Holding

The requirements of Section 13(1)(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 are not satisfied; therefore the landlord cannot evict the tenant.

Summary

The landlord heirs of a one‑room premises filed suit for eviction of the tenant, Nirmala Ramchandra Kore, under Section 13(1)(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, alleging that the tenant had alternate accommodation because her sons had built a house. The tenant contended that under Section 20 of the Hindu Adoptions and Maintenance Act, 1956 she was entitled to be maintained by her sons and thus could reside in their house. The Supreme Court held that the definition of "tenant" under Section 5(11) includes only the person paying rent, not her family members, and examined the three alternatives for eviction: (i) the tenant building a house, (ii) the tenant acquiring vacant possession of a suitable residence, and (iii) the tenant being allotted a suitable residence. The tenant had not built a house, the sons were not tenants, and the maintenance obligation did not confer a legally enforceable right to reside in the sons' house, so the second alternative was not satisfied; the third alternative was inapplicable. Consequently, the statutory conditions for eviction were not met and the appeal was dismissed.

Issues considered

Whether the landlord can seek eviction of the tenant under Section 13(1)(1) when the tenant's sons have built a house.
Whether the tenant's right to maintenance under the Hindu Adoptions and Maintenance Act, 1956 creates a legal right to reside in the sons' house, satisfying the 'acquired vacant possession' alternative.

Legislation cited

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947s. 13(1)(1), s. 5(11)
Hindu Adoptions and Maintenance Act, 1956s. 20

Subjects

evictionrent controlalternate accommodationtenant definitionHindu Adoptions and Maintenance Actlandlord rightsBombay Rents Act

Judgment

ANANDI D. JADHAV (DEAD) BYLRS . A
•
I V.

• NIRMALA RAMCHANDRA KORE AND ORS .

APRIL, 5, 2000

[S.S.M. QUADRI AND N. SANTOSH HEGDE, JJ.] B
•
Rent Control and Eviction :

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947:

Section 13( 1)(l)-~viction-Grounds-Alternate accommodation-Avail- C
•'
ability of-Tenant was living in the suit premises with her sons fora long time-
Subsequently, her sons built a new house without any contribution from the
tenant-Landlord filed suit for eviction of tenant on the ground that the tenant
had acquired alternate accommodation-Held: Eviction can be sought only on
the happening of any of the three alternatives viz., the tenant has ( i) built and D
(ii) acquired vacant possession of or (iii) been allotted a suitable residence-
ln the circumstances of the case, none of the three alternatives is available to
the Landlord to seek eviction of the tenant.

Hindu Adoptions and Maintenance Act, 1956: Section 20.
E
Eviction of tenant---Ground~-Alternative accommodation-Availability
of-Moral obligation of sons-To take care oftheir aged mother-Applicability
of-Held: Such oblir;ation cannot be enlarged to provide her residence in the
house constructed by her sons so as to give a right for the landlord to seek
eviction o.f tenant on the g1Vund of availability of alternate accommodation.
F
Wonk and Phrases :

"Tenant "-Meaning of-In the context of S.5( 11) of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947.

- "Acquired vacant possession"-Meaning of-In the context ofS.13( 1X1)
of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
G

Respondent No. 1 was a tenant of the suit premises for the last 30
years. The sons of respondent No. 1 also lived with her till they built their
own house for which respondent No. 1 provided no consideration. H
963
964 SUPREME COURT REPORTS [2000) 2 S.C.R.
'A The following question arose before this Court :

Whether on respondents 2 and 3, sons of the first respondent (ten-
ant), building a house the appellants-landlords can seek eviction <;tf the
first respondent under Section 13(1)(1) of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947.
B
On behalf of the appellants-landlords it was contended that after the
construction of new house even though it was built by the first respond-
ent's son, an alternate accommodation was available to the first respond-
ent; and that under Section 20 of the Hindu Adoptions and Maintenance
Act, 1956 the first respondent had a right to be maintained by her sons
c and, therefore, she was entitled to live in their house and, therefore, a
suitable alternative accommodation was available to her.

Dismissing the appeal, this Court

HELD : l. Section 13(1)(1) of the Bombay Rents, Hotel and Lodging
D
House Rates Control Act, 1947 provides that when the tenant gets a right I

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
E from the tenant. [967-E-F)

GanpaJ Ram Shanna v. Gayatri Dev4 [1987) 3 SCC 576; B.R. Mehta v.
Atma Devi, [1987) 4 SCC 183 and Strandingford v. Probert, (1949) 2 All ER
861, referred to.

F 2. The definition of 'tenant' under Section 5(11) of the Act 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
G
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. Inasmuch as the first respond-
ent did not build any house and respondents 2 and 3 are not the tenants,
H the first of the three alternatives referred to above, is not available to the
ANAND! D. JADHAV v. NIRMALA RAMCHANDRA KORE [QUADRI, J.] 965
appellants to seek eviction of the first respondent. [969-D-FJ A
3. The first respondent being aged mother undoubtedly has a right
to be maintained by respondents 2 and 3 under Section 20 of the Hindu
Adoptions and Maintenance Act, 1956 but that does not mean that she is
entitled to live along with her sons' families. The expression 'acquired
vacant possession' occurring in Section 13(1)(1) of the Act means acquisi- B
tion 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 right to reside in the house of respondents 2 and 3.
Though 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 c
they are obliged to take care of the aged mother by accommodating her in
their house, yet in law one 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. Therefore, it follows
that the requirements of Section 13(1)(1) of the Act are not satisfied. The D
judgment of the High Court, under appeal, does not suffer from any
illegality to warrant interference. [970-A-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4538 of 1998.
E
From the Judgment and Order dated 27 .1.98 of the Bombay High Court
in W.P. No. 167 of 1998.

A.M. Khanwilkar, Ms. V.D. Khanna and Toms K.P. for the Appellants.

A.S. Bhasme and Manoj Kumar Misra for the Respondents. F

The Judgment of the Court was delivered by

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 Muse the appellants-landlords can seek evic- G
tion of the first-respondent under clause (I) of Section 13(l) 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. H
966 SUPREME COURT REPORTS [2000] 2 S.C.R
A 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 RS.No. 690/B, Sainbhajinagar, (hereinafter referred
to as 'the house'). The said owner filed the suit, out of which the appeal arises,
B under Section 13(1)(1) 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
c 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 frrst respondent
D 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 alterna-
tive accommodation. Thus, the suit was decreed by allowing the appeal with
E 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 aside the order of the District
F 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
G 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·

H
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
-
ANANDI D. JADHAV v. NIRMALA RAMCHANDRA KORE [QUADRI, J .] 967
live in their house and so a suitable alternate accommodation was available A
to her.

Mr.A.S.Bhasme, learned counsel appearing for the respondents, con-
tended 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)(1) of the Act was made out and as such the High Court rightly B
allowed the writ petition.

It will be useful to quote Section '13(1)(1) of the Act here :

"13(1). Notwithstanding anything contained in this Act but subject to
the provisions of sections 15and ISA, a landlord shall be entitled to C
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."
D
A plain reading of the above provision shows that under clause (1) 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 E
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.
F
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. v. 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,
G
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 v. Atma Devi & Ors., [198714 SCC 183 also arose under H
968 SUPREME COURT REPORTS [2000] 2 S.C.R.
A 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 Govern-
ment 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
B
available spaces by those who want and 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
C 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.
D The judgment of the Court of Appeal in Strandingford v. 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
E sons. That was bec::ause 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.
F
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 -
G
(a) such sub-tenants and other persons as have derived title under

-
a tenant before the 1st day of February 1973;

(aa) **** **** **** ****

H (b) **** **** **** ****
AN ANDI D. JADHAV v. NIRMALA RAM CHANDRA KORE [QUADRI, J .] 969

....
'
(bb) **** **** **** ****
(bba) **** **** **** ****
A

(c)(i) in relation to any premises let for residence, when the tenant
dies, whether the death bas occurred before or after the
commencement of the Bombay, Rents, Hotel and Lodging B
House Rates Control (Amendment) Act, 1978, any member of
the tenant's 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
~C~; C
(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 D
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. .,. E
The concurrent findings of the courts below are 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, F

- 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 G
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 H
970 SUPREME COURT REPORTS [2000] 2 S.C.R._
A 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
B 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
c 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 (1)
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.

v.s.s. Appeal dismissed.