:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL REVISION APPLICATION NO.226 OF 2007 CIVIL REVISION APPLICATION NO.226 OF 2007 CIVIL REVISION APPLICATION NO.226 OF 2007 Kaikashroo Sorabji Irani Since deceased by his heirs and legal representatives 1. Banoo Kaikshroo Irani Widow, age 74 years, 68, Railway Lines, Station Road, Solapur. 2. Sarosh Kaikshroo Irani, Son, Age 57 years, Punit Apartments, Opp: St. Joseph High School, Station Road, Solapur. 3. Ratan Kaikshroo Irani Son, Age 55 years, Adwait Apartments, 68, Railway Lines, Solapur. 4. Behram Kaikshroo Irani, son, age 50 years, 68, Railway Lines, Station Road, Solapur. ..Applicants. v. 1. Ratikant Shankarappa Patil Aged 46 years, Occupation: Agriculture, 2. Sou. Laxmi Ratikant Patil Aged 43 years, Occupation: Household 3. Ravikant Shankarappa Patil, Aged 44 years, Occupation: Social Worker. 4. Sou. Bharati Ravikant Patil, Aged 42 years, Occupation: Household. 5. Rohini Ramesh Patil, Aged 40 years, Occupation: Household. 6. Sonali Ramesh Patil, Aged 21, Occupation: Household, 7. Kum. Manali Ramesh Patil, Age Minor, Occupation: Education. 8. Udayshankar Ramesh Patil, :2: Age Minor, Occupation: Education. 9. Ku. Rohit Ramesh Patil, Age Minor, Occupation: Education. All residing at "Ravi Shankar" Bungalow Railway Lines, Solapur. ..Respondents. Mr.A.K.Abhyankar Sr.Counsel a/w Mr.R.S.Patil, , advs. for the Applicants. Mr.Y.S.Jahagirdar, Sr.Counsel a/w. Shri S.M.Sabrad , adv. for the Respondent Nos.1 to 5. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 7th January, 2008. DATE: 7th January, 2008. DATE: 7th January, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. This Revision Application is filed by the legal representatives of the deceased defendant, who was the tenant in the suit premises. The respondent nos.1 to 9 are the original plaintiffs. Admitted facts are that the building situated at 68, Railway Lines, bearing City Survey No.8316/3/1/B/2B situated at Solapur is in existence since prior to the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (In brief ’Bombay Rent Act’) came in force and it was occupied by several tenants. The deceased defendant Kaikashroo was one of the tenants. He was in occupation of the premises consisting of living room, bed room, dining room, kitchen, stores room, bathroom and toilet. Total area of the premises in occupation of the deceased defendant was about 750 sq.ft. and he was occupying the :3: premises since prior to Bombay Rent Act came in force in 1948. He was paying Rs.86/- per month as rent to the landlord. The plaintiffs purchased the building including premises in occupation of the defendant sometimes in 1992. The plaintiffs are members of the families of three brothers namely, Ratikant, Ravikant and Ramesh. On 23rd August, 1994, the plaintiffs issued notice to the defendant informing him that they require suit premises for reasonable and bonafide occupation of themselves for the purpose of residence and also for business of lodging. By the said notice, they called upon the defendant to vacate the premises. Notice was replied and the defendant refused to comply with the notice for eviction. Therefore, the plaintiffs filed the Regular Civil Suit No.115 of 1995 before the Civil Judge Senior Division, Solapur on several grounds. The main ground was that the plaintiffs required to demolish the old premises to reconstruct the same to accommodate the families of the plaintiffs and also to use some part of the newly constructed building for lodging and restaurant. The defendant contested the suit and denied that the plaintiffs’ requirement for the suit premises is bonafide and reasonable for their own residence. After hearing the parties, the learned trial Court decreed the suit for eviction and possession. Against that the defendant preferred an Appeal No.443 of 1997. That appeal also came to be dismissed by the Ist Ad-hoc Additional District Judge, Solapur by the impugned :4: judgment and order dated 5-8-2004. The concurrent finding of both the Courts below is that the plaintiffs reasonably and bonafide required the suit premises for their residential purpose as well as for carrying on business of hotel and lodging. 2. The learned counsel for the plaintiffs/applicants vehemently contended that as per the provisions of Section 25 of the Bombay Rent Act, the landlord can not be permitted to use residential premises for non residential purpose and in contravention of the said provision, he is punishable with imprisonment or with fine or both. The learned senior counsel also pointed out that now in the Maharashtra Rent Control Act, 1999 (In brief ’ Maharashtra Rent Act’), the equivalent of Section 25 of the Bombay Rent Act is Section 30. The only difference is that under Section 30(1), the landlord can not use and can not be permitted to use the residential premises for commercial purpose. According to him, when under the law residential premises could not be permitted and used for non residential purpose or for commercial purpose, the requirement of the plaintiff could not be reasonable and bonafide either under Section 25 of the Bombay Rent Act or under Section 30(1) of the Maharashtra Rent Act. :5: 3. On the other hand, the learned senior counsel for the respondents vehemently contended that the premises within the meaning of Section 25 of the Bombay Rent Act would mean the premises in their existing form and not the premises, which would be constructed after demolition of the present structure. According to him, the plaintiffs can not use the present premises for non residential or commercial purpose but if the present building is demolished and a new building is constructed, Section 25 can not be applicable to the same. According to him, some portion of the newly constructed building is to be used for the residence of three families of the plaintiffs and the remaining portion is to be used for commercial purpose, i.e, for running restaurant and lodging. The learned senior counsel for the plaintiffs/respondents also contended that the plaintiffs had made an offer of alternative accommodation in the same locality with same carpet area, which the defendant was in occupation in the existing premises but the defendant refused to accept that. According to him, there were 12 or 13 tenants in the whole building. All the tenants accepted the offers and vacated the premises but those rooms in the existing building could not be used suitably for the residential purpose of the families of the plaintiffs and it is necessary for them to demolish the same and to reconstruct new building. Today also he contended that though the defendant has not accepted the offer of :6: alternative accommodation, the plaintiffs stand by the same and they are willing to provide them a suitable and alternate accommodation of the carpet area not less than the carpet area in possession of the defendant in existing premises. It may be noted that this offer is also turned down by the learned senior counsel for the defendant/applicants after taking instructions from the client. 4. From the evidence of P.W.3 Dattatray Shete, Civil Engineer, it is clear that he has prepared a map for reconstruction of building after demolition of existing one and as per the said plan, the proposed building will consist of ground floor to be used for the purpose of restaurant, lodging and waiting room as well as reception. The first floor is to be used for lodging and the second floor will consist of three flats wherein the families of plaintiffs would be accommodated. Naturally, if decree is passed in favour of the plaintiffs and they are permitted to demolish the old building and construct a new building, they should take necessary sanction from the municipal authorities as per the law. It is not necessary to enter into the question of obtaining necessary permission for the purpose of construction. 5. Mr.Abhyankar the learned senior counsel for the defendants/applicants relied upon several authorities in :7: support of his contention that in the teeth of Section 25, the landlords can not claim that they reasonably and bonafide require the premises when they want to convert the existing premises, which are in use only for the residential purpose since prior to Rent Act came in force, to the non residential or commercial purpose and, therefore, the requirement can not be reasonable and bonafide. According to him, if the landlords want to convert the premises in the non residential premises, they are liable to be prosecuted, convicted and sentenced under Section 25(2) of the Bombay Rent Act and, therefore, they can not say that their requirement of the premises for conversion from the residential to non residential is reasonable and bonafide. In support of his contention, he relied upon several authorities including Civil Revision Application No.2172 of 1957 Civil Revision Application No.2172 of 1957 Civil Revision Application No.2172 of 1957 decided on 3rd September, 1959 by the learned Single Judge of this Court and The Laxmi Co-operative Bank Ltd. The Laxmi Co-operative Bank Ltd. The Laxmi Co-operative Bank Ltd. Sholapur v. Mohan Govind Diwanji and another AIR 1972 Sholapur v. Mohan Govind Diwanji and another AIR 1972 Sholapur v. Mohan Govind Diwanji and another AIR 1972 BOMBAY 354 (V 59 C 64) BOMBAY 354 (V 59 C 64) BOMBAY 354 (V 59 C 64) which is a another judgment delivered by the learned Single Judge of this Court. He also relied upon Bapubhai Mohanbhai v. Mahila Sahakari Bapubhai Mohanbhai v. Mahila Sahakari Bapubhai Mohanbhai v. Mahila Sahakari Udyog Mandir AIR 1975 Supreme Court 2128 Udyog Mandir AIR 1975 Supreme Court 2128 Udyog Mandir AIR 1975 Supreme Court 2128. The first judgement in Civil Revision Application No.2172 of 1957 rendered by the learned Single Judge of this Court was not reported but it was relied upon in Laxmi Laxmi Laxmi Co-operative Bank Ltd. (Supra) Co-operative Bank Ltd. (Supra) Co-operative Bank Ltd. (Supra). Both these authorities were referred to by Their Lordships of the Supreme Court :8: in Bapubhai Mohanbhai v. Mahila Sahakari Udyog Mandir Bapubhai Mohanbhai v. Mahila Sahakari Udyog Mandir Bapubhai Mohanbhai v. Mahila Sahakari Udyog Mandir AIR 1975 Supreme Court 2128. AIR 1975 Supreme Court 2128. AIR 1975 Supreme Court 2128. These authorities were also relied in B.R.Tupkari v. Sou. Sushilabai P. B.R.Tupkari v. Sou. Sushilabai P. B.R.Tupkari v. Sou. Sushilabai P. Chikate and another 19782(1) Bombay C.R. 719 Chikate and another 19782(1) Bombay C.R. 719 Chikate and another 19782(1) Bombay C.R. 719 and in Annappa Appa Anuje v. Kingappa Parmeshwar Naik and Annappa Appa Anuje v. Kingappa Parmeshwar Naik and Annappa Appa Anuje v. Kingappa Parmeshwar Naik and another 1981(1) All India Rent Control Journal 677. another 1981(1) All India Rent Control Journal 677. another 1981(1) All India Rent Control Journal 677. The consistent view taken in all these cases was that Section 25(1) prohibits a landlord from using the premises, which were used as residential premises since prior to Bombay Rent Act came in force, for non residential purpose. The contravention of that provision is punishable with imprisonment and fine under Section 25(2). In view of this, it was also held that in the teeth of Section 25(1) and (2) of the Bombay Rent Act, the landlord can not claim that he requires residential premises for personal use reasonably and bonafide if he wants to convert residential premises in non residential premises. After referring to the provisions of Section 25 and Section 13(1)(g) of the Bombay Rent Act, Their Lordships of the Supreme Court observed as follows in paragraph 7 in the case of Bapubhai Mohanbhai v. Mahila Sahakari Udyog Mandir Bapubhai Mohanbhai v. Mahila Sahakari Udyog Mandir Bapubhai Mohanbhai v. Mahila Sahakari Udyog Mandir: "7.............. The true question for consideration is not whether as between Section 13(1) and Section 25(1) one overrides the other and indeed in view of the wording of the non-obstante clause of Section 13(1) the provisions of that section must have priority over the rest of the Act except for what is contained in Section 15. But conceding to :9: Section 13(1) its rightful precedence and granting that it stands supreme except for Section 15, according to its own terms the Court has to be satisfied that the requirement of the landlord is reasonable. A requirement which runs in the teeth of Section 25 and which, if established, may throw the landlord open to the risk of a prosecution cannot be called reasonable. Therefore, if the respondent shall have failed, it is not because Section 25 overrides Section 13(1) but because of its failure to prove the reasonableness of its requirement. Whether the requirement of the landlord is reasonable or not is to be judged from all the facts and circumstances of the case and a highly relevant circumstance bearing on the reasonableness of the landlord’s requirement is that the purpose for which the possession is sought is a purpose for which the premises cannot be used save on pain of penal consequences." In view of this legal position, the learned Senior Counsel contended that both the Courts below have ignored the legal position and committed error in holding that the landlord/plaintiffs reasonably and bonafide require the suit premises particularly when from pleadings and the evidence led by the plaintiffs themselves, it was clear that they wanted to convert the user of the residential premises to non residential premises in contravention of the provisions of Section 25(1) and, therefore, the decree passed by the trial Court and confirmed by the Appellate Court is liable to be set aside. 6. Mr.Jahagirdar the learned senior counsel for the respondents/original plaintiffs vehemently contended that all the above referred authorities relied upon by :10: the learned counsel for the defendants/applicants are in the matters where landlord wanted to convert the user of the premises from residential to non residential without making any change in the structure of the building or the premises. According to him, the existing building consists of large number of rooms which were occupied by 12 or 13 tenants. It appears that the defendant was also occupying an area of about 750 sq.ft. but all those rooms were at the ground floor only. These rooms were not suitable for the families of the plaintiffs for the residential purpose, therefore, the plaintiffs have decided to demolish that building and to construct a new building consisting of ground floor plus two floors. According to him, some portion of the building to be constructed newly is to be used for the residence of the plaintiffs’ families and remaining portion will be used for commercial purpose, i.e., for running the restaurant and lodging. According to him in view of the change of the structure, the premises do not remain in the same condition, and, therefore, Section 25 will not be attracted. He finds support from Baburao Balu Kurane v. Baburao Balu Kurane v. Baburao Balu Kurane v. M/s.S.S.Mirje & Co. through its partners 1986 M/s.S.S.Mirje & Co. through its partners 1986 M/s.S.S.Mirje & Co. through its partners 1986 Maharashtra Rent Control Journal 221 Maharashtra Rent Control Journal 221 Maharashtra Rent Control Journal 221. This is also a judgment rendered by the learned Single Judge of this Court. In that matter also the landlord filed suit for eviction and possession on the ground that he reasonably and bonafide requires the premises for demolition and for raising a new construction for residential and non :11: residential purpose. The decree was passed in favour of the landlord and it was challenged before the High Court. The learned Single of this Court after referring to the facts of the cases, which are similar to the facts of the present matter, observed as follows in paragraph 6: "6. Shri Mirajkar, however, urged that there will be a legal difficulty in the way of the plaintiffs to claim possession. The defendant is residing in the suit premises. The plaintiffs want to use a part of the new construction for non-residential purpose. Shri Mirajkar, therefore, submitted that claiming possession of residential premises for using them for non-residential purpose is not permissible. He relied upon the Supreme Court decision reported in [A.I.R. 1975 S.C. 2128,] in the case of B.Mohanbhai v. M.S.U.Mandir. it is, however, material to note that in the present case the plaintiffs claim that they intent to demolish the building and to construct a new one which would be used for a composite purpose viz. business and residential. It appears that plaintiffs nos.4,5 and 6 have no residential accommodation of their own. In the background of this position it would be very difficult to hold that by constructing a new building and by using a part of it for business purpose and a part for residential purpose, the plaintiffs would be committing any breach of the provisions of Section 25 of the Rent Act." Thus, the learned Single Judge in the case of Baburao Baburao Baburao Kurane (Supra) Kurane (Supra) Kurane (Supra) made a distinction between the cases where the landlord wants to use the premises for the purpose of residential and non residential purposes without making alteration of the premises and the case where the landlord wants to demolish the existing :12: structure and construct a new one and then to use new building for the residential and non residential purposes. 7. Mr.Jahagirdar the learned senior counsel for the plaintiffs also placed reliance upon Shri S.B.Gaikwad v. Shri S.B.Gaikwad v. Shri S.B.Gaikwad v. Iyer Subramanya Venkateswara 1990 (3) Bombay C.R.736 Iyer Subramanya Venkateswara 1990 (3) Bombay C.R.736 Iyer Subramanya Venkateswara 1990 (3) Bombay C.R.736. In that case also the plaintiff/landlord wanted to demolish the old building and to reconstruct a new one and use the same for the purpose of self-residence as well as for running a lodge. In that matter also number of authorities including Bapubhai Mohanbhai v. Mahila Bapubhai Mohanbhai v. Mahila Bapubhai Mohanbhai v. Mahila Sahakari Udyog Mandir Sahakari Udyog Mandir Sahakari Udyog Mandir were referred to. After referring to the observations of the Supreme Court in the case of Bapubhai Mohanbhai Bapubhai Mohanbhai Bapubhai Mohanbhai, the learned Single Judge of this Court observed as follows in paragraph 27: "27. There can hardly be any quarrel about the propositions laid down in the above case. As already stated, the suit premises are not going to be used by the plaintiff or his daughter Geeta in the very form in which they are in existence at present. The same are going to be demolished and a commercial complex is going to be raised in pursuance of the plans which are already sanctioned. The substantial portion of the newly constructed building is going to be utilised for running a lodge. Hence, the dominate user of the newly constructed premises will continue to be used for the residence of lodgers. Consequently, in my view, the passing of the decree would not run in the teeth of section 25 and will not throw the landlord open to the risk of prosecution." :13: From these observations, it appears that the learned Single Judge held that even the lodge will be used for residential purpose and, therefore, it does not contravene Section 25. In the present case, the plaintiff wants to use newly constructed building for the purpose of self-residence, lodge and restaurant. So it can be stated that some part of it will be used for non residential purpose also. 8. From the authorities referred above, it becomes clear that there is a set of authorities including Bapubhai Bapubhai Bapubhai wherein the landlord wanted to use the premises for non residential purpose in contravention of Section 25(1) and, therefore, the Court held that this was in contravention of the law and hence the landlord could not plead that he reasonably and bonafide requires the premises. But in Shri S.B.Gaikwad Shri S.B.Gaikwad Shri S.B.Gaikwad and in Baburao Kurane Baburao Kurane Baburao Kurane where the landlord wanted to demolish the existing premises and then after construction of new building to use the same for the purpose of self-residence and for business. In both these cases, this Court held that the existing structure could not remain there after its demolition and therefore, Section 25 will not be attracted and the case should be considered strictly on merits under Section 13(1)(g) of the Bombay Rent Act and held that the landlord was entitled to decree if he can prove bonafide and reasonable requirements. In my :14: considered opinion, these two authorities are aptly applicable to the facts of the present case. In fact, the facts of the present case are almost identical to the facts of those two case. I do not see any reason to take a diferent view than the one taken in Baburao Baburao Baburao Kurane and Shri S.B.Gaikwad. Kurane and Shri S.B.Gaikwad. Kurane and Shri S.B.Gaikwad. In view of the facts of the case and legal position discussed above, I do not find any manifest error or irregularity or illegality in the impugned judgment and order passed by the appellate Court. Therefore, this revision application is liable to be dismissed. 9. For the reasons stated above, Revision Application stands dismissed. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)