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PETITIONER: ANANDI D.JADHAV (DEAD) BY LRS.

       Vs.

RESPONDENT: NIRMALA RAMCHANDRA KORE & ORS.

DATE OF JUDGMENT:       05/04/2000

BENCH: S.N.Hegde, S.S.M.Quadri

JUDGMENT:

     SYED SHAH MOHAMMED QUADRI,J.

     This  appeal raises an interesting question :  whether on  respondents  2  and  3, sons  of  the  first  respondent (tenant), building a house the appellants-landlords can seek eviction of the first-respondent under clause (l) of Section 13(1)  of  the Bombay Rents, Hotels and Lodging House  Rates Control  Act,  1947.  The appellants are the legal heirs  of the  landlord subsequent owner of premises consisting of one room  admeasuring 10 x 10 in City Survey No.2349,  E.Ward, District Kolhapur (referred to as the suit premises).  The suit  premises  was  let out to the first  respondent  on  a monthly  rent  of Rs.100/- by the erstwhile owner  in  1987. Respondents  2 and 3 lived with their mother till they built a  bungalow  in  R.S.No.690/B,  Sambhajinagar,  (hereinafter referred to as ’the house’).  The said owner filed the suit, out  of  which the appeal arises, under Section 13(1)(l)  of the  Bombay  Rents, Hotels and Lodging House  Rates  Control Act,  1947  (referred  to  in this judgment  as  the  Act) against  the  respondents for their eviction on  the  ground that  the  respondents  had built the house  and  thus  have alternate  suitable accommodation for their residence.  They contested  the  suit stating that the first  respondent  had been  in  occupation  of the suit premises for the  last  30 years  and that she has no concern with the house, built  by respondents  2 and 3, which is not a bungalow as alleged  by the  appellants.   It is stated that initially  the  monthly rent  of the suit premises was Rs.50/- which was enhanced to Rs.100/-  and  that the suit was filed only to  harass  her. The  trial  court  found  that   respondents  2  and  3  had constructed  the  house  which  could not be said  to  be  a suitable residence of the first respondent and dismissed the suit  on  January 1, 1997.  On appeal, the  IInd  Additional District  Judge  at Kolhapur held that though respondents  2 and  3  had  built  the   house,  a  two  storeyed  building consisting  of eight rooms, in which they were residing, yet respondent  No.1  could  be said to have  acquired  suitable alternative  accommodation.   Thus, the suit was decreed  by allowing  the  appeal  with  costs.   The  first  respondent challenged the validity of that order of the Appellate Court dated  December  20,  1997 in Writ Petition No.167  of  1998 before   the  High  Court.    Holding  that  the   alternate accommodation  stood in the name of respondents 2 and 3  and the  consideration  for  it was not provided  by  the  first respondent  the High Court opined that she could not be said to  have a suitable alternate residence and accordingly  set

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aside  the order of the District Judge by allowing the  writ petition  on January 27, 1998.  It is against that order  of the  High Court that the present appeal is filed by  special leave.  Mr.A.M.Khanwilkar, learned counsel appearing for the appellants,  vehemently contended that the first  respondent and  her  sons lived in the suit premises as members of  the family  for  over  30 years and the newly built house  is  a family house even if it was built by her sons;  in any event she  had acquired alternate accommodation.  The High  Court, submitted  the  learned  counsel,  took  into  consideration irrelevant  matters  to non-suit the appellants;  he  argued that under the Hindu Adoptions and Maintenance Act, 1956 the first  respondent  had a right to be maintained by her  sons and,  therefore, she was entitled to live in their house and so  a suitable alternate accommodation was available to her. Mr.A.S.Bhasme,   learned   counsel     appearing   for   the respondents,  contended  that  the first respondent  had  no interest  in  the house;  she was visiting that house  as  a guest and had no right to live in the house so no case under Section  13(1)(l)  of the Act was made out and as  such  the High  Court  rightly allowed the writ petition.  It will  be useful  to quote Section 13(1)(l) of the Act here :  13(1). Notwithstanding  anything contained in this Act but  subject to the provisions of sections 15and 15A, a landlord shall be entitled  to recover possession of any premises if the Court is satisfied

     (l) that the tenant after the coming into operation of this  Act  has built, acquired vacant possession of or  been allotted a suitable residence.

     A  plain  reading  of the above provision  shows  that under  clause  (l)  a  landlord   is  entitled  to   recover possession  of a premises from any tenant provided the Court is  satisfied  that after coming into operation of the  Act, the tenant has built or has acquired vacant possession of or has  been allotted a suitable residence.  From the scheme of the  provision  it is discernible that it is only  when  the tenant  gets  a  right to reside in a house other  than  the demised  premises  on the happening of any one of the  three alternatives  mentioned therein, namely, either by  building or  by  acquiring vacant possession of or by allotment of  a house,  that the landlord can seek recovery of possession of the  demised premises from the tenant.  The learned  counsel placed  before us two judgments of this Court dealing with a similar provision in the Delhi Rent Control Act.  Ganpat Ram Sharma  &  Ors.  Vs.  Gayatri Devi [1987 (3) SCC 576]  is  a case  arising  under  Section  14(1)(h) of  the  Delhi  Rent Control  Act,  1958, which provides that if the  tenant  has built,  acquired possession of or been allotted a residence, the  landlord  may seek his eviction.  This Court  has  laid down  that the burden to prove that any of the  alternatives mentioned  in the Section is on the landlord and it is  only when  he establishes this that the burden will shift on  the tenant  to  show  that  it is  not  a  suitable  alternative accommodation.   B.R.Mehta vs.  Atma Devi & Ors.  [1987  (4) SCC 183] also arose under Section 14(1)(h) of the Delhi Rent Control  Act,  1958.   There  the  wife  of  the  tenant,  a Government  employee,  was  allotted  accommodation  by  the Government   wherein  she  was   living  separately  as  the relations  between  the husband and the wife were  strained. While  pointing out that the aims and objects of the Act are to  control unreasonable evictions and to ensure that in  an atmosphere  of  acute  shortage of  accommodation  there  is proper  enjoyment of available spaces by those who want  and

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deserve  and that the rationale behind the scheme of Section 14(1)(h)  of  the Act is that if for all practical and  real sense  the tenant has acquired or built or has been allotted another  residence  then  his  need  for  the  old  tenanted residence  goes and the tenant loses his right to retain his tenanted  premises,  it was emphasised that to  attract  the provision  the tenant should have domain of the  alternative accommodation  so as to use it as a substitute for the place which  he is using in the tenancy.  It was held that in view of  the strained relations between the husband and the wife, the  alternative  accommodation ceased to be  a  matrimonial home and the tenant could not use it as a substitute for the demised  premises.   The judgment of the Court of Appeal  in Strandingford vs.  Probert [1949 (2) All.E.L.R.  861] relied upon  by  the learned counsel has absolutely  no  relevance. There the question was whether alternative accommodation was suitable  for the tenant.  It was held that the  alternative accommodation  must fulfil the requirement of the tenant and his  family  which  included  his married  sons.   That  was because  of  a  specific provision in the English  Act  that accommodation  shall  be  deemed to be suitable  if  in  the opinion  of the Court it is reasonably suitable to the needs of  the tenant and his family as regards proximity to  place of  work  etc.   There is no such provision in  the  Act  in question.   Therefore, the judgment in the above case  would be  of  no assistance to the appellants.  Now  the  question arises  what  is the ambit of the term tenant  in  Section 5(11)  of  the  Act.   Insofar as it  is  relevant  for  our purpose, it reads thus :  5(11).  tenant means any person by whom or on whose account rent is payable for any premises and includes

     (a) such sub-tenants and other persons as have derived title under a tenant before the 1st day of February 1973;

     (aa) **** **** **** ****

     (b) **** **** **** ****

     (bb) **** **** **** ****

     (bba) **** **** **** ****

     (c)(i)  in relation to any premises let for residence, when  the tenant dies, whether the death has occurred before or  after  the commencement of the Bombay, Rents, Hotel  and Lodging  House  Rates  Control (Amendment)  Act,  1978,  any member  of  the tenants family residing with the tenant  at the  time  of his death, or, in the absence of such  member, any  heir  of  the  deceased tenant, as may  be  decided  in default of agreement by the Court;

     (c)(ii)  ****  ****  ****  ****   The  definition  of tenant  is  too  exhaustive to include any member  of  the family  residing  with him.  Such members of his family  who were  residing with the tenant at the time of his death,  or in  their absence any heir of the deceased tenant, as may be decided  in default of agreement by the court, would  become tenant  only  on  his  death.  It is  true  that  the  first respondent  and her sons, respondents 2 and 3, were let into possession  of  the suit premises about 30 years before  the institution  of the suit but the first respondent alone  was the  tenant and respondents 2 and 3 were there as members of her  family.  They were, therefore, not tenants of the  suit premises.   The concurrent findings of the courts below  are

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that respondents 2 and 3 built the house for which the first respondent  did not contribute any money;  she did not shift her residence to the said house though she was visiting that house  off and on.  Inasmuch as the first respondent did not build any house and respondents 2 and 3 are not the tenants, the  first of the three alternatives, referred to above,  is not available to the appellant to seek eviction of the first respondent.   Now  with  regard to the  second  alternative, namely,  whether  the  first   respondent  acquired   vacant possession  of  the house built by respondents 2 and 3,  the learned counsel for the appellants has submitted that she is entitled  to claim maintenance from them under Section 20 of the  Hindu  Adoptions and Maintenance Act which  imposes  an obligation  on  a  son/daughter to maintain  his/her  infirm parents  or  the  unmarried  daughters  who  are  unable  to maintain  himself/herself  and,  therefore, she  acquired  a right  to  live  in the said house.  The  submission  though attractive lacks substance.  The first respondent being aged mother  undoubtedly  has  a  right   to  be  maintained   by respondents  2  and  3 but that does not mean  that  she  is entitled  to  live  along  with  her  sons  families.   The expression  acquired vacant possession, in the context, in our  view,  means  acquisition  of vacant  possession  of  a suitable  accommodation in which one has a right to  reside. It  must  be  a  legally   enforceable  right.   The   first respondent  does not have any such legal right to reside  in the  house  of  respondents 2 and 3.  Though, it  cannot  be disputed  that  respondents 2 and 3 had for a period  of  30 years  before building their own house lived with the  first respondent  as her sons and morally they are obliged to take care of the aged mother by accommodating her in their house, yet  in law we cannot enlarge that obligation to legal  duty to  provide  her  residence in the house  along  with  their family.   Thus,  the  second alternative will also  have  no application.   Admittedly  the  third   alternative  is  not attracted  to  the  facts  of this  case.   From  the  above discussion,  it follows that the requirements of clause  (l) of Section 13(1) of the Act are not satisfied.  The judgment of  the  High Court, under appeal, does not suffer from  any illegality to warrant interference.  The appeal is dismissed but  in  the  facts and circumstances of  the  case  without costs.