1998 Supreme(Bom) 664

IN THE HIGH COURT OF BOMBAY
A.P. SHAH, J.
Vasant Bandoo Kulkarni ..... Petitioner.
Versus
Yasin Ahmed Mujawar since deed by his heirs .... Respondents.
Writ Petition No. 3492 of 1982 , decided on 11-6-1998.
Advocates appeared :
Narendra V. Walawalkar, to the petitioner..
V.A. Thorat, for respondent Nos. A to E.

Headnote:Section 13(1)(i)-Constitution of India, Articles 226 and 227-Interference with in petition-If due to any reason facts finding Court fails in establishing bona fide requirement of landlord, this High Court cannot be expected to re-appreciate all evidences a fresh and take a different view, sufficient ground is required to use powers under Articles 226 and 227.

       Sections 13(1)(i), 13(1)(g) and 13(h)-Bona fide requirement-In an eviction suit if bona fide requirement is of construction of a building for personal use, even then it cannot be considered under Section 13(1)(g), the case of open land will fall only under Section 13(1)(i).-In Nana Narayan Kamble v. K. Nitanma Prasad, 1987 Mah RCJ 147, the landlord filed a suit for possession in respect of an open plot on the ground that he required the same reasonably and in good faith for the residence of the plaintiff and his family. The Trial Court held in plaintiffs favour and that led to the respondent preferring an appeal to the District Court at Pune. The Court of Appeal held that the decree for ejectment could not be sustained whether under Section B(1)(g) or Section 13(1)(hh) (wrongly mentioned as 13(1)(hhh)(i) in the report) of the Rent Act. This was because the District Court felt that since on plaintiffs own showing, he was not going to use the open plot for residence, but would be putting up a structure thereon, therefore, the operation of Section 13(1)(g) was excluded. The other clause also did not apply the plaintiff had stated that he wanted to construct a temporary shed on the plot. Section 13(1)(hh) require construction of a "building" and a temporary shed could not be described as a building. Reversing the judgment of the District Court, Daud, J., held that Section 13(1)(g) will apply not only where the landlord bona fide needs occupation of the premises as they are, but also when the need is coupled with a desire to make constructions, alterations, extentions, to the premises existing. Asfaras Section 13(1)(hh) is concerned, Daud J, felt that the word building would a include any structure, whether strong or flimsy whether of reed or mud or cement. The word "new" should not be equated to shiny or glossy material being used for the first time. The question whether Section 13(1)(i) would be attracted in the facts of the case was not even agitated before the learned Judge. The decisions of Chandurkar, J., and Sapre, J., referred to above, were also not cited before the learned Judge. In these circumstances, it is not possible to treat the decision of Daud, J., as an authority for proposition that if the landlord sues to recover possession of an open plot for constructing a building for his personal occupation, the case would fall under Section 13(1)(g) and not under Section 13(1)(i).

       In the instant case, the landlord has led evidence to show that he has prepared the plan and the same was sanctioned by the Municipality subject to certain conditions. He has led evidence to show that an estimate was prepared by Architest Mr. U. He has also produced extract of his Bank account to show that he possesses funds for the purpose of construction. Mr. W assails the judgment of the District Court and in Courts opinion with some justification, that the landlords claim under Section 13(1)(h) cannot be rejected merely on the ground that the plan was not ready on the date of filing of the suit. In Chandrakant Bhalchandra Malvadkar and another v. Hiralal Mulchand Shah, 1984 Bom CR 480, Justice Chandurkar, J., observed that making of a building plan before the suit is filed, claiming relief under Section 13(1)(i) of the Bombay Rent Act, may be indicative of bona fides of the landlord. Mere absence of a plan at the date of a suit would not necessarily mean that bona fides of the landlord were wanting. Sc. also the absence of sufficient actual balance in Bank by itself cannot straightaway lead to an inference of want of bona fides. The learned Judge observed that where bona fides of the claim that a house is to be constructed are to be tested, the proper course would be to see whether the landlord is able to satisfy the Court that he has earlier the necessary funds at his disposal, or he can raise the necessary funds needed for the construction. Thus the mere fact that at the date of the suit he does not possession a sufficient Bank balance cannot be

       used against him and his claim under Section 13(1)(i) of Bombay Rent Act cannot be rejected on that ground. Same applies to making estimates and other preparations for construction. Thus no set criteria or tests can be laid down for ascertaining the bona fides Of the landlords claim under Section 13(1)(i) of the Bombay Rent Act. The bona fides of such a claim have to be decided on the facts and circumstances of each case.

       The case of the petitioner that he wanted to construct a building in the bricks, sand and mud and let out the same to third parties was also not found favour with the Appellate Court. Ordinarily, the fact that plan was not prepared on the date of the suit would not militate against the bona fides of the landlord but while looking into the claim under Section 13(1)(g) it is necessary to take into consideration the evidence led by the parties. If a fact finding Court, on appreciation of such evidence comes to a conclusion that the landlord has failed to establish that his requirement is bona fide and reasonable, this Court cannot be expected to re-appreciate the evidence and take a different view. At any rate, in Courts view, no ground is made out for exercise of jurisdiction by this Court under Article 227 of the Constitution of India.

       Sections 13(1)(i) and 13(2)Proof for bona fide requirement-Where bona fides of claim for construction of a house are concerned, Court has to see that necessary funds are available with him or not for such construction, mere fact that his bank balance is not sufficient, his claim cannot be rejected, such matters are to be decided on case to case basis.

       Section 13(1)(i)-Requirement of landlord-Bona fide and reasonable-Sanction of authorities for construction and financial capacityo does not require to prove bona fides-Landlord failed to establish this requirement-Relied on Apex Court AIR 1990 SC 1355.- That the expression "reasonably" and "bona fide" requirement more than mere financial capacity and the sanction of the authorities was not appreciated by the High Court. These two expressions are present in Clause (h) also, but that clause deals with a different situation and it cannot, therefore, be read into Clause (1) but the expressions in both the provisions must be understood with reference to the evidence adduced by the landlord as to the reasonableness and the bona fide character of his requirement. While Clause (h) refers to a landlords requirement of occupation of an existing building, clause (1) refers to a vacant land required by the landlord for construction of new building. His reasonable and bona fide requirements must be established by the landlord, irrespective and independent of any sanction which he may have obtained from the local authority. That the landlord has obtained the necessary sanction of the local authority and that he is financially capable of constructing a building will not by themselves mean that his requirements are reasonable and bona fide. Although his financial capacity may be one of the elements which may be taken into account, that by itself, in Courts view, would not be sufficient to establish the reasonableness and the bona fide character of his requirements.

       Landlord has failed to establish that his requirement is bona fide and reasonable, this Court cannot be expected to re-appreciate the evidence and take a different view. At any rate, in Courts view, no ground is made out for exercise of jurisdiction by this Court under Article 227 of the Constitution of India.

       Sections 13(1)(i), 13(1)(g) and 13(2)-Eviction from open piece of land-Even if the purchaser constructs a structure on the basis on bona fide requirement, the case will be covered under Section 13(1)(i) as its lease was performed as open land at the time of signing of lease deed. The suit land which was leased to the petitioner is admittedly an open land.

       No structure constructed by the landlord was leased to the respondent as tenant. Whether on the open land leased there was any structure belonging to the tenant is irrelevant while deciding the question whether the suit falls under Section 13(1)(i).

       When the landlord asks for possession of the premises for his own use and occupation despite the fact that he has to demolish the existing building and erect a new one, the case will be governed by Section 13(1)(g). In such a case, the obligation to provide accommodation to the tenants who have been thus dispossessed does not arise. If the landlord pleads that the open and is required for election of a new building and says nothing more, the Court is not required to launch on an inquiry as to whether the landlord is going to use the building newly erected for his own use occupation or for letting out to the tenants. A suit for possession of an open land for the construction of a building will be governed by the provisions contained in Section 13(i), despite the fact that the building so erected will be occupied personally by the landlord and despite the fact that there is a similarly of expressions relating to the requirement of the landlord in the two clauses viz., Clause (g) and Clause (i) of Section 13(1) of the Bombay Rent Act.