Laxman Kamble Vs. Abdul Rasul Moulali Kotkunde & ANR  INSC 170 (28 April 1999)
S.Saghir Ahmad, K.T.Thomas Thomas,J.
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
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.
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.
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.
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
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.
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.
landlord says that he needs the building for his own occupation there is no
doubt he has to prove it.
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.
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
material on record to show that he has the know-how necessary for starting
business of sale of electrical goods.
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.
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.
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.
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.
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.
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 also
disputed by the landlord by filing a rejoinder.
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.
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.