Sushilabai W/O Narayan Raut and ors. Vs. Navnit S/O Bhojraj Lakhotiya - Court Judgment

B.R. Gavai, J.

1. Both these writ petitions challenge the order passed by the Resident Deputy Collector, Akola in Revenue Appeal No. BRA-13(3)/Akot/66/1989-90 by which the Resident Deputy Collector, Akola has maintained the order passed by the House Rent Controller, Akot dated 29-5-1989 in Revenue Case No. BRA-13(3)/Akot-3/1988-89. The House Rent Controller, Akola by order dated 29-5-1989 had granted permission to the petitioner in Writ Petition No. 891/92 under Clause 13(3)(vi) of the C. P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as 'the Rent Control Order') to issue quit notice to the respondents in the said petition.

2. The petitioner in Writ Petition No. 891/92 is the landlord/original applicant and is respondent in Writ Petition No. 465/92 (hereinafter referred to as 'the landlord'). The petitioners in Writ Petition 'No. 465/92 are the tenants/original non-applicants who are respondents in Writ Petition No. 891/92 (hereinafter referred to as 'the tenants').

3. The factual background giving rise to the filing of the present petition is as under:--

That the landlord, who claims to be owner of the suit site filed an application for permission to issue quit notice to the tenant under Clause 13(3)(i), (ii), (v), (vi), (vii) and (ix) of the Rent Control Order. The applicant/landlord claimed the ownership of the suit properly by virtue of gift to him by his grandfather Girdharilal Lakhotiya in the year 1973. According to the applicant/ landlord, after the said gift, he became the owner of the property and also became the landlord of the tenants of the property gifted to him. It is alleged by the applicant/landlord that after he became owner and landlord of the premises, the other tenants stalled paying rent to him. It is further averred in the application that Girdharilal Lakhotiya expired at Akot on 5-2-1988 and that before his death he also executed a Will, first on 2-5-1985 and also on 22-1-1988 and that the said Wills were registered by the Competent Authority on 27-7-1988.

4. It is averred by the applicant/landlord that the suit site was rented out to Narayan Nagosa Raut at a monthly rent of Rs. 12/- and that the month of tenancy was from first of each English calendar month with liability to pay rent at the end of each month. The applicant/landlord has admitted in the application that the structure in fact belonged to the deceased Narayan. However, it is averred that assuming without admitting that the deceased Narayan as well as non-applicants are tenants of the open site along with the structure. It is averred that it was the liability of the deceased Narayan and after him the non-applicants in the application to pay rent at the end of each month. It is averred that 'Narayan and non-applicants continued to remain in arrears of rent since 1-5-1982 in spite of oral demands, and a notice was given by the applicant on 3-5-1988. It is stated that in reply to the notice issued by the landlord, deceased Narayan claimed an ignorance about the title of the applicant, it is averred that by notice dated 9-7-1985 an intimation was given in writing by deceased Girdharilal that the applicant/landlord had become the owner. It is averred that the non-applicants had remained in arrears of rent from 1-5-1988 and that they were also habitual defaulters and as such, the applicant was entitled to permission under Clause 13(3)(i) and (ii) of the Rent Control Order.

5. Insofar as Clause 13(3)(v) is concerned, it was contended that the non-applicants have constructed the premises on the Anjangaon road and that they could start the business of Mutton Eating House in the said premises. It was averred that as the non-applicants have secured alternative accommodation, the landlord/applicant was also entitled to permission under Clause 13(3)(v) of the Rent Control Order.

6. Insofar as permission under Clause 13(3)(vi) is concerned, it was averred that the applicant/landlord had taken education upto Bachelor of Architecture and cleared his examination in June, 1988 and that he wanted to start his profession as an Architect. It is averred that there was no other suitable premises where the practice could be started. The applicant has averred that he wants to construct the premises suitable for his office for starting the profession as an Architect. It is stated in the application that the applicant would construct the premises within one year from vacation. It is also averred that the applicant had given a map of construction to the Municipal Council.

7. Insofar as Clause 13(3)(vii) is concerned, it was contended that the construction was not in a good shape. It was averred that the portion on the west was located on the top of underground passage to a well, that top of this passage had wooden roof which was used as flooring by the non-applicants. It was submitted that it was a very old construction, aged about more than 100 years and had become dilapidated. It was further averred that the aforesaid structure was also dilapidated and that reconstruction could not be done without vacating the premises. The applicant had thus sought permission under Clause 13(3)(vii) of the Rent Control Order.

8. Insofar as Clause 13(3)(ix) is concerned, it was averred that non-applicants were running a Mutton Eating House on the suit site. It was averred that the cooking was also done at the very same place, it was averred that the non-applicants have not properly guarded their cooking so that the nuisance can be minimised, it was averred that the cooking emits intolerable smell and fumes and that the nearby families were repeatedly complaining about the same. It is, therefore, averred that the applicant was entitled far permission under Clause 13(3)(ix) of the Rent Control Older.

9. The non-applicants/tenants denied the claim of the applicant/landlord by filing written statement. The non-applicants/tenants have averred that at present ownership may have travelled to the applicant but the same has not been lawfully attorned by the original lessor. The non-applicants, therefore, denied their relationship as landlord/tenant. The non-applicants have denied the averments regarding the gift, so also execution of Wills by deceased Girdharilal Lakhotiya. It was further averred that one Laxman Ramkrishna Nipane was original lessee of the suit site. It was averred that the said Laxman was occupying the site in question by having his Imla constructed thereon. It is averred that on or about 21-1-1967 the said Laxman sold his hotel furniture and other articles of hotel to deceased Narayan Nagosa and told the deceased that he had allowed the Imla, i.e. wooden structure to be taken by the then lessor deceased Girdharilal. It is, therefore, averred that on 21-7-1967 the ownership of Imla was of deceased Girdharilal and that Laxman assigned his rights to continue to occupy the premises to deceased Narayan. It is, therefore, averred that since 21-1-1967 deceased Narayan occupied the premises as tenant of deceased Girdharilal.

10. Insofar as the allegation regarding non-applicants being in arrears of rent is concerned, the same has been denied by the non-applicants. So also the averments regarding bona fide need under Clause 13(3)(vi) have been denied. Insofar as the allegations by the applicant/landlord under Clause 13(3)(v) are concerned, the non-applicants have stated that the applicant has not given the details regarding the premises which according to the applicant can be construed as an alternative accommodation.

11. Insofar as allegations under Clause 13(3)(vii) are concerned, it is denied that the premises were in a dilapidated condition. It is also denied that the same needs reconstruction. Insofar as the allegations regarding Clause 13(3)(ix) are concerned, it was submitted that the premises were taken in 1967 and were being put to the same use since 1967. It was also submitted that in the adjoining area there were other Mutton Hotels and vegetarian hotels in the premises let out by either the applicant or other members of his family.

12. In paragraph 8 of the written statement, it is submitted that since 21-1-1967 till 21-1-1985 Narayan continued to occupy the premises as tenant and accordingly paid the rent to the deceased landlord Girdharilal. It was stated that, however, after the demise of Narayan whenever the non-applicants tendered the rent, the same was being refused by Girdharilal and thereafter by the present applicant/landlord, it is also submitted that though the non-applicants tried to pay the rent by money order, the same was also refused. It is, therefore, stated that ultimately the non-applicants have deposited the same in the post. The non-applicants further averred that they were further ready and willing to pay the rent to the applicant/landlord subject to the order of the learned Rent Controller. It was, therefore, submitted that the applicant was not entitled for permission under any of the clauses as prayed by him.

13. The applicant/landlord examined himself, Hariprasad Vishweshwarlal Purohit, Prashantkumar Girdharilal Lakhotiya, Ranjitsinh Laxmansinh Raghuvanshi and one Shri Anant Vishnupant Gawande in support of the application. Sushilabai and Gajanan, the non-applicants/tenants examined themselves in support of their case.

14. After considering the pleadings and the evidence on behalf of both the parties, the learned Rent Controller, Akot vide his order dated 29-5-1989 rejected the permission on all the counts except Clause 13(3)(i) and (vi) of the Rent Control Order. Being aggrieved thereby, both the landlord as well as tenants preferred appeal before the Resident Deputy Collector, Akola. The appeal preferred by the tenants was registered as Revenue Appeal No. BRA-13(3)Akot/53/89-90 whereas the appeal preferred by the landlord came to be registered as Revenue Appeal No. BRA-13(3)/Akot/66/89-90. Resident Deputy Collector, Akola vide his order dated 3-6-1991 upheld the order of the Rent Controller and dismissed both the appeals. Challenging the said order, the landlord as well as the tenants have filed the aforesaid two cross petitions.

15. Heard Shri Gilda, learned Counsel for the landlord and Shri Sohoni, learned Counsel for the tenants.

16. Shri Gilda submitted that the Rent Controller as well as the Resident Deputy Collector have grossly erred in rejecting the permission under Clause 13(3) (ii), (v), (vii) and (ix) of the Rent Control Order. While submitting that both the authorities were right in granting permission under Clause 13(3)(vi), he submits that from the pleadings and the deposition of witnesses in support of the landlord's case, the Rent Controller ought to have granted permission to the petitioner/landlord to issue quit notice under all the clauses as prayed for.

17. Insofar as Clause 13(3)(i) is concerned, the learned Rent Controller had held that the tenants were in arrears of rent from 1-5-1982 although demanded from time to time. He, therefore, ordered that the tenants shall pay arrears of rent from 1-5-1982 till the date of filing of application at the agreed rate of Rs. 12/- per month within a period of one month from the date of the order, failing which the permission under Clause 13(3)(i) shall be deemed to have been granted.

18. Shri Gilda submitted that insofar as Clause 13(3)(i) is concerned, the learned Joint Civil Judge, Junior Division, Akot in the judgment and decree in Regular Civil Suit No. 286/93 which was filed by the landlord in pursuance to the permission granted by the Rent Controller, has observed as under:--

'It be noted that after the order of Rent Controller, till the filing of the suit, there is no evidence on record that defendants paid the arrears of rent to the plaintiff.'

He, therefore, submits that on failure by the tenants to deposit the arrears of rent as directed by the Rent Controller, the permission under Clause 13(3)(i) is deemed to have been granted.

19. Insofar as Clause 13(3)(ii) is concerned, Shri Gilda submits that the finding of the learned Rent Controller that the tenant cannot be considered to be habitual defaulter in view of the law laid down by the Apex Court in the case of Rashiklal and Ors. v. Shah Gokuldas Waghajibhai reported in 1989 M.L.J. 207 is concerned, he submits that the said finding is perverse. He submits that the ratio laid down by the Apex Court in the case of Rashiklal would not be applicable to the facts of the present case. According to Shri Gilda, unless there is a proven settled practice of demanding and receiving the rent at intervals, the law laid down in the case of Rashiklal will not be applicable. He further submits that in the present case, the tenants were put on notice that they were required to pay rent regularly to the landlord, and not only this, but the landlord was required to file a Small Causes Suit No. 97/88 for recovery of arrears which was compromised on 24-3-1990. Further the landlord was required to initiate Section 15-A proceedings in Regular Civil Suit No. 286/93 for recovery of arrears of rent. He, therefore, submits that it was proved that the tenants were habitual defaulters and, therefore, the Rent Controller ought to have granted permission under Clause 13(3)(ii) also. In support of this proposition, he relies on the judgment of this Court in the case of Mahadeo Baruji Parchive, since deceased by L.Rs v. Resident Deputy Collector, Chandrapur and Anr. reported in 1994 M.L.J. 716, the judgment of the Apex Court in the case of Vijay Ambadas Diware and Ors. v. Balkrishna Waman Dande reported in 2000 (3) M.L.J. 743 and the judgment of the Apex Court in the case of Shama Prashant Raje v. Ganpatrao and Ors. reported in 2001(1) M.L.J. 206.

20. Insofar as Clause 13(3)(v) is concerned, Shri Gilda submits that the tenants have constructed a house on Anjangaon Road. He submits that it can be seen from the evidence led on behalf of both the sides that the said premises were suitable for carrying on the business which the tenants were now carrying i.e. opening a Mutton Eating House. He submits that Anjangaon Road was a busy load and it has come on record that the area was frequently visited by persons and that the business could have been very well carried out in the alternate accommodation constructed by the tenants. In support of this proposition, he relies on the judgment of this Court in the case of Abdeali s/o Turab Ali v. Haji Abdul Jalil and Ors. reported in 1987 M.L.J. 911.

21. Insofar as Clause 13(3)(vii) is concerned, he submits that the landlord who was himself was an Architect, had examined himself to prove that the premises were in a dilapidated condition and, therefore, required demolition and reconstruction. He submitted that in addition to that an independent Architect, namely, Shri Anant Gawande was also examined on behalf of the landlord. He submits that in spite of this factual position, the learned Rent Controller has rejected the permission under Clause 13(3)(vii) on the ground that the landlord had failed to examine an expert witness. He submits that this finding is perverse. He submits that coupled with the evidence of the landlord and the Architect Shri Gawande, the spot inspection report clearly exhibited that the condition of the suit premises was dilapidated and required immediate demolition and construction. He, therefore, submits that the finding of the learned Rent Controller requires to be upset on this count also and permission deserves to be granted to the landlord under Clause 13(3)(vii) also.

22. Shri Gilda has strenuously argued to bring the present case also under the ambit of Clause 13{3)(ix) of the Rent Control Order. He submits that the landlord had specifically pleaded in the application that the tenants were cooking the meat in the tenanted premises without having a guarded kitchen. He, therefore, submits that on account of act/omission of the tenant in this respect, intolerable smell and fumes were emitted thereby causing nuisance to the neighbourers. He submits that in support of this pleading, the landlord in addition to examining himself had examined an independent witness, namely, Hariprasad. He further submits that even from the deposition of tenant Gajanan, the case of the landlord in this respect was fortified. Shri Gilda has made a voluminous research to put forth this point. He relies on the judgment of the learned Single Judge of this Court in the case of Gulam Husain Mirza v. Laxmidas Premji and Anr. reported in 1984 Mh.L.J. 215 in support of his submission that what acts or omissions could cause nuisance would depend on the facts of each case and it cannot be generalised as to what acts or omissions would amount to nuisance or annoyance. He has also taken me through the Stroud's Judicial Dictionary to substantiate his submission that in the facts of the present case it will have to be held that due to the omission of the tenant to have a guarded kitchen and to prevent the emission of the intolerable smell, nuisance was caused to the neighbour of the tenant, namely, Shri Hariprasad and, therefore, the permission was also required to be granted under Clause 13(3)(ix) of the Rent Control Order. He has also relied on the judgment of the Apex Court in the case of Narpatchand A. Bhandari v. Shantilal Moolshankar Jani reported in : [1993]2SCR471 in support of his contention that the act complained of amounted to nuisance so as to bring the case under Clause 13(3)(ix). He submits that this Court in the case of Vinodkumar Atmaramji Choudhary v. Resident Deputy Collector, Amravati and Anr. reported in 1998 (1) M.L.J. 632 has held that it is necessary for the applicant to plead as to what acts or omissions of the tenant are such so as to cause nuisance. He submits that from the pleadings it can clearly be seen that the landlord had given sufficient details as to what acts or omissions of the tenants amounted to nuisance within the meaning of Clause 13(3)(ix).

23. Anticipating an argument that may come from the other side that this Court should not interfere in concurrent findings of fact in its writ jurisdiction, he relies on the judgment of the Apex Court in the case of Raghunathji Panhale v. Chaganlal Sundaraji and Co. reported in : AIR1999SC3864 . He submits that when the findings are perverse and when the findings are based without taking into consideration the evidence on record, this Court would be justified in interfering with the concurrent findings of fact in its extraordinary jurisdiction under Article 226 and 227 of the Constitution of India.

24. Shri Sohoni, learned Counsel for the tenants, on the contrary, submitted that the impugned orders insofar as Clause 13(3)(i), (ii), (v), (vii) and (ix) are concerned, were just and proper. He submits that the landlord himself has admitted in his cross-examination that the tenants were paying rent to the grandfather of the landlord. That the landlord has further admitted in the cross-examination that he was not aware of terms and conditions of tenancy. He submits that in pursuance of the directions issued by the Rent Controller, rent has been paid by the tenants. However, he submits that his clients are not in possession of any documentary evidence to show that rent is paid. He, therefore, submits that since rent has already been paid in pursuance of the directions of the Rent Controller, the question of grant of permission under Clause 13(3)(i) of Rent Control Order does not survive.

25. Insofar as grant of permission under Clause 13(3)(ii) is concerned, Shri Sohoni submits that the law laid down by the Apex Court in the case of Rashiklal, cited supra, was applicable to the facts of the present case and as such, the learned Rent Controller as well as the learned R. D. C. have rightly rejected the permission on this ground. Insofar as permission under Clause 13(3)(v) is concerned, he submits that the alleged alternative accommodation was on Anjangaon Road in a residential area. He further submits that the said alleged alternative accommodation was far away from the main market place. He submits that the present premises wherein the tenants were carrying out the business of Mutton Eating House was situated in the main market and, therefore, the alleged alternate accommodation cannot be said to be alternative accommodation so as to bring it within the compass of Article 13(3)(v) of the Rent Control Older. He, therefore, submits that both the learned lower Authorities have lightly rejected the permission under Clause 13(3)(v). Insofar as Clause 13(3)(vii) is concerned, he submits that the structure was in a good condition. He submits that the learned Rent Controller has found that no expert has been examined to show that the premises were in a dilapidated condition. He, therefore, submits that the learned Rent Controller has rightly rejected the permission under Clause 13(3)(vii) which has been confirmed by the Appellate Authority.

26. Shri Sohoni submits that insofar as Clause 13(3)(ix) is concerned, it cannot be said that having a Mutton Eating House will cause nuisance to the neighbourers or the landlord. He further submits that there was another Mutton Eating House in the adjoining area on a site let out by the petitioner or his relatives. He, therefore, submits that the ground of nuisance was an imaginary one and that the learned Rent Controller has rightly rejected permission under Clause 13(3)(ix).

27. Assailing the findings of the learned Rent Controller and the learned R. D. C. regarding the grant of permission under Clause 13(3)(vi), he submits that the learned lower Authorities have failed to take into consideration that the landlord was in possession of various other properties wherein he could start his office as an Architect. He further submits that as a matter of fact, the landlord has started his office in the premises owned by his father. He submits that the need to come under the purview of Clause 13(3)(vi) should be a genuine and reasonable need. He submits that the landlord was trying to get the premises vacated under the guise of bona fide need. He relied on the judgment of this Court in the case of Janabai Daulatrao Borkar v. Rajeshkumar Ramjiwan Agrawal reported in 7975 Mh.L.J. 746. He submitted that the permission granted under Clause 13(3)(vi) was liable to be quashed and set aside.

28. Perused the record as well as the impugned orders.

29. Insofar as permission under Clause 13(3)(i) is concerned, it can be seen that the learned Rent Controller has come to a finding that the tenants were in arrears of rent from 1-5-1982 which was more than three months. He has also come to a finding of fact that the rent was demanded, from time to time and also intimation was given to the tenants and that this fact was also admitted by the tenants in their examination-in-chief as also in the cross-examination. The learned Rent Controller, therefore, held that the tenants were in arrears of rent from 1st May, 1982. He has, therefore, directed the tenants to pay the arrears of rent from 1-4-1982 till the date of filing an application at the rate of Rs. 12/- per month within a period of one month from the date of order failing which permission on the said count was deemed to have been granted. Though the learned Counsel for the tenant has orally made a statement that the arrears have been paid, the tenants have failed to produce on record any document to show that the payment towards arrears of rent has in fact been made. On the contrary, the landlord has placed on record the judgment and decree passed by the learned 2nd Joint Civil Judge, (J.D.), Akot in Regular Civil Suit No. 286/93 in which the learned Civil Judge has come to a finding of fact that after the order of the Rent Controller till the filing of the suit, there was no evidence to show that the tenants had paid the arrears of rent to the landlord. In view of this finding of fact, which has been confirmed in appeal by the learned District Judge, as well as this Court in second appeal, I do not find any substance in the contention of the tenants that arrears have been paid. It will, therefore, have to be held that the permission under Clause 13(3)(i) stand deemed to be granted by the Rent Controller under the provisions of Clause 13(3)(i) of the said Order.

30. Insofar as grant of permission under Clause 13(3)(ii) is concerned, the same has been rejected by the learned Rent Controller relying on the judgment of the Apex Court in the case of Rashiklal, cited supra. The Apex Court in the case of Rashiklal has held that if it is a settled practice between the landlord and the tenant to demand and accept the rent in lumpsum for several months together at a time, then the landlord cannot be permitted to spring a surprise on the tenant and say that by not paying the rent monthly, the tenant has committed a habitual default. However, it can be seen from the judgment of the Apex Court in the case of Rashiklal itself that the Apex Court has held that where a tenant is put on notice that he should pay the rent monthly, then the tenant cannot be heard to take a defence of the settled practice of demanding and paying the rent in lumpsum. This Court in the case of Mahadeo Baruji, cited supra, has rejected the contention raised therein by the tenant that if there is a habitual default, then the Courts must follow the course adopted by the Apex Court in the case of Rashiklal This Court has held that if on facts it is found that the tenant has become habitual, defaulter, then the necessary consequence must follow. The Apex Court in the case of Vijay Ambadas Diware, cited supra, has held that expression 'habitual' would mean repeatedly or persistently and implies a threat of continuity to commit similar repeated acts. In the facts of the present case, it can be seen that the tenants have not even pleaded a settled practice of demanding and accepting the rent in lumpsum. It can further be seen that the landlord had to file a suit for recovery of arrears, being Small Causes Suit No. 97/88 which came to be compromised before the Lok Adalat on 24-3-1990. It can also be seen that in spite of filing of the suit for arrears of rent, the tenant did not mend and pay the rent regularly. It can further be seen that even in a Regular Civil Suit No. 286/93 the landlord had to initiate proceedings under Order 15-A of the Civil Procedure Code for recovery of rent. In the said proceedings also, the tenant has deposited rent in two instalments in spite of the order of the Civil Court. It is further to be noted that in spite of notice by landlord dated 3-5-1988 and intimation given by deceased Girdharilal on 9-7-1985, the tenants have failed to pay rent regularly. The entire conduct of the tenants would show that they were not at all regular in paying the rent to the landlord. On the contrary, it can be seen from the written statement that the tenants had gone even to the extent of disclaiming their relationship with the landlord. I, therefore, find that the ratio laid down by the Apex Court in the case of Rashiklal is not at all applicable to the facts of the present case. The, learned Rent Controller has grossly erred in rejecting the application of the landlord under Clause 13(3)(ii) of the Rent Control Order. From the facts, it is clear that the tenants were 'habitual defaulters' within the meaning of Clause 13(3)(ii) of the Rent Control Order. In the case of Shama Prashant Raje, cited supra, the Apex Court has held that if the tenant continuously makes a default of paying the rent, then he must be held to be habitual in arrears with the rent in question.

31. Insofar as the application of the landlord under Clause 13(3)(v) is concerned, the landlord has averred in his application that the tenants have constructed premises on the Anjangaon road and they can shift the business of Mutton Eating House in the said premises. In the written statement, the tenants have denied of making any construction on the road. The tenants have further averred that the applicant has not specifically stated as to which premises the landlord thereby means. The tenants have denied that they have secured the alternative accommodation as alleged, in the cross-examination of the landlord, it has been stated that the alternate premises were situated on Anjangaon Road, opposite Gajanan temple, it is also stated that there is a rush of people going to the temple for Darshan. It is further stated that the premises in question were adjacent to Masjid and, therefore, it was less suitable for the business which the landlords were carrying out. In the cross-examination of tenant Gajanan, it has come that the construction of the tenants on Anjangaon Road was about one furlong away from Gajanan temple. He has also deposed that he does not wish to start a Mutton Eating house in his house. While rejecting the permission under Clause 13(3)(v), the learned Rent Controller has held that the same was for a residential purpose and that the suit premises were let out for running a business of 'Mutton Khanawal'.

32. Shri Gilda has relied on the judgment in the case of Abdeali cited supra. He submitted that it has been held by the Division Bench of this Court that Clause 13(3)(v) is not intended to restrict to only residential accommodation and to operate upon non-residential accommodation even though the tenant has secured alternate accommodation. However, in the said case, this Court has held thus :--

'....While the substantive clause operates upon all houses, the Explanation deals with only residential houses and that too for a limited purpose of drawing certain presumption. The presumption is that if a case relates to a residential accommodation and a tenant owns a residential house in the city which is constructed after 1st January, 1951 on the plot lying vacant or made vacant on or after that date, he will be deemed to have secured alternative accommodation. No such or any other presumption can be drawn in the matter of a non-residential accommodation. Explanation thus, has no impact on the operation of Clause, 13(3)(v) as such.'

I am, therefore, of the view that the Explanation appended to Clause 13(3)(v) would not be applicable to the facts of the present case since the premises were let out for commercial purposes and the alleged alternate accommodation is for a residential purpose. I, therefore, do not find any error in the finding arrived by the learned Rent Controller while rejecting the application of the petitioner under Clause 13(3)(v) of the Rent Control Order. Even otherwise, from the material on record, I do not find that the landlord has proved his case that the tenants have secured alternative accommodation for carrying on his business so as to warrant permission under Clause 13(3)(v) of the Rent Control Order. The findings of the Rent Controller as well as the Resident Deputy Collector with regard to refusal of permission under Clause 13(3)(v) will, therefore, have to be upheld.

33. Insofar as permission under Clause 13(3)(vi) of the Rent Control Order is concerned, both the learned lower Authorities have held that the landlord has proved his bona fide need. I have myself gone through the averments made in the application as well as the deposition of the landlord. He has clearly stated that he has passed B. Arch, examination and he intends to utilize the said premises after demolition and reconstruction for having his office for carrying on the profession of Architecture. In the examination-in-chief as well as cross-examination, he has stated that the present premises were in the main market area, i.e. Shivaji Chowk and that the said premises were best suitable for carrying on the profession of Architecture. It is a settled law that the landlord is the best judge of his need. The Apex Court in the case of Akhileshwar Kumar and Ors. v. Mustaqim and Ors. reported in : [2002]SUPP5SCR57 has held thus :--

'Once it has teen proved by a landlord that the suit accommodation is required bona fide by him for his own purpose and such satisfaction withstands the test of objective assessment by the Court of facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. The Court cannot thrust its own choice upon the needy. Of course, the choice has to be exercised reasonably and not whimsically.'

Similar view has been taken by the Apex Court in the cases of S.R. Babu v. T.K. Vasudevan and Ors. reported in : AIR2001SC2881 and R. C. Tamrakar and Anr. v. Nidi Lekha reported in : AIR2001SC3806 . It was suggested by the tenants in the cross-examination of the landlord that the landlord was also having other premises which were also rented out. However, the landlord has specifically stated in his cross-examination that those premises were not suitable for carrying on his business and the premises in question were the most suitable one for carrying on his profession as Architect. The Apex Court in the case of S.R. Babu, cited supra, has held that once it is found that the landlord requires the accommodation for his personal use, the tenant has no say in such matters. It is thus clear that the landlord has proved his case that he requires the premises in question for his bona fide need. It will, therefore, have to be held that the learned Rent Controller-has rightly granted permission to the landlord under Clause 13(3)(vi) of the Rent Control Order.

34. Insofar as Clause 13(3)(vii) of the Rent Control Order is concerned, the Rent Controller has rejected the permission on the ground that the landlord had failed to prove the same by producing documentary or oral evidence. The learned Rent Controller has also observed that the expert examined in this behalf has also not disclosed clearly on this count. However, it is pertinent to note that the learned Rent Controller had himself inspected the spot and that the spot inspection note is on record. The learned Rent Controller in the spot inspection report has found that the premises in question were constructed about 40 years prior to the date of inspection. There were steps leading to the well underneath the premises. That on the said space, wooden rafters were placed and on that the flooring was made by putting wooden planks. The learned Rent Controller has o found that since the wooden rafters and the planks were on the portion above the stairs leading to the well, it was not possible to personally inspect the same. However, the learned Rent Controller has observed that it was not in the safety of the visitors to the eating house to have flooring of rafters and wooden planks on the portion above the stairs leading to the well. It is pertinent to note that the landlord himself is an Architect. He is, therefore, an expert in the field. In his deposition, he has stated that the wooden planks which form the flooring of the premises have become rotten. He has further stated that the condition of the premises was also dilapidated and it could fall down any time. He has, therefore, stated that it was necessary to demolish the said structure and erect a new construction by putting RCC slab. It is pertinent to note that in the cross-examination of the landlord, nothing has been put to him regarding the dilapidated condition of the structure. The deposition of Navnit, the landlord, insofar as dilapidated condition of the structure is concerned thus goes unchallenged. In addition to that the landlord has also examined one Architect, namely. Anant Gawande. The said Anant Gawande has also passed his B. Arch, examination. The said Shri Gawande has deposed in his evidence that the wooden structure (i.e., flooring of the structure above the passage to well) has become rotten due to water and that it could not last for a long period. He has further deposed that it can fall any time. He has further deposed that the bricks arches are also in a dilapidated condition and they can also fall down. He has further deposed that the walls are over the water bodies and that they are in a dangerous situation. Though the said expert has been cross-examined, nothing material in support of the tenants' case has come on record. On the contrary, he has reiterated that the wooden planks and rafters are in a rotten condition. I, therefore, find that in view of the unchallenged deposition of Navnit, independent deposition of Architect Anant Gawande and the spot inspection report by the Rent Controller himself, it was proved beyond doubt, from the material on record, that the said premises were in a dilapidated condition so as to grant permission under Clause 13(3)(vii) of the Rent Control Order. I find that though there was sufficient material to take into consideration the need to grant permission under Clause 13(3)(vii), the learned Rent Controller has failed to take into consideration the said material. The finding of fact, therefore, in this respect cannot be justified. The said finding of fact has been mechanically confirmed by the R. D. C. in the appeal. Therefore, though both the learned authorities have concurrently rejected the permission under Clause 13(3)(vii), I find that the learned Authorities have committed manifest error by not taking into consideration the valuable material which was available on record. The Apex Court in the case of Shama Prashant Raje, cited supra, has held thus :--

'.........Undoubtedly, in a proceeding under Articles 226 and 227 of the Constitution, the High Court cannot sit in appeal over the findings recorded by a competent tribunal. The jurisdiction of the High Court, therefore, is supervisory and not appellate. Consequently, Article 226 is not intended to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or order to be made. But notwithstanding the same, on a mere perusal of the order of an inferior tribunal, if the High Court comes to a conclusion that such tribunal has committed manifest error by misconstruing certain documents, or the High Court comes to the conclusion that on the materials it is not possible for a reasonable man to come to a conclusion arrived at by the inferior tribunal or the inferior tribunal has ignored to take into consideration certain relevant materials or has taken into consideration certain materials which are not admissible, then the High Court will be fully justified in interfering with the findings of the inferior tribunal.'

Since the learned lower authorities have totally failed to take into consideration the relevant material, I find that this is a fit case wherein this Court in its jurisdiction under Articles 226 and 227 should interfere with the concurrent finding of fact. I, therefore, find that the landlord has proved his case that the premises were in a dilapidated condition so as to entitle him for grant of permission under Clause 13(3)(vii) of the Rent Control Order. The application of the landlord under Clause 13(3)(vii) will also have to be allowed.

35. That takes us to the last question as to whether the landlord is also entitled for grant of permission under Clause 13{3)(ix) of the said Order. Clause 13(3)(ix) along with Explanation appended to it reads thus:--

'(ix) that the tenant has committed a nuisance :Explanation.-- For the purpose of this item nuisance means any act or omission which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or which is or may be dangerous to life or injurious to the health of a neighbour or to property.'

It can be seen that the Legislature has itself given an explanation as to what shall mean nuisance for the purposes of nuisance under Clause (ix). For the purposes of Clause 13(3)(ix), nuisance would mean any act or omission which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or which is or may be dangerous to life or injurious to health of a neighbourer or to property.

36. Shri Sohoni, learned Counsel for tenants, relying on the judgment of the learned Single Judge of this Court in the case of M/s Arco Roadways Private Limited v. Smt. Gawarajabai w/o Gangabisan Sikchi reported in : 1994(3)BomCR120 , submits that the Explanation envisages that the act or omission should be such which would be either dangerous to life or injurious to health or property of the people in neighbourhood. With respect to the view taken, I am unable to persuade myself to agree with the said view. It is the settled law that the provisions of the statute should be given their clear and unambiguous meaning. If the view taken by this Court in the aforesaid case is to be accepted, then the word 'or' appearing between 'for the purpose of this item nuisance means any act or omission which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing 'or' which is or may be dangerous to life or injurious to the health of a neighbour or to property' will have to be read as 'and'. It is a settled law that when word 'or' is used by the Legislature, it cannot be used as 'and'. The Apex Court in the case of State of Punjab and Ors. v. Ramsingh, Ex-Constable reported in : [1992]3SCR634 and Puransingh and Anr. reported in : [1965]2SCR853 has held to the same effect. The plain reading of Explanation would show that for the purpose of bringing any act or omission under the mischief of Clause 13(3)(ix), it should be such which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing. It could also be such act or omission which is or which may be dangerous to the life or injurious to the health of a neighbour or to property. In my view, it is not necessary that the act must qualify both the earlier as well as latter requirement. Even if an act or omission falls under any of the categories, in my view, it will be sufficient so as to invite the mischief of Clause (ix). An act at times may cause or likely to cause injury, danger, annoyance or offence to the sense, sight, smell or hearing but it may not be dangerous to the life or injurious to the health of a neighbour or to property. At the same time, an act may be dangerous to life or injurious to health of a neighbour or to property but may not cause or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing. For example, an odorous smell may cause annoyance or offence to the sense of smell but would not be dangerous to the life or injurious to the health of a neighbourer or to property. On the contrary, using the premises for storing explosives may not cause any annoyance or offence to the sense of sight, smell or hearing but would be dangerous to the life or injurious to the health of neighbourer or to property. If it is to be held that an act or omission to invite the mischief of Clause (ix) has to qualify both the requirements would lead to anomalous situation. I, therefore, find that the view taken by this Court in the aforesaid case of Arco Roadways Private Limited v. Smt. Gawarajabai w/o Gangabisan Sikchi reported in 1994 (3) BCR 120 is not in consonance with the provisions of Clause (ix) of the Rent Control Order.

37. This Court in the case of Gulam Husain Mirza v. Laxmidas Premji and Anr. reported in 1984 M.L.J. 215 had an occasion to consider the import of term 'nuisance or annoyance' as envisaged under the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, While considering the question as to whether putting up of several pots, rose plants and dumping material necessary for tending and cultivating the rose plants amounted to nuisance, this Court in a judgment written in an erudite manner has observed thus:--

'7. Then, the question is, whether this conduct is within the mischief of the words 'nuisance or annoyance'? These are the words of no fixed connotation and, in fact, have a wide import. The Legislature also has not defined the same.

8. Halsbury's treatise on Laws of England, Second Edition, Volume 24, para 30 states :

'The term 'nuisance' as used in law is not a term capable of exact definition, it has been used with meanings varying in extent by the old writers, and even at the present day there is not entire agreement as to whether certain acts or omissions shall be classed as nuisance or whether they do not rather fall under other divisions of the law of tort.'The treatise further points out :

'Nuisance may be broadly divided into (1) acts not warranted by law or omission to discharge a legal duty, which acts or omissions obstruct or cause inconvenience or damage to the public in the exercise of rights common to all His Majesty's subjects (2) acts or omissions which have been designated or treated as nuisance by statute, (3) acts or omissions connected with the user or occupation of land which cause damage to another person in connection with the latter's user or occupation of land.'This third division includes many acts or omissions of different kinds, including interference with the specific rights of property as well as user of the property in such a way that may be injurious to individuals who are entitled to exercise those rights. The acts complained of would squarely fall within the third category of divisions as pointed out by Halsbury.

8A. The words used by Section 13(1)(c) of the Act are English words. It is logical, therefore, to term the interpretation of those words as is available in English juristic language. In several ways and in differing context, these terms, i.e. 'nuisance or annoyance' have been considered. Their meaning has been gathered in the context of the statute as well as in the context of the social facts available in a given society; and so also the mischief that given law wants to avoid. 'Annoyance' suggests vexation or disgust while again 'annoy' itself means irritate or harass, while 'nuisance' is a word that connotes anything that is injurious or obnoxious either to the community or to the members thereof. In the context of Clause (c) of Sub-section (1) of Section 13 of the Act, emphasis is on the conduct of the tenant which is either by itself a nuisance or amounts to annoyance. The term suggests behaviour and has relation to the action or omission on the part of the tenant as affecting the neighbouring occupiers. There is, of course, no fixed, static or straight-jacket formula to find out with all exactitude the effect of such a conduct and the matter will have to be appreciated fairly and applying ordinary standards of good behaviour in the light of all relative circumstances available in each case.

9. Effort has been made to separate the conceptual comprehension of nuisance from annoyance and also to find out the overlapping field, which will be covered by both the terms.

10. In Damford v. Turnley Pollock C.B., observed that the Court did not think that the nuisance for which an action will lie is capable of any legal definition, which will be applicable to all actions and is useful in deciding them. The question is so entirely depended on the surrounding circumstances and must necessarily be an actionable nuisance. The judgment further illustrates the relative significance of the act or omission which may be nuisance at one place and under given circumstances but would not be so elsewhere. While illustrating, the judgment records :

'A clock striking the hour, or a bell ringing for some domestic purpose, may be a nuisance if unreasonably loud and discordant, of which the jury alone must judge; but although not unreasonably loud, if the owner, from some whim or caprice, made the clock, strike the hour every ten minutes or the bell ring continually, I think that a jury would be justified in considering it to be a very great nuisance. In general, kitchen chimney, suitable to the establishment to which it belonged, could not be deemed a nuisance; but if built in an inconvenient place or manner, on purpose to annoy the neighbours, it might very properly be treated as one. The compromises that belong to social life, and upon which peace and comfort of it mainly depend, will furnish an indefinite number of examples in which some apparent natural right is invaded, or some enjoyment abridged, to provide for the more general convenience or necessities of the whole community.'In Walter v. Gelfe, Knight-Bruce V. C. observed that the nuisance is an inconvenience materially inferring with the ordinary comfort physically of human existence, nor merely according to elegant or dainty modes and habits of living, but according to plain and sober simple notions, among the English people. This test was approved in the case of Tod-Heatlay v. Benham. Talbot J. in Gunard and Wife v. Antifyre Ltd., observed that private nuisance could be confined to that which is injurious to property. In Read v. Lyons and Co. Ltd., Winfield's proposition that the nuisance is the unlawful interference with a person's use or enjoyment of land, or some right over or in connection with it was cited with approval and was further affirmed in other cases, such as Howard v. Walker and New Castle - under Lyne Corporation v. Wolstanton Ltd. In Booler v. Standard Telephones and Cables Ltd., injurious encroachment by the roots of a tree going underneath a house was treated to be an actionable nuisance, in Harrison v. Good Becon V. C. observed that unless the nuisance complained of is one for which an indictment would He, or an action could be maintained. It is no nuisance within the terms of the covenant which was being considered and further found that the establishment of a national school with playground for boys in the vicinity of a residential property would not be a nuisance, though it would be an annoyance. Lindley LJ. in Tod-Heatlay v. Benham referring to those cases thought that the term appeared to be restrictively interpreted while Bowen L.J. doubted the correctness of the interpretation, The decision of the learned L.J in Tod-Heatlay v. Benham, goes to show that the term 'annoyance' is also of very wide amplitude. Cotton, Lord L. J. asked now what is the meaning of annoyance The meaning which that which annoys, that which raises objection and unpleasant feelings. Anything which raises an objection in the minds of reasonable man may be an annoyance within the meaning of the covenant, while Bowen Lord Justice observed that it implies more, as it seems, then nuisance and further stated that it was clear that if annoyance and nuisance were put together in a covenant of the kind which was being considered, it should mean something different from each other. The Learned Lord Justice further observed:

'Any material interference with the ordinary comfort of existence: that would be a nuisance ..... 'Annoyance' is a wider term than nuisance, and if you find a thing which reasonably troubles the mind and pleasure, not of a fanciful person or of a skilled person, who knows the truth but of the ordinary sensible English inhabitant of a house - if you find their is anything which disturbs his reasonable peace of mind that seems to me to be annoyance, although it may not appear to amount to physical detriment to comfort.'Therefore, whatever causes material interference with the ordinary comfort or existence would be nuisance, and anything that disturbs the reasonable peace of ordinary person and leads to un un pleasurable feeling, would be annoyance. Jessel M. R. In Whatson v. Loasington College, said it might perhaps be difficult to appreciate the difference between 'nuisance' and 'annoyance', but as both words were used, 'annoyance', evidently, meant something less than 'nuisance', while in Tod-Heatlay v. Benham (supra), 'annoyance' was treated to have a wider meaning than 'nuisance'.

11. In the light of these juridical contemplations, often the English Courts have answered the questions in the context of the given facts. A high trelliswork fence which substantially interfered with one's access of light was treated as nuisance (See Wood v. Cooper). The burning of refuse which would cause material discomfort and annoyance was treated to be the finding of fact in Flaming v. Hislop. Annoyance could be caused by singing, or piano lessons in an adjoining house and also by making noises. (See Cases referred to on page 135 of Stroud's Judicial Dictionary, fourth edition. Vol. 1).

12. Thus, the legal comprehension that encompasses these terms appears to be well-settled. Though the terms are very wide amplitude covering variety of circumstances and cannot be fenced by any definite meaning, whatever causes material interference with the ordinary comfort of human existence would, surely be the nuisance while that which annoys, irritates or is offensive and has tendency that would evoke reasonable objection and leading to unpleasant feelings amongst persons, would be annoyance.

13. This position drawn from the English decisions appears to have been consistently applied by Indian Courts in Ram Labhya v. Dhani Ram, it was found by the Lahore High Court while considering the provisions of the Punjab Urban Rent Restriction Act that encroachment by a tenant could be the conduct which would amount to nuisance and/or annoyance to the adjoining or neighbouring occupier. That is a clear authority that encroachment in given circumstances would be enough to make out the charge of nuisance as well as involving results such as that of annoyance. The Gujarat High Court in the case of Chandrakant v. Gajendrakumar, following the test laid down by Laidley L. J. In Tod-Heatlay v. Benham, held that the act of the tenant with regard to the residential premises in boarding his workers as a part of his business activity would be within the provisions of Section 13(1 )(c) of the Act, because that reasonably abridges and diminishes the ordinary comfort to which the occupiers of the premises were entitled to. The Punjab High Court in the case of Niader Mal v. Vgar Sain, while considering the act of the tenant against the provisions of the Delhi and Ajmer Rent Control Act available in Section 13(1)(i) thereof, found the tenant to be guilty of causing nuisance and/or annoyance when he prevented other occupants of the premises from using the bathroom and the latrine, which the other occupants were entitled to use it as the tenants. A person beating on a railway platform was held to cause nuisance to other persons by the Rajasthan High Court in the case of Durga Prasad v. State, where that Court ruled that nuisance ordinarily means that which annoys or hurts or that which is offensive. The Mysore High Court in the case of D. B. Godse v. K.S. Ramchendra Iyer, pointed out that what may be an annoyance or nuisance in one situation may not be so in another and each case has to be decided on its own facts. If the landlord were ailing, the making of loud noise and disturbing the peace would be annoyance or nuisance. In Kanchanmala Dassi v. Leelabati Debi, the Calcutta High Court observed that though it might be difficult to appreciate the difference between these two terms, whatever reasonably troubles the mind and pleasure, not of a fanciful person, but of an ordinary sensible inhabitant of a house would be an annoyance.

15. As the section itself shows, it is the conduct that thereunder comes in issue. While considering nuisance and annoyance, that conduct or behaviour complained of will have to be objectively appreciated. It may have relation either to the rights and enjoyment of the property or other rights and entitlements of persons who, as ordinary men, are entitled to have peaceful, trouble free and ordinarily comfortable situation. These entitlements are basic in human society. Those are to be judged by the given standard or norms available in such society. If a given conduct adversely affects such entitlement or encroaches thereupon, then the conduct would be within the mischief of the clause. One must hasten to add that the phrase employed by the statute being of wider amplitude, there is always a possibility of overstraining the meaning so as to include even the trifle and trivial matters. That is why every conduct should be judged in the context and fairly. Without being elaborate or exhaustive, it can safely be said that all that conduct which is offensive, quarrelsome or violent, unethical in juxtaposition of peaceful, civil and by ordinary standard ethical would be within the mischief. Matters of physical assaults by one against other would attract squarely the clause so also other types of subtle assaults that offend human senses. Such acts may affect the peace and interfere with the pleasurable enjoyment of the property and, consequently, be within the mischief. Similarly, cases where property is trespassed upon and appropriated to one's own use to the exclusion of others' entitlement would be within the mischief of nuisance. Whenever question arises under the clause, first the conduct or behaviour that is in issue should be fairly and objectively ascertained and then, secondly, its effect in relation either to the property or the persons occupying the property should be taken into account. All this should be done in keeping with the social background of the given society, having norms of reasonable peace, comfort and enjoyment as well as in the light of the entitlements of the occupiers regarding the specific property. Having considered all these three aspects, if the conclusion is reached that the conduct was such which affected or tended to affect the reasonable entitlements of ordinary normal expectations of life, then all that this clause intends would be clearly answered.

16. Law would surely look a loathsome ass if leases were to be sacrificed at the altar of love of roses, or for tending and culturing rose plants. But the law is not such a loaded ass. Law is a protector of balance between fair and unfair, just and unjust, reasonable and unreasonable, entitlement and non-entitlement. Not the love of roses, but the appropriation of others' property and trespass on others' entitlement by keeping rose-pots and occupying the property that is in issue. Such a conduct by itself is objectionable and is fraught with challenges and conflicts. It also interferes with the reasonable comfort and entitlements of other occupiers to use the given species of the property. It cannot be forgotten even in the background of roses, that man's hobby may be another man's taboo; one man's medicine another man's poison and one man's joy, another man's annoyance. By providing this clause, the law strikes a balance. It promotes peace and furthers good sense and fair behaviour. These are the normative pivots on which cohabitation in society rests. In law, there is always scope for defence of justification and so also for setting up of claims to property. But when along with these something more exists, such as unilateral appropriation in utter disregard of others' comfort or entitlement, such a defence can hardly be enough.'

A well-written judgment takes into consideration various judgments of the Indian Courts as well as English Courts on the aspect as to what amounts to 'nuisance' or 'annoyance'.

38. The Apex Court had an occasion to consider what is the scope of nuisance or annoyance as stated in Section 13(1)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act in the case of Narpatchand A. Bhandari v. Shantilal Moolshankar Jani and Anr. reported in : [1993]2SCR471 . The Apex Court after finding that their is no statutory definition of word 'nuisance or annoyance' has observed thus :--

'13. There are no statutory definitions of 'nuisance' or 'annoyance' which under Section 13(1)(c) of the Act constitute a ground for recovery of possession by landlord of a premises in the occupation of a tenant. In the case with which we are concerned, the act of nuisance or annoyance complained of are committed by the tenant and persons residing with him in the premises which is a tenement (flat) lying amidst other tenements (flats) of the one and same storeyed building. The acts of the defendant or persons residing with him in the tenanted premises which are found as acts causing nuisance or annoyance to adjoining or neighbouring occupiers cannot fall short of being acts of nuisance or annoyance if regard is had to their nature, intensity and duration and the consequential ill-effects which might have been produced by them on the normal living of such occupiers. Further, when the particular acts of the defendant of persons residing with him in the premises (flat) of a storeyed building, said to have caused nuisance or annoyance to the occupiers of adjoining or neighbouring occupiers of tenements (flats) in the very same storeyed building are seen, they cannot make us think that they were not clear acts of nuisance of annoyance envisaged under Section 13(1)(c) of the Act because of the intolerable inconveniences, sufferings, humiliations, which must have been caused to the adjoining or neighbouring occupiers, due regard being given to the locality of the storeyed buildings, the class of the people living in the tenements of the storeyed building and the nature of living to which they were accustomed.....'

In the said case, the acts of the tenant like erecting a Rangeen Mill (Textile Printing Mill) on the terrace of the building and running it during nights so as to make occupiers of the adjoining neighbouring tenements in the storeyed residential building, suffer the vibration and noise in the building arising on account of the running of the mill and lose their quiet and sleep during nights, using water unauthorisedly from common overhead tank, removing the radio aerials and T.V., antennas of the adjoining and neighbouring tenements, preventing the usufructuary mortgagee from the owner and their workers in reaching the common terrace for repairs of radio aerials, T.V, antennas, telephone lines and like of the occupiers of the neighbouring tenements in the building by blocking its staircase were found to be creating nuisance so as to invite the mischief of Section 13(1)(c) of the Bombay Rent Control Act.

39. Thus, it can be seen that for constituting an act or omission as a nuisance, no hard and fast rule can be laid down or neither a straight-jacket formula could be provided for. Whether a particular act or omission amounts to nuisance or annoyance will depend upon the facts of the each-individual case. A particular act may amount to nuisance in one set of facts and circumstances and may not amount to nuisance in another set of facts and circumstances. Like playing a music in a loud voice in an isolated space would not amount to nuisance, for doing the same thing in a room in a chawl would amount to nuisance to its neighbours. Like held in the case of Gulam Husain Mirza v. Laxmidas Premji and Anr., cited supra, having pots of rose flowers in ones own garden may amount to an activity of pleasure, but having it on the terrace thereby causing inconveniences to the residents of floors underneath the terrace could amount to the nuisance.

40. This Court in the case of Gulam Husain Mirza v. Laxmidas Premji and Anr., cited supra, has elaborately discussed the law as to what may constitute and what may not constitute nuisance or annoyance. However, under the Bombay Act, there is no explanation as to what would amount to nuisance. Fortunately, in the Rent Control enactment which falls for consideration before this Court in the present case, the Legislatures have provided as to what would amount to nuisance for the purposes of Clause 13(3)(ix) of the Rent Control Order. Perusal of the explanation makes it clear that any act which causes or is likely to cause injury or danger, so also any act which causes or is likely to cause annoyance or offence to the sense of sight, smell or hearing would mean nuisance under the provisions of the said clause. As I have already discussed hereinabove, it is not necessary that the said act or omission has to be of such a nature that it may be dangerous to life or injurious to health of a neighbour or to property. In the backdrop of this position, we will have to examine as to whether the act/omission alleged would constitute a nuisance under the meaning of Clause 13(3)(ix). As has been held by this Court in the case of Vinodkumar Atmaramji Choudhary v. Resident Deputy Collector, Amravati and Anr. reported in 1998 (1) M.L.J. 632 cited supra, it is necessary that for a party to claim permission under Clause 13(3)(ix), it has to plead what specific act or omission amounts to nuisance. It is not sufficient to make a general allegation that the act of tenant amounts to nuisance. It will, therefore, be necessary to refer to the pleadings made by the landlord for seeking permission under Clause 13(3)(ix) of the Rent Control Order. Para 5 of the application reads thus:--

'5. The N. As, are running Mutton Eating House on the site in question. The cooking is also done at that very place. That omits intolerable smell and fumes and the nearby family they are repeatedly complaining about the same. The N. As, have also not properly guarded their cooking so that the nuisance could be minimised. The applicant is, therefore, entitled to permission under Clause 13(3)(ix) of the House Rent Control Order, 1949.'

It can thus be seen that the applicant has clearly stated that the tenant has failed to provide a properly guarded cooking place so that the nuisance could be minimised. It is the case of the landlord that due to emission of intolerable smell due to cooking of non-vegetarian food nuisance is caused to the neighbourers of the tenant. In support of his case, the landlord has examined himself. In his deposition, the landlord Navnit has specifically stated that due to the cooking in the tenanted premises, intolerable smell is emitted and due to the smell an inconvenience is caused to the people residing in the vicinity. It is also stated that the tenant has not taken any precaution to minimise the said smell. He has further deposed that though there is another Mutton Eating House in the vicinity, it has a guarded kitchen and, therefore, it does not cause any nuisance. It is pertinent to note that in the cross-examination of the landlord Navnit, he has not been put any question with respect to the deposition in this aspect and that the said deposition has gone unchallenged.

41. The applicant landlord has also examined one Shri Hariprasad Vishweshwarlal Purohit, who runs a hotel near the premises in question and also resides at the same place. He has specifically deposed in his examination-in-chief that the suit premises are situated at a distance of about 50 ft. from his hotel and that he resides in the rear portion of his hotel. He has stated that since the suit premises are used for Mutton Eating House, the customers visit the premises upto 12-1 in the midnight which causes inconvenience. He has also deposed that the cooking is done in the open space which emits intolerable smell and thereby causes nuisance to him. Though he has been cross-examined on this point, nothing concrete could be taken out in his deposition so as to demolish the case of the landlord.

42. Not only this, but the tenant Gajanan has specifically admitted in his cross-examination that * there is no enmity between him and Hariprasad. Therefore, the testimony of Hariprasad who is an independent witness can be safely relied upon. It is thus clear that the landlord has pleaded a specific act/omission which, according to him, amounts to nuisance. He has also produced evidence in support of the said averments. Now the question that will have to be considered is as to whether having a Mutton Khanawal and the emission of cooking smell, therefrom will amount to nuisance or not within the meaning of Clause 13(3)(ix) of the Rent Control Order. It can be seen that under Clause 13(3)(ix), an act or omission which causes annoyance or offence to the sense of smell would also amount to nuisance within the meaning of the said clause. Having a Mutton Eating House simpliciter would not amount to nuisance as it has already come on record that there is also another Mutton Eating House but the said Mutton Eating House is having a guarded kitchen. It has come in the evidence of the landlord Navnit as well as Hariprasad that since there is a unguarded kitchen, there is emission of cooking smell which is intolerable to Hariprasad. It can also be seen from the explanation to Clause 13(3)(ix) that an act or omission which causes annoyance or offence to a neighbour will also come within the meaning of nuisance under Clause 13(3)(ix). It is not necessary that the nuisance has to be of a public nature. As I have already discussed hereinabove, as to whether a particular act or omission amounts to nuisance will have to be determined in the set of facts and circumstances of each case. Smell of cooking meat may be an appetiser for the sense of smell of someone, but may amount to intolerable annoyance to the sense of smell of another person. We will have to determine whether the act of emission of smell in the present case amounts to nuisance or not on the basis of the pleadings and the evidence available on record. The landlord has specifically pleaded that due to having unguarded kitchen intolerable smell is emitted which causes disturbance to the neighbours. As discussed hereinabove, his. testimony has gone unchallenged. An independent witness Hariprasad has also deposed to the same effect and has also specifically deposed that the said smell causes intolerable annoyance to him. In the facts of the present case, therefore, it will have to be held that the act of tenant in not providing a guarded kitchen and thereby permitting emission of cooking smell has caused nuisance at least to Hariprasad who is their neighbour. In my view, this is sufficient so as to bring the said act or omission within the mischief of Clause 13(3)(ix) of the Rent Control Order.

43. Shri Sohoni, learned Counsel for tenants, during the course of hearing had submitted that the tenant was now willing to provide a guarded kitchen so as to minimise the nuisance. However, this Court in the case of Gulam Husain Mirza itself has observed that the act complained of could be referable to the conduct which may be past, present or continuing. In that view of the matter, I do not find any substance in the submission made by Shri Sohoni in this respect. I, therefore, find that the learned Rent Controller was not justified in refusing permission under Clause 13(3)(ix). I hold that the petitioner is also entitled to grant of permission under Clause 13(3)(ix) of the Rent Control Order.

44. Hence, the following order :--

Writ Petition No. 465/92 filed by tenants challenging the concurrent orders of the Rent Controlled and the Resident Deputy Collector thereby granting and upholding the permission granted to the landlord for permission to issue notice under Clause 13(3)(vi) is found to be without any merit and as such is dismissed with no order as to costs.

45. Writ Petition No. 891/92 filed by the landlord is partly allowed. The petitioner is held to be entitled to grant of permission under Clause 13(3)(ii), (vii) and (ix) in addition to Clause 13(3)(i) and (vi) which is already granted by the learned Rent Controller and upheld by the learned Resident Deputy Collector. However, it is held that the petitioner is not entitled to permission under Clause 13(3)(v) of the Rent Control Order. In the facts and circumstances, no costs are awarded in this petition also.

46. Rule is accordingly discharged in Writ Petition No. 465/92 and is made partly absolute in the aforesaid terms in Writ Petition No. 891/92