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Judgment
B.P. Dharmadhikari, J.—Heard Shri Deshpande, learned Counsel for the petitioner and Shri Mardikar, learned Counsel for the respondents.
By this petition, the petitioner landlord has challenged the reversing judgment delivered by the Additional Collector, Amravati, in Appeal No. 9/71(2)/9596 dated 06.02.1997. The Rent Controller had given the petitioner permission to terminate the tenancy of the respondent - tenant under Clauses 13(3)(ii), (v) and (vi) of C.P. & Berar Letting of Premises and Rent Control Order, 1949, (hereinafter referred to as Rent Control Order). The permission under clause (iv), (viii) and (ix) was rejected. The respondent - tenant filed above mentioned appeal under Clause 21 of Rent Control Order and the appellate authority has allowed his appeal and set aside permission granted under clauses (ii), (v) and (vi). Thereafter this writ petition came to be filed. Today while arguing the matter finally, claim for permission under clause 13(3)(ii) i.e. habitual defaulter has been give up. The arguments have been advanced only on clause (v) which deals with acquisition of alternate accommodation by tenant and clause (vi) which deals with bonafide need of the landlord.
The learned Counsel for the petitioner has contended that the appellate authority has given undue importance to trivial things and has unnecessarily interfered with the findings of facts reached by the Rent Controller. The construction of a huge bungalow by tenant in Prabhat Colony within Municipal limits of Amravati town has been accepted and proved on record. This by itself is sufficient to show acquisition of alternate accommodation by the tenant. The fact that original tenant Shiocharan did not shift to that bungalow is not decisive and determinative in this situation. The contention is Shiocharan expired during the pendency of this litigation and along with widow of Shiocharan, his only son by name Anil has become joint tenant of suit premises. As Anil admittedly owns and consists of four members and at the relevant time, both son and daughter were taking education and needed separate rooms. On first floor, there were only three rooms. According to Shri Deshpande, all these facts by itself establish the bonafides and the need of the landlord. He has relied upon the judgment in the case of Murlimanohar Bhangde since deceased by his LRs. Smt. Pushpa Bhangde and Others Vs. Prabha Bhattacharya (Dr.), .
Shri Mardikar, learned Counsel appearing on behalf of the respondents has stated that the present respondents are legal heirs of original tenant. He contends that plea was acquisition of alternate accommodation by tenant and it has not been proved. Similarly, house property of landlord at Rajapeth within the Municipal limits has been suppressed and tenant has proved that one Mohan Singh Thakur therein was allowed to continue by increasing his rent. The learned Counsel contends that had landlord disclosed these premises at Rajapeth, the complexion of the matter could have been otherwise and the respondents - tenant in that event could have also cross examined the petitioner in that respect. According to the learned Counsel, the findings of appellate authority are based upon the evidence and hence no interference therein is warranted.
Shri Deshpande, learned Counsel for the petitioner in reply has pointed out that premises at Rajapeth in the occupation of Mohan Singh Thakur were undoubtedly on ground floor, but the same consists only of three rooms and were not sufficient to house the family of the petitioner. He has urged that the petitioner is in possession of first floor and hence rooms in possession of the respondents - tenant on the ground floor are more suitable and proper. He has further pointed out that premises let out to Mohan Singh Thakur has been vacated by him and the petitioner has constructed a shop block there. The petitioner and his son are earning their livelihood through that shop block.
Shri Mardikar, learned Counsel has pointed out to this Court that most of these events like vacation of premises by Thakur and utilization of those premises by landlord are not on record at all.
The case pleaded by the petitioner - landlord shows that according to him, the tenant - Shiocharan owned and possessed alternate accommodation. The finding recorded by the Rent Controller as also by the appellate authority reveals that alternate accommodation belonged to son Anil and not to Shiocharan. The appellate authority has found that a son can always acquire independent property for himself and it is not necessary for his father to shift to those premises. Here, the landlord has not placed on record anything either to urge or to demonstrate that the bungalow at Prabhat Colony has been acquired by Anil with the aid and assistance of capital provided by father - tenant or then through joint family income. No evidence has been produced to show that Anil continues to be a member of tenants family. In view of this position, when burden to show acquisition of alternate accommodation was upon the petitioner, I do not find anything perverse with the application of mind by the appellate authority.
The application as filed by the petitioner before the Rent Controller does not contain a reference to other house belonging to him and situated at Rajapeth i.e. within the Municipal limits. The law requires the petitioner to prove his bonafide need and for that to approach the Court of law with clean hands. The petitioner could have explained inadequacy or other lacunae in Rajapeth accommodation to justify his preference of ground floor in occupation of the tenant. Had there been such a case and pleading, the respondent - tenant would have then got an opportunity of cross examination and then bonafides or otherwise of the need of the landlord could have been judicially appreciated. Unfortunately, such a course of action is not possible here. The respondent - tenant has through cross examination of the petitioner placed on record only the suppression of availability of other house at Rajapeth with further fact that proceedings for eviction of Mohan Singh Thakur therefrom were actually initiated and later on compromised when Mohan Singh Thakur agreed to increase the rent. Thus, this material brought on record by the tenant is sufficient to substantiate that there is no bonafide need of the landlord. Subsequent utilization of premises vacated by Shri Mohan Singh Thakur for establishing a business again raises several questions and as this fact is not on record, the same cannot be considered here.
The reliance upon the judgment delivered by me and reported in the case of Murlimanohar v. Prabha Bhattacharya, (supra) in this situation is misconceived. There, the landlady and her sisters qualified gynecologists were seeking eviction of tenant to start maternity home and hospital. The tenant was urging that they can have their complex and in that complex, the tenant also can be accommodated. The evidence which has come on record there has been appreciated and such insistence on the part of the tenant was found to be unjustified. This Court has found that in such situation, the landlord is the best judge of his need. The judgment, therefore, has no application in present facts. The landlord can claim to be a best judge of his need after he fairly discloses all options available to him and shows some reason for choosing particular option i.e. premises. It is this election, effected by him after full knowledge and appreciation, which cannot be interfered with judicially. Here, the premises at Rajapeth were suppressed and hence it cannot be said that the landlord has judged his need bonafide in accordance with law. In this situation, I find that the petitioner - landlord can initiate fresh proceedings in accordance with law.
I am not inclined to interfere in the matter in writ jurisdiction. Writ Petition is dismissed. Rule discharged. However, in the facts and circumstances of the case, there shall be no order as to costs.