Vasudeo Revachand Bhojwani, Age: 68 Years, Occ: Practice Income Tax v. Javed Khudabaksh Qazi,Age: 49 Years, Occ: Advocate & Agril

{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCIVIL REVISION APPLICATION NO.282 OF 2011 1 Laxmikant Revachand Bhojwani, age: 71 years, Occ: C.A., R/o 13, GPO Road, Ahmednagar. 2 Vasudeo Revachand Bhojwani, age: 68 years, Occ: Practice Income Tax, R/o 13 GPO Road, Ahmednagar. Petitioners Versus Javed Khudabaksh Qazi,age: 49 years, Occ: Advocate & Agril.,R/o 2506, Shahaji Road, Ahmednagar. Respondents Mr. R.R.Mantri, advocate for the petitioners.Mr. C.R.Deshpande, advocate for the Respondent CORAM : R.M.BORDE, J.Reserved on : 17th April, 2012.Pronounced on: 11th May, 2012. PER COURT: 1The Revision petitioners – tenants are challenging concurrent orders passed by the Courts below directing their eviction out of the tenanted premises. The tenanted premises admeasure 1600 square feet, including 2 halls, 2 rooms on North side, 2 rooms on West side, varanda, one bathroom, one toilet, which is part of bungalow No.13, situate at Excise Cantonment area of Ahmednagar. {2} premises belong to one Smt.Indubai Pardeshi and same has been purchased by the plaintiff by way of registered conveyance dated 07.06.2004 whereby right, title and interest in bungalow no.13 along with lease hold rights of the ground land were transferred by the owner. At the time of transfer of the bungalow, original owner informed that defendant no.1 is tenant in respect of the suit premises. The erstwhile owner of the bungalow as well as plaintiff informed the tenant in respect of transfer of right, title and interest in bungalow no.13 to the plaintiff. The suit premises were let out to defendant no.1 by Shantabai, the erstwhile owner in 1964. After purchase of the property, plaintiff became landlord of defendants in respect of suit premises. It is the case of the plaintiff that rent of the tenanted premises is Rs.600/- per month, however, taking into consideration location of the suit premises and amenities, the standard rent ought to be Rs.5000/- per month. It is contended that defendant no.1 is in arrears of payment of rent. 3It is stated by the plaintiff that since last 8 to 10 years, defendant no.1 is not using suit premises and same are kept in locked condition. Thus, eviction of the tenant is asked for on the ground that suit premises are not being used since last six months immediately preceding to the date of filing of suit. According to the plaintiff, defendant no.1 is permanently residing at Pune and he does not need the suit premises. Even his brother defendant no.2 is also separated from the family of defendant no.1 and is not using the suit premises. Defendant no.1 allowed defendant no.2 to use the suit premises on every Friday as defendant no.2 visits Ahmednagar for practicing his profession as Tax Consultant. According to the plaintiff, act of defendant no.1 in permitting defendant no.2 to occupy suit premises amounts to subletting {3} the premises. The plaintiff is advocate by profession and permanently resides at Ahmednagar. He requires the suit premises for his personal use and occupation. There are six members in the family of the plaintiff and they are in possession of very small portion of the building. It is stated that area in possession of the plaintiff is only one hall, which is quite insufficient to satisfy needs of his family. Thus, plaintiff seeks possession of the premises on the ground covered by Section 16(1)(g) of the Maharashtra Rent Control Act, 1999. {3} the premises. The plaintiff is advocate by profession and permanently resides at Ahmednagar. He requires the suit premises for his personal use and occupation. There are six members in the family of the plaintiff and they are in possession of very small portion of the building. It is stated that area in possession of the plaintiff is only one hall, which is quite insufficient to satisfy needs of his family. Thus, plaintiff seeks possession of the premises on the ground covered by Section 16(1)(g) of the Maharashtra Rent Control Act, 1999. 4Defendants appeared and controverted contentions raised by the plaintiff by filing written statement. According to the defendants, the land in question belong to cantonment and plaintiff has no right, title or interest except lease hold rights. The lease executed in favour of the plaintiff got expired on 31.03.2011. It is contended that defendants are residing in the suit premises since 1964 and standard rent of the premises is fixed at Rs.600/- per month by the Honourable Supreme Court. The allegation of the plaintiff that defendants are not using the suit premises has been denied by the defendants. It is contended that plaintiff has purchased the property knowing fully well that same is occupied by defendants – tenants. Defendants contend that plaintiff is not in bona fide need of the suit premises. 5On consideration of the pleadings as well as evidence led by the parties and after scanning the evidence on record, the trial Court held in favour of the plaintiff and granted decree of eviction, as prayed for. 6The judgment and decree passed by the trial Court was {4} subjected to challenge by the defendants – petitioners herein in Regular Civil Appeal No.38 of 2007, which came to be heard and disposed of by District Judge-8, Ahmednagar, who was pleased to dismiss the same by judgment and order dated 18.12.2011. 7It is contended by the petitioners that Cantonment Board has leased out the suit premises to the erstwhile owner for a period of 30 years and the lease was renewable up to 90 years. The lease in respect of premises commenced from 01.04.1951. The lease hold rights were renewed from 01.04.1981 for a period of 30 years and the said period expired on 31.03.2011. It is contended that there is no evidence that the lease hold rights have been renewed for further period in favour of the Respondent- original plaintiff and as such, the plaintiff cannot maintain the suit claiming decree of eviction against the petitioners-tenants. The maintainability of the suit has been seriously questioned by the appellants – original defendants. It is contended that plot of land along with construction raised thereon has been leased out by the Military Estate authority in favour of the erstwhile owner. 8My attention is invited to Exhibit-A (Schedule VIII – paragraph (I)(5)), which puts a prohibition on the lessee not to erect or suffer to be erected on any part of the premises, hereby demise any building other than and except the dwelling house already in existence as shown in the attached building ground plan without the previous consent in writing of the Officer Commanding in Chief. It is, thus, contended that the construction was already in existence while lease deed was executed. The petitioners – tenants have also invited my attention to the recital contained in Schedule-VIII, which makes a {5} reference to plot of land admeasuring 2640 square feet comprising G.L.R. S.No.108 together with building standing thereon. It is, therefore, contended that the provisions of Section 3(3) of the Maharashtra Rent Control Act would not be attracted and since the land and construction belong to the Government, which has been leased out to the erstwhile owner of the property, provisions of Maharashtra Rent Control Act are not attracted. {5} reference to plot of land admeasuring 2640 square feet comprising G.L.R. S.No.108 together with building standing thereon. It is, therefore, contended that the provisions of Section 3(3) of the Maharashtra Rent Control Act would not be attracted and since the land and construction belong to the Government, which has been leased out to the erstwhile owner of the property, provisions of Maharashtra Rent Control Act are not attracted. 9Learned Counsel for the Respondent – original plaintiff, referring to the description of the property mentioned in the Schedule, contends that the lease deed is only in respect of parcel of land situate at Ahmednagar bearing G.L.R. S.No.108 admeasuring 2640 square feet. The schedule, describing the property, makes reference only to the land. It is pointed out that the lease deed is executed initially between erstwhile owner of the property and the Military authorities on 15[th ]March 1954, whereas, the lease commenced from 01.04.1954, which is clear from recitals contained in Schedule-VIII. After taking possession of the plot, erstwhile owner of the property raised construction over the plot. There was a condition imposed by the Military authorities in respect of raising further construction except the one which is already erected by the erstwhile owner and the recital in paragraph no.(I)(5) of Schedule-VIII refers to such restriction. The subsequent lease, after expiry of initial period of 30 years, commences from 01.04.1981, however, the document is actually registered on 11.09.1995. 10The objection raised by the defendants-tenants relating to applicability of the provisions of Maharashtra Rent Control Act bears no substance. It is to be noted that the defendants have nowhere raised {6} such objection in their written statement. It is not contended by the defendants in the written statement that the lease is created in favour of the erstwhile owner only in respect of “land and building” and not only in respect of “land” and, therefore, provisions of Maharashtra Rent Control Act are not applicable. No such contention was raised in the written statement. The first appellate Court has, however, considered the objection and turned down the same holding that only land has been transferred by way of lease in favour of erstwhile owner. There is also record to indicate that after purchase of bungalow by the plaintiff and on transfer of lease hold rights by the erstwhile owner in favour of plaintiff, necessary entry in the records has been taken by the Military authorities. Although such contentions were not raised in the written statement by the defendants, the first appellate Court has gone into the question and turned down the objection raised by the defendants. Since lease is created in respect of open plot and the bungalow is constructed by the erstwhile owner, in view of provisions of Section 3 of the Maharashtra Rent Control Act, tenancy can be created in respect of constructed portion and the provisions of Maharashtra Rent Control Act are very much applicable. A reference, in this regard, can be made to the judgment of this Court in the matter of M/s Lockwood Industrial and Transport Services Vs. M/s Victoria Timber Supplying Co., reported in 2009 (6) ALL MR 332, wherein it is held that, if any person other than Government or Local Authority, erects a building on the land which is given by State Government or Local Authority under lease which permits construction to be put up on the said land then in respect of the premises in the building, provisions of Bombay Rent Act would apply. {7} Transport Services Vs. M/s Victoria Timber Supplying Co., reported in 2009 (6) ALL MR 332, wherein it is held that, if any person other than Government or Local Authority, erects a building on the land which is given by State Government or Local Authority under lease which permits construction to be put up on the said land then in respect of the premises in the building, provisions of Bombay Rent Act would apply. {7} defendants-tenants from raising such objection, is that there was earlier litigation in respect of eviction of suit premises initiated at the instance of erstwhile owner Smt.Shantabai. Smt.Shantabai filed Eviction Suit bearing No.461/1974 claiming recovery of possession of tenanted premises on the ground of default committed by the tenant in respect of payment of rent. Suit presented by the erstwhile owner was decreed. An appeal was preferred by the present petitioners – tenants being R.C.A. No.168/1981 which was allowed. The erstwhile owner Smt.Pardeshi preferred Writ Petition to the High Court and the writ petition was allowed, against which Civil Appeal No.8379/1995 was preferred by the petitioners herein – tenants in respect of the suit premises. The Civil Appeal presented by the tenants – petitioners herein was allowed and the order passed by the High Court was set aside. The judgment in the matter of Laxmikant Revchand Bhojwani & another Vs. Pratapsing Mohansingh Pardeshi, is reported in 1996 (1) Mh.L.J. 507. In the litigation in respect of eviction of the petitioners – tenants initiated by erstwhile owner, the tenants did not raise a defence that the provisions of Rent Control Act are not applicable since open land along with construction is the property leased out to the erstwhile owner. Since the defence in respect of non applicability of the provisions of Bombay Rent Act was not raised in the earlier proceedings, it would not be open for the petitioners – tenants to raise such contention. In the earlier litigation, all the while, the defendants admitted their status as tenants, whereas the erstwhile owner as landlady. The Supreme Court, while allowing the Civil Appeal, also prescribed fair rent in respect of suit premises and enhanced the rent from Rs.80/- to Rs.600/-. It is observed in para 11 of the judgment delivered by the Apex Court, thus: {8} “11The appellants are paying Rs.80 per month as rent since since 1980. It would be fair and just to increase the rent reasonably. After hearing learned counsel we direct the appellants to pay Rs.600 as rent with effect from 1-9-1995.” 12In view of the pronouncement of the Supreme Court in the Civil Appeal presented by petitioners – original tenants, it would not be open for the petitioners to resile from earlier stand and contend that they are in possession of the tenanted premises not as a tenants and the provisions of Rent Act are not applicable. {8} “11The appellants are paying Rs.80 per month as rent since since 1980. It would be fair and just to increase the rent reasonably. After hearing learned counsel we direct the appellants to pay Rs.600 as rent with effect from 1-9-1995.” 12In view of the pronouncement of the Supreme Court in the Civil Appeal presented by petitioners – original tenants, it would not be open for the petitioners to resile from earlier stand and contend that they are in possession of the tenanted premises not as a tenants and the provisions of Rent Act are not applicable. 13So far as bona fide requirement of landlord in respect of tenanted premises is concerned, the Courts below have considered the issue and concurrently recorded a finding that the need of the landlord to recover the premises is bona fide and reasonable. It has come in the evidence that the landlord – original plaintiff possesses an area to the extent of 12 feet x 23 feet situate on the first floor of CTS No.3370/A1 of House No.2506, situate at Shahaji Road, Ahmednagar. There are six members in the family of plaintiff and, as such, premises in possession of the plaintiff is insufficient. It is also contended by the landlord that House No.2605 is situate in the main and busy market. The ground floor of the building is occupied by members of the family for business purposes. Since the building is situated in busy market locality, it causes disturbance for school and college going children of the plaintiff to pursue their studies. As contrasted from this, a finding is recorded by the Courts below that defendant no.1 and his family reside at Pune, whereas, defendant no.2 visits Ahmednagar only occasionally and mostly on every Friday. While considering the issue of comparative hardship, {9} the first appellate Court has recorded in paragraphs no.49 to 51, thus: 49So far as question of hardship is concerned, it tilts in favour of the plaintiff especially when the defendant No.1 has admitted that he is having bungalow at Pushpak Society, Kalyannagar, Pune in the name of his wife. He even admits that his wife is residing at Pune in the said bungalow. As per his own admission, he is also practising profession at Pune. His profession at Pune is flourishing and he used to come Ahmednagar as and when he has work at Ahmednagar probably on each Friday. So, as per his own admission, he is having his office in Wonderland building, Plot No.31 and 32 at Pune. Even as per admission given by defendant No.2 in his cross examination, Plot No.31 and 32 are owned by Janki Bhojwani and Mohini Bhojwani and Flat No.12 is purchased in 1978 and since then defendant No.1 is having his office at Pune. Further he admits that he is having associate firm under the name and style L.R.Bhojwani in Wonderland building, Flat No.12 at Pune and in the same building in Plot No.31 and 32, he is having firm under the name and style Bhojwani Brothers Consultancy and Services Private Ltd. According to him, flat No.12 is admeasuring 800 sq.ft., plot No.31 and 32 collectively are admeasuring 2400 sq.ft. and as such he is proprietor of firm M/s Bhojwani and Company. 50Defendant No.2 admits in cross examination that there is Bhojwani Security Corporate office in said Wonderland building at Pune and defendant No.1 is proprietor of L.R.Bhojwani Associates which runs Income Tax consultancy. It is thus clearcut admission of defendant No.2 that defendant no.1 is residing in Bungalow No.15, Pushpak Society, Kalyannagar at Pune. Said bungalow is standing in the name of his wife and wife of defendant no.1. Said bungalow is admeasuring 4600 sq.ft. It is two {10} storied building having construction over 2200 sq.ft. Admittedly, therefore, the family of both the defendants are residing at Pune and not in the suit premises. 50Defendant No.2 admits in cross examination that there is Bhojwani Security Corporate office in said Wonderland building at Pune and defendant No.1 is proprietor of L.R.Bhojwani Associates which runs Income Tax consultancy. It is thus clearcut admission of defendant No.2 that defendant no.1 is residing in Bungalow No.15, Pushpak Society, Kalyannagar at Pune. Said bungalow is standing in the name of his wife and wife of defendant no.1. Said bungalow is admeasuring 4600 sq.ft. It is two {10} storied building having construction over 2200 sq.ft. Admittedly, therefore, the family of both the defendants are residing at Pune and not in the suit premises. 51Further it is admitted by the defendant No.2 that bungalow No.38 was purchased during the period from 1991 to 94 and they both means defendant Nos.1 and 2 are residing together in the said bungalow. Said bungalow is admeasuring 1 Acre, wherein there is construction of 1100 sq.ft. According to him, the cost of the said bungalow is 3 crores. He then admits that son of defendant No.1 namely Romi is residing at California in U.S.A. His another son Sanjay is residing at Pune and his daughter Sangita is residing in U.S.A. Son of defendant No.1 Romi has not come in India since 2002. His son Sanjay and daughter had taken education at Pune. His daughter Sangita was married in 1991. Even as per admission of this witness, defendant No.2, he is also residing at Pune in Flat No.15 in Pushpak Society, Kalyannagar, Pune. 14It would, thus, be clear that family members of both the defendants reside at Pune. They have extensive residential and business properties at Pune. As contrasted from the situation, in which petitioners herein are placed, situation of the plaintiff is quite pitiable. He has to accommodate his family consisting of six members in the area admeasuring 12 feet x 23 feet. The need of the plaintiff is bona fide and reasonable, whereas, no hardship would be caused to the defendants, if decree of eviction is passed. The Courts below were justified in recording a finding that need of the plaintiff, for occupation of the suit premises, is bona fide and reasonable and directed eviction of the petitioners-tenants. {11} cra28211.odt 15Learned Counsel appearing for the petitioners, placing reliance on the judgment in the matter of Devendra Shantilal Vyas Vs. Mrs.Katy Nari Chinoy & another, reported in 1989 Mah. R.C.J. 599, and in the matter of Mishrilal Ramjivan Sarda Vs. Sidaramappa Kashinath Lingshetti, reported in 2011 (7) ALL MR 130, contends that need of the landlord can be satisfied by directing eviction of the tenant from the part of the premises. 16Considering facts and circumstances of the instant case, I am of the opinion that the Courts below were justified in directing eviction of the tenant and the judgments cited at bar are not applicable to the facts and circumstances of the instant case. It is also required to be borne in mind that landlord is the best judge of his requirement and even the Courts have no concern to dictate the landlord as to how and in what manner he should live. In this respect, reliance can be placed on the judgment of the Supreme Court in the matter of Prativa Devi Vs. T.V.Krishnan, reported in (1996) 5 SCC 353. Reliance can be placed on 16Considering facts and circumstances of the instant case, I am of the opinion that the Courts below were justified in directing eviction of the tenant and the judgments cited at bar are not applicable to the facts and circumstances of the instant case. It is also required to be borne in mind that landlord is the best judge of his requirement and even the Courts have no concern to dictate the landlord as to how and in what manner he should live. In this respect, reliance can be placed on the judgment of the Supreme Court in the matter of Prativa Devi Vs. T.V.Krishnan, reported in (1996) 5 SCC 353. Reliance can be placed on the judgment in the matter of Siddalingamma Vs. Mamtha Shenoy, reported in (2001) 8 SCC 561, wherein the Supreme Court has held that, while determining the case of eviction of the tenant, an approach either too liberal or too conservative or pedantic must be guarded against. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself and dwell in lesser premises so as to protect the tenant’s continued occupation in tenancy premises. However, the bona fide requirement of the landlord must be distinguished from a mere whim or fanciful desire. It must be manifested in actual need so as to convince the court that it is not a mere fanciful or {12} whimsical desire. The need should be bona fide and not arbitrary and the requirement pleaded and proved must neither be a pretext nor a ruse adopted by the landlord for evicting the tenant. 17So far as scope of exercise of revisional jurisdiction of this Court is concerned, reliance can be placed on the judgment of the Apex Court in the matter of Patel Valmik Himmatlal & others Vs. Patel Mohanlal Muljibhai, reported in (1998) 7 SCC 383. While referring to the provisions of Bombay Rent Act, the Apex Court has ruled that, “the mere fact that a different view is possible on reappreciation of the evidence cannot be a ground for the High Court to substitute its own findings while exercising revisional jurisdiction.” In the matter of Ram Dass Vs. Davinder, reported in (2004) 3 SCC 684, it has been ruled by the Apex Court that, “the High Court cannot reappreciate the evidence while exercising revisional jurisdiction.” In the reported matter, the judgment recorded by the High Court by upsetting the concurrent findings of the authorities below on reappreciating the evidence, has been set aside by the Apex Court. 18In view of the law laid down by the Supreme Court, no interference is called for in the matter in exercise of revisional jurisdiction conferred on this Court. The Revision Application is devoid of substance. 19Civil Revision Application stands dismissed. No order as to costs. {13} 20Learned Counsel for petitioners seeks time to vacate the suit premises. Six months’ time from today is granted to the petitioners-tenants to vacate suit premises on the condition of furnishing an undertaking to this Court to the effect that petitioners-tenants would vacate the suit premises at the end of period of six months, shall not induct any third person in possession of the premises, shall continue to pay rent to the Respondent herein and shall keep the premises in habitable condition. Undertaking be furnished within a period of six weeks from today. adb/cra28211 R.M.BORDE JUDGE