Bombay High Court
Shriram Budhaji Tahkre vs Addl. Dist. Collector And 5 Ors on 27 August, 2021
Bench: Avinash G. Gharote
WP124 of 2010.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.124/2010
PETITIONER : Shriram Budhaji Thakre,
aged about 66 years, Occupation :-
business, 6, Dr. Ambedkar road, Gurukripa,
Gurunanakpura, Nagpur.
...VERSUS...
RESPONDENTS : 1. Additional District Collector (empowered
with the power to try appeal under the
Rent Control Order, 1949), collectorate
premises, Nagpur.
2. Rent Controller, Nagpur, collectorate
premises, Nagpur.
3. Sardar Bhupendrasingh s/o Sardar
Ratansingh Arneja, aged :- major.
4. Sardar Baijendrasingh s/o Sardar Ratansingh
Arneja, aged : Major.
5. Sardar Dilipsingh s/o Sardar
Ratansingh Arneja, aged :- Major.
6. Sardar Satnamsingh s/o Sardar Ratansingh
Arneja, aged : Major.
All resident of Gurukripa, Dr. Ambedkar
road Gurunanakpura, Nagpur.
-----------------------------------------------------------------------------------------------
Shri R.B. Dhore, Advocate for petitioner
Ms Tajwar Khan, AGP for respondent nos.1 and 2
Shri S.V. Purohit, Advocate for respondent nos.3 to 6
-----------------------------------------------------------------------------------------------
::: Uploaded on - 31/08/2021 ::: Downloaded on - 09/10/2021 12:43:05 :::
WP124 of 2010.odt
2
CORAM : AVINASH G. GHAROTE, J.
DATE : 27/08/2021
ORAL JUDGMENT
1. Heard Shri R.B. Dhore, learned Counsel for the
petitioner, Ms Tajwar Khan, learned Assistant Government Pleader
for the respondent nos.1 and 2 and Shri S.V. Purohit, learned
Counsel for the respondent nos.3 to 6.
2. The tenanted premises are two blocks, block no.6
admeasuring 100 x 120 sq.ft. and block no.7/1 admeasuring 9 x 14
sq. ft., situated on the ground floor of the Municipal House No.881,
situated at Dr. Ambedkar Road, Gurunanakpura, Pachpaoli, Nagpur.
The respondent nos.3 to 6 had purchased the said property from its
erstwhile owner by sale-deed dated 4/12/1978 and the notice of
attornment came to be issued to the petitioner on 6/12/1978. The
ground floor of the house no.881 initially had eleven shops and four
shops were later on constructed making the total fifteen. In the year
1978-79, proceedings were initiated for eviction against the
petitioner bearing Revenue Case No.473/A-71(2)/1978-79, which
came to be dismissed on 10/4/1980 for want of jurisdiction. The
respondent nos.3 to 6 thereafter instituted Regular Civil Suit
WP124 of 2010.odt
No.481/1983 on the ground that the tenancy of petitioner was void
and claimed possession, which came to be dismissed by judgment
dated 21/6/1985, which came to be challenged by way of Regular
Civil Appeal No.67/1986, in which on 13/6/1986, the rent for the
period from 1/1/1983 to 31/6/1986 amounting to Rs.10,500/-
came to be deposited. Regular Civil Appeal No.67/1986 was also
dismissed.
3. The respondents-landlords thereafter initiated
proceedings under the C.P. & Berar Letting of Houses and Rent Control
Order, 1949 (for short, "the Rent Control Order, 1949", hereinafter),
claiming permission to terminate the tenancy of the petitioner under
Clause 13 (3) [(ii)-habitual default], [(vi)- bonafide need] and [(vii)-
carrying essential repairs which cannot be made without vacating
tenant]. This came to be numbered as Revenue Case No.542/1987-88,
which came to be dismissed in default on 11/4/1991.
4. The respondents-landlords thereafter instituted
Revenue Case No.264/A-71(2)/95-96 on 11/6/1996 under Clause
13 (3) (ii) (iii) (v) (vi) (viii) and (ix) of the Rent Control Order,
WP124 of 2010.odt
1949, seeking permission to terminate the tenancy. In these
proceedings, one of the landlords, namely Sardar Bhupendrasingh
s/o Sardar Ratansingh Arneja had examined himself and deposed
about the requirement of the tenanted premises on account of the
need to shift their business, which was carried out in four tenanted
premises at Central Avenue under the name "Bombay Scooter
Agency", at Hanuman Nagar under the name "Bombay Scooter
Centre" and at Sitabuldi under the name "New Bombay Scooters".
He further deposed that the tenancy was commenced on 5 th of each
English calender month and the rent was payable in advance, which
was never paid. He relied upon the proceedings instituted before
the Civil Court in Regular Civil Suit No.481/1983 for recovery of
rent, which was decreed and Regular Civil Appeal No.67/1986 in
which a sum of Rs.10,250/- on account of arrears of rent was
deposited by the tenant. He, however, admitted that the tenant was
paying the rent by money order, which was being received by him.
5. On behalf of the petitioner, the tenant examined himself
and opposed the claim of the landlords. The evidence of the tenant
has not been placed on record in the present petition.
WP124 of 2010.odt
6. The learned Rent Controller, by his order, dated
20/11/2004 rejected permission under Clause 13 (3) (viii) and (ix)
of the Rent Control Order, 1949, however, granted permission to
issue notice to terminate the tenancy under Clause 13 (3)(ii) (iii)
(v) and (vi) of the Rent Control Order, 1949. The petitioner being
aggrieved by the same, preferred an appeal under Clause 21 of the
Rent Control Order, 1949. The Additional Collector, Nagpur by the
judgment dated 30/12/2006 partly allowed the same and set aside
the permission granted under Clause 13 (3) (iii) and (v), but
maintained the permission as granted under Clause 13 (3) (ii) and
(vi) of the Rent Control Order, 1949 .
7. The landlords issued a notice to quit on 25/11/2004
and filed a suit for eviction and possession before the learned Judge
Small Causes, which came to be decreed on 6/8/2007 against which
an appeal came to be filed, which has been stayed by this Court
while admitting the present matter.
8. Shri Dhore, learned Counsel for the petitioner submits
that the authorities below ought not to have granted permission
WP124 of 2010.odt
under Clause 13 (3) (ii) and (vi) of the Rent Control Order, 1949
also. He submits that in so far as the grant of permission under
Clause 13 (3) (ii) of the Rent Control Order, 1949 is concerned, the
landlord in his evidence has admitted that he was receiving rent
from the tenant by way of money order. The decree for arrears of
rent as passed in Regular Civil Suit No.481/1983, was long back in
the future and thereafter also the landlord continued to accept the
rent by money order from the tenant, which would indicate that the
landlord had never insisted the rent to be paid by particular date in
advance every month. He submits that the conduct of the landlord
in accepting the rent, as tendered by money order without any
demur, would indicate absence of the ground under Clause 13 (3)
(ii) of the Rent Control Order, 1949. He submits that in case the
landlord wanted the rent to be paid by particular time in advance, it
was necessary for the landlord to have issued notice in this regard
making such a demand and absence of such notice clearly indicates
otherwise. He, therefore, submits that there was absolutely no
material on record for the authorities below to have arrived at a
finding of requirement of Clause 13 (3) (ii) of the Rent Control
Order, 1949 having been satisfied.
WP124 of 2010.odt
9. In so far as Clause 13 (3) (vi) of the Rent Control Order,
1949 is concerned, Shri Dhore, learned Counsel submits that the
evidence of the landlord in this regard is contradictory in as much
as, he, in his evidence states regarding shifting of the shop at
Hanuman Nagar as well as the shop at Sitabuldi, whereas in the
application there is no mention regarding shifting of the shop at
Hanuman Nagar. Learned Counsel further submits that there are as
many as 15 shops on the ground floor and there is nothing on
record, to indicate that the shop blocks occupied by the present
petitioner are most suitable. He, therefore, submits that on this
ground also, the permission granted under Clause 13 (3) (vi) of the
Rent Control Order, 1949 cannot be sustained. Shri Dhore, learned
Counsel for the petitioner places reliance upon Rashik Lal and
others Vs. Shah Gokuldas, AIR 1989 SC 920 to contend that the
conduct of the landlord in accepting the rent offered belatedly
without any protest would indicate the absence of the requirement
in respect of a ground under Clause 13 (3) (ii) of the Rent Control
Order, 1949. Further reliance is placed on Vinodkumar Atmaramji
Choudhary Vs. Resident Deputy Collector, Amravati and another,
1998 (1) Mh.L.J. 632 to contend that in absence of a notice by the
WP124 of 2010.odt
landlord, asking the tenant to make payment of rent regularly every
month, the plea of habitual defaulter cannot be sustained. He
further relies upon Dwarkadevi wd/o Jagdishprasad Choudhary Vs.
Narsingdas Rampratap Sharma, 1987 SCC OnLine Bom 15 to submit
that mere desire of the landlord is not enough to prove bonafide
need and there must be certain element of necessity.
10. Shri Purohit, learned Counsel for the respondent Nos.3
to 6 - landlords on the other hand submits that the institution and
prosecution of Regular Civil Suit No.481/1983 for recovery of the
arrears of rent was a sufficient indication to the tenant that the
landlord had insisted the payment of rent by a particular date every
month. He further submits that there was no requirement for
issuance of any notice at any point subsequent thereto as the
intention of the landlords clearly stood manifested by their earlier
conduct.
11. In so far as the need was concerned, learned Counsel
Shri Purohit submits that the landlords were carrying business in
four different locations in tenanted premises, which position was
WP124 of 2010.odt
not disputed and therefore, the need to shift to their own premises
in the occupation of the petitioner indicated that the need was
genuine. The pursuation of the legal proceedings against the
petitioner tenant since 1978-79, according to him, indicates the
existence and intensity of the need. Learned Counsel also submits
that nothing has been brought on record by the tenant regarding the
other shops in house no.881, which were already occupied by the
other tenants. Relying upon Gulshera Khanam Vs. Aftab Ahmad,
(2016) 9 SCC 414, learned Counsel submits that an enquiry under
Article 226 is required to be confined to an examination as to
whether there was any jurisdictional error committed by the lower
authorities and the Writ Court is not permitted to sit as an Appellate
Court while considering the judgments of the lower authorities. He
further submits that under the erstwhile Rent Control Order, 1949, it
was the landlord who was to be the sole judge of his need and the
tenant could not dictate as to what premises would satisfy the need
of the landlord. He, therefore, submits that the impugned orders
could not suffer from any jurisdictional error and merely because
another view could be possible, based upon the facts and
circumstances, the same ought not to be taken. He further submits
WP124 of 2010.odt
that even if there is an error of fact, still this Court ought not to
interfere, for which reliance is placed upon Indian Scientific Glass
Industries Vs. M. K. Mahipalsingh, 2018 (2) Bom. C.R. 539 (para
36). He, therefore, submits that the impugned orders are required
to be maintained.
12. In so far as the plea regarding grant of permission
under Clause 13 (3) (ii) of the Rent Control Order, 1949 of the
tenant being in habitual defaulter is concerned, admittedly, in the
instant matter, the proceedings earlier initiated for termination
namely, Revenue Case No.542/1987-88 came to be dismissed in
default on 11/4/1991, which were later in point of time to the
payment of rent in Regular Civil Appeal No.67/1986, in which the
rent for the period from 1/1/1983 to 31/6/1986 was paid. However
thereafter, the landlord had been accepting the rent as tendered by
the petitioner by money order, which position is not disputed. No
notice whatsoever had been issued by the landlord, as contemplated
by Vinodkumar Atmaramji Choudhary (supra), putting the tenant
on notice that he would be requiring the payment of rent on or
before a particular date in advance, every month. That being the
WP124 of 2010.odt
position, in view of the conduct of the landlord in continuing to
accept the rent, as tendered by the petitioner-tenant, the permission
under Clause 13 (3) (ii) of the Rent Control Order, 1949 ought not
to have been granted by the authorities below, as the same is clearly
contrary to the law laid down by the Hon'ble Apex Court in Rashik
Lal (supra) and Vinodkumar (supra). The permission therefore
under Clause 13 (3) (ii) of the Rent Control Order, 1949, as granted
by the authorities below, cannot be sustained and is accordingly
quashed and set aside.
13. In so far as the permission granted under Clause 13 (3)
(vi) of the Rent Control Order, 1949 is concerned, it is not in dispute
that the landlords are carrying out their business in four different
areas of the city, which are tenanted premises. It is not a case that
there is a single landlord. The family of the landlord comprises of
four persons as respondent nos.3 to 6 and their family. The need to
shift the business of sale of scooters spares, from a tenanted
premises to a premises, owned by the landlords, cannot be said to
be a need, which is illusory or not imminent. The authorities below
on this ground have concurrently held that the need was genuine
WP124 of 2010.odt
and had granted permission. Nothing has been brought in the cross-
examination of the landlord to indicate otherwise. The contention of
learned Counsel Shri Dhore, that there is no pleading in the
application, seeking permission, regarding shifting of the business
from the tenanted premises to the premises in question, is incorrect
for the reason that in para 5 of the application, a specific plea has
been raised that the applicants/landlords intend to shift their
business in the premises at Sitabuldi and Central Avenue to the
premises in question. The further submission that the landlord in his
evidence states that the shop at Hanuman Nagar and the two shops
at Central Avenue are required to be shifted, is not of such a
consequence so as to denude the plea of bonafide need, as the plea
of shifting of the shops at Central Avenue was already there in the
application. The contention of Shri Dhore, learned Counsel for the
petitioner, that the landlord has not brought on record the area of
the business premises which was in his occupation and the area
available in the tenanted premises, relying upon Dwarkadevi
(supra), is also of no avail for the reason that area of the tenanted
premises is already on record, which has been indicated above. In so
far as the area of the shops occupied by the landlord in the tenanted
WP124 of 2010.odt
premises in four different locations is concerned, it is not necessary
that the areas of those shops need to be disclosed, as it is not the
case of the landlords that all the four shops would be closed down
and shifted to the tenanted premises. The reliance therefore on
Dwarkadevi (supra) is clearly misplaced, also for the reason that the
nature of the business, which is being conducted by the landlord in
the tenanted premises is on record.
14. That being the position, I do not see any reason to
interfere with the findings rendered by the authorities below in so
far as grant of permission to terminate the tenancy of the tenant on
the ground of bonafide need as contemplated under Clause 13 (3)
(vi) of the Rent Control Order, 1949. The writ petition is, therefore,
partly allowed in the above terms. Rule accordingly. In the
circumstances, there shall be no order as to costs.
(AVINASH G. GHAROTE, J.)
Wadkar
