1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION No. 3003 OF 2005. Mr. Chandrakant s/o Ramsunder Dube, aged about 48 years, Occupation – Business, resident of Dube Pan Mandir, Ingole Chowk, Arvi Road, Wardha, Tahsil and District Wardha (Maharashtra). ... PETITIONER. VERSUS 1. Bhaskar s/o Ramchandrarao Bakde, aged about 63 years, Occupation - Business, r/o. Ward No.21, Ingole Chowk, Wardha, Tahsil and District Wardha (Maharashtra) 2. The Hon’ble Sub Divisional Officer and Rent Controller, Wardha, Civil Lines, Wardha, Tahsil and District Wardha (Maharashtra) 3. The Hon’ble Collector / Additional Collector and Rent Control Appellate Authority, Wardha, Civil Lines, Wardha, Tahsil and District Wardha, (Maharashtra). ... RESPONDENTS. --------------------------- Shri H.D. Dangre, Advocate for Petitioner. Shri J.R. Kidilay, Advocate for Respondent No.1. Shri Kale, learned A.G.P. for Respondent Nos.2 & 3. ------------------------- 2 CORAM : B.P. DHARMADHIKARI, J. DATED : JANUARY 05, 2010. ORAL JUDGMENT : 1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner / tenant has challenged the reversing order delivered by the Appellate Authority i.e. the Collector, Wardha on 28.06.2004 in Rent Control Appeal No.1/71-2/2003-04. The said appeal was preferred under Clause 21 of the C.P. and Berar, Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as “the Rent Control Order” for short), by the present respondent/landlord, challenging rejection of his application seeking leave to terminate the tenancy of petitioner under clause 13[3][vi] of the Rent Control Order. The said case filed by the landlord was registered as Rent Control Case No. 71-2/2/1997 and Rent Controller/Sub Divisional Officer, Wardha dismissed it on 02.12.2000. Clause 13[3][vi] enables the landlord to terminate the tenancy of tenant, if he proves that, the premises are bonafidely required by him. 3 2. Shri Dangre, learned counsel for petitioner / tenant has contended that the Appellate Authority did not consider the need as pleaded and by looking into the evidence which has come on record granted the permission. As there was no plea first, evidence in support of such need could not have been looked into. In the alternative he contends that, extension of business for which permission has been granted by the Appellate Authority, cannot be construed as bonafide need, under Clause 13[3][vi]. In support of this contention he has placed reliance upon the judgment of the Hon’ble Apex Court, reported at [1998] 9 SCC 585 (Maqboolunnisa .vrs. Mohd. Saleha Quaraishi). He has taken the Court through the application as filed, written statement, evidence on record, the order delivered by the Rent Controller and thereafter the Appellate Order to substantiate his contentions. He pointed out that, landlord pleaded that his two sons wee unemployed, while in evidence it has been brought on record that, they wee already doing business. 3. Shri Kidilay, learned Counsel appearing for respondent no.1/ landlord, has supported the Appellate Order. He points out that, there was a plea, that landlord needed the premises for running his business of sugarcane juice and business, this need is accepted by the petitioner / tenant in his cross examination. He further argues that, 4 need of two unemployed sons, is also correctly appreciated by the Appellate Authority, as both are sitting in same shop and doing business of PCO, particularly when relations between them are strained. In this circumstances, he argues that, no case is made out warranting any interference in writ jurisdiction. He invites attention to the judgment of learned Single Judge reported at 2002 [4] All M.R. 103 (Shaikh Shahabuddin Balabhai .vrs. Syed Hasan Babumiyan and another ) to show that, when landlord needed the premises for his business, the permission needed to be granted. [1999] 8 SCC 1 (Raghunath G. Panhale .vrs. Chaganlal Sundarji and Co.), particularly paragraph no.9 is relied upon to urge that, details of proposed business etc., are not very relevant and when no oblique motive is pleaded on the part of the landlord, in present circumstances bonafide need has been correctly accepted by the Appellate Authority. Lastly, he relied upon the judgment of this Court reported at 2005 [1] ALL M.R. 631 (Laxmikant Baburao Hajare .vrs. M/s. Maharashtra Agencies and others), to urge that, if landlord does not occupy the premises himself and again lets it out, the law contains adequate provisions to protect the interest of tenant. 4. Perusal of the impugned order of the Appellate Authority reveals that, in paragraph no.6, it has found that the landlord established his 5 bonafide requirement by proving that he is running sugarcane juice business on road and by proving that both his sons have to sit in single STD/PCO booth for want of any other business. The order of the Rent Controller while deciding issue no.2 reproduces the argument of both the counsel and then by applying the law as laid down by this Court in judgment reported at 1987 Mh.L.J. 332 (Dwarkadevi Jagdishprasad Choudhary .vrs. Narinsgdas Rampratap Sharma), finds that the details of business which landlord wanted to start or the area and space needed for it, any previous experience or knowledge of that business and financial capacity to start it, are not disclosed. It has been noted by the Rent Controller, that only need disclosed was to start “some business”. The Rent Controller found that this disclosure was not sufficient, as it did not enable the tenant an effective opportunity to meet the case of landlord. 5. The judgment of Hon’ble Apex Court on which Shri Dangre, learned counsel has placed reliance shows that, there the landlady wanted the shop premises ad-measuring 10 x 15 feet for having business of her son who was occupying premises 4 x 4 feet as tenant. The adjacent shop block ad-measuring 10 x 15 feet was vacated and son of landlady did not occupy that block. There was no amendment to the pleadings to explain why said block, vacated by the tenant was 6 not suitable for the son. In this background, the landlady in evidence stated that the wall between the vacated block and the block in possession of the tenant can be removed so as to have a big shop. The Hon’ble Apex Court has noted that, this was not the case pleased any where and hence, evidence in this respect could not have been looked into. The further observations that, this was only “desire” are therefore, required to be looked in the background of the fact that, son facing threat of eviction and occupying premises 4 x 4 feet, did not find it necessary to occupy the vacant block ad-measuring 10 x 15 feet. The Hon’ble Apex Court therefore, observed that, the “desire” to have very large shop cannot be equated with “genuine bonafide need” to have the premises. In the facts before Hon’ble Apex Court it is apparent that, the bonafide need itself was not established. 6. In Shaikh Shahbuddin Balabhai .vrs. Syed Hasan Babumiyan (supra), the learned Single Judge of this Court has after considering the various precedents found, that the observations of the Appellate Authority that, son was habituated in selling the bakery products on road and the business could not have flourished in shop premises, was contrary to the observations of the Hon’ble Apex Court. The learned Single Judge, noted that, the landlord or his sons were not 7 only desirous of doing business, but were actually doing business and were forced to do it on road and that by itself should have been construed as a bonafide requirement. 7. In Ragunath Panhale .vrs. Chaganlal Sundarji and Co. (supra), the Hon’ble Apex Court has noted that where the landlady had stated that, more premises were required for her family, there was no scope for doubting the reasonableness of requirement. The case raised presumption that the requirement was bonafide and tenant failed to show that, his eviction was sought with oblique motive. In absence of any such evidence by the tenant, the Hon’ble Apex Court found that the presumption of bonafide need stood un-rebutted. The Hon’ble Apex Court has also found that it was not necessary for the landlord to state in pleadings the nature of business, he proposes to start. 8. The landlord in his application under Clause 13[3], pleaded that he was doing business of sugarcane juice during summer season on road, since he had no other place. In addition, he pointed out that he has two sons, both major and unemployed. He therefore, wanted to start some business on small basis for himself and his sons. He also stated that, he also wanted to help his sons to start business. In 8 written statement the business of sugarcane juice during summer season was accepted. It was pleaded that, in addition landlord had a general stores also and his sons were running STD booth in the said premises. Landlord in his chief did not depose about the sugarcane business and pointed out that both his sons were unemployed, and he therefore, wanted space for their business. In cross examination, he has accepted that in adjacent shop block separated by partition, both his sons were doing business of STD/PCO. Though in Marathi the words used are “no partition” or “without partition”, it is agreed by both the counsel that, that negative word does not make any sense and it is actually a positive word, which indicates presence of partition. The landlord has in further cross examination denied that there were two other shops belonging to his family. The evidence of tenant shows that the premises in his occupation ad-measure 3 x 6 feet and he is having his Panthela there. He has deposed that, apart from his shop there were two other shops ad-measuring 15 x 10 feet and one shop was given on rent to Purohit (Perhit) and in other shop sons of landlord have their business of PCO. In cross examination, he accepted that business of STD and PCO was behind his shop. He also accepted that, landlord was having sugarcane juice business on road in summer season. 9 9. The order of Rent Controller mentioned above, overlooked the need as pleaded and it give importance only to absence of details of proposed business. The need pleaded by the landlord, that he himself was having his juice business on road in summer season, is accepted by the tenant in his written statement and also during his cross examination. That need by itself was therefore, sufficient to grant permission. However, the Rent Controller has overlooked that aspect only because of his logic that disclosure of business to be undertaken and certain other details in relation thereto was essential. In view of change in law, it is apparent that the order of Rent Controller is unsustainable. Though the landlord has pleaded that both his sons are unemployed and they wanted to start business, and he wanted to help them in starting business, and it has been brought on record that both the sons were having PCO/STD business, it is clear that the tenant was aware of this business of sons and he has pleaded accordingly in his written statement. It cannot be therefore, said that the suppression by the landlord of said business with his sons has caused any prejudice to the tenant. 10. The tenant has not pleaded any oblique motive and he has not pointed out any malafides. Clause 13[5] of the Rent Control Order permits tenant to move Rent Control Authorities for resumption of 10 his possession in case landlord does not use the tenanted premises from which the tenant is evicted, for bonafide purpose. The facts which have come on record clearly show that the need has been established by landlord. The judgment on which Shri Dangre, learned counsel placed reliance therefore, has no relevance in the present facts. Writ Petition is therefore, dismissed. However, in the facts and circumstances of the case, there shall be no order as to cost. JUDGE Rgd