Vijay Gangadhar Dande and Others Vs Dilip Gyanchand Khemani

R.K. Deshpande, J.@mdashRule made returnable forthwith.

Shri Shelat, the learned counsel waives service of notice for respondent.

Heard the matter finally by consent of the learned counsels appearing for the parties.

2. Regular Civil Suit No. 17 of 2006 has been decreed on 11.01.2011 for eviction and possession by the court of Small Causes against the petitioner-tenant. Regular Civil Appeal No. 293 of 2011 has been dismissed by the learned District Judge-2, Nagpur on 19.06.2014. Hence, this writ petition against the concurrent findings of fact.

3. The question involved is of the bonafide requirement of the landlord in respect of suit premises which are two shop blocks, total admeasuring 450 sq.ft. super built up area, in which country liquor shop is being run by the petitioner. The requirement put forth by the landlord was for running a Beer Bar. The relevant averments which are made in paragraph No. 6 of the suit are reproduced below.

It is submitted that both the shop blocks are situated in Sujata Nagar and there is sufficient potential in Sujata Nagar for Beer Bar. That the plaintiff is having sufficient experience of liquor business as he is managing the affair of Janta Wine Shop near Kamal Chowk since long. It is submitted considering the experience of liquor business the plaintiff would not face any difficulty in running Beer Bar. It is submitted that he is also having sufficient funds for investing in furniture of the Beer Bar as well as for stock of liquor. It is submitted considering the experience of the plaintiff and the availability of the shop block, the plaintiff can easily run the Beer Bar in shop blocks. That the plaintiff has no other building or shop block for running the Beer Bar. It is submitted the shop blocks are very suitable for running the Beer Bar and as such the plaintiff needs the shop block for his bonafide need.

4. The petitioner-tenant resisted the claim for bonafide requirement and has taken a stand that the suit premises consist of total 450 sq.ft. super built up area which is fit for running a shop and it is not sufficient or suitable for running a Beer Bar. The stand is taken that the area in question is very small and is not sufficient for running a Beer Bar. It is the stand taken that the plaintiff does not have any license in his name issued by the Excise Department for running a country liquor shop and he does not have a license either to run the country liquor shop or to run a Beer Bar in his own name. It is the further stand taken that as per the Rules framed by the State Excise Department, certain conditions are required to be satisfied for running a Beer Bar, which consist of a separate latrine and bathroom for ladies and gents, kitchen, eating place and godown for storing the goods. It is the stand taken that unless all such facilities are available and the requirements are fulfilled, no permission can be granted for running a Beer Bar. In support of this stand, the petitioner-tenant has examined two State Excise Inspectors, who have deposed such requirements.

5. The trial court has recorded the finding that unless the possession of the shop is obtained, the application for grant of license cannot be submitted. The business of the landlord requires an area admeasuring about 450 sq.ft. and above. The area in question is about 400 sq.ft. and it cannot be said that it is insufficient to run the business of liquor shop. The appellate Court has concurred with the findings recorded by the trial Court and has held that the witness Sudhir Bhagat, who is the Excise Inspector, has deposed that requirement of kitchen, restaurant, toilet and godown is not necessary for country liquor shop, but for a Bar, all these requirements are must. Relying upon this evidence, the appellant Court has concurred with the findings recorded by the trial Court.

6. It is not the case of the landlord that he wanted to run a liquor shop in the suit premises. The landlord has come up with a specific case of running a Beer Bar and to stock liquor at the place. The evidence relied upon by the Courts below of the State Excise Inspector speaks about sufficiency of requirement in respect of running of liquor shop. This evidence is misconstrued. The courts below have missed the distinction between the requirement of running a liquor shop and a Beer Bar. The suit premises may be sufficient for running a liquor shop and that is not the point for consideration.

7. What is required to be establish under the provisions of Section 16(1)(g) of the Maharashtra Rent Control Order is that, the premises are reasonably and bonafide required by the landlord for occupation by himself for the purpose which is pleaded. The evidence brought on record has clearly established that the suit premises are not sufficient for running a Beer Bar. From the evidence of two State Excise Inspectors examined, it is clear that the landlord can run a liquor shop, but not a Beer Bar consisting of eating house, kitchen, toilet or bathroom and godown. The requirement cannot, therefore, be said to be reasonable and bonafide.

8. Once the landlord comes up before the Court with a specific case of his requirement to open a Beer Bar and not a liquor shop then he cannot be permitted to change such requirement and say that he would also like to run a country liquor shop without pleading. Shri Shelat, the learned counsel for the respondent-landlord has relied upon the decision of the Apex Court in the case of Raj Kumar Khaitan and others Vs. Bibi Zubaida Khatun and another, for the proposition that, it was not necessary to plead the nature of the business which the landlord wanted to start in the premises and even if the nature of business would have been indicated, nobody could bind the landlord to start the same business in the premises after it was vacated. The decision is not applicable to the facts of the present case for the reason that it was not a case where the question of reasonableness or adequacy of requirement was involved. In the present case, the landlord has come up with a definite requirement, which has not been proved to be reasonable and bonafide.

9. There cannot be any dispute over the proposition laid down by the Apex Court in the case of Rishi Kumar Govil Vs. Maqsoodan and Others, that the landlord is the best judge of his requirements and the courts have no concern to dictate the landlord as to how and in what manner he should live. In the present case, the question is of the satisfaction on the basis of proof of reasonable and bonafide requirement. In the absence of any relevant material to satisfy the requirement to be reasonable and bonafide, no decree can be passed. In the facts of the present case, the landlord has failed to establish that the suit premises are sufficient for running the business which he intends to start. The findings recorded by both the courts are perverse, holding that the landlord has established bonafide requirement. It cannot, therefore, be sustained.

10. In the result, the writ petition is allowed. The judgment and decree passed by the trial Court in Regular Civil Suit No. 17 of 2006 on 11.01.2011, as has been confirmed by the appellate Court in Regular Civil Appeal No. 293 of 2011 on 19.06.2014 is hereby quashed and set aside. The Regular Civil Suit is dismissed. No order as to costs.