Dineshkumar Jivanlal Jobanputra vs Additional Collector And Ors.
2007 Latest Caselaw 34 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. Heard Advocate S.V. Purohit, for petitioner-tenant, Advocate A.S. Mardikar, for respondent No. 3 and learned AGP Mr. Jaiswal, for respondent No. 1. Nobody appears for other respondents though served.

2. In view of the arguments I find that Writ Petition can be disposed of by short order, it is therefore, not necessary to refer to all facts in detail. By relying upon the judgment of this Court reported at 1979 Mh.L.J. 656 in the case of Jagdishprasad Kesarmal Sabu v. Dharamdas Tharumal Hasnani and Anr.. The learned Counsel for petitioner has contended that need of his landlord i.e. the present respondent Nos. 2 and 3 no longer survives and hence Writ Petition needs to be allowed.

3. The arguments that need does not survives any longer is based upon the subsequent events namely two sale deeds dated 3-9-2004 executed by the respondent No. 2 and 3 in favour of (1) Rahul Gopikisan Mandhania and (2) Dinesh Premprakash Mandhania. The petitioner has incorporated this subsequent events by moving application for amendment. The said application for amendment has been allowed on 13-11-2006. The application for amendment appears to have been moved on 16-1-2006.

4. Advocate Purohit, has pointed out that the application before the Rent Controller moved by the respondent Nos. 2 and 3 was to seek permission to terminate tenancy of the present petitioner under the provisions of Clause 13(3)(vi), i.e. bona fide need of the landlords. The said bona fide need was to start a business in tenanted premises. The respondent Nos. 2 and 3 stated that they were having their own shop in tenanted premises and son of their landlord namely Dilip Kumar wanted to have those premised for his own use and hence they were constrained to vacate those tenanted premises. They therefore wanted the suit premises to have their own Pharmacy business. This application was rejected by the Rent Controller vide his order dated 13-4-1988. The landlords thereafter filed Appeal under Clause 21 of the Rent Control Order, before the Appellate Authority and the Appellate Authority has by its order dated 31-5-1993 allowed the application of landlords and granted them necessary permission under Clause 13(3)(vi). Advocate Purohit, by relying upon the aforesaid judgment contends that as the premises are already sold, the new landlord or owners has to take fresh steps to seek permission and permission granted earlier was personal to respondent Nos. 2 and 3 and said permission does not ensure to the benefits of the successor purchaser.

5. Advocate Mardikar, who appears for respondent No. 3 states that he has communicated the fact of allowing the application for amendment and all subsequent events brought on record to the respondent No. 3 and till date he has not received any instructions. He further states that the sale deeds are not proved as required by law before the Lower Authority and therefore, should not be accepted by this Court for the first time in writ jurisdiction. He contends that the petitioners have also been permitted by this Court to amend their written statement before the Rent Controller and hence this Court should remand the matter back to Rent Controller to enable the petitioners to prove those sale deeds and also to give opportunity to the respondent No. 3 to record his say in relation to those sale deeds before the Rent Controller. He argues that the Writ Petition cannot be allowed in such circumstances.

6. After hearing- both the counsel, I find that though the application for amendment was moved sometime in January, 2006, the respondent Nos. 2 and 3 have not filed any reply opposing it. Even after the amendment was allowed they have not/filed any rejoinder before this Court. As pointed out by Advocate Mardikar, that in spite of his express efforts to seek instructions from them in this respect the respondent No. 3 has not responded. In such circumstances, two sale-deeds placed on record along with affidavit cannot be disbelieved. The respondent No. 3 has not preferred to challenge those sale-deeds. The disputed question of fact would have arisen, had said respondent challenged those sale deeds by filing affidavit before this Court and had he taken any specific stand before this Court. That having not been done, I find request of Advocate Mardikar to remand the matter to Rent Controller cannot be accepted.

7. Perusal of the Sale deeds reveal that the respondent Nos. 2 and 3 have sold the tenanted premises to persons named thereon. The need pleaded was personal to respondent No. 2 and 3 namely, they wanted to have their own pharmacy shop in tenanted premises. The need and permission granted in pursuance of such need therefore cannot ensure to the benefit of purchaser as the premises are regulated by the provisions of Rent Control Order and thereafter by the Maharashtra Rent Control Act. Purchasers will have to take appropriate steps to seek eviction of the present petitioner under relevant provisions of law. It is clear that the said permission stands extinguished in the facts of the present case.

8. Judgment of this Court reported in 7979 Mh.L.J. 656 (supra), is delivered in identical circumstances. There the landlord filed application and got permission from Rent Controller on 4-12-1970 because of bona fide need. The tenant thereafter preferred appeal to the R.D.C. on 27-11-1973, who confirmed the findings of the Rent Controller and he dismissed the appeal of the petitioner-tenant. It appears that during the pendency of the appeal the landlord transferred the tenanted portion in possession of petitioner-tenant in that matter to respondent No. 1 by sale deed dt. 20-9-1971. Purchaser then filed application before the Appellate Authority on 15-3-1972 and sought permission to contest the appeal. No orders were passed on that application. It is in this background when the matter came up before this Court and learned Single Judge of this Court found that the permission granted was personal to landlord. It has been held that Clause 13(3)(vi) operates on personal need of a person who applies for permission and not on the premises. If the person who applies on this ground transfers the house and ceases to be owner during the proceedings, the Rent Controller will have to see that the transferee needs the premises for his own occupation. It will not avail the purchaser by merely asking the Rent Controller to substitute him for the previous landlord and to consider the need of the previous landlord. If the transfer is effected during the pendency of appeal it would be within the powers of the Appellate Court to take note of the subsequent event if the same has material bearing on the decision of the matter before it, in order to grant appropriate relief in appeal. It has been held that the Appellate Court cannot dispose of the appeal on the question of need of transferor landlord. This Court ultimately quashed the permission given to landlord under Clause 13(3)(vi) and petition was partly allowed.

9. It is therefore, clear that the controversy is squarely covered by this judgment. In the circumstances, the respondent No. 3 landlord does not need the premises for his own bona fide need. The orders passed by the Lower Authority therefore are rendered infructuous and the same are quashed and set aside. With the result, the Writ Petition is allowed. Rule is made absolute accordingly, with no order as to cost.