Punjab-Haryana High Court
Anil Kumar Sood vs Subhash Chander Kapila on 19 November, 2014
CR-3293-2011 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CR-3293-2011 (O&M)
Date of decision: 19.11.2014
Anil Kumar Sood
..... Petitioner
Versus
Subhash Chander Kapila
..... Respondents
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of the local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
PRESENT: Mr. Arun Jain, Senior Advocate with
Mr. Chetan Salathia, Advocate for the petitioner.
Mr. Akshay Bhan, Senior Advocate with
Mr. Santosh Sharma, Advocate for the respondent.
R.P. NAGRATH, J.
The tenant has filed the instant revision against the order of eviction dated 3.3.2011, passed by learned Rent Controller, Ambala in a petition for eviction sought by the respondent as a specified landlord in terms of Section 13-A (1-A) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short 'the Act'), in respect of the demised premises comprising of a portion of House No. 4322, situated opposite B.D. High School, Punjabi Mohalla, Sadar Bazar, Ambala Cantt./Ambala Sadar.
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CR-3293-2011 (O&M) -2-
2. The respondent retired as Inspector from the office of Additional Commissioner of Income Tax, Ambala Range, Ambala on 28.2.2006 and thus, entitled to invoke the provisions of Section 13-A (1- A) of the Act. The eviction petition was filed on 23.2.2007 i.e. within one year of his retirement.
3. The demised premises was initially rented out to the petitioner vide rent note dated 9.10.1994 (Ex. P-1) @ ` 1000/- per month with annual increase @ 7%, for residential purposes by Janesh Kumar Arora the previous owner of house in question. The house was purchased from the previous owner by respondent-Subhash Chander Kapila and his brothers, namely; Mahesh Kapila, Sanjeev Kapila sons of Ram Rakha, Ashish Kapila S/o Late Upender Kapila S/o Ram Rakha and Aditya Kapila S/o Subhash Kapila-respondent, vide sale deed dated 23.7.2004 Ex. P-5/1. As per the sale deed the house comprised of the residential portions as well as four shops, out of which two shops were already on rent with the purchasers and the other two shops were rented out to Chaman Lal Gulati and Ishwar Singh. This sale deed would also show that on the rear portion of property No. 4322 the premises comprising of two rooms, kitchen, bathroom and toilet was on rent with the petitioner vide rent note dated 9.10.1994 (Ex. P-1) for residential purposes on a monthly rent of ` 1600/- per month. The site plan of the premises is Ex. P-6/1 which consists of the aforesaid accommodation, for which the petition for eviction was filed on 23.2.2007. The respondent claimed that the demised premises is required for his own use and for his son Aditya Kapila who was a handicap person.
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4. The material allegation on which the instant revision centers round is that the respondent-landlord was residing in House No. 6-B, Gobind Nagar, Amabala Cantt. which is owned by his son Amit Kapila. The respondent was residing in that house as a licensee of his son. Amit Kapila was in occupation of one room of the aforesaid house. It was further stated that there is House No. 53, Ahluwalia Building, Ambala Cantt. owned by Ram Rakha Kapila, father of the respondent, which was inherited by his four sons and that house was in occupation of family of Late Upender Kapila and Mahesh Kapila. It was further alleged that first floor of House No. 4322, Punjabi Mohalla, Ambala Cantt. is in occupation of Sanjeev Kapila who is residing with his family. The accommodation where the respondent-landlord is residing is House No. 6-B, Gobind Nagar, Ambala Cantt. is otherwise insufficient for his requirement and that of his son, therefore, the respondent wanted to shift to his own house i.e. the rented premises. The controversy basically is confined to the plea taken in para 5 of the eviction petition that the respondent is not occupying any other residential building in the Urban Area of Ambala Cantt./Ambala Sadar sufficient to meet his requirements nor he has vacated any such building without sufficient cause after the commencement of the East Punjab Urban Rent Restriction Act, 1949 in the said Urban Area.
5. The petitioner-tenant stated that the respondent-landlord in fact is the exclusive owner of House No. 6-B, Gobind Nagar, Ambala Cantt. which is constructed over an area of 200 sq. yards. It was also denied that house No. 53, Ahluwalia Building is not in occupation of the RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document CR-3293-2011 (O&M) -4- family of the brothers of respondent. The major portion of the said house is stated to be in occupation of the respondent. It was also denied that the first floor of building No. 4322, Punjabi Mohalla, Ambala Cantt. is in occupation of Sanjeev Kapila and his family. The respondent also filed rejoinder.
6. Before filing of the written statement, the petitioner had filed an application dated 13.3.2007 for leave to defend under Section 13 (A) (1A) read with Section 13A(4) of the Act. The relevant averment which was the subject matter of contentions before this Court, is that respondent has suppressed the material facts as he owns house No. 1052, Housing Board Colony, Ambala Cantt. which he purchased from the original allottee, namely; Harnam Singh S/o Maya Singh on the basis of power of attorney and deed of conveyance dated 2.2.2005. The said house consists of two big rooms measuring 9' 3" x 9' 6", 9' 3" x 10', kitchen 5' 9" x 11' 9", WC 3' x 5', bathroom 3' 6" x 5' and courtyard in the front and back, which is occupation of the respondent landlord and is more than sufficient to meet his requirements.
7. In response thereto, the respondent categorically denied that he owns house No. 1052, Housing Board Colony, Ambala Cantt. or that the same was purchased from Harnam Singh. It was stated that the said house is owned and occupied by Harnam Singh. The petitioner only acted as General Power of Attorney (GPA) to execute the sale deed in favour of Harnam Singh and he is neither owner of the said house nor in occupation thereof. Learned Rent Controller granted leave to the petitioner to contest the eviction petition. From the pleadings of the RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document CR-3293-2011 (O&M) -5- parties following issues were framed by the learned Rent Controller:-
"1. Whether the petitioner is entitled to seek eviction of the respondent from the portion House No. 4322, opposite B.D. High School on the grounds mentioned in the petition, as alleged? OPP
2. Whether the petition of the petitioner is not maintainable, as alleged? OPR
3. Relief."
8. I have heard learned senior counsel for the parties and carefully perused the order passed by the learned Rent Controller as well as the records.
9. Sub-Section (8) of Section 13-A says that no appeal or second appeal shall lie against an order for the recovery of possession of any residential building made by the Controller in accordance with procedure specified in this section, provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.
10. It would be appropriate to notice that the petitioner also filed an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure (CPC) seeking permission to place on record the documents for showing that he is carrying on the business in the premises in question for many years which, therefore, cannot be meant for residential purposes for invoking the provisions of Section 13-A of the RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document CR-3293-2011 (O&M) -6- Act. Learned senior counsel for the petitioner has not raised any argument in support of the said application for contending that the finding of the learned Rent Controller, that the property in question was proved to be meant for residential purposes was wrong. Learned senior counsel confined his argument only with regard to the contentious issue of the respondent-landlord occupying house No. 1052, Housing Board Colony, Ambala Cantt. If the aforesaid contention of learned senior counsel for the petitioner is not acceptable, he would not challenge the order of eviction passed by the learned Rent Controller on other grounds. On this controversy, learned Rent Controller observed as under:-
"21. .......The house No. 1052 situated in Housing Board Colony is owned by Harnam Singh S/o Maya Singh. Mere fact that it was purchased by Harnam Singh through petitioner as his attorney makes no difference. The said house cannot be taken to be ownership of the petitioner as the Benami Transactions (Prohibition) Act specifically bars such type of transactions. If it be assumed that the said house is possessed by the petitioner even then it makes no difference as the landlord has every right to additional accommodation to house his growing family. The petitioner wants accommodation for his handicap son Aditya Kapila. The growth of families and transformation of joint families into nuclear families is on the rise. So it is but natural for the brothers to part RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document CR-3293-2011 (O&M) -7- gracefully......."
11. For making the above observations, the learned Rent Controller has not in fact discussed the relevant evidence at all nor its consequences. If that be the proposition, the order of Rent Controller can be found to be legally infirm requiring interference of this Court in exercise of its revisional jurisdiction. It needs to be reiterated that eviction was sought by the petitioner as a specified landlord and merely stating that accommodation already available was insufficient for this family for which recourse could be to the normal procedure laid down in sub-section (3) of Section 13 of the Act.
12. Sub-Section (5) of Section 13-A of the Act says that the Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the residential building on the ground specified in sub-clause (i) of clause (a) of sub-section (3) of Section 13. The aforesaid provision reads as under:-
"Section 13. Eviction of tenants.-- (3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession --
(i) he requires it for his own occupation, is not occupying another residential building in the urban area concerned and has not vacated such building without sufficient cause after the commencement of the 1949 Act in the said RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document CR-3293-2011 (O&M) -8-
urban area."
13. Amit Kapila S/o Subhash Kapila appeared as PW-9 and tendered his affidavit Ex. PW-9/A. It is stated that PW-9 is owner of House No. 6-B, Gobind Nagar, Ambala Cantt. which he purchased by getting home loan, for which the supporting documents were also relied upon. This aspect of respondent's version has not been questioned by learned petitioner's counsel during arguments.
14. The relevant portion of cross-examination of PW-9 is admitted that he admittedly, stayed along with his parents in House No. 1052, Housing Board Colony, Ambala Cantt. They stayed there for 2-3 years. His mother also died in the said house. He could not say for how long his parents resided in House No. 1052 before the death of his mother. However, the respondent resided in the said house for a few months after the death of mother of PW-9. PW-9 also stated that he had been residing in House No. 1052 with his parents for the period during which his parents continued residing in that house. PW-9 also admitted that accommodation of the demised premises and that of House No. 1052 is almost equal.
15. In consonance with his pleadings, the respondent-landlord in his affidavit Ex. PW-10/A, did not utter a word about his having ever occupying House No. 1052, Housing Board Colony, Ambala Cantt. It may be clarified that the cross-examination of respondent was recorded by the learned Rent Controller as PW-10 and PW-5. In the cross- examination conducted as PW-5 on 19.12.2008, the respondent categorically denied that they ever resided in House No. 1052, Housing RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document CR-3293-2011 (O&M) -9- Board Colony, Ambala Cantt. He never occupied the said house even on rent. It was even admitted by the respondent as PW-5 that accommodation of House No. 1052 and that of the demised premises is almost equal. In further cross-examination, the respondent stated that his wife died about 12 years ago but they were not residing in House No. 1052 at the time of her death. He, however, had to admit that he entered the address of his wife and his own address as resident of House No. 1052, Housing Board Colony, Amabala Cantt. in the Municipal record regarding the death of his wife.
16. The other aspect would be whether the respondent-landlord is prima facie owner of House No. 1052 which he tried to deny throughout. The respondent-landlord admitted in the cross-examination that Ex. RX-1 is the copy of power of attorney executed in his favour by Harnam Singh in whose favour House No. 1052 was allotted by the Housing Board. The conveyance deed was also executed in the name of Harnam Singh by the Housing Board through respondent-landlord as his attorney. PW-9 Amit Kapila as well as the respondent as PW-10 admitted that Harnam Singh in whose favour allotment of house No. 1052 was made is not related to them. PW-9 Amit Kapila was not aware of the fact that any power of attorney was executed by Harnam Singh in favour of his father. The respondent as PW-10 stated that Harnam Singh is only a family friend. In cross-examination of the respondent conducted on 19.12.2008, the respondent denied the suggestion that in the Municipal record his name was entered as owner of House No. 1052, Housing Board Colony, Ambala Cantt.
RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document
CR-3293-2011 (O&M) -10-
17. RW-4 Bushan Ahuja, Clerk, Municipal Corporation, Ambala brought the record of Demand and Collection Register of the Municipal Corporation for the years 2007-08 and 2008-09. As per the register for the year 2007-08, property No. 1052, Housing Board Colony, Ambala Cantt. was entered in the ownership of Subhash Kaplia s/o Ram Rakha Kapila and same is a residential building. Certified copy of the said register is RW-4/A and for the next year it is RW-4/B.
18. Ex. RX-1 is the copy of power of attorney dated 22.1.1991 executed by Harnam Singh in favour of respondent-landlord. In this power of attorney it is stated by Harnam Singh that house No. 1052 was allotted in his favour on 27.4.1984. Under this power of attorney executed in favour of respondent, the allottee authorized the respondent to deposit the balance installments of the house, obtain receipts, sale letter, further authorizing him to sell/mortgage/gift or transfer the house in any manner and to pursue the proceedings before the authorities. Respondent was further authorized to raise construction of the house, to rent it out and get back the possession and obtain water and electricity connections from the concerned departments. The deed of conveyance Ex. RX-2 executed by Housing Board, Haryana is dated 21.2.2005 in the name of Harnam Singh through respondent-landlord as his attorney.
19. The scope of such a power of attorney has been discussed by Hon'ble Supreme Court in Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and another, 2012 (1) SCC 656 as under:-
13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document CR-3293-2011 (O&M) -11-
immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan v. Basant Nehata, 2005 (12) SCC 77, this Court held:
"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favor of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document CR-3293-2011 (O&M) -12- convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the done to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
20. It was ultimately held by Hon'ble Supreme Court as under:-
"18. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not 'transfers' or 'sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document CR-3293-2011 (O&M) -13- title. The said 'SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under Section 53A of Transfer of Property Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to 'SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.
(emphasis laid)
21. It may be observed that the existence of the agreement also in favour of respondent by Harnam Singh could be only within the special knowledge of respondent himself. Learned Senior counsel for the respondent submits that entry of mutation in the Municipal record is not a document of title and, therefore, the respondent-landlord cannot be termed as owner of house No. 1052 merely on the basis of power of attorney. But I find that there cannot be any answer to the evidence about the respondent's name being entered under the column of ownership in the Municipal record continuously for about two years and this at least would show his occupation of the said house whereas the respondent out and out denied that such an entry is made in his name in the Municipal record. The petitioner tried to prove Ex. RX an application RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document CR-3293-2011 (O&M) -14- made by the respondent himself for entering his name in the Municipal record which is dated 29.7.2006 but PW-9 Amit Kapila son of respondent stated that in the absence of the original document, he could not say if it was signed by his father but the evidence which has come on record about the respondent-landlord remaining in occupation of House No. 1052, Housing Board Colony, Ambala Cantt. could not have been absolutely ignored, and that aspect of the case was not even discussed by the learned Rent Controller.
22. This Court held in Manmohan Lal Vs. Shanti Parkash Jain, 2014 (2) RCR (Rent) 222, that the House Tax Assessment Register even if is taken to be not a sufficient proof qua ownership, it is definitely proof of possession of the shops as depicted therein. No question, entries in the Assessment Register of the local authorities would not be construed as documents of title but these do reveal certain facts about which probably no other document would be commensurately effective. Location of the property as also identity of its possessor are the facts which very prominently emerge from such entries. Even when landlord appeared as AW4, he has not been able to wriggle out of effect of such entries.
23. The effect of concealment of such a material fact was discussed by this Court in Shankar Lal Vs. Madan Lal and others, 2011 (1) RCR (Rent) 139 and it was held as under:-
"78. Even in the evidence the landlord / respondent did not take steps to prove the pleading, but had to admit the factum of owing other shops in the cross- RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document
CR-3293-2011 (O&M) -15- examination. Thus, there is force in the contention of the learned senior counsel for the petitioner, that this was a deliberate attempt to seek eviction and by non- pleading this ingredient the tenant was specifically prejudiced.
79. The landlord has further failed to plead and prove the fact, that his son for whose occupation premises were sought was not occupying any other building, and has not vacated such building without sufficient cause, as held by the Hon'ble Supreme Court in the case of Ajit Singh & Anr. Vs. Jit Ram & Anr.1 (supra).
80. This fact also assumes importance, as evidence was brought on record showing ,that there was shop under the ownership of Sanjeev Kumar also which fact was also concealed by the landlord in the pleading.
Not only that the respondent / landlord had failed to prove the mandatory provisions but was also guilty of concealment.
81. The contention of the learned senior counsel for the respondent / tenant that the substantive ingredients stand fulfilled C.R. No. 2648 of 2007 therefore, can not be accepted. It is held, that the finding of the learned Rent Controller and the learned Appellate Authority was outcome of misreading of 1 2008 (2) RCR (Rent) 328 RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document CR-3293-2011 (O&M) -16- pleadings of the parties in holding, that the substantial compliance of Section 13(3)(a)(i)(b) & (c) of the Act was made.
82. For the reasons stated above, the finding recorded by the learned Rent Controller, as affirmed by the learned Appellate Authority, on the ground of personal necessity is reversed, and it is held, that the respondent/landlord has failed to prove, that the premises were bona fide required for his personal need and occupation."
24. The other aspects about the premises in question being residential or about the respondent having filed the eviction petition within one year of his retirement were not in dispute.
25. From the aforesaid findings, the instant petition is allowed and the impugned order of eviction dated 3.3.2011, passed by the learned Rent Controller, Ambala, cannot be sustained and the same is set aside. Consequently, the eviction petition would stand dismissed.
November 19, 2014 ( R.P. NAGRATH )
rishu JUDGE
RISHU KATARIA
2014.12.24 15:23
I attest to the accuracy and
authenticity of this document