Besides the abovesaid subsequent development, there is another vital matter which has been overlooked by the lower Court, inasmuch as, admittedly, the suit premises were let out to the original tenant (predecessor of the petitioner) for residential purpose and were/are being used as such, but the respondent No. 1 landlord has invoked the ground of bona fide requirement for starting business in the suit premises. Section 25 of the Act clearly prohibits conversion of residential into non-residential premises. In view of this prohibition it is not open for the respondent No. 1 to use the suit premises for any other use but residential purpose. Understood thus, the ground of bona fide pressed by the respondent No. 1 is therefore unavailable in law.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 4423 of 1989
Decided On: 05.07.2001
Avinash V. Mhapankar Vs. Prabhakar S. Kelkar and Ors.
Hon'ble Judges/Coram:
A.M. Khanwilkar, J.
Citation: 2001(4) MHLJ 220,2001(4) BOM CR708
1. This writ petition takes exception to the Order passed by the Additional District Judge, Raigad-Alibag dated 30th August, 1989 in Civil Appeal No. 103 of 1983.
2. The petitioner is the successor in interest of original tenant Vitthalrao Sakharam Mhapankar. The respondent No. 1 landlord had filed suit for possession of the suit premises on the ground of bona fide requirement under the special provisions of section 13A-1(i) of the Bombay Rent Act, being Air Force personnel. Undisputedly, the premises were occupied by original tenant Vitthalrao for residential purpose, whereas the ground of bona fide requirement pressed into service by the respondent No. 1 landlord was for starting of photography business. It is also not in dispute that in all there are 4 tenements in house No. 591 situated within the Municipal Limits at Alibag. When the suit was instituted at the relevant time, block Nos. 1 and 3 were already in occupation of respondent No. 1 landlord. He wanted the suit premises, occupied by the original tenant, predecessor of the petitioner, being block No. 2, on the ground of bona fide requirement to start a business. The trial Court, however, dismissed the suit taking the view that the landlord had failed to establish bona fide and reasonable requirement. It is in appeal that the respondent No. 1 landlord succeeded and the Appellate Court passed the decree for possession against the tenant on the said ground. This decree passed by the Appellate Court is subject matter of challenge in the present writ petition.
3. In this writ petition the petitioner specifically asserts that he has had personal knowledge that the landlord has, during pendency of the appeal before the District Court, Raigad, some time in 1985, obtained possession of one block No. 4 from the other tenant Shri Limkar who has left the said premises. Besides making this averment in writ petition the petitioner has placed this fact on record by way of affidavit which is at page 39 (Exhibit D to the petition). This Court issued Rule on 24th October, 1989 which has been duly served upon the respondent No. 1 landlord. Notwithstanding the above said assertion the respondent No. 1 has not filed any affidavit in reply refuting the contents of the affidavit at Exhibit D. In the circumstances, the learned Counsel for the petitioner submits that, in the changed circumstances the respondent No. 1 landlord will not be entitled for a decree of possession on the ground of bona fide requirement inasmuch as the respondent landlord having obtained possession of block No. 4, therefore, his plea of bona fide requirement set up against the petitioner tenant is no longer subsisting.
4. There is nothing on record to doubt the correctness of the assertion made by the petitioner that possession of block No. 4 has been obtained by the respondent No. 1 landlord in the year 1985. Besides, the respondent No. 1 has not placed anything on record before this Court that his requirement still subsists inspite of having obtained possession of block No. 4 from tenant Shri Limkar. In the circumstances, in my view, the finding with regard to the ground of bona fide requirement arrived at by the lower Appellate Court cannot held good for having been eclipsed in view of subsequent development referred to above. Besides the abovesaid subsequent development, there is another vital matter which has been overlooked by the lower Court, inasmuch as, admittedly, the suit premises were let out to the original tenant (predecessor of the petitioner) for residential purpose and were/are being used as such, but the respondent No. 1 landlord has invoked the ground of bona fide requirement for starting business in the suit premises. Section 25 of the Act clearly prohibits conversion of residential into non-residential premises. In view of this prohibition it is not open for the respondent No. 1 to use the suit premises for any other use but residential purpose. Understood thus, the ground of bona fide pressed by the respondent No. 1 is therefore unavailable in law. Taking any view of the matter, the decree of possession passed against the petitioner-tenant in respect of the suit premises, therefore, cannot be sustained. Accordingly, the impugned Order passed by the Appellate Court directing the petitioner tenant to deliver possession of suit premises is set aside.
5. Hence this petition succeeds. Rule is made absolute with costs.
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