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Mukesh Sawadia Vs. Vinod Gupta - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 147 of 1984
Judge
Reported inAIR1986Bom247
ActsHouses and Rent Control Order, 1949; Bombay Rent Act; Constitution of India - Article 14; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
AppellantMukesh Sawadia
RespondentVinod Gupta
Appellant AdvocateV.R. Manohar, Adv.
Respondent AdvocateS.A. Bobde and;T.A. Anthony, Advs.
Excerpt:
a) it was ruled that the provisions of clause 13(3)(ii) of the c. p. and berar letting of houses and rent control order, 1949, are valid - they are not discriminatory or arbitrary in nature on the ground that they are different from the provisions of the bombay rents, hotel and lodging house rates control act, 1947;b) the case questioned whether the tenant was a habitual defaulter under clause 13(3)(ii) of the c. p. and berar letting of houses and rent control order, 1949 - it was observed that the tenant had paid the rent to the landlord for two years after the landlord had purchased the block - thereafter, the tenant had not paid the rent for 16 months on the ground that the title of the landlord was disputed - the said reason for the non-payment of the rent was not a bona fide answer -.....order1. this is a writ petition arising out of the proceedings under the c. p. & berar letting of houses and rent control order, 1949 (for short the rent control order).the petitioner claims that he purchased the suit block no. 8 in the wholesale cloth market, gandhibagh, nagpur, in an auction sale held on 11-3-1977 for the recovery of the income-tax dues of the earshot while owner of the said block. the said sale, according to him, was confirmed on 12-4-1977. the respondent-tenant was also informed about the purchase of the suit block by the income-tax department by its letter dt. 24-10-1977.2. the respondent is the tenant occupying the suit block initially at the monthly rent of rs. 100/- and from 1-1-1978 at the monthly rent of rs. 125/-. after the petitioner purchased the suit block.....
Judgment:
ORDER

1. This is a writ petition arising out of the proceedings under the C. P. & Berar Letting of Houses and Rent Control Order, 1949 (for short the Rent Control Order).

The petitioner claims that he purchased the suit block No. 8 in the Wholesale Cloth Market, Gandhibagh, Nagpur, in an auction sale held on 11-3-1977 for the recovery of the income-tax dues of the earshot while owner of the said block. the said sale, according to him, was confirmed on 12-4-1977. The respondent-tenant was also informed about the purchase of the suit block by the Income-tax Department by its letter dt. 24-10-1977.

2. The respondent is the tenant occupying the suit block initially at the monthly rent of Rs. 100/- and from 1-1-1978 at the monthly rent of Rs. 125/-. After the petitioner purchased the suit block occupied by the respondent-tenant, the respondent-tenant started paying rent to the petitioner till 1-7-1979. However, from 1-7-1979 till 10-5-1980, the respondent-tenant did not pay any rent to the petitioner. It may at this stage be stated that the petitioner is carrying on the business of sale of medicines in block No. 118-A in the same building of the Wholesale Cloth Market, which block he is occupying on payment of rent as a tenant.

3. After the respondent-tenant fell in arrears the petitioner, on or about 5-11-1980, filed an application before the Rent Controller, under Cls. 13(3)(i)(ii) and (vi) of the Rent Control Order, seeking permission to give a quit notice to the respondent-tenant. The respondent-tenant by his written statement denied the allegations in the application filed by the petitioner. The parties led evidence before the Rent Controller. The Rent Controller by his order dt. 31-1-1983, granted permission to the petitioner under Cls. 13(3)(ii) and (vi) of the Rent Control Order. The respondent-tenant preferred n appeal before the Additional District Magistrate, Nagpur, who, by his order dt. 21-10-1983, allowed the same. Accordingly the order of the Rent Controller granting permission to the petitioner under Cls. 13(3)(ii) and (vi) of the Rent Control Order stood set aside. Being aggrieved, the petitioner has preferred the instant writ petition in this Court.

4. Before considering the grounds urged on behalf of the petitioner on merits for setting aside the order of the learned appellate Court, I may deal with the contention raised on behalf of the respondent-tenant in regard to the constitutional validity of Cl. 13(3)(ii) of the Rent Control Order. It is urged on behalf of the respondent-tenant that the provisions of Cl. 13(3)(ii) of the Rent Control Order are violative of Art. 14 of the Constitution, because there is no valid classification in giving differential treatment to the Vidarbha region of the State of Maharashtra by continuing the old rent law under the Rent Control Order, which was enacted long back in 1949 in the erstwhile State of Madhya Pradesh and which was continued in the State of Bombay after re-organisation of States in 1956 by virtue of the provisions of S. 119 of the States Reorganisation Act, 1956. It may be stated at this stage that in the State of Maharashtra, there are three Rent Control Laws applicable. As already stated, the Rent Control Order is applicable to the Vidarbha Region of the State of Maharashtra. The Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954, (for short the Hyderabad Act) is applicable in the region which was prior to re-organisationof States in 1956, a part of the old Hyderbad State. In the remaining part of the State of Maharashtra, it is the Bombay Rents, Hotel and Lodging Housing Rates Control Act, 1947, (for short 'the Bombay Act'), which is applicable.

5. Reliance is placed on S. 12 of the Bombay Act to show that the provision therein for termination of tenancy and for recovery of possession from the tenant is different from the impugned provision of cl. 13(3)(ii) of the Rent Control Order. The principal difference which is pointed out is that under the Bombay Act, the tenant has an opportunity to clear off the arrears as provided in cl. 12, whereas no such opportunity is available to the tenant in cl. 13(3)(ii) of the Rent Control Order. So far as the challenge under Art. 14 of the Constitution is concerned, it is urged that there is no difference from the point of view of rent restriction laws between the cities and towns to which the Bombay Act is applicable and the cities and towns to which the Rent Control Order is applicable. It is, therefore, urged that there is no justification for the application of two different provisions for termination of tenancy under the Bombay Act and the Rent Control Order. It is thus urged that a different provision under Cl. 13(3)(ii) of the Rent Control Order for termination of tenancy on the ground of habitual default is arbitrary and discriminatory and is violative of Art. 14 of the Constitution.

6. The application of two different provisions referred to above in two different parts of the State is justified and is defended as not violative of Art. 14 of the Constitution on behalf of the State on the ground that the classification based upon historical and/or geographical reasons and in particular arising due to reorganization of States is permissible as held by the Supreme Court in a series of its decisions. The principal submission is that the three laws referred to above were in operation in different regions of the State prior to re-organisation of States in 1956 and, therefore, if they were continued in the State of Maharashtra after re-organisation of States in 1956 by virtue of S. 119 of the States Reorganisation Act, it cannot be said that there is no valid classification for their continued application in the then re-organised State of Bombay and thereafter in the State of Maharashtra. In support of the above contention, reliance is placed on behalf of the State upon the decisions of the Supreme Court in the case of Bhaiyalal Shukla v. State of Madhya pradesh, : AIR1962SC981 and Anant Prasad v. State of Andhra Pradesh, : AIR1963SC853 . The decision of the Supreme Court in the case of Shri Swamiji of Shri Admar Mutt v. Commr., Hindu Religious and Charitable Endowments Dept., : [1980]1SCR368 is also pressed into service on behalf of the State in support of the above contention.

7. It is, however, urged on behalf of the respondent-tenant that the classification based upon the historical or geographical reasons due to re-organisation of States is transitory in nature to enable the State to get some reasonable time to consider the question whether they should enact a uniform law in the whole State instead of continuing the different laws on the same subject-matter due to exigencies of the re-organisation of States. It is urged that S. 119 of the States Re-organisation Act is itself a transitory or a temporary provision. In support of the above submission, reliance is placed on behalf of the respondent-tenant upon the recent decision of the Supreme Court in the case of Motor General Traders v. State of Andhra Pradesh, AIR 1984 SC 121 in which S. 32(b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act (for short Andhra Act) was challenged as violative of Art. 14 of the Constitution. The observations of the Supreme Court in the said case 'what may be unobjectionable as a transitional or temporary measure at an initial stage can still become discriminatory and hence volatile of Art. 14 of the Constitution if it is persisted in over a long period without any justification' are relied upon to show that after continuance of these two different provisions under the Bombay Act and the Rent Control Order for a long time after the re-organisation of States in 1956 without any justification, the provision under cl. 13(3)(ii) of the Rent Control Order is rendered discriminatory under Act. 14 of the Constitution. It is, therefore, necessary to refer to the ratio of the decision of the Supreme Court in the above case.

8. It may be seen that in the above Andhra Pradesh case, the decisions relied upon on behalf of the State are also considered by the Supreme Court. It would appear front the perusal of the above decision that the Supreme Court has held in the said case that a provision which may be unobjectionable at the initial stage of its enactment may become discriminatory if it is persisted for a long period and if there is no justification for its continuance. The Supreme Court has explained the cased relied upon on behalf of the State, which according to it, do not lay down any law contrary to the above proposition but on the contrary support the view taken by it in the aforesaid Andhra Pradesh case, In considering the decisions of the Supreme Court in State of Madhya Pradesh v. Bhopal Sugar Industries, : [1964]52ITR443(SC) , Shri Swamiji of Shri Admar Mutt v. Commr. Hindu Religious and Charitable Endowments Dept., : [1980]1SCR368 , the Supreme Court has observed in para 23 of the report that 'the Legislature has to consider which of the different laws should be selected for enforcement in the entire State either with or without modification'. According to the Supreme Court, this question needs enquiry probably the Legislature may prefer to apply in the entire State the very legislation impugned before the Court' are eloquent for the purpose of this case. It is also laid down by the Supreme Court in the above Andhra case that in the absence of necessary pleadings and relevant material in that regard it is not possible to decide whether a particular law which is challenged before the Court is discriminatory or not.

9. It may at this stage refer to the classic decision of the Supreme Court on Art, 14 given in Ram Krishna Dalmia v. S.R. Tandolkar, : [1959]1SCR279 for certain well established principles regarding the challenge to the validity of a statute under Art. 14 of the Constitution. Sub-para (b) of para 11 lays down that 'there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. This principle is well settled by a series of other decisions, of the Supreme Court also. The next principle which is referred to in sub-para (e) of para 11 of the above judgment is that it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. Since there is thus a presumption in favour of the legislature about the constitutionality of an enactment and also about the fact that the Legislature understands and correctly appreciates the need of its own people and that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds in favour of the legislature, adequate data or material must be placed on record by the person who attacks the State Legislature as invalid to displace the said presumption.

10. In the instant case, except stating that there is no difference between the towns and cities covered by the Bombay Act and those covered by the Rent Control Order, there is no other data placed on record to show how the impugned provisions is discriminatory. The State, however, has admitted in para 7 of its return that the issue of having a uniform rent law in the whole State is under its active consideration. It may be stated in this regard that from the decision of this Court in Writ Petition No. 361 of 1985 with other connected writ petitions : AIR1986Bom64 , Prabhakar v. State of Maharashtra, rendered on 21-6-1985, in regard to the validity of the notification issued under Cl. 30 of the Rent Control Order, it is clear that the Rents Act Enquiry Committee, popularly known as Tambe Committee, appointed by the State Government in 1975, as well as the State Law Commission units 12th Report have recommended that the Rent Restriction Laws in the State should be consolidated and unified. In fact, a draft enactment is also attached with the report of the State Law Commission. Taking advantage of the above averment in the return of the State, it is urged that the fact that the above matter about consolidation and unification of the Rents Restriction Laws is under consideration of the State would show that the provisions in Cl. 13(3)(ii) of the Rent Control Order different from S. 12 of the Bombay Act is discriminatory. It is, however, urged on behalf of the State that since the matter relating to unification of the Rent Control legislation is under consideration of the State this Court should not strike down the impugned legislation although it may come to the conclusion that the said legislation discriminatory.

11. It is in the above conspectus of rival contentions that I may consider the challenge to the validity of Cl. 13(3)(ii) of the Rent Control order made on behalf of the respondent. I may at the outset make it clear that the respondent did not and would not challenge the whole of the Rent Control Order or canvass a proposition that the application of different rent laws applicable in the various regions of the State is arbitrary and discriminatory and therefore all the rent laws in the State are liable to be struck down being violative of Art. 14 of the Constitution demanding, therefore, the relief that the State should be directed to introduce a uniform Rent Law in the whole State, Obviously, the above challenge is not made since it would not be in the interest of the respondent because if the rent control enactment is wholly struck down, he would be deprived of its protection. The challenge, therefore, is in respect of the individual provision in cl. 13(3)(ii) of the Rent Control Order upon the same ground that there is no justification for having different rent laws in different region of the State because there is no difference in the various cities and towns in different parts of the State. In my view when the entire Act or for that matter the application of the different rent laws are not challenged on the ground that the State should have uniform law in the whole State, the individual provision of the enactment prevailing in one region cannot be challenged on the above ground unless it is shown that the provision of the different regions are alike except in the case of the impugned provision and that the impugned provision is onerous as compared to the beneficial provision in the statute in the other region.

12. However even assuming that the individual provision in the Rent Control Order could be challenged upon the above ground, the mere statement on behalf of the respondent that there is no difference in cities and towns in different parts of the State is not enough to show that continuance of difference Rent Laws in the different regions of the State is not justified. It may be seen that in the Bombay area of the State of Maharashtra, the Bombay Act was enacted in 1947, since when it is continued. In the Hyderabad area, the Hyderabad Act is in force since 1954, whereas the Rent Control Order is applicable in the Vidarbha Region since 1949. For determining the question whether there should be uniform Rent Control legislation throughout the State, what is necessary to be seen is what the extent of the problem of accommodation in various regions of the State is, what the rates of rent in various regions are and what the effect of continuance of the existing Rent Control legislation in each region is. No data is placed in this regard by the respondent in this petition in the absence of which the respondent cannot succeed in the said challenge. It is, however, urged that the fact that the State itself is admittedly considering to introduce the uniform rent law in the State would support the plea of the respondent that the impugned provision is discriminatory although no data as stated above is produced in the instant case. In my view, by the mere fact that the State intends to introduce the uniform rent law, it would not necessarily mean that the impugned law is discriminatory upon the above ground. At any rate, as rightly urged on behalf of the State. it would not be expedient to strike down the impugned law upon the above ground. In fact, the above matters are to be considered by the State for introducing the uniform law in the State, if though necessary.

13. The other question which is considered in para 23 of the Andhra case cited supra is that the State, after consideration of various laws applicable in the different regions of the State may choose to enforce the impugned law itself. In the instant case, it is neither the case nor it is shown that the provision under Cl. 13(3)(ii) of the Rent Control Order is harsher as compared to the provisions in S. 12 of the Bombay Act. The only argument is that there is a different law operating in regard to the ground of arrears of rent. Applying the test, it may be possible that the state may enact or continue the very provision under C. 13(3)(ii) of the Rent Control Order, which is impugned by the respondent in this petition. The submission on behalf of the respondent that Cl. 13(3)(ii) of the Rent Control Order should be struck down cannot therefore be give effect to.

14. It may be seen that merely the fact that the provision under Cl. 13(3)(ii) of the Rent Control Order is different then the one from the Bombay Act does not mean that the said provision is necessarily discriminatory or arbitrary. A perusal of S. 12 of the Bombay Act would show that the said provision is more or less in pari materia with the provision of C. 13(3)(i) of the Rent Control Order and not with the provisions of Cl. 13(3)(ii) of the Rent Control Order. Thus, the provision of Cl. 13(3)(ii) of the Rent Control Order is in a different class and cannot be compared with the provisions in S. 12 of the Bombay Act. The said provision under Cl. 13(3)(ii) of the Rent Control Order furnishes as additional ground of habitual default to the landlord for terminating the tenancy of his tenant. Thus, the general ground which may be available for the challenge to the introduction of an uniform rent control law in my view cannot be availed of for challenging the validity of the individual provision of the Act, particularly when the schemes of the two legislation's in question are different. 15. A perusal of the provisions of the Bombay Act and the Rent Control Order would show that the schemes of the two enactment's are entirely different and it is, therefore, difficult to say which particular provision of any of the two Acts is harsher or onerous as compared to the provision of the other Act, and should be struck down under Art. 14 of the Constitution. In fact, when the Schemes of the two Acts are different, it may be that some provisions in one Act are more beneficial or less onerous as compared to the other Act ans some other provisions in the other Act may be more beneficial or less onerous as compared to the former but that cannot be a ground to strike down the less beneficial or more onerous provisions in either of the two enactment's. In my view, when the schemes of the two Acts are different, they belong to different classes and there cannot be any comparison with any individual provisions of the two Acts. It may be that in a case where all the provision is different, it is possible to urge that there is discrimination by the existence of the two different provisions as in the Rajasthan case reported in State of Rajasthan v. Manohar Singhji, : [1954]1SCR996 in which a particular provision in a particular part of the State was more onerous as compared to the law in the other parts of the State. It was held by the Supreme Court in the above case that there was no real substantial distinction for treating the Jagirdars of a particular area with inequality as compared with the jagirdars in another part of Rajasthan. However, in the above Rajashtan case, the Supreme Court itself pointed out in para 5 of the judgment that the discrimination in the said case was not sought to be justified by the State on geographical considerations, or on the ground that the Jagirs of the particular area governed by a different law of tenures which would have been a good ground for (illegible).

16. It is not thus possible to say in the instant case where the schemes of the two enactment's in question are different which provision is arbitrary and discriminatory. Even otherwise, as rightly urged by the State, since the question of introducing the uniform rent law is under active consideration of the State, it would not be expedient to strike down the impugned law upon the ground raised in this petition. It is, however, hoped that the State would take steps to introduce the uniform rent law as early as possible. The challenge made on behalf of the respondent to the validity of Cl. 13(3)(ii) of the Rent Control Order thus must fail is rejected.

17. Turing to the merits of the case, it is urged on behalf of the petitioner that the findings of the learned appellate Court are perverse, they being contrary to the pleadings are contrary to the evidence on record in the instant case. It is urged that the impugned order of the learned appellate Court suffers from non-application of his mind and non-consideration of legal evidence on record. It is also urged that the findings arrived at by the learned appellate Court are contrary to law laid down by this Court.

18. As regards the ground about habitual default, it is the petitioner that by remaining in arrears of rent for a period from 1-7-1979 to 6-11-1980 i.e. till the date of filing of the application before the Rent Controller. the respondent tenant was habitually in arrears within the meaning of Cl. 13(3)(ii) of the Rent Control Order. It is, however, urged on behalf of the respondent-tenant that he did not pay the rent for the aforesaid period because there was a bona fide dispute according to him about the title of the petitioner to the suit block. The learned appellate Court held that there was a dispute between the housing society which constructed the block and the petitioner. He further held that the petitioner was not registered as a member of the said society. He also held that the matter about the membership of the petitioner of the housing society was sub judice and, therefore, there was bona fide reason for the respondent-tenant to withhold the rent for the aforesaid period.

19. It is, however, urged on behalf of the petitioner that the above finding of the learned appellate Court is perverse, being contrary to the pleadings in the written statement of the respondent-tenant and also the evidence led by him. The submission is that the case set out by the respondent-tenant was entirely different from the case which was found by the learned appellate Court as stated above. It is submitted that in para 10 of the written statement what is urged is that the petitioner deliberately avoided to show and furnish the relevant documents in respect of his title to the block No. 8 as alleged by him in para 1 of his application under the Rent Control Order. In para 1 of the application, the petitioner stated that he became the owner of the suit block through the auction sale on the basis of which the certificate of sale was issued by the Recovery Officer of the Income-tax Department. So far as the purchase of the suit block through the auction sale was concerned according to the petitioner the said information was given to the respondent by the Income-tax Department itself by the letter dt. 24-10-1977. It is thus clear that the case about there being a dispute between the housing society and the petitioner about his membership which was alleged to be sub judice was not raised by the respondent-tenant.

20. It is urged that in view of the communication about the title of the petitioner received by the respondent officially through the Income-tax Department itself, it was not open to the respondent not to pay the rent to him from 1-3-79 particularly when the respondent paid the rent for a long period of about two years from 11-3-1977 to 30-6-1979 to him. It is further urged that in his evidence also the respondent in his examination-in-chief has merely stated that he withheld the rent because there was a dispute about the ownership of the petitioner with regard to the suit block. The submission is that in the examination-in-chief he did not state that there was a dispute about the membership of the society, for which reason he withheld therent. Further in corss-examination, according to the petitioner, the respondent-tenant stated that he learnt about the dispute about the membership of the petitioner on 18-11-1980 i.e. after the filing of the present rent control proceedings. It is, therefore, urged on behalf of the petitioner, that the dispute about the membership cannot be a ground to withhold the rent from 1-7-1979 onwards because at that time there was no dispute raised about the membership of the petitioner of the housing society.

21. In reply to the above submission on behalf of the petitioner, reliance is placed on behalf of the respondent to that portion of his cross-examination in which he has stated that the previous owner had told him that he was still the owner and that when asked, the petitioner did not show to him the document relating to his purchase of the suit block in the auction sale. There is, however, no specific mention in his cross-examination that he learned about the dispute regarding the membership between the housing society and the petitioner on or about 1-7-1979. This is clear from the further statement immediately after the above cross-examination in which he has categorically stated that he made enquiry with the society about membership on 18-11-1980. It is thus clear that there is no basis to the finding of the learned appellate Court either in the pleadings or in the evidence of the respondent that it was because of the dispute about the membership of the petitioner with the respondent housing society in respect of the suit block that the respondent withheld the rent.

22. So far as the information about the purchase in auction is concerned the respondent was officially informed by Income-tax Department vide its letter dt. 24-10-1977 (Ex. A2). Moreover, the name of the petitioner has been mutated in the Corporation record as the owner of the suit block. There was thus no justification for the respondent to withhold the rent when particularly he had made payment of rent to the petitioner for a period of two years from 11-3-1977 to30-6-1979. It is also not the case of the respondent that he was served with a notice by the pervious owner of the suit block not to pay rent to the petitioner. Even otherwise, by his conduct in payment of rent to the petitioner, the respondent had accepted him as his landlord and unless the dispute, if any, about the title of the petitioner was fully resolved against the petitioner by any competent authority, it was not open to the respondent to withhold the payment of rent to the petitioner. The finding arrived at by the learned appellate Court is therefore, perverse. He has not considered or applied his mind to the evidence on record in the instant case which it was obligatory upon him to do in the exercise of his appellate jurisdiction. The finding in regard to the habitual default is, therefore, illegal, without jurisdiction and deserves to be set aside.

23. Since the respondent was in arrears of rent for a long period of more than one year, it has to be held that he was a habitual defaulter within the meaning of Cl. 13(3)(ii) of the Rent Control Order. His mental attitude to remain in arrears has to be judged not from his subsequent conduct of payment of arrears of rent, but from the conduct of non-payment of rent at the time when the rent was due. The respondent was obliged to pay rent each month. Considering the fact that the tenant had accepted the petitioner as his landlord. there was no reason for him to withhold the rent from 1-7-1979 onwards. In this view of the matter, it has to be held that there was a mental attitude on the part of the tenant to remain in arrears and he would, therefore, be a habitual defaulter, as rightly held by the learned Rent Controller.

24. As regards the case of the petitioner under S. 13(3)(vi) of the Rent Control Order for bona fide occupation, the learned appellate Court has rendered his finding on an altogether irrelevant circumstance that the petitioner claimed bona fide occupation very late after the purchase of the suit block. His further finding that the plea of the petitioner under Cl. 13(3)(vi) is not bona fide because the said plea was raised after the respondent stopped paying rent to the petitioner is also unsustainable in the facts and circumstances of the case. The very approach of the learned appellate Court to the question of bona fide occupation is contrary to the various decisions of this Court and the Supreme Court. The learned appellate Court has not applied his mind at all to the case set out by the petitioner for his bona fide occupation. If it could be held on the basis of the facts placed on record by the petitioner-landlord that the said facts were untrue, it could then be held upon the basis of the reasoning of the learned appellate Court that his claim for bona fide occupation was not genuine. However, if the facts placed on record by the petitioner were true, it cannot be held that he has not made out the case of bona fide occupation of the suit block.

25. It is, therefore, necessary to see the facts in the instant case set out by the petitioner in regard to his plea for bona fide occupation. It is stated by the petitioner and it is also not in dispute that the petitioner is carrying on his medicine shop in the same building but in the rented premises in block No. 118A. The very fact that the petitioner is carrying on his business in the rented premises would show that the need of the suit block for his business is genuine and bona fide. This is the view which these Court has taken in the case of Bhalchandra v. Laxman, 1983 MahLJ 198. This Court has also held in the case of Premabhai v. Jagatram, 1979 MahLJ 3 that on the question of bona fide need, the landlord is primarily the judge of his own needs and unless the circumstances are brought on record to show that his need is not genuine or bona fide, he is entitled to go permission under Cl. 13(3)(vi) of the Rent Control Order. The learned Rent Controller found that the was a member of the joint family having other accommodation. Merely the circumstance that the proceedings are initiated late for claiming the suit block of bona fide occupation would not mean that the need of the landlord is not genuine because it is primarily for him to decide whether to shift to his own premises from the rental premises.

26. The learned counsel for the respondent has, however, urged that mere desire or mere intention of the landlord is not enough to attract Cl. 13(3)(vi) of the Rent Control Order. Reliance is placed in support of the above contention upon a decision of the Supreme Court in M. M. Quasim v. Manohar Lal, : [1981]3SCR367 . It is true that mere intention or desire of the landlord to occupy his own premises is not sufficient. But here in this case it is not merely the intention or the desire of the landlord because when he carries on his business in the rented premises it would mean that his need for his own block is bona fide requirement and not a mere desire. Moreover, if the landlord really does not occupy the suit block, it is open to the tenant to claim reinduction in the premises as per the provisions of Cl. 13(5) of the Rent Control Order. In this view of the matter, the finding of the learned appellate Court under Cl. 13(3)(vi) of the Rent Control Order also deserves to be set aside.

27. In the result, the writ petition is allowed. The impugned order of the learned appellate Court is set aside and that of the learned Rent Controller is restored. However, in the circumstances of the case, there would be no order as to costs.

28. Petition allowed.


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