Bombay High Court

Smt. Savita W/O Udaybhan Chachada vs Smt. Vijayabai W/O Shyamrao Suple ... on 30 March, 2022

Bench: Manish Pitale

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.

                           WRIT PETITION NO. 3292                           OF 2021


PETITIONER :                                    Smt. Savita W/o Udaybhan Chachada,
(ORIG. PLTFF.)                                  Aged about 55 years, Occu. Business, R/o
                                                54, Jagruti Bhavan, Quetta Colony,
                                                Nagpur.

                                                   -VERSUS-

RESPONDENTS :                           1.      Smt.Vijayabai W/o Shyamrao Suple, Aged
(ORIG. DEFS.)                                   about 56 years, Occ. Business,

                                        2.      Leeladhar s/o Shyamrao Suple, aged about
                                                39 years, Occ. Business,

                                                Both doing business in the name and style
                                                of M/s. Eeladhar Readymade tore, Situate
                                                in shop block on the ground floor of the
                                                building bearing Municipal Corporation
                                                House No.28/64/0 - 16 (old), 28/167/A
                                                (new), in Ward No.30, Handloom Market,
                                                Gandhibagh, Nagpur-440002.


  -------------------------------------------------------------------------------------------------------------------
                        Mr.R.M.Sharma, counsel for the petitioner.
                        Mr.B.N.Mohta, counsel for the respondents.
-------------------------------------------------------------------------------------------------------------------



                                                 CORAM : MANISH PITALE, J.

                                                 DATE            : 30.03.2022




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ORAL JUDGMENT



         Heard.

2. Rule. Rule made returnable forthwith. The writ petition is heard

finally with the consent of the learned counsel for the parties.

3. By this writ petition, the petitioner (original landlady) has

challenged judgment and order dated 20/02/2021 passed by the Court

of District Judge, Nagpur (hereinafter referred to as the "Appellate

Court"), whereby appeal filed by the respondents was allowed and the

decree of eviction granted in favour of the petitioner by the Small Causes

Court was set aside.

4. In the present case, the petitioner filed suit for eviction,

possession, arrears of rent and mesne profit against the respondents

under section 16(1)(g) of the Maharashtra Rent Control Act, 1999

(hereinafter referred to as the "Act") and sought eviction of the

respondents from the suit shop block. It was the case of the petitioner

that the whole suit property was required for the purposes of

establishing a showroom for selling readymade garments in the

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context of a business already being conducted in the name and style as

M/s. Sant Ishwar Readymade. It was contended that the petitioner

intended to demolish the whole structure and then to erect the building

and open the aforesaid showroom. The respondents filed their written

statement and denied the claims of the petitioner. They emphasized on

the fact that the building in question was occupied by other tenants also

and that the shop block being the only source of livelihood of the

respondents and no alternative premises being available, the suit for

eviction deserved to be dismissed.

5. The parties led evidence in support of their respective stands.

The Small Causes Court took into consideration the pleadings of the

parties and oral and documentary evidence on record. Thereafter, the

Small Causes Court found on facts that the petitioner had been able to

prove her case of reasonable and bona fide need, that greater hardship

would be caused to her if the suit was not decreed and that she was

entitled to the reliefs sought in the suit. Accordingly, by judgment and

order dated 02/05/2019, the suit was partly decreed and the

respondents were directed to deliver vacant and peaceful possession to

the petitioners within 30 days.

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6. Aggrieved by the said judgment and order passed by the Small

Causes Court, the respondent filed appeal under section 34 of the said

Act, raising various grounds of challenge concerning their claim that a

case for bona fide need was not made out by the petitioner and that the

respondents being in occupation of only one shop in the building, the

Small Causes Court ought not to have passed the decree in favour of the

petitioner.

7. The Appellate Court allowed the appeal by the impugned

judgment and order dated 20/02/2021, proceeding on the basis that the

suit filed by the petitioner was covered under section 16(1)(i) of the said

Act and not section 16(1)(g) thereof. The Appellate Court emphasized

on the pleading on the part of the petitioner that she sought to demolish

the entire building for erecting a new one and that such pleading could

only be read in the context of section 16(1)(i) of the said Act.

Thereupon, the Appellate Court referred to section 16(6) of the said Act

and found that since the petitioner as the landlady has failed to lead

evidence to satisfy the requirements under the said provision, the decree

for eviction could not be sustained. Accordingly, the appeal was allowed

and the decree granted by the Small Causes Court was set aside.

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8. In the present writ petition, this Court issued notice by order

dated 02/09/2021. The respondents were served and they entered their

appearance through counsel.

9. Mr. Sharma, learned counsel for the petitioner submitted that the

Appellate Court completely misdirected itself in applying section 16(1)

(i) of the said Act to the present case and that the said approach adopted

by the Appellate Court was completely in the teeth of the pleadings and

the evidence led by the rival parties before the Small Causes Court. It

was submitted that even the respondents, as appellants before the

Appellate Court, had not raised any such issue and yet the Appellate

Court came to the conclusion that the case of the petitioner fell within

the four corners of section 16(1)(i) of the said Act instead of section

16(1)(g) thereof. According to the learned counsel for the petitioner,

complete misreading of the pleadings and the evidence had rendered the

findings of the Appellate Court wholly erroneous and hence

unsustainable. On this basis, it was submitted that the impugned

judgment and order deserved to be set aside and that of the Small

Causes Court deserved to be restored. The learned counsel placed

reliance on the judgment of the Hon'ble Supreme Court in the case of

Ramniklal Pitambardas Mehta v. Indradaman Amratlal Sheth, reported

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in AIR 1964 SC 1676 and the judgment of this Court in the case of

Rajendrakumar Sharandas Sharma v. Shrikrushna Babanrao Guhe,

reported in 2010 (5) Mh.L.J. 150.

10. On the other hand, Mr.B.N.Mohta, learned counsel appearing for

the respondents, submitted that the Appellate Court took into

consideration the material available on record with particular emphasis

on the pleadings of the petitioner before the Small Causes Court.

Reference to demolition of the entire structure and intention of the

petitioner to erect a new building was enough to cover the case under

section 16(1)(i) of the said Act. It was submitted that the respondents

were in possession of only one shop in the entire building and that

therefore, this factor was taken into consideration by the Appellate

Court, while reversing the order of the Small Causes Court. It was

submitted that since the material on record led to a reasonable inference

that section 16(1)(i) of the said Act was applicable, the Appellate Court

was justified in testing the case of the petitioner on that count and

rendering the finding that the evidence led on behalf of the petitioner

fell way short of the requirements of section 16(6) of the aforesaid Act.

On this basis, it was submitted that the writ petition deserved to be

dismissed.

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11. Heard learned counsel for the rival parties and perused the

material on record. In order to examine the contentions raised on behalf

of the rival parties, it would be appropriate to refer to the pleadings in

the suit for ejectment and possession filed on behalf of the petitioner. A

perusal of the same shows that the area of the property on which the

building in question is located is about 432 sq.ft. consisting of a ground

floor and first floor, with the structure being about 80 years old at the

time when the suit was filed. In paragraphs 11 and 12, the petitioner

pleaded as follows:

"(11) The plaintiff submits that plaintiff requires whole suit property along with portion of property owned by husband of plaintiff for demolition and reconstruction and by demolishing the said suit property, plaintiff is going to construct a Mall and showroom of selling readymade garments and husband of plaintiff is already having experience of said business as he is already doing business in the name and style of M/s. Sant Ishwar Readymade. Therefore, plaintiff requires suit premises for her bonafide use and occupation for storing goods of the firm M/s. Sant Ishwar Readymade and also from where plaintiff will start business and will be doing business of readymade garments, sarees and all other dress material for which plaintiff requires whole suit property along with portion of property, which is owned by husband of plaintiff. The plaintiff has already deciding to demolish whole structure i.e. suit building as it is very old and is in dilapidated condition, so that Mall or showroom can be opened. Therefore, this suit for recovery of possession under Section 16(1)(g) of the Maharashtra Rent Control Act, 1999.

(12) The plaintiff submits that husband of plaintiff is already having business of selling sarees in the same suit building and suit premises is most advantageous for starting showroom or mall by demolishing whole

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suit property. Therefore, if decree of possession is not passed, plaintiff is going to face more hardship as compared to the defendants. No hardship is going to cause to the defendants, as defendants are not having any business from the suit premises and therefore this suit for recovery of possession under section 16(1)(g) of the Maharashtra Rent Control Act, 1999."

12. The petitioner led evidence on the basis of such pleadings, clearly

stating that she intended to erect a building to start a showroom for a

business that was already being run pertaining to readymade garments.

The pleadings and the evidence led on behalf of the petitioner shows

that it was her stated case that upon demolition of the structure, she

intended to construct a new building, which would house the showroom

for readymade garments for carrying on the aforesaid business. In

another words, the petitioner firmly stated that the building that would

be erected would be for the use of the petitioner herself for the aforesaid

business.

13. The written statement filed on behalf of the respondents and the

manner in which the petitioner was cross-examined, as also the nature of

evidence led by the respondents in support of their claims, indicates that

the respondents also proceeded to oppose the case of the petitioner for

eviction on the ground specified in section 16(1)(g) of the aforesaid Act.

Perusal of the judgment and order passed by the Small Causes Court

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shows that the issues were accordingly framed and the Small Causes

Court analyzed the pleadings and the evidence on record to return

positive findings in favour of the petitioner on the question of bona fide

need under section 16(1)(g) of the said Act.

14. In the appeal memo filed on behalf of the respondents to

challenge the judgment and order passed by the Small Causes Court, the

respondents emphasized on the alleged failure of the petitioner to make

out her case of reasonable and bona fide need under section 16(1)(g) of

the said Act, as also failure of the Small Causes Court to analyze the

material on record as regards comparative hardship, particularly in the

backdrop of the fact that the respondents were occupying only a small

shop in the entire structure.

15. It is while considering the aforesaid grounds raised in the appeal

filed by the respondents that the Appellate Court passed the impugned

judgment and order. Perusal of the impugned judgment and order

demonstrates that the Appellate Court has proceeded on the basis that

the Small Causes Court had erred in considering the case of the

petitioner under section 16(1)(g) of the said Act. On the basis of the

material available on record, the Appellate Court jumped to the

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conclusion that the case of the petitioner for eviction of the respondents

was under section 16(1)(i) of the said Act. It appears that only because

the petitioner referred to her intention to demolish the building in

question for erecting a new building, influenced the analysis of the

material on record, leading to the Appellate Court to proceed on the

basis that the case of the petitioner fell under section 16(1)(i) of the Act.

16. This Court is of the opinion that that the Appellate Court fell in

serious error in proceeding on the basis that while pleading bona fide

need, since the petitioner had divulged her intention to demolish the

building in question to erect a new building, it was enough to take out

her case from the four corners of section 16(1)(g) of the siad Act, to

place it under section 16(1)(i) thereof. Nothing else was appreciated by

the Appellate Court while rendering the impugned judgment and order.

In fact, Point No.1 framed in the impugned judgment and order was in

absence of any pleading, evidence or grounds in the appeal memo to

indicate that such a question could at all arise for consideration in the

facts and circumstances of the present case. The learned counsel for the

petitioner is justified in relying upon the judgment of the Hon'ble

Supreme Court in the case of Ramniklal Pitambardas Mehta v.

Indradaman Amratlal Sheth, (supra), wherein the Hon'ble Supreme

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Court was considering a similar provision of the Bombay Rents, Hotel

and Lodging House Rates Control Act, 1947. While dealing with a

similar situation, the Hon'ble Supreme Court referred to the relevant

provision and in that context findings were rendered. The relevant

portion of the said judgment reads as follows:

"9. The sole question to determine in this appeal is whether the respondent's case came within the provisions of Section 13 (1) (g) of the Act or fell within the provisions of Section 13 (1) (hh). We may now set out these provisions:

"13. (1) Notwithstanding anything contained in this Act but subject to the provisions of section 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied....

(g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust; or

(hh) that the premises consist of not More than two floors and are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting new building on the premises sought to be demolished."

10. A landlord can sue for the ejectment of his tenant in view of Section 13(1) for various reasons including the one that he requires the premises reasonably and bona fide for occupation by himself. The respondent alleged, and the Courts below have found, that he bona fide required the premises in the suit for occupation by himself. The respondent stated in the plaint that he would take up residence in the

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premises after overhauling it. It is on this account that the appellant submits that the case falls under Section 13(1)(hh), as the respondent wants the premises for the immediate purpose of demolishing it and erecting a new building.

11. It is further contended for the appellant that the two grounds for ejectment under clauses (g) and (hh) are mutually exclusive and therefore a landlord cannot take advantage of clause (g) when his case falls under clause (hh) in view of the immediate steps he has to take after getting possession of the premises. We need not express an opinion on this point, as, for reasons to be mentioned later, the case falls under clause (g) and not under clause (hh) of s. 13(1) of the Act.

13. .........

14. .........

15. We are therefore of opinion that once the landlord establishes that he bona fide requires the premises for his occupation, he is entitled to recover possession of it from the tenant in view of the provisions of sub-clause (g) of Section 13(1) irrespective of the fact whether he would occupy the premises without making any alteration to them or after making the necessary alterations.

16. The provisions of clause (hh) cannot possibly apply to the case where a landlord reasonably and bona fide requires the premises for his own occupation even if he had to demolish the premises and to erect a new building on them. The provisions of clause (hh) apply to cases where the landlord does not require the premises for his own occupation but requires them for erecting a new building which is to be let out to tenants. This is clear from the provisions of sub-section (3-A) which provide that a landlord has to give certain undertaking before a decree for eviction can be passed on the ground specified in clause (hh). He has to undertake that the new building will have not less than two times the number of residential tenements and not less than two times the floor area contained in the premises sought to be demolished, that the work of demolishing the premises shall be commenced by him not later than one month and shall be completed not later than three months from

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the date he recovers possession of the entire premises and that the work of erection of the new building shall be completed by him not later than fifteen months from the said date. These undertakings thus provide for a time schedule for the new building to come up into existence and ensures atleast the doubling of the residential tenements, i.e., rooms or groups of rooms rented or offered for rent as a unit: vide Section 5(12) of the Act."

17. In the case of Rajendrakumar Sharandas Sharma v. Shrikrushna

Babanrao Guhe (supra), a learned Senior Judge of this Court while

considering the provisions of the Act with which this Court is concerned

i.e. section 16(1)(g) and section 16(1)(i) of the said Act, observed as

follows:

"11. Section 16(1)(g) speaks of reasonable and bona fide need of landlord for his occupation. Thus the reasonable and bona fide requirement of landlord for self occupation is the factor on which the said provision operates. If that need is proved, the decree for eviction can be passed against the tenant. The phrases and words used in Sections 16(1)(g) and 16(1)(i) clearly shows that under section 16(1)(i), the premises are not required for his occupation by landlord. The moment landlord shows that the premises are needed by him for his own occupation, there is no question of therefore going to Section 16(1)

(i) and it is section 16(1)(g) which is only applicable. The need of demolishing the house in occupation of tenant or desire not to restore the possession of tenant, cannot be a circumstance, to doubt the bona fide personal requirement proved by the landlord. Here the landlord is stating that he wants to construct a house for self-occupation on suit plot, after tenant vacates it. There is no question of doubting his bona fides in this situation. In the process if he is constructing a big house and if he wants to let out portion thereof, either for residential or for commercial purposes, that action will not dilute the bona fides of or

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reasonableness of his need. Such design by him may be on account of various contingencies but that is not relevant to hold that clause 16(1)(g) is not attracted. IN a given case he may be required to arrange for finance and make provision for its repayment. Such planning cannot be viewed as indication of any bad faith or mala fides. I find that it is the need for his self-occupation which is of prime importance and all material ingredients in the scheme of section 16(1)(g) are established here and once such ingredients are established there is no need to go to the other provisions of section 16."

18. A clear distinction is made in such a situation concerning

proposed demolition of the building in question when the landlord

pleads that he or she intends to use the new building for his or her own

purposes and where the landlord intends to demolish the building to

erect a new building and then to let out the premises therein. In a

situation like the present case, where the landlady clearly stated that she

intended to demolish the structure for erecting a new building for

utilizing the same for her own bona fide need of opening a showroom to

carryout the business of readymade garments, the case squarely fell

within section 16(1)(g) of the said Act, in contradistinction to a case

under section 16(1)(i) thereof. Once this conclusion is reached, it

becomes clear that the Appellate Court committed grave error in