The main legal point established in the judgment is that the provisions of section 13(1)(i) and 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 are mutually exclusive, and the requirement of proving comparative hardship arises only in cases falling under section 13(1)(g). The court also emphasized the intention of the legislature to encourage new constructions on open plots of land, and therefore, the requirement of proving comparative hardship does not arise in cases falling under section 13(1)(i).

JUDGMENT - KANADE V.M., J.: - By order dated 26-4-2001, the learned Single Judge of this Court felt that there was a conflict of decisions between the two learned Single Judges regarding the interpretation of the provisions of section 13(1)(i) and 13(1)(g) read with section 13(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (For short "Bombay Rent Act"). Therefore, the learned Single Judge by order dated 26-4-2001 directed that the matter be placed before the learned Chief Justice for placing the matter before the appropriate Division Bench to resolve the conflict in the two decisions of the learned Single Judges of this Court. Accordingly, the matter has been placed before the Division Bench. The other connected matters are also placed along with Writ Petition No. 1751 of 2001. Since the issue involved in both these petitions is identical, all these matters are decided by a common judgment.

2. The controversy which falls for consideration before this Court is as to which clause of section 13(1) of the Bombay Rent Act is attracted in a case where the premises is an open land and eviction is sought for the construction of the building which is for the occupation of the landlords themselves or otherwise. In one judgment in the case of (Abdul Raheman @ Iqbal Faijukhan Pathan since deceased through L.RS. Smt. Saguma and others v. Kamalaben Mohanlal Shah)1, reported in 1999(3) Bom.C.R. 183 the learned Single Judge (T.K. Chandrashekhara Das, J.) held that since the landlords needed the premises for their own occupation after completion of the construction of the new building, the case would fall under section 31(1)(g) and not under section 13(1)(i). It was further held in the said case that once the case fell under the provisions of section 13(1)(g), it was the duty of the trial Court to have framed an issue under section 13(2) to examine the comparative hardship of the landlord and the tenant.

3. On the contrary, in other judgments of this Court viz. in the case of (Badriprasad K. Agarwal others v. Premier Garage others)2, reported in 1980 Bom.C.R. 12, the learned Single Judge (R.A. Jahagirdar, J.) held that in a case where landlord was seeking possession of the premises of the open land for erection of new building, the case would fall under section 13(1)(i) irrespective of the fact whether the landlord wants to personally occupy the said building or not. Similar view was taken by the another learned Single Judge (A.P. Shah, J.) of this Court in the case of (Vasant Bandoo Kulkarni v. Yasin Ahmed Mujawar since deceased by L.Rs. Sharif Yasin and others)3, reported in 1998(4) Bom.C.R. 455 wherein the learned Single Judge took a view that a suit for possession of an open land let out to the tenants claiming eviction for construction of the building would be governed by the provisions contained in section 13(1)(i) of the Act.

4. Petitioners in all these cases are tenants of an open land and the respondents are landlords in whose favour a decree for possession has been passed by the trial Court and confirmed by the Appellate Court and the respondents-landlords want the open premises for construction of new building.

5. We have heard the learned Counsel appearing on behalf of the petitioners and respondent at length in all the above writ petitions.

6. The learned Counsel Shri Kanuga and Shri Page appearing on behalf of the petitioners submitted that the trial Court to have framed an issue for considering the question of comparative hardship of the petitioners and the respondents. It is submitted that, in the present case, since the requirement of the plaintiff is personal requirement, the provisions of section 13(1)(g) would be attracted and, therefore, question of hardship ought to have been considered by both the courts. It is submitted that the ratio of the judgment in the case of (Ramniklal Pitambaradas Mehta v. Indradaman Amratlal Sheth)4, reported in A.I.R. 1964 S.C. 1677 is squarely applicable to the facts o

Click Here to Read the rest of this document