Vishwanath vs Additional Collector and Others

Z.A. Haq, J.—None appeared for the petitioners on 01-04-2015. As the writ petition is of 1998, the learned Advocates for the respondents were heard for sometime and the matter was kept on 06-04-2015, as part-heard. Today again none appeared for the petitioners. Heard Shri J.J. Chandurkar, the learned Advocate for the respondent No. 2 and Shri D.B. Patel, the learned Assistant Government Pleader for the respondent No. 1.

The respondent No. 2-landlord filed an application before the House Rent Controller under Clause 13(3)(vi) of the C.P. and Berar Letting of Premises and Rent Control Order, 1949 (hereinafter referred to as the "Rent Control Order, 1949"), seeking permission to terminate the tenancy of the original petitioner-tenant. The House Rent Controller, by the order dated 16-01-1998, rejected the application filed by the respondent No. 2. The respondent No. 2 had filed appeal challenging the above mentioned order which came to be allowed by the learned Additional Collector and the respondent No. 2 was granted permission under Clause 13(3)(vi) of the Rent Control Order, 1949 to terminate the tenancy of the original petitioner. The petitioner being aggrieved by the order passed by the Additional Collector has filed this writ petition.

After the respondent No. 2 was granted permission to terminate the tenancy of the original petitioner, the respondent No. 2 terminated the tenancy of the original petitioner and as the original petitioner had not vacated the suit shop, the respondent No. 2 had filed the civil suit in which a decree has been passed, however the trial Court has directed that the execution of the decree for possession shall be after the decision of the present writ petition.

During the pendency of this writ petition, the original petitioner died and the present petitioners are brought on the record as his legal heirs.

The petitioners brought on the record of this writ petition, subsequent events i.e. construction of a hospital by the son and daughter-in-law of the respondent No. 2 and according to the petitioners, the bonafide need as pleaded in the application before the House Rent Controller did not survive. The respondent No. 2 mentioned that inspite of the construction of the hospital, the bonafide need as pleaded, continued and the suit shop was required for the bonafide use of the son and daughter-in-law of the respondent No. 2.

Considering the submissions made on behalf of the respective parties, this Court passed an order on 04-10-2010 directing the House Rent Controller to grant an opportunity to the parties to lead additional evidence and to record findings considering the additional evidence and send the findings along with the additional affidavit to this Court. Accordingly the House Rent Controller recorded additional evidence, gave his findings and has sent the papers to this Court.

However, the petitioners contended that they were not granted opportunity to lead evidence. This Court, by the order dated 10-07-2014, again directed the House Rent Controller to give opportunity to the parties to lead evidence and to cross-examine the other side and to send the report incorporating his findings, to this Court. The learned House Rent Controller has accordingly recorded the evidence on behalf of the respective parties and has sent his report to this Court. The learned House Rent Controller found that the respondent No. 2/landlord has failed to prove the continuance of the bonafide need as pleaded by him. The respondent No. 2 has challenged the findings recorded by the House Rent Controller by amending the return.

The issue which arises for consideration is as to whether the objection as raised by the respondent No. 2 in the return can be entertained. Shri J.J. Chandurkar, the learned Advocate for the respondent No. 2 has relied on the judgment given in the case of Vithaldas and others Vs. Mansukhlal, (1980) MhLj 612 . The above referred judgment lays down that the respondent can support the impugned order by raising appropriate challenges in the return, to the findings recorded by the subordinate authorities against the respondent. However, in the present case, the respondent No. 2 in effect is challenging the order passed by the House Rent Controller concluding that the bonafide need of the respondent No. 2 does not survive. It cannot be said that the respondent No. 2 is challenging the findings recorded by the House Rent Controller. Faced with this situation, the learned Advocate for the respondent No. 2 has submitted that the challenges as made in the return may be considered as challenges raised by way of counter-petition and the respondent No. 2 be permitted to pay the Court fee. In view of the facts on the record that the findings of the House Rent Controller are recorded pursuant to the orders passed by this Court on 04-10-2010 and 10-07-2014, in my view, the request made on behalf of the respondent No. 2 can be granted. The challenges raised by the respondent No. 2 in the return to the findings recorded by the House Rent Controller can be treated as challenges raised by way of counter-petition. The respondent No. 2 shall pay the required Court fee within four weeks.

The House Rent Controller, in the impugned report, has recorded that the bonafide need as pleaded by the respondent No. 2 does not survive. The conclusions of the House Rent Controller are not based on appreciation of the material on the record and it can be said that the conclusions of the House Rent Controller are proper.

The respondent No. 2 has examined himself and has stated that his son and daughter-in-law are practising as doctors and inspite of the availability of the premises vacated by Shri Ashok Sarani, the son and daughter-in-law of the respondent No. 2 required the suit shop. The respondent No. 2 has stated that his son and daughter-in-law are practising independently and their patients are also not common and the daughter-in-law requires the separate room to examine the female patients. Dr. Girish Bhagwandas Boob, the son of the respondent No. 2 is also examined and he has also reiterated the need as pleaded by the respondent No. 2. Dr. Girish Bhagwandas Boob has further stated that he requires additional room for panchkarma treatment. The respondent No. 2 has examined two more witnesses, Shri Sahebrao Marotirao Chinche and Shri Chandrashekhar Punjaji Atalkar, who have stated that the son and daughter-in-law of the respondent No. 2 are examining patients in the room available with them adjacent to the suit shop and that they have noticed that several patients have been waiting and the space available with the doctors was not sufficient. The most important admission which has come on the record is in the cross-examination of the petitioner No. 1(b) (son of the original tenant) to the effect that the son and daughter-in-law of the respondent No. 2 are examining the patients in the room adjacent to the suit shop and that all the patients including female patients and children are examined in the same room.

The learned House Rent Controller has overlooked the relevant evidence on the record and has submitted the cryptic report stating that the respondent No. 2 has three rooms in his possession and therefore, he does not require the suit shop.

The report of the House Rent Controller cannot be accepted overlooking the evidence on the record.

Shri J.J. Chandurkar, the learned Advocate for the respondent No. 2 has submitted that the respondent No. 2 has brought sufficient evidence on the record to prove his bonafide and has relied on the judgment given in the case of Deep Chandra Juneja Vs. Smt. Lajwanti Kathuria (Dead) through L.Rs., AIR 2008 SC 3095 : (2008) 8 JT 213 : (2008) 10 SCALE 257 : (2008) 8 SCC 497 : (2008) 11 UJ 811 : (2008) AIRSCW 5193 : (2008) 5 Supreme 136 , in which the Hon''ble Supreme Court has reiterated the established principle relying on the judgment reported in (1996) 05 Scc 353, that the landlord is the best judge of his requirement and the Courts have no concern to dictate as to how and in what manner he should live.

In view of the above, it has to be held that the respondent No. 2 has proved the requirement of the suit shop for the bonafide need as pleaded. The conclusions of the learned House Rent Controller are not only cryptic and overlooking the evidence on the record but are also not in consonance with the law laid down on the point.

The respondent No. 2 is entitled for permission to terminate the tenancy of the petitioner under Clause 13(3)(vi) of the Rent Control Order, 1949.

In view of the above, the report of the House Rent Controller dated 02-09-2014 sent pursuant to the order passed by this Court on 10-07-2014, is quashed. It is held that the respondent No. 2 is entitled for the permission to terminate the tenancy of the tenant under Section 13(03)(vi) of the Rent Control Order, 1949 as granted by the Additional Collector by the order dated 08-06-1998.

The writ petition is dismissed. In the circumstances, the parties to bear their own costs.