Balwant P. Doshi vs Shantaben Dhirajlal Shah & another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2002 Supreme(Bom) 624

IN THE HIGH COURT OF BOMBAY
Khanwilkar A.M., J.
Balwant P. Doshi .... Petitioner.
Versus
Shantaben Dhirajlal Shah another.... Respondents.
Writ Petition No. 4942 of 1993, decided on 4-7-2002.
Advocates appeared :
Ms. Usha Rahi, i/b. Mayur Narendra Co., for petitioner.
M.P. Vashi, for respondent No. 1.

Headnote:Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 13(1)(g) and 15-A - Licensee of original tenant - Protection sought under the Act - Ground - That he was occupying the premises prior to 1973 - Concurrent finding of Courts below that document of licence was itself not genuine - Held - Concurrent findings cannot be disturbed in a writ under Article 227 of Constitution. - Before adverting to the rival contentions on merit, Court would think it appropriate to mention that, before the trial Court one of the issue was that the leave and licence document relied upon by the petitioner was palpably bogus document. That issue has been decided against the petitioner by both the Courts. That finding of fact cannot be re-opened in writ jurisdiction. Once that finding is undisturbed, it necessarily follows that occupation of the petitioner in the suit premises was not as a licensee or for that matter protected licensee as contended. In that case, it will not be open for the petitioner to either challenge the decree passed against the tenant or to file writ petition in the Court. Nevertheless, since the writ petition has been filed and the same has been admitted, it is being considered on merits
       Constitution of India - Article 227 - Relevance of comparative hardships - When licensee is protected - Finding of bona fide needs of landlady - Findings not extensive yet both the Courts below have similar findings - Court cannot doubt veracity of bona fides in normal course - Comparative hardship need not be considered where genuineness of licensee is doubtful - Findings of Court below cannot be interfered in petition under Article 227. - Efficacy of document has already been examined by two Courts below and they have come to the conclusion that the said document appears to be bogus and unreliable. In that sense there would be no occasion for this Court to examine the issue of comparative hardship in so far as the petitioner is concerned, who has no legal right to continue to remain in possession. In any case, the Courts below have rightly taken into account that the evidence would clearly indicate that the petitioner has kept on changing the premises in the past. Moreover, no evidence is brought on record by the petitioner to show that it is not possible to secure alternative accommodation in the same locality for that matter in any other part of the city. It is well settled that onus is on the defendant to establish that the defendant will be able to secure any alternate premises in the same locality or in any other part of the city. If this evidence is lacking, the Court will have no option but to answer the issue of comparative hardship against the defendant. This position is well settled, see Bega Begum v. Abdul Ahad Khad, AIR 1979 SC 272, standard of onus on the parties on this issue is considered by referring to several rulings in the case of L.V. Venkateshwaran, in Writ Petition 3816 of 1989 decide on 3rd May, 2002. Incidently, Court has also examined the settled legal position on the question of nature of proof on the issue of bona fide and reasonable requirement in the same decision.
       In this view of the matter, Court has no hesitation in affirming the view taken by the two Courts below that the plaintiff would suffer greater hardship in the event the decree was to be refused. While parting Court does not think it necessary to go into other aspects raised on behalf of the respondent No. 1 about the conduct of the petitioner during the pendency of this proceedings. In fact substantive application have been filed by the respondent No. 1 in that behalf, since Court has affirmed the decree passed by the two Courts below. It will not be necessary to examine those question. Mr. Vashi fairly submits that since decree for possession is being confirmed by this Court, he will not press those applications as filed, being Civil Application No. 1590 of 2001 as well as Civil Application No. 3434 of 2000. Suffice it to mention that the grievance in these applications is that the petitioner had not paid any amount to the respondent No. 1 landlady towards compensation in respect of the suit premises during the pendency of the writ petition in this Cour
       Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 13(1)(g) and 15-A - Licensee of original tenant - Protection sought under the Act - Ground - That he was occupying the premises prior to 1973 - Concurrent finding of Courts below that document of licence was itself not genuine - Held - Concurrent findings cannot be disturbed in a writ under Article 227 of Constitution. - Before adverting to the rival contentions on merit, Court would think it appropriate to mention that, before the trial Court one of the issue was that the leave and licence document relied upon by the petitioner was palpably bogus document. That issue has been decided against the petitioner by both the Courts. That finding of fact cannot be re-opened in writ jurisdiction. Once that finding is undisturbed, it necessarily follows that occupation of the petitioner in the suit premises was not as a licensee or for that matter protected licensee as contended. In that case, it will not be open for the petitioner to either challenge the decree passed against the tenant or to file writ petition in the Court. Nevertheless, since the writ petition has been filed and the same has been admitted, it is being considered on merits
       Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 13(1)(g) and 15-A - Relevance of comparative hardships - To protected licensee - Concurrent finding that landlady has bona fide requirement - Evidence showing bona fides though not very extensive, yet Court cannot doubt concurrent findings - No need to show how landlord will use the premises if need is bona fide - The findings cannot be disturbed on plea of comparative hardships - Court cannot indulge in matter if licensee itself is not genuine.

JUDGMENT - KHANWILKAR A.M., J.:---This writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the Small Causes Court at Bombay, Bandra Bench dated August 30, 1993 in Appeal No. 158 of 1991 in R.A.E. Suit No. 76/207 of 1986. Briefly stated, the respondent No. 1 is the landlady in respect of residential premises situated on the first floor of Nemi Building, 83 Nutan Laxmi Co-operative Housing Society Ltd., J.V.P.D., Mumbai 400 056. The suit building was constructed in the year 1966-67. Thereafter the respondent No. 1 inducted respondent No. 2 as a tenant on monthly basis. At the relevant time the respondent No. 1 was staying with her elder son at Sion. The premises at Sion were rented premises admeasuring 750 sq.ft. This fact has been established from the record, whereas the suit premises admeasure 1200 sq.ft. with 3 bed rooms, hall and kitchen. According to the respondent No. 1, since her requirement was growing because of the increase in the number of family members, after the marriage of her son, she required the suit premises for herself as well as for her other family members. Accordingly, suit for possession on the ground of bona fide and reasonable requirement under section 13(1)(g) of the Bombay Rent Act was filed by the respondent No. 1 in the Small Causes Court at Bombay being R.A.E. Suit No. 76/207 of 1986. This suit was originally filed against the respondent No. 2 who was the tenant. Subsequently, the petitioner got himself impleaded in the said suit contending that he was occupying the suit premises on leave and licence basis since 1971 and that the leave and licence in his favour was subsisting on 1-2-1973, therefore, he became the protected licensee by virtue of section 15-A of the Bombay Rent Act. The petitioner's application for impleadment was allowed by the trial Court. Accordingly, the suit for possession was against the tenant as well as the petitioner who claimed to be the protected licencee, for possession of the suit premises on the ground of bona fide requirement. Both the parties thereafter went for trial. The trial Court after recording the evidence, by a well considered judgment and order dated 17-7-1991 running into about 141 pages, decreed the suit in favour of the respondent No. 1. Various issues were raised before the trial Court. To my mind, it will not be necessary to go into all those aspects for the reasoning which I propose to adopt a little later. Suffice it to mention that, the trial Court accepted the plea of the respondent No. 1 landlady that the suit premises were required bona fide and reasonable for herself and her family members. The trial Court also decided the issue of comparative hardship in favour of the respondent No. 1 landlady. Being dissatisfied, the petitioner, who was impleaded as defendant No. 2, claiming to be the protected licensee, alone preferred appeal before the Appellate Bench of the Small Causes Court. That appeal has been dismissed by the Appellate Bench by order dated 30-8-1993. The Appellate Bench has also affirmed the finding of facts recorded by the trial Court. In so far as the conclusion on the issue of bona fide and reasonable requirement of the respondent No. 1 landlady is concerned, the Appellate Court has addressed to the factual matrix of the case particularly in paras 38 to 41 in the impugned judgment. The Appellate Court has held that taking overall view of the matter the respondent No. 1 had succeeded in establishing the bona fide and reasonable need in respect of the suit premises for herself and her family members. Even on the issue of comparative hardship the Appellate Court has taken the view that in fact the original tenant was not occupying the suit premises and since the leave and licence agreement relied by the petitioner was held to be suspicious document, there was no question of any hardship being caused to the tenant. The Appellate Court observed that, since the tenant was not personally occ

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2002 Supreme(Bom) 624

IN THE HIGH COURT OF BOMBAYKhanwilkar A.M., J.Balwant P. Doshi .... Petitioner.VersusShantaben Dhirajlal Shah another.... Respondents.Writ Petition No. 4942 of 1993, decided on 4-7-2002.Advocates appeared :Ms. Usha Rahi, i/b. Mayur Narendra Co., for petitioner.M.P. Vashi, for respondent No. 1.

Cases Referred (5)