JUDGMENT
M.F. Saldanha, J.
1. An interesting angle touching the interpretation of section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter for the sake of brevity referred to as “the Rent Act”) has been canvassed by learned Counsel representing the parties in this petition and it is a facet that does require some degree of elucidation. In a proceeding where a landlord seeks the exercise of his right of re-entry by evicting the tenant on the ground that the premises are reasonably and bona fide required for his own use and where it is demonstrated that the landlord is in occupation of other premises in respect of which there is no threat or compulsion requiring him to vacate therefrom, whether this aspect can be canvassed as a ground to negative the enforcement of the right conferred under section 13(1)(g) of the Rent Act. In other words, quite apart from the aspects of balance of convenience, relative hardship, etc., which the landlord is able to satisfy, whether a tenant would be justified in resisting the landlord’s claim on the solitary ground that the aspect of pressure on the landlord is either non-existent or is relatively minimal. The facts of this case require to be briefly set out first.
2. The petitioner, since deceased and now represented by his heirs, is in occupation of a house bearing City Survey No. 3413 in East Mangalwar Peth, Solapur. There is no dispute about the fact that the respondents are the owners thereof and that the petitioner through his firm was doing hardware business in the said premises and that they were the monthly tenants thereof. The respondents-landlords instituted a suit, being Regular Civil Suit No. 28 of 1973, for possession on the ground that the premises were reasonably and bona fide required by him for his own use. The landlord’s basic plea before the trial Court was that they were previously carrying on business in the property bearing Municipal No. 778, situated in West Mangalwar Peth, Solapur, and that while implementing Town Planning Scheme No. 5, the said premises were acquired by the Solapur Municipal Corporation in the year 1971 and that, consequently, the business was required to be shifted to the premises belonging to one Degaonkar. It is of some relevance to point out that the shop premises in question, where the business was being run, was situated on the main road in a busy locality called “Madhala Maruti Chowk”. According to the landlords, a request was conveyed to the petitioner-tenant that the premises were required back by them, that initially the tenant promised to vacate, but did not do so and, therefore, after service of the requisite notice, etc., the present suit was instituted. The trial Court, after hearing the parties, by judgment and order dated 30-1-1979, dismissed the plaintiff’s suit for possession.
3. The plaintiff-landlord thereafter preferred Civil Appeal No. 147 of 1979 and the learned Third Extra Assistant Judge, Solapur, by his judgment and order dated 30-9-1980, allowed the appeal and directed the defendant to vacate and handover possession of the premises on or before 31st January, 1981. It is against this judgment that the present petition has been preferred. Rule and stay came to be issued by this Court on 30-1-1981 and the case has been pending since then. In the meanwhile, as indicated by me, the original defendant-petitioner passed away and his five heirs, who have been brought on record, have prosecuted the present proceeding.
4. Shri Rane, learned Counsel appearing on behalf of the petitioner-defendant, has assailed the decision of the Appeal Court essentially on a point of law. He has contended that the Appeal Court has, while construing the legal ingredients of section 13(1)(g) of the Rent Act, unfortunately bypassed one important ingredient of the law which requires that it is not merely on the basis of inclination or desire of a landlord to shift back to his own premises which he may be able to justify on the basis of a certain set of facts as being both reasonable and bona fide that the right of re-entry can be uphld. Towards this end, Shri Rane cited a decision of the Supreme Court in the case of M.M. Quasim v. Manohar Lal, . The Supreme Court had in that case, while considering the landlord’s right of re-entry and its scope, observed as follows:
“….The time honoured notion that the right of re-entry is unfettered and that the owner landlord is the sole Judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re-enter. One such ground is of personal requirement of landlord. When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject the aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison d’etre of the Rent Act. Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlord’s claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court. It would, however, be a bald statement unsupported by the Rent Act to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant. This approach would put a premium on the landlord’s greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate. To curb this very tendency the Rent Act was enacted and, therefore, it becomes the duty of the Court administering the Rent Act to bear in mind the object and intendment of the legislature in enacting the same. The Court must understand and appreciate the relationship between legal rules and one of necessities of life-shelter-and the way in which one part of the society exacts tribute from another for permission to inhabit a portion of the globe”.
It would be appropriate, on this occasion, to rely on a passage from “the Sociology of Law”, edited by Pat Carlen, wherein the learned Author has observed :
“The prevailing paradigms of neo-classical economice and empiricist political theory have determined the conceptual insularity of law and legal institutions, with the result that they and other social events appear as random existences independent of their historical formation. The force of any theory of law must of course lie in its explanatory power, and this in turn depends on the wider image of social relations which produces it.”
On the basis of these principles enunciated by the Supreme Court, Shri Rane culled out the proposition that the courts are required to be guided not only by technical requirements of reasonableness and bona fides, but by the other balancing factors which, according to Shri Rane, must be an overriding consideration, namely, the question as to whether the landlord is virtually exercising his right because he wants to or whether there is some pressure or compulsion on him in this regard. What is basically contended by learned Counsel is that the courts while enforcing the provisions of the Rent Act have taken cognizance of the fact that it is basically protective in nature vis-a-vis the tenant and that, consequently, it would be improper for a Court to lose sight of this facet which does create a bias in favour of the tenant in occupation. In other words, to summarize the arguments canvassed by learned Counsel, the approach of the Court is required to be that for assessing the reasonableness and bona fides, particularly the aspect of bona fides, the third ingredient that is now canvassed, namely, the fact that the landlord is under some degree of pressure of compulsion, must also be present.
5. In support of this contention, Shri Rane has drawn my attention to the facts of the present case. He states that the material before the Court indicates that as far as the present petitioners are concerned, who are the tenants, that they are doing hardware business and that they are there for a long period of time and, admittedly, have not committed any breach of the terms of tenancy. Shri Rane emphasised the fact that the area in question is essentially what may be termed as the hardware market and that the trade in which his clients are involved is a more or less specialised activity because they are not general merchants and that, consequently, the situation or location of their business is of paramount consequence because, as is the tendency in most places, persons who desire to purchase or trade in those commodities make their way to the area where such shops are located and if for any reason the petitioners are required to shift from that place that it would be disastrous to the conduct of their business. Shri Rane contends that this is not the case as far as the respondents are concerned because they are doing general business of grocery and household items and that, consequently, such shops could be located virtually anywhere and do not really have to be confined to certain areas.
6. Starting with this premise, Shri Rane submits that the facts of the present case are to some extent unusual because, admittedly, the respondents did lose the shop which was occupied by them on the main road near “Madhala Maruti Chowk”. This became inevitable because the road was to be widened and the premises came to be demolished. There is no dispute that the respondents at that stage asked for restoration of their own premises, but Shri Rane contends that since this was not possible that the respondents, admittedly, found alternate premises where they are doing business, which is located hardly about 100 yards away from the old premises. Shri Rane submits that the record indicates that one Kayyad was the tenant in respect of this shop which is located in a lane off the main road and that the respondents secured the said premises where their shop has been running since the year 1971. Those premises, in fact, belong to one Degaonkar, who is the landlord thereof. The defendant before the trial Court was specifically asked and it was brought on record that there are no eviction proceedings pending against them either from the heirs of the said Kayyad, who is deceased, or from the actual landlord Degaonkar. The defendants did try to indicate from some documents that they had been asked to restore possession, but the learned trial Judge has held that the letter in question does not inspire much confindence and the position remains that, admittedly, there is virtually nothing on record by way of either a notice to quite or eviction proceedings pending against the respondents in respect of the premises occupied by them. Shri Rane has placed heavy reliance on this aspect of the matter because it is his contention that the suit was filed only in the year 1973 by which time the defendants had already been in occupation of the shop premises for about two years and even in the plaint, there is no case made out that they were under an imminent threat or, for that matter, in a position of losing possession of those premises. On the basic of this material, it is submitted by Shri Rane that in sum and substance, all that has happened is that even if admittedly the respondents have lost the place where they were originally doing business prior to 1971 because of the acquisition, that they have got alternate accommodation for their business in the immediate vicinity and that it would, therefore, be impossible for them to contend in law that their requirement was genuine. If this be the position, Shri Rane submits that the aspect of reasonableness and bona fides, as held by the Appeal Court, would virtually vanish and that this is principally because there is no material on record to demonstrate that the aspect of pressure or compulsion is in existence.
7. Another limb of the argument canvassed by Shri Rane is that the learned Appellate Judge has, while assessing the aspect of reasonableness and bona fides, upheld the grievance of the defendants that after they were required to vacate from the original place of business on the main road of “Madhala Maruti Chowk” that out of desperation and in order to avoid totally closing down the business they have accepted the next best option of shifting their shop into a lane. Shri Rane argued that it makes virtually no difference to a grocery business if, in the aforesaid circumstances, it has shifted by less than 1/2 km. within the same locality because the customers would always still come back to the same shop and, more importantly, because the business has been running quite smoothly in the same area. He stated that the defendants were asked categorically as to on what basis they claim that their business activity has been prejudiced, that they did not produce their books of account and that only some old assessment orders had been produced from which it would be impossible for the Court to find out as to whether, in fact, the turnover has gone down slightly/appreciably or whether, on the other hand, it might have even risen. Shri Rane, therefore, contended that the evidence under this head was inconclusive which was why the learned trial Judge refused to pass a decree and the Appeal Court is wrong in having come to the conclusion that merely because the landlord preferred to be in his own premises rather than in rented premises that he was justified in asking for re-entry. It was contended that if cogent evidence had been made available under this head, perhaps, the finding of the Appeal Court could have been upheld that the source of livelihood of the defendants, namely, their grocery shop had undergone a detrimental change as a result of having to shift into the lane and that, consequently, the aspect of reasonableness and bona fides or, for that matter, the pressure or compulsion to shift back to a more prominent area on the main road was justified.
8. Shri Patil, learned Counsel appearing on behalf of the respondents, has pointed out to me that the acquisition is undisputed and in these circumstances the fact that in order to survive during the interim period until the litigation was over – if the defendants had secured whatever alternate premises were available for their business that this factor cannot, under any circumstances, be used against them. It is his submission that, in the first instance, the Court will have to look at the position of the parties as on the date when the defendants asked for the restoration of their premises because that would be the crucial aspect of the matter. He contends that any transitory or interim arrangement made by his client, howsoever good or bad, wheresoever it is situated, cannot in any way weaken his right of restoration of their own premises. Though there is considerable substance in this argument, on the facts of this case, I do not completely agree with the proposition canvassed by learned Counsel because the case law with regard to this aspect of the matter is quite clear that a Court cannot shut its eyes to subsequent developments. Even if what Shri Patil pointed out was correct but if his client had secured better or more suitable accommodation, then this argument would certainly not avail him.
9. In the present instance, Shri Patil demonstrates that the location of Degaonkar’s premises is not only off the main road but that it is located in a small lane, the access to which is from another small lane off the main road. It is virtually in a lane that is parallel to the main road, to get to which one is required to travel some distance down into a lane and then turn off. Admittedly, as pointed out by learned Counsel, there can be no comparison between a business that can be run in these premises and the business that can be run in the disputed premises. I have verified from learned Counsel in the course of the hearing on the basis of a sketch diagram that was shown to me from which it is abundantly clear that both the earlier acquired premises and the present ones in dispute, which the defendants seek to recover, are located on the main road and that, therefore, there can be no dispute about the fact that they are far better situated from the point of view of the business aspect. I do concede, as rightly pointed out by Shri Rane, that it would have been far more useful if specific records, such as books of account, etc., were to be produced, but even in the absence of those documents, in my considered view, the Court can and must take judicial notice of the factors that have been referred to by me.
10. With regard to the first aspect of the matter that was canvassed by Shri Rane, Shri Patil submits that it has come on record that at the time of the acquisition of the premises earlier occupied by his client, which they were losing possession of, that they had asked the defendants to return their shop. He submits that the record also indicates that the requisite notice was sent and that the present plaintiff did not vacate the premises. Shri Patil submits that his clients were faced with the difficulty of waiting until the conclusion of the litigation before the Court which, they were fully aware of, would take several years and were, therefore, forced to get hold of some other rented premises to keep their business from completely collapsing. He contends that even if the record indicates that there are no imminent threats to his clients from the heirs of the deceased Kayyad or from Degaonkar, who is the landlord, that the real aspect of pressure and complusion that has to be read into the matter stems from the very unsuitable location of the premises and the fall that such consequent shifting results to the premises to the business of his clients. It is his submission that it would be wrong for the Court to only require that the owners of those premises are exerting pressure on his clients, but a better and proper assessment of the picture would be for the Court itself to determine as to whether in the situation in which his clients are placed, they themselves, as of necessity, genuinely require to go back to their own premises where they can efficiently and prosperously conduct their business. He disputes the position, therefore, that there is no pressure or compulsion on his clients and maintains that this is far from the truth.
11. Shri Patil has also advanced certain other contentions, which I shall briefly deal with as they are relevant. He draws my attention to a judgment of this Court in the case of Mangharam Chuharmal v. B.C. Patel, , wherein Bhasme, J. (as he then was), while interpreting section 13(1)(g) of the Rent Act, had occasion to observe that a Court must, while assessing the aspect of the landlord’s requirement, construe the terms “reasonably and bona fide” together and not separately. In other words, these expressions must be construed disjunctively. There is little dispute with regard to the correctness of this proposition. Shri Patil, however, submits that it would not be permissible to read into the section any other facets or concepts as this is all that the legislature has provided for.
12. Shri Patil had thereafter submitted that it is well-crystallised law that the power of interference of this Court while exercising jurisdiction under Article 227 of the Constitution, particularly in proceedings under the Rent Act, are limited, restrictive and ought to be sparingly used. He relied on two decisions, the first of them in the case of P.D. Desai v. C.M. Patel, , wherein the Supreme Court has expounded this view, and secondly, on another decision of the Supreme Court in the case of Chandavarkar S.R. Rao v. Ashalata S. Guram, (1986) 4 S.C.C. 417 : 1986(3) Bom.C.R. 304, wherein again the Supreme Court has, after considering several of the earlier decisions, reiterated the proposition that the powers of the High Court under Article 227 of the Constitution are restrictive and circumscribed and that under no circumstances is such a proceeding to be treated as being on part with an appeal. Shri Patil, therefore, contends that the appreciation of the evidence aspect has ended at the Appeal Court and that unless it can be demonstrated that the Appeal Court judgment is manifestly wrong or perverse or that the law has been misapplied or ignored that it is not open to reappraise the material before the Court and once again argue that another view is possible.
13. Coming to the first aspect of the matter, undoubtedly, there is considerable substance in the points canvassed by Shri Rane that some genuine personal need requires to be demonstrated on the part of the landlord for purposes of exercise of the right of re-entry. This, to my mind, would basically come under the aspect of bona fides, but it could also be an additional requirement in so far as the aspect of bona fides may strictly and technically be confined in cases, to an examination of whether the need itself that has been pleaded is, in fact, true or otherwise. On the aspect of reasonableness also a Court would, normally, assess the question as to whether the need that has been pleaded passes this test, but both these aspects may in a given case exclude the aspect of expediency. Under these circumstances, the proposition canvassed that the Court will also have to consider the pressure or compulsion aspect is, to my mind, very correct. Applying this test to the facts of the present case, the question that would arise is as to whether in the absence of any evidence to the effect that the original plaintiff-landlord is facing a threat of eviction from the premises presently occupied by him he could still sustain his plea of re-entry requires to be examined. I have already indicated that on the peculiar facts of the present case, the landlord having accepted a spot that is certainly not conductive to his business to carry on, on a stop-gap basis or to put it more bluntly at a spot that is less suitable to his business, to keep himself going; it can never be argued that there is no pressure or compulsion on him to get back into stride at a spot located in the main business area, particularly when the premises belonged to him. The learned Appellate Judge has put it rather bluntly when he has stated that the appellant was certainly entitled to ask for his own premises back rather than continue indefinitely in some one else’s rented premises. This does not really state the situation as correctly as it actually is because, to my mind, the need of the plaintiffs will have to be in the light of the situaiton in which he was placed in the year 1971 when he lost possession of his shop in a main business area and, therefore, desired to continue in his own premises located in an equally good business area. This right of re-entry of the landlord, under these circumstances, cannot be made subservient to the protection which the Rent Act grants to the tenant. As has been observed by Bhasme, J., in the case reported supra, the Court will have to construe, in a given case, the right of a landlord also, where the facts so justify.
14. Even if the test that has been canvassed by learned Counsel for the petitioners is applied, to my mind, the decision of the Appeal Court is liable to be upheld. It needs to be further observed here that the judgment and order of the Court of Appeal, which I have gone through carefully, cannot be categorised as having totally ignored any of the material evidence, nor can it be said that the verdict was arrived at without there being sufficient material on record for reaching that conclusion. I do not also find any serious misapplication of the law in this case. It is in these circumstances that the order of the Appeal Court will have to be confirmed.
15. Having regard to this position, the writ petition fails and stands dismissed. The rule is accordingly discharged. The interim orders to stand vacated. The certified copy, if applied for on an urgent basis, to be furnished expeditiously.
16. While deciding the appeal, the learned Appellate Judge did take cognizance of the fact that these are business premises and, therefore, the position of both the parties involved is a matter which the Court has to consider seriously. The same is the position as of to-day and it would, therefore, be essential for this Court to grant reasonable time for the original defendant to make alternative arrangements. It is a known fact that neither business nor residential premises of a suitable type can be secured overnight and, under these circumstances, even though the petitioners have failed, they would be entitled to have sufficient time before the order of the Appeal Court takes effect. Under these circumstances, it is directed that the decree in question is not to be executed until 31st December, 1993. This, however, is subject to any orders that the parties may obtain from the Supreme Court in the meanwhile.