JUDGMENT - Shah A.P., Actg. C.J.:-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)(l) 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 bona fide requirement, sub-letting 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 bona fide 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 a judgment of Rebello J., in (Rajendraprasad Kedarprasad Tiwari v. Shankar Vithu Kuveskar)1, 2002(3) Bom.C.R. 425 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)(l) 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 petitioners 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)(l). 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)(l) as contented 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 not 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 Sadashiv Parkhi v. Smt. Satyabhamabai Ganesh Sakrikar)2, 1980 Bom.C.R. 182 and (Krishnaji v. Dr. Shankar Abhyankar)3, 1965(67) 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

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