Smt. Trivedibai Kashinath Gulave ... vs The Poona Harijan Co-Operative ...
2005 Latest Caselaw 720 Bom

JUDGMENT

Anoop V. Mohta, J.

1. The foundation of this litigation is the relationship of the landlord and tenant. Petitioners-tenants, being aggrieved by the concurrent findings of fact by both the Courts below, have preferred the present Writ Petition under Article 227 of the Constitution of India and, thereby, questioned the impugned judgment dated 21st August, 1988.

2. The petitioners are in occupation of the Suit premises which consists of two rooms. They are doing business of grocery shop in the front portion of the said premises since 1963. The back portion of the said premises itself provides the facilities of bathroom and other amenities. Since the day of the inception of the tenancy, they are occupying and using the small portion of said premises for the residential purpose. Respondents-landlord, a Cooperative Society (for short "Society") constituted under the Maharashtra Cooperative Societies Act, without any demur or objection, allowed the petitioners-tenants to use and occupy the said premises for both the purposes. There is no dispute that the rent agreement for non-residential purpose (Exhibit-36) nowhere provides for any concession or any permission to use the said premises for residential purpose.

3. The respondents-landlord filed a Suit for eviction and possession, basically on the ground of bonafide need and change of user and not on other grounds. The learned 4th Addl. Small Cause Judge, Pune, after considering the material, as well as, the documents on the record, held that the petitioners-original defendant No.2, changed the user of the Suit premises against the agreed terms of the lease and, therefore, became liable to be evicted under Section 13(1)(a)(g) of the Bombay Rents, Hotel and Lodging, House Rates (Control) Act, 1947 (for short "The Bombay Rent Act"), as the respondents-landlord also proved that the Suit premises is required by the Society and, therefore, decreed the Suit and directed to deliver vacant and peaceful possession of the premises, apart from other miscellaneous directions.

4. The petitioners-tenants, therefore, preferred an Appeal before the VIth Additional District Judge, Pune, being Civil Appeal No.561 of 1988. The Appellate Court also, after considering the rival contention of the parties, confirmed that the petitioners-tenants committed breach of the Tenancy Agreement by changing its use and the Suit premises is reasonably and bonafidely required for their own use and occupation. The issue of hardship, as observed, was also treated in favour of the landlords-respondents. Therefore, the appeal was dismissed.

5. Heard the learned counsel Mr. K.Y. Mandlik for the petitioners and Mr. S.B. Deshmukh for the respondents. With the assistance of the learned counsel appearing for the parties and after considering the reasoning given by both the Courts below, supported by the material on the record, I am of the view that the view taken by both the Courts below is reasonable, plausible and based on the material on the record. There is no perversity or any illegality pointed out and/or can be borne out from the record. Therefore, I am also confirming the view taken by both the Courts below and maintaining the order dated 21st April, 1988, as confirmed by the Appellate Court by its order dated 26th November, 1991, also on the following reasons.

6. In the relationship of landlord and tenant, if parties, based on their agreed terms to occupy the particular premises for a particular purpose, then unless the said use is changed with permission, there is no question of changing the use of the premises. The Bombay Rent Act, or any other such legislation, always deals with such circumstances of change of user.

7. The requirement, therefore, is for the landlord to suggest and prove on the record, that the tenant in breach of the basic agreement of tenancy, and and without his permission, changed the use of the said premises. In the present case, there is a ample evidence on the record to show that the petitioner-tenants have changed the use of the premises by using the rear portion of the premises for a residential purpose. The basic agreement is for the non-residential use for a grocery shop. There is no dispute that there is a change of use of the premises in question. The learned counsel Mr. K.Y. Mandlik, appearing for the petitioner, however, submitted that if dominant purpose and use of the premises is for the non-residential purpose, then the partial occupation or use of the premises for residential purpose is in no way sufficient reason to grant a decree of eviction. He further contended that the petitioners were using the said premises for non-residential purpose, as well as, for residential purpose since the day of inception of the tenancy i.e. since 1963. There was no specific objection raised by the respondents-landlord at any point of time and, therefore, he relied on the judgment in Babhutmal Rikhbaji v. Manubhai Madhavji [Bom. Rent Cases, 231, (Guj.)], where in it has been held that: "a partial change of user would not constitute the breach of the restrictive covenants and would not entail consequences of eviction". To this, the learned counsel appearing for the respondents referred to the judgment in the case of Bai Hariben Ambashanker v. Shantilal J. Shah [1980, Bom. Rent Cases, 115 (Guj.)] and he read the observations, which are: "Change of user - Rent not mentioning that the premises rented out for selling and storing articles and sitting - Tenant using part of premises for residential purposes - It amounts to change of user and tenant is able to be evicted."

8. Exhibit-39 in question, which is a relevant document between the parties, admittedly nowhere provides such clause or nowhere gives such concession and or permission. If the Courts below, after considering the evidence on the record, comes to a particular conclusion by holding that the petitioner-tenant have been using this premises for residential purpose which is contrary to the terms and conditions of the agreement (Exhibit-39), I see no reason to disturb the said finding. The petitioners-tenants are residing with the family members. There is nothing to show that shop was kept open for all 24 hours. On the contrary, there is a clear admission that the petitioners are using the premises dominantly and most of the time for the residential purpose even though the premises have been let out for non-residential purpose. Merely because respondents-landlord allowed them to use some portion for residential purpose, that itself is no ground to override the clear mandate of the Bombay Rent Act. It is for the respondents-landlord to give concession and/or to allow them to use the said premises even at this stage. But, having once invoked the provisions of the Bombay Rent Act on this ground which is substantially proved and as the view taken by the Courts below is plausible, I see no reason to interfere with the said findings.

9. There is nothing on the record to show and suggest that landlord-respondents at any point of time waived or abandoned their right to evict the tenants on this ground. Therefore, in the facts and circumstances of this case, and in view of concurrent findings, I am not accepting the argument of any waiver. The partial change of use in every case may not be the ground for eviction. It is a question of fact. It has to be considered on the basis of evidence available on the record of such case. The protection of the partial change is also not available in the present case in view of the above reasonings. Therefore, this contention is also rejected. Assuming that there is some substance in the submission raised by the petitioners, still the view taken by both the Courts below is plausible and reasonable.

10. The landlord, being the owner, always has a right to claim the premises from the tenant, but by following due procedure of law, whether it is an individual person or a society like the respondents landlord. The whole concept of the bonafide need is to see that the landlord must be in a position to occupy the premises as and when it is needed for his bonafide use and occupation. This concept is very clear with the rider that the Court should take into consideration the welfare legislation and its intention. The comparative hardship, if case is made out, is also material aspect which cannot be overlooked by the Court while considering the grant of eviction order based on bonafide need. In the present case both the Courts below have considered the requirement of the respondents-landlord Society, as it wants to open new shop in the premises in question. There is no reason to disturb the said finding of fact merely on the contention, as raised by the learned counsel appearing for the petitioners, that there is no bye-law which provides or allows the respondents- society to do such type of business. There is no dispute that the Society in question is a housing society. The petitioners are the Members of this housing society who are running the said grocery shop in the premises of the society and thereby, claiming to provide facilities to the members of the society. If the respondents-society, after passing due resolution, decide to use the same premises for starting their own Fair Price Shop or doing such type of business and thereby if they want to provide facility to the members of the society, I am of the view that no amendment to the bye-laws is necessary as contended. The society members, in fact, by such Resolution resolved to start their own business of grocery shop or Fair Price Shop in the said premises and such majority decision by the members of the society must be respected. An individual member, in this background, in my view, can in no way object to such decision only on the foundation that he has been providing the same facilities to the society since many years. Once the landlord-society takes genuine and bonafide decision to start their own business and if, for that purpose, they want the said premises, I am of the view that the need of the society is reasonable and bonafide. Therefore, in this background, the reasoning given by the Courts below granting decree of possession on the ground of bonafide need as contemplated under the Bombay Rent Act, needs no interference. The issue of comparative hardship in the present case goes in favour of the landlord-respondents in view of the above reasonings.

11. For the above reasons and the concurrent finding of fact and knowing fully the scope and ambit of Article 227 of the Constitution of India, I see no reason to interfere with the orders passed by the Courts below.

12. In view of this, Rule is discharged. The order dated 21st April, 1988, as confirmed by the Appellate Court, is maintained. Interim order granted is also vacated. However, 6 months' time is granted to vacate the premises, subject to filing of a usual undertaking within four weeks from the date of the order, failing which, the respondents-landlord are at liberty to proceed in accordance with law.

13. Petition is dismissed. No order as to costs.