How to ascertain limitation if there is breach of undertaking by landlord to give accommodation to tenant?

 So far as question of limitation is concerned, according to Mr. Rege, the undertaking or statement of the Advocate for the landlord was recorded by Justice Patankar on 20.2.1996 and the contempt petition is filed by the tenant on 2.8.1999. Therefore, according to Mr. Rege, even if it is accepted that the tenant was informed by Municipal Council about completion of building, the contempt petition is barred by limitation under Section 20. This argument has to be rejected because in the undertaking given by the landlord to Justice Patankar no time limit is fixed by him for giving accommodation to the tenant in newly constructed building. Therefore, till the premises are given to the tenant in the newly constructed building, there is continuing contempt on the part of the landlord. Possession was not given to the tenant in the newly constructed building till filing of the complaint, and therefore, period of limitation would not start as alleged by Mr. Rege and at any rate the period of limitation would be running against the landlord on every day including first of August, 1999 i.e. the day preceding filing of the contempt petition. Thereafter the contempt petition came for admission before Justice H. L. Gokhale on 19.8.1999 and on 11.2.2000 I passed the impugned order putting the tenant in possession. That order dated 11.2.2000 is passed within one year of filing of the contempt petition.

IN THE HIGH COURT OF BOMBAY

Contempt Petition No. 339 of 1999 with Civil Application No. 1731 of 2000

Decided On: 12.10.2000

Shriniwas R. Shelar  Vs. Girish Kanhaiyalal Oswal

Hon'ble Judges/Coram:

D.G. Deshpande

Citation: 2001(2) BOM CR 12

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Whether eviction decree can be passed against tenant if he acquires alternative residence in different town?

 It is necessary to bear in mind that the Legislature in enacting Section 13(1)(1) of the Act did not say that as soon as the tenant gets some residence equal or larger in area than the former residence under the landlord, the tenant should be evicted. The emphasis of the Legislature is on the word "suitable". Therefore, in every case it will have to be seen, having regard to the facts and circumstances of the case, whether the tenant can be said to have acquired or allotted suitable alternative accommodation. In our opinion, the accommodation suitable for the tenant's residence would ordinarily mean that if a person is required to reside in a particular place in connection with his allocation or profession or business, the alternative accommodation must be suitable for his residence there and not at the place which is located far away. For instance, if tenant in Mumbai acquires premises say in Nagpur or Wardha, it will not ipso facto amount to acquisition of alternative suitable accommodation. If it is further demonstrated that the tenant has shifted to his alternative accommodation with his family then and in that case provisions of Section 13(1)(1) of the Act will be certainly attracted. However, ultimately, the question will have to be decided having regard to the facts and circumstances of each case.

11. We are not inclined to agree with the view expressed by Rebello J. in Rajendraprasad's case. It seems that the learned Judge was of the opinion that even if the tenant has constructed house in Pune or Delhi, he would be construed to have acquired suitable residential premises under Section 13(1)(1) on the basis that such acquisition shows that he had the capacity to construct the house elsewhere. In our view the capacity of a tenant to acquire suitable premises is not a relevant consideration for considering eviction under Section 13(1)(1) while it may be relevant for considering the hardship under Section 13(2) of the Bombay Rent Act while decreeing his claim on the ground of reasonable requirement under Section 13(1)(g) of the said Act. We are in respectful agreement with the view expressed by C.S.Dharmadhikari J. that ordinarily acquisition or allotment of residential premises outside the local area will not automatically forfeit the protection given by the Rent Act. It will ultimately depend upon the facts and circumstances of a particular case and if the court comes to the conclusion that acquisition of such premises is suitable for residence of a tenant decree can be passed under Section 13(1)(1) of the Rent Act.
IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5305 of 1989

Decided On: 16.07.2004

J. Marathe Vs. P.V. Kaloke

Hon'ble Judges/Coram:
A.P. Shah, Actg. C.J. and S.U. Kamdar, J.
Citation:  2004 (4) ALL MR 468

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Whether tenant can be evicted from tenanted premises if she is residing alongwith her daughter?

The Appellate Court has presumed that the petitioner is the owner of the subject plot/building, which finding is palpably an error apparent on the face of the record. Inasmuch as, neither in the pleading nor in the evidence, the respondent plaintiff has made out such a case, but the only plea taken is that petitioner's daughters have constructed the bungalows where she was residing. Thus all the circumstances, culled out by the Appellate Court to justify its finding that the petitioner was the owner of the plot/building obviously travels beyond the case set up by the respondent himself. Once this finding is discarded then the entire edifice of the judgment of the Appellate Court will fall to the ground. Assuming that the respondent has succeeded in establishing that the petitioner was staying with her daughters at Kolhapur Road that by itself will not be sufficient to return a positive answer on the issue of-ground under Section 13(1)(1). The decision of the Apex Court referred to above in Anandibai Jadhav's case (supra) precisely deals with this aspect. Understood thus, the conclusion reached by the Appellate Court cannot be sustained in law.

7. Moreover, in view of the mandate of the provisions of Benami Transactions (Prohibition) Act, 1988, which prohibits benami transaction and makes it an offence, it was not open to the Appellate Court to ignore the presumption arising from the 7/12 extract produced by the petitioner which was of a later point of time and more particularly in absence of any other positive evidence adduced by the respondent in rebuttal to show to the contrary. Thus, the basic approach adopted by the Appellate Court in decreeing the suit against the petitioner on the ground that the petitioner has acquired suitable residence is wholly inappropriate and cannot be sustained in law.

Accordingly, the only ground with which we are concerned is whether the petitioner has acquired suitable residence. However, this ground cannot be established on the basis of the ration card and the voters list produced on record which at best would indicate that the petitioner was staying elsewhere. That is not sufficient but something more than that is required to established that the tenant has acquired other premises to reside in his own rights. Having regard to this legal position it is not possible to sustain the conclusion reached by the Appellate Court that the petitioner has acquired suitable residence under Section 13(1)(1) of the Act.

IN THE HIGH COURT OF BOMBAY

W.P. No. 3489 of 1989

Decided On: 04.07.2001

Decided On: 20.07.2001

 Dulanbi Mirasaheb Belgaonkar Vs. Annappa Kurka Devadiga

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2002(1) MHLJ 507

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Whether eviction decree can be refused to landlord to accommodate developing family of tenant?

 Once it is proved that the tenant has built, acquired vacant possession or being allotted a suitable residence, in my view, merely because the newly acquired premises is not sufficient to accommodate him and his dependents cannot be the reason to deprive the landlord to take possession as proved under the Bombay Rent Act. (Anandi D. Jadhav (Dead) by Legal representative v. Nirmala Ramchandra Kore and Ors.) MANU/SC/0245/2000 : [2000]2SCR963 . On this, such situation is not contemplated under the Rent Act to give exact meaning of the words "suitable residence". We have to consider the scheme and object of the Rent Act which are in the interest of both. We cannot overlook the basic facet including aim and object of the Rent Act, that it is intended to provide the shelter to a person/tenant who have no premises to reside because of the shortage of accommodation. But having once acquired a suitable residence of comparatively of equal size, equally situated location, equally with all facilities in the same town. To accommodate tenant's large and developing family cannot be the reason to make the said provisions illusory, for the landlord, depriving of his right to take back the possession once tenant has acquired the suitable residential accommodation. This cannot be the ground to deprive the landlord to take a possession of the property as he is not under obligation to accommodate the developing family of tenant. There is no question of considering theory of comparative hardship in such cases. The landlord will never get possession of the premises in view of developing/growing family of the tenant under this section. There is no dispute that tenant has total control and domain over the property which is newly acquired, which he can reasonably and alternatively use if as the substituted place. (B.R. Mehata v. Atma Devi and Ors.) MANU/SC/0740/1987 : [1987]3SCR1184 .

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 221 of 2007 with C.A. No. 2607 of 2008

Decided On: 03.12.2008

Suresh @ Suryakant Ramchandra Chonkar and Ors.Vs. Bhikaji Bhagwat Redkar and Ors.

Hon'ble Judges/Coram:

Anoop V. Mohta, J.

Citation:2009(2) MHLJ 917,2009(2) ALLMR690

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How to ascertain suitability of alternative accommodation in case of rented premises?

For the purpose of passing of a decree under Section 13(1)(1) of the Bombay Rent Act, it is necessary for a landlord to prove that the tenant has built or. acquired suitable residential premises other than the suit premises. The emphasis is on the word "suitable" indicating that the alternative premises alleged to have been acquired by the tenant must be suitable for the ordinary needs of the tenant. Ordinarily, if the alternative premises are acquired in the vicinity or at a place not far away from the suit premises, it may be presumed that the alternative premises are suitable. It would then have to be demonstrated by the tenant that the alternative premises are not suitable for his ordinary needs. But where the alternative premises are alleged to have been acquired by the tenant are situated in a different town or city, it would be necessary for the landlord to further prove the suitability of the premises to the tenant. When the alternate premises are in the vicinity of the rented premises, the burden of proving that the premises are not suitable would ordinarily be on the tenant to show how the premises are not suitable. But where the alternate premises are situated in a different town or city, then it would be for the landlord to prove the suitability of the alternate premises. of course, it would not be necessary for the landlord to discharge that burden beyond reason of doubt but the ordinary rule in civil cases of "proof by preponderance of probabilities" would apply. Surrounding circumstances would be required to be taken into consideration by the Court for considering suitability of the premises. The fact that the tenant has shifted to an alternative accommodation with his family, the fact that the tenant is not ordinarily using the rented premises and is not living there would be relevant for considering the suitability of the alternate premises. By the very nature of the things, all the factors which are relevant for considering the suitability of the premises cannot be enumerated nor would be wise to attempt to do so. Suffice it to say that Court as an ordinary man of prudence would take into consideration all the relevant surrounding circumstances.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3259 of 1998

Decided On: 16.07.2010

 Saroja Parmeshwaran Vs. Padmakar Sitaram Bole and Ors.

Hon'ble Judges/Coram:
D.G. Karnik, J.

Citation: 2011(6) MHLJ570

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What is basic concept of suitable accommodation in rent Act?

It is necessary to bear in mind that the Legislature in enacting Section 13(1)(1) of the Act did not say that as soon as the tenant gets some residence equal or larger in area than the former residence under the landlord, the tenant should be evicted. The emphasis of the Legislature is on the word "suitable". Therefore, in every case it will have to be seen, having regard to the facts and circumstances of the case, whether the tenant can be said to have acquired or allotted suitable alternative accommodation. In our opinion, the accommodation suitable for the tenant's residence would ordinarily mean that if a person is required to reside in a particular place in connection with his allocation or profession or business, the alternative accommodation must be suitable for his residence there and not at the place which is located far away. For instance, if tenant in Mumbai acquires premises say in Nagpur or Wardha, it will not ipso facto amount to acquisition of alternative suitable accommodation. If it is further demonstrated that the tenant has shifted to his alternative accommodation with his family then and in that case provisions of Section 13(1)(1) of the Act will be certainly attracted. However, ultimately, the question will have to be decided having regard to the facts and circumstances of each case.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5305 of 1989

Decided On: 16.07.2004

J. Marathe Vs.P.V. Kaloke

Hon'ble Judges/Coram:

A.P. Shah, Actg. C.J. and S.U. Kamdar, J.

Citation: 2004(4) MHLJ287

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