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IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
H.W. Dhabe W.M. Sambre, JJ.
Surekhabai w/o Amrut Asare .... Appellant.
Versus
Motilal s/o Prabhudayal Sharma .... Respondent.
Letters Patent Appeal No. 39 of 1985 in Writ Petition No. 841 of 1982, decided in 21-4-1987.
Advocates appeared :
W.G. Somalwar, for appellant.
S.H. Voditel, for respondent.
It is thus clear that the word "essential" used in clauses 13 (3) (vii) governs the word "repairs" and not the word "alternations", However, it would not necessarily mean that at the mere ipsi dimit of the landlord the permission can be sought under clause 13 (3) (vii) on the ground of alterations. The landlord must still make out a bona fide case of reconstruction or remodelling of the house. It is, however, clear that the test about the condition of the house for establishing necessity for its reconstruction such as the consideration that unless it is constructed it would be dangerous to live in the said house would not applicable in regard to the case of "alterations".
Considering the facts in the instant case in the light of the above under clause 13 (3) (vii) it may be seen that the landlord bas pleaded in her application that the construction of the house is very old and that it has completed its life. She has, therefore, averred that she wants to dismantle the entire structure and wants to reconstruct a new three-storeyed house consisting of one shop block and strong room 00 the ground floor and residential accommodation on the 1st an 2nd floors. In the light of the pleadings the evidence is led on behalf of the landlord who has examined her husband and the Architect who has deposed that the new construction as per plan cannot be made unless the old building is, demolished. The husband of the appellant has also deposed that/the new construction as per plan cannot be made unless the old building is demolished. The husband of the appellant has further deposed that the construction is about 100 years old. He bas produced the sanctioned map of the Corporation to prove the case of the appellant that she wants to reconstruct the suit house.
It is true that there are no cracks in the wall, that the foundation of the house is sound and that it can stand for the next 25 years. But as already pointed out the consideration whether the house is dilapidated or not is not relevant when the permission is sought on the ground of "alterations" under clause 13 (3) (vii) of the Rent Control Order.
In the instant case the claim of the appellant/landlord for remodelling and reconstructing the house after demolishing it is supported by the sanctioned map of the Corporation. Moreover, in this Court on undertaking is given by the appellant/landlord by which he has bound himself by a time schedule for reconstruction of the house. He has stated that he would construct the house within one year from the date the respondent/tenant vacates the suit house. He has also stated that he would offer the respondent/tenant an equal area in the new house. It, therefore, cannot be said that the claim made by the appellant/landlord in the instant case is not bona fide. Moreover since there is a right of reinduction to the respondent/tenant under clause 13 (7) 9 the Rent Control Order if there is any such apprehension that the suit house is likely to be sold he can claim reinduction in the suit premises. The claim of the appellant/landlord cannot thus be negatived on this ground. A perusal of the evidence of the husband of the appellant/landlord shows that the appellant/landlord has capacity to invest funds for reconstructing the house.
Held, that the appellant/landlord has made out a case for permission under clause 13 (3) (vii) of the Rent Control Order. The finding of the learned Single Judge who has taken an erroneous view of law on the question of permission sought under clause 13 (3) (vii) on the ground of "alterations" cannot be sustained. The view taken by the learned Appellate Deputy Collector that the appellant/landlord has made out a case under clause 13 (3) (vii) is correct and has to be upheld.
2. Briefly the facts are that the appellant/landlord purchased the suit house for a consideration of Rs. 35,000/- by sale-deed dated 15-6-1978. On 14-9-1978 she filed an application under Clause 13(3)(vi) and (vii) of the Rent Control Order seeking permission to give quit notice to the respondent/tenant who was occupying the whole of the suit house. The respondent/tenant resisted the said application by filing his written statement. The parties led evidence before the Rent Controller. The learned Rent Controller after considering the evidence on record dismissed the application filed by the appellant/landlord. The appellant/landlord preferred an appeal before the Appellate Deputy Collector, Nagpur who maintained the order of the Rent Controller under Clause 13(3)(vi) of the Rent Control Order. He, however, set aside the order of the Rent Controller as regards the permission sought under clause 13(3)(vii) of the Rent Control Order. He held that the appellant/landlord was entitled to permission under clause 13(3)(vii) of the Rent Control Order. Being aggrieved, the respondent/tenant preferred a writ petition in this Court which it appears was heard ex parte. The learned Single Judge of this Court set aside the order of learned Appellate Deputy Collector and, therefore, the application filed by the appellant/landlord stood dismissed wholly. Being aggrieved, the appellant/landlord has preferred the instant Letters Patent Appeal against the aforesaid judgment of the learned Single Judge of this Court.
3. The learned Counsel appearing for the respondent/tenant has raised a preliminary objection that the instant Letter Patent Appeal is not maintainable because the judgment of the learned Single Judge, according to him is in a writ petition under Article 227 of the Constitution of India, in support of the above contention he has relied upon the judgment of the Supreme Court in the case of (Umaji v. Radhikabai)1, A.I.R. 1986 S.C. 1272. In particular he has relied upon paragraph 106 of the said judgment. On reading para 106 it is clear that according to the Supreme Court where a petition is filed both under Articles 226 and 227 of the Constitution of India then if the facts justify a party in filing an application either under Articles 226 and 227 of the Constitution and if the party chooses to file an application under both these Articles, in fairness and justice to such party and in order not to deprive him of the valuable rights of appeal the Court ought to treat the application as being made under Article 226 of the Constitution and thus allow the party aggrieved a right of intra-Court appeal if provided by the Letters Patent of the said Court. It is clear from the said judgment that it is held that if a petition is exclusively under Article 227 no Letters Patent Appeal would lie under clause 15 of the Letters Patent of this Court.
4. The question, therefore, to be considered in the instant case in the light of the above judgment would be whether the petition filed by the respondent/tenant is exclusively under Article 227 of the Constitution. The title clause of the writ petition filed by the respondent/tenant shows that the petition is under Article 226 read with Article 227 of the Constitution of India for a writ of certiorari mandamus or any other appropriate writ, order or direction. It is true that as required in a petition under Article 226 the authority whose judgment is challenged is not joined as a party. However, the prayer Clause (a) in the writ petition shows that the respondent/tenant has principally claim tha
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