Punjab-Haryana High Court
S.P. Sethi vs R.R. Gulati And Ors. on 24 May, 2006
Equivalent citations: (2006)144PLR93
Author: Nirmal Yadav
Bench: Nirmal Yadav
JUDGMENT Nirmal Yadav, J.
1. These are two revision petitions directed against the order dated 23.8.2004 passed by the Appellate Authority Chandigarh, affirming the order of the Rent Controller, Chandigarh dated 17.4.2003 vide which the petition for ejectment has been accepted on the ground of personal necessity. However, the ground of subletting did not find favour with the Rent Controller and the petitioners-tenants were directed to vacate the demised premises i.e. entire first floor of Shop-cum-Of-fice No. 10, Sector 17-E, Chandigarh and hand over the vacant possession of the same to the respondents-landlords within a period of two months from the date of the order.
2. The facts, in brief, are that respondents-R.R.Gulati and others filed an eviction petition against the present petitioners-tenants, claiming themselves to be the sole and absolute owners of the demised premises. It was pleaded that petitioners i.e. United India Assurance Company Limited and S.P.Sethi are tenants in the first floor of the premises for the last many years. It was further pleaded that ground floor and part of the second floor are occupied by the respondents as tenants since 1969. The respondents having purchased the demised premises vide registered sale deed, have become entitled to receive rent from the petitioners-tenants. It was pleaded that the petitioners (herein) are tenants on the first floor on payment of rent @ Rs. 550/- per month. In spite of information given to the petitioners-tenants regarding purchase of demised premises from the previous owner, they did not make the payment of rent with effect from 1.4.2000, therefore, they were in arrears of rent and were liable to be evicted on that ground. It was further pleaded that respondents-landlords own some properties as detailed in sub-paras (a) to (h) of para No. 3. It was pleaded that respondent do not own any other suitable commercial property except the properties mentioned above. It was further stated that two of the grand children, namely, Ajay Gulati and Aman Gulati having completed their education, are going to enter the business being run by the family at different places, therefore, the respondents-landlords have decided to expand their business. They have decided that the Empire Stores would be running a complete departmental store in the entire Shop-cum-Office No. 10, Sector 17-E, Chandigarh, but the space in their possession is insufficient. The demised premises is suitable for expansion of business of the Empire Stores as they are already running their business therein at the ground floor. The respondents-landlords requested all their tenants to vacate the respective portions under their tenancy and the same request was also made to the petitioners-tenants.
3. Petitioner-United India Assurance Company contested the petition on the ground that M/s Empire Stores is running the business on the ground floor for the last several years. As mentioned in the petition, the respondents have large number of other commercial properties at different places, therefore, they have sufficient accommodation to run and expand their business. It was stated that respondents have no personal or bona fide need qua the demised premises. The sub-tenancy in favour of S.P. Sethi was created before coming into force of the East Punjab Urban Rent Restriction Act, 1949 and the previous owner never objected to the same. The petitioner-tenants have been paying the rent regularly and if any rent is due the same would be tendered before the court. Petitioner-S.P. Sethi submitted that he was inducted as a tenant in the year 1969 and the previous owner had consented for subletting. The premises being commercial property, no ground of personal necessity is available Under Section 13 of the East Punjab Urban Rent Restriction Act, 1949. It was stated that respondents do not require the premises for their personal necessity. He denied having any knowledge with regard to expansion of business of respondents-landlords. The respondents have failed to show the personal necessity as they have simply alleged that the grandsons are going to join the partnership firm of M/s Empire Stores. The need projected is not of the landlords, but of the partnership firm. It was further stated that first and second floors of the Shop-cum-Offices are only meant for office purposes and no departmental store can be opened on these floors. It was pleaded that accommodation under the partnership firm is sufficient to run the business and the real intention behind filing eviction petition is to get the old tenants evicted as these premises have been hired at a very low rent.
4. After taking into consideration the entire evidence and facts on record, the Rent Controller has come to the conclusion that the ground of subletting was not proved. However, the ground of personal necessity was proved and thereby directed the tenants to vacate the premises. The Appellate Authority affirmed the findings recorded by the Rent Controller.
5. I have heard learned Counsel for the parties and perused the material on record.
6. During the course of arguments, learned Counsel for both the parties fairly conceded that in the case of Rakesh Vij v. Dr. Raminder Pal Singh Sethi and Ors. (2005-3) 141 P.L.R. 676 (S.C.), the Apex Court has upheld the judgment of this Court wherein the law has been laid down that the landlord is entitled to evict the tenant from the non-residential building on the ground of personal necessity, therefore, the ground of personal necessity, if bona fide, is available to the landlord. The only question now to be considered in the present case is as to whether the requirement of personal necessity pleaded by the respondents-landlords is genuine and bona fide.
7. The ground of personal necessity has been found to be worth entitling the landlord for eviction of tenants, by both the Courts below. However, learned Counsel for the petitioners argued that the Courts below have ignored the glaring facts on record. It is argued that the respondents themselves referred to several properties owned by them, as mentioned in sub-paras (a) to (h) of para No. 3 of the eviction petition and, therefore, getting the demised premises evicted is a mere desire and not the necessity of the landlords. Second argument raised is that the departmental store cannot be opened on the first and second floors of the demised premises as it can only be used for office purposes as required under the regulations of the Chandigarh Administration. It is further argued that no application seeking permission for conversion of the demised premises for running full-fledged departmental store on first and second floors, has been submitted by the respondents-landlords. The next argument raised by learned Counsel for the petitioners is that the requirement as propounded by the landlord is that of M/s Empire Stores and not of the landlords themselves. As per statement made by Subash Gulati, AW1, M/s Empire Stores is a partnership concern and it was also a tenant on payment of rent @ Rs. 15,000/- per month. It is, therefore, argued that respondents are seeking eviction of two tenants for the need of third tenant, which is impermissible as per the Rent Act. It is also proved from the statement of Subash Gulati that Ajay Gulati and Aman Gulati are not even partners of the firm. They are merely the share-holders of a limited company. Aman Gulati has not even come back from America. It is, thus, argued that respondents have failed to prove the need of grandson or son in any manner.
8. The argument of learned Counsel for the petitioners that departmental store cannot be run on the first and second floors of the Shop-cum-Office as per the regulation of the Chandigarh Administration stands controverted by the Extra-ordinary Gazette Notification dated 26.6.2000 (Exhibit PY) issued by the Chandigarh Administration wherein it is clearly mentioned that in Section 17 City Center Shop-cum-Office area would be allowed to be used for shops also, subject to the condition that no partition and sub-division would be allowed on upper floors. Therefore, the above argument raised by learned Counsel for the petitioners no longer survives. The respondents-landlords cannot be nonsuited merely on the ground that they have not applied for conversion of the premises for running the departmental store on the first and second floors. Such a permission can only be applied when they would get the possession of the demised premises. Before seeking the permission, some architectural modifications and alternations would be required to be made, which can only be carried out if the demised premises is available with the landlord.
9. The next argument of the learned Counsel for the petitioners that respondents-landlords are having several other commercial properties where they can expand their business, also cannot be accepted. It has been categorically stated by Subhash Gulati in his statement that the demised premises is required for running a full-fledged departmental store as this is the most suitable place for the said purpose. Learned Counsel for the respondents argued that the demised premises is required bona fide by the landlords for their own purpose and once such satisfaction withstands the test of objective assessment by the Court of facts, then choosing one of the accommodation which would be reasonable to satisfy such requirement, has to be left to the subjective choice of the needy. The Court cannot thrust upon its own choice on the needy. The choice, of course, has to be exercised reasonably and not whimsically. The appellate as well as the trial Court have also considered this aspect of the case. The tenants have failed to point out any other property owned or possessed by the respondents-landlords in the same locality suitable for the business of departmental store. They have also failed to point out any other fact which has been concealed by the landlords from the Court and as such, there is no mala fide intention on the part of the respondents-landlords while asking for eviction of the petitioners. In sub-paras (a) to (h) of para No. 3 of the eviction petition, the respondents-landlords have mentioned the properties owned by them. However, those properties are not suitable for running the departmental store and the demised premises is the most suitable place for expansion of the business which the respondents are already running on the ground floor of the same premises.
10. Learned Counsel for the petitioners argued that the respondents-landlords have failed to prove the need of the premises for their grandson as no details have been given nor the grandsons have been examined. In support, the learned Counsel referred to a decision of the Andhra Pradesh High Court reported as Kaligotla Suryanarayana Murthy v. P.V. Ramanaiah 2003(1) R.L.R. 79 as well as a decision of the Allahabad High Court in the case of Moinuddi v. 4th Additional District Judge, Mathura and Ors. 2003(1) R.L.R. 87. Such an argument has no merit. Admittedly, the respondents-landlords are the owners of the entire Shop-cum-Office after having it purchased from its previous owner. Prior thereto, the respondents themselves were tenants in a part of the demised premises. The respondents are the partners of a business concern i.e. M/s Empire Stores and that business is being run in the above name and style since 1964. The strength of the family of the, landlords in all probabilities has grown. In order to fulfill their need to expand business only, the demised premises was purchased by the respondents. In case there was no need, the first and second floors would not have been purchased by the landlords.
11. The further argument of the learned Counsel for the petitioners that the need of premises is not of the respondent-landlords, but the need of the firm M/s Empire Stores, also cannot be accepted. All the respondents are partners, of the firm and as such, the need would be of the firm, but, of course, of its partners. The Court cannot lose sight of the fact that premises are required by the partners of the firm, simply because M/s Empire Stores was a tenant in the demised premises. In the case of partnership firm, each and every partner can claim that it is his/her business. Partnership is merely a collective name of the individuals of the firm and it is neither a person nor a legal entity unless specifically provided for the purpose of any statute. The firm's name is only a compendious way of describing persons of the firm. Therefore, occupation by a firm is occupation by its partners. The members of the partnership firm viz. M/s Empire Stores are themselves the landlords and, therefore, the necessity in this case would be seen that of the landlords and not any other tenant As regards, the requirement of demised premises on the ground of expansion of business and joining of other members, namely, Ajay Gulati and Aman Gulati. Mere non-examination of the grandsons would not, in any case, weaken the case of the landlords. The landlord is the best judge of his needs. It has been categorically pleaded and stated in the deposition of the landlord that the prem ises are required for running a full-fledged departmental store.
12. The need of the landlords has to be examined broadly and reasonably considering their social status and other requirements. The Apex Court in the case of Sarla Ahuja v. United India Insurance Company Ltd. , has held that Rent Controller shall not proceed on the presumption that requirement is not bona fide for his own occupation and shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of landlord is bona fide. It is often said by the Courts that it is not for the tenant to dictate terms to the landlord as to how he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself. Moreover, the question of bona fide personal need is purely a question of fact.
13. In view of the above discussion, I find no reason to interfere with the concurrent finding of both the Courts below.