Amravati vs Smt. Radhabai Shivcharan Gupta
2010 Latest Caselaw 47 Bom

                                      1
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH




                                                                   
                 WRIT PETITION NO. 99  OF  1999




                                          
     Narendra Gulabrao Zade,




                                         
     aged about 48 years,
     Agriculturist, resident of
     Buti Plots, Near Rajapeth,
     Amravati, Tq. and District




                                 
     Amravati.                               ...   PETITIONER
                     ig  Versus

     Shiocharan Ghashiram Gupta
                   
     since deceased through LRs

     1. Smt. Radhabai Shivcharan Gupta,
        aged about 55 years,
      


     2. Anil Shivcharan Gupta,
   



        aged about 40 years,

     Both residents of Ganesh Colony,





     Near Prabhat Colony, Amravati.           ...   RESPONDENTS



     Shri S.P. Deshpande,  Advocate for the petitioner.





     Shri Amol Mardikar,  Advocate for the respondents.
                        .....

                                 CORAM :  B.P. DHARMADHIKARI, J.

OCTOBER 18, 2010.

ORAL JUDGMENT :

Heard Shri Deshpande, learned counsel for the

petitioner and Shri Mardikar, learned counsel for the

respondents.

2. By this petition, the petitioner landlord has challenged

the reversing judgment delivered by the Additional Collector,

Amravati, in Appeal No. 9/71(2)/95-96 dated 06.02.1997. The

Rent Controller had given the petitioner permission to terminate

the tenancy of the respondent - tenant under Clauses 13(3)(ii),

(v) and (vi) of C.P. & Berar Letting of Premises and Rent Control

Order, 1949, (hereinafter referred to as Rent Control Order).

The permission under clause (iv), (viii) and (ix) was rejected.

The respondent - tenant filed above mentioned appeal under

Clause 21 of Rent Control Order and the appellate authority has

allowed his appeal and set aside permission granted under

clauses (ii), (v) and (vi). Thereafter this writ petition came to be

filed. Today while arguing the matter finally, claim for

permission under clause 13(3)(ii) i.e. habitual defaulter has been

give up. The arguments have been advanced only on clause (v)

which deals with acquisition of alternate accommodation by

tenant and clause (vi) which deals with bonafide need of the

landlord.

3. The learned counsel for the petitioner has contended

that the appellate authority has given undue importance to trivial

things and has unnecessarily interfered with the findings of facts

reached by the Rent Controller. The construction of a huge

bungalow by tenant in Prabhat Colony within Municipal limits of

Amravati town has been accepted and proved on record. This by

itself is sufficient to show acquisition of alternate

accommodation by the tenant. The fact that original tenant

Shiocharan did not shift to that bungalow is not decisive and

determinative in this situation. The contention is Shiocharan

expired during the pendency of this litigation and along with

widow of Shiocharan, his only son by name Anil has become

joint tenant of suit premises. As Anil admittedly owns and

possess alternate accommodation, permission under clause 13(3)

(v) of Rent Control Order needs to be maintained/ granted by

this Court. It is further stated that the physical disability of

landlord and his wife to climb stairs, diseases suffered by them

have been proved on record by necessary medical certificates and

hence need of premises on ground floor has been established. It

is further pointed out that in premises on first floor, there is no

latrine and bath room and latrine and bath room provided in

another block which has fallen to the share of brother of the

petitioner in partition is required to be utilized. To approach it,

the petitioner and his family members are required to go through

the kitchen of the other occupant of that block. As there is no

space to construct, the petitioner is not in a position to have a

latrine and bath room on his side. Even drinking water well situated

on ground floor cannot be accessed as respondent - tenant is not

permitting the petitioner to use it. The family of the petitioner

consists of four members and at the relevant time, both son and

daughter were taking education and needed separate rooms. On

first floor, there were only three rooms. According to Shri

Deshpande, all these facts by itself establish the bonafides and

the need of the landlord. He has relied upon the judgment in the

case of Murlimanohar vs. Prabha Bhattacharya, reported at 2005

(2) Mh. L.J. 853.

5. Shri Mardikar, learned counsel appearing on behalf of

the respondents has stated that the present respondents are legal

heirs of original tenant. He contends that plea was acquisition of

alternate accommodation by tenant and it has not been proved.

Similarly, house property of landlord at Rajapeth within the

Municipal limits has been suppressed and tenant has proved that

one Mohan Singh Thakur therein was allowed to continue by

increasing his rent. The learned counsel contends that had

landlord disclosed these premises at Rajapeth, the complexion of

the matter could have been otherwise and the respondents -

tenant in that event could have also cross examined the

petitioner in that respect. According to the learned counsel, the

findings of appellate authority are based upon the evidence and

hence no interference therein is warranted.

6. Shri Deshpande, learned counsel for the petitioner in

reply has pointed out that premises at Rajapeth in the occupation

of Mohan Singh Thakur were undoubtedly on ground floor, but

the same consists only of three rooms and were not sufficient to

house the family of the petitioner. He has urged that the

petitioner is in possession of first floor and hence rooms in

possession of the respondents - tenant on the ground floor are

more suitable and proper. He has further pointed out that

premises let out to Mohan Singh Thakur has been vacated by

him and the petitioner has constructed a shop block there. The

petitioner and his son are earning their livelihood through that

shop block.

7. Shri Mardikar, learned counsel has pointed out to this

Court that most of these events like vacation of premises by

Thakur and utilization of those premises by landlord are not on

record at all.

8. The case pleaded by the petitioner - landlord shows

that according to him, the tenant - Shiocharan owned and

possessed alternate accommodation. The finding recorded by

the Rent Controller as also by the appellate authority reveals that

alternate accommodation belonged to son Anil and not to

Shiocharan. The appellate authority has found that a son can

always acquire independent property for himself and it is not

necessary for his father to shift to those premises. Here, the

landlord has not placed on record anything either to urge or to

demonstrate that the bungalow at Prabhat Colony has been

acquired by Anil with the aid and assistance of capital provided

by father - tenant or then through joint family income. No

evidence has been produced to show that Anil continues to be a

member of tenants family. In view of this position, when burden

to show acquisition of alternate accommodation was upon the

petitioner, I do not find anything perverse with the application of

mind by the appellate authority.

9. The application as filed by the petitioner before the

Rent Controller does not contain a reference to other house

belonging to him and situated at Rajapeth i.e. within the

Municipal limits. The law requires the petitioner to prove his

bonafide need and for that to approach the Court of law with

clean hands. The petitioner could have explained inadequacy or

other lacunae in Rajapeth accommodation to justify his

preference of ground floor in occupation of the tenant. Had

there been such a case and pleading, the respondent - tenant

would have then got an opportunity of cross examination and

then bonafides or otherwise of the need of the landlord could

have been judicially appreciated. Unfortunately, such a course of

action is not possible here. The respondent - tenant has through

cross examination of the petitioner placed on record only the

suppression of availability of other house at Rajapeth with

further fact that proceedings for eviction of Mohan Singh Thakur

therefrom were actually initiated and later on compromised

when Mohan Singh Thakur agreed to increase the rent. Thus,

this material brought on record by the tenant is sufficient to

substantiate that there is no bonafide need of the landlord.

Subsequent utilization of premises vacated by Shri Mohan Singh

Thakur for establishing a business again raises several questions

and as this fact is not on record, the same cannot be considered

here.

10. The reliance upon the judgment delivered by me and

reported in the case of Murlimanohar vs. Prabha Bhattacharya,

(supra) in this situation is misconceived. There, the landlady

and her sisters qualified gynecologists were seeking eviction of

tenant to start maternity home and hospital. The tenant was

urging that they can have their complex and in that complex, the

tenant also can be accommodated. The evidence which has

come on record there has been appreciated and such insistence

on the part of the tenant was found to be unjustified. This Court

has found that in such situation, the landlord is the best judge of

his need. The judgment, therefore, has no application in present

facts. The landlord can claim to be a best judge of his need after

he fairly discloses all options available to him and shows some

reason for choosing particular option i.e. premises. It is this

election, effected by him after full knowledge and appreciation,

which cannot be interfered with judicially. Here, the premises at

Rajapeth were suppressed and hence it cannot be said that the

landlord has judged his need bonafide in accordance with law.

In this situation, I find that the petitioner - landlord can initiate

fresh proceedings in accordance with law.

11. I am not inclined to interfere in the matter in writ

jurisdiction. Writ Petition is dismissed. Rule discharged.

However, in the facts and circumstances of the case, there shall

be no order as to costs.

JUDGE

*******

*GS.