ash 1 cra-79.07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.79 OF 2007 Mrs. Rukhmini Shivlingappa Deshmukh, ) Since deceased through her ) legal representatives: 1A. Shri Shivlingoppa Shivravappa ) Deshmukh, ) age about 65 years, ) Occ : retired, ) Residing at : 996 Budhwar Peth, ) Pune. ) 1B. Shri Vijay Shivlingappa Deshmukh, ) age about 30 years, ) Occ : Riksha Driver, ) Residing at : 996 Budhwar Peth, ) Pune – 411 002. ).. Applicants Vs 1. Shri Sopanrao Narhari Kalekar, ) Age about 80 years, ) Occ : Business, Residing at 997, ) Budhwar Peth, Pune – 411 002. ) 2. Shri Lakhawwa Basappa Mang, ) Adult, Occ: Nil, ) 3. Smt. Rani (Exparte), ) 4. Smt. Shobha (Exparte), ) 5. Smt. Renue (Exparte) ).. Respondents -- Shri Sugandh Deshmukh for the Applicants. Shri Balasaheb Deshmukh for the Respondent No.1. -- ash 2 cra-79.07 CORAM : A.S. OKA, J DATED : 19TH DECEMBER, 2011 ORAL JUDGMENT : . The submissions of the learned counsel appearing for the parties were heard on the earlier date. However, the judgment was not dictated to enable the Respondent No.1 to take instructions. 2. The first Respondent is the original Plaintiff and the Applicants are the Defendant Nos.1(A) and 1(B). For the sake of convenience, the parties are hereinafter referred to as per their status before the Trial Court. The suit premises consists of three rooms situated on the first floor of CTS No.996 Budhwar Peth, Pune. The Plaintiff is the landlord. The Defendant No.1 is stated to be the tenant. A suit for eviction was filed by the Plaintiff on 30th July, 2011 under the Maharashtra Rent Control Act, 1999 (hereinafter referred to as “the said Act”). Various grounds of eviction were urged. The first ground was that the first Defendant was a defaulter. Another ground was of nuisance and annoyance, illegal subletting to the second Defendant by the first Defendant. The other two grounds of eviction were bona fide requirement of the Plaintiff and non-user for the purpose for which the suit premises was let out. The suit was contested by the Defendant Nos.1(A) and 1(B) by filing a Written Statement. The Trial Court passed a decree for possession only on the ground of bona fide ash 3 cra-79.07 requirement and all other grounds were negatived. 3. An Appeal was preferred by the Defendant Nos.1(A) and 1(B). The Appeal has been dismissed by the District Court. The District Court upheld the decree on the ground of bona fide need. 4. The first submission made by the learned counsel appearing for the Defendant Nos.1(A) and 1(B) is based on the averments made in the Plaint. He submitted that under Section 16(1) of the said Act of 1999, there are two distinct grounds in the form of Clauses (g) and (i). He submitted that the averments made in the Plaint show that the requirement pleaded is of demolishing the building in which the suit premises is situated and of erecting a new building. He invited the attention of the Court to the material portion of the pleadings and the evidence of the first Respondent. He submitted that Clause (g) of Sub-section (1) of Section 16 will have no application as there was no plea that the first Respondent wants to use the suit premises for his own benefit. He submitted that the decree on the ground of Clause (i) cannot be passed unless compliance is made with the requirement of Sub-section (6) of Section 16 of the said act of 1999. He submitted that there is no finding recorded that such compliance is made out. He, therefore, submitted that the decree passed under Section 16(1)(g) of the said Act of 199 by the Courts below shows non- ash 4 cra-79.07 application of mind and the same deserves to be quashed and set aside. 5. The learned counsel appearing for the original Plaintiff submitted that the averments made in the Plaint will have to be read as a whole. He pointed out that in the Plaint, there was a specific ground under Section 16(1)(g). He submitted that there are averments made in the Plaint making a reference to the notice of demolition under Section 264 of the Bombay Provincial Municipal Corporation Act, 1949 issued in respect of the building and the observation made that the Plaintiff desires to demolish the building is in the context of the said notice. He submitted that the Plaintiff has specifically pleaded that he has five sons and he wants to ensure that all the five sons should settle down in life. He pointed out that bona fide need to occupy the suit premises is specifically pleaded in the Plaint which has been accepted by the Courts below. He submitted that the averments made in the Plaint show that the Plaintiff has not claimed possession under Clause (i) of Sub-section (1) of Section 16 of the said Act of 1999. He submitted that neither before the Trial Court nor before the Appellate Court a plea was raised by the Applicants that the clause (i) of Sub- section (1) of Section 16 of the said Act of 1999 was applicable and not the clause (g) of Sub-section (1) of Section 16 thereof. He submitted that such a contention cannot be raised for the first time in a Revision Application under Section 115 of the Code of Civil Procedure, 1908. ash 5 cra-79.07 He submitted that before the Appellate Court, the Plaintiff agitated that, in view of the admission of the concerned Defendants, the ground of nuisance was duly established and infact the decree ought to have been passed also on the ground of nuisance and annoyance. He submitted that even if the decree is to be interfered with on the ground of bona fide requirement, the decree for eviction will have to be passed on the ground of nuisance and annoyance. He submitted that this is a case where the concerned Defendants have another accommodation available and there is clear evidence to show that the suit premises is being used for illegal and immoral purposes of running a prostitution business. Hence, it is submitted that no interference is called for with the decree for eviction. 6. I have carefully considered the submissions. It is not in dispute that the original Defendant i.e. first Defendant and his legal representatives are entitled to the protection of the provisions of the said Act of 1999. When a tenant is protected by the relevant Rent Control Legislation, only on the basis of determination of tenancy, the tenant cannot be evicted. Unless one of the grounds for eviction set out in the Rent Control Legislation is established, the decree for eviction cannot be passed. In short, establishing a ground for eviction provided by the Rent Control Legislation is a sine qua non for passing a decree against the tenant protected under the Rent Control Legislation. ash 6 cra-79.07 7. It will be necessary to make a reference to the clauses (g) and (i) of Sub-section (1) of Section 16 of the said Act reads thus:- “(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;” (i) that the premises 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;” 8. It will be also necessary to make a reference to Sub-section (6) of Section 16 of the said Act. Sub-section (6) of Section 16 reads thus:- “16(6) No decree for eviction shall be passed on the ground specified in clause (i) or (j) of sub-section (1), unless the Court is satisfied- (a) that the necessary funds for the purpose of the erection of new building or for erecting or raising of a new floor or floors on the terrace are available with the landlord; (b) that the plans and estimates for the new building or new floor or floors have been properly prepared; ash 7 cra-79.07 (c) that the new building or new floor or floors to be erected by the landlord shall, subject to the provisions of any rules, by-laws or regulations made by Municipal Authority contain residential tenements not less than the number of existing tenements which are sought to be demolished; (d) that the landlord has given an undertaking,- (i) that the plans and estimates for the new building or new floor or floors to be erected by the landlord include premises for each tenant with carpet area equivalent to the area of the premises in his occupation in the building sought to be demolished subject to a variation of five per cent in area. (ii) that the premises specified in sub-clause (i) will be offered to the concerned tenant or tenants in the re-erected building or, as the case may be, on the new floor or floors; (iii) that where the carpet area of premises in the new building or on the new floor or floors is more than the carpet area specified in sub-clause (i) the landlord shall, without prejudice to the liability of the landlord under sub-clause (i), obtain the consent “in writing” of the tenant or tenants concerned to accept the premises with larger area; and on the tenant or tenants declining to give such consent the landlord shall be entitled to put the additional floor area to any permissible use; (iv) that the work of demolishing the premises shall be commenced by, the landlord not later than one month, and shall be completed not later than three months, from the date he recovers ash 8 cra-79.07 possession of the entire premises; and (v) that the work of erection of the new building or new floor or floors shall be completed by the landlord not later than fifteen months from the said date: Provided that, where the Court is satisfied that the work of demolishing the premises could not be commenced or completed, or the work of erection of the new building or, as the case may be, the new floor or floors could not be completed, within time, for reasons beyond the control of the landlord, the Court may, by order, for reasons to be recorded, extend the period by such further periods, not exceeding three months at a time as may, from time to time, be specified by it, so however that the extended period shall not exceed twelve months in the aggregate.” 9. Clause (g) has application when the suit premises subject matter of tenancy is required reasonably and bona fide by the landlord for occupation of himself or for occupation any other person for whose benefit the suit premises is held. Clause (i) is applicable when the suit premises is reasonably and bona fide required by the landlord for immediate purpose for demolishing the same and such demolition is to be made for the purposes of erecting a new building on the premises sought to be demolished. Thus, clauses (g) and (i) of Sub-section (1) of Section 16 of the said Act of 1999 operate in completely different fields. Clause (i) is applicable when the possession of the suit premises is reasonably and bona fide required by the landlord for demolition of the structure in which the suit premises is situated. In such a case the demolition is required to be made for the purposes of erecting a new ash 9 cra-79.07 building. In such a case, Sub-section (6) is applicable which provides that the decree under Clause (i) cannot be passed unless the Court is satisfied with the compliance of various conditions. One of the conditions is that the plan of the newly proposed building should be properly prepared. One of the important conditions incorporated in Sub-section (6) is that the landlord is required to give an undertaking containing various Clauses including the clause that a premises will be offered to the concerned tenant or tenants in the re-erected building. Compliance to Sub-section (6) is not necessary when the decree is to be passed under Clause (g). In the present case, it is not the case made out by the Plaintiff that there was a compliance made with Sub-section (6) of Section 16 of the said Act of 1999. It is true that the contention that the need pleaded was under Clause (i) and the Clause (g) was not agitated in the Courts below. However, the said contention is specifically raised in the Revision Application contending that Section 16(1)(g) has no application. As pointed out earlier the existence of a ground provided in Section 16 is a condition precedent for passing a decree for eviction. While raising the aforesaid contention, the Defendant Nos.1(A) and 1(B) are not seeking to rely upon any factual aspect which was not before the Courts below. On the contrary, the contention is that going by the case made out by the Plaintiff himself, Clause (g) will have no application. Therefore, the submission in effect is a legal submission which goes to the root of the matter and, ash 10 cra-79.07 therefore, the same will have to be permitted to be agitated. 10. Perusal of the Plaint shows that in the second paragraph thereof, the allegation is regarding arrears of rent. In third paragraph, the allegation is of illegal subletting in favour of the second Defendant who is allegedly carrying on the business of prostitution in the suit premises. The third paragraph is essentially based on the ground of nuisance and annoyance. The paragraph 4 of the Plaint begins with the statement that the building is very old and the Municipal Corporation has issued a notice under Section 264 of the Bombay Provincial Municipal Corporations Act, 1949. It will be necessary to make a reference to the relevant Paragraph 4 of the Plaint. “4. .....The Municipal Corporation of the City of Pune has noticed that he said structure is in dangerous condition and therefore it had issued notice under Section 264 of B.P.M.C. Act. This Plaintiff submits that the said construction was carried out in mud and bricks. The present repairable material i.e. Cement and steel cannot be used for the purpose of repairing the suit premises. It has, therefore, become necessary to demolish the old structure and construct new structure. If the old structure is allowed to stand as it is, it is likely that it will fall any time and it may cause damage to the passers-by as well as the occupiers. This Plaintiff further submits that if the suit property is collapsed, this Plaintiff will suffer damage to his own property. It is, therefore, necessary that the same should be demolished and be constructed newly. This Plaintiff further states that he is in possession of necessary funds for the purpose of construction to the extent of ground floor only. This Plaintiff is a business-man in ash 11 cra-79.07 clothes. This Plaintiff is having 5 sons. The Plaintiff wants that his sons should be settled in life. The Plaintiff all requires to expand his business. The Plaintiff is in possession of funds by which ground floor can be constructed newly and the same will be utilized for the purposes of himself and his family members. If the same is not done, the Plaintiff and his family will suffer hardship. As against this, defendant No.1 who is a tenant in the suit property, is not interested in the suit property, is not interested in the suit property. She has allowed to use the suit premises to defendant No.2 for illegal purposes. If a decree is passed in favour of the Plaintiff, defendant No.1 will not suffer any hardship. In such circumstances, the Plaintiff submits that he requires the suit premises legally and bona fide for the purpose of demolishing the same and constructing a new structure thereon for use and occupation by the Plaintiff and his family members.” ( Underline added ) 11. Thus, the need pleaded is on the ground that the Plaintiff was possessing sufficient funds by which the ground floor premises can be constructed newly and utilized for the purposes of the members of his family. Thereafter, there is a specific averment that the suit premises is required legally and bona fide for the purposes of demolishing the same and constructing a new structure thereon for the use and occupation of the Plaintiff and his family members. Thus, the need pleaded in Paragraph 4 is for the purposes of demolishing the suit premises and constructing a new structure thereon for the use and occupation of the Plaintiff and his family members. It will be also necessary to make a reference to the affidavit in lieu of examination-in- chief of the first Respondent. In fact, Paragraph 4 of the affidavit is ash 12 cra-79.07 virtually the same as the Paragraph 4 of the Plaint. The paragraph 4 of the Plaint is reproduced hereinabove. 12. Thus, the specific case made out by the Plaintiff on oath that he requires the suit premises for the purposes of demolishing the same and constructing a new structure. It is not at all pleaded that the suit premises is required for the occupation of the Plaintiff himself or by any member of his family. Thus, taking the averments made in the Plaint and assertions made in the affidavit in lieu of examination-in- chief of the Plaintiff as correct, the ground invoked is under Clause (i) of Sub-section (1) of Section 16. When the ground under Clause (i) of Sub-section (1) of Section 16 is invoked, the Sub-section (6) of Section 16 of the said Act of 1999 becomes applicable which is made for protection of the tenants and therefore, various requirements such as filing of an undertaking is required to be complied with by the landlord. In fact, the landlord is under an obligation to offer the premises of the same area in the newly constructed building to the tenants. In the present case, it is admitted that there is no compliance with Sub-section (6) of Section 16 of the said Act of 1999. Therefore, taking the case of the Plaintiff pleaded in the Plaint as correct, it is impossible to say that the Clause (g) was invoked. In fact, Clause (i) is squarely applicable. Hence, the Courts below could not have passed a decree as there is a non-compliance with the mandatory requirements of Sub-section (6) of ash 13 cra-79.07 Section 16 of the said Act of 1999. As the decree under Section 16(1) (g) of the said Act of 1999 cannot be sustained, the same will have to be set aside. 13. It is true that from what is recorded in Paragraph 7 of the Judgment of the Appellate Court, a contention was raised by the Advocate for the Plaintiff that a decree ought to have been passed on the ground of nuisance and annoyance. Though, there is no specific issue framed on this aspect, in Paragraph 16 of the Judgment, the Appellate Court has considered the said submissions. In Paragraph 16, the District Court has observed thus:- “Learned advocate for the respondents/plaintiffs has argued that defendants/appellants have used the suit premises for illegal purpose for their prostitution business and therefore, on the account also decree for possession be passed. I have gone through the evidence available on record. But it is not found sufficient to hold that the defendants have used the suit premises for any illegal purpose. Only charge sheet is filed by the plaintiff. It shows that police have booked number of ladies in PITA Act. The names of charge sheet are not identical with the defendants except one i.e. defendant No. 3. But is not sufficient for proof of prostitution business in the suit premises. Therefore, Learned Lower Court has rightly rejected the contention. I have gone through the entire judgment and decree passed by Learned Lower Court and findings recorded by him. Considering the entire facts of the case, circumstances and evidence on record, I found that the Learned Lower Court has rightly considered bonafide requirement of the landlord i.e. demolition of suit building and construction on it for their purpose.” ash 14 cra-79.07 14. Thus, both the Courts below have negatived the ground of nuisance. Moreover, the finding of the Courts below on the issue of nuisance has not been challenged by the original Plaintiff by filing appropriate proceedings in this Court. Therefore, at this stage, the plea of nuisance cannot be allowed to be pressed into service. 15. Hence, the Revision Application must succeed and I pass the following order. ORDER : (a) The Rule is made absolute in terms of prayer clause (A). (b) Civil Suit No.457 of 2001 stands dismissed with no orders as to costs. (c) There will be no order as to costs in the Revision Application. (d) Civil Application No.227 of 2009 does not survive and the same is disposed of. ( A.S. OKA, J )