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Janba Daulatrao Borkar Vs. Rajesh Kumar Ramjiwan Agarwal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1277 of 1972
Judge
Reported inAIR1976Bom70; 1975MhLJ746
ActsCentral Provinces and Berar Letting of Houses and Rent Control Order, 1949
AppellantJanba Daulatrao Borkar
RespondentRajesh Kumar Ramjiwan Agarwal
Appellant AdvocateM.S. Chaudhari, Adv.
Respondent AdvocateW.G. Somalwar, Adv.
Excerpt:
.....to the evidence on record and then to record a reasoned finding. - - according to the learned rent controller, the application was not well founded and was filed at a late stage. the petitioners tenant has filed these documents to show that the applicant's father, namely, ramjivan, was an old man and was not keeping a good health. he further wanted to show from these documents that the financial position of the father of the landlord was not good and he was almost incapacitated to do any business. he further observed that the rent controller has considered in detail the need of the landlord and his order is well reasoned and based on evidence on record. according to the learned counsel there is material on record to show that on a prior occasion when the part of the premises became..........to start any business. he also denied that the applicant is living in a rented house.3. before the rent controller the father of the landlord was examined. on the other hand, the tenant examined himself and one saifuddin in support of his case. the petitioner -tenant has also filed an application for examining additional witness. such an application was filed on 5-4-1971 but the same was rejected by the learned rent controller. according to the learned rent controller, the application was not well founded and was filed at a late stage. the learned rent controller further observed that there is sufficient provision in the rent control order for an action against such landlords who would misuse the permission granted to them under clause 13 (3) (vi) of the rent control order. he further.....
Judgment:
ORDER

1. The respondent -landlord who is a minor through his father guardian filed an application under Clause 13 (3) (vi) of the C.P. & Berar Letting of Houses and Rent Control Order. 1949, referred to hereinafter as the Rent Control Order contending that his father wants to revive his cloth business to set up an cloth shop in the premises occupied by the petitioner- tenant. In the application he further contended that the Landlord and his father also wants to reside in the portion of the premises. According to the landlord, at present he is residing in a rent house and he has no house of his own in the city of Nagpur. Therefore, he needs this house for his bona fide occupation.

2. This application was resisted by the petitioner tenant. He contended that the applicant's father was not doing any cloth business at any time and the application filed is not bona fide. He further contended that in fact one of the blocks has fallen vacant. In that block the applicant's father started a shop of selling steel trunks. He closed the business after some time and let out the block at higher rent. He further contended that the application has been filed by the landlord because the petitioner -tenant refused to pay enhanced rent. According to him, the applicant or his father did not require the premises bona fide and they have no intention to start any business. He also denied that the applicant is living in a rented house.

3. Before the Rent Controller the father of the landlord was examined. On the other hand, the tenant examined himself and one Saifuddin in support of his case. The petitioner -tenant has also filed an application for examining additional witness. Such an application was filed on 5-4-1971 but the same was rejected by the learned Rent Controller. According to the learned Rent Controller, the application was not well founded and was filed at a late stage. The learned Rent Controller further observed that there is sufficient provision in the Rent Control Order for an action against such landlords who would misuse the permission granted to them under clause 13 (3) (vi) of the Rent Control Order. He further observed that he will inspect the spot. Thereafter it seems that the spot was inspected and arguments were heard and ultimately by an order dated 14-4-1971 the Rent Controller allowed the application filed by the landlord.

4. Being aggrieved by this order the tenant filed an appeal which was heard and decided by the additional District Magistrate with appellate Rent Control Powers, Nagpur. It seems from the record that at the appellate stage the petitioner tenant filed certain documents. Which included an application filed on behalf of the applicant-minor by his guardian for permission to transfer the minor's interest in the property. He also filed an affidavit sworn by Ramjivan Chiranjilal, the father of the applicant dated 17-10-1970 and 29-3-1971. He further filed an affidavit sworn by Kasturibai the mother of the landlord who was acting as a guardian in the said proceedings. The petitioners tenant has filed these documents to show that the applicant's father, namely, Ramjivan, was an old man and was not keeping a good health. He further wanted to show from these documents that the financial position of the father of the landlord was not good and he was almost incapacitated to do any business. It seems from the record that he had also filed a copy of the order passed by the District Judge granting permission.

5. The appellate Court referred to the argument advanced before him by the counsel for the parties. He had also made a reference to the documents filed by the tenant at the appellate stage and ultimately came to the conclusion that the permission which was sought from the District Judge to sell the minor's property related to selling only a portion of the house and not the entire building. He further observed that the Rent Controller has considered in detail the need of the landlord and his order is well reasoned and based on evidence on record. He further observed that he quite agrees with the same, In this view of the matter he dismissed the appeal filed by the tenant. It is these orders which are challenged in this writ petition.

6. Shri Chaudhari, the learned counsel for the petitioner tenant, contended before me that the orders passed by the authorities below are perverse. According to him, no details or particulars of the need were disclosed by the landlord in the application nor in the evidence. He further contended that is an admitted position that the premises had no latrine or bath room and there is no material on record to show that there is either a space for construction of such a latrine or bath-room or under the Municipal Bye laws it could be constructed. The learned counsel has further contended that no material has been placed before the Courts below by the landlord to show as to what arrangement has been made by him to start the business. According to the learned counsel there is material on record to show that on a prior occasion when the part of the premises became vacant they were let out at a higher rate of rent and the portion of the same building was sold to one Namdeorao and this clearly indicates that the claim made by the landlord is neither bonafide nor genuine. A contention was also raised by the learned counsel that the learned Rent Controller committed an error in rejecting the application filed by the tenant for adducing additional evidence. According to him, it cannot be said that the said application was filed at a late stage, because till then the evidence of the parties was not closed and even the sop was not inspected by the Rent Controller. Therefore, according to the learned counsel, the whole order passed by the Rent Controller is illegal) and is vitiated. So far as the appellate order is concerned, it is contended by Shri Chaudhary that the order passed by the appellate Court in no order in law, because he has not considered the evidenced either party in detail. According to the learned counsel, it was the duty of the appellate court, being the final Court of fact, to have applied its mind independently to the evidence on record and to have recorded independent findings. The appellate authority has failed to do so. Therefore according to the learned counsel his order is also vitiated. He further contended that the documents produced before the appellate Court were not properly considered by him, and therefore, his order is also illegal and liable to be set aside.

7. On the other hand it is contended by Mr. Somalwar, the learned counsel for the respondent, that in support of his desire of start the business the landlord has examined himself. The document produced at the appellate stage by the tenant could not have been considered by the appellate Court. because the landlord had no opportunity to explain the same they not being produced in the trial Court put to him when he was in the witness. he further contended that some years back the landlord's father was doing the business of cloth and he intended to do the same business in the premises now occupied by the petitioner tenant. According to him on the previous occasion the landlord's father had started a business of selling of tin boxes, but because of the losses he has to close the shop. He was indebted. He could not even pay the taxes. Therefore, he had no other alternative but to sell the portion of the property to clear off the debts or to pay the taxes. This was done by him with an intention to save the minor's property, and therefore, the permission was granted by the District Court to sell the property. According to him the circumstances in which the father of the landlord was then placed and the circumstances in which he had to sell the property clearly indicate that the sale itself was bona fide, and therefore, from these facts no inference could be drawn that the application filed by him is not bona fide nor his need is genuine.

8. From these rival contentions it is obvious that both the parties feel aggrieved by the procedure followed by the authorities below. The tenant had filed certain documents at the appellate stage and obviously, therefore, the landlord had no opportunity to explain them. It seems from the record that these documents were admitted by the appellate Court and in fact in the order the appellate Court has made a reference to them. It is also obvious that the landlord had no opportunity to explain these documents.

9. So far as the propositions of law are concerned, by now they are well settled. On accounts of the conditions which the World War II had created, there was a great demand for accommodation, particularly in big cities like Nagpur and important cities and towns in the district. The low level of construction activities in the last 2 decades and the absence of proper maintenance and repairs also contributed to a large extent to the inadequacy of residential accommodation . In those days it also became apparent that the landlords were exploiting the situation to their advantage. Not only the rent racketing was in vogue, but several malpractices were employed to enhance the rent and evict the tenants. If they are not amenable to their pressure. In order to check such exploitation and to bring the situation under control, the then Government of Central Provinces and Berar issued an order in exercise of the power conferred by Section 2 of the Central Provinces and Berar Regulation of Letting of Accommodation. Act, 1946. This order was know as C.P. & Berar letting of Houses and Rent Control Order 1949. The preamble to the C.P. and Berar Regulation of Letting of Accommodation Act clearly indicate that it was enacted to provide for regulating the letting and sub-letting of the accommodation in the Central Provinces and Berar. The Legislature then thought that it was expedient to make provisions for regulating the letting and sub-letting of accommodation and other ancillary matters referred to in the Act. Section 2 of the Act then provided that the provincial Government may be general or special order provide for regulating the letting and sub-letting of any accommodation or class of accommodation whether residential or non-residential, whether furnished or unfurnished and in particular for controlling such accommodation and for preventing eviction of tenants or sub-tenants from such accommodation in specified circumstances. Therefore, it is obvious that the Legislature wanted to make a provision for the better control of rent of houses and to prevent unreasonable eviction of tenants therefrom.

10. The whole object of the Act and the Rent Control Order is to provide for control of rents and eviction Clause 13 enumerates the grounds which will entitle the landlords to evict their tenants. Clause 13 (3) (vi) contains one of such grounds, namely that if the landlord needs the house or a portion thereof for the purpose of his bona fide occupation. Then sub-clause (4) of Clause 13 provides that if the landlord who has obtained possession of a house or a portion thereof in pursuance of the permission granted by the Rent Controller under sub-clause (1) on the ground specified in item (vi) of sub-clause. (3), does not himself occupy it without good cause, for the purpose specified in such ground , within one month of the date of obtaining possession. then the tenant who has been evicted may apply to the Controller for an order directing that the possession should be restored to him. Sub-clause (5) of Clause 13 also makes a provision that if the landlord who has obtained possession of a house or a portion thereof in pursuance of the permission granted by the Controller on the grounds specified in item (vi) of sub-clause(3), then he shall not let the said house or a portion thereof to any person other than the evicted tenant except with the previous approval in writing of the Controller in that behalf. Even in such cases the Controller is obliged to issue a notice to the evicted tenant and if the tenant agrees to take the house or a portion thereof on a fair rent, then the Controller has to refuse to give his approval to the landlord to let the house for a portion thereof to any other person. it is the matter of common knowledge that similar Acts have been passed in all the States in India. It is further clear that these provisions have been enacted solely for the benefit of the tenants , who having regard to the lack of adequate accommodation were left at the mercy of the landlords.

11. From the phraseology used in Clause 13(3) (vi) of the Rent Control Order it is further clear that the landlord has to prove that he needs the house or a portion thereof his bona fide occupation. The expression needs the house for bona fide occupation has been considered by this Court on several occasions. Broadly stated mere wish, convenience, whim or fancy of the landlord would not be enough to show that the landlord needs the premises bona fide. The landlord must allege and prove certain circumstances or facts which go to prove his need. The law does not require a landlord to establish absolute need or absolute requirement, without which he shall have no shelter over his head. What is meant by bona fide need' is that the landlord requires the premises form his reasonable needs and that he is not seeking eviction on the pretext of requiring additional accommodation with a oblique motive of realising some extraneous purpose. The need has to be reasonable and bona fide. The onus of proof of this is certainly on the landlord. Although the word 'reasonable' does not appear in the Rent Control Order the question of reasonableness is relevant in deciding the bona fides of the landlord. Gross unreasonableness may in proper circumstances lead to the Court to reach a conclusion that the landlord's requirement is not bona fide. Therefore, while deciding the question of bona fides, the reasonableness of the need or requirement is relevant. Full effect will have to be given to the expression used in the clauses, namely, 'bona fide need'. The word bona fide' means honestly and not actuated by bad faith or oblique motive. Mere wish or intention of the landlord is not sufficient to give him a right to evict the tenant. As already observed, the Rent Control Order is enacted with the avowed object of protecting tenants against unreasonable eviction and at the same time it makes a provision that the landlords will be entitled to get the possession of their premises on the grounds enumerated therein. One of such grounds is that a landlord is entitled to get permission from the Controller to evict a tenant if he needs the house or a portion thereof for the purpose of his bona fide occupation. Sub-Clause (8) of Clause 13 further enjoins a duty upon the Controller to enquire into the needs of the landlord and if on enquiry the Controller is satisfied that the needs of the landlord will be met by occupation of a portion of a house then he has to give permission in respect of such portion only. Therefore , all the relevant facts will have to be objectively considered before such a question is decided by the Rent Controller. Of course, each case will have to be considered on its own facts.

12. As to what is the true scope of Clause 13 (3) (vi) of the Rent Control Order has been considered by this Court recently in Ganpat v. Rameshwar. : AIR1975Bom225 . In this context it was held by this Court that it is the landlord who has to make out a case for his need for bona fide occupation. For this purpose he must place before the Court all necessary details which are required for granting relief. A mere ipse dixit of the landlord that he requires the accommodation for his personal occupation is not enough. He must give details as to whether he requires the accommodation for residence or business or go down. If for residence he must given details as to number of members of family and how he requires the accommodation. If the landlord owns other houses he must show whether they are occupied and if vacant why it is not available. Unless the landlord gives such details , the tenant cannot be expected to meet the case of the landlord. The statement of the landlord as to his bona fide need must be supported by valid reasons as to how his need his genuine. In this context Shri Chaudhary has brought to my notice a decision of the Supreme Court in Neta Ram v. Jiwan Lal : AIR1963SC499 . In the said case in the context of the enactment which was the subject-matter for consideration before the Supreme Court, the Supreme Court observed that reading these provisions as a whole. It is obvious that if the landlord's need be genuine and he satisfies the Controller, he can obtain possession of the building or the land, as the case may be. The Controller has to be satisfied about the genuineness of the claim. To reach this conclusion, obviously the Controller must be satisfied about the reality of the claim made by the landlord, and this can only be established by looking at all the surrounding circumstances. In this context the Supreme Court observed as under :

'Reading these provisions as a whole it is obvious that if the landlord's need be genuine and he satisfies the Controller, he can obtain possession of the building or the land, as the case may be. If , however , he does not re-erect the building and puts it to any other use or lets it out to another tenant, the former tenant can apply to be put back into possession. Clause (b)clearly shows both affirmatively and negatively that the landlord must satisfy the Controller about his claim , before he can obtain an order in his favour. The Controller has to be satisfied about the genuineness of the claim. To reach this conclusion obviously the Controller must be satisfied about the reality of the claim made by the landlord , and this can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation, the possibility of its being put to a more profitable use after construction, the means of the landlord and so on. It is not enough that the landlord comes forward, and says that he entertains a particular intention, however, strongly, said to be entertained by him. The clause speaks not, of the bona fide of the landlord but says, on the other hand , that the claim of the landlord that he requires the building for reconstruction and re-erection must be bona fide, that is to say, honest in the circumstances. It is impossible, therefore, to hold that the investigation by the Controller should be confined only to the existence of an intention in the mind of the landlord to reconstruct. The intention must be honestly held in relation to the surrounding circumstances'.

This aspect of the matter was also considered by the Supreme Court while considering the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act. 1947 in Phiroze Bamanji Desai v. Chandrakant M. Patel : [1974]3SCR267 . While considering the scope of the term ' require' the Supreme Court served:

'That there must be an element of need before a landlord can be said to require premises for his own use and occupation. It is not enough that the landlord should merely desire to use and occupy the premises, What is necessary is that he should need them for his own use and occupation'.

Thus need or requirement must be reasonable and bona fide. In my opinion, both the Courts below have not considered the material placed before them in this context. The appellate Court as well as the trial Court have not applied their mind property to the material placed on record. This is obvious from the observations of the appellate Court itself. In para 5 of its order the appellate Court has made a reference to the decision of this Court in Deoram v. N.R. Lakhkar, (1957 Nag LJ Note No. 139) and held that it lays done that 'consideration' that the landlord previously attempted to get rent increased is an irrelevant consideration'. To say the least, the observations from the said judgment were quoted by the learned appellate Court torn from their context. On the contrary in the said decision this Court has held as under.:

'That whether the tenant could or could not make application under clause 13(4), no permission could be granted unless the appellate authority was satisfied that the landlord wanted the house bona fide for, his residence that the evidence regarding attempt to enhance rent was very material; that if landlord was in genuine need of house his attempt previously to get enhanced rent was of no consequence but that did not mean that tenant's evidence was not to be considered and that the appellate authority refused to exercise jurisdiction vested in it by law'.

Therefore, practically the appellate Court has not applied its mind to the evidence of the tenant at all. As already observed, the learned Presiding Officer of the appellate Court has not considered the evidence of both the parties. So far as the evidence on record is concerned, he observed as under :

'The learned Rent Controller has discussed in details about the genuine needs for starting cloth business as well as the residence of the landlord in his order which is well reasoned and based on evidence on records. I quit agree with the same'.

This is hardly an order which is expected of an appellate Court. It cannot be forgotten that the appellate Court is the final Court of fact and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. In this context a reference can safely be made to a decision of Kerala High Court in Kurtan Chacko v. Varkey Ouseph : AIR1969Ker316 and particularly to the following observations of V.R. Krishna Iyer. J. (as he then was): 'An appellate Court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less that this is unjust to him'.

Such a view has also been taken by this Court in Atmaram v. Ramchandra 1975 Mah LJ 23 wherein this Court held as under :----

'The appellate Court dealing with the appeal is bound to give reasons for the findings. It is not enough to record mere findings after summarising the evidence. The evidence has to be appreciated on its own merits and the findings are to be recorded as a result of such appreciation by the appellate authority. If the findings are recorded in a vague manner and it is not clear whether the appellate authority did or did not accept the competing evidence led by the respective parties, the findings have to be set aside'

13. The right of appeal provided by Clause 21 of the Rent Control Order is in very wide and general terms. Obviously, therefore the appeal can lie both on the question of fact and law. Before deciding the appeal the Collector is obliged to send for the record of the case and after perusing the record and making such further enquiry, as he may think fit, he has to decide the appeal. Further by clause 21 (2-a) of the Rent Control Order powers of review are also conferred upon the Collector. Therefore, it is obvious that the decision which the Collector is expected to give in appeal, while exercising powers of appeal under Clause 21, is in the nature of judgment. The term 'decision' or judgment is not defined. However ,as observed by this Court in Nandlal v. Emperor AIR 1946 Bom 276, the judgment or decision will mean the expression of opinion of a Court arrived at after due consideration of the evidence and of the argument . If any , In this context, therefore it is duty of the appellate Court to properly appreciate the evidence on record and then to write an order indicating that the evidence has been failure and properly dealt with It is further a duty of a Court or a judicial or quasi-judicial Tribunal to make sincere effort in the administration of justice to show to the superior Court that it has applied its mind to all the evidence on record and has also considered all the important factors in that behalf. It cannot be forgotten that the Rent Controller as well as the appellate authority acting under the Rent Control Order exercise judicial function and are legal Tribunals and not merely executive officers. They act as quasi-judicial Tribunals adjudicating upon the Civil rights of the parties. It cannot be forgotten that any decision given by the Rent Controller is not only subject to review under clause 21 (2-a) of the Rent Control Order., but is also subject to the supervisory powers of the High Court under Article 227 of the constitution of India and in a given case of the appellate power of the Supreme Court under Article 227 of the Constitution of India. The successor -in-office or, the High Court and the Supreme Court would be placed under a great disadvantage if well considered and well reasoned order is not passed by the Collector in appeal. Therefore, it was the duty of the appellate Court to independently apply its mind to the evidence on record and then to have recorded a reasoned finding. In the present case but for the general observations made by the appellate authority he has not referred to any evidence on record. in this view of the matter, in my opinion, the learned counsel for the petitioner was right in contending that the learned appellate authority has failed to carry out his duty and therefore , his order is vitiated.

14. Therefore, in my opinion, the orders passed by both the authorities below cannot be sustained. as both the parties had not a fair opportunity to put forward their respective cases, in my opinion this is a fit case where the matter should be sent back to the original Court for fresh decision in accordance with law. Therefore, the orders passed by both the authorities below are set aside and the matter is sent back to the Rent Controller for deciding it afresh in accordance with law after giving a reasonable opportunity to both the parties to amend their pleading, to produce documents and to adduce evidence in support of their respective cases.

15. In the result, therefore, the petition is allowed. However, in the circumstances of the case there will be no order as to costs.

16. Petition allowed.


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