Wednesday, 8 August 2018

Whether it is permissible for court to decide issue of bonafide need and comparative hardship in composite manner?

The Trial Court, in the present case has considered the issue of bona fide requirement and comparative hardship in a composite manner rather than consider the two aspects separately. The Trial Court, failed to appreciate that to begin with, it has to be determined whether the landlords have made out a case that the suit premises are required by them reasonably and bona fide. Upon record of satisfaction in this regard, the Trial Court should have then adverted to the predicates of Section 16(2) of the Rent Act, which mandate that no decree of eviction shall be passed on the grounds specified in Section 16(1)(g) of the Rent Act, if the Court is satisfied that having regard to all the circumstances of the case, including the question whether reasonable accommodation is acquired by landlord, greater hardship would be caused by passing a decree than by refusing to pass it. There is accordingly, clear failure to exercise jurisdiction under Section 16(2) of the Rent Act, by confusing and mixing of two issues of reasonable and bona fide requirement and comparative hardship into one. The entire reasoning of two Courts is that the landlords are the best judges and the final arbiters in matters of reasonable and bona fide requirement and further that since the tenant Gujar has two rooms in Namdev Cooperative Housing Society, the respondent-landlords will suffer greater hardship. The landlords are hoteliers having Hotels like Blue Star and Lucky Restaurant at Mahabaleshwar itself. The landlords and their family members are engaged in several businesses like STD Booth, sale of handicrafts etc.. One of the landlords has been the President of Municipal Council of Mahabaleshwar. The record indicates that the family members of one of the landlords have served in Municipal Council in some capacities or the other. In contrast, the tenant Gujar, who resides in suit premises No. 1, is engaged in sale of 'Panipuri' and other road side snacks. The tenant Panhalkar is engaged in sale of handicraft items through suit premises No. 2 which admeasure around 40 sq.ft. Both the tenants have deposed that despite best efforts, it is not possible for them to acquire other premises. There are several premises in the occupation of the landlords which the landlords did not even bother to disclose in the plaints. In these circumstances, even if the issue of comparative hardship was required to be decided, the same would have to be answered in favour of the tenants. In any case, by ignoring of such relevant and vital material on record, the Courts could not have answered such issue in favour of the landlords.
 This Court in case of BismilL Bee w/o. SK. Chand and Khajamiyan S/o. Sk. Chand v. anwar S.o. Mohd. Akhtar MANU/MH/1536/2009 : 2010(1) ALL MR 889, has held that the provisions of Section 16(2) of the Rent Act, cast a statutory duty upon the Court to make an enquiry to the extent of need of the landlord, even if such need is found to be reasonable and bona fide. The right of the landlord to seek eviction on one hand and the protection granted to the tenant on the ground of comparative hardship on the other hand, can be balanced by the Court by making enquiry into the extent of need of landlord and even passing a decree for partial eviction from the suit premises, to meet the ends of justice. Such an exercise is required to be carried out by the Court irrespective of the fact whether party demands it or not. If such exercise is not carried out by the Court, then certainly it would result not only in failure to jurisdiction, but also failure to perform statutory and mandatory duty, resulting in failure of justice. Further, Section 16(2) of the Rent Act mandates that the Court is to have 'regard to all circumstance of the case'. It further proceeds to state that this would include the question whether other reasonable accommodation is available for the landlord or the tenant. In this context, it is necessary, for the Court to be alive to the financial status of both the landlord as well as the tenant. The Court is also expected to be alive to the situation regards scarcity of accommodation at a particular place. In the present case, the two Courts have failed to undertake any such exercise and the impugned orders consequently are unsustainable.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 770 of 2013, 

Decided On: 04.08.2015

 Vasant Mahadeo Gujar and Ors. Vs.  Baitulla Ismail Shaikh and Ors.


Hon'ble Judges/Coram:
M.S. Sonak, J.

Citation: 2016(4) ALLMR 174.
Read full judgment here: Click here

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