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PETITIONER: DATTATRAYA LAXMAN KAMBLE

       Vs.

RESPONDENT: ABDUL RASUL MOULALI KOTKUNDE & ANR.

DATE OF JUDGMENT:       28/04/1999

BENCH: S.Saghir Ahmad, K.T.Thomas

JUDGMENT:

THOMAS,J.

     Leave granted.

     This  litigation,  even by now a quarter of a  century old,  shows  fortune fluctuations as between a landlord  and his  tenant.  The latest gainer is the tenant when the  High Court of Bombay saved him from the peril of eviction.  It is now  the  turn of the landlord and hence he  challenged  the judgment  by  filing this appeal by special leave.   In  the year  1975,  appellant-landlord spread his net so wide  with multi-spoked  grounds, as to catch the tenant by an order of eviction on the expectation that at least one of the grounds would click and the tenant could be evicted from a shop room situated  at  Solapur  (Maharashtra).  But the  trial  court found  none  of the grounds in his favour  and  consequently non-suited him.  However, the appellate court, after testing all  the grounds employed by the landlord, found all of them but  one, unsubstantiated.  The one on which appellate court favoured  the  landlord was the ground envisaged in  Section 13(1)(g)  of the Bombay Rents, Hotel and Lodging House Rates Control  Act,  1947 (for short the Act).  Resultantly  the appellate  court granted a decree for eviction with a  rider that  the  tenant need vacate the premises only within  four months.    The  appellate  court   passed  the  judgment  on 30.8.1982.

     The  tenant  very  soon filed a writ petition  in  the Bombay  High Court under Article 227 of the Constitution  in challenge  of the decree for eviction and got it stayed.  It took 15 long years for the High Court to dispose of the writ petition  as  per the impugned judgment.  A single judge  of the High Court interfered with the finding on facts and held that  the landlord has failed to prove the bona fides of his claim  for  requirement of the building to start a  business therein.   Learned  Single Judge observed that the  landlord has  not  proved  that  he has the know-how  to  do  such  a business.

     Learned  counsel for the appellant contended that  the High Court adopted an erroneous view that a man can think of starting  a  new business only if he has experience in  that business  field.   Alternatively learned  counsel  contended that  the  High  Court has over-stepped  its  jurisdictional contours  under Article 227 of the Constitution in upsetting a finding on fact entered by the fact finding court.

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     The  relevant  provision, under which a  landlord  can seek  decree  for  eviction  of   his  tenant  for  his  own occupation  of the building, is Section 13(1)(g) of the Act. It   reads   thus:    13.    When  Landlord   may   recover possession.(1)  Notwithstanding  anything contained in  this Act  but subject to the provisions of sections 15 and 15A, a landlord  shall  be  entitled to recover possession  of  any premises if the Court is satisfied-

     (g)  that  the premises are reasonably and  bona  fide required by the landlord for occupation by himself or by any person  for whose benefit the premises are held or where the landlord  is  a trustee of public charitable trust that  the premises are required for occupation for the purposes of the trust.

     Sections  15  and 15A are not applicable in this  case and hence we are not bothered about their implications.  The grounds  mentioned in clause (g) is couched in a language to provide  emphasis  to the genuineness of the requirement  of the  landlord  by using the words reasonably and bona  fide required  by the landlord.  In fact both terms  (reasonably and  bona  fide)  are  complimentary to each  other  in  the context, for, any unreasonable requirement is not bona fide. Vice-versa  can also be spelt that if the requirement has to be  bona  fide it must necessarily be reasonable also.   But when  the  legislature employed the two terms  together  the message  to  be  gathered is that the  requirement  must  be really  genuine from any reasonable standard.  All the same, genuineness  of the requirement is not to be tested on a par with  dire  need of a landlord because the latter is a  much greater need.

     When  a  landlord says that he needs the building  for his  own  occupation there is no doubt he has to  prove  it. But  there is no warrant for presuming that his need is  not bona  fide.   The statute enjoins that the court  should  be satisfied  of his requirement.  So the court would look into the broad aspects and if the court feels any doubt about the bona  fides  of  the requirement it is for the  landlord  to clear such doubts.  Even in a case where the tenant does not contest  or dispute the claim of the landlord the court  has to  look  into  the claim  independently  albeit  landlords burden  gets  lessened by such non-dispute.  In  appropriate cases it is open to the court to presume that the landlords requirement  is  bona fide and put the contesting tenant  to the burden to show how the requirement is not bona fide.

     In  this  case appellate court found  that  landlords requirement to occupy the building is to start a business in electric  goods.   The  fact that landlord is  a  holder  of diploma  in  Electrical Engineering was counted as a  factor lending  assurance that he would be genuinely  contemplating such  a  business  idea.  Regarding the  contention  of  the respondent  tenant that landlord has not acquired  practical experience  in the business of electric goods the  appellate court  has  observed that it is not necessary in every  case that  the landlord should establish previous experience  for starting  a  new  business.   But  the  High  Court  took  a different  view.   This is what the learned single judge  of the High Court has said in the impugned judgment:  In order to  establish  that  he is in a position to start  the  said business,  it  was  necessary  for  the  landlord  to  place

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material  on  record  to  show  that  he  has  the  know-how necessary for starting business of sale of electrical goods. For considering, whether the landlord has necessary know-how to  start the business of selling electrical goods only, the fact  that he holds a diploma in electrical engineering,  in my  opinion, would not be sufficient.  It was necessary  for the  landlord  to place material on record which would  show that  either  he  has  experience of the  business  that  he proposes  to start or that even though he has no  experience of  the business he has knowledge of the business sufficient to start the business of his own.

     Learned  single judge opted to interfere with the fact finding  only  on  the premise that in his opinion  if  the landlord  is  really in a position to commence the  business one  of  the ingredients that has to be established  by  the landlord  is  that he possesses the know-how  necessary  for doing the business.

     If  a person wants to start new business of his own it may  be  to his own advantage if he acquires  experience  in that  line.  But to say that any venture of a person in  the business  field  without acquiring past experience  reflects lack  of  his  bona fides is a  fallacious  and  unpragmatic approach.   Many a business have flourished in this  country by  leaps  and  bounds which were started by novice  in  the field;   and many other business ventures have gone  haywire despite  vast  experience to the credit of the  propounders. The  opinion of the learned single judge that acquisition of sufficient know-how is a pre-condition for even proposing to start  any  business, if gains approval as a proposition  of law,  is  likely to shatter the initiative of young  talents and  deter  new  entrepreneurs from entering  any  field  of business  or commercial activity.  Experience can be  earned even  while the business is in progress.  It is too pedantic a norm to be formulated that no experience no venture.

     That  apart,  appellant is not a total novice  in  the field  of  dealings in electrical equipment.  The fact  that the discipline in his academic specialization was Electrical Engineering  is quite indicative of some knowledge he has in the  subject, though a business in such commodities may have different  phases.   Learned  single  judge  seems  to  have written  him  off  as a person totally unfamiliar  with  any transaction  in  electrical goods.  Such an angle is  not  a charitable view towards the landlord.  At any rate there may be  differing  views for different people on how to start  a business.  The High Court has committed jurisdictional error in  upsetting  a fact finding merely on the individual  view held by the learned judge about a business venture.  We have no  doubt that reversal of the appellate court order on  the above  ground is unsupportable in law and hence is liable to be interfered with.  We do so.

     But  there  is one point which  the  respondent-tenant urged  in  the  High Court and which  learned  single  judge avoided  discussing  on the premise that dislodgment of  the appellant in the suit on one ground is enough.  This is what the High Court said about it:  In the present petition, the landlord has filed a civil application to point out that the tenant  has  some  other  premises where he  can  shift  his business.   There  is  a  rejoinder  filed  by  the  tenant, disputing  that statement of the landlord and it is  pointed out  that it is the landlord himself who has other  premises available  to  him for starting his business.  That fact  is

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also  disputed  by  the  landlord  by  filing  a  rejoinder. However,  since  I  have held that the  landlord  failed  to establish  one of the necessary ingredients for establishing that  he  needs  the  suit premises bona fide  for  his  own business,  it is not necessary for me to consider the  Civil Application filed by the landlord.

     Now  that point needs consideration by the High  Court as  we  have  upset  the finding in  the  impugned  judgment regarding  the first point.  Hence the writ petition has  to go back to the High Court for disposal afresh.  We therefore allow  this  appeal and set aside the impugned judgment  and remit the writ petition to the High Court for disposal after deciding the remaining point referred to above.