ISMAILBHAI GULAM HUSSAIN Vs. ADDITIONAL COLLECTOR

JUDGEMENT

(1.) These writ petitions are filed by landlord Ismailbhai challenging the reversing orders passed by Appellate Authority thereby refusing permission to him to terminate tenancy of respective tenants and rejecting his claim on account of bonafide need under clauses 13 (3) (vi) of C. P. and Berar Rent Control order, 1949; hereinafter referred to as Rent control Order in two cases and under clauses 13 (3) (v) and (vi) thereof in one matter. The suit premises are situated at Akola and has got house number 75. It is a four storeyed building in which there are four blocks on ground floor facing main road and godowns behind these blocks. The last block situated on right-hand side corner of the building admeasuring 8 feet x 6 feet was in occupation of one Sultan Dastgir (as tenant) who vacated the same during pendency of proceedings. The remaining three blocks are having frontage of 14 feet each on main road while their depth is 17 feet i. e. each is having area of 238 square feet. The shop block on extreme left side is occupied by tenant firozabad Bangles and a portion having further depth of 17 feet and length of about 48 feet spread behind all these four blocks is also used by said tenant as godown. Shop block adjacent to Firozabad Bangles is occupied by tenant bengal Crockery Mart while shop block between Bengal Crockery Mart and one which was with Sultan Dastgir is occupied by tenant narendra Stores. A portion admeasuring 17 feet x 48 feet situated still behind the godown of Firozabad Bangles is used by landlord for godown and repacking of his business M/s. Asghar and Co. The landlord claimed that he got the said four storeyed building in partition in 1979 and required ground floor portion in possession of tenants for various business concerns of his family. He also contended that one of the tenants has secured alternate accommodation. Three separate applications filed by him before Rent Controller, Akola were allowed by said Authority while the appellate Authority has reversed it. In writ petition number 356/2000 filed against tenant bengal Crockery Mart, the order of Rent controller is dated 30-5-1994 while the order of Appellate Authority i. e. respondent No. 1 is dated 10-12-1998. In writ Petition number 547/2000 filed against tenant Narendra Stores the order of Rent Controller is dated 27-9-1993 while the order of Appellate Authority is dated 27-10-1998. In writ petition 582/2000 filed against tenant Firozabad Bangles the order of rent Controller is dated 23-9-1993 while the order of Appellate Authority is dated 27-10-1998. In fact this order of Appellate Authority is common order passed in 3 Appeals filed by tenants Narendra Stores, Firozabad Bangles and Sultan Dastgir respectively.

(2.) According to the respective tenants/respondents before this Court, the landlord has failed to prove his need and the alleged partition is a malafide exercises undertaken only with a view to evict them. The landlord in all three writ petitions is same, need pleaded by him is almost identical, the defence of tenants is also identical and in fact impugned order in two writ petitions passed by Appellate authority is common (in two appeals). Hence, as per request made by parties, all these three writ petitions are heard together.

(3.) In all three cases landlord sought permission under clause (vii) on the ground that the premises could not be put to the use sought for without alterations and repairs. It is apparent that landlord wishes to effect these alterations and repairs to make the premises suitable and useful for business purpose of either himself or his family members. Thus, after securing eviction of tenants, alterations and repairs are desired by him. No alternations or repairs are proposed if he does not get permission to evict them. In short, it is not the case of applicant landlord that necessary repairs/alterations are to be carried out and hence, there is no question of seeking permission under clause (vii) independent of permission under clause (vi). In writ petition 356/2000 tenant concerned is Bengal Crockery mart. Landlord sought permission under clauses 13 (3) (vi) , (vii) of Rent Control Order. He contended that he got suit house in a registered partition in the 1979 and needed the tenanted premises for locating office of company by name M/s. Asghar and Co. He stated that he has married sons who stay with him as members of joint family and he along with them is doing business of selling wholesale spirit under the name and style M/s. Asghar and Co. by forming partnership. He stated that godown of said company is situated in the back portion of suit house while its office is located at Deepak Chowk, in the building of jafarbhai who wants his premises to be vacated by applicant and applicant also wants to shift office in his own building. By amendment he has mentioned that his brother Jafarbhai got the office premises vacated and the office is shifted to rented premises. In defence, tenant contended that landlord had filed earlier one case against Bengal Crockery Mart and Kailash chandra which came to be dismissed and said decision operated as bar to institution of fresh case. It was further contended that all the partners in the tenant firm were not joined as parties and therefore also proceedings were not tenable. Tenant pleaded that landlord has huge building at his disposal and how area in it was being utilised was not disclosed. It was further stated that even after alleged partition the rent was being accepted as before by five persons and therefore theory of partition was bogus and a nominal document was prepared to get rid of tenants. It was stated that the applicant/landlord could not have alone maintained the proceedings and his alleged business by name m/s. Asghar and Co. was also denied. It was further contended that since 14-9-1990 his sons residing jointly with him had started business of wholesale fireworks under the name "j. A. and Company". It was stated that certified copies of municipal assessment revealed that applicant was possessing other houses at akola. The Rent Controller found that the tenant Bengal Crockery Mart had filed fair rent case only against applicant and they also admitted that the rent was being paid to applicant against receipt. It therefore held that there was Landlord Tenant relationship between parties. It further found that the landlord by examining Shri. Harun Habeeb kediya, trustee and manager of Hasam Seth trust proved that one shop block of trust was let out to applicant. From the excise record he found that office of M/s. Asghar and Co. was at deepak Chowk. He also found that upper floors of suit houses were used for residential purpose. It further found that applicant/landlord is the best person to decide where office is to be located and need of the firm was need of landlord. It therefore granted permission under clauses 13 (3) (vi) and (vii) of Rent Control Order on 30-5-1994. In appeal filed by Bengal Crockery Mart, Appellate authority found that landlord was to charge rent from M/s. Asghar and Co. and therefore his intention was to lease out the premises on more rent. It further found that Jafarbhai was member of joint family along with applicant and in partition applicant would have retained the portion in which his office at Deepak chowk was located. It found that partition deed was devised only to oust tenant. It further found that shop having roofing tiles admeasuring 298 sq. ft. was available with landlord and he could have converted that structure for use as office. The suit house was multi-storeyed and office could have been located even on first floor and there was ample space available. It therefore allowed the appeal.