Himachal Pradesh High Court
Smt. Dakhnu vs Hem Raj And Ors. on 11 July, 1989
Equivalent citations: AIR1991HP56
ORDER Bhawani Singh, J.
1. The petitioner, Dakhnu has a grievance against the judgment of the Appellate Authority under the Rent Control Act (District Judge, Mandi) in C.M.A. No. 32 of 1982 decided on 23-11-1982 thereby confirming the order of eviction passed by the Rent Controller, Mandi, in Rent Petition No. 1 of 1976 decided on 30-1-1982.
2. The facts, in brief, are that the landlord (hereinafter to be referred to as respondent and Dakhnu as petitioners) filed an eviction petition under Section 14 of the H.P. Urban Rent Control Act, 1971 (in brief "the Act") before the Rent Controller, Mandi, on 21-2-1976 on the ground that the building is required bona fide by him for the purpose of reconstruction which cannot be carried out without the building being vacated. It is a single storeyed shop comprised in Khasra No. 943 in Mohalla Bhagwahan, Mandi town, measuring 16.30 square meters. The original tenant was Sh. Deli Ram and after his death his widow, the present petitioner has become the tenant. The monthly rent for the premises is Rs. 12/- and the building is Kutcha structure and sufficiently old.
3. The claim of the respondent has been opposed by the petitioner and it has been alleged that the shop in dispute is not Kutcha structure; rather the same is Pucca structures and was recently constructed by the respondent and he does not require the building bona fide for reconstruction nor does it require any repairs. It has also been contended that the petition has been filed with mala fide motive to harass the petitioner. Some other objections as to the form of the petition have also been made. However, they are not relevant for the purpose of deciding the issue convassed by the parties through their counsel in this case.
4. On the pleading of the parties, the Rent Controller framed the following issues :--
1. Whether the petition is not in accordance with rules, if so, its effect?OPR
2. Whether petition lacks necessary particulars. If so, its effect? OPR
3. Whether the petitioner bona fide intends to reconstruct the building in dispute? OPP
4. Relief.
5. Finally, the Rent Controller decided all the issue against the petitioner and passed the judgment on 30-1-1982 ordering the eviction of the petitioner from the premises in dispute with costs. The petitioner was allowed two months' time to hand over the premises to the respondent. The matter was brought before the Appellate Authority by the petitioner challenging the findings and the judgment of the Rent Controller but no success could be achieved and the result was that the Appellate Authority also dismissed the appeal and confirmed the finding and the decision of the Rent Controller vide decision dated 21-11-1982.
6. Now, the petitioner has moved this Court by way of the present Revision Petition and has challenged the decision of the Appellate Authority in this matter.
7. Before looking into the matter, it is relevant to quote the provisions of Section 14 of the Act as the sole question for decision in this petition is as to whether the claim of the respondent for rebuilding is bona fide or not within the parameters of this provision :--
"14. Eviction of tenants :-- (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section.
(2) .....
(3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-
(i) and (ii) .....
(iii) In the case of any building or rented land, if he requires it to carry out any building work at the instance of the Government or local authority or any Improvement Trust under some improvement or development scheme or if it has become unsafe or unfit for human habitation or is required bona fide by him for carrying out repairs which cannot be carried out without the building or rented land being vacated or that the building or rented land are required bond fide by him for the purpose of building or rebuilding or making thereto any substantial additions or alterations and that such building or rebuilding or addition or alteration cannot be carried out without the building or rented land being vacated.
(iv) .....
(b) The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller and if the Controller is not so satisfied, he shall make an order rejecting the application :
Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in aggregate.
(c) .....
(4) Where a landlord who has obtained possession of building or rented land in pursuance of an order under Sub-section (3) does not himself occupy it or, if possession was obtained by him for his family in pursuance of an order ..... or where a landlord who has obtained possession of a building under Sub-clause (iii) of the aforesaid Clause (a) put that building to any use or lets it out to any tenant other than the tenant evicted from it, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building of rented land and the Controller shall make an order accordingly.
(5) ....."
8. A perusal of these provisions indicate that the condition precedent for the eviction of a tenant is the bona fide claim of the landlord. Finding on this aspect is most crucial to the legality of any order passed under these provisions. It is further noticeable that the legislative emphasis is also to see that the landlord does not make use of these provisions in his favour simply for the eviction of an offending tenant and lets out the premises to some tenant other than the one against whom an order of eviction is sought. In that event, the aggrieved tenant can apply to the Controller and the Controller can pass an order directing the landlord to restore the possession of the premises to such a tenant. The intention behind the Act is to safeguard the interests of the tenant. Therefore, the requirement of bona fide claim of the landlord has to be satisfactorily established before a claim for rebuilding of the premises can be allowed.
9. Under Section 14(3)(a)(iii) of the Act, a petition for eviction of a tenant can lie on the following grounds :--
(a) (i) If he requires it to carry out any building work at the instance of the Government or local authority or any Improvement Trust under some improvement or development scheme;
(b) If the building has become unsafe or unfit for human habitation;
(c) If the building is required bona fide by the landlord for carrying out repairs which cannot be carried out without the building being vacated;
(d) If the building is required bona fide by the landlord for the purpose of building or re-building or making thereto any substantial additions or alterations and that such building or re-building or addition or alteration cannot be carried out without the building being vacated.
10. The claim of the respondent, in the present case, pertains to category (d) of the aforesaid grounds. From Section 14(3)(a)(iii) and 14(3)(b) it is plain that the claim of the landlord for the purposes of building or rebuilding should be bona fide or genuine one. In order to decide this requirement, various factors and surrounding circumstances have to be considered.
11. It is not a case, although an attempt was made by the counsel for the parties as to the condition of the building -- the petitioner claiming that the building is Pucca and safe whereas the respondent alleging that the same is old and worn out, where the landlord has applied for the demolition of the building on the ground of the same having become so dilapidated that it has become unsafe or unfit for human habitation. The claim of the respondent is that the building is Kutcha; it is, in fact, a Dhara and he wanted to construct a new three storeyed building at this place as the adjacent premises also belong to him with an idea to argument his income. I proceed to examine as to whether the respondent has established his claim of bona fide requirement.
12. Sh. M.L. Sharma, learned counsel appearing for the petitioner, has contended that the claim of the respondent was not bona fide. The condition of the disputed premises, he argues, was quite good and the same did not require re-building. It is further contended that the proceedings are mala fide. The sole object of the respondent is to get the premises vacated and then to construct a big building in order to earn profit by way of huge rents at the cost of a poor tenant Sh. M.L. Sharma further contends that the landlord is a rich man and has a number of buildings in Mandi town besides two apple orchards. It is also stated that the claim of the respondent that the premises are Kutcha is factually incorrect as three walls of the shop are made of stores, the fourth being a door is obviously made of wood commonly used in a shop.
13. On the other hand, Sh. Kedar Ishwar, who appears for the respondents, contends that the Rent Controller and the Appellate Authority have gone into the matter quite elaborately, discussed each and every material aspect of the case and given concurrent finding on all relevant and important matters involved in this case. In view of the concurrent finding on facts, Sh. Kedar Ishwar urges, no interference at the revisional stage is called for. It is further contended that the Act though may be a beneficial place of legislation in favour of the tenants still it leaves certain benefits in favour of the landlords and one such is the right of the landlord to augment his income by the reconstruction of the building in question in case he is able to satisfy the Court on factors necessary to be considered by the Court to prove the genuineness of his claim.
14. After perusing the records of the case and the judgment of the courts below, I am of the opinion that the respondent has clearly established a case for the eviction of the tenant on the ground of re-building the premises in question.
15. Smt. Dakhnu (R.W. 1) is not occupying the premises herself. She states that the shop is now being run by her grand sons. They have been made to sit there by her. This shop, she states, is Pucca and has tin roofing. The respondent has five-six shops, The shop is made of stone Walls. The respondent has two more shop at this place. She admits that the respondent is a rich man and has 5/6 houses in addition to the shops in Mandi town.
16. Hari Singh (R.W. 2) also supports the petitioner. Man Singh (R.W. 3) is the grandson of Smt. Dakhnu petitioner. He states that he is carrying on the shop and the same was given to him by the petitioner. The shop, he states, is Pucca so also the walls and he had no objection in case the respondent wants to construct another storey above the shop. He further states that the petitioner lives with him in the village which is at a distance of 1 1/2/2 Kilometers from the shop. He also states that he has no objection in case the respondent constructed three storeyed building at this place above the shop in question.
17. On the other hand, Hem Raj (A.W. I), the respondent, states that he is a lawyer and needs the accommdation for his office. The shop is Kutcha and is made of wood with tin roofing. In the front the coverage is of wooden planks. He further states that he wants to construct three storeyed building to earn monthly income of Rs. 300-400/- and at present he is getting only Rs. 12/- as rent. The present position of the shop, he states, is thoroughly bad. The petitioner, widow of the earlier tenant, lives in village Chhipnu and does not carry on the business in the shop herself. He gets about Rs. 1,000/- per month by way of rent and the house to be built on the disputed premises will require thirty to forty thousand of rupees which he can spend. His father was a contractor and a goldsmith. Unless the shop is demolished no new house can be built. Two houses in Samkhetar and one house in old Mandi have been given on rent.
18. Kishan Chand (A.W. 2) also says that the shop is in bad condition and that in case three storeyed house is built at this place, income of Rs. 300/400/- per month can be realised. He also admits that the respondent is a rich man and has given a number of houses on rent and according to him the disputed property is a single storeyed Pucca house.
19. Mohinder Singh (A.W. 4) states that new premises can be constructed after uprooting the present shop (Khokha). The petitioner wants to construct a three storeyed house at this place which cannot be done without getting the premises vacated. The place may be at the end of the town but is appropriate for the construction of a house as there is bazar around this area. He further states that he would spend Rs. 40,000/- to Rs. 50,000/- on the construction of this house and this amount is available with him. He has number of houses out of which he gets Rs. 1,000/- as rent per month. Besides, he has two orchards in 63 bighas. He further states that the real tenant has since died and the petitioner does not sit in the shop and lives in the village. His son is a lawyer and needs office accommodation. He has received the approval of the site plan of the construction of the house from the Municipal Committee. The walls of this building are of stone but it cannot be called a Pucca house as it is not a concrete construction. These are three Khokhas out of which one is already vacant and with respect to the other, case for eviction is already pending. His son is a practising advocate at Mandi for the last fifteen years and he has got his office at his residence.
20. Sh. Udham Singh (A.W. 5) is a retired Superintending Engineer. He has prepared map Ex. P-K and notes Ex. P-J. He states that if the hosue is to be built in accordance with the prepared plan Ex. P-H, the Khokha (disputed premises) will have to be uprooted. He prepared the site plan after visiting the spot. The same is made of Pucca stones and behind this is a wall 8/9 feet high. It has three walls of stone and the front side is of wooden planks. The life of this Khokha, he states, is over. Ex. P-J is the certificate given by him. It reads as follows :--
"Certificate I inspected the shop No. 1 of L. Mohinder Singh situated in Darmiana Mohalla (Bhagwan), Mandi town on 19-1-1979. It is a very old shed type construction. In my opinion no new construction is possible on the spot without the old shop being dismantled and material removed.
Sd/- (Udham Singh) B.A.B.E. (Civil) Retd. Superintending Engineer, HP PWD, Mandi,"
Ex. P-9 is the order of sanction for the construction of the proposed building by the respondent. It has been issued by the Municipal Committee, Mandi.
21. Before conclusions are drawn, it is worthwhile to refer to the decisions relevant in this case.
22. In 1971 SC 942 (Panchmal Narayana Shenoy v. Basthi Venkatesha Shenoy), Basthi Venkatesha Shenoy (landlord) filed an application for eviction under the Mysore Rent Control Act, 1961, on the ground that the premises were reasonably and bona fide required by him for the immediate purpose of demolishing and re-erecting of a new building. It was alleged that the premises were old and were not suitable for continued occupation. This eviction application was contested by M/s. Panchmal Narayana Shenoy (tenant). The Rent Controller ordered the eviction of the tenant after holding that the building was more than fifty years old and was old fashioned. The claim of the landlord was bona fide and reasonable and he had sufficient means to construct the new building. On appeal, the District Judge also confirmed the finding of the Rent Controller and a revision petition filed in the High Court was also rejected. On appeal by the tenant in the Supreme Court, the learned judges of the Supreme Court observed as. follows in Paras 11 to 13 of the judgment (at page SC 944; AIR 1971) :--
"11. The proviso to Section 21(1) enumerates the various circumstances under which a landlord may seek to recover possession of the property from his tenant. The requirement contemplated under Clause (j) of the proviso to Sub-section (1) is that of the landlord and it does not have any reference to the condition of the building as such. What is necessary under that clause is that the landlord must satisfy the Court that he reasonably and bona fides requires the premises for the immediate purpose of demolishing it and the demolition is for the purpose of erecting a new building in the place of the old one. No doubt, as to whether the landlord's requirement is reasonable and bona fide has to be judged by the surrounding circumstances, which will include his means for reconstruction of the building, and other steps taken by him in that regard.
12. In considering the reasonable and bona fide requirement of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord. In our opinion, it is not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition. That the condition of the property may be such which requires immediate demolition is emphasised in Clause (k) of the proviso. When such a specific provision has been made in Clause (k), the condition of the building cannot come into picture nor could it have been dealt with again in Clause (j). So the requirement under Clause (j) is that of the landlord and cannot have any reference to the building.
13. This Court, in Neta Ram v. Jiwan Lal, (1962) Supp 2 SCR 623 : (AIR 1963 SC 499) in interpreting no doubt a slightly differently worded provision in Section 13(3)(a)(iii) of the Patiala and East Punjab States Union Urban Rent Restriction Ordinance 2006 BK (8 of 2006 BK) held that one of the circumstances which could be taken into account in considering the requirements of the landlord with reference to the existing building is the possibility of its being put to a more profitable use after construction. In the case before us all the Courts have concurrently held that the requirement of the landlord is reasonable and bona fide and that he had obtained the necessary sanction from the municipality concerned and that the landlord had also the means for reconstruction of the building. If the landlord does not commence demolition of the premises within the period specified in the order of the Court, the tenant is given a right under Section 26(1) to issue a notice to the landlord of his intention to occupy the premises which he had been evicted and also to apply to the Court for relief if the landlord does not comply with his request. Again, under Section 27, the tenant has got a right to occupy the new building on its completion provided that he satisfies the requirements contained in that section, under Section 28(1) the landlord is bound to intimate the tenant from whom he had received a notice under Section 27 the date on which the erection of the new building will be completed from which date the tenant will be entitled to occupy the same."
23. In 1979 (2) Rent LR 161 (Metalwar & Co. v. Bansi Lal Sharma), the Metalware & Co. were tenants of the premises which were filed by the landlord on the ground that the building was old and dilapidated which required immediate demolition and reconstruction, and they bona fide required it for the said purpose of their occupation. It was alleged that the landlords were possessed of sufficient means to undertake the demolition and reconstruction and had applied for the sanctioning of the plan. The Rent Controller allowed the application after holding that the landlord had sufficient means to undertake the demolition and reconstruction and had got their plans approved by the Municipal Corporation. It was held that the landlords had an honest intention to demolish the existing structure and to reconstruct another on that site. No definite finding was given on the question as to whether the building was in dilapidated condition and required immediate demolition and reconstruction and the Rent Controller took the view that it was not always essential to prove that the building was decrepit before an application for possession could be made under Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960 as amended by Act 23 of 1973, and that the landlord had a right to demolish his property in order to improve his business or get better returns out of the investments and that the landlords had purchased the building for re-construction after the demolition. The Appellate Authority dismissed the appeal and affirmed the findings of the Rent Controller. A revision was filed in the High Court which was also dismissed. The tenant filed an appeal in the Supreme Court and the Supreme Court observed in Para 6 of the judgment as follows:--
"It cannot be disputed that the phrase used in Section 14(1)(b) of the Act is "the building is bona fide required by the landlord" for the immediate purpose of demolition and construction and the same clearly refers to the bona fide requirement of the landlord, it is also true that the requirement in terms is not that the building should need immediate demolition and reconstruction. But we fail to appreciate how the state or condition of the building and the extent to which it could stand without immediate demolition and reconstruction in future would be totally irrelevant factor while determining "the bona fide requirement of the landlord". If the Rent Controller has to be satisfied about the bona fide requirement of the landlord which must mean genuineness of his claim in that behalf the Rent Controller will have to take into account all the surrounding circumstances including not merely the factors of the landlord being possessed of sufficient means or funds to undertake the project and steps taken by him in that regard but also the existing condition of the building, its age and situation and possibility or otherwise of its being put to a more profitable use after reconstruction. All these factors being relevant must enter the verdict of the Rent Controller on the question of the bona fide requirement of the landlord under Section 14(1)(b). In a sense if the building happens to be decrepit or dilapidated it will readily make for the bona fide requirement of the landlord, though that by itself in the absence of any means being possessed by the landlord would not be sufficient. Conversely, a landlord being possessed of sufficient means to undertake the project of demolition and reconstruction by itself may not be sufficient to establish his bona fide requirement if the building happens to be a very recent construction in a perfectly sound condition and its situation may prevent Us being put to a more profitable use after reconstruction. In any case these latter factors may cast a serious doubt on the landlords' bona fide requirement. It is, therefore, clear to us that the age and condition of the building would certainly be a relevant factor which will have to be taken into account while pronouncing upon the bona fide requirement of the landlord under Section 14(1)(b) of the Act and the same cannot be ignored."
in Para 7, it is again observed :--
"We are clearly of the view that the age and existing condition of the building whether it is a recent construction or very old and whether it is in a good and sound condition or has become decrepit or dilapidate are relevant factors forming part of "all the circumstances" that have to be considered while determining the bona fide requirement of the landlord under Section 14(1)(b) of the Act and in the totality of the circumstances significant depending upon whether in the scheme of the concerned enactment there is or there is not a provision for reinduction of the evicted tenant into the new construction. Such a view would be in accord with the main objective of benign legislation enacted with the avowed intention of giving protection to the tenant."
24. The learned Judges also referred to some cases including Neta Ram's case (1963 SC 499) and M/s. Punchma Narayana Shenoy's case (1971 SC 942) in this judgment.
25. Sh. M.L. Sharma, learned counsel for the petitioner referred to the decision reported in AIR 1981 HP 68 (Surinder Nath v. P. N. Dhawan). A perusal of the judgment indicates that the learned Chief Justice in that case was dealing with an entirely different ground of eviction which is not in issue in the present case. Moreover, the propositions as settled by the apex Court in the aforesaid decisions were not examined in this case. These principles enunciated in these decisions have been exhausitvely considered and made use of by this Court in ILR 1987 HP 25 (Madhva Nand v. Nand Lal), and the principles involved in this case are rather similar to the present case.
26. Despite the protest of Sh. Kedar Ishwar as aforesaid, I have examined all the material aspects of this case including the evidence as well as the findings arrived at by the Rent Controller and the Appellate Authority and the result of the same is that the demand of the respondent for eviction of the petitioner for rebuilding the premises is quite genuine and bona fide. The shop is quite old and not in a good condition. In case new construction as prayed, is allowed, it will be profitable use of the premises by the respondent as by renting out the premises the represent will get more income and house more tenants. Further, the reconstruction is not possible unless and until the present shop is demolished. Further more, the bona fide of the respondent is ascertainable by the fact that he applied for the sanction of the plan and the same has been sanctioned by the Municipal Committee, Mandi. The respondent is rich man as admitted even by the petitioner. So, his claim for vacation of the premises is not just an excuse to throw away the petitioner and then let out the same to some other person without resorting to the plan of reconstruction. The respondent has two more shops at this place and he intends to construct new building over that portion as well. The new building, after reconstruction, would obviously be of modern style and being located at a situation place, will fetch more income to the respondent. Therefore, the emphasis of the learned counsel for the petitioner that the building is not in a bad shape is of not much consequence because the position of the building is to be seen only for the purpose of ascertaining the bona fide requirement of the landlord which is entirely a different thing when the same building is seen from the angle of it being unfit or unsafe for human habitation.
27. Examining the case in the light of the principles enunciated by the apex Court in the judgments aforesaid, and the relevant record of this case, I am of the opinion that the respondent has established his case as genuine and bona fide.
28. Therefore, in the light of the aforesaid discussion, I hold that both the authorities below have rightly allowed the claim of the landlord for the eviction of the petitioner. There is no merit in this revision petition and the same is accordingly dismissed with no order as to costs. The petitioner is, however, allowed one month's time from today for handing over the vacant possession of the premises to the respondent.