Baburao Shankar Mahajan (Since ... vs Narayan Balajibudhkar (Since ...
2003 Latest Caselaw 1078 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. In these proceedings under Article 227 of the Constitution, the correctness of the judgment and order dated 16th June 1988 of the District Judge, Satara is called into question. The District Judge affirmed in the course of his judgment, a decree for eviction passed by the Civil Judge, Junior Division, Karad, on 13th March 1985 under Section 13(1)(l) of the bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. Both the Courts below have concurred in coming to the conclusion that the tenant after coming into operation of the Act has built and acquired the vacant possession of a suitable residence.

2. The suit premises consist of Block No. 5 out of C.T.S. No. 221/24 at Karad City. The Petitioner is a monthly tenant of the premises and the rent has been fixed at Rs. 20/- per month inclusive of water and electricity charges. A suit for eviction had been instituted on the ground that the Defendant and one Rangubbhai had purchased on 26th December 1971 a plot in the Municipal limits of Karad City bearing Plot No. 435. It was alleged that on the plot, the Petitioner constructed a building for residential use. The Defendant filed his Written Statement admitting that he had purchased a plot as alleged. The case of the Defendant, however, was that the structure which he had constructed was a shed which was not fit for residential purpose and that it did not have the necessary amenities. On behalf of the Plaintiff-landlord, evidence was adduced of the Plaintiff and of a tenant, one Abaji Badekar, who had resided in the premises which had been constructed by the Petitioner from 1979 until 1984 on a monthly rent of Rs. 65/-. The name of this tenant was also shown in the Municipal extract. On the evidence which was adduced before it, the Trial Court held that the landlord had established a ground for eviction in that the tenant had purchased a plot of land upon which he had constructed four rooms for his own residence.

3. Learned Counsel appearing on behalf of the Petitioner urged the following submissions: (i) Save and except for the entry in Exh.21 which was the Municipal extract, thee was no evidence that the premises which had been constructed by the Petitioner were in occupation of any tenant; (ii) That there was neither any electricity, nor any bath room facility in the premises; (iii) The building which had been constructed by the Petitioner was only a shed; and (iv) The payment of Nazarana in pursuance of the N.A. permission which was granted in 1971 was effected by the Petitioner only in 1987 and, therefore, on the date of the institution of the suit in 1977, the premises were not suitable for residential use. These submissions may now be considered.

4. Both the Courts below have relied upon the Municipal assessment extract of the Karad Municipal Council (Exh.20). The Municipal extract shows the nature of the construction which has been carried out by the Petitioner on the plot of land which admittedly belongs to him. The assessment record shows that the structure consisted of a construction on a stone plinth. Walls had been plastered with cement both inside and outside. The flooring had been tiled and on the roof were Mangalore tiles. The Municipal extract showed that the premises had both water and electricity. In fact, it was also revealed that there were two tenants one of them being Abaji Badekar who was in occupation of three rooms and another, one Vishwanath Swami in the occupation of three rooms. Abaji Badekar stepped into the witness box in support of the claim made by the Respondent. Both the Courts have accepted the testimony of Abaji Badekar particularly in the light of the fact that the assessment record of the Municipal Council specifically refers to him as being in occupation as a tenant. Abaji Badekar subsequently vacated the premises. The Learned Trial Judge noted that the Petitioner had admitted that he was the owner of Plot No. 71, Final Plot No. 435. The Learned Trial Judge also took due note of the fact that the Municipality had imposed a tax on the building. Since the evidence on record showed that the tenants who had been inducted by the Petitioner-tenant were residing in the structure, the Learned trial Judge was entirely justified in coming to the conclusion that it could not be held that these tenants were residing in a shed which was not fit for residential use. A reference has also been made to the Sale Deed in pursuance of which the Petitioner acquired an open plot of land on which subsequently the construction was carried out. The Sale Deed (Exh.22) specifically records that there is an easementary right of way to the land in question and that Non-Agricultural permission had been granted on 27th February 1971 subject to the payment of Nazarana. Under the terms of the Sale Deed, it was stipulated that the Nazarana would be paid by the vendor but that in the event that the Petitioner was required to pay the Nazarana, he would be entitled to be compensated by the vendor. The extract of the Property Register Card has also been produced in evidence and marked as Exh.21. The Property Register Card specifically adverts to the fact that N.A. permission had been granted and that the assessment was fixed at Rs. 67.30. The Property Register Card takes due note of the name of the Petitioner in respect of the suit plot of land.

5. In so far as the question of suitability was concerned, the Learned Trial Judge has held that the Petitioner was residing in the suit premises together with five members of his family. No inconvenience would be caused to the Petitioner if he was required to reside in his own premises. The premises which have been acquired by the Petitioner were noted to be in the close proximity of his place of employment. The evidence showed that the Petitioner had spent Rs. 75,000/- towards the new construction which he had carried out. Though when the construction was carried out by the Petitioner in 1970 or thereabout, there was no latrine facility, the Learned Trial Judge was of the view that the Petitioner who had already spent a substantial amount on the construction could well carry out a construction of a small latrine for his own purpose.

6. These findings of the Learned Trial Judge have been affirmed in appeal. The Appellate court has also placed reliance on the testimony of the tenant, Abaji Badekar who had resided in the premises for four years. In so far as the Petitioner was concerned, though he was present in the Court, he did not step into the witness box and evidence was tendered on his behalf by one Gangadhar. The Appellate Court noticed that it would apparent from the examination of Gangadhar that he was not in possession of all the relevant facts of the matter. Counsel appearing on behalf of the Petitioner his submitted that the finding by the Appellate Court that there was an electrical connection is based on Exh.33 but, Exh.33 relates not to the premises of the Petitioner but to the suit premises. Even if that be so, in my view, the material on the record was sufficient to hold that there was in fact, an electrical connection in the premises. The Municipal assessment extract at Exh.20 specifically refers to the existence of water and electric connection which would have a bearing on the assessment of the premises. The Appellate Court has noted that the structure which had been constructed by the Petitioner admeasures 10 x 39.1/2 and the nature of the construction would belie the claim of the Petitioner that it was only a temporary shed. The Petitioner has sought to contend that a notice had been issued by the Town Planning Department on 24th October 1983 in respect of an unauthorised construction which was carried out by the Petitioner on the plot which was being used for non-agricultural purposes. Here again, the facts that have emerged showed that in 1983 or thereabout, the Petitioner had sought to carry out certain fresh construction, and it was in respect thereof that the notice was issued by the Town Planning Authority. The finding which has been recorded is that the notice of 1983 cannot possibly be in respect of the construction that was carried out in 1972, but in respect of the new construction which was sought to be initiated by the Petitioner. The Appellate Court has noted that out of the members of the Petitioner's family, one of them is serving in the Zilla Parishad, Thane for over 20 years, while another has been employed as a Cashier in the Adiwasi Development Corporation four years prior to the judgment which was delivered in 1988. Thus, two of the sons of the Petitioner were not staying at Karad. The Appellate Court noted that only the wife and one son and daughter-in-law stay with the Petitioner at Karad and these four who comprised the family of the Petitioner could well be accommodated in the four rooms which are available to the Petitioner in the construction which has been carried out by him on his own plot of land.

7. Counsel appearing on behalf of the Petitioner urged that the suitability of the alternative accommodation must exist on the date of the institution of the proceeding for eviction. There can be no dispute about the principle of law that in a suit which is founded on the provisions of Section 13(1)(l), the tenant must be shown to have acquired suitable alternative accommodation on the date of the institution of the suit. This principle of law has been laid down in the judgments of two Learned Judges of this Court in Govind Ramchandra Deo v. Smt. Ramabai Vasudeo Pandit, , and Shankarrao Dattatraya Kalyankar v. Vishwasrao Dadasaheb Patil, . A Division Bench of this Court has held in Parviz B. Engineer v. Behram Dadabhai Pesuna, 1990 Mah.R.C.J. 155 that the expression "suitable residence" occurring in Clause (1) has to be understood in the context of the needs of the family of the tenant to the extent the family members have been residing with him, the location of the allotted premises and other attendant circumstances. There can be absolutely no doubt about these principles. In the present case, it is an admitted position that the Petitioner has acquired an alternative plot of land upon which a construction has been carried out. The Petitioner admitted the acquisition and the construction. That being the position, in view of the judgment of the Supreme Court in Ganpat Ram Sharma v. Gayatri Devi, , once the essential ingredients of an action under Section 13(1)(l) were pleaded and established by the landlord, whether the alternative accommodation was suitable or not depended upon facts which were within the special knowledge of the tenant and it was for the tenant to establish those facts. The Supreme Court has held thus:

"The position in law is that the landlord in order to be entitled to evict the tenant must establish one of the alternative facts positively, either that the tenant has built, or acquired vacant possession of or has been allotted a residence. It is essential that the ingredients must be pleaded by the landlord who seeks eviction but after the landlord has proved or stated that the tenant has built, acquired vacant possession of or has been allotted a residence, whether it is suitable or not, and whether the same can be really an alternative accommodation for the tenant or not, are within the special knowledge of the tenant and he must prove and establish those facts."

Apart from the fact that the Petitioner did not step into the witness box at all and the witness who has deposed on his behalf has been held by the Appellate Court to be ignorant of the facts and circumstances of the case, I am of the view that the Respondent has duly established the ground of eviction under Section 13(1)(l) of the Act. The contention that the payment of Nazarana in 1987 would indicate that in 1977 when the suit was instituted, the premises were not suitable for residence will have to be rejected in the facts of this case. The Petitioner had acquired the premises under a Registered Sale Deed which was executed on 23rd December 1971. The sale deed stipulated that N.A. permission was in fact, granted on 27th February 1971. Under the terms of the Sale Deed, it was specified that though the vendor would pay the Nazarana, he would compensate the petitioner if the Petitioner was required to pay the charges for the obtaining of N.A. permission. The charges have admittedly been paid, though by the Petitioner, in 1987. In these circumstances, the Petitioner cannot on the ground of his own delay in waiting until 1987 to pay the N.A. charges contend that the landlord has become disentitled to a decree for eviction. The Premises which have been constructed by the Petitioner have been held as being suitable for the purposes of residence N.A. permission has admittedly been obtained. In these circumstances, there is no reason for this Court to interfere with the concurrent finding of facts which have been arrived at by both the Courts below. The Petition is accordingly rejected. However, on the request of Learned Counsel appearing on behalf of the Petitioner, time to vacate the premises is granted to the Petitioner until 31st December 2003 subject to the filing of the usual undertakings of all adult members of the family within four weeks.

Parties be given copies of this order duly authenticated by the Sheristedar/Personal Secretary of this Court.