The submission that after the death of original tenants, the petitioners/other defendants became tenants and the tenancy is joint is not correct considering the scheme and purpose of the Bombay Rent Act. Under the Bombay Rent Act, it is only one person who can be recognised as tenant. Defendant No. 1 is accordingly recognised as tenant though it is observed about the joint tenancy Once it is clear that only one person can be recognised as tenant after the death of original tenant, the claim of such joint tenancy is impermissible.
The submission based upon the authority in the case of (H.C. Pandey v. G.C. Paul) MANU/SC/0209/1989 : [1989]2SCR769 , is not applicable to the facts and circumstances of the case as under the Bombay Rent Act only one heir or one person is recognised as tenant for all the purposes after the death of the original tenant. All occupants are brothers of the tenant who are not treated as joint tenants.
IN THE HIGH COURT OF BOMBAY
The submission based upon the authority in the case of (H.C. Pandey v. G.C. Paul) MANU/SC/0209/1989 : [1989]2SCR769 , is not applicable to the facts and circumstances of the case as under the Bombay Rent Act only one heir or one person is recognised as tenant for all the purposes after the death of the original tenant. All occupants are brothers of the tenant who are not treated as joint tenants.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 221 of 2007 with C.A. No. 2607 of 2008
Decided On: 03.12.2008
Suresh Vs. Bhikaji Bhagwat Redkar and Ors.
Hon'ble Judges/Coram:
Anoop V. Mohta, J.
Citation: 2009 (2)MHLJ 917
1. The petitioners/ original defendants are challenging the judgment and decree dated 19.10.2006 passed by Appeal Bench of Small Causes Court, Mumbai, confirming the judgment and decree passed by the Small Causes Court, Mumbai in R.A.E. Suit No. 3947/1989 and thereby prayed to dismiss the Suit filed by the respondents/landlords.
2. The basic events, as per petitioners, are as under:
The original plaintiff Veena Redkar, since deceased, filed R.A.E. Suit No. 3947 of 1989, in the Court of Small Causes at Mumbai, against the petitioners for peaceful and vacant possession of the suit premises i.e. Block No. 2, on the ground floor of Veena Ninad Building, 4/6, Karelwadi, Mumbai-400 002, on the ground that the petitioners had carried out additions and alterations of permanent nature in the suit premises without her consent and that except petitioner No. 1 other petitioners are not residing in the suit premises and that petitioner No. 1 had acquired alternative accommodation at suburb and he resided at both places. The original plaintiff Veena Redkar died during the pendency of the suit and after her death the present respondents were brought on record as heirs and legal representatives of the deceased original plaintiffs.
3. Petitioner No. 1 herein filed his written statement on 16th August, 1991 and denied the claim of the respondents. Petitioner No. 1 contended that he was residing with his wife, daughter and his unmarried sister i.e. petitioner No. 6 and that he was suffering from slip disc and his wife was also suffering from incurable ailments for a long period. Petitioner No. 1 denied that he or other petitioners had acquired any alternative accommodation. He further contended that petitioner Nos. 2 to 5 were residing at different places due to large family of original tenant. Petitioner Nos. 2 to 5 by filing their separate written statements supported the case of petitioner No. 1 and denied the claim of the respondents. Petitioner No. 6 also filed her written statement and opposed the claim of the respondents. Petitioner No. 6 contended that she was 45 years old, unmarried daughter of her deceased father Ramchandra Damodar Chonkar who was tenant and residing at suit premises with her brother, from childhood.
4. Both the courts held that the plaintiff/landlord has proved that defendant No. 1 carried out additions and alterations of permanent nature in the suit premises without consent of the plaintiff and the Bombay Municipal Corporation; defendant No. 1 has acquired alternative accommodation at suburb where he has been residing with his family and therefore granted decree of possession.
5. Considering the material on record, including the evidence, one thing is clear that the Santacruz premises have been acquired by defendant No. 1 in his name, which is admeasuring 700 sq.ft. Defendant No. 1 and his wife are residing in the premises in question which is admeasuring 600 sq.ft. Once there is an acquisition by the tenant, in my view, this fact is sufficient to grant permission. Considering the scheme and purpose of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, "Bombay Rent Act"), it is no where contemplated that comparative hardship of tenant need to be considered under this provision. Once the tenant acquired the property and has dominant control over the said property for all the purposes. The submission that it is not suitable for him to acquire the same as other family members are in possession of the said newly acquired property is not correct. On the contrary, when the tenant/ defendant No. 1, admittedly, in possession of the premises along with other in the 600 sq.ft. area, there is no reason that the same tenant cannot acquire and reside in the newly acquired suitable residential premises. There is nothing that the landlord is under obligation to prove and/or accommodate the legal heirs and/or other representatives of the original tenants and its family members. There is evidence that other brothers of defendant No. 1, Bhalchandra, Vijay and Rajan have already taken premises in Santacruz in the year 1978 which is admittedly stands in the name of defendant No. 1 Suryakant. The other brothers are staying separately since more than 8 to 12 years as they have acquired the premises. The fact that the newly acquired property/premises are in the name of defendant No. 1 that itself, as recorded, just cannot be overlooked to consider the case of landlord as done in the present case. As such the acquisition by tenant falls within the ambit of Section 13(1)(l) of the Bombay Rent Act. The Scheme and purpose of the Bombay Rent Act cannot be read to mean that such tenant is permitted to have two premises simultaneously and depriving the landlord his own premises merely because his family is growing and need more premises. After the death of original tenant, all legal heirs of original tenants cannot be treated as tenants for the purposes of this Act. Defendant No. 1 is recognised as tenant for all the purposes. The said tenant has acquired the property as recorded.
6. In judgment dated 20th November, 2008 in Writ Petition No. 2271/1997 (Jinadas Dhondiappa Mangalwedhekar v. Shamrao Baburao Kate) reported in MANU/MH/1356/2008 : 2009(1) Bom.C.R. 559, I have already observed as under:
17. Once it is proved that the tenant has built, acquired vacant possession or being allotted a suitable residence, in my view, merely because the newly acquired premises is not sufficient to accommodate him and his dependents cannot be the reason to deprive the landlord to take possession as proved under the Bombay Rent Act. (Anandi D. Jadhav (Dead) by Legal representative v. Nirmala Ramchandra Kore and Ors.) MANU/SC/0245/2000 : [2000]2SCR963 . On this, such situation is not contemplated under the Rent Act to give exact meaning of the words "suitable residence". We have to consider the scheme and object of the Rent Act which are in the interest of both. We cannot overlook the basic facet including aim and object of the Rent Act, that it is intended to provide the shelter to a person/tenant who have no premises to reside because of the shortage of accommodation. But having once acquired a suitable residence of comparatively of equal size, equally situated location, equally with all facilities in the same town. To accommodate tenant's large and developing family cannot be the reason to make the said provisions illusory, for the landlord, depriving of his right to take back the possession once tenant has acquired the suitable residential accommodation. This cannot be the ground to deprive the landlord to take a possession of the property as he is not under obligation to accommodate the developing family of tenant. There is no question of considering theory of comparative hardship in such cases. The landlord will never get possession of the premises in view of developing/growing family of the tenant under this section. There is no dispute that tenant has total control and domain over the property which is newly acquired, which he can reasonably and alternatively use if as the substituted place. (B.R. Mehata v. Atma Devi and Ors.) MANU/SC/0740/1987 : [1987]3SCR1184 .
7. The submission that after the death of original tenants, the petitioners/other defendants became tenants and the tenancy is joint is not correct considering the scheme and purpose of the Bombay Rent Act. Under the Bombay Rent Act, it is only one person who can be recognised as tenant. Defendant No. 1 is accordingly recognised as tenant though it is observed about the joint tenancy Once it is clear that only one person can be recognised as tenant after the death of original tenant, the claim of such joint tenancy is impermissible. Even otherwise, except defendant No. 1/tenant and his wife living in the existing premises and all others have already left and occupying different premises for more than 8 to 12 years. Even the unmarried sister of aged about 60 years also started living in the said Santacruz flat from the year 1978, but later on shifted to the present premises.
8. I am not agree with the view taken in (Soni Jagjivan Narsi v. Manchhaben Odhavji) 1975 16 Guj LR 991, by the learned Single Judge of Gujarat High Court. The requirement is that the premises must be suitable accommodation. The tenant who is in possession along with his family members and brothers in the area of 600 sq.ft. cannot claim that newly acquired area is unsuitable. The growth of tenant's family, in my view, cannot be the reason to overlook the claim of the landlord as admittedly, the tenant has acquired the alternative residential accommodation in the same town.
9. The decision in (Amrut Kesarkar v. Bhaskar Gokhale) 1983 B.C.I. 121 :MANU/MH/0468/1983 : 1983 Mh.L.J. 1017, is also not applicable as that was a case of original tenant shifted from the premises and started to live with second son. The first son was in possession of the suit premises. In the present case, the tenant himself has acquired the premises and all other brothers have already acquired other suitable accommodation. Therefore, the property acquired by the tenant which is of equal size and similarly placed locality and with all facilities cannot be compared with the case referred above i.e. Amrut (supra). We are concerned with the suitable acquisition of the premises which is under Clause 13(1)(1).
10. The submission based upon the authority in the case of (H.C. Pandey v. G.C. Paul) MANU/SC/0209/1989 : [1989]2SCR769 , is not applicable to the facts and circumstances of the case as under the Bombay Rent Act only one heir or one person is recognised as tenant for all the purposes after the death of the original tenant. All occupants are brothers of the tenant who are not treated as joint tenants.
11. In the present case, admittedly, the property is purchased and is in the name of defendant No. 1 who is recognised as tenant of the premises in question after the death of the father though along with others, yet the fact of acquisition of suitable accommodation by other brothers just cannot be overlooked. As recorded, defendant No. 1 and his wife is residing in the premises in question and all other brothers have left the premises since long and that is sufficient to grant decree of possession on this ground. (Mohan Nagesh Khuperkar and Anr. v. Smt. Sulochana Ramchandra Padke and Ors.) 1996 Bom.R.C. 444.
12. So far as permanent alteration in the premises, without consent of landlord and the concerned Corporation, there is ample material on record and, therefore, granted decree on that ground by the courts below. In the absence of any contra material, I see there is no reason to interfere with the same also.
13. Therefore, taking all this into account, I see there is no reason to interfere with the reasoning given by the courts below and need no interference under Article 227 of the Constitution of India as there is no perversity as the impugned judgment and decree are within the frame work of law and record. The writ petition is dismissed. No costs.
14. In view of above, I am not inclined to take on record the subsequent events on. record with regard to Applicant No. 4's retirement and he wants to live in the premises again, specially in view of the reasoning already given. Therefore, above Civil Application No. 2607/2008 for amendment is also rejected in view of above.
The learned Counsel for the petitioners seek stay of this judgment and continuation of the order of possession as passed by this Court. In the facts and circumstances, the effect and operation of the judgment is stayed for two months. The interim relief as granted by this Court to continue provided the petitioners and/or persons in possession should not create any third party right and interest in the property.
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