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Prabhakar Eknath Gate Vs. Hassan HusseIn Dasti - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 2612 of 1981
Judge
Reported in1982(1)BomCR412
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 13(3A)
AppellantPrabhakar Eknath Gate
RespondentHassan HusseIn Dasti
Appellant AdvocateR.M. Aggrawal, Adv.
Respondent AdvocateC.R. Dalvi, Adv.
DispositionPetition allowed
Excerpt:
.....- meaning given by assistant judge to section 13 (3-a) correct - construction up to third floor completed before filing petition - objection vanishes by virtue of construction in accordance with certificate. - - it is not disputed before me now that the total carpet area of the ground floor as well as the first floor was about 2900..........j.1. this writ petition is filled by the landlord whose suit for recovery of possession of suit premises on the ground mentioned under section 13(1)(hh) of the bombay rent act has been dismissed by both the courts below for somewhat curious reasons.2. the petitioner who will be referred to hereafter as the 'plaintiff' is admittedly the owner of the building house no. 380, shivajinagar, poona-5. originally, it was ground plus one floor structure. it is not disputed before me now that the total carpet area of the ground floor as well as the first floor was about 2900 sq. ft. out of this area, an area of 159 sq. ft. on the first floor was let out by the plaintiff to the defendant. being desirous of demolishing the house in question with a view to construct in its place a ground plus.....
Judgment:

Sharad Manohar, J.

1. This writ petition is filled by the landlord whose suit for recovery of possession of suit premises on the ground mentioned under section 13(1)(hh) of the Bombay Rent Act has been dismissed by both the courts below for somewhat curious reasons.

2. The petitioner who will be referred to hereafter as the 'plaintiff' is admittedly the owner of the building House No. 380, Shivajinagar, Poona-5. Originally, it was ground plus one floor structure. It is not disputed before me now that the total carpet area of the ground floor as well as the first floor was about 2900 sq. ft. Out of this area, an area of 159 sq. ft. on the first floor was let out by the plaintiff to the defendant. Being desirous of demolishing the house in question with a view to construct in its place a ground plus three floors' building, he obtained the necessary certificate from the Tribunal referred to in s.-section (3-B) of section 13 of the Rent Act complying with the requirements ordained by sub-section (3-A) & (3-B) of the same and thereafter instituted the suit in the Court of Small Causes, at Pune under section 13(1)(hh) of the Bombay Rent Act. In short ,his contention was that he would demolish the present structure and would construct a three storied structure, that is to stay, a building consisting of ground plus three floors. He gave the necessary undertaking to the Court that he would complete the construction within the requisite time and would hand over possession of the newly constructed premises of approximately the same area to the tenant after re-construction was complete within the requisite period. He contended that it was necessary for him to get the possession of the suit premises, that is to say, the one room in the occupation of the defendant on the first floor of the building, admeasuring 159 sq.ft. area, for the purpose of demolition and re-construction.

3. The defendant registered the suit and the plaintiff's claim. He questioned the landlord's bona fides as also the reasonableness of the demand. He pleaded that the greater hardship would be caused to him if a decree for eviction was passed against him as prayed for by the plaintiff. He denied that the requirements of the section 13(3-A) or 13(3-B) were complied with by the plaintiff. In other words, he contested the plaintiff's claim on every conceivable ground.

4. For reasons which are somewhat bizarre, the learned trial Judge proceeded to non-suit the plaintiff entirely. If it was necessary, I would have referred to the reasoning of the learned trial judge. But it is really unnecessary to me to devote any portion of this judgement to the reasoning that appealed to the learned trial Judge for the purpose of non-suiting the plaintiff. Fortunately, the Appeal Court has not subscribed to the reasoning and hence nothing more will be said about the same in this judgment.

5. In the appeal filled by the plaintiff, the learned Judge found that the plaintiff has, in fact, re-constructed ground plus one floor out of the new construction proposed by him. It was found that as a matter of fact the plaintiff had already constructed a portion of the building of the carpet area of 4800 sq.ft. The total carpet area of the previously existing structure was 2900 sq.ft. only. The learned Judge had before him this position as the factual position existing in concrete form. He, therefore, threw a glance at the provision of sub-section (3-A) of section 13 of the Rent Act. The said sub-section (3-A) was construed by him as providing that the landlord would not be entitled to get possession of the premises in question unless the area to be constructed by him was double the area already in existence before intended re-construction. The learned Judge found that the carpet area of the structure already in existence was 2900 sq.ft. and the newly constructed carpet area was 4800 sq.ft. According to him, therefore, the requirements of sub-section (3-A) of said section 13 were not complied. With this reasoning he reached the conclusion that the plaintiff had no leg to stand upon so far as his claim under section 13(1)(hh) was concerned. The plaintiff's appeal was therefore, dismissed by him.

6. To my mind, the judgement of both the courts below are susceptible to manifold attacks. In the first place, it is impossible to lend support to the learned Assistant Judge's view relating to the interpretation of sub-section 3-A of section 13 of the Rent Act. The relevant portion of section 3-A of said section 13 is as follows :

'(3-A) No decree for eviction shall be passed on the ground specified in Clause (hh) of sub-section (1), unless the landlord produces at the time of the institution of the suit a certificate granted by the Tribunal under sub-section (3-B) and gives an undertaking---

(a) that the new building to be erected by him shall (subject to the provisions of any rules, by laws or regulations made by local authority), contain not less than (two times the number of residential tenements, and not less than (two) times the floor area, contained in the premises sought to be demolished;'

This sub-section (3-A) has been paraphrased by the learned Assistant Judge in the following words :

'To prove claim for possession under section 13(1)(hh) of the Bombay Rent Control Act, the landlord has to prove that the new building which he wants to erect would contain not less than 2 times the number of residential tenements and also not less than 2 times the floor area contained in the building sought to be demolished (vide section 13(3-A)(a) of the Bombay Rent Control Act)'.

It will be noticed that the key word in sub-section (3-A)(a) is premises'. No doubt, the newly constructed area has got to be not less than two times the area of the premises sough to be demolished but what the learned Judge has done is that he has confused the concept of 'premises' with the concept of the entire area available in the construction to be demolished. The word 'premises' is defined in section 5(8) of the Rent Act and the relevant portion is Clause (b) of the same. The definition of premises runs as follows :

'premises' means---

(a)........

(b) any building or part of a building let separately.....'

It goes without saying that the residential area in the personal occupation of the landlord is not premises within the meaning of sub-section (3-A) section 13 of the Rent Act. In the instant case, the area let out is only 159 sq.ft. It is not the tenant's case at all that there is any other tenant in the suit house or that any other portion of the suit house was let out or given on licence to anybody else. If this is the position, then the total carpet area suit that the landlord must construct need not be more than 378 sq.ft. In the instant case, admittedly, the landlord has constructed 4800 sq. ft. The technical objection found favour with the learned Assistant Judge is, therefore based on no factual foundation whatsoever.

7. Moreover, it was brought to the notice of the leaned Judge that initially the intention of the landlord was not to construct only 4800 sq. ft. The carpet area of 4800 sq.ft. was to be of ground plus one storied structure. The structure intended to be re-constructed was to be one plus three storied structure and the carpet area of that intended total structure would be far exceeding even 5000/6000 sq.ft. The factual position was that till the appeal stage only ground plus one floor construction was complete, but that does not mean that the certificate obtained by the plaintiff-landlord was in any way defective. The certificate was sought for construction of ground plus three floors, for an area far exceeding double the area of even 2900 sq. ft. This is another ground on which it must be found that the technical objection raised before the learned Assistant Judge has no basis whatsoever.

8. Moreover, the plaintiff-petitioner has stated in his petition on affidavit that during the pendency of the litigation, before the filing of the petition, even the third floor was complete, meaning thereby that on the date when the petition was filed there was a construction of ground plus three floors. Even assuming, therefore, that the meaning sought to be given by the learned Assistant Judge to sub-section (3-A) of section 13 was correct still that objection vanishes by virtue of the construction in accordance with the certificate. To my mind, therefore it is impossible to support the judgement of both the courts below in the circumstance mentioned above.

9. Mr. Aggarwal, the learned Advocate appearing for the petitioner has stated before me that the petitioner will re-construct the room now in occupation of the defendant within six months from the date when he secures possession from the defendant and shall hand over the possession of the newly re-constructed room of the same area to the defendant immediately thereafter provided the defendant agrees to pay the standard rent for the newly constructed room, if necessary, by having the same fixed by an appropriate Court.

10. The petition is allowed. The decrees passed by both the courts below are hereby set aside and the plaintiff's suit for possession is decreed subject to the conditions made above. Rule is made absolute. However, in the circumstances there shall be no order as to costs.


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