IN THE HIGH COURT OF BOMBAY
Writ Petition No. 5305 of 1989
Decided On: 16.07.2004
Hon’ble Judges/Coram: A.P. Shah, Actg. C.J. and S.U. Kamdar, J.
Citation: 2004(4) MHLJ287
1. Whether acquisition of residential premises by a tenant in a different town can per se be considered as an acquisition of suitable residential premises within the meaning of Section 13(1)(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short Bombay Rent Act) is the question that is referred to by Karnik J. to the larger Bench for decision.
2. The question arises in the following circumstances.
The 1st petitioner is the tenant of the respondent of the suit premises situated in Mumbai and petitioner No. 2 is his son. The respondent had filed a suit against the petitioners in the Court of Small Causes at Mumbai for possession, inter alia, on the grounds of bonafide requirement, subletting and that petitioner No. 1 had acquired suitable residential premises at Sangli. The ground that the petitioner No. 1 had sublet the premises to his son i.e. petitioner No. 2 was not pressed before the learned single Judge. The Trial Court decreed the suit on both the grounds of bonafide requirement as well as that the petitioner No. 1 had acquired suitable residential premises at Sangli. The Appellate Bench of Small Causes Court, Bombay confirmed the decree for possession on both the grounds. Being aggrieved the tenant filed the present petition which was placed for hearing before Karnik J. The learned Judge noted that the suit premises are situated in the city of Bombay and it is not the case of the respondent that the petitioners or any of them have acquired suitable residential accommodation in Bombay and even in the periphery of Bombay. The learned Counsel for the respondent, however, relying upon & judgment of Rebello J. in Rajendraprasad v. Shankar 2002(3) M.L.J. 498 contended that even if the tenant has acquired premises in a different town he would be construed to have acquired suitable residential premises within the meaning of Section 13(1)(1) of the Bombay Rent Act. In the said judgment, the learned single Judge (Rebello J.) has held:
“The second limb of the contention sought to be advanced is that the allotment has to be in the same locality where petitioner has got the premises. Take an illustration. A tenant may possess all the necessary means to construct a house. Such a tenant lives in the city of Mumbai, but may choose to construct a house at Pune or Delhi. If the petitioner’s argument is to be accepted it would mean that even though he has financial capacity and the means to put up a construction, merely because he constructs a house elsewhere that would not mean acquisition of accommodation. Though, therefore, the tenant is in a position to acquire alternative premises yet it would not amount to acquisition. The concept of locality for these reasons, in my opinion, cannot be read into Section 13(1)(1). The learned counsel for the petitioner was asked whether there are any judgments of the Apex Court or of this Court giving a construction of Section 13(1)(1) as contended by the petitioner. Learned Counsel submits that at least to his knowledge there are no such judgments. In my opinion, even otherwise looking to the nature of protection given to a tenant it would not be possible to contemplate that the Rent Act was made to give protection to those tenants who have the means and that means is to either acquiring accommodation by constructing a premises or by taking other premises on rent in other places. That contention has also to be rejected.”
3. Karnik J. noticed that in two earlier judgments of this Court in Madhukar v. Smt. Satyabhamabai; 1980 Bom.C.R. 182 and Krishnaji v. Dr. Shankar Abhyankari; 1965 80 Bom.L.R.690 a different view has been expressed. The aforesaid decisions were not cited before Rebello J. Therefore, by a reasoned order dated 9th June, 2004 Karnik J. referred the matter to the larger Bench.
4. Mr. Dalvi, learned Counsel appearing for the petitioners submitted that acquisition of residential premises as contemplated in Section 13(1)(1) of the Bombay Rent Act should be not only suitable for the residence of the tenant and his family members but ordinarily such premises should also be within the same locality. On the other hand according to Mr. Dani, as soon as the alternative residential premises are acquired by the tenant even in a difference town, the landlord is entitled to get possession of his premises under Section 13(1)(1) of the Bombay Rent Act. According to the learned counsel, the construction sought to be placed by the learned counsel for the petitioners upon the provisions of Section 13(1)(1) is not correct as Section 13(1)(1) does not require that allotment of suitable residence should be within the same local area.
5. Mr. Dalvi drew our attention to two decisions of the Gujarat High Court in Ramgauri Girdharlal v. Narottam Narandas 1975 (15) Guj.L.R 176 and ayabhai Motiram V. Nathubhai Bhimabhai Naik, 1976 All 49. In the first case of Ramgauri Girdharlal the learned single Judge of Gujarat High Court has indeed taken a view that Section 13(1)(1) of the Rent Act cannot apply to a tenant who acquires or is allotted vacant possession of the premises in a different town. However, in Dahyabhai Motiram’s case another learned single Judge of the same High Court has held that even if the tenant has not constructed his bungalow in the town proper and if the bungalow is situated at outskirts of the town only because the technical situation of the bungalow is in different area, it cannot be said that it cannot be taken into consideration for the purpose of considering the question as whether the tenant has acquired suitable residence within the meaning of the Rent Act.
6. In Madhukar v. Smt. Satyabhamabai (supra), C.B. Dharmadhikari J. held that it is neither possible nor it is desirable to lay down any general view in this behalf and to some extent the question will depend upon the facts and circumstances of each case. In that case the landlord sued the tenant on the ground that the tenant who was in occupation of rented premises at Pune was transferred to a place called Bhimanagar which is 80 K.M. away from Pune and he was allotted suitable accommodation and for more than one year before filing of the suit he had not used the suit premises leased out to him and has kept it closed without any reasonable cause. C.S. Dharmadhikari J. allowing the writ petition and setting aside the decree under Section 13(1)(1) has observed as under:
“…the question must depend upon the facts and circumstances of each case including topography of the area and the situation of the alternate accommodation. Therefore, proximity of place of the alternate accommodation or building is relevant while deciding the question contemplated by Section 13(1)(1) of the Rent Act. In my opinion the whole thing must depend firstly upon the question as to whether the alternate accommodation allotted to a tenant could be suitably used for the purpose of residence or was actually used as residence by the tenant and members of family and secondly new residence must be such that by its acquisition or allotment, the protection afforded to the tenant from the eviction by the Rent Act should stand forfeited so far as house in dispute is concerned. If various sub-sections including Sub-section (k) of Section 13(1) are read together and harmoniously it is quite clear that the protection could stand forfeited only in those circumstances where it would make unnecessary for the Act to protect his possession over the premises in suit, because of acquisition or allotment of suitable alternative residence. If it is proved that the premises let out are not necessary for the residence of the tenant as the tenant has shifted to his alternate accommodation with his whole family and bag and baggage then in that case even without waiting for the period specified in Section 13(1)(k), the landlord may approach the Court for getting possession of his premises under Section 13(1)(1) of the Act. Normally acquisition or allotment of the residential premises outside the local area in question may not automatically forfeit the protection given by the Rent Act. In any case it can safely be said that in majority of the cases new residence should be within local area or nearabout it, because ordinarily it is only in those cases, it will be unnecessary for the Act to protect the possession of the tenant over the premises in dispute. In other cases it could be said that the provisions of Section 13(1)(1) would be attracted in cases of acquisition by or allotment of alternate residence to the tenants as would serve same need and purpose as is presently being served by the occupation of the house in dispute. This is nothing but the fact of suitability of the residence. If it is shown that the tenant has shifted with bag and baggage to the newly allotted premises and he does not require the premises in question any more for the purpose of his residence or the residence of his family members then in a given case, depending upon the facts of the case, irrespective of the fact whether the alternate accommodation is within the local area or not, recourse could be taken to the provisions of Section 13(1)(1) of the Rent Act. However, ultimately question will have be decided having regard to the acts and circumstances of the particular case.”
7. In Krishnaji v. Dr. Shankar Abhyankar (supra), a Division Bench of this court observed:
“…Suitability cannot be only for one purpose. It must be suitability for his reasonable needs. In order, therefore, to decide suitability of the residence for the tenant, the Court has to consider the needs of the tenant and his family and consider whether or not the other accommodation that has been acquired by the tenant is suitable for his needs.”
This decision was set aside by the Supreme Court in Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat (1969) 72 Bom L.R. 179 on the ground that the High Court had no jurisdiction to exercise power under Article 227 of the Constitution in the matter, as the case was dismissed as revision application under Section 115 of the Code of Civil Procedure by another Judge of this Court. The Supreme Court, however, did not decide in that case what exactly was the meaning of the word “suitable”.
8. In Prabhakar v. B.S. Khotare 1719 (75) Bombay L.R.240, Vaidya J. has held that whether a particular alternative accommodation is suitable must necessarily depend partly on the facts of each case and partly on the legal test of the suitability viz. reasonable needs of the tenant and his family. The mere comparison of the area and feasibility of accommodation by itself may not be sufficient to decide whether a particular accommodation is suitable or not. The alternative accommodation cannot be said to be unsuitable merely because it is inferior to the existing accommodation. Although the matter must not be decided merely on grounds of convenience, comfort, desirability or attractiveness of the existing dwelling house compared with that of the alternative accommodation, the Court should consider the merits of each dwelling house.
9. In Achut Pandurang Kulkarni v. Sadashiv Ganesh Phulambrikar 1972 (75) Bom.L.R. 21, Vaidya J. while interpreting Section 13(1)(k) held that if it is established by the tenant that he was forced to stay at the place of his transfer, but had a real intention to return, coupled with some formal, outward and visible sign of occupation indicative of his ultimate desire of home coming, then also the case is not covered by Section 13(1)(k) of the Act.
10. It is necessary to bear in mind that the Legislature in enacting Section 13(1)(1) of the Act did not say that as soon as the tenant gets some residence equal or larger in area than the former residence under the landlord, the tenant should be evicted. The emphasis of the Legislature is on the word “suitable”. Therefore, in every case it will have to be seen, having regard to the facts and circumstances of the case, whether the tenant can be said to have acquired or allotted suitable alternative accommodation. In our opinion, the accommodation suitable for the tenant’s residence would ordinarily mean that if a person is required to reside in a particular place in connection with his allocation or profession or business, the alternative accommodation must be suitable for his residence there and not at the place which is located far away. For instance, if tenant in Mumbai acquires premises say in Nagpur or Wardha, it will not ipso facto amount to acquisition of alternative suitable accommodation. If it is further demonstrated that the tenant has shifted to his alternative accommodation with his family then and in that case provisions of Section 13(1)(1) of the Act will be certainly attracted. However, ultimately, the question will have to be decided having regard to the facts and circumstances of each case.
11. We are not inclined to agree with the view expressed by Rebello J. in Rajendraprasad’s case. It seems that the learned Judge was of the opinion that even if the tenant has constructed house in Pune or Delhi, he would be construed to have acquired suitable residential premises under Section 13(1)(1) on the basis that such acquisition shows that he had the capacity to construct the house elsewhere. In our view the capacity of a tenant to acquire suitable premises is not a relevant consideration for considering eviction under Section 13(1)(1) while it may be relevant for considering the hardship under Section 13(2) of the Bombay Rent Act while decreeing his claim on the ground of reasonable requirement under Section 13(1)(g) of the said Act. We are in respectful agreement with the view expressed by C.S.Dharmadhikari J. that ordinarily acquisition or allotment of residential premises outside the local area will not automatically forfeit the protection given by the Rent Act. It will ultimately depend upon the facts and circumstances of a particular case and if the court comes to the conclusion that acquisition of such premises is suitable for residence of a tenant decree can be passed under Section 13(1)(1) of the Rent Act. The reference is answered accordingly. Registry is directed to place the matter before the learned single Judge for deciding the petition in accordance with law.