KUMANLAL NAGINDAS THAKKAR Vs. HARIBHAU GOVIND RAUT

JUDGEMENT

(1.) THE petitioner is owner of four galas in House No. 40/1, situated at Vasai in Thane District. Three galas were let out to Haribhau Govind and out of these, one gala was sublet by Raut in favour of one Brijilal Mahavir. The petitioner-landlord filed Suit No. 207 of 1987 in the Court at Bassein for recovery of possession on various grounds, including the ground that the premises are required reasonably and bonafide for personal occupation. The landlord claimed that he was desirous of expanding his business of dehydrated bananas, and, therefore, the suit premises were required. On April 28, 1974 decree was passed in favour of the landlord and that decree was confirmed in appeal preferred to the District Court and ultimately in the High Court in writ petition.

(2.) ON April 10, 1972 Raut handed over possession of two galas to the petitioner and Brijlal Mahavir handed over one gala on February 4, 1973. It is not in dispute that the three galas are in occupation of the petitioner from that day onwards. On October 31, 1973, the respondents filed application under Section 17(1) of the Bombay Rent Act for recovery of possession of three galas on the ground that the landlord obtained decree for possession under clause (g) of sub-section (1) of Section 13 of the Rent Act and failed to occupy the premises within a period of one month from the date of recovery of possession. Section 17(1) of the Rent Act confers power upon the Court to direct restoration of possession to the former tenant on the original terms and conditions of tenancy. The application was resisted by the petitioner inter alia, claiming that though the petitioner is in occupation of the premises, the same could not be used for the purpose of carrying on business in dehydrated bananas for good reasons. The claim made by the petitioner was accepted by the trial Court and application was dismissed by judgment dated 26th Oct., 1977. The decision of the trial Court was reversed by the Extra Assistant Judge, Thane, by judgment dated April 8, 1980 in appeal preferred by the respondents. The appellate Court held that provisions of Section 17(1) of the Rent Act are mandatory in nature and once it is established that the premises were not occupied within one month from the date of recovery of possession, then the Court is duty bound to restore possession to the former tenant. The judgment of the lower appellate Court is under challenge in this petition filed under Article 227 of the Constitution of India.

(3.) MR . Gaikwad, learned counsel appearing on behalf of the respondents, submitted, that even though the provisions of sub-section (1) of Section 17 of Rent Act are not mandatory, still the discretion in the present case need not be exercised in favour of the landlord because the landlord has failed to establish reasonable excuse for not occupying the premises. It is not possible to accede to the submission of the learned counsel. In the first instance, it is not in dispute that the landlord is in occupation of three galas from the date of recovery of possession. It is true that possession was sought by the petitioner on the ground that galas were required for carrying on business of dehydrated bananas and that business was not commenced. The reasons given by the petitioner for not carrying on that business are : (i) that due to the disease the banana plantations in Bassein and surrounding areas were required to be uprooted in the year 1972 and 1973 with the result bananas was not available for the business proposed to be undertaken, and (ii) the electric power was not available because the company was unable to supply the required power for carrying on business. The trial Judge accepted both the grounds and held that there was reasonable excuse for not commencing the business. The lower appellate Court in a casual manner observed that though the grounds were in existence, they may not be sufficient. In my judgment, the lower appellate Court was clearly in error in disturbing the finding of the trial Judge on this count. Indeed, it is not possible to conclude that merely because the landlord did not start the business which he had contemplated at the time of the filing of the suit, the provisions of sub-section (1) of Section 17 of the rent Act are attracted. The landlord is admittedly in occupation of premises from the date of recovery of possession and merely because the business intended by the landlord could not be commenced, it cannot be concluded that the landlord has not occupied the premises within a period of one month from the date of recovery of possession. In my judgment, the judgment of the lower appellate Court is clearly erroneous and is required to be reversed. Accordingly, petition succeeds and judgment dated April 9, 1980 passed by the Extra Assistant Judge, Thane, in Civil Appeal No. 14 of 1978 is set aside and that passed by the Civil Judge, J.D. Vasi on October 26, 1977 is restored.