1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.761 OF 1992 1 Smt.Surjabai Kevalchand Dhadiwal (since deceased by heirs & L.Rs 1A.Mohan Kevalchand Dhadiwal 1A(i) Ashahbai Mohanlal Dhadiwal 1A(ii)Poonamkumar Mohanlal Dhadiwal 1A(iii)Madhuri Mohanlal Dhadiwal 1A(iv) Komal Mohanlal Dhadiwal 1A (v)Bhupesh Mohanlal Dhadiwal 1B Balu Kevalchand Dhadiwal 1C Ratnabai Madallal Sakhala 1D Sushila Satishkumar Bothana 2 Mohan Kevalchand Dhadiwal 2a(i) Smt.Ashabai Mohanlal Dhadiwal 2a(ii) Poonamkumar Mohanlal Dhadiwal 2a(iii)Madhuri Mohanlal Dhadiwal 2a(iv) Komal Mohanlal Dhadiwal 2a(v) Bhupesh Mohanlal Dhadiwal 3 Balu Kevalchand Dhadiwal 4 Kesharchand Ramchand Somani 4A Omprakash Kesharchand Somani 5 Chandrabhagabai Kesharchand Somani 6 Dr.Bhaskar Waman Khot (since deceased through L.R) 6A Sainath Khot ...Petitioners vs. 1 Sadashiv Sawalaram Gaikwad (since deceased through L.Rs.) 1A Smt Ramabai Sadashiv Gaikwad 1B Shirpa Sadashiv Gaikwad 1C Shashank Sadashiv Gaikwad 1D Kushwant Sadashiv Gaikwad 2 1E Shalini Dattatraya Pingale 1F Shobha Deoram Gawale 1G Shaila Shankarrao Shinde 2 Dr.Shashikant Pandurang Waze ...Respondents Mr.Madhav Jamdar for the petitioners Mr.Prafulla B. Shah for the respondents CORAM :A.S.OKA,J. DATE : AUGUST 14, 2009 ORAL JUDGMENT : 1 The submissions of the learned counsel for the parties were heard on the earlier date. By this petition under Article 227 of the Constitution of India, the petitioners have taken an exception to the Decree of eviction passed under the Bombay Hotel and Lodging Rates (Control) Act,1947 (hereinafter referred to as the Bombay Rent Act). 2 The suit property subject matter of the dispute is a land bearing plot no.5 out of survey no.235/B-2B situated at Ambedkar Nagar, Nasik Road, Nasik. The original owner (original plaintiff) Sadashiv executed a registered a lease dated 28 th October 1948 in favour of Kewalchand Dhadiwal (original tenants) and predecessor of the petitioners. The lease was for a period of 10 years in respect of the said plot no.5 which was stated to be an open plot (the Plot no.5 is hereinafter referred to as 3 the suit plot ). 3 After the suit plot was let out, a structure was built upon the said plot by the original tenant. It must be noted here that after the demise of the original tenant in the year 1966, the original plaintiff filed a suit for eviction by invoking the provisions of 13(1) (i) of the Bombay Rent Act. The ground pleaded was that the original plaintiff requires the suit plot for erection of a new building. The suit was decreed by the trial court. The decree was reversed in Appeal. It appears that on 18 th December 1969 the original plaintiff obtained a permission for construction of a building. On the basis of the said permission, in June 1970 a notice was addressed by the original landlord to the legal representatives of the original tenant. By the said notice, the tenancy was purportedly terminated and a demand was made for delivery of vacant possession. Subsequently, in the year 1973, a fresh suit for eviction was filed by the original plaintiff on the same ground under section 13(1) (i) of Bombay Rent Act. The said suit came to be dismissed. The decree of dismissal was challenged by the original plaintiff by preferring an appeal. During the pendency of the appeal, the original plaintiff expired. By the impugned Judgment and Decree dated 13 th January 1993, the learned 4 Additional District Judge interfered with the decree of dismissal passed by the trial court and a decree for possession was passed in favour of the plaintiffs. It is this decree which is made the subject matter of challenge by filing the present writ petition. 4 The learned counsel for the petitioners firstly submitted that there is no finding recorded by the District Court holding that the bonafide need has been established by the original plaintiff. He invited my attention to the findings recorded by the District Court and in particular finding recorded in paragraph 12 of the impugned Judgment. He submitted that the District Court had proceeded on the footing that in a suit filed by the landlord where the ground is under section 13 (1) (i) of the Bombay Rent Act, all that the landlord has to establish is that he has obtained a permission for construction of the building and he has sufficient funds and capacity to construct the building. He submitted that the entire case of the original plaintiff has been considered by the learned Additional District Judge in the light of what is observed in paragraph 12 of the Judgment. He placed reliance on a decision of the learned Single Judge of this court in the case of Vasant Bandoo Kulkarni Vs. Yasin Ahmed Mujawar (since deceased by legal 5 representatives) Sharif Yasin and others [1998 (3)Mh.L.J. 62). He invited my attention to what is held by this court in paragraphs 11 and 12 of the said decision. He submitted that as a condition precedent for passing the decree for eviction on the said ground, the landlord has to establish his reasonable and bonafide requirement irrespective of the fact that he has obtained a building permission from the local authority and he was possessing sufficient funds for construction of the new building. He has also placed reliance on the decision of the Apex Court in case of Dinanath and another Vs. Gopala Krishna (dead) by L.Rs. (AIR 1990 SC 1355) in support of the said proposition. He has placed reliance on certain other decisions of this court by pointing out that even on merits the plaintiffs have no case. He contended that the alleged bonafide need is set out in the plaint only in one sentence. He submitted that that no particulars of bonafide need have been pleaded and no material facts have been pleaded in the plaint. Even the evidence of the landlord is very sketchy on this aspect. He submitted that it is obvious that there are other properties in the vicinity of the suit plot where the landlord could have carried out the construction. He submitted that even on merits, this is the case where bonafide need was not established. The last submission made by 6 him is based on the fact that one of the legal representatives of the landlord viz; the respondent No.1-G filed a suit for partition claiming 1/7 th share in the suit plot and the said suit has been partly decreed by holding that the said respondent 1-G was entitled to 1/38 th share in various properties including the suit plot. It is pointed out that the First Appeal against the said decree is pending in this court. He submitted that this factor also needs to be considered as in view of pendency of the appeal against decree, it is not clear as to who will get the possession of the suit plot as and when the decree for partition is executed. 5 The learned counsel for the respondents (legal representatives of the original plaintiff landlord) has invited my attention to a decision of the Division Bench of this court in case of Bharat Petroleum Corporation Ltd. vs. Anil N.Rodrigues [2005(2) Bombay cases Reporter 672). He invited my attention to what is held by the Division Bench of this court in paragraph 13 of the said decision. He submitted that the Division Bench has held that what is required to be established for passing a decree for eviction under section 13(1) (i) is that the landlord was desirous of constructing a new building, the landlord has obtained necessary sanction to construct and he has means to construct a 7 building. His submission is that in view of pronouncement of law by the Division Bench of this court, the decision of the learned Single Judge in case of Vasant Kulkarni (supra) cannot be read as a binding precedent. He therefore submitted that what is observed in paragraph 12 of the impugned Judgment is consistent with what is held by the Division Bench of this court in the case of Bharat Petroleum Corporation Ltd. (supra). Therefore, under section 13 (1) (i) the landlords is not required to plead and prove the bonafide requirement. 6 The learned counsel for the respondents invited my attention to various findings recorded by the Appellate Court. He submitted that no other property was available for the landlord where he could have constructed a building. He submitted that merely alleging that another property is available to a landlord is no ground to defeat the ground 13(1) (i). He submitted that even the Appellate Court has considered the entire evidence on record and has examined the case of the landlord of bonafide requirement. He submitted that independently of observations made in paragraph 12 of the Judgment, the evidence on record has been examined by the Appellate Court and the finding regarding existence of bonafide 8 requirement has been recorded by the Appellate Court which warrants no interference. He submitted that merely because one of the heirs of the deceased landlord has obtained a decree for partition, bonafide need is not at all affected. He, therefore, submitted that no interference is called for. 7 The learned counsel for the petitioner submitted that what is observed by the Division Bench in paragraph 13 in the case of Bharat Petroleum Corporation Ltd.(supra) is not the ratio. He submitted that the issue which came up for consideration of the Division Bench was totally different. He submitted that in fact the Division Bench has upheld the decision of the learned Single Judge in case of Vasant Kulkarni (supra) which in turn is based on a decision of the Apex Court in case of Dinanath and another Vs.Gopala Krishna (dead) by L.Rs. (AIR 1990 SC 1355) and in any case, what is binding on this court is the decision of the Apex Court in the case of Dinanath and another (supra). 8 I have given careful consideration to the submissions made by the learned counsel for the parties. 9 It will be necessary to deal with the last 9 submission made by the learned counsel appearing for the petitioner based on the decree for partition obtained by one of the legal representatives of the deceased landlord. The decree is a preliminary decree for partition as is evident from the copy of the decree annexed (Exhibit-D) to the petition. It must be noted here that the writ petition arises out of the suit filed in the year 1983. The preliminary decree is passed on 21 st June 1991. What is operating today is a preliminary decree declaring the shares of various legal representatives of the deceased landlord. The decree has been passed not only in respect of the suit plot but in respect of the large number of immoveable properties both landed and house properties. Even assuming that the decree of eviction passed by the District court is confirmed by this court, the preliminary decree of partition will not prevent or stop the construction of the new building on the suit plot. The decree for partition relates to large number of properties. The tenant cannot take undue advantage of the system in which suits/proceedings remain pending for years. This writ petition is of the year 1992 which has reached for final hearing in the year 2009. In the year 2009, this court is dealing with the suit filed in the year 1973 on the ground of bonafide requirement of the landlord. The 10 preliminary decree for partition has been passed in the year 1991 and an appeal against the said decree is still pending. With the passage of time, new developments such as one of the heirs of original plaintiff-landlord filing a suit for partition are bound to happen. A preliminary decree for partition in respect of the large number of other properties held by the deceased landlord will not affect the merits of the suit filed on the ground under section 13 (1) (i) of the Bombay Rent Act and therefore, last submission deserves to be rejected. 10 It will be necessary to consider to the decision in case of this court in the case of Vasant Kulkarni (supra). The said decision was in a writ petition filed by the plaintiff- landlord who had filed a suit for possession on the ground of bonafide requirement under section 13(1) (i) of the Bombay Rent Act. What was let out by him was an open plot in favour of the tenant. The trial court accepted the case of the landlord under section 13(1)(i) of the said Act. Against the decree of the trial court, an Appeal was carried to the District Court which was allowed. The decree for possession was set aside. Various submissions were made by the landlord in support of the writ petition. One of the submissions made on behalf of the landlord was that if the landlord has obtained 11 sanction for construction and that he has an honest intention to construct a building, it will not be open for the court to reject the case of the landlord unless the court finds that the said case is malafide or dishonest. One of the contentions raised by the tenants was that the case will fall under section 13(1) (g) of the Bombay Rent Act and therefore, the issue of hardship as required by sub section 2 of section 13 of the Bombay Rent Act will have to be considered. Another submission on the part of the tenant was that even assuming that section 13 (1) (i) was applicable, it was not enough for the landlord to show that he has got sanctioned plan and he possesses necessary means but he must prove his bonafide and reasonable requirement. The submissions were answered by the learned Single Judge of this court. It will be necessary to consider what is held by this court in paragraph 11 of the said decision which reads thus : 11Mr.Walawalkar contends that once the landlord has got the plans sanction and prepared the estimate and led evidence to establish his financial position, nothing further should be required to be proved by the landlord. When the landlord offers proof by way of sanctioned plan and his financial 12 ability and says nothing more, the Court is not required to launch on an inquiry as to test bona fides of the landlord. According to Mr.Walawalkar, such an inquiry would be beyond the scope of section 13(1) (i). The argument is devoid of any substance. In order to succeed under section 13(1) (i), it is obligatory for the landlord to establish that the plot of land is bona fide and reasonably required by him for the erection of a new building. The two expressions used in the section are `reasonably and `bona fide . The expressions reasonably and bona fide does not mean that the landlord has to prove mere financial capacity and the sanction of the authorities. The section clearly requires that reasonable and bona fide requirement must be established by the landlord irrespective of the fact that he has obtained sanction from the municipal authorities and he is in possession of necessary funds. The Apex Court had an occasion to consider a similar provision under Karnataka Rent Control Act in Dinanath Vs. Gopala Kirshna AIR 1990 SC 1355. It was observed in paragraph 4 of the judgment : 13 The High Court, in our view, had misunderstood the scope of clause (1). The learned Judges understood it to mean that all that the landlord had to prove was that he had the financial capacity and had acquired the necessary sanction of the concerned authority. That the expressions reasonably and bona fide require more than mere financial capacity and the sanction of the authorities was not appreciated by the High Court. These two expressions are present in Clause (h) also, but that clause deals with a different situation and it cannot, therefore, be read in to clause 91). But the expressions in both the provisions must be understood with reference to the evidence adduced by the landlord as to the reasonableness and the bona fide character of his requirements. While clause (h) refers to a landlord s requirement of occupation of an existing building, clause 91) refers to a vacant land required by the landlord for construction of new building. His reasonable and bona fide requirement must be established by the landlord, irrespective and independent of any 14 sanction which he may have obtained from the local authority. That the landlord has obtained the necessary sanction of the local authority and that he is financially capable of constructing a building will not by themselves meant that his requirements are reasonable and bona fide. Although his financial capacity may be one of the elements which may be taken into account, that by itself, in our view, would not be sufficient to establish the reasonableness and the bona fide character of his requirements. (Emphasis added) As is apparent from paragraph 11, the view taken by the learned Single Judge is based on the decision of the Apex Court in the case of Dinanath and another (supra) which is a binding precedent. In the case of Dinanath and another (supra), the Apex Court was dealing with the provisions of Karnataka Rent Control Act,1961. After considering the relevant clauses (h) and (l) of sub section 1 of section 21 of the said Act of 1961, the Apex Court considered the clause (l). The said clause (l) of section 21 (1) of the said Act of 1961 is substantially similar to clause (i) of section 13(1) of the 15 Bombay Rent Act. The Apex Court held that the financial capacity of the landlord or the sanction obtained from the local authority is not sufficient to establish the reasonable or bonafide character of the requirement. The law laid down by the Apex Court will squarely apply to a suit under section 13(1) (i) of the Bombay Rent Act and therefore, in such a suit mere financial capacity and building permission obtained by the landlord will not be sufficient to prove bonafide and reasonable the requirement of obtaining possession of the plot on the ground incorporated in section 13(1) (i) of the Bombay Rent Act. 11 Now at this stage it will be necessary to consider the decision of the Division Bench in case of Bharat Petroleum Corporation Ltd. (supra). The matter before the Division Bench arose on a reference. The controversy subject matter of the reference has been summarised by the Division Bench in paragraphs 2 and 3 of the said decision. Paragraphs 2 and 3 read thus : 2 The controversy which falls for consideration before this court is as to which clause of section 13(1) of the Bombay Rent Act is attracted in a case where the premises is an open land and eviction is sought for the construction 16 of the building which is for the occupation of the landlords themselves or otherwise. In one judgment in the case of Abdul Rehman @ Iqbal Faijukhan Pathan since deceased through, L.Rs. Smt.Saguma and others V. Kamalaben Mohanlal Shah), reported in 1999 (3) Bom.C.R. 183 : 1999 (2) Mh.L.J. 592 the learned Single Judge (T.K.Chandrashekhara Das, J.) held that since the landlords needed the premises for their own occupation after completion of the construction of the new building, the case would fall under section 31(1) (g) and not under section 13 (1) (i). It was further held in the said case that once the case fell under the provisions of section 13 (s1) (g), it was the duty of the trial court to have framed an issue under section 13(2) to examine the comparative hardship of the landlord and the tenant. 3 On the contrary, in other judgments of this Court viz. In the case of (Badriprasad K. Agarwal & others V. Premier Garage & others), reported in 1980 Bom. C.R. 12: 1980 (1) RCJ (Bom) 385, the learned Single Judge R.A.Jahagirdar, J) held that in a case 17 where landlord was seeking possession of the premises of the open land for erection of new building, the case would fall under section 13 (1) (i) irrespective of the fact whether the landlord wants to personally occupy the said building or not. Similar view was taken by the another learned Single Judge (A.P.Shah,J.) of this court in the case of Vasant Bandoo Kulkarni V. Yasin Ahmed Mujawar since deceased by L.Rs. Sharif Yasin and others), reported in 1998 (4) Bom. C.R. 455 : 1998 (3) Mh.L.J. 62 wherein the learned Single Judge took a view that a suit for possession of an open land let out to the tenants claiming eviction for construction of the building would be governed by the provisions contained in section 13(1) (i) of the Act 12 Thus, the main controversy which arose before the Division Bench was whether section 13 (1) (g) or 13(1) (i) will apply to a case where landlord wants premises which is an open land for construction of a building. The other issue considered by the Division Bench is regarding applicability by sub section 2 of section 13 to a suit under section 13 (1) (i) of the Bombay 18 Rent Act. In paragraph 13 of the said decision, the Division Bench has observed thus : 13The learned Single Judge in the case of Abdul Raheman (supra) has made a reference to the Judgment of the Apex Court in the case of Ramniklal Pitambardas Mehta vs. Indradaman Amratical Sheth, reported in A.I.R. 1964 S.C. 1677. In that case, the Apex Court was required to consider whether the provisions of section 13 (1) (g) and section (1) (hh) were applicable to the facts of the said case and, in the context of the said controversy which was before the Apex Court, the Apex Court has made those observations in para 15 of the said Judgment. The Apex Court was not required to consider whether the provisions of section 13(1) (i) were attracted in the said case. Clause (hh) was inserted by amending section 61 of the Amendment Act 53 of 1950. The said clause is applicable in cases where the premises are required for demolishing the existing building and for erecting a new building on the same premises. Section 13(1) (i), on the contrary, contemplates a situation where the landlord seeks eviction of 19 tenant of an open plot of land and requires it for an erection of a new building. The word residential which was earlier found in the said section has been deleted by Amendment Act 53 of 1950 vide section 9(1) (c) of the Amendment Act. Thus, all that had to be proved by the landlord who had given an open plot of land to the tenant was that he required the land for erection of a new building irrespective of the fact whether the building was required for residential or commercial occupation. It necessarily follows that therefore, the only requirement which had to be proved by the landlord in the case under section 13(1) (i) was that he wanted to construct a new building and he had means and necessary sanction or permission to construct a new building. The moment these facts are proved by the landlord, he would be entitled to evict the tenant... (Emphasis added) 13 It must be noted here that the conflict of view which was referred to the Division Bench arose in the case of Abdul Rehman (supra) on the one hand and in cases of Badriprasad (supra) and Vasant Kulkarni (supra) on the other hand. 20 After considering the entire law on the aspect, the Division Bench in paragraph 18 has held thus : ...In the said case also, the question which was required to be considered by the Court was : whether in a case where the landlord wanted to construct a new building for the purpose of his own occupation whether section 13(1) (g) would be attracted or 13(1) (i) would be applicable ? The learned Single Judge relying upon the judgment in the case of Badriprasad K. Agarwal & others (supra) and other two judgments referred to