Himachal Pradesh High Court
Vipin Khanna vs Narinder Kumar.Rt on 11 May, 2016
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CMPMO No. 17 of 2015.
Date of decision: May 11, 2016.
Vipin Khanna. ......Petitioner.
of
Versus
Narinder Kumar.rt ......Respondent.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1Yes.
For the petitioner : Mr. G.D. Verma, Senior Advocate
with Mr. Suneet Goel, Advocate.
For the respondent : Mr. Nimish Gupta, Advocate.
Dharam Chand Chaudhary, J. (Oral)
Petitioner is plaintiff in the trial Court. He claims himself to be the owner in possession of land entered in Khata No. 634 Khatauni No. 783-784 bearing Khasra Nos. 1286-1287 measuring 171 Square yards situate in Chamba town. Admittedly, 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 15/04/2017 20:19:59 :::HCHP 2there was a three storeyed building in existence over this land. The .
same allegedly gutted in the fire broken out during the night intervening 18th and 19th March, 2012. The respondent (defendant in the trial Court) allegedly was never inducted as tenant in the building in question and the entries in this regard in the revenue record are of stated to be wrong and contrary to the factual position. As per further case of the petitioner, the Assistant Collector Ist Grade has no rt right to make such entries in the revenue record. He allegedly came to now about such entries in the revenue record in the month of April 2012 at a stage when the District Administration started distributing ex-gratia grant to the families effected in the incident of fire. The respondent allegedly claimed at that time that he has been inducted as tenant over a portion of the suit property. The petitioner also came forward with the version that the respondent is trying to raise construction forcibly over the suit property. The declaration that the petitioner is owner in possession of the suit land and the respondent was never inducted as tenant either by him or his predecessor-in-
interest has been sought to be passed. Additionally, decree for permanent prohibitory injunction restraining the respondent from causing interference in the peaceful possession of the petitioner over the suit land has also been sought.
::: Downloaded on - 15/04/2017 20:19:59 :::HCHP 32. An application under Order 39 Rules 1 and 2 CPC .
registered as CMA No. 224 of 2013 has also been filed with a prayer that during the pendency of suit the respondent be restrained from causing interference in the suit property or causing interruption in the work of demolition of the burnt building, removal of debris or its of reconstruction in any manner was also sought.
3. Learned trial Court on hearing the parties on both sides rt and taking into consideration the entire record has disposed of the application with a direction to the parties to maintain status quo qua the suit property during the pendency of the suit vide order dated.
4.1.2014.
4. The order was assailed in the Court of learned District Judge, Chamba in Civil Miscellaneous Appeal No. 3 of 2014.
Learned District Judge taking into consideration the given facts and circumstances and the record has dismissed the appeal and affirmed the order passed by learned trial Court vide judgment under challenge in this petition.
5. The complaint is that both Courts below have not appreciated the controversy between the parties in its right perspective and have erroneously ordered to maintain status quo qua the suit property mechanically and without application of mind. The ::: Downloaded on - 15/04/2017 20:19:59 :::HCHP 4 respondent allegedly has claimed tenancy over the suit premises on .
the basis of FIR which according to the petitioner is forged and fabricated. The tenancy from the year 1982 is being claimed by the respondent on the basis of rapat rojnamcha. However, his father has allegedly died in the year 1979. The petitioner has allegedly of established, prima-facie, that he is owner in possession of the suit property and that the respondent was never inducted as tenant either rt by him or his predecessor-in-interest. In such a situation, the application should have been allowed and the respondent restrained from causing interference in the suit property or in the matter of reconstruction of damaged building after demolition of the burnt structure.
6. Mr. Verma, learned Senior Advocate has vehemently argued that the respondent has nothing to do with the suit property as he was never inducted as tenant either by plaintiff or his predecessor in interest. It is also pointed out that the burnt structure has been declared unsafe and dangerous to general public and as such, needs demolition. However, it is on account of the interim order passed by both Court below the petitioner could not demolish the same and raise construction after removal of the debris there from. According to Mr. Verma, no prejudice is likely to be caused to the respondent in case ::: Downloaded on - 15/04/2017 20:19:59 :::HCHP 5 the petitioner is allowed to reconstruct the building over the suit land .
and that on completion of the construction work the right of re-entry of the respondent can be protected if he otherwise establish that he was inducted as tenant.
7. On the other hand, Mr. Nimish Gupta, Advocate, learned of Counsel representing the respondent while repelling the arguments addressed on behalf of the petitioner has contended that from the rt record it is prima-facie established that the respondent has been inducted as tenant in the building by predecessor-in-interest of the petitioner in its ground floor. Being so, the suit is not maintainable and according to Mr. Gupta, the remedy, if any, available to the petitioner is under the provisions of HP Urban Rent Control Act.
Also that, the petitioner has not approached the Court with clean hands as according to Mr. Gupta in the complaint he made to the police and on the basis whereof a FIR has been registered, the respondent has been admitted to be inducted as tenant in the building in question. The revenue entries also substantiate the claim of the respondent that he is in possession of the ground floor of the building in the capacity of a tenant. It has, therefore, been urged that both Courts below have rightly directed the parties to maintain status quo qua the suit property.
::: Downloaded on - 15/04/2017 20:19:59 :::HCHP 68. On analyzing the rival submissions and record of this .
case, admittedly the petitioner is owner of the suit property. A building was in existence thereon. The record, prima-facie, reveals that the same has been gutted in fire broken out during the night intervening 18th/19th March, 2012, however, not as a whole but partly.
of The perusal of FIR No. 79 of 2010 registered at the instance of the petitioner reveals that a portion of the building in ground floor was rt given on lease to Narinder Kumar, the respondent. The entries to this effect also find mention in the remarks column of jamabandi for the years 1985-1986 and 2005-2006 available on trial Court record. The record, therefore, prima-facie, reveals that the respondent is a tenant in a portion of the ground floor of the building. The arguments that on the building having burnt in fire the tenancy, if any, of the respondent is ceased to exist is not only without any substance but also contrary to the law laid down by the Apex Court in M/S Shaha Ratansi Khimji & Ors vs. Proposed Kumbhar Sons Hotel P. Ltd. & Ors., 2014(3) Apex Court Judgments 001(SC) : Shaha Ratansi Khimiji and Sons versus Kumbhar Sons Hotel Private Limited and Others, (2014) 14 Supreme Court Cases 1 referred to and discussed in the impugned judgment by learned Lower Appellate Court. This judgment reads as follows:
::: Downloaded on - 15/04/2017 20:19:59 :::HCHP 7"It has been further opined that once a tenancy is created in respect of a building .
standing on the land, it is the building and the land which are both components of the subject matter of demise and the destruction of the building alone does not determine the tenancy when the land which is the site of the of building continues to exist. This interpretation, as we find, is in accord with rt section 108 of the Act. It is reflectible that in Vannattankandy Ibrayi's case, the two judges Bench observed that the rights stand extinguished as on the distinction of the demise, for there is destruction of the superstructure and in its non existence there is no subject matter. Thus, the land has been kept out of the concept of subject matter. In our considered opinion, the Court in the said case failed to appreciate that there are two categories of subject matters combined in a singular capsule, which is the essence of provision under the Transfer of Property Act and not restricted to a singular one, that is, the superstructure. In T. Lakshmipathi (Supra) the Court took note of the fact that the land and superstructure standing on it as a singular component for the purpose of tenancy. It is in the tune with the statutory ::: Downloaded on - 15/04/2017 20:19:59 :::HCHP 8 provision. Therefore, we agree with the proposition stated therein to the affect that .
"in the event of the tenancy having been created in respect of a building standing on the land, it is the building and the land which are both components of the subject matter of demise and the destruction of the building of alone does not determine the tenancy when the land which was site of the building rt continues to exist". On the touchstone of this analysis, we respectfully opine that the decision rendered in Vannattankandy Ibrai (supra) does not correct lay down the law and it is accordingly, overruled."
9. As a matter of fact, the earlier view of the Supreme Court in Vannattankandy Ibrayi Vs. Kunhabdulla Hajee, AIR 2003(SC) 4453, that when the demised premises destroyed by fire, the tenancy right stands extinguished has been distinguished in the judgment supra.
10. Thus there being a prima-facie case in favour of the defendant that he is in possession of the ground floor of the building in the capacity of tenant the maintainability of the suit is doubtful.
Otherwise also, the suit property situate in Chamba town an urban area, the eviction of the tenant prima facie could have only be sought ::: Downloaded on - 15/04/2017 20:19:59 :::HCHP 9 under the provision of the H.P. Urban Rent Control Act. Support in .
this regard can be drawn from the judgment of the Apex Court in Vishal N. Kalsaria versus Bank of India and others, (2016) 3 Supreme Court Cases 762. The relevant portion of the said judgment are reproduced as under:
of "26. Providing a smooth and efficient recovery procedure to enable the banks to rt recover the non-performing assets is a laudable object indeed, which needs to be ensured for the development of the economy of the country. What has complicated the matters, however, is the clash of this laudable object with another laudable object, namely, to secure the rights of the tenants under the various Rent Control Acts.
The history of these Rent Control Acts can be traced to as far back as the Second World War. At that time, due to the massive inflation and shortage of commodities, not only had the cost of living risen exponentially, the tenants were also often left to the mercy of the landlords as far as evictions or prices of rent were concerned. The Rent Control Acts have been enacted by the different State Legislatures to secure the rights of the weaker sections of the society ::: Downloaded on - 15/04/2017 20:19:59 :::HCHP 10 viz. the tenants. Krishna Iyer, J. aptly observed in Santosh Mehta vs. Om Prkash.
.
(SCC p. 611, para 2).
"2. Rent control laws are basically designed to protect tenants because scarcity of accommodation is a nightmare for those who own none and, if evicted, will be of helpless."
27. The Preamble of the Rent Control Act rt reads as under:
"An Act to unify, consolidate and amend the law relating to the control of rent and repairs of certain premises and of eviction and for encouraging the construction of new houses by assuring a fair return on the investment by landlords and to provide for the matters connected with the purposes aforesaid."
It becomes clear from a perusal of the Preamble of the Act that the ultimate object behind the enactment of this legislation is to control and regulate the rate of rent so that unnecessary hardship is not caused to the tenant, and also to provide protection t the tenants against arbitrary and unreasonable evictions from the possession of the property.
::: Downloaded on - 15/04/2017 20:19:59 :::HCHP 1128. The protection of the tenants against unjust evictions becomes even more .
pronounced when examined in the light of Section 15 of the Rent Control Act, which reads as under:-
"15. No ejectment ordinarily to be made if tenant pays or is ready and willing of to pay standard rent and permitted increases.-- (1) A landlord shall not be rt entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, insofar as they are consistent with the provisions of this Act."
Section 15, thus, restricts the right of a landlord to recover possession of the tenanted premises form a tenant."
11. Therefore, to allow the petitioner to demolish the burnt structure and reconstruct the building and ultimately the suit is not held to be maintainable, prejudice is likely to be caused to the respondent and to do so may also not be in the ends of justice.
12. Much has been said that the burnt structure(s) on the spot is dangerous. However, such submissions are also of no help to the ::: Downloaded on - 15/04/2017 20:19:59 :::HCHP 12 petitioner's case for the reason that the order passed by the Sub .
Divisional Magistrate make it crystal clear that it is not the entire structure but some portion(s) thereof was found to be dangerous. The order pertains to 11.4.2014. Any untoward incident has taken place on this score nothing come on record. On the other hand, the of respondent is still in possession of ground floor of the building on rent with him and running his business there from. It is significant to note rt that allowing the interim relief as sought would amount to decree the suit itself which is not legally permissible.
13. In view of what has been said hereinabove, in the considered opinion of this Court both Courts below have not committed any illegality or irregularity in directing the parties to maintain status quo qua the property in dispute on the spot. The impugned judgment, therefore, cannot be said to be legally and factually unsustainable. The same as such is affirmed and this petition dismissed.
14. Before parting in the given facts and circumstances, there shall be a direction to the trial Court to expedite the hearing in the suit and dispose if of at the earliest, preferably within one year.
The parties through learned Counsel representing them are directed to appear in the trial Court on 2.6.2016.
::: Downloaded on - 15/04/2017 20:19:59 :::HCHP 1315. The petition is accordingly disposed of. Pending .
application(s), if any, also stands disposed of.
(Dharam Chand Chaudhary), Judge.
May 11, 2016, of (vs) rt ::: Downloaded on - 15/04/2017 20:19:59 :::HCHP