1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3136 OF 1991 WITH CIVIL APPLICATION NO.2233 OF 2004 Hiramani Krishna Ambegaonkar, deceased by his heirs. 1. Ramesh Krishna Ambegaonkar 2. Umesh Krishna Ambegaonkar. Both R/o 8, Frerich Paradise, Shitole Road, 1205/2/3, Shivajinagar, Pune-4. ..Petitioners. V/s. 1. Jayant Govind Tilak Age: 46, Occ.Agri. R/o At & Post Vavashi, Tal.Khalapur, Dist. Raigad and also 306, Shanivar Peth, Pune 411 030. 2. M/s.Sampada Promoters, aged. firm on its behalf its Mg. Partner Sou. Aparna Vilas Ranade, Age 40, Occ. Business, R/o 790, Sadashiv Peth, Poona-30. ..Respondents. Mr.P.R.Arjunwadkar for petitioners. Mr.V.S.Gokhale for Respondent No.1. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 16, 2009. DATE : MARCH 16, 2009. DATE : MARCH 16, 2009. JUDGMENT : JUDGMENT : JUDGMENT : 1. This order shall dispose of Writ Petition as well as Civil Application. 2. The above said Civil Application has been 2 filed for leave to amend the Writ Petition so as to urge further facts and grounds. Insofar as the Writ Petition is concerned, the same is pending for final hearing directed against the Judgment and decree passed by the 9th Additional District Judge, Pune dated 30th March, 1991 in Civil Appeal Nos.773-775 of 1990, which in turn confirmed the Judgment and Decree for possession passed by the Small Causes Court, Pune. dated 26th June, 1990 in Rent Act Suit No.1983 of 1984. The Respondent/landlord had filed suit for possession on the ground of bonafide and reasonable requirement within the meaning of section 13(1)(hh) of the Bombay Rent Act. The Trial Court decreed the suit accepting the stand of the landlord in that behalf. The Appellate Court has confirmed that decree. In other words, both the Courts below have concurrently held in favour of the landlord that the ground within the meaning of Section 13(1) (hh) has been made out. Significantly, during the pendency of the present Petition, the structure in which the suit premises were situated have been demolished. According to the tenant, the landlord is responsible for the said demolition. Whereas according to the landlord, the structure has been demolished by the Corporation as the same had become old and dilapidated and dangerous. That is not the matter, 3 which needs to be enquired into in the present Petition. The fact remains that the suit structure is not in existence any more. This is common ground. Indeed, since the landlord has pressed into service ground under Section 13(1)(hh), the tenant by virtue of provisions of the Bombay Rent Act would be entitled for allotment of alternative suitable accommodation in lieu of the suit premises. That is a matter which will be dependent on the outcome of the present proceeding. The fact that the suit structure is no more in existence, persuades me to take the view that the issues raised in the present Petition have become academic. In that, the factum as to whether the landlord has made out ground of bonafide and reasonable requirement, it would have been necessary to answer the same if the tenant was still in occupation of the suit premises. That is not the case on hand. The only issue that remains open in such a situation is to provide suitable accommodation to the tenant. Admittedly, the landlord after the demolition of the structure, in which the suit premises were situated has constructed a new building consisting of more than two floors i.e. ground floor plus four floors. 3. As aforesaid, the only issue is of 4 accommodating the tenant in one of the unit in the newly constructed building, to be provided as an alternative suitable accommodation in lieu of the suit premises. The landlord is willing to abide by that obligation, as is stated across the bar by the Counsel. There is no reason to doubt the genuiness of that statement. That assurance is accepted. The tenant, if so advised, may exercise the option by writing a formal letter to the landlord as is required by the provisions of Bombay Rent Act. On receipt thereof, the landlord shall take immediate remedial steps by allotting a suitable alternative accommodation to the tenant in the newly constructed building. 4. According to the learned Counsel for the tenants, the question whether the premises to be offered by the landlord can be said to be alternative suitable accommodation is a matter dependent on the location and size of the tenement, which will be offered by the landlord. Insofar as the location of tenement to be offered as alternative suitable accommodation is concerned, so long as the landlord is offering in the same building which is newly constructed on the site on which the suit structure was standing, there can be no difficulty in accepting 5 that offer. That would be an appropriate arrangement, keeping in mind the obligation of the landlord flowing from the provisions of Rent Act. In the event the accommodation offered is not similar accommodation than the one already occupied by the tenant namely the suit premises, that is a matter for which the tenant will have to take recourse to suitable remedy, as may be advised. That issue cannot be addressed in the present Petition which emanates from the decree passed on the suit filed by the landlord for possession on the ground available under section 13(1)(hh). That may be a question of breach of undertaking or the statutory obligation, to be addressed and suitably remedied if that grievance of the tenant is to be accepted. 5. According to the learned Counsel for the landlord besides present Petition, there are other Petitions pending between the parties. He submits that the tenant has filed suit for injunction and if the suit structure is not in existence, issues raised in the said suit would not remain as a triable issue. That is a matter which will have to be answered by the Civil Court where such suit is pending. It cannot be addressed in the present Petition. 6 6. According to the advocate for the landlord, the action of contempt initiated against the landlord ought to be dropped, if the landlord were to offer suitable alternative accommodation to the tenant. It is not necessary to answer that issue in the present petition. That question may be relevant or otherwise will have to be considered in the proceedings which may be pending before this Court. Except restricting to the matter in issue in this Petition, I do not think it necessary to deal with any other aspect or controversy between the parties. All other issues will have to be resolved in appropriate proceedings. 7. Suffice it to observe that nothing survives for consideration in the present Petition and the Civil Application for amendment. Therefore, the same are disposed of on the above terms by placing on record assurance given by the landlord that the tenant will be provided alternative suitable accommodation in lieu of the suit premises subject to compliance of formalities in terms of section 13(1)(hh), if any. That assurance is accepted. All other questions which were raised by the respective advocates as aforesaid are left open to be considered in appropriate proceedings. Ordered accordingly. 7 (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)