* 1 * W.P. 4280/2005 30.9.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4280 OF 2005 Kiran P. Deshmukh & Ors. ......Petitioners V/S. Prakash P. Deshmukh & Ors. .........Respondents * * * * * * Mr. P.G. Karande, Advocate for the petitioners. Mr. K.Y. Mandlik, Advocate for the respondents. Coram : Smt. R.P. SondurBaldota, J. 30 September, 2010. P.C. : 1. This writ petition filed under Article 227 of Constitution of India seeks quashing of the order dated 24th September, 2004 passed by the court of Small Causes deciding the preliminary issue of jurisdiction of the court. By the order, the Small Causes Court has held that it has jurisdiction to entertain and try the * 2 * W.P. 4280/2005 30.9.2010 suit filed by respondent no.1 being R.A.D. & E Suit No. 585/886 of 2003. 2. A brief reference to the contents of the plaint in the suit filed by respondent no.1 are necessary here. Admittedly one Hiramal Omkar Deshmukh was the tenant in respect of residential premises being Room No.2A on the first floor and a room below staircase on the ground floor on the building known as `Laxmi Niwas on L.J. Road, Shivaji Park, Dadar(West), Mumbai-400 028. At the time of his death, petitioner no.1 and respondent no.1, who are brothers, were residing in the tenanted premises as the members of his family. On the demise of Hiramal, the owners of Laxmi Niwas, respondents no.4 to 6 transferred the rent receipt in the name of respondent no.1 alone, for the sake of convenience. Petitioner no.1 and respondent no.1 continued residing together in the tenanted premises for some time. Respondent no.1 was using the room below the stair case as his office. Over the period of time after the marriage of petitioner no.1 to petitioner no.2, respondent no.1 shifted to the * 3 * W.P. 4280/2005 30.9.2010 premises at Dombivali. Since then, the petitioners alone continued to occupy the tenanted premises. The room below the staircase, since the year 1997 was being used by petitioner no.2 for running a beauty parlour therefrom. In the year 2002, the owners/respondents no.3 to 5 proposed to redevelop the property through the developer, respondent no.2. By agreement dated 31st August 2002 they gave development rights in respect of the suit building to respondent no.2 who was to develop the property by demolishing the old building standing thereon and by constructing a new building in its place. The development was to be carried out with the assistance of Maharashtra Housing Area Development Authority. Under the agreement of development, every tenant in the building of Laxmi Niwas was to be accommodated in the new building to be constructed. Thus in lieu of Room No.2A and the room below the staircase, the tenant in respect of these premises was to get two tenaments of 225 sq.feet each in the new building. 3. It appears that while furnishing a list of tenants to the * 4 * W.P. 4280/2005 30.9.2010 developers, respondents no.3 to 5 gave the names of the petitioners as the tenants though the rent receipt stood in the name of respondent no.1. The further development in the matter as regards handing over of alternate accommodation to the petitioners came to take place based upon that information. The petitioners have been given two tenaments in the new building constructed by respondent no.2. On the background of these facts, respondent no.1 filed the suit herein in the Small Causes Court for a declaration that his tenancy in respect of the premises is still subsisting and for a declaration that the agreements dated 6th February, 2003 executed between respondent no.2 and the petitioners is deemed to have been entered into between the respondent no.2 and respondent no.1. He has also sought a direction to respondent no.2 to hand over possession of the premises in the proposed building to him instead of the petitioners. 4. After receiving the summons in the suit, petitioner and respondent no.2 appeared before the court. The petitioners filed * 5 * W.P. 4280/2005 30.9.2010 an application challenging the jurisdiction of the Bombay City Civil Court to entertain and try the suit contending that the suit as filed is not covered by Section 33 of Maharashtra Rent Control Act, 1999. The Small Causes Court by its impugned order has held that the Small Causes Court has jurisdiction to entertain and try the suit. 5. Mr. Karande, the learned counsel for the petitioners, submits that, since the activity of development has taken place with the help of and through MHADA, the provisions of Maharashtra Housing Area Development Authority Act, (for short MHADA Act, 1976) are applicable to the present case and providing of alternate accommodation in lieu of the tenanted premises would be governed by MHADA Act and not the Maharashtra Rent Control Act. He further submits that even otherwise the relief of declaration of tenancy by respondent no.1 is not against the owners. The dispute as regards the tenancy has been raised against the petitioners who at the highest can be said to be co-tenants. Mr. Karande, relies upon the decision of * 6 * W.P. 4280/2005 30.9.2010 the Division Bench of this court in the case of Jaysinh Morarji Popat and anr. V/S. Gulabben Hansraj Dedhia and Ors. reported in 2003(4) Mh.L.J. 795 in support of his submission that a right created in the occupier to get accommodation in the new building that is to be erected in the place of the old building is afforded upon him as the occupier of the collapsed building. He submits that this not a case where the building in which the tenanted premises were situated, collapsed due to any natural calamity which would put an end to the rights of tenancy. In the instant case, the building has been demolished by the developer for the purpose of reconstruction and development. As against this, Mr. Mandlik, the learned counsel for respondent no.1, relies upon the decision of the Apex Court in the case of Vannattankandy Ibrayi V/S. Kunhabdulla Hajee reported in (2001) 1 SCC page 564 to submit that where tenancy was exclusively for premises and not land, it would stand extinguished if the subject matter of the tenancy were destroyed by natural calamity. Since it in the instant case, the building is not destroyed by natural calamity, * 7 * W.P. 4280/2005 30.9.2010 according to him the right of tenancy is not extinguished and pursuant to the agreement between the owners and the developers it is the tenant and i.e. respondent no.1 who will be entitled to the premises in the new building. 6. No doubt, the building in which the tenanted premises were situated has not been destroyed in natural calamity. It has been pulled down for the purpose of development and therefore the right of tenancy of respondent no.1 in the premises does not stand extinguished and there is a right available to him as a tenant. However, this claim of the premises is to be sought against respondent no.2 who has entered into the agreement with the petitioners. In the entire plaint, there is not even a whisper of complaint against respondents no.3 to 5 about the denial of the tenancy rights of respondent no.1. Therefore, there is nothing to indicate that the owners have disputed or denied the right of tenancy of respondent no.1 requiring declaration of the right of tenancy qua the owners. The petitioners are disputing the right of respondent no.1 to have premises in the newly constructed * 8 * W.P. 4280/2005 30.9.2010 building. Since at the time of the death of the original tenant, both petitioner no.1 and respondent no.1 were residing alongwith him in the tenanted premises, at the highest it is a case of dispute between the co-tenants. The right of tenancy of respondent no.1 is being disputed by his co-tenant. Such a suit is not governed by Maharashtra Rent Control Act. 7. Perusal of Section 33 of Maharashtra Rent Control Act governing the jurisdiction of courts requires that Rent Act courts have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of premises or to decide any application under the Act. One of the conditions laid down therein is that, the suit must be between a landlord and a tenant is not satisfied in the present case. No doubt, the landlords are parties to the suit. However, they are neither any allegations made against them of denial of tenancy nor any relief claimed against them. Therefore, their presence in the suit is infact superfluous. They appear to have been joined as parties only as proper parties to the suit. Their * 9 * W.P. 4280/2005 30.9.2010 mere presence does not make the suit to be a suit between a landlord and a tenant as contemplated by Section 33 of Maharashtra Rent Control Act. Any dispute between the rival tenants inrespect of the tenanted premises not being covered by the Maharashtra Rent Control Act is required to be heard and decided by a civil court. In these circumstances, the impugned order cannot be sustained. The petition is allowed. The Rule is made absolute in terms of prayer clause (b). The impugned order dated 24th September, 2004 passed in Interim Notice No.2169 of 2003 in R.A.D. & E Suit No.585/886/2003 is quashed and set aside. Interim Notice No.2169 of 2003 is allowed. The plaint is directed to be returned to respondent no.1 for presentation to proper court. [Smt. R.P. SondurBaldota, J]