B.H. Marlapalle, J.
1. Being aggrieved by the decision dated 9/10.12.2002 of this Court (Single Bench) in Writ Petition No. 3487 of 1989, this Letters Patent Appeal has been filed and the following two preliminary issues as raised by the respective parties were framed by our order dated 29.1.2003.
(a) Whether a writ petition would lie against, the decision of the District Court in an appeal under Section 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, the Bombay Rent Act) instead of a Civil Revision Application under Section 115 of the Code of Civil Procedure?
(b) Whether this Letters Patent Appeal could be entertained when Writ Petition No. 3487 of 1989 was filed under Article 227 of the Constitution of India?
2. The learned Counsel for the respective parties in their address before us agreed that alongwith the preliminary issues so far framed, the merits of the respective submissions either in support or against the eviction order are also required to be considered and accordingly, we have heard both the sides at length.
3. The suit premises which admeasured originally 12 x 23 ft. are part of House Bearing Municipal No. 176 situated at Balaji Peth, Jalgaon and located on the ground floor. The premises were owned originally by Manikchand Oswal and on his demise, his wife Badamibai became the owner. She executed a lease agreement (Exhibit 66) in favour of Dr. Savaldas Makheja on 13.8.1970 and pursuant to the said instrument the suit premises were leased out to Dr. Makheja for running his dispensary. The lease was on month to month basis and the monthly rent was Rs. 125/- with a deposit of Rs. 4,000/- and 50% amount was to be adjusted against the deposit amount while paying the rental compensation. On 24.8.1980 the landlady issued a notice for possession (Exhibit 53) on the ground that the tenant had not. paid rent of the suit premises from 1.4.1 979 and the premises were required for bona fide purpose. By the said notice, the tenancy was sought to be terminated from 12.9.1980 and the landlady demanded vacant and peaceful possession of the suit premises on termination of the tenancy. Inspite of the receipt of notice, neither rent was paid nor possession of the suit premises was handed over. On the demise of the landlady, her legal representatives had filed Civil Suit. No. 2 of 1981. on or about 2.1.1981. However, before the said suit: was filed, the tenant had approached the Trial Court by filing Misc. Application No. 276 of 1980 for fixation of standard rent. The tenant had submitted his written statement at Exhibit 12 on 27.7.1 981 and opposed the eviction decree sought, in Regular Civil Suit No. 2 of 1981. Similarly, the landlords had filed reply to Misc. Application No. 276 of 1980 and opposed the same. By the judgment and order dated 27.3.1984, Civil Suit No. 2 of 1981 came to be dismissed by the learned 2nd Joint Civil Judge, Junior Division, at Jalgaon. Similarly. Misc. Application No. 276 of 1980 was also dismissed by the same common judgment.
4. Being aggrieved by the view taken by the Trial Court, the landlords filed Civil Appeal No. 228 of 1984 and the same was dismissed by the learned 2nd Additional District Judge, Jalgaon. on 17.9.1986. Both these orders passed by the Courts below came to be challenged in Writ Petition No. 5290 of 1987 which came to be registered as Writ Petition No. 3487 of 1989 on its transfer lo this Bench. The petition was finally heard and allowed by the learned Single Judge of this Court and a decree of eviction came to be passed on the ground of personal bona fide requirement and comparative hardship under Section 13(1)(g) of the Bombay Rent Act.
5. While the writ petition was pending, the original tenant died on 20.9. 1990 and his legal representatives (present appellants) were brought on record in Civil Application No. 2191/1991 which was decided on 9.8.1991. In addition, the petitioners landlords had filed Civil Application No. 4534 of 1992 and brought on record some additional documents in support of their prayer to agitate the changed circumstances in support of their prayer for an eviction decree. This application was allowed after hearing both the parties.
6. On the preliminary issues regarding the maintainability of this L.P.A., though we have noted that the writ petition was filed under Article 227 and the prayers made therein did not seek any writ, we have no doubt in our mind that the learned Single Judge proceeded to decide the petition by treating it. under Articles 226 and 227 of the Constitution of India and therefore, the preliminary objection raised by the respondents landlords on this point requires to be turned down.
7. On the second preliminary issued regarding the maintainability of the writ petition, Shri Kataria learned Advocate for the appellants tenants has referred to the two following decisions of the Supreme Court and submitted that the landlords had the remedy of filing a civil revision application under Section 115 of the Code of Civil Procedure and when such an alternate remedy was available this Court ought not to have entertained a writ petition.
(i) Durga Prasad v. Naveen Chandra and Ors. : [1996]3SCR209 .
(ii) Sheela Devi v. Jaspal Singh : AIR1999SC2859 .
In the latter case of Sheela Devi (supra) a statutory remedy of revision under Section 18 of the U.P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, 1972 was available and by bypassing the said remedy a writ petition under Article 226 of the Constitution was entertained by the High Court. The Supreme Court did not approve of the same and held that the High Court wrongly exercised its writ jurisdiction on a question of fact when alternative statutory remedy of a revision was available to, the petitioner.
In the case of Durga Prasad (supra), an application to set aside the decree under Order 9, Rule 13 of the Code of Civil Procedure was filed and an objection was raised to the maintainability of the said application by way of preliminary issue. The said application was dismissed and thereafter, writ petition under Article 226 of the Constitution of India was filed before the High Court and the same was dismissed. The Apex Court held that a revision was maintainable under Section 115 of the Code of Civil Procedure as one of the three remedies available and when such a statutory remedy was available a petition under Article 226 could not be entertained bypassing such a remedy of revision.
8. The learned Counsel for the tenants further relied on the decision in the case of Pioneer Traders and Ors. v. Chief Controller of Imports and Exports : 1983(13)ELT1376(SC) , in reply to our query as to why the issue of maintainability of writ petition was not raised in the writ: petition itself rather than raising the same issue for the first time in the instant appeal.
February 24, 2003
He submitted that the issue of maintainability of a writ petition is a legal issue which goes to the root of the matter and if a petition has been entertained without authority of law, any party to the petition aggrieved by such an order is not estopped from raising the same legal issue before the appellate forum. Reliance in support of these arguments has been placed on the following observations made by the Constitution Bench of the Apex Court in the above said case :
Where an authority, whether judicial or quasi-judicial, has in law, no jurisdiction to make an order, the omission by a party to raise before the authority relevant facts for deciding that question, cannot clothe it with jurisdiction.
9. On the other hand, Shri V.T. Choudhary, learned Advocate, in contra, submitted that the Bombay Rent Act is a special statute and an appeal under Section 29 of the Act is not liable to be challenged by way of a further appeal in view of Sub-section (2), whereas, Sub-section (3) of Section 29 provides for a revisional remedy where no appeal lies. The remedy of filing a revision application under Section 115 of the Code of Civil Procedure before this Court is not specifically provided under the Bombay Rent Act. and the remedy having been provided under Section 29 of the said Act being a final remedy, a writ petition under Article 227 of the Constitution is maintainable. He further submitted that the powers under Articles 226 and 227 of the Constitution of India to entertain petitions against, orders/awards passed by the subordinate Courts/authorities under a special statute, form part of the basic feature of the Constitution as has been field by the Apex Court in L. Chandra Kumar v. Union of India : [1997]228ITR725(SC) .
The learned Advocate, also referred to the decision in the case of Vora Abbasbhai Alimahomed v. HajiGulamnabi Haji Sqfibhai : [1964]5SCR157 , and more particularly, the following observations :
The power of the High Court under Section 115 of the Code of Civil Procedure was not. thereby excluded, but the exercise of that, power is by the terms of the statute investing it severely restricted. The High Court may exercise its powers in revision only if it appears that in a case decided by a Subordinate Court in which no appeal lies thereto the Subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity.
10. Having regard to the scheme of Section 29 of the Bombay Rent Act. and the provisions of Section 115 of the Code of Civil Procedure on one hand and the powers of superintendence of this Court under Articles 226 and 227 of the Constitution on the other hand, it is clear that a party aggrieved by an order passed by an Appellate Authority under the Bombay Rent Act has an option to choose the remedy out of the two remedies namely: a writ petition under Articles 226 and/or 227 of the Constitution or a civil revision application under Section 115 of the Code of Civil Procedure. It cannot be said that such a party does not. have a remedy of filing a writ petition nor can it be said that a writ petition cannot lie against such an order passed by the Appellate Authority under the Bombay Rent Act, It is for the aggrieved party to elect a remedy and the proceedings instituted before this Court either by way of a civil revision application or a writ petition will have to be considered on their own merits and depending on the facts of each cast-as well as on the touchstone of the well-established principles governing such supervisory powers. We, therefore, overrule the objection raised by the appellants against entertaining the writ petition. Though such an issue was not raised at the threshold by the petitioners and was not framed by the Court while admitting the petition, it being a legal issue we have gone into the same to set the controversy at rest and held in favour of the plaintiffs-landlords.
11. There is no dispute that on the demise of Badamibai, the plaintiffs who are her sons and daughters stepped in her shoes regarding ownership of the suit premises and all of them had instituted Civil Suit No. 2 of 1981. On behalf of the plaintiffs, Premchand (P. W. 1) was examined in addition to P. W. 2 Ramkrishna Yadav, P.W. 3 Arun and P. W. 4 Photographer, whereas, the defendant tenant had examined himself. The defendant was an Ayurvedic doctor carrying out. his medical profession in the suit, premises.
12. The Trial Court had held that the suit premises were let-out to the tenant by way of an agreement (Exhibit 66) on 13.8.. 1970 and the plaintiffs were not the only legal representatives of Badaniibai w/o. Manikchand Oswal. The plea that the defendant tenant, was a defaulter was decided against the landlords though the notice of eviction dated 24.8.1980 was held to be legal. The issue of bona fide requirement of suit premises for running a Sarafi shop was held against the landlords including the issue of possession as well as recovery of Rs. 4,476-25 ps. by way of arrears in rental compensation.
13. The lower Appellate Court framed issues in para 8 of its judgment and agreed with the findings recorded by the Trial Court regarding the plaintiffs' requirements of suit premises reasonably and bona fide for their personal occupation as well as the standard rent at Rs. 125/- per month. An additional issue regarding hardship was framed and it was recorded that it did not, survive in view of the issue of bona fide requirement being answered in the negative. The testimony of P.W.1. Premchand was found to be unreliable and untrustworthy.
14. The learned Single Judge allowed the writ petition filed by the landlords for the reasons of comparative hardship and the following reasoning deserves to be reproduced :
In the present case admittedly the tenant died in the year 1990 and the record is produced before this Court to show that, the deceased tenant's family have sold out their properties at Khamgaon, recovered huge price. Not only this but the members of the family have set up their own vocation in other premises. It has come on record that Anandprakash has opened a readymade garment shop way back in the year 1995. Considering these aspects and considering the fact that the landlords are carrying on their business in open and if the decree is refused the hardship will be caused to the landlords because they are required to carry on their business in open. On the facts which are brought on record including the subsequent events, I am of the view that if the decree is refused the greater hardship will be caused to the landlords. Accordingly, I hold that the plaintiffs landlords are entitled to the decree for possession on the ground of Section 13(1)(g).
15. Shri Katariya, learned Advocate appearing for the Appellants, submitted before us that the original tenantDr. Savaldas Makheja was alive till the appeal was decided by the Court below and he died during the pendency of the writ petition before this Court. His legal representatives were brought on record who are appellants. The deceased tenant in addition to his widow Smt. Radhabai has four sons and four daughters, three of whom are married. One of the sons i.e. Dr. Anandprakash alias Prakash Savaldas Makheja is a medical practitioner and on the demise of his father has been carrying on his medical profession in the suit premises. Though this fact was brought, on record by way of an affidavit sworn in by Dr. Anandprakash Makheja the learned Single Judge did not consider this fact and proceeded to hold that the comparative hardship was faced by the plaintiffs more so when only one of them is engaged in the business of goldsmith and remaining two were licensed hawkers, whereas, one brother was reported to be missing and Shantilal had already divested his interest in favour of Premchand. The learned Advocate, therefore, urged before us (hat the issue of comparative hardship ought to have been decided in favour of the tenants and not in favour of the landlords.
16. Admittedly, on account of widening of the road, the suit premises have been reduced to 12 x 15 ft. and have been divided in two parts namely : an open ota (12x3 ft.) and the shop (.12 x 12 ft.) occupied by Dr. Anandprakash. The open portion admeasuring 12x3 ft. is in possession of plaintiff No. 1 and the shop admeasuring 12 x 12 ft. is in possession of the present appellants and more particularly, Dr. Anandprakash. The plaintiffs are in possession of upper portion of the suit premises (first and second floors). In fact, the total premises admeasure L2 x 40 ft. and about 8 ft. is already lost in widening of the road, thus leaving behind the premises of 12 x 32 ft. There is no dispute that plaintiff No. 1 Premehand is engaged in the business of goldsmith. Though the two other brothers hold licence as hawkers, in the eviction notice it was stated that the suit premises were required for carrying on the business of goldsmith. The ownership of the suit premises vested in favour of the plaintiffs is not disputed. It has come on record that Dr. Anandprakash is carrying on his medical practice from other premises as well i.e. in Sindhi colony as well as Radha Clinic,Sharma Complex, Ganpati Nagar, Jalgaon. None of the other appellants have claimed utility/usage of the suit premises and by the agreement (Exhibit. 53) the premises were let-out specifically for medical practice. Under these circumstances, the issues of personal bona fide requirement by the landlords and greater hardship are required to be scrutinised.
17. The lower Appellate Court had relied on the decision of this Court in the case of Datlalraya v. Kamal AIR 1981 Bom. 83 Bom. L.R. 6 : 1980 Mah. L.J. 867 : 1980 (2) Rent L.R. 270, and the same view was overruled subsequently in the case of Nathulal Gangabaks Khandelwal and Ors. v. Nandubai Bansidhar Khandelwal and Ors. as well as by the Supreme Court in the ease of Ramkubai. (Smt.) deceased By L. Rs. and Ors. v. Hajarimal Dhokalchand Chandak and Ors. : AIR1999SC3089 , which was not pointed by eitherparty. In the ease of Rajkumar Khaitan and Ors. v. Bibi Zubaida Khatun : AIR1995SC576 , the landlords had instituted the eviction suit on the ground of bona fide requirement and the same was allowed by the Court of Munsiff. The High Court, in its revisional jurisdiction, had reversed the findings of the Lower Court on the short ground that there were no specific pleadings in support of the said issue i.e. bona fide requirement, of the landlord. While holding that the High Court fell into patent error, the Apex Court held that it was not necessary for the appellants to indicate the precise nature of the business which they intended to start, in the premises and even if the nature of the business would have been indicated nobody could bind the landlords to start, the same business in the premises after if was vacated.
In the case of Raghunath G. Panhale (dead) by L. Rs. v. Chaganlal Sunderji and Co. : AIR1999SC3864 , the issue of bona fide requirement of the landlord in respect of the rented premises fell for consideration before the Apex Court. The landlord had filed the suit for recovery of possession of non residential premises on the grounds of bonafide and reasonable requirement under Section 13(1)(g) of the Bombay Rent Act. While the suit was pending before the Trial Court, the plaintiff-landlord died his legal representatives were brought on record, the amendment application was filed which was allowed and the third legal representative had pleaded that he required the premises for starting a grocery business. He had further stated that he had a job in the Metal Box Company and he had become effectively unemployed because of the lockout by the said company. He was, therefore, finding it difficult to provide for his family and had decided to start a grocery business to earn his livelihood. The Trial Court held that the suit had abated because the requirement of original landlord was different, from those of the legal representatives and on the merits of the matter it. was held that there was no proof of the lock-out or capital available for investment or of preparations made for the business. The Trial Court further held that the appellant had no experience to run a grocery business. Therefore, the appellant's requirements were held to be lacking in bona fide. These findings were confirmed by the First Appellate Court; by dismissing the appeal, except the. findings about the abatement which were reversed on the reasoning that the plaint had been amended on the basis of the evidence adduced by the parties on the question of need of legal representatives, the Appellate Court also found that the tenant had three other shops. The writ petition under Article 227 of the Constitution by the appellant had resulted in dismissal on the reasoning that, the findings of facts could not be interferred with. While allowing the appeal, the Apex Court held that the Trial Court and the Appellate Court had erred in law and they had practically equated the tests of 'need or requirement' to be equivalent to 'dire or absolute or compelling necessity'. A landlord need not loose his existing job nor resign it nor reach a level of starvation to contemplate that he must get possession of his premises for establishing a business and one could not imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long-drawn litigation. Joblessness is not a condition precedent for seeking to get back one's premises. It was not necessary for the landlord to adduce evidence that the had money in deposit in a bank nor produce proof of funds to prove his readiness and willingness as in a suit for specific performance of an agreement of sale of immovable properly. The Apex Court found that the entire approach of the Courts below was absolutely wrong in law and perverse on facts.
18. In the case at hand, the legal representatives of the original landlord as well as the tenant were brought on record, respective pleas were placed by way of affidavits/additional affidavits, etc. P.W. 1 Premchand was engaged in the business of goldsmith and he was in possession of the open space admeasuring 12x3 ft. and attached to the suit shop. Practically what was in possession of the tenants was a portion admeasuring 12 x 12 ft. Both these places are separated by an entrance. Premchand did not have any other premises and if any contrary evidence to the same was available subsequently it could not be considered in a writ petition unless the other side is afforded an opportunity of defending such allegations. The landlords had made-out the case of bona fide requirement of the suit premises for starting a shop of goldsmith in which business Premchand was engaged even before the notice for eviction was issued way back in 1980. Even if the suit premises were joint property, it was sufficient that one of the joint owners had made-out a case for his bona fide requirements to the exclusion of others. We have noted from the record that the other legal representatives of the landlady had executed a General Power of Attorney in favour of P. W. 1 Premchand to institute the eviction proceedings.
19. The Trial Court proceeded on the ground that there was no joint family and secondly, no pleading indicating the nature of the proposed business was incorporated. In addition, each of the landlords i.e. plaintiff Nos. 2, 3 and 5 did not step into the witness-box to prove the necessity of the suit premises for starting the business of goldsmith. These observations are not only irrelevant but indeed they are made in respect of the issues which were not germane to decide the suit which was filed for possession of the suit premises on account of reasonable and bona fide requirement. Section13(1)(g) reads thus :
13(1) Notwithstanding anything contained in this Act but subject to the provisions of Sections 15 and 15A, a landlord shall be entitled to recover possession of any premises if the Court is satisfied -
(a)...
(b)...
(c)...
(d)...
(e)...
(f)...
(g) that the premises for reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the trust;
The plain reading of Clause (g) of Section 13(1) of the Bombay Rent Act shows that the landlord is entitled to recover possession of the premises on satisfying the Court that the premises are reasonably and bona fide required by him for occupation by himself or by any person for whose benefit the premises are held. The tenant had set-up a plea before the Trial Court that the suit premises were not required by the landlords for reasonable and bona fide purpose as nothing was produced on record regarding capital and experience and this plea was accepted by the Courts below. Section 13(1)(g) of the Bombay Rent Act empowers the Court, to grant a decree for eviction on the ground of reasonable and bona fide requirements of the landlord and Section 13(2) states that no decree for eviction shall be passed on the ground specified in Clause (g) of Sub-section (1) if the Court is satisfied that having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. The provisions of Section 13(1)(g) as well as Section 13(2) of the Bombay Rent Act fell for consideration recently in Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada : [2003]1SCR329 , and the observations made in paras 7 to 9 and 11 are reproduced as under :
A perusal of the scheme of the Act. so far as the ground of reasonable and bona fide requirement by the landlord for occupation of residential or non residential premises is concerned, shows that Clause (g) of Sub-section (1) of Section 13 contemplates a decree for eviction being passed on proof ofavailability of the ground according to law. Inspite of a ground for eviction under Section 13(1)(g) having been made-out, the Court may deny the relief of eviction if the issue as to comparative hardship is answered against the landlord and in favour of the tenant. Thus in away, Section 13(2) acts as a proviso to Section 13(1)(g): the former having an overriding effect on the latter. The burden of proving availability of ground for eviction under Section 13(1)(g) lies on the landlord the burden of proving greater hardship so as to deprive the landlord of his established right to seek eviction lies on the tenant.
The family, the background of the parties, the availability of accommodation with either parties or in the township, the extent of direness or pressing nature of the need for eviction as against the direness of need or urge of the tenant to continue to occupy or cling to the tenancy premises, with reasons therefor, assume relevance. The Court may keep in view how the things would take shape in a reasonably foreseeable future in either event. The conduct of the parties, their mutual relationship may also be relevant. Inspite of the availability of ground for eviction being legally sustainable, for the purpose of deciding the issue as to comparative hardship, the Court may take into consideration availability of such other premises with the landlord which though not necessarily alternative to the suit premises, may still be available to accommodate the proven requirement of the landlord. The fact that the tenant could have had shifted to other premises or has missed the opportunity of availing occupation of other premises or is likely to part with possession over other premises whereto his business can be or could have been shifted are all relevant factors for the purpose of Section 13(2) though may not be relevant for the purpose of Section 13(1)(g). These are illustrative factors, incapable of being listed fully and precisely, which enter into the thinking process leading to formulation of opinion on comparative hardship.
The Act does not lay down any guidelines or relevant factors based whereon the question of comparative hardship is to be decided. A slight indication is given in the first para of Section 13(2) that regard must be had to (i) all the circumstances of the case, (ii) including the question whether other reasonable accommodation is available for the landlord or the tenant. The expression other reasonable accommodation' as employed here does not mean an accommodation suitable in all respects as the suit accommodation is. The legislature has chosen to appropriate to leave the determination of issue on sound discretion of the Court.
20. Coming to the point of comparative hardships, it is apparent from the record placed before us that the original tenant as well as Dr. Anandprakash were financially well of and Dr. Anandprakash or his family members had other sources of income apart from his medical practice. This is obvious from the invitation cards referred to by the learned Single Judge. He had the financial capacity much better than the plaintiffs landlords to look for alternative premises may be in the same locality or nearby locality in case he was convinced that he should run a third consulting room. It was for the landlords to decide the utility of the suit premises for starting an appropriate business venture. The Courts below had fallen in gross error in considering the bona fide requirement of the landlords as well as relying on the decision of this Court as referred to above which was subsequently overruled. The findings given by the learned Single Judge, on both these issues namely: bona fide requirement, of the landlords as well as comparative hardships, are well reasoned and we are not persuaded to take a different view.
21. In the circumstances, we hold that, the landlords have proved their bona fide requirement in respect of the suit premises and the issue of comparative hardship has been rightly answered in their favour by the learned Single Judge. This Letters Patent Appeal, therefore, falls and the same is hereby dismissed.
22. As the tenants have been occupying the suit premises for more than 30 years or so, we grant three months' time to the present appellants to vacate the said premises on the condition that a written undertaking to that effect shall be furnished with the registry of this Court within a period of two weeks from today.
23. Civil Application No. 499 of 2003 stands disposed of No costs.