Chandrakant Lalsingh Hajari And ... vs Murtizapur Taluka Sahakari ...
2004 Latest Caselaw 1116 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. By this petition filed under Article 227 of Constitution of India, the petitioners - landlords challenge the concurrent orders dated 31-3-1989 passed by Rent Controller, Murtizapur, and dated 16-3-1991 passed by the appellate Rent Controller Authority, rejecting their prayers for permission to terminate the tenancy of respondent under Clause 13(3)(iii), (iv), (vi) and (vii) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as Rent Control Order, 1949). However, in this writ petition, the landlords have restricted their challenge only to two grounds mainly Clause 13(3)(iv) and (v) i.e. securing alternate accommodation and change of user.

2. The necessary facts giving rise to filing of petition can be summarised as under :

In July-August 1987, the petitioners appeared to have filed the application under above mentioned clauses of Rent Control Order seeking permission to issue quit notices to respondent-tenant which is a registered Co-operative Society doing business in sale and purchase of agricultural commodities. Insofar as two grounds mentioned are concerned, they are contained in paras 5 and 7 of this application. In para 5 it is mentioned that the tenant has constructed two godowns one office and a shop of their own and they have been letting out their own construction on high rate and are thus making profit. It is contended that thus tenant has got alternative accommodation and they are not in need of premises. In case of change of user, it is stated that the tenant has used the premisses in the suit for a purpose other than the one for which it has been let out. The tenant in reply has denied these allegations. The tenant admitted that they have constructed godown, an office and a shop but they have denied that the same is alternative accommodation. They have also denied that they are not in need of tenanted premises. They have contended that the business of society is increasing from time to time and on certain occasions the tenant is required to take more godowns on rent. Insofar as the change of user is concerned, it is denied. In this background, the Rent Controller after recording the evidence of parties delivered the impugned order on 31-3-1989, inter alia, observing that the business of society has increased manifold and as such, it cannot be said that the tenant has acquired alternative accommodation. In relation to change of user, the Rent Controller has found that the petitioners have failed to point out the purpose for which the house was let out and further that there is any change of user. The Appellate Authority has maintained these findings.

3. I have heard Shri Chandurkar, learned Counsel for the petitioners and Smt. Chandekar, learned Counsel for the respondent tenant.

4. Shri Chandurkar, learned Counsel for the petitioners contends that there is a letter written by the landlords to the tenant on record of Rent Controller as Ex.NA-12. He states that this letter is dated 23-8-1967 and in it the landlords have demanded increased rent for godown. They have stated that for godown they are getting Rs. 150/- per month and they have demanded Rs. 600/- per month. According to him, do this document along with the rent receipts on record clearly show that the tenanted premises were let out for being used as godown. He further points out the cross-examination of Manager of tenant in which the said Manger has admitted that in the said godown cloth shop, Kirana shop and a shop for selling the rice is located. He contends that this material on record has been overlooked by the authorities.

5. About alternative accommodation, he points out that it is an admitted position on record that the tenant has constructed his own godowns and is offering the same on rent. Thus, according to him, the mere contention of respondent-tenant that on account of their increased business they have secured additional accommodation is not enough to deny the permission to landlords on this ground. He points out that the Manager of tenant has given the details about the other godowns constructed by the tenant society and he has also disclosed the rent being received in relation to these godowns from the Maharashtra State Co-operation Federation. The Manager has also admitted that they also take on rent the godowns from other people. He contends that in this view of the matter, the authorities below have erred in not granting permission to landlords. He contends that material which is available before it has not been properly considered and its effect has not been evaluated and thus there is refusal to exercise jurisdiction on the part of the authorities. He states that there are admissions on record which have been ignored and hence there is error apparent which needs to be corrected by this Court. He has pointed out the evidence of Manager in this respect which is at pages 52, 53, 57 and 58 of the record of lower authorities. He has relied on the ruling in the case of M.K. Salpekar v. Sunil Kumar, reported in 1988(3) Bom.C.R. 525 : 1988 Mh.L.J. 760 in support of his contention.

6. As against this, Smt. Chandekar, learned Counsel appearing for the respondent-tenant contends that both the authorities have considered the material on record. The petitioners landlords have not pleaded and pointed out any particular purpose for which the premises were let out and during evidence also no such purpose has been established. She, therefore, contends that the findings of both the lower authorities are based upon material on record and no interference in writ jurisdiction is called for. Further, with reference to the document on record which are appreciated by the authorities below, she points out that the business of society has multiplied several times and it is in need of additional godowns. She points out that the Manager of the tenant society admitted that it acts as agent of Co-operative Federation and for that purpose it is required to store the agricultural commodities belonging to said federation and the godowns are used for that purpose. She points out that at times, when the material to be stocked is more, the tenant-society is constrained to take more godowns on rent from open market. According to her, therefore, the authorities are right in concluding that the tenant has secured the additional accommodation and this is not the case of alternative accommodation. She relies upon the judgment in the case of Vithaldas v. Mansukhal, reported in 1980 Mh.L.J. 612 and in the case Abdeali v. Haji Jalil, reported in 1988(1) Bom.C.R. 212 : 1987 Mh.L.J. 911, in support of her contention. She states that the concurrent orders are passed and the grievance made in this petition pertains to the demand of appreciation of evidence and such a exercise should not be undertaken by this Court under Article 227 of the Constitution of India.

7. When both the orders are perused, it is seen that the Rent Controller as also the Appellate Authority have found that the landlords have not pointed out any particular purpose for which they have let out the godown. The purpose is also not pleaded. In such circumstances, merely relying upon word godowns in the letter dated 23-8-1967 or in the rent receipt will not be proper. The said word does not denote that the premises are let out for being used only as godown. Both the parties have adduced evidence before the lower authorities and they have been cross-examined. The finding reached is after appreciation of this evidence. It is not shown by the petitioner as to how this finding about change of user reached by both the authorities is perverse. The authorities have considered the pleadings and also the evidence on record. The Rent Controller has found that the landlord has admitted that the premises were let out by his father-deceased Lalsingh and contract of lease took place between them. The petitioners admitted that they do not know what was the previous rent of this premises and they also stated that the premises were given on lease for office purpose but the Rent Controller has found that no such evidence has been adduced. The Rent Controller further finds that the letter dated 23-8-1967 on the contrary does not show that it was let out for office purpose. The Rent Controller further concludes that the landlords have failed to bring on record any material to show that the tenant society is using the tenanted premises for the purpose other than the godown. Therefore, he has concluded that the case for grant of permission under Clause 13(3)(iv) is not made out. The Appellate Authority has considered this aspect that though there is cloth shop or kirana shop in the said premises, there is no material on record to hold that the premises were let out only for office purpose or only for godown purpose. The Appellate Authority has, therefore, concurred with the findings reached by the Rent Controller. This discussion clearly shows that there is no scope for any interference under Article 227 of the Constitution of India in the matter.

8. Insofar as the case of the petitioners that the tenant has secured alternative accommodation, the said Clause No. 13(3)(v) reads as under :

"(v) that the tenant has secured alternative accommodation or has left the area for a continuous period of four months and does not reasonably need the house."

9. The rulings on which reliance has been placed need to perused at this stage. In ruling 1980 Mh.L.J. 612 the Division Bench has considered the question of alternative accommodation and additional accommodation in paras 10 and 12. The said para 10 and relevant portion of para 12 are reproduced below ;

"10. In the instant case petitioner No. 1 had purchased a house in the town in or about the year 1962, a part of which was being used by him for his residential purpose and a part as a godown for storing gunny bags in which he deals. The contention of the tenant was that he had an expanding business for which he was required to hire an additional godown in addition to the two godowns in question. The premises in question were used for non-residential purpose and hence the Explanation to Clause 13(3)(v) of the Rent Control Order, as the learned Judge rightly observed had no application which relates only to a residential house. The observations of the learned Single Judge in Radhabai's case (cited supra) that since the house has been acquired by the tenant it must be taken that he had taken an alternative accommodation within the meaning of Clause 13(3)(v) of the Rent Control Order, in the opinion of the learned referring Judge, is too wide a proposition and needs reconsideration. In his opinion the alternative accommodation contemplated by Clause 13(3)(v) would be an accommodation which a tenant had acquired in place of one which he was already having. He further observed that if the tenant needs the present accommodation in question and also needs the additional accommodation available to him and both are meant for being misled, then it cannot be said that he has secured alternative accommodation. We do feel that the observations made by the learned Single Judge in Radhabai's case are too widely made."

"12....Thus under the Bombay Rent Act the emphasis is on the word "suitable" with reference, of course to the alternative accommodation in question. In the Rent Control Older "alternative" is the only word used in Clause 13(3)(v), but to say that the tenant would not be entitled to contend anything as to the suitability or otherwise of the alleged alternative accommodation would be to defeat the very purpose of this clause and the intent of the legislature. If the tenant after expansion of the size of his family acquires some additional accommodation for his married sons or school going children of his family, tenant would not be precluded from pointing out that the additional accommodation though secured by him cannot truly be considered as a substitute for the one in question or as an alternative accommodation. In order, therefore, to decide whether new or additional accommodation secured by the tenant can be looked upon as an alternative accommodation, the Court ought to decide the needs and difficulties of the tenant with reference to the other accommodation that is acquired by him. He can also consider whether grounds put forth by the tenant are reasonable, real and bona fide. The observations to be found in Radhabai's case to the effect that as soon as the landlord establishes that the tenant has secured an alternative accommodation he is entitled to terminate the tenancy is too wide and broad proposition. A tenant would not be precluded from pointing out whether such an accommodation can really be termed as an "alternative" accommodation where he should be obliged to shift in substitution of the tenanted premises. An improper or unsuitable accommodation certainly cannot be called an alternative accommodation and in this view of the matter the element of suitability, convenience or otherwise is ingrained in the term "alternative". Therefore, whether an accommodation is really an alternative accommodation or not would always depend upon the facts and circumstances of a case."

It appears that in earlier judgment, Radhabai's case, the learned Single Judge of this Court had taken the view that the moment it is shown that tenant had taken some other accommodation, it is presumed that he has secured alternative accommodation. The other learned Single Judge felt that these observations were too wide and needed reconsideration. The other learned Single Judge felt that the accommodation thus acquired by tenant should be acquired in place of one which he was already having. The learned Judge observed that if tenant needed the existing accommodation and also the subsequent accommodation and both are meant for being utilised, then it is not the case of securing alternative accommodation, it will be a case of additional accommodation. The Division Bench agreed with the learned Single Judge and also expressed that the observations made by the learned single Judge in Radhabai's case are too widely made. The Division Bench has further held that to decide whether subsequent accommodation secured by the tenant can be looked upon as alternative accommodation, the Court must decide the needs and difficulties of tenant with reference to other accommodation i.e. acquired by him. The Division Bench has further held that whether such later accommodation is really alternative accommodation is dependent upon facts and circumstances of each case.

10. This ruling has been referred to by the subsequent Division Bench and said judgment is reported in 1988(1) Bom.C.R. 212. The Division Bench has held that the thread of reasonableness runs through concept of alternative accommodation. The said accommodation needs to be suitable and therefore, enough and proper as may be necessary to answer the purpose intended when viewed from a reasonable stand point. To hold otherwise means to give charter to the tenant to hold on the premises only because it is profitable to do so even at the cost of those who are in greater need of the premises. Then the Division Bench has proceeded to consider the facts of the case before it and found that the finding reached by the learned Single Judge that tenant had no suitable shop for retail pen business which he was carrying in the tenanted premises was reached on the basis of stray sentence uttered by a witness in his examination-in-chief. A mere ipse dixit of tenant is not sufficient to hold that the premises are not suitable. From the discussion above, it is apparent that whether the premises acquired by the present respondent-society are acquired as substitute for tenanted premises or they are only additional premises needs to be looked into.

11. Shri Chandurkar, learned Counsel contended that if this reasoning is accepted, no tenant will ever state that he acquired alternative accommodation. He argues that every tenant who does well in business will be in a position to say that he has acquired additional accommodation. In the facts of the case, he contends that it has come on record that the respondent is letting out the godowns constructed by it. The findings reached by both the authorities below show that the respondent-society has constructed some more godowns of their own and the annual turn over of the society has increased considerably. The Rent Controller finds that it has gone by atleast 10 times of what it was in the year 1963-64. In support of this contention, the tenant-society has placed on record the Annual Reports of the Society of the years 1963-64, 1965-66, 1981-82 and 1986-87. The Rent Controller has found that in 1964-65, the budget of the society was Rs. 52,000/- only while in the year 1986-87, it is Rs. 7,05,000/-. The Rent Controller has further found that because of increased business, the society needs increased accommodation for storing the goods and also for its staff. The Rent Controller has thereafter considered the evidence of Manager and found that the tenant-society is required to have godowns of others on rent in season and has further found that the society is required to give its godown on rent to ware housing corporation for short period to store the agricultural commodities which are meant for the benefit of agriculturist. The Rent Controller has found that the godowns are required to be given on rent to marketing federation also for this purpose. The Rent Controller, therefore, held that the respondent-tenant has not secured the alternate accommodation but additional accommodation which is needed by it in view of its increased business. The Rent Controller has, therefore, refused to grant permission under Clause 13(3)(v) of Rent Control Order. The Appellate Authority has considered this aspect in para 7 of its judgment and found that it is the case of additional accommodation and not the alternative accommodation.

12. The position as settled by Apex Court in judgment in the case of M.K. Salpekar v. Sunil Kumar, 1988(3) Bom.C.R. 525 : 1988 Mh.L.J. 760 is said Clause 13(3)(v) is applicable to both residential and non-residential premises. As the respondent-tenant did not dispute this position anywhere, this ruling relied upon by the petitioner is not relevant here. The other finding recorded therein by the Hon'ble Apex Court about the portion of clause "does not reasonably need the premises" governing only later part of Clause (v) i.e. "or has left the area for continuous period of four months" has no application in the facts of the present case.

13. Thus, it is apparent that the material available on record has been looked into by both the, authorities and thereafter they have arrived at a finding which cannot be termed as perverse.

14. In the result, there is no jurisdictional error or error apparent on the face of record. The authorities below have considered the relevant material properly and have reached the findings of fact concurrently. There is no scope for interference with the same in writ petition under Article 227 of the Constitution of India. Writ petition, therefore, fails and hence dismissed. Rule is discharged. There shall be no order as to costs.