Section 16(1)(i) provided that the decree for eviction may be passed if the premises are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting new building on the premises sought to be demolished. Similarly under Section 16(1)(j), decree can be passed if the premises let out consist of a tenement or tenements on the terrace of a building and such tenement or tenements being is required by the landlord for the purpose of the demolition thereof and erection or raising of a floor or floors on such tenements. In both these cases, building is not required to be demolished because it is in dilapidated condition nor there is any order from the Municipal Corporation to demolish the building. The landlord seeks to demolish the premises or such tenements for the purpose of erection of new building or for erection or raising some additional floors on the existing building. Naturally such work is taken up for his own benefit or for the purpose of optimum utilisation of the land or F.S.I., which may be available to him. When decree of eviction is passed on these two grounds under Section 16(1)(i) and (j), provision is specifically made in Section 16(6)(d)(ii) that after construction of new building or new floor or floors in the existing building, the landlord shall offer the concerned tenant premises in the re-erected building or the floors as the case may be.
IN THE HIGH COURT OF BOMBAY
Contempt Petition No. 390 of 2006 and Civil Rev. Appln. No. 131 of 2008
Decided On: 13.02.2008
Sharadchandra Vasant Chitnis Vs. Neela Ashok Korde and Ors.
Hon'ble Judges/Coram:
J.H. Bhatia, J.
Citation: 2010(1) MHLJ1006:2010(5) ALLMR134
1. The revision application is filed by the original plaintiffs while the contempt petition is filed by the original defendant. For the sake of convenience, the parties will be addressed by their original title.
2. Admitted facts are that the plaintiffs are the landlords of the suit premises admeasuring 629 sq.ft on the ground floor of the Korde House situated at Thane. The defendant was admittedly the tenant in the suit premises. The building was more than 100 years old and was in dilapidated condition. The Municipal Corporation had issued a notice for demolition of the said building on the ground that it was in dilapidated condition and it was dangerous for the human life to continue the same. The plaintiffs issued notice to the defendant terminating the tenancy on two grounds, firstly, that the plaintiffs were residing in a small house, which was not sufficient for their requirements. Their son had completed M.B.B.S. and was doing post-graduation for M.D. He was married and his wife Mrs. Vanita was also M.B.B.S. and was proceeding with further education. They wanted to open their own dispensary. Korde house was a small, old and in dilapidated condition and was required to be demolished. Therefore, they wanted to demolish that house and to construct a new building for self occupation where they could reside and where their son and daughter-in-law could start practice. The defendant refused to vacate the premises unless alternative accommodation was provided to him. Therefore, the plaintiffs filed suit under Section 16(1)(g) and (k) of the Maharashtra Rent Control Act for eviction and possession on the ground of reasonable and bona fide requirement for self occupation of the landlords and for immediate purpose of demolition as ordered by the Municipal Authority. The defendant contested the suit. While admitting that the building was in dilapidated condition, the defendant denied the reasonable and bona fide requirement for personal use. He also contended that the landlords are bound to provide him alternate accommodation before he was required to vacate the premises and he should be assured that they would provide permanent accommodation in the building, which would be constructed after demolition of the old building.
3. After hearing the evidence for both the parties, the learned trial Court upheld the plea of the plaintiffs on both the grounds and passed the decree for eviction and possession and rejected claim of the defendant that the plaintiffs were bound to provide alternate accommodation to him. The defendant challenged the said judgment and decree in Civil Appeal No. 175 of 2003. The defendant admitted that taking into consideration dilapidated and dangerous condition of the old building not only the plaintiffs but he himself had also vacated the premises and shifted elsewhere and he contended that the plaintiffs were making construction of new building and, therefore, the plaintiffs should be directed to provide him alternate accommodation in the new building as a tenant. Defendant also filed Writ Petition No. 1814 of 2004 seeking such a direction. However, on 17-3-2004 that writ petition was withdrawn with liberty to make appropriate application before the Appellate Court to get a flat earmarked in the building being constructed by the landlord. In view of this defendant made an application before the trial Court and on 13th April, 2004 plaintiffs filed written undertaking and reserved the flat on the second floor of the proposed building admeasuring approximately 67.12 sq.mtrs. equivalent to 722 sq.ft. built up area. Thereafter, on 31st July, 2004 modified undertaking was filed contending that due to changes by the Municipal Corporation, area of the flat on the second floor was changed to 63.56 sq.mtrs. equal to 684.16 sq.ft. and they agreed to reserve that flat for the defendant. This undertaking was without prejudice to the contentions and grounds in civil suit and to the effect that if the appellant would be ultimately able to establish his claim for the alternate accommodation, the respondents/landlords will accommodate him in the second floor on rental basis at the standard rent payable at that particular time. They also gave undertaking that till final disposal of the appeal, they would not create third party interest in the said flat.
4. After hearing the appeal filed by the defendant, the learned Appellate Court upheld the contention of the plaintiffs that the suit premises were immediately required for the purpose of demolition as per the direction given by the Municipal Corporation but rejected the contention of the plaintiffs that the suit property was reasonably and bona fide required for personal use. The learned Appellate Court also came to conclusion that even though building is required to be demolished as per the directions of the Municipal Corporation under Section 16(1)(k) of the Maharashtra Rent Act, the plaintiffs/landlords are bound to provide alternate accommodation and accordingly, he directed plaintiffs to provide alternate accommodation as per their undertaking Exhibit 19 on the second floor admeasuring 722 sq.ft. on rental basis with standard rent payable at the time of possession. The plaintiffs have challenged that part of the order passed by the Appellate Court whereby they are required to provide alternate accommodation to the defendant. They have also challenged findings of the Appellate Court in respect of reasonable and bona fide requirement of the plaintiffs for their personal occupation.
5. The defendant filed Contempt Petition No. 390 of 2006 contending that the plaintiffs had completed construction of new building and as per undertaking and as per the direction given by the Appellate Court in its judgment dated 18th February, 2005, the plaintiffs were bound to provide alternate accommodation to him on the second floor of the new building but they had failed to comply with the said direction and the undertaking given to the Court and thus, they have committed contempt of the Court.
6. As the facts in the Appeal as well as in Contempt Petition are by and large common and they are likely to overlap, this judgment will dispose off the appeal as well as the contempt petition. Naturally to find out whether the plaintiffs have committed contempt of the Court, it will be necessary to deal with the Revision Application first.
7. As stated earlier, it is admitted fact that Korde House building, which is now no more in existence, was more than 100 years old and was in dilapidated condition. The Municipal Corporation had issued a notice for demolition of that building. Evidence on record reveals that the plaintiffs had consulted an architect to find out whether it was possible to carry out necessary repairs and to restore building to its original position but the architect opined that the condition of the building was so bad that it was impossible to make any repairs. He also opined that it was dangerous to reside in that building. Admittedly, in view of the condition of the building and as per the direction given by the Municipal Corporation, it had become immediately necessary to vacate the premises and demolish the same and, therefore, it is admitted position that the case of the plaintiffs was covered under Section 16(1)(k) of the Maharashtra Rent Control Act, 1999 (In brief 'Rent Act') and on that ground, decree of eviction could be passed.
8. Record reveals that when the suit was taken up for trial, as per the evidence led by the plaintiffs, their son had already completed M.D. and required sufficient space for opening his clinic and, their daughter-in-law had also completed M.B.B.S. as well as further education and wanted to open pathological laboratory on the first floor of the building. According to the plaintiffs, therefore, it was necessary to get the premises vacated and after vacating old premises, they would be required to demolish and to construct a new house for use and occupation of themselves and, their family members. Practically, there was no challenge to this evidence and there was no reason on record to disbelieve the evidence led by the plaintiffs in this regard. Therefore, the learned trial Court decreed the suit on this ground also under Section 16(1)(g) of the Rent Act. However, the learned Appellate Court did not accept the plea of the plaintiffs in this respect. The learned Appellate Court noted that the plaintiffs were residing in their own flat at Akashganga Complex while the defendant was residing with his daughter at Vashi because he was not provided any alternate accommodation after he was required to vacate the suit premises because of dilapidated condition of Korde House building. It was argued before the Appellate Court that the ground floor was required for dispensary of their own son and first floor was required for pathology laboratory of their daughter-in-law and second and third floor were required for the residence of the plaintiffs and their son and daughter-in-law and, therefore, they would not be in a position to provide any accommodation to the defendant in the said building. However, the learned Appellate Court noted that the plaintiffs were already having another flat admeasuring 650 sq.ft. at Thane where they had shifted after vacating Korde House Building and, therefore, they had sufficient accommodation. It was held that if the alternate accommodation is not provided to the defendant, he would be put to a greater hardship because he has no other accommodation while no such hardship will be caused to the plaintiffs. With these findings, the appellate Court gave direction to provide accommodation to the defendant on the second floor of the new building.
9. From the record, it is clear that the Korde House Building was consisting of ground floor plus first floor. Ground floor was occupied by the defendant and the first floor was occupied by the plaintiffs. Building was more than 100 years old and, therefore, there was no possibility of expansion of the same. Family of the defendant was occupying ground floor for more than 50 years and the plaintiffs were adjusting themselves in the first floor. Naturally with the increase in the requirements of the family, plaintiffs required larger accommodation. Not only the plaintiffs themselves but their married son and daughter-in-law were also to be accommodated. In view of the fact that size of each of the floor in the new building is hardly 684 sq.ft. built up, which is not very big and, therefore, if they require two floors for residence of their family including their married son and daughter-in-law, it cannot be said that they are unreasonable. On two floors, total built up area is only 1368 sq.ft. By no stretch of imagination, it can be said to be excessive or luxurious. As per the evidence, it is clear that the ground floor and the first floor are required by the plaintiffs for dispensary of their son and pathology laboratory of their daughter-in-law. Therefore, it is clear that they need whole of the newly constructed building reasonably and bona fide for occupation of themselves and their family members. In view of this, I find that the learned trial Court was right and the learned Appellate Court committed error in rejecting the plea of the plaintiffs in this respect. Therefore, decree for eviction could be passed under Section 16(1)(g) of the Rent Act also.
10. Besides the question of facts dealt above, the important question of law has been raised in the present matter. The learned Appellate Court observed as follows in paragraph 10 of the judgment:
It is no doubt that Section 16(1)(k) of Maharashtra Rent Control Act gives power to the Municipal Authority to demolish the building which is in dilapidated and dangerous condition and it is in the public interest. Merely because the notice is issued to the landlord to demolish the building, it does not mean that the tenancy right of the tenant comes to an end but it subsists even thereafter. The tenancy is not determined and the juridical possession remains with the tenant. The right of the tenant does not extinguish only when the building becomes in dilapidated condition and he has to shift somewhere else to save his life and property and that tenant cannot be left without any remedy. If the landlords in collusion with the Corporation or Municipality get themselves issued notice of demolition or the building is demolished for some of the other reason, the tenancy rights does not come to an end and similarly in view of the earlier clause of Section 16(1) of Bombay Rent Act if the tenant has remedy and can claim the possession in the newly constructed building or in the proposed building and hence, the right of alternative accommodation which is given by the legislature cannot be taken away only on the ground that the building is demolished by the Municipal Corporation. The subject of Clause 16(1)(k) was to save the public and occupant of the building from danger, but it is nowhere stated in the Act that in such circumstances when the building is demolished, tenant has no right to claim tenancy.
The learned Counsel for the plaintiffs vehemently contended that the learned Appellate Court has committed serious error in holding that even when the building is required to be demolished as per the orders from the Municipal Authorities under Section 16(1)(k), the landlord is bound to provide alternate accommodation or accommodation in the newly constructed building to the tenant. It is contended that Section 16(6) of the Rent Act makes it clear that if the eviction is sought under Section 16(1)(i) and (j), the landlord has to provide accommodation to the tenant in the newly constructed building. Section 17(1) also provides that if a decree of eviction is passed under Section 16(1)(h), the landlord has to give an option to the tenant to be placed in occupation of the premises after repairs. However, no such provision is made for providing alternate accommodation or providing any accommodation in a newly constructed building when decree for eviction is passed under Section 16(1)(g) on the ground of reasonable and bona fide requirement of the landlord or under Section 16(1)(k) on the ground of immediate purpose of demolition ordered by the Municipal Authority. The learned Counsel for the defendant, however, strongly supported the order passed by the trial Court on the ground that the plaintiff had filed an undertaking before the Court that he would provide second floor of the new building to the defendant and now he could not be allowed to go back from that undertaking.
11. On careful reading of Sections 16 and 17 of the Maharashtra Rent Control Act, it becomes clear that a decree can be passed for eviction under Section 16(1)(g) if the premises are reasonably and bona fide required by the landlord for self-occupation and decree can also be passed under Section 16(1)(k) if the premises are required for the immediate purpose of demolition ordered by the Municipal Authority. Admittedly, there is no provision either in Section 16 or in any other part of the Maharashtra Rent Control Act that after getting decree for eviction, the landlord would be required to provide accommodation or alternate accommodation to the erstwhile tenant. However, in some other cases when the decree is passed for eviction, the landlord is obliged to provide such accommodation to the erstwhile tenant.
12. It may be noted that under Section 16(1)(h) decree for eviction may be passed if the premises are reasonably and bona fide required by the landlord for carrying out repairs, which cannot be carried out without the premises being vacated. Naturally when the decree is passed under this Clause, purpose is to carry out necessary repairs to the existing building and to make it habitable. The existence of the building, in which the tenant was occupying certain premises as a tenant, continues and that building is not demolished. After the necessary repairs, it is restored to the original position or is slightly improved and after the repairing work is completed, the premises is available for accommodation of the tenant. Therefore, Section 17 specifically provides that while passing a decree on the ground of Section 16(1)(h), the Court shall ascertain from the tenant whether he elects to be placed in occupation of the premises or part thereof from which he is to be evicted and if the tenant so elects, the Court shall record the fact of that election in the decree and shall also specify in the decree date on or before which the tenant shall deliver possession so as to enable the landlord to commence the work of repairs. Sub-section (2) of Section 17 stated that if the tenant delivers possession on or before the date specified in the decree, the landlord shall, two months before the date on which the work of repairs is likely to be completed, give notice to the tenant of the date on which the said work shall be completed. Within thirty days from the date of receipt of such notice the tenant shall intimate to the landlord his acceptance of the accommodation offered and deposit with the landlord rent. If such intimation is received and rent is deposited, the landlord shall place the tenant in occupation of the premises or part thereof on the terms and conditions existing on the date of the passing of the decree for eviction.
13. Section 16(1)(i) provided that the decree for eviction may be passed if the premises are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting new building on the premises sought to be demolished. Similarly under Section 16(1)(j), decree can be passed if the premises let out consist of a tenement or tenements on the terrace of a building and such tenement or tenements being is required by the landlord for the purpose of the demolition thereof and erection or raising of a floor or floors on such tenements. In both these cases, building is not required to be demolished because it is in dilapidated condition nor there is any order from the Municipal Corporation to demolish the building. The landlord seeks to demolish the premises or such tenements for the purpose of erection of new building or for erection or raising some additional floors on the existing building. Naturally such work is taken up for his own benefit or for the purpose of optimum utilisation of the land or F.S.I., which may be available to him. When decree of eviction is passed on these two grounds under Section 16(1)(i) and (j), provision is specifically made in Section 16(6)(d)(ii) that after construction of new building or new floor or floors in the existing building, the landlord shall offer the concerned tenant premises in the re-erected building or the floors as the case may be.
14. From this provision, it is clear that wherever legislature wanted to provide protection to the tenants even after passing a decree for eviction, legislature has specifically made provision that he shall be accommodated in the newly constructed building or in new floor or floors in the existing building or in the existing building itself after it is repaired. However, no such provision is made if decree of eviction is passed under Section 16(1)(g) or under Section 16(1)(k). As noted above the learned Appellate Court observed that under Section 16(1) of Bombay Rent Act the tenant has a remedy and can claim possession in newly constructed building or in the proposed building and hence, the right of alternative accommodation which is given by the legislature cannot be taken away. However, the learned Appellate Court also opined that such right given by the legislature cannot be taken away merely because building is demolished by the Municipal Corporation. He further observed that object of Section 16(1)(k) is to save the public and occupant of the building from danger, but it is nowhere stated in the Act that when in such circumstances building is demolished, tenant has no right to claim tenancy. If the observations of the learned Appellate Court are accepted, the Court will have to read something in the statute, which is not there. It is the settled principle of interpretation of statutes that the Court has to give plain meaning to the language used by the legislation and only when the language used by the legislature is ambiguous, the Court may try to interpret the same in such a way that it serves and furthers the purpose and object of the legislation. But when there is no such ambiguity, question of reading something in the statute is not permissible. From different provisions contained in Section 16(1)(h), (i) and (j) read with Section 16(6) and Section 17, it is amply clear that wherever the legislature wanted to give protection to the tenant even after passing a decree for eviction, a specific provision in that respect is made in the Act. When no such provision is made under Section 16(1)(g) and under Section 16(1)(k) it must be held that the legislature did not want to give such protection to the tenant after decree of eviction. If the legislature wanted to provide such protection, it would have specifically provided in the Act, as it is done in case of eviction under Section 16(1)(h),(i) and (j). As no such protection is given to the tenant against whom decree of eviction is passed under Section 16(1)(g) and (k), the Court cannot presume existence of such provision nor it can hold that such provision should be read in the statute. Any such attempt on the part of the Court would amount to modifying provisions of law or amending and adding something t44o the statutes.
15. Section 16(1)(g) of the Maharashtra Rent Act and Section 13(1)(g) of the Bombay Rent Act are similar Section 16(1)(i) of the Maharashtra Rent Act is similar to Section 13(1)(hh) of the Bombay Rent Act. Section 13(1)(hhh) of Bombay Rent Act and provisions of Section 16(1)(k) of the Maharashtra Rent Act are similar. Similar protections are provided in both the Acts. In almost similar circumstances as in the present case, in Ramniklal Pitamardas Mehta v. Indradaman Amratlal Sheth MANU/SC/0283/1964 : [1964]8SCR1 , Their Lordships considered the provisions of Section 13(1)(g) and 13(1)(hh) of the Bombay Rent Act and the protection provided under Section 13(3A) in respect of eviction on the ground of Section 13(1)(hh) and Their Lordships observed as follows:
13. ...The provisions of Section 13 are for the advantage of the landlord and the various grounds for ejectment mentioned in that Section are such which reasonably justify the ejectment of the tenant in the exercise of the landlord's general right to eject his tenant. There is therefore no reason why restrictions not mentioned in the grounds be read into them. We do not therefore agree with the contention that Clause (g) will apply only when the landlord bona fide needs to occupy the premises without making any alteration in them i.e. to occupy the identical building which the tenant occupies. There is no justification to give such a narrow construction either to the word "premises " or to the word "occupies" which have been construed by this Court in Krishanlal Ishwarlal Desai v. Bai Vijkor referred to later.
15. We are therefore of opinion that once the landlord establishes that he bona fide requires the premises for his occupation, he is entitled to recover possession of it from the tenant in view of the provisions of Sub-clause (g) of Section 13(1) irrespective of the fact whether he would occupy the premises without making any alteration to them or after making the necessary alterations.
16. The provisions of Clause (hh) cannot possibly apply to the case where a landlord reasonably and bona fide requires the premises for his own occupation even if he had to demolish the premises and to erect a new building on them. The provisions of Clause (hh) apply to cases where the landlord does not require the premises for his own occupation but requires them for erecting a new building which is to be let out to tenants. This is clear from the provisions of Sub-section (3-A) which provide that a landlord has to give certain undertaking before a decree for eviction can be passed on the ground specified in Clause (hh)....
From the observations made in paragraph 13 in Ramniklal, it is clear that when there are no restrictions provided in the Act, in the grounds for eviction they cannot be read into them. Similarly, when the protection is not provided to the tenant in case of eviction under Sections 17(1)(g) and 17(1)(k), such protection cannot be read in the statute.
16. In view of the legal position discussed above, it must be held that the learned Appellate Court was wrong in holding that in spite of there being no provision for alternate accommodation when the decree is passed under Section 16(1)(k), the tenant has still got right in newly constructed building.
17. Now coming to the undertaking given by the plaintiffs before the Appellate Court pending the appeal, one will clearly find that the undertaking was not unconditional. It will be useful to quote relevant part of the undertaking given before the Court. Relevant part of the undertaking given on 13th April, 2004, as per Exhibit 19 reads as follows:
The respondents state, without prejudice to the contentions and grounds in Civil Suit No. 420/2002, that if the appellant is ultimately able to establish his claim for alternative accommodation, the respondents will accommodate him in the flat on the 2nd floor of the proposed building admeasuring approximately 67.12 sq. meters or 722 sq.ft. built up and it will be provided on rental basis at the standard rent payable at that particular time.
Second undertaking was submitted on 31st July, 2004 in view of the fact that area of the second floor was reduced to 63.56 sq.mtrs. due to changes in the plan suggested by the Municipal Corporation, otherwise the language of the undertaking is the same. If this undertaking is carefully considered, it becomes clear that it was without prejudice to the contentions of the plaintiffs in the suit and this undertaking was given to provide accommodation to the defendant subject to condition that he was ultimately able to establish his claim for alternate accommodation. If he is not able to establish his claim for alternate accommodation, the plaintiffs would not be bound to provide alternate accommodation on the basis of that undertaking. It is true that this undertaking was given when the appeal was pending. Even though in the appeal the tenant succeeded that order has been challenged before this Court by the landlords in the Civil Revision Application and in the above discussion, I have pointed out that the learned Appellate Court committed error in holding that the tenant is entitled to alternate accommodation in newly constructed building and thus, the tenant has ultimately failed to establish that he is entitled to alternate accommodation. In view of this, plaintiffs are not bound to provide him alternate accommodation merely because of undertaking given by them before the Appellate Court. As the defendant has ultimately failed to prove his claim to alternate accommodation. It cannot be said that the plaintiffs have committed any contempt of the Court by not providing accommodation to him as per the said undertaking.
For the aforesaid reasons, Revision Application filed by the plaintiffs succeeds and the Contempt Petition filed by the defendant is liable to be dismissed.
18. Therefore, Revision Application is allowed. The impugned order passed by the Appellate Court directing plaintiffs to provide alternate accommodation on the second floor of newly constructed building is hereby set aside and the original decree passed by the trial Court is hereby restored. The Contempt Petition stands dismissed.
19. At this stage the learned Counsel for the defendant/tenant makes a request that the undertaking given by the plaintiffs may be kept in force for a further period of six weeks. To this the learned Counsel for the plaintiffs have no objection. Hence, undertaking filed by the plaintiffs before the Appellate Court shall remain in force for a further period of six weeks from this day.
Certified Copy expedited.
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