R.S. Padhye, J.
1. Respondent Sonchand and his grand-son Kishore aged about 20 years constituted a Joint Hindu Family which owned a house situated on Saroj Talkies Chouk, Yavatmal. The house faces north and is situated in business locality. It has got 3 shops facing north. Two shops are of the size '6 x 8 1/2' while one shop is of the size of '10 x 10'. The tenants occupying these 3 shops carry on Hair Cutting business in these shops. Sonchand's son Suresh having predeceased his son Kishore. It appears that Sonchand and his grand-son Kishore are continuing as male coparceners of the joint Hindu family. Sonchand filed 3 applications against the 6 petitioners in the above three special civil applications occupying the three shops claiming that his grand-son Kishore was studying in commerce college but was not good at studies and, therefore, he wanted to settle his grant-son in business by starting a Stationary and General Stores in the three shops in question. He submitted that it was his duty to settle his grand-son Kishore in business and guide him. At one time Sonchand himself carried on the trade of cloth, Stationary and General merchant. It was claimed that Kishore wanted to leave the College and start the shop, the moment it was available. Sonchand also pointed out that he had about Rs. 15,000 by way of hard cash in bank account.
2. On behalf of the tenants it was submitted that Sonchand was in possession of an adjoining room measuring 6' x 61/2' used as a Bithak and this claim for occupation of 3 shops was not a bona fide claim. According to the tenants, it was a pretext to increase rent. Sonchand and Kishore examined themselves to prove the case of bona fide need. Tenants examined themselves to controvert the alleged bona fide need. The Rent Controller carried on spot inspection and came to a conclusion that the baithak 6' x 61/2' occupied by Sonchand was used for sleeping purposes and further found that it was not useful for business. The learned Rent Controller, Yavatmal as well as the Appellate Authority found that the landlord had established need for the three shops, that the need was bona fide, that the landlord had no other premises of his own and the landlord wanted to start Stationary business for settling his grand-son Kishore who was not interested in prosecuting his studies further and the landlord had necessary capital. The authorities found that Sonchand had previous experience of this business and the rooms were located in front of Saroj Talkies which was a business locality. On these findings permission were granted by the learned Rent Controller, Yavatmal in 3 Revenue Cases to Sonchand to terminate the tenancy of the tenants occupying three shop premises. This decision was affirmed in three appeals by the Resident Deputy Collector, Yavatmal acting as Rent Control Appellate Authority. Feeling aggrieved by these decisions, three special civil applications have been filed by tenants of three shops premises.
3. Shri Bapat, learned Counsel appearing for the petitioners in all these three petitions submitted that in Full Bench decision of this Court in the case of Eknath Bhanudas Utane v. Shankarrao Deorao Jumde and another, 1971 Mh.L.J. 546, it was held that house in Clause 2(3) of C.P. and Berar Letting of Houses and Rent Control Order, 1949 includes a building or a part of a building and when the landlord was occupying a part of a building it had to be held that he was occupying house of his own. It was submitted that upon this interpretation that was placed upon Clause 13(3)(vi) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 by a Full Bench of this Court, it will have to be found in the present case that the landlord who was admittedly occupying the residential portion of the house in question and a baithak, was occupying any other house of his own in the city or town concerned and, therefore, in terms of sub-clause (vi) of Clause 13(3) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 which reads as under :
'(3) If after hearing the parties the Collector is satisfied.
(vi) That the landlord needs the house or a portion thereof for the purpose of his bona fide occupation, provided he is not occupying any other house of his own in the city or town concerned.
he shall grant the landlord permission to give notice to determine the lease as required by Sub-clause (1).'
Respondent Sonchand was not entitled to obtain permission to terminate the tenancy in respect of the 3 shops in question. It was not disputed that the proviso contained in Sub-clause (a) of Clause (vi) of Clause 13(3) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 was struck down in the case of Ramcharan v. Resident Deputy Collector, Yavatmal and others, 1970 Mh.L.J. 975 by this Court after holding that it arbitrarily and excessively invaded the fundamental right to property guaranteed by Article 19(1)(f) of the Constitution of India and could not be said to be a reasonable restriction on the said right. However, it was submitted that the said proviso stood revived on the basis of theory of eclipse as propounded by the Supreme Court of India in Bhikaji Narain Dhakras and others v. State of Madhya Pradesh and another, : 2SCR589 and in case of Mahendralal Jaini v. State of Uttar Pradesh and others, : AIR1963SC1019 because fundamental right to property guaranteed by Article 19(1)(f) of Constitution of India was itself deleted by 44th Amendment to Constitution of India which came into force on 20th June, 1979. According to the theory of eclipse propounded by Supreme Court of India in the case of Bhikaji (supra) and explained in the case of Mahendralal Jaini (supra) all pre-Constitution laws which were perfectly valid when they were passed and the existence of which is recognised in the opening words of Article 13(1) of Constitution of India revive by the removal of the inconsistency between the laws and the fundamental rights contained in Part II of the Constitution of India. Post-Constitution laws which are in conflict with any of the fundamental rights contained in Part III of the Constitution of India or still-born laws in view of the total prohibition contained in Article 13(2) of the Constitution of India. But, that will not be the case with pre-Constitution laws which only stand eclipsed to the extent of inconsistency between them and fundamental rights guaranteed under Part III of the Constitution of India. This distinction was pointed out by Wanchoo, J., in the case of Mahendralal Jaini (supra) in the following words :---
'The application of the doctrine arises from the inherent difference between Articles 13(1) and 13(2) arising from the fact that one is dealing with pre-Constitution laws and the other is dealing with post-Constitution laws, with the result that in one case the laws being not still-born the doctrine of eclipse will apply while in the other case the laws being still-born there will be no scope for the application of the doctrine of eclipse.'
It will be have, therefore, to be found that the proviso to Clause 13(3) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 which was to the effect 'Provided he is not occupying any other house of his own in the city or town concerned', though struck down as void on account of inconsistency with the fundamental rights to property guaranteed under Article 19(1)(f) of Constitution of India, in the case of Ramcharan (supra) by this Court, stood revived on 30th April, 1979 when fundamental right to property guaranteed by Article 19(1)(f) of the Constitution of India was itself deleted by 44th Amendment to Constitution of India.
4. Shri V.G. Palshikar learned Counsel appearing for respondent did not dispute that in terms of the above referred two decisions of the Supreme Court of India, it can be said that proviso to Sub-clause (vi) of Clause 13(3) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 stood revived from 30th April, 1979 and will have to be applied to cases arising thereafter. According to him, it did not affect the present case for the simple reason that the applications in the present case were filed on 14-9-1977 and orders of Rent Controller and the Appellate Authority were passed on 19-1-1978 and 20-7-1978 respectively. It was further pointed out on behalf of respondent that proviso stood very much eclipsed even on 1-9-1978 when the present 3 special civil application were presented. It was submitted that the law as it stood in January 1978 and July 1978 had to be applied by the Court to the facts of the present three cases and the revival of proviso in question on 20th June, 1979 could not affect these decisions given in January and July 1978 by the Rent Controller and the Appellate Authority.
5. Shri Bapat, learned Counsel appearing for the petitioners relied upon one decision of this Court and one decision of Supreme Court of India for the proposition that the proviso in question as revived on 20th June, 1979 should be taken into account for the purpose of deciding the case in question. The first case which he referred was Pandurang v. Mah. Revenue Tribunal, 1973 Mh.L.J. 792. Landlord's application for possession on the ground that the land was required for personal cultivation against a tenant was dismissed by the Naib Tahsildar, Appellate Authority and the Revenue Tribunal on the view that section 38(7) of Bombay Tenancy Act operated as a bar to the maintainability of the said application since the landlord had become owner of the property by a partition of 17-12-1958. Upon a petition by the landlord under Article 227 of the Constitution of India and relying upon an earlier decision in Smt. Sakhubai v. Chandu and others, 1966 Mh.L.J. 259, this Court remanded the matter by order dated 5-4-1966 for finding out the other conditions contemplated by the provisions of section 38 of the Bombay Tenancy Act. After remand, landlord's claim was allowed and the tenant challenged the orders in a petition under Article 227 of the Constitution of India. During the pendency of the petition by a tenant the Full Bench of this Court in Smt. Radhabai v. State of Maharashtra, 1966 Mh.L.J. 933 overruled the decisions in Smt. Sakhubai v. Chandu and others and on the view held by the Full Bench a landlord placed in the position similar to that of the petitioner in that case was not entitled to any right, as claimed, for getting possession of land from tenant. Tenant, relying upon the Full Bench decision submitted that landlord's application for getting the land released for his personal cultivation was liable to be dismissed on the basis of Full Bench decision, while on behalf of the landlord it was submitted that the earlier decision in the petition filed by him having become final operated as res judicata. While dealing with these rival contention, it was found by Masodkar, J., in this case that whenever the law is changed or its interpretation is found to have been incorrectly made, the parties should be able to show that such a decision unrelated to facts does not foreclose their rights upon allusions to these general principles. (Principles of res judicata). It was held that 'No Court or Tribunal by interpreting a law of its jurisdiction in error can fatten upon a party its authority eminently emanating from such interpretation at the foot of this doctrine.' I feel that the decision can be of little help to the proposition which is being advanced by Shri Bapat, learned Counsel for the petitioner because in the present case it is nor argued on behalf of Sonchand that a decision obtained earlier in his favour operated as res judicata and it is not the case of the petitioner that the decision alleged to be operating as res judicata was a decision arrived at on erroneous approach to jurisdictional facts.
6. Shri Bapat, learned Counsel for petitioner also placed reliance on a decision of Supreme Court of India in Pasupulati Venkateswarlu v. Motor & General Traders, : 3SCR958 wherein it was found that 'for making the right of remedy claimed by the party just and eminently as also legally and factually in accord with the current reality, the Court can, and in many cases must take conscious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed.' In this case during pendency of proceedings under Rent Control Legislation by landlord for permission to evict the tenants, a subsequent event in the facts of the case has taken place and this event had a material bearing on the landlord's right to evict. This new extent was taken into account by High Court in revision and the argument was that the new event or development could not have been taken into account by the High Court. It was while repelling this argument that the above observations were made by the Supreme Court of India. Obviously, there is no question of consideration of any subsequent event or happening in the present case. It cannot be disputed that from the date of decision in the case of Ramcharan v. Resident Deputy Collector, Yavatmal and others the relevant proviso to Clause 13(3)(vi) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 had to be ignored by the Rent Control Authorities while deciding the cases before them. It cannot be disputed that the proviso could not be said to have revived at any point of time earlier than 30th April, 1979. If the revival of the proviso was on account of deletion of fundamental right to property as contained in Article 19(1)(f) of the Constitution of India by enactment of 44th Amendment to the Constitution, it is obvious that the proviso could not have existed so long as fundamental rights guaranteed by Article 19(1)(f) of Constitution of India continued to exist right upto 30th April, 1979. In the circumstances, I am unable to agree with the contentions of Shri Bapat, learned Counsel for the petitioners that the proviso in question should be applied to the facts of the present three cases.
7. It was next submitted on behalf of the petitioner that the burden of proving the need was on landlord as found in the decision of Sukhdeo Krishnarao Ghatode v. Laxmibai Dattatraya Mohoril, 1979 Mh.L.J. 545 and respondent Sonchand has miserably failed in discharging this burden. It is difficult to appreciate such a contention when Sonchand has examined himself and his grand-son Kishore both of them have stated about the previous experience, about the availability of funds, about the need to give up education and about the need to establish a business. I do not think that anything more could not have been done for establishing bona fide need.
8. Lastly, it was submitted that Clause 13(8) of C.P. and Berar Letting of Houses and Rent Control Order, 1949 contained a mandate to the Rent Control Authorities to examine the question as to what was the extent of the need of landlord to occupy certain premises. Clauses 13(8) of the Rent Control Order reads as under :---
'8. When a landlord applied to the Controller under item (vi), sub-clause (3), the Controller shall 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 the occupation of a portion of the house he shall give permission in respect of such portion only.'
The landlord has demanded 3 shop rooms in the present three cases for the purpose of starting and general stores. It was submitted on behalf of the petitions that it was for the Rent Controller to decide as to whether the landlord needed three rooms or two rooms or one would have been enough and the learned Rent Controller must consider this aspect even if it was not pleaded by the tenants. Reliance for this proposition was placed upon a Supreme Court decision in Rehman Jeo Wangnoo v. Ramchand & others, : 2SCR380 . While interpreting a similar provision in Jammu and Kashmir Rent Act, Supreme Court found in this case that the provision contained a mandate which must be present to the mind of the Rent Control Authorities while deciding the question of need of landlord and it was mandatory even it not pleaded. In the case before the Supreme Court of India, it as pointed out and established that the question of extent of need of landlord for occupation of the premises was not present to the mind of the Rent Control Authorities. That does not seem to be position in the present cases. From a perusal of the orders of Rent Controller and Appellate Authority, it appears that the question contemplated by Clause 13(8) of the Rent Control Order was present to the mind of both these authorities. It is true is submitted by Shri Bapat, learned Counsel for the petitioners that the question was examined not from the point of view as to whether the three shop premises were needed or two shop premises would have been enough but it was considered in the light of the averment of tenants that landlord was in possession of one room already and he should carry on his business in that room. However, it cannot be said that the question was not present to the mind of these authorities, which in terms have found that the landlord has established his need for all the shop premises. Even having a common sense view, it is not possible to hold that the premises demanded by the landlord could not be said to have been reasonable required for the purpose of starting a stationary and general stores. The total length of the premises is 22 ft. and the breadth is 8 1/2 ft. and 10 ft. It is not possible to start a shop of Stationary General Stores without having Almirah and it does not require much reasoning to find out that after placing the Almirah in these shops, very little space will be left for accommodating the customers and the shopkeeper. It at all anything can be said, it is that the premises are insufficient for the purpose but in the circumstance of the case, the landlord has to be satisfied with the premises that are available in a business locality.
9. Result is that the three petitioner stand dismissed. There will be no order as to costs.