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Dwarkadevi (Smt.) Wd/O Jagdishprasad Choudhary Vs. Narsingdas S/O Rampratap Sharma - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 77 of 1984
Judge
Reported in1987(2)BomCR680
ActsC.P. and Berar Letting of Houses and Rent Control Order, 1949
AppellantDwarkadevi (Smt.) Wd/O Jagdishprasad Choudhary
RespondentNarsingdas S/O Rampratap Sharma
Advocates:S.N. Kherdekar, Adv.
DispositionPetition dismissed
Excerpt:
- - it is well established that mere desire of the landlord is not enough to prove the bona fide need as contemplated under clause 13(3)(vi). certain element of necessity must be there and the bona fide need under clause 13(3)(vi) would mean the bona fide requirement of the suit premises by the landlord. in his original order in appeal was thus clearly not in accordance with the law laid down by this court under clause 13(3)(vi) of the rent control order and was also perverse......dy. collector, nagpur, passed in review proceedings under the c.p. & berar letting of houses and rent control order, 1949 (for short the rent control order). the petitioner filed an application under clauses 13(3)(i)(ii) and (vi) of the rent control order seeking permission to give quit notice to the respondent tenant, who has a lease of the shop block in the building belonging to the petitioner. the learned rent controller rejected the application of the petitioner under clauses 13(3)(ii) and (vi) of the rent control order. as regards clause 13(3)(i) the learned rent controller stipulated time for payment of arrears of rent, failing which permission thereunder was deemed to be granted. the respondent has however, paid the arrears of rent as ordered by the learned rent controller and,.....
Judgment:

H.W. Dhabe, J.

1. This is a writ petition preferred by the landlord challenging the order of the learned Appellate Dy. Collector, Nagpur, passed in review proceedings under the C.P. & Berar Letting of Houses and Rent Control Order, 1949 (for short the Rent Control Order). The petitioner filed an application under Clauses 13(3)(i)(ii) and (vi) of the Rent Control Order seeking permission to give quit notice to the respondent tenant, who has a lease of the shop block in the building belonging to the petitioner. The learned Rent Controller rejected the application of the petitioner under Clauses 13(3)(ii) and (vi) of the Rent Control Order. As regards Clause 13(3)(i) the learned Rent Controller stipulated time for payment of arrears of rent, failing which permission thereunder was deemed to be granted. The respondent has however, paid the arrears of rent as ordered by the learned Rent Controller and, therefore, no question of permission under Clause 13(3)(i) survived for consideration.

2. The petitioner filed an appeal against the order of the learned Rent Controller dismissing her application under Clauses 13(3)(ii) and (vi) of the Rent Control Order. In appeal the learned Appellate Dy. Collector, maintained the order of the learned Rent Controller under Clause 13(3) (ii) but reversed his order under Clause 13(3)(vi) of the Rent Control Order. The learned Appellate Court held that the petitioner has proved her bona fide need under Clause 13(3)(vi) of the Rent Control Order. He, therefore, granted her permission thereunder. The respondent tenant preferred a review against the aforesaid order in appeal passed by the learned Additional District Magistrate, who exercised the appellate power under Clause 21 of the Rent Control Order. The successor of the learned Additional District Magistrate (for short the ADM) who passed the original order in appeal, allowed the review holding that the petitioner is not entitled to permission under Clause 13(3)(vi) of the Rent Control Order. Thus, the application of the petitioner under all the Clauses of 13(3) of the Rent Control Order came to be dismissed in toto. Being aggrieved, the petitioner has preferred the instant writ petition in this Court.

3. The learned Counsel for the petitioner has at the outset urged before me that the scope of review jurisdiction under the Rent Control Order was very limited and it was not open to the reviewing authority to reappreciate the evidence on record and come to its own independent conclusion. In support of the above submission as regards the scope of the review jurisdiction, the learned Counsel for the petitioner has relied upon a decision of this Court in the case of Anant v. Shankar, 1963 Mh.L.J. 35 and also a recent decision of this Court in the case of Tukaram v. Dayalnath, 1985 Mh.L.J. 37. The view taken by this Court in the above decisions in regard to the scope of review jurisdiction is that it is not open to the reviewing authority to come to its own conclusion only because the view taken by it is possible on the basis on the basis of the evidence on record in the case. It is, however, held in the later decision by the Mohta, J., that the reviewing authority can interfere not only on a question of law but also in some cases on a question of fact also. The reviewing authority could therefore, interfere if it found that the finding of the appellate authority in its original decision was perverse and was not according to law. It has, therefore, to be determined whether the order passed by the reviewing authority in the instant case is within the scope of the review jurisdiction as determined by this Court in the above cases.

5. To appreciate the finding of the learned Appellate Dy. Collector in review, it is necessary to see that the only allegations made in para 3 of the application under Clause 13(3)(iv) of the Rent Control Order by the petitioner are that the petitioner wants to start a business in these premises, that the petitioner is not having any business of her own in her own name, and that the suit premises are convenient and suitable for starting the business as they are in business locality. In support of her case, the petitioner has not herself entered the witness box but her son has given evidence in the instant case. In his examination-in-chief, he has only stated that the petitioner wants to start business in her own name, that she is income tax payer and that there are no vacant premises in which she can do the business. In his examination-in-chief, he does not give the nature of the business which the petitioner wants to start. However, in cross-examination, he states that the petitioner wants to start business of a general merchant. In his cross-examination he also states that the age of the petitioner is 50 years. On the other hand, the respondent in his evidence states that it is not correct that the petitioner wants to start any business. Further in his cross-examination he states that there is a vacant space belonging to the petitioner in Raka Bhawan on the first floor.

6. It is on the basis of the above evidence that the learned A.D.M. in his original order in an appeal reached the conclusion that the petitioner proved her bona fide need under Clause 13(3) (vi) of the Rent Control Order. The learned Appellate Dy. Collector in his review order found that one of the main considerations to determine whether the need pleaded by the petitioner was bona fide or not was her age which would show whether she was in a position to start any business. The learned reviewing authority found that the evidence given by the son of the petitioner in this regard that the age of the petitioner was 50 years was totally untrue because in the title clause of the application under Clause 13(3), the age of the petitioner given was 60 years. The learned reviewing authority also found that no particulars of the business were given by the petitioner in the application filed by her under Clause 13(3) of the Rent Control Order and there is no material on record to show whether she had any knowledge of any business, whether she had done any business in the past and whether she had the capacity to carry on any business. He has also held that it was for the petitioner to enter the witness box and give evidence in regard to her personal need. It is on the basis of the above finding that the learned reviewing authority reversed the original order in appeal.

5. In appreciating the findings of the learned reviewing authority, it is necessary to notice the law laid down by this Court under Clause 13(3)(vi) of the Rent Control Order. It is well established that mere desire of the landlord is not enough to prove the bona fide need as contemplated under Clause 13(3)(vi). Certain element of necessity must be there and the bona fide need under Clause 13(3)(vi) would mean the bona fide requirement of the suit premises by the landlord. In regard to business need, it is not only enough to state that the landlord want to do business, it must be proved also which business he wants to start and the area or space needed for it. He must further prove that he has knowledge and experience and capacity to start the business. If there are vacant premises in possession of the landlord, it must be shown how the said premises are not useful for the business of the landlord, which he wants to start. All these and other considerations must be examined by the Rent Control Authorities in reaching the conclusion under Clause 13(3)(vi) of the Rent Control Order. It is also settled by the decisions of this Court that there must be adequate pleadings upon all these matters in the application filed by the landlord.

6. Examining the case of the petitioner, under Clause 13(3)(vi) in the instant case, it is clear that except the bare statement that the petitioner wants to start business, there is no pleading in the instant case which business the petitioner wants to start, thus giving an opportunity to the respondent/tenant to show how she has no capacity to carry on such a business. Moreover, such a pleading in the application would go to show the bona fides of the petitioner also. Apart from the inadequate pleadings, the evidence led on behalf of the petitioner is also very scanty and of a casual nature. Her son, who is examined has merely stated in examination-in-chief that the petitioner wants to start the business. There is no evidence led to show what nature of the business is and whether the petitioner has capacity to carry on the said business. It is only in cross-examination that he states that the petitioner wants to carry on the business of a general merchant which is again a very bald statement. It must be remembered that the Rent Control legislation is intended to give protection to the tenants and the landlord is not entitled to get the permission under Clause 13(3)(vi) just for the asking. Such laconically and lackadaisical pleadings and evidence and such a casual approach under Clause 13(3)(vi) in the instant case deserves to be deprecated.

7. The learned reviewing authority further rightly found that the age given by the son of the petitioner in his evidence was not correct because in the title clause of the application itself, the petitioner had stated her age as 60 years. The finding of the learned A.D.M. in this regard in appeal was thus perverse. In this writ petition also the age of the petitioner shown in the title clause of the petition is 70 years. The petition is filed in 1983 and, therefore, by now the petitioner is of about 73 years of age. The factor of advanced age is important in determining whether the petitioner can carry on the business which she wants to start. It is not the case of the petitioner that she wants to carry on the business in partnership with or with the assistance of other persons.

8. In this regard, it may be seen that the advanced and/or the advancing age of the petitioner is a factor which can be taken into consideration because the principle underlying the question of bona fide need is that the said need must not only be shown to exist on the date of the application but must be shown to exist on the date of the final order also which may be passed by the higher authority, See Hasmat Rai v. Raghunath Prasad, : [1981]3SCR605 , M/s.Variety Emporium v. V. R.M. Mohd. Ibrahim Naina, A.I.R. 1985 S.C. 1207 and Amarjitsingh v. Khatoon Quararain, : [1987]1SCR275 . Taking the said factor about the old age into consideration the finding in appeal of the learned A.D.M. in regard to which was perverse the learned reviewing authority rightly held that the petitioner has no capacity to carry on the business. It may be noticed in this regard that the suggestion on behalf of the respondent/tenant that the petitioner is sick and cannot walk or climb the staircase and that she cannot do the business is merely denied by the son of the petitioner but no independent evidence is adduced to show her physical fitness which could at least have been demonstrated by examining her although it might not have been necessary to do so for proving her bona fide need as held by this Court in the case of Nathulal v. Nandubai, 1984 Mh.L.J. 253.

9. The finding rendered by the learned A.D.M. in his original order in appeal was thus clearly not in accordance with the law laid down by this Court under Clause 13(3)(vi) of the Rent Control Order and was also perverse. The scanty and inadequate material on record in the instant case could not reach the conclusion of bona fide requirement, as contemplated under Clause 13(3)(vi) of the Rent Control Order. The learned reviewing authority was thus within its review jurisdiction in interfering with the order in appeal. The contention on behalf of the petitioner that the learned reviewing authority exceeded its jurisdiction, therefore, deserves to be rejected.

In the result, the instant writ petition fails and is dismissed. However, in the circumstances of the case, there would be no order as to costs in this writ petition.


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