that one more aspect required to be considered in this case and this was that the respondent landlord who had succeeded in recovering some other premises on the same ground of his personal occupation and obtained its possession, however, has not even cared to re-occupy it and instead had allowed the premises to collapse without taking any steps to avoid its destruction. This, according to the learned Counsel, would prima facie show that there was no bona fide need of the premises for the personal and actual occupation of the same by the landlord who was bound to occupy it within one month from taking its possession or take during the prescribed time the necessary steps to make it in a condition of being occupied.
The learned Counsel has also placed reliance in support of his submissions on certain decisions. Thus he invited my attention to the case of Abdul Samad Makhadum Baksh Shaikh v. Sudha Akant Parakhe, 1982 Mh.L.J. 647. This was for the purpose of showing that a plaintiff seeking possession of the premises on the ground of personal occupation, (in the instant case was under section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, similar to our section 23(1)(a)) must place before the Court all necessary details which are required for granting relief. A mere ipse dixit of the landlord that he requires the accommodation for his personal accommodation is not enough. Unless the landlord gives such details, the tenant cannot be expected to meet the case of the landlord. In the absence of such comparative data and material being available indicating as to how the landlord requires the premises bona fide for his personal occupation, the tenant in meeting the case of the landlord would be greatly prejudiced and it would permit the landlord to make out a case at the time of trial in any manner he liked, and the tenant would have no opportunity and occasion to meet such a case which is sprung in his face for the first time.
My attention was also drawn by the learned Counsel to the case of Pasupuleti Venkateswarlu v. The Motor & General Traders, . This was for the purpose of showing that during the pendency of proceedings under the Rent Control legislation by the landlord for permission to evict the tenants, subsequent event disabling the landlord from seeking eviction is bound to be taken note of while disposing the proceeding. The Supreme Court observed in this regard that where, during the pendency of a proceeding under Rent Control legislation by the landlord for permission to evict the tenants, a subsequent event in the facts of the case takes place which has a material bearing on the landlord's right to evict, the approach of the High Court in revision, in taking cognizance of the new development cannot be said to be wrong or illegal.
The learned Counsel has also cited a decision in the case of Bhagwant Vishnu Purandare, since deceased by his heirs v. Baldevdas Chhaganlal and others, . This was for the purpose of showing that any relief in case of eviction proceedings is claimed as alternative relief the same cannot be allowed. In a case under the Bombay Act if eviction was sought under sections 13(1)(g) and 13(1)(l) and the relief under section 13(1)(g) was claimed as alternative relief the same could not be allowed in a case not covered by provisions of section 13(1)(1) when no particulars to prove the case under section 13(1)(g) were furnished.
The last ruling cited by the learned Counsel was in the case of P. Orr and Sons (P) Ltd. v. Associated Publishers (Madras) Limited, . This was a case dealing with the demolition and re-construction of a building and the bona fide requirement of the landlord and the Court was examining the question as to the meaning of the word "immediate purpose". In that case the Court observed that the requirement for demolition can be regarded as genuine and bona fide only when the condition of the existing building is such that a reasonable and prudent landlord would regard it to be uneconomical to repair it rather than demolish it and reconstruct a new building. Various circumstances such as the capacity of the landlord, the size of the existing building, the demand for additional space, the condition of the place, the economic advantage and other factors justifying investment of capital on reconstruction may be taken into account by the concerned authority in considering an application for recovery. Even where the condition of the building demands demolition, it is possible that, in view of the landlord's lack of capacity to rebuild or the futility of reconstruction by reason of the condition of the time and place, the authority may regard, without prejudice to whatever power there is to enforce repairs or demolition in certain circumstances, that the landlord's application lacks bona fide. The authority has to take into account the totality of the circumstances.
8. I have considered all these rulings relied by the learned Counsel for the petitioner and I am at a loss to appreciate in what context these would help the petitioner's case. Admittedly all of them had been passed in the peculiar facts of each case and are therefore distinguishable. So far the case of Abdul Shaikh, 1982 Mh.L.J. 647, there cannot be any dispute that a landlord seeking possession of the premises had to give details required for granting the relief in order to establish the bona fide of his occupation. But this is a case dealing with the merits of the application itself and it does not concern with the point placed for our determination which is to find out whether the right of the landlord to terminate the lease of the premises on the ground of his personal occupation ceased to exist during the pendency of his application for eviction. The case of Pasupuleti Venkateswarlu, , appears also to take the petitioner's case nowhere. The Supreme Court in the said ruling has emphasized that the Courts are bound to take into consideration new developments which have a material bearing on the landlord's right to evict. There cannot be any dispute on this proposition although the Court has acknowledged that it is the basic rule of jurisprudence that the right of relief must be adjudged as to exist on the date of institution of legal proceedings and a fact arising after the lease becomes relevant only when it has a fundamental impact on the right to relief or in the manner of moulding it. The Court has also in such circumstances alerted that for making the right or remedy claimed by the party just and meaningful and also legal and factual in accord with the current realities the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed . Similar appears to be the position in Bhagwant Vishnu Purandare's, case and P. Orr and Sons', case . While the first one refers to the fact that the landlord is required to give in an application for eviction all the details regarding his bona fides need to occupy the suit premises, the second has examined the question of the meaning of the expression "immediate purpose" with regard to the bona fide requirement of the landlord to demolish and re-construct the building leased for the purpose of its use and personal occupation. Thus, none of these authorities appear to serve any purpose in the adjudication of the real issue in controversy of this case.
9. Mr. Thali while joining issue with the submissions of Mr. Lotlikar has, however, contended that there are two aspects which have to be considered being (1) whether an application for eviction on the ground of personal occupation is maintainable after the collapse of the premises sought to be occupied and (2) whether in the facts and circumstances of the case the respondent's application ought not to have been granted on merits. It was submitted by the learned Counsel that the argument of Mr. Lotlikar appears to be based on the premises that at the time of passing of the eviction order of the tenant on the ground of the need of personal occupation of the leased premises by the landlord, the physical structure of the very premises which is the subject-matter of the lease should be in existence without which no application for eviction could be granted. It was urged in this regard that if a right of the tenant to re-occupy the premises which have collapsed after its construction certainly survives, the right of the landlord to evict the tenant on the ground of his need of the premises for personal occupation should also survive. Hence the petitioner's application must continue to be maintainable because it is meant primarily to determine the bond of tenancy. In such a situation the question of maintainability of the application for eviction cannot be disputed. The learned Counsel further submitted that survival of the application is independent from the survival of the premises. It may happen that the landlord may fail to prove his need to evict the tenant on the merits. This is a different aspect of the matter and the real question is as to whether the very application for termination of the lease on the ground of personal occupation of the landlord is still tenable inspite of the collapse of the premises which are required to be vacated by the tenant for the beneficial use of the landlord. It was also contended that the petitioner has a grievance that the respondent did not occupy the portion of the house already vacated by the other tenant in respect of which similar application has been moved by him. The other grievance of the petitioner is that the Rent Controller and/or the Tribunal did not also consider the impact of the collapse of the building during the pendency of his application on the very fate of the said application. On the question of the respondent-landlord having not been able to satisfy the legal requirement to establish his genuine need of the premises for his personal occupation it was urged that this question of bona fide requirement of the landlord is purely a question of fact to be adjudicated on the basis of evidence and the circumstances made out by the landlord. The learned Counsel further submitted that any findings of fact are open under Article 227 of the Constitution only if these findings are to be held as perverse and causing manifest injustice to others. Even if there is an error apparent on the face of record or an error of law which does not cause injustice this cannot be a ground for interference under Article 227 or even 226 of the Constitution. Thus, unless it was to be held that the view taken by both the Courts below was absolutely an impossible view or based on no evidence at all being therefore perverse and causing manifest injustice to the tenant only in such case it would be permissible to interfere with the findings given in this regard. The learned Counsel submitted that the evidence on record clearly points out that the respondent has been able to successfully discharge the burden cast upon him to prove his bona fide requirement of the premises for his personal use and occupation.
My attention was invited to the respondent's application for eviction and the petitioner's written reply to the same. In his application dated 12-10-1978 the respondent had clearly averred that except the suit house he has no other house in the city of Panaji or anywhere else. The suit house is an old house requiring repairs. There is also an averment to say that the respondent for the time being is living with his father and the house occupied by his parents is also not enough to accommodate all the members of his family. He therefore, stated that the suit house is required for his personal occupation and the residence forthwith. The petitioner in his reply to this application has admitted as substantially correct the respondent's contention that the house requires repairs although alleging that the repairs had not been deliberately carried out by him. There is also admission on the part of the petitioner that the respondent is presently residing with his father although he disputes that the premises occupied by the applicant are not sufficient for his comfortable stay. The learned Counsel has taken me also through the evidence on record on behalf of the respondent and his witnesses which, in my view, seems to have substantially corroborated the plea made by the respondent with regard to his bona fide need of the premises for his personal occupation. In this situation I am compelled to hold that the facts and circumstances of this case suggest that there is indeed a very valid point in the submissions of the learned Counsel for the respondent which deserve acceptance. On the bare assessment of the facts on record I am satisfied that the Rent Controller seems to be right in coming to a clear finding that there was a bona fide requirement of the landlord to occupy the premises which he had sought to recover from the petitioner. In his application itself the respondent has stated that he had no other house to live and therefore the rented premises from which the petitioner was sought to be evicted required repairs. None of these facts were denied by the petitioner. It has also come in evidence that the portion of the house occupied by the other tenant was not only insufficient in area to meet the respondent's requirement but he is also lacking sufficient facilities and amenities for a comfortable living of the landlord and his family members. It is also the respondent's case that the premises required repairs to be carried out for making it habitable. All these facts and circumstances were manifestly considered by both the Rent Controller when he took the view that his need was genuine which conclusion was also upheld by the Tribunal. In the circumstances it cannot be said that the findings arrived at by both the Courts below are perverse, wrong and illegal or not based on evidence. Being so this Court is not required to re-appreciate this evidence and arrive at different findings or take a different view of the matter in the exercise of its supervisory jurisdiction under Article 227 of the Constitution. Therefore even if other view was possible no interference would be permissible unless it was shown that manifest injustice had been caused to the petitioner.
In the case of K.A. Anthappai v. C. Ahammed, , the Supreme Court while examining the question of bona fide need in the matter of eviction on the ground of personal occupation under sections 11(3) and (20) of the Kerala Buildings (Lease and Rent Control) Act, 1965 has observed that the question whether the building is required bona fide by the landlord for his own residence is primarily one of fact and the finding recorded by the Appellate Authority after considering the evidence on record could not be interfered with the exercise of revisional jurisdiction. Inspite of the fact that there was no specific pleading of tenant that the claim of landlord was false the Appellate Authority has examined whether the said claim of the landlord was false and after considering the evidence adduced by both the parties, the Appellate Authority had found that the claim of the landlord was not false. Therefore interference with the findings of the Appellate Authority by the High Court would not be proper. The Supreme Court has also held that in the matter of eviction the claim of the landlord that he needs the building bona fide for personal occupation cannot be negatived on the ground that the building requires repairs and alterations before the landlord occupies the same.
Further from the date of the respondent's application for eviction which is dated 12-10-1978 and the date of the reply or the written statement of the other tenant to the application for eviction moved against him on the same ground, which is dated 3-1-1979, it is seen that the respondent required the whole house for his personal use and occupation and therefore two applications were moved contemporaneously against both the tenants on the same ground. Therefore the submission of Mr. Lotlikar that the fact of the respondent having secured the recovery of the premises occupied by the other tenant would render his application moved against the petitioner not maintainable does not seem to be either sound or a well-conceived proposition. This Court has already held that under section 2(c) and section 23 of the Act there is no restriction on the landlord to recover premises in occupation of more than one tenant when the landlord intends to occupy the same after demolition and construction. It is therefore permissible for the landlord to apply for eviction on the ground of personal occupation as well as for demolition of the existing building and erection of another one. The word "occupation" includes a recovery from the tenant. The wording of "demolition of the existing premises" will thus come within the meaning of section 27 of the Act. It thus stands to reason that if the landlord can seek the eviction of the tenant on the ground of personal occupation after the demolition and construction of the leased premises there should be no restriction for the landlord to obtain or to prosecute his application for eviction of the tenant on the ground of personal occupation even if the leased premises had collapsed during the pendency of the application. As it was already said above the lease relationship being deemed to continue and subsist even after the destruction of the demised structure and bearing in mind that the occupation of the leased premises is only an incidental aspect of agreement of lease, the question of the application for eviction of tenant on the ground of personal occupation becoming infructuous and untenable consequent upon the collapse of the premises does not appear to arise at all.
In the case of Dr. Mulla Malhandas Khemani v. Avelino Nicolan Gregorio D'Souza and others, 1992(2) R.C.J. 144, also in a matter of eviction under section 23(1)(a)(i) and the requirement of the landlord for personal occupation as well as of his family members this Court has held that the landlord is not supposed to disclose to the Controller the fact of his owning more buildings or premises which are leased to other tenants. What he is expected to disclose is only the relevant facts in respect of the particular building chosen by him for his personal occupation and satisfy the Controller that he requires the same for his personal occupation as well as of the members of his family. Besides, as rightly pointed by Mr. Thali, the petitioner did not raise before the Rent Controller or the Tribunal the question of the subsequent event either with regard to the vacation of other part of the premises by the other tenant or even in respect of the collapse of the building. On the contrary it was the respondent himself who has brought on record the other tenant's willingness to vacate the premises and also the fact that these premises were lacking in amenities to make it habitable and hence repairs were required. All these events seem to have been considered by the Rent Controller and for that matter by the Tribunal as well in the light of the need of the premises required to be re-constructed consequent upon its collapse.
This being the position I am of the view that in the facts and circumstances of the case the respondent's application could have been considered also on the basis of evidence that the respondent has brought on record to meet the purpose of establishing the ground of the landlord's need to use the suit premises for his personal occupation. Hence, in my view, the eventual re-construction of the leased premises consequent upon its collapse can also be held as relevant consideration while ascertaining the requirement of personal occupation claimed by the landlord.
In the result I find no merit in this petition which therefore deserves to be rejected. The judgment and order of the Administrative Tribunal dated 21st June, 1990, which has upheld the order of the Rent Controller, is hereby affirmed. The writ petition is dismissed. Rule is accordingly discharged with however no order as to costs.