Bombay High Court
Shri Gopalkrishna Deosthan Public ... vs Padmakar S/O Raghunathji Dighe on 26 February, 2020
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
911.wp.1381.18 (1) Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.1381 OF 2018
1. Shri Gopalkrishna Deosthan
Public Trust,
Bearing Registration No.E-827 (Nagpur)
having its registered office at Chitnavis
Wada, Chitnavispura, Nagpur - 440 002.
2. Shri Milind w/o Gangadhar Chitnavis,
Managing Trustee of Plaintiff No.1
Aged about 57 years,
Occupation - Music Director,
R/o Hiranandani Complex, Powai,
Mumbai.
3. Smt. Vijayamala w/o Hemendra Junnarkar
Aged about 86 years,
Occupation : Housewife,
R/o "Raj Jyot", Raj Laxmi Marg,
Civil Lines, Nagpur.
4. Mrs. Rajlaxmi w/o Gangadhar Chitnavis,
Trustee,
Aged about 74 years,
Occupation - Housewife,
R/o Civil Lines, Nagpur.
5. Ms. Sheila w/o Narayan Ghatate,
Aged about 71 years,
Occupation - Social worker,
R/o Civil Lines, Nagpur.
6. Mr. Vilas s/o Anandrao Kale,
Aged about 64 years,
Occupation - Business,
R/o Civil Lines, Nagpur.
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911.wp.1381.18 (2) Judgment
7. Mr. Sandeep s/o Hemendra Junnarkar,
Trustee,
Aged about 65 years,
Occupation - Solicitor,
R/o Mumbai.
8. Ms. Neeta w/o Vilas Kale,
Aged about 64 years,
Occupation - Business,
R/o Civil Lines, Nagpur.
9. Ms. Avantika d/o Gangadhar Chitnavis
Aged about 51 years,
Occupation - Architect,
R/o 309, Sir Gangadhar Chitnavis
Marg, Civil Lines, Nagpur.
10. Hrishikesh S/o Rajaram Dhanwatey,
Aged about 50 years,
Occupation - Chartered Accountant,
R/o Civil Lines, Nagpur.
11. Mrs. Suhasini wd/o Mahadav Pradhan,
Aged about 77 years,
Occupation - Housewife,
R/o Cuffe Parade, Mumbai.
12. Ms. Ashlesha w/o Milind Chitnavis
Aged about 51 years,
Occupation - Service,
R/o Hiranandani Complex,
Powai, Mumbai.
Nos.1 to 12 through their Constituted
Attorney, Ms. Avantika D/o Gangadhar
Chitnavis, Aged 51 years,
R/o 309, Chitnavis Marg, Civil Lines,
Nagpur. .. PETITIONERS
(Original Plffs.)
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911.wp.1381.18 (3) Judgment
.....VERSUS.....
Padmakar S/o Raghunathji Dighe
Aged about 71 years,
Occupation - Private,
R/o House No.966,
Gendaghar Chawl, Chitnavispura,
Zenda Chowk, Nagpur. .. RESPONDENT
(Original Deft)
Shri S. L. Kotwal, Advocate for petitioners.
Shri M. A. Randive, Advocate for respondent.
CORAM : AVINASH G. GHAROTE, J.
DATE : 26TH FEBRUARY, 2020.
ORAL JUDGMENT
1. Heard. Rule. Rule made returnable forthwith. The matter is heard finally with the consent of the learned counsel for the parties.
2. As per order dated 06.12.2019, the matter is listed today for final disposal at the admission stage itself. I have heard Shri Kotwal, learned counsel for the petitioners and Shri Randive, learned counsel for the respondent.
3. The suit property belongs to the plaintiff - trust which is in occupation of the defendant as of present as a tenant. The trust being in need of the premises, for its office purposes as well as for accommodating its employees, suit for eviction was filed. Though the suit was initially filed through the plaintiff no.4, who is one of ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 02:14:48 :::
911.wp.1381.18 (4) Judgment the trustees, the same has been prosecuted through PW-1, who was given the power of attorney by the trustees which is at Exh.36. It is the PW-1 who has entered in the witness box on behalf of the plaintiff - trust and its trustees and examined herself at Exh.26. Another witness was examined on behalf of the plaintiff - trust as PW-2, who was the Accountant, employed with the trust who deposed that she was assured of residential accommodation at the time of her appointment, however, since the properties of the trust are occupied by tenants she has been unable to get accommodation.
4. The defendant had filed a written statement on record which as pointed out did not bear his signature at all nor was there affidavit sworn to the said written statement. The defendant, examined himself, and opposed the eviction sought.
5. The learned Trial Court by its judgment and decree dated 27.02.2013, permitted eviction of the defendant, under Section 16(1)(g) of the Maharashtra Rent Control Act and directed handing over of vacant possession of the suit premises, to the plaintiff. The learned Trial Court, for granting the decree of eviction placed reliance upon the testimony of PW-1 and PW-2 and held that the premises were reasonably required for fulfilling the object of the trust as well as accommodating the employees. It further held that in so far as, the provisions of 16(1)(g) of the Maharashtra Rent Control Act are concerned, in relation to the requirement by a Public Trust, the rigor of Section 16(1)(g), as normally applicable, is not available to the defendant. It held that in cases where ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 02:14:48 :::
911.wp.1381.18 (5) Judgment requirement is pleaded by trust, the standard of pleading and proof, is different, considering the law as laid down in Kishinchand Marjimal Vs. Bai Kalavati AIR 1973 Bombay 46. In so far as, the issue comparative hardship is concerned, the Trial Court found that the burden for the same was on the defendant - tenant to prove that the comparative hardship which would be suffered by him would be more than what would be suffered by the plaintiff - landlord, if eviction is not granted. The learned Trial Court in this context, found that the entire examination-in-chief of the defendant was silent in this regard. Not only this, even in the evidence of the plaintiffs witnesses there was not even a suggestion given regarding any plea of comparative hardship. In so far as, the plea raised before the Trial Court that the suit premises was in a dilapidated condition, the said plea was turned down by the Trial Court, in absence of proof of the same. Thus, applying the dictum in Kishinchand Marjimal (supra) the Trial Court granted a decree for eviction.
6. In appeal by the tenant, the learned Appellate Court, set aside the judgment of the Trial Court and dismissed the suit for eviction as filed by the plaintiff. The Appellate Court in Para 14 of its judgment, held that though the plaint was signed by the plaintiff no.4, who was the trustee she did not enter into the witness box. In so far as the evidence by PW-1 was concerned, the First Appellate Court found that the PW-1, had come into the trust in the year 1994 and since the tenancy was of the year 1945, her evidence, was of no use. In so far as the evidence of PW-2 was concerned, the ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 02:14:48 :::
911.wp.1381.18 (6) Judgment Appellate Court found that her evidence was not relevant. The Appellate Court further found that the trust was having various immovable properties, and the employees could have been adjusted in any of these properties and so also the office could have been opened in any of them. The Appellate Court further found that since the defendants was residing in the suit premises since last 68 years, the comparative hardship on eviction would be with him.
7. Mr. Kotwal, learned counsel for the plaintiff, attacks the judgment of the Appellate Court, and contends that the standard of pleading of proof, for establishing a need for eviction, in so far as a trust is concerned, is completely different, from the one, required to be pleaded and established, in case of a landlord and tenant. He invites my attention to the language of Section 16(1)(g) of the Maharashtra Rent Control Act, to contend that the rigor of law attached to the first part is relaxed is so far as property is owned by the trust are concerned. He specifically places emphasis on the use of the words 'or where the landlord is a trustee of a public charitable trust that the premises are required for the occupation of the trust;'. In that context he place his reliance upon the judgment in the case of Bandu Ravji Nikam Vs. Acharyaratna Deshbushan Shikshan Prasarak Mandal, Kolhapur 2003 (3) Mh.L.J. 472 and specifically Paras 4, 7 and 9. He further placed reliance upon M/s. Mohanlal Kisanlal Agrawal & Ors. Vs. Shri Ajitnath Jain Shetambar Mandir Trust & Ors. 2011 (2) ALL MR 198 and specifically Para 16 thereof. In so far as the question of evidence being laid by the power of attorney of the plaintiffs - trust is concerned, he places reliance ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 02:14:48 :::
911.wp.1381.18 (7) Judgment upon Man Kaur (Dead) by Lrs. Vs. Hartar Singh Sangha 2010 ALL SCR 2511 and specifically Para 12(g) to contend, that it covers the situation, as extant in the present case. He therefore submits, that the reasoning given by the First Appellate Court for reversing the judgment and decree for eviction as passed by the learned Trial Court cannot be sustained on the touch stone of law as laid down in the above judgments which are squarely applicable to the matter in hand. In so far as the issue of comparative hardship is concerned, he contends that once the second part of Section 16(1)(g) of the Maharashtra Rent Control Act is applicable to the proceedings for eviction of tenant from trust properties, the mandate of Section 16(2) of the Maharashtra Rent Control Act will have to be read and understood in the contextual background, of the later portion of clause 16(1)(g) of the Maharashtra Rent Control Act. He therefore, submits that on this count also the judgment and decree as passed by the Appellate Court is incorrect and is required to be set aside and that of the Trial Court restored.
8. Mr. Randive, learned counsel for the respondent - defendant submits that since the trustees, and specifically plaintiff no.4 did not enter into the witness box, there is no evidence whatsoever available, in so far as the plaintiff is concerned. He submits that the PW-1, is not the person who has filed the suit and in fact, though the trust was created in 1968, the plaintiff came to be employed by the trust only in the year 1992 for handling legal affairs and therefore was incompetent to depose on behalf of the trust. He places reliance upon Janki Vashdeo Bhojwani and another ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 02:14:48 :::
911.wp.1381.18 (8) Judgment Vs. Indusind Bank Ltd., and others AIR 2005 SC 439 and specifically Paras 12 to 14 and 22. He further contends that the Schedule - 1 filed on record demonstrates that there were multiple properties belonging to the trust and the office of the trust, as well as the employees could have been accommodated in any one of them. He therefore, submits that the judgment of the First Appellate Court, is correct and proper and therefore needs to be sustained.
9. I have bestowed my anxious consideration to the rival consideration advanced by the parties and perused the record with their assistance. A copy of the Schedule - 1 as filed before the Trial Court has also been made available for my perusal.
10. The provisions of Section 16(1)(g) of the Maharashtra Rent Control Act, read as under :
"16. When landlord may recover possession.
(1) Notwithstanding anything contained in this Act but subject to the provisions of section 25, a landlord shall be entitled to recover possession of any premises if the court is satisfied -
(a)....
(b).....
(c) .....
(d) .....
(e) .....
(f) ......
(g) that the premises are reasonably and bona fide ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 02:14:48 :::
911.wp.1381.18 (9) Judgment required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust; or "
(emphasis supplied)
11. The provisions of Section 16(1)(g) of the Maharashtra Rent Control Act are similar in nature to the provision of Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which came for consideration before this Court in the case of Bandu Ravji Nikam (supra) where it has been held as follows:
"4. Having considered the rival submissions, I shall first deal with the plea that there is no pleading whatsoever with regard to the purpose of requirement of the respondent trust in the plaint. As rightly contended by the respondent, since the respondent is a public charitable trust, the requirement of pleading as well as proof to establish the ground under section 13(1)(g) of the Act would be different than the one required by any other landlord which is not a public charitable trust. This can be spelt out from the plain language of section 13(1)(g) of the Act which reads thus:
"13. When landlord may recover possession - (1) Notwithstanding anything contained in this Act, a landlord shall be entitled to recover possession of any premises if the Court is satisfied -::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 02:14:48 :::
911.wp.1381.18 (10) Judgment
(g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of public charitable trust that the premises are required for occupation for the purposes of the trust; or (emphasis supplied) On plain language of this provision, when the landlord is a public charitable trust, what is required to be pleaded and proved so as to succeed on this ground is only that the premises are required for occupation for the purposes of the trust and nothing more. Our High Court in the case of Kishinchand Marjimal and ors. vs. Bai Kalavati and ors.
reported in 1972 Mh.L.J.822 (Para 7) = AIR 1973 Bom 46 (Para 21) has held thus:
"The second contention of Mr. Chitale is that the finding of the two Courts that the trustees require the premises for their use is contrary to law as they have not recorded a clear finding that the trustees reasonably and bona fide require the premises. This submission is also not tenable because in amending section 13(1)(g), if the Legislature intended that the requirement of the trustees should also be proved to be bona fide and reasonable they would have stated so. Instead they have merely used the words "or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust". It is an alternative ground ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 02:14:48 :::
911.wp.1381.18 (11) Judgment in respect of premises belonging to public charitable trustees added to the ground which originally stood in clause (g) of section 13(1), by Bombay Act 61 of 1953 to advance the cause of public charity by not allowing it to suffer for want of accommodation. The ground merely required the trustees to establish that there is some requirement importing an element of necessity which compels them to file a suit for eviction. Such a requirement has adequately established in the facts and circumstances of the present case. I do not think that anything more was required by law. The two Courts below are therefore, right in holding that the trustees satisfied the requirement of section 13(1)
(g)."
12. The said provision, came for further consideration of this Court in M/s. Mohanlal Kisanlal Agrawal & Ors. (supra) wherein it has been held thus:
"16. Provisions of Bombay Rent, Hotel and Lodging Houses Rates (Control) Act contains an identical provision like present Section 16[1][g] of the Maharashtra Rent Control Act. That provisions is Section 13[1][g]. Said provision is considered in judgment in case of Bandu Ravji Nikam Vs. Acharyaratna Deshbhushan Shikshan Prasarak Mandal, Kolhapur [2003(1) ALL MR 198] (supra), by this Court in the light of its earlier judgment reported ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 02:14:48 :::
911.wp.1381.18 (12) Judgment at AIR 1973 Bombay 46 - Kishinchand Murjimal and others Vs. Bai Kalavati and others. It is found that being Public Trust, requirement of pleading as well as proof to establish the ground under section 13[1][g] of the Bombay Act is different than one required to be shouldered by any other landlord. The distinction between two parts of Section 13[1][g] is noted for said purpose. Section 16[1][g] of the Maharashtra Rent Control Act, 1999 is pari-materia and that discussion is also material for present purpose. This Court in 1973 judgment holds that if the Legislature intended that the requirement of the trustees should also be proved to be bona fide and reasonable they would have stated so. Instead they have merely used the words, "or where the landlord is trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust". It is an alternative ground in respect of premises belonging to public charitable trusts added to the ground which originally stood in Clause (g) of Section 13(1), by Bombay Act 61 of 1953 to advance the cause of public charity by not allowing it to suffer for want of accommodation. The ground merely requires the trustees to establish that there is some requirement importing an element of necessity which compels them to file a suit for eviction. This logic applies here also & the contention that rigorous standards required ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 02:14:48 :::
911.wp.1381.18 (13) Judgment to be applied to a case of private landlord while examining his bonafide need must also apply to public trust like present respondent no.1, therefore, cannot be accepted. I do not find anything wrong with the concurrent consideration even in this respect by the Appellate Court and Trial Court".
13. It is thus apparent, that in so far as the properties held by the public trust is concerned, the requirement of pleading as well as proof to establish the ground under Section 13(1)(g) of the Act would be different than the one required by any other landlord, which is not a public charitable trust. This being the position, the normal standards clearly would be inapplicable for proceedings for eviction of tenants from properties belonging to a public charitable trust. It is not in dispute that the plaintiff no.1 is a public charitable trust and is so registered with the office of the Charity Commissioner, Nagpur under the provisions of the Maharashtra Public Trusts Act. That being the position, what is required to be considered is whether there a pleading in the plaint regarding the requirement of the property, for the purposes of the trust and the supportive proof. In this context, a perusal of the plaint would demonstrate that in Para 4 thereof, it has been stated, that the plaintiff trust has insufficient place to carry out its activities and it is therefore necessary, that the premises in occupation of the defendant as a tenant, need to be vacated, for the purposes of the offices of the trust as well as for accommodating the employees of the trust. It is not in dispute that the proceedings for eviction of the ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 02:14:48 :::
911.wp.1381.18 (14) Judgment occupants / tenants in respect of the other blocks, in the same property, have been initiated and are pending at various stages. This averment in the plaint, is supported by the evidence of PW-1 which is reflected by perusal of Para 5 of her affidavit. A perusal of the cross-examination, does not indicate anything contrary brought on record. This plea is further supported by the evidence of PW-2 who has deposed that the plaintiff trust had assured her of providing accommodation in the course of her employment.
14. The contention of the learned counsel for the respondent that the evidence of PW-2 cannot be taken into consideration, as found by the Appellate Court, as the tenancy of the defendant was of the year 1968 and since the PW-1 had come to be associated with the plaintiff no.1 trust in the year 1992, she being unaware of the position prior 1992, her evidence was unworthy of belief, is clearly without any substance, for the reason that in the case of a trust or for that matter, in the case of any institution, the evidence can always be led on the basis of the record available and maintained by the trust / institution. This is not a case, in which the bonafide need of the landlord is personal to the landlord, rather on the other hand, the need is of the institution of the trust, in light of which, the reliance placed by the learned counsel for the defendant on Janki Vashdeo Bhojwani (Supra), is clearly misconceived, for the reason, that in Janki Vashdeo Bhojwani (supra), the plea which was under
consideration was as to whether the appellants therein were co- owners of the immovable property as stated therein, in which case the evidence of the person raising the plea, was material. In the ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 02:14:48 :::
911.wp.1381.18 (15) Judgment instant case, the plaintiff no.1 being an institution, it was permissible for the plaintiff no.1, to prove its need either by examining a trustee, or a power of attorney. The judgment of the Hon'ble Apex in Man Kaur (Dead) by Lrs. (supra) specifically Para 12(g), in fact supports such a proposition, as it has come on record, that the PW-1, has been associated with the plaintiff no.1 since 1992, and has been handling all the legal affairs of the plaintiff no.1, and is therefore aware of the factual position. In fact the knowledge of the Attorney of events at the time of raising of the plea for vacation in material and not of the time when the tenancy has commenced.
15. In so far as the position about Section 16(2) of the Maharashtra Rent Control Act is concerned, I find that in light of the dictum of this Court in Bandu Ravji Nikam, and M/s. Mohanlal Kisanlal Agrawal & Ors. (supra), the same standards as are set forth in a case of a landlord / tenant, in respect of property not belonging to the trust, cannot be applied. As held by this Court in Bismilla Bee Sk. Chand and another Vs. Mohd. Anwar Mohd. Akhtar (2010) Mh. L.J. 829, the burden of proving greater hardship so as to deprive the landlord of his establish right to seek eviction, lies on the tenant. In the present case, this burden has not been discharged by the defendant / tenant and there is nothing on record to show that the defendant has at any point of time made any attempt to make any enquires, regarding the availability of accommodation, in the vicinity or otherwise. It was equally the duty of the respondent to have demonstrated and established that the other properties of ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 02:14:48 :::
911.wp.1381.18 (16) Judgment the trust were indeed vacant and available for the purpose pleaded, for which except for a plea there is nothing on record.
16. In light of the above discussion, the judgment and decree as passed by the Appellate Court, therefore cannot be sustained in law. The same is therefore quashed and set aside. The judgment and decree as passed by the Trial Court is restored. Rule is made absolute in the above terms. In the circumstances, there shall be no order as to costs.
(Avinash G. Gharote, J.) Sarkate.
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