Raj Singh vs Ram Shakti (Deceased) Through Lrs on 21 July, 2023

[Cites 4, Cited by 0]

Himachal Pradesh High Court

Raj Singh vs Ram Shakti (Deceased) Through Lrs on 21 July, 2023

Bench: M.S. Ramachandra Rao

1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Civil Revision No.69 of 2009 a/w Civil Revision No.70 of 2009.

                                       Reserved on: 14.07.2023





                                       Pronounced on: 21.07.2023

     Civil Revision No.69 of 2009





     Raj Singh                                              ......Petitioner
                                   Versus
     Ram Shakti (Deceased) through LRs.        ...Respondent

______________________________________________________ Civil Revision No.70 of 2009 Sham Kumar r ......Petitioner Versus Ram Shakti (Deceased) through LRs. ...Respondent ______________________________________________________ Coram:

Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.

Whether approved for reporting?

For the petitioner(s) : Mr. Y.P. Sood, Advocate, in both the revisions.

     For the respondent(s)    :
                             Mr.     Deepak      Kaushal, Senior
                             Advocate with Mr. Aditya Chouhan
                             and Mr. Abhishek Verma, Advocates,





                             in both the revisions.

________________________________________________________ M.S. Ramachandra Rao, Chief Justice.

Both these Revisions are filed under Section 24(5) of the Himachal Pradesh Urban Rent Control Act, 1987 (for short the "Act").

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2) Ram Shakti, who is the predecessor in title of respondent in both the Revisions, is the landlord of the petitioners herein and he is the owner of 2 shops situated in Ward no.3, Mohalla Galua, Tehsil and District, Una in .

which the petitioners are tenants.

3) The landlord filed both the eviction petitions against the respective petitioners on 03.02.2003, contending, inter alia, as under:-

a) That they had committed default in payment of rent from January, 1996 and are liable to pay Rs.1,68,000/- and Rs.2,10,000/-, respectively;

b) that the demised premises was required by the landlord for his occupation and business to settling his younger son;

c) that when the landlord demanded rent from the tenants, they misbehaved with him; &

d) that the landlord intends to construct second storey with alteration from the first storey as he intends to construct pillars in the first storey to bear weight, which cannot be done without vacation of the premises;

4) The Rent Controller, Una, allowed eviction of the tenants only on the ground of default in payment of rent but rejected all other grounds, but stated that if ::: Downloaded on - 21/07/2023 20:37:38 :::CIS 3 the defaulted amount is paid within 30 days, the respective tenants will not be evicted.

5) This was challenged by the landlord before the Appellate Authority-II, Una, .

District Una, in Rent Appeals no.7/2006 and 06/2006.

6) The tenants also preferred cross appeal against the findings returned by the Rent Controller qua the arrears of rent having been allowed against them.

7) The Appellate Authority partly allowed the appeal of the landlord and held that the landlord is entitled to the demised premises on the ground of bonafide requirement for reconstruction and directed the tenants to hand-

over the vacant possession of the demised premises within three months from the passing of this order. He, however, affirmed the findings of the Rent Controller on all other issues and dismissed the cross appeals of the tenants.

8) Assailing the said order of the Appellate Authority, these two revisions are filed by the tenants.

9) The counsel for the tenants contended, inter alia, that the judgment of the Appellate Authority, reversing the judgment of the Primary Authority on the ground of the landlord bonafidly requiring the demised premises for reconstruction, is erroneous; that Section 14(3)(c) of the Act requires the tenant to vacate the premises if the landlord requires it bonafide for the purpose of making alterations which cannot be carried out without the ::: Downloaded on - 21/07/2023 20:37:38 :::CIS 4 building being vacated; that evidence was led on this aspect before the Rent Controller; that the Rent Controller had held that the landlord did not lead evidence to prove his financial position or that he is having sufficient funds .

to raise construction of double storey and he had not even submitted any plan to the Municipal Committee for construction of the second storey; that the Rent Controller rightly held that the wishes of the landlord to carry out alteration is only a mere wish and is not bonafide; that the Appellate Authority erroneously held that new construction is to be raised for which demolition of the demised premises is necessary, which is contrary to the pleading of the landlord; and therefore, the findings of the Appellate Authority warrant interference by this Court.

10) The counsel for the landlord refuted the said contentions and held that the Primary Authority/Rent Controller erred in holding that the financial position of the landlord is required to be gone into and that he should have sufficient funds to raise construction, which is not the requirement of the statute; that the landlord admittedly owns both shops and if he so chooses, he can always mortgage the same and raise money for making the construction; that even the witness examined by the tenants RW-2, had stated that if a multi storied buildings has to be raised, pillars will have to be erected; though the Appellate Authority had made an error in presuming that the entire premises may require demolition, the same is unnecessary having ::: Downloaded on - 21/07/2023 20:37:38 :::CIS 5 regard to the evidence of PW-3, the retired Assistant Engineer from the H.P. Public Works Department, who testified that the new construction of the building on pillars cannot be carried out without the shop being vacated. He .

also contended that sanction of a Municipal Plan need not be sought before seeking eviction and the Rent Controller erred in holding that it is so required; and eviction of the tenants is necessary to construct a second storey over the existing first storey for which a pillar is to be laid in the first storey to bear the weight and this cannot be done without the tenants vacating the premises. r

11) I have noted the contentions of both the parties.

12) The record reveals that the landlord examined himself, the person who prepared the site plan Ex.PW-1/A as PW-2 and a retired Assistant Engineer from H.P. Public Works Department as PW-3.

13) PW-3 supported the stand of the landlord and stated that when he visited the spot he noticed that the foundation of the shop was only one foot below from the ground floor; that such foundation cannot bear the load of the second storey, and if the landlord intends to construct a second storey on the shop, RCC pillars have to be erected as shown in the site plan prepared by PW-2.

14) Though the tenants examined RW-2, who stated that the foundation is 2 feet 6 inches below the road level and the total depth of the foundation of the building is 3 feet 6 inches below plinth level, the Rent Controller did not ::: Downloaded on - 21/07/2023 20:37:38 :::CIS 6 give any finding as to whether he is accepting the evidence of PW-3 or RW-

15) I do not see any reason why the evidence of PW-3 cannot be believed since .

even the Rent Controller did not think it fit to discard his evidence. I accept PW3's evidence that it is necessary to have the tenants vacated so that pillars can be put on the first floor to support the proposed second storey construction.

16) The question is whether the Rent Controller was right in holding that the landlord should prove his financial position, i.e. that he should so that he has sufficient funds to raise construction of doubled storey.

17) The requirement of Section 14(3)(c) of the Act is that landlord's requirement of the premises for carrying out repairs must be bonafide.

The arrangement to be made in respect of the finances, is only a circumstance in order to test the bonafide and is not the requirement of law. There is no dearth of sources for arranging finances in today's world as a lot of Financial Corporations, Banks and persons having surplus money do always lend money for such projects.

18) Also the landlord has stated that he was drawing pension; that one of his sons is unemployed and the premises are required by him for self occupation and business to settle his son; that his elder son is employed in NFL, Naya Nangal, and has sufficient salary; that his elder daughter is ::: Downloaded on - 21/07/2023 20:37:38 :::CIS 7 unmarried and is employed as a Postgraduate Teacher and she also has a sufficient salary; and that the landlord was also receiving pension.

19) Therefore, it cannot be doubted that the landlord had capacity to raise .

funds to make the alteration.

20) In view of this material on record, I see no justification for doubting the financial capacity of the landlord to make the alterations in question since admittedly he owns the demised premises and can also raise such money in the market.

21) As regards the observation of the Rent Controller that the landlord had not submitted any site plan to the Municipal Committee for construction of the second storey, there is no such requirement in the statute. Also, the proceedings in question have been dragged on by the tenants from 03.02.2003, i.e. for more than 20 years. If the landlord was to take sanctioned plan from the Municipal Committee, he would be required to spend money to do so and he would be also required to complete the construction within a reasonable time. In these circumstances, it is not reasonable to expect the landlord to apply to the Municipal Committee for such permission.

22) As regards the building plan, it is not even the case of the tenants that the alteration, as proposed, cannot under the Local Law be permitted to be done.

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23) No doubt, the Appellate Authority without there being any pleading on the part of the landlord, made an observation that demolition of the demised premises is necessary for reconstruction.

24) However, I am of the view that this Court under Section 24(5) of the Act can re-examine the evidence and such finding, being contrary to record, is set aside.

25) So I hold that the landlord has established that he requires the premises bonafide for making construction/alteration of the second storey.

26) As regards the contention of the Counsel for the tenants that they are entitled to be re-inducted into the premises in view of the first proviso to Section 14(3)(c) of the Act is concerned, the said proviso, having been introduced by the Himachal Pradesh Urban Rent Control (Amendment) Act, 2009 (Act No.8 of 2012), it came into operation only from 16.03.2012. Since this provision introduces an amendment to the substantive law governing the rights of enants, it can only have prospective operation and cannot be made applicable to the instant case where eviction proceedings have started way-back in 2003.

27) Similar view has been expressed by this Court in Shri Jasvinder Singh & Another versus Shri Kedar Nath.1 1 (2012) SCC Online HP 7470.

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28) The decision in Chaman Lal Bali versus State of Himachal Pradesh & Another, 2 cited by the counsel for the tenants, does not deal with this aspect at all, i.e. whether the amendment is prospective or retrospective.

Therefore, the said decision is not applicable and the tenants cannot claim any right of re-entry on the basis of the said amendment.

29) For all the aforesaid reasons, both the Revision petitions are dismissed by granting to the petitioners two months' time from today to vacate the demised premises. They shall also pay the arrears of rent, if any, due to the respondents in 4 weeks.r

30) Pending miscellaneous application(s), if any, shall also stand disposed of.

               July 21, 2023                      (M.S. Ramachandra Rao)



                    (Yashwant)                           Chief Justice







      2
               AIR 2016 HP 168,




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