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IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
A.A. Desai, J.
M/s. Arco Roadways Private Limited.... Petitioner.
Versus
Smt. Gawarajabai w/o Gangabisan Sikchi.... Respondent.
Writ Petition Nos. 974, 978, 990 993 of 1988 W.P. No. 804 of 1989, decided on 17-3-1992.
Advocates appeared :
J.N. Chandurkar, for the petitioner, in W.P. Nos. 974, 978, 990 993 of 1988.
S.G. Aney, for the respondent, in W.P. Nos. 974, 978, 990 993 of 1988.
P.Y. Deshpande, for the petitioners, in W.P. No. 804 of 1989.
A.M. Gordey, for the respondent, in W.P. No. 804 of 1989.
Clause 13 (3) (vi) and Clause-13 (8)-Scope.
No doubt, the requirement of landlord or landlady must be a need based and reasonable such need cannot strictly be assessed with a mathematical calculation. However, sub-clause (8) of Clause 13 of the Rent Control Order, 1949 directs the Rent Controller to hold enquiry into the claim presented by the landlord under Clause 13 (3) (vi). The Rent Controller, after having satisfied, may grant permission to terminate the tenancy as regards the entire premises or a part thereof.
Clause 13 (8), therefore, casts an obligation on the applicant, landlord to disclose the extent of need In the application. The extent of need a such could not be a matter of inference from the material brought on record subsequent to the presentation of application. Drawing of an inference from the material subsequently brought is totally impermissble.
Even if the rule of pleading is not made strictly applicable, the mandate of Clause 13 (3) (vi), makes it obligatory to specify the premises presently available. Premises or accommodation in possession of the person concerned and the extent of additional need.
The enquiry as envisaged under Clause 13 (8) is to probe into the reasonableness of need, as claimed. How to manage particular business is an exclusive domain of the landlord or landlady. The extent of need could not be a matter left to speculation. As such, the submission of Shri Aney that the extent of need could be inferred from the nature of business and the material placed on record is wholly erroneous.
The material comes on record subsequent to presentation of the application during the course of an enquiry whereas Clause 13 (8) issues a mandate to the Rent Controller to hold enquiry into the claim specified in the application by landlord or landlady.
In view of this discussion, the applications as presented by the respondents landladies are factually crippled and legally infirm since they do not satisfy the essential requirements. The Rent Control Authorities completely omitted from consideration this pertinent aspect. Hence, the satisfaction recorded by the Rent Control Authorities in granting permission under Clause 13 (3) (vi) of the Rent Control Order, 1949 is wholly in illegal exercise of jurisdiction. The same cannot be sustained.
It is explicit from the explanation that it must be a particular act or omission, which is capable to cause nuisance as explained. The respondents landladies have examined one Suresh and Amritlal. They have merely deposed that because of the parking, loading and unloading, there has been a trouble to the people of neighbourhood. The explanation as reproduced, does not contemplate a case either of trouble or inconvenience. The explanation envisages that the act or omission tend to be either dangerous to life or injurious to health or property of the people in neighbourhood.
Undisputedly, as revealed from the order of the Rent Controller, the locality where the tenanted godowns are situated, is predominantly for the commercial activity. The Rent Controller has specifically referred that there are about 8-10 godowns in the locality and about 4-5 godowns are on the road side: Besides this, it is mentioned that there are cinema halls, Bank, maternity homes marriage celebration halls, etc.
It is thus clear that besides five godowns in question, there are certain other godowns in the same locality. Undisputedly, these godowns are let out to carry out the business of transporting goods. Parking of trucks and carrying out loading and unloading is a normal activity of business of transportation. This by itself could not be an act of nuisance.
The respondents-landladies could not point out either in their pleadings or in their evidence any particular act on the part of the petitioner-tenants, besides their normal function which constitutes a nuisance as envisaged by the explanation to Clause 13 (3) (ix) of the Rent Control Order, 1949.
The loading and unloading of goods and parking of trucks in a locality which is predominantly meant for commercial activity, could not constitute a nuisance so as to resort to sub-clause (ix) of Clause 13 (3) of the Rent Control Order, 1949. The Permission granted in this behalf, cannot, therefore, be sustained.
Clause 13 (3) (vi) & (ix)-Constitution of India, Article 227.
Rent Control Authorities, Discharge statutory duty subject to superintending jurisdiction of High Court for ascertaining whether such Tribunal functions in conformity and within parameters of relevant laws.
2. The respondents are members of Sikchi family. The family in 1950 constructed five godowns in a locality known as `Mofussil Compound', Ward No. 43, Amravati. It appears that ownership of the godowns has individually been transferred to the respondents. Accordingly, respondent Gawarajabai owns godown bearing Municipal No. 147(B) admeasuring 42' x 37' and godown bearing Municipal No. 288(G) admeasuring 50' x 30'. Respondent Sarlabai owns godown bearing Municipal No. 140(B) admeasuring 50' x 20'. Respondent Sulochanabai owns godown bearing Municipal No. 140(C) admeasuring 54' x 20'. In early 1970, these respondents let out the godowns to petitioners for carrying business of transportation, by creating separate leases for each godown.
3. Sometime in October-December, 1982, the respondents-landladies with other members of the family entered into partnership styled as `M/s. Rajesh Auto' dealing in two wheelers and television sets, `M/s. Anurag Enterprise' and `M/s. Abhishek Enterprise' - both dealing in distribution and exhibition of cinema films. Each firm has a separate registration and business.
4. In May 1983, the respondents filed five separate applications under Clause 13(3)(vi) and (ix) of C.P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as `the Rent Control Order, 1949') seeking permission to terminate the tenancy of the petitioners. Though independently pleaded, their common case is that they are the prominent partners of their respective firms and they require the tenanted godowns for carrying on business of the firms. Moreover, parking of trucks and loading and unloading of goods by the petitioners-tenants create nuisance to them and also to the persons in the neighbourhood.
The petitioners-tenants resisted the claim of bona fide need. According to them, Sikchi family has several premises and open plots in the city of Amravati. The formation of the firms is with a mala fide intention to evict the petitioners. They have also denied the allegations of nuisance.
The Rent Controller granted permission to terminate the tenancy, as sought. In appeal, the same has been maintained. Hence, these petitions at the instance of the tenants styled as under Articles 226 and 227 of the Constitution.
5. Shri Aney and Shri Gordey, the learned Counsel appearing for the respondents-landladies, tried to urge that the petitions under Article 226 of the Constitution are not maintainable. The High Court cannot issue a writ of Certiorari and also cannot act as an appellate Authority. In support, they relied on certain Authorities. The submission as made is wholly misconceived.
The Authorities under the Rent Control Order are charged with a statutory duty. Their function is quasi-judicial. High Court, by Article 227 of the Constitution, is invested with a superintending jurisdiction to be exercised so as to ascertain as to whether such Tribunal functions in conformity and within the parameters of the relevant law. The orders impugned are amenable to Article 227 of the Constitution. The facts, grounds and relief as involved, however, do not justify invoking of Article 226 of the Constitution. These petitions are being entertained under Article 227 of the Constitution.
6. Shri Chandurkar and Deshpande, the learned Counsel appearing for the petitioners-tenants, assailed the impugned orders. According to them, the applications as presented by the respondents-landladies do not satisfy the requirement of sub-clause (vi) of Clause 13(3) of the Rent Control Order, 1949. The need as put forth by each landlady, according to the learned Counsel, is not for individual. The claim is in a capacity of partner and for the
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