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IN THE HIGH COURT OF BOMBAY
J.H.BHATIA,J.
Shri Kisan Vanaji Satpute - Applicant
versus
Shri Baburao Jakhuji Wakankar - Respondents
CIVIL REVISION APPLICATION NO.564 OF 2007
Decided on: 13th December,2007.
In view of this the Courts below came to conclusion that it is impossible to believe that the potmala is used for the purpose of residence but it must have been used only for storage of Articles. Taking into consideration the evidence on record and the concurrent findings of both the Courts below, I see no reason to interfere in these findings.
Both the Courts below also gave concurrent findings that the building is very old and in his wisdom the landlord felt that it can be demolished and reconstructed. He also assured to accommodate the tenants in the building to be constructed now. Therefore, it was found that the plaintiff’s requirement for the suit property for demolition of old building and for the reconstruction of new building is reasonable and bona fide.
Maharashtra Rent Control Act, 1999 - Section 16-Eviction of tenants-Need to reconstruct premises-Landlord states that he has nearly Rs. 6 lakhs in his account and further Rs. 50 lakhs are available by bank as a loan, hence he is capable of executing project within given time-Courts below ordered eviction of defendant tenants-Challenged-Held that order of eviction is passed only if Court is satisfied that landlord had necessary funds for reconstruction of premises.-The counsel for the tenants/defendants mainly harped on the conditions in Section 16(6) of the Maharashtra Rent Control Act, which are required to be complied with by the landlord strictly. The counsel contended that as per the condition (a), no decree for eviction shall be passed unless the Court is satisfied that the necessary funds for the purpose of the erection of new building are available with the landlord.
The words "necessary funds are available" only mean that the landlord should be in a position to arrange funds for the purpose of demolition of old structure and construction of new building as per the plan within stipulated period of fifteen months. It is necessary that all the funds should be available with landlord in hard cash and he should be in a position to show that amount to the Court at the time of trial. Nowadays large projects for construction of buildings as well as industries are taken up with assurance of financial aid or assistance from the financial institutions or banks. Therefore, I find no substance in this contention of the counsel for the tenants.
Maharashtra Rent Control Act, 1999 - Section 16(6)(d)-Area in possession is 100 sq. ft. in possession of tenants earlier-Area of reconstructed premises given is 300 sq. ft.-Held that for giving excess area consent of tenant/tenants is not necessary.-The counsel for the tenants/applicants vehemently contended that in view of sub-clause (iii) of Section 16(6)(d) of the Rent Act, if in the new building there is more than carpet area specified in sub-clause (i), that is, the carpet area actually occupied by the tenants in the existing building, the landlord shall obtain consent in writing of the tenants or tenants concerned to accept the premises with larger area. According to him, in view of this provision, it is incumbent upon the landlord to offer additional carpet area to the tenants and only on their refusal to accept the larger area, the excess area may be utilised for any other permissible purpose by the landlord. According to him, the tenants expect 300 sq.ft. carpet area but that claim has not been accepted by the landlord. On the other hand Mr. Godbole, counsel for the landlord contends that the sub-clause (iii) will be applicable if the floor area of individual tenement is larger than the area of tenement in occupation of the concerned tenant in old building and this has no reference to the total carpet area of the building.
If the whole excess carpet area, which is available in the new building has to be offered to the existing tenants only, the landlord can never expect fair returns for the investment, which he makes and that can not encourage construction of new houses. Taking into consideration the purpose of the re-enactment of the Rent Control Act and the purpose in providing for ejectment of tenants from the existing old building for the purpose of demolition and for reconstruction, it must be held that while the legislature wanted to provide protection to the legal and legitimate rights of the tenants, the legislature also wanted to encourage the landlords to undertake the construction of new houses so that they may expect fair returns on the investigation and at the same time more tenements may be available to meet the growing demand. In view of this, I am unable to accept the contention of the counsel for the respondents in respect of Section 16(6)(d)(iii) of the Rent Act.
Taking into consideration all the facts and circumstances and the legal position and the undertaking given by the plaintiffs before this Court that they would give each of the tenants the carpet area admeasuring 15 sq.mtrs. in the new building, in compliance with the relevant Development Control Rules, I find that there is no substance in the revision applications and they are liable to be dismissed.
Maharashtra Rent Control Act, 1999 - Section 16(6)(b)(c) - Suit for eviction - Suit premise required for demolition and reconstruction - Conditions for to be complied with - Suit decreed - Appeals by tenants - Dismissed - Revision against - Plans prepared by Architect - Sanctioned by Municipal Council - Plan prepared with sufficient number of tenements - Providing tenement to death tenant - Conditions complied with - Revision dismissed. - Clause (b) of sub-section 6 requires the landlord to give the plans and estimates of the new building which should have been properly prepared. In the present case, according to the landlord, plan was prepared by the architect, who was examined as witness and the plan has also been sanctioned by the Pune Municipal Council.
As per Clauses (c) decree for eviction can not be passed unless the Court is satisfied that the new building or the new floor or floors to be erected by the landlord shall contain residential tenements not less than the number of existing tenements, which are sought to be demolished. In the present case there are in all eleven tenants who were occupying the premises in the old building. It appears that the plaintiffs has already settled the matter with some of the tenants and the disputes are pending only with the seven tenants. Four of them are before this Court. As per the plan prepared by the plaintiff each tenant will be provided a tenement of 120 sq. ft. As he has prepared plan for construction of tenements with carpet area of 1250 sq. ft. with sufficient number of tenement. Therefore this requirement of clause (c) is also satisfied.
1. All these four revision applications may be disposed off by the common judgment as they arise out of the judgment passed by the Courts below in the suits filed by the same landlord for eviction against the tenants on the ground that he wants to demolish the whole building and to reconstruct the same.
2. Revision applicants are the original defendants/ tenants while the respondents are the legal heirs of the original landlord Baburao Jakhuji Wakankar. The said Baburao had two sons namely, Pandharinath and Vithal. The suit premises are situated at City Survey No.1181 and they admeasure about 601.2 sq.mtrs. Property is situated at Budhwar Peth, Pune. The landlord Baburao had executed power of attorney in favour of his two sons and the suits came to be filed by him through his sons for eviction against the eleven tenants under the provisions of Section 16 of the Maharashtra Rent Control Act, 1999. It is the contention of the landlord that each of the tenants was occupying a single room admeasuring 100 sq.ft. with potmala (attic) under the slanting roof. According to the landlord, potmala was used as a store room and had a approach by the ladder. Tenants have been residing in the same premises for the last about 50 or 60 years or even more. The landlord prepared a plan to demolish the building and to reconstruct the same. Some part of the building has to be used for commercial purpose and 1250 sq.ft. construction has to be made available to accommodate the tenants. Accordingly, he prepared a plan and got it sanctioned. According to the plaintiff, he has already an amount of Rs.6 lakhs in account of the members of his family and there was an assurance by co-operative bank to provide loan of Rs.50 lakh for this project. Cost of the construction of 1250 sq.ft., where the tenants have to be accommodated after reconstruction, is about Rs.11,62,000/-. For the remaining construction, cost is estimated at Rs.33,40,000/-. Plaintiffs assured to provide accommodation of 120 sq.ft. to each of the tenants. He also gave statutory undertaking with time bound programme for demolition of the old building and construction of new one.
3. Even though the suits were tried and disposed off separately, plea of each of the tenants was almost identical. Each of the tenants admitted that he was in possession of the room having potmala (attic). However, they denied the area of suit premises being 100 sq.ft. in each case. They also denied that potmala or the attic was used only for the store room and not for the residence. They also denied that all the tenants can be accommodated in 1250 sq.ft. area and also that the expenditure for construction of new building is Rs.11,62,000/-. They also denied financial capacity of the landlord to undertake and construct the project within the stipulated period. It is contended by them that even as per the statement of the plaintiff himself, he does not have sufficient funds to undertake a project. Each of them contended that in case new premises is constructed, he should get carpet area of atleast 250 sq.ft. 4. After hearing the parties, the learned trial Court decreed the suits for eviction and the defendants were directed to deliver the possession of the suit property within three months from the date of decree and the plaintiff was directed to comply with essential terms and conditions as per the provisions of Section 16(6) of the Maharashtra Rent Control Act strictly. The tenants/defendants preferred appeals against the said judgments. The appeals also came to be dismissed. Hence, the tenants have preferred the present revision applications.
5. Heard the learned counsel at length. The learned counsel have taken me through the oral and documentary evidence and the relevant provisions of law. At the outset, it may be stated that even though each of the tenants claims that the carpet area in his occupation was more than 100 sq.ft. as pleaded by the landlord, the Courts below gave concurrent finding that
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