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TMI Blog1972 (3) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that greater hardship would be caused to the tenants if a decree for eviction is passed. The said decision of the Small Causes Court is challenged in all the above petitions; and the principal question which arises for determination in these three petitions is as to whether the Appellate, Bench was right whether the Appellate Bench was right in refusing to pass a decree in the facts and circumstances of the case on the ground that no other 'suitable' accommodation was available for the tenants in the city of Bombay. 2. In R. A. E. Suit No. 782/6191 of 1963, in which Special Civil Application No. 2185 of 1969 is filed, the allegations made by the trustees in the plaint may be briefly stated as under : That (the husband of respondent No. 1 and father of respondents Nos. 2, 3 and 4. Hansraj admittedly died during the pendency of the appeal before the Appellate Bench). The trustees claimed the suit property at 2. Chowpatty Road, Bombay, bearing C. S. No. 423 of Malabar Hill and Cumbala Hill Division. The defendant Hansraj was the monthly tenant in respect of the premises on the first floor of the main building standing on the said property. 3. By an order made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession of the suit premises from the said defendant. 5. The suit was resisted by Hansraj on the ground that the premises were not reasonably and bona fide required by the trustees for the occupation for the purpose of the trust and that greater hardship would be caused by passing a decree for possession that by refusing to pass it. The suit was tried along with other two suits from which the other two Special Civil Applications arise. On considering the oral and documentary evidence in the case the learned Judge of the Small Causes held that the trustees proved that they were the trustees entitled to sure the defendants, that the tenancy of the defendants was duly terminated by legal and valid notice, that the trustees reasonably and bona fide required the premises for their occupation for the purpose of the trust, that Section 13(2) did not apply to a suit by trustees under Section 13(1)(g), that even if it applied, greater hardship would be caused by refusing to pass the decree than by passing the decree for possession. Similar decrees on identical grounds were passed against the order tenants-defendants. 6. The defendants carried appeals against the said decision. The Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty to consider the reasons and findings of the trial Court. It believed the efforts made by Hansraj. It had also power to believe or disbelieve the defence that son-in-law of Hansraj lived with the family of Hansraj and believed the defence. It referred to the hardship to the public and to the trustees and found that the hardship to defendants is greater if they are evicted. These findings are based on appreciation of evidence and normally they cannot be challenged in this Court in a petition under Art, 227 of the Constitution of India. 10. However, the trustees must succeed on the ground that the Appellate Bench failed to consider provisions of Section 13(2); the hardship to the trustees and the effect of refusing to pass a decree in the facts and circumstances of the case, which are not uncommon in Bombay and which would practically wipe out Section 13(1)(g) so far as premises in Greater Bombay are concerned. It is common knowledge that anybody who wants rented or other premises in Bombay has to invest heavily. The trustees themselves fairly and reasonably offered to but premises on ownership basis for Rs.50,000/- in the event of the tenant proposing to buy the event of the ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would lie idle and the public at large who is to be benefited under the objects of the trust would suffer great hardships by being deprived of the Medical aid which is so essential in Bombay. Especially the poor section of the public would be a great suffer. It is in evidence that a sum of Rupees 5,45,000/- has already accumulated so far under the head of the medical relief fund and this amount would augment by Rs.65,000/- per year in future. The trustees under the permission of the City Civil Court. Bombay have invested a sum of Rs. 1,50,000/- in purchasing the suit property in the year 1953. The intention in purchasing this property was not to profiteer out of its use but is ton construct a new building suitable for the object of the trust on demolition of the suit premises after obtaining their possession. If the decree for eviction is refused, the Trustees would not be in a position to carry out the objects of the trust; because there is no other accommodation available for the purposes ............." The learned Judge further held, "..................As against this, the hardship which would be caused to the defendants would be comparatively less in that they woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these buildings are disposed of both on rental and ownership basis. The rates of ownership premises were Rs.100/- to Rs. 125/- and Rs. 70/- to Rs. 75/- per sq.ft. in the area of Malabar Hill and Santa Cruz and Vile Parle respectively. The tenancy of Mr.Hansraj has been terminated in August 1962. Had he really made any bona fide efforts to find out alternative accommodation since then, he would have in all probability succeeded in acquiring the same? His evidence shows that he had made some inquiries in 1962 about the residential premises situate in the neighborhood of Malabar Hill through some estate brokers. Admittedly no inquiries are made about the premises in other parts of Bombay. Further he has not himself seen any premises. On reading his evidence his grievance appears to be not that of any residential premises are not available but that he is not in a position to acquire them on his own income." 14. The learned Judge, then considered the income of Hansraj, the area which he was personally occupying and the number of members of his family, although the learned Judge excluded from consideration the grand-daughter of Hansraj on the ground that his son-in-law was residin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "................According to Mr.Khambatta, the requirements of Hansraj can be satisfactorily met by a flat of 1200 sq.ft. The learned trial Judge has observed that the family of Hansraj can be suitably accommodated in a flat of 1000 sq.ft. In our opinion there is no warrant for this observation. As pointed out by the learned trial Judge, the area of the premises in the occupation of Hansraj is 4730 sq.ft. Hansraj has been living in these premises with his family for a number of years. In considering what is suitable alternative accommodation for a tenant, the mode of living he is used to is a material factor..........In our view, therefore, the whole family of Hansraj must be taken into account in deciding the question of hardship. The learned trial Judge has remarked in his judgment that on his inspection of the premises, he found that the entire premises were not really needed by Hansraj. In our opinion, the learned trial Judge was wrong in allowing his judgment to be influenced by the impression which was made on him when he saw the premises. There is nothing to show whether that impression was correct or not. The question must be decided on the evidence on record. It can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court by arguing firstly that the requirement of the trustees for constructing marriage hall, clinic and hospital etc. is not requirement for residential purposes and hence, any decree that would be passed on that ground evicting the tenant would be contrary to Section 25(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 which prohibits conversion of residential purpose to non-residential purpose. The trial Court has rightly negatived this contention on the ground that the requirement, cannot be considered to be for non-residential purpose because a large portion of the construction will be used by the doctors, nurses and patients who would be residing therein although for different times and sometime temporarily and the present use of the building itself if not wholly for residential purposes. 19. Moreover, the word "residence" must be understood in the context of the Act as used in Section 6. The words "residential use" as opposed to "non-residential use" must, therefore, be used not for education, business trade or storage within the meaning of S. 5 (1). It cannot be said that the construction of a marriage hall or a charitab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mr.Chitale is that the finding of the two Courts that the trustees require the premises for the use is contrary to law as they have not recorded a clear finding that the trustees reasonably and bona fide require the premises. This submission is also not tenable because is amending Section 13(1)(g), if the Legislature intended that the requirement of the trustees should also be proved to be bona fide and reasonable they would have stated so. Instead they have merely used the words, "or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust." It is an alternative ground in respect of premises belonging to public charitable trusts added to the ground which originally stood in Clause (g) of Section 13(1), by Bombay Act 61 of 1953 to advance the cause of public charity by not allowing it to suffer for want of accommodation. The ground merely requires the trustees to establish that there is some requirement importing an element of necessity which compels them to file a suit for eviction. Such a requirement has been adequately established in the facts and circumstances of the present case. I do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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