Himachal Pradesh High Court
Diwakar Dutt Kukreti vs Eih Associated Hotels Ltd. & Another on 18 September, 2017
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No.79 of 2017 Reserved on : July 14, 2017 .
Date of Decision : September 18, 2017 Diwakar Dutt Kukreti ....Petitioner.
versus EIH Associated Hotels Ltd. & another ...Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice. Whether approved for reporting? Yes. For the Petitioner : Mr. Harsh Khanna, Advocate.
For the Respondents : Mr. R.L. Sood, Senior Advocate,
with Mr. Sanjeev Kumar,
Advocate, for respondent No.1.
Sanjay Karol, Acting Chief Justice M/s EIH Associated Hotels Limited is the owner of demised premises, i.e. Quarters No.11, 12 & 13, Block No.4, Cecil Hotel Estate, Chaura Maidan, Shimla, Himachal Pradesh (hereinafter referred to as the Landlord). Undoubtely, the said premises were let out to respondent Diwaker Dutt Kukreti (hereinafter referred to as the tenant).
2. According to the landlord, without any authorization, tenant has sublet the same to Shambu Prashad. Tenancy was on a monthly rental of `95/- plus ::: Downloaded on - 18/09/2017 12:38:43 :::HCHP ...2...
`75/- as water charges, which the tenant defaulted in paying and upto 31.10.2010, the amount due was `680/-.
Also, tenant had covered the open verandah outside the .
demised premises and unauthorizedly constructed a flush toilet, thus making substantial additions and alterations, after the commencement of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the Act), materially impairing the value and utility of the premises.
Further, entire Block No.4, including the demises premises, situate therein, is bonafidely required for re-building and reconstruction work, which cannot be carried out without being vacated. The entire existing block needs to be completely demolished for carrying out the work of reconstruction.
3. With these facts and grounds, the landlord filed a petition for ejectment of the tenant, under the provisions of the Act, also impleading a third person, to whom possession stands parted.
4. Record reveals that joint response was filed by the tenant and the third person, adimitting that (a) tenancy is in the name of the tenant, who is the real brother of the person to whom possession of the premises stood handed over, (b) since 1979, as a joint ::: Downloaded on - 18/09/2017 12:38:43 :::HCHP ...3...
family, both the brothers have been residing in the premises, (c) flush toilet was constructed in the year 1984-85, though prior thereto a common toilet in the .
compound was being used, (e) rent was increased from `40/- to `78/- and to `95/- plus `75/- as water charges, when additional facility of flush latrine and washing space in the verandah was constructed. Hence, construction is with the consent of the landlord.
5. In the rejoinder, factum of construction of toilet with authorization stands refuted.
r Further, post-
retirement, tenant having permanently settled down in his own house at Ghaziabad (Uttar Pradesh) and the demised premises being in the exclusive possession of third person stands averred.
6. On the basis of pleadings of the parties, the Rent Controller struck the following issues for adjudication:
1. Whether the respondents are in arrears of rent as alleged, If so its effect? OPP
2. Whether the building housing the demises premises is bonafide required by the petitioner for rebuilding and reconstruction, which cannot be carried out without the vacation of the building as alleged? OPP
3. Whether the respondent No.1 has sub let the demises presmises to respondent No.2, as alleged? OPP ::: Downloaded on - 18/09/2017 12:38:43 :::HCHP ...4...
4. Whether the respondent No.1 has made substantial addition and alteration in the demises premises, as alleged? OPP
5. Whether the petitioner is stopped by way of his .
acts, omission, commission and acquiescence from filing the present petition? OPR
6. Whether the petition is malafide? OPR
7. Whether the petition is not maintainable? OPR
8. Relief.
7. After trial, the Rent Controller, after answering issues No.2 and 3 in favour of the landlord, issues No.1 & 4 in favour and issues No.5,6 & 7 against the tenant, allowed the petition in the following terms:
In view of the discussion made herein before and findings returned on the aforesaid issues, the present petition stands partly allowed and the petitioner is entitled to the eviction of the respondent from the demises premises, i.e. Quarter No.11,12&13, Block No.4, Cecil Hotel Estate, Chaura Maidan, Shimla, H.P. As such, respondent is directed to handover the vacant possession on the ground that the demised premises is bonafidely required by the petitioner for rebuilding and reconstruction by the petitioner, which cannot be carried out except by vacation of the above premises by the respondents and also on the ground that respondent No.1 has sublet the premises in question to respondent No.2 without the written consent of the petitioner/ landlord.
However, petition for eviction on the ground of arrears of rent and substantial additions and alteration stands dismissed. But, the respondent NO.1 will have right of re-entry as provided under Section 14(3)(c) of the Act and the petitioner after gaining possession of the demises premises will raise construction on old lines and after completion of the same will -re-induct the ::: Downloaded on - 18/09/2017 12:38:43 :::HCHP ...5...
respondents in the building so constructed providing the accommodation in the same place, location and area to the respondents as was in possession f the respondents before passing of this order. Memo of cost be prepared accordingly."
.
8. It is not in dispute that the tenant and his brother accepted the findings returned by the Rent Controller and only the landlord preferred an appeal, which stands allowed vide judgment dated 30.12.2016, passed by Additional District Judge (II), Shimla, in Civil Appeal No.RBT 2-s/14 of 2016, titled as EIH Associated Hotes Ltd. v. Diwakar Dutt Kukreti.
9. Appellate Authority concurred with the findings returned by the Rent Controller on Issues No.2 and 3. Findings on Issue No.4 that no substantial additions or alterations were carried out in the demised premises were altered and set aside. Since the tenant had carried out substantial additions and alterations, without the consent of the landlord, impairing the value and utility of the demised premises and also the demised premises bonafidely required for rebuilding and reconstruction, the appeal was allowed. Significantly, since the tenant had parted with the possession of the demised premises, in favour of respondent No.2, no right ::: Downloaded on - 18/09/2017 12:38:43 :::HCHP ...6...
of re-entry, as envisaged under Section 14(3)(c) of the Act, was granted in his favour. Also, findings on issue No.1 were reversed.
.
10. It is in this backdrop, tenant alone has filed the present petition, under sub-section (5) of Section 24 of the Act, assailing the order of eviction.
11. In support of the petition, the landlord has placed on record rough sketch plan and several orders passed by the Courts, awarding use and occupation charges with respect to the adjoining and other premises in the vicinity so owned by them.
12. For the purpose of convenience and ready reference sub-Section (5) of Section 24 of the Act is extracted as under:-
"Vesting of Appellate Authority on officers by the State Government.
Section 24 ... ... ... ...
(5) The High Court may, at any time, on the application of the aggrieved party or on its own motion call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceeding and may pass such order in relation thereto as it may deem fit."
[Emphasis supplied] ::: Downloaded on - 18/09/2017 12:38:43 :::HCHP ...7...
13. A Full Bench of this court in Vinod alias Raja vs. Smt. Joginder Kaur, 2012 (3) Him. L. R. (FB) 1401 has held the right of appeal to be a statutory right, not to be .
circumscribed by the delegatee/State Government.
14. The order of the authority attaches finality not to be called in question in any Court of law, except by the High Court in exercise of its revisional jurisdiction which can be either on an application filed by an aggrieved "legality and r to party or suo motu by the Court. The Court can call for and examine the records for "satisfying itself" about the propriety" of the "order" or the "proceedings". The High Court may pass orders as it may "deem fit".
15. What is the scope of interference in a petition seeking revision of order passed by the Rent Controller or Appellate Authority is now no longer res integra.
16. A five-Judge Bench of the apex Court reported in Hindustan Petroleum Corporation Limited vs. Dilbahar Singh, (2014) 9 SCC 78. The findings can be summarized as under:
(i) The term 'propriety' would imply something which is legal and proper.
(ii) The power of the High Court even though wider than the one provided under Section 115 of ::: Downloaded on - 18/09/2017 12:38:43 :::HCHP ...8...
the Code of Civil Procedure is not wide enough to that of the appellate Authority.
(iii) Such power cannot be exercised as the cloak of an appeal in disguise.
.
(iv) Issues raised in the original proceedings cannot be permitted to be reheard as a appellate Authority.
(v) The expression "revision" is meant to convey the idea of much narrower expression than the one expressed by the expression "appeal". The revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the CPC but certainly it is not wide enough to make the High Court a second court of first appeal. While holding so the Court reiterated the view taken in Dattonpant Gopalvarao Devakate vs. Vithalrao Maruthirao Janagawal, (1975) 2 SCC 246.
(vi). The meaning of the expression "legality and propriety" so explained in Ram Dass vs. Ishwar Chander, (1988) 3 SCC 131 was only to the extent that exercise of the power is not confined to jurisdictional error alone and has to be "according to law".
(vii) Whether or not the finding of fact is according to law or not is required to be seen on the touch stone, as to whether such finding of fact is based on some legal evidence or it suffers from any illegality like misreading of the evidence; overlooking; ignoring the material evidence all together; suffers from perversity; illegality; or such finding has resulted into gross miscarriage of ::: Downloaded on - 18/09/2017 12:38:43 :::HCHP ...9...
justice. Court clarified that the ratio of Ram Dass (supra) does not exposit that the revisional power conferred upon the High Court is as wide as an appellate power to reappraise or reassess the .
evidence for coming to a finding contrary to the findings returned by the authority below.
(viii) In exercise of its revisional jurisdiction High Court shall not reverse findings of fact merely because on reappreciation of the evidence it may have a different view thereupon.
(ix) The exercise of such power to examine record and facts must be understood in the context of the purpose that such findings are based on firm legal basis and not on a wrong premise of law.
(x) Pure findings of fact are not to be interfered with. Reconsideration of all questions of fact is impermissible as Court cannot function as a Court of appeal.
(xi) Even while considering the propriety and legality, high Court cannot reappreciate the evidence only for the purposes of arriving at a different conclusion. Consideration of the evidence is confined only to adjudge the legality, regularity and propriety of the order.
(xii) Incorrect finding of fact must be understood in the context of such findings being perverse, based on no evidence; and misreading of evidence.
17. Next issue, which arises for consideration is as to whether in the absence of any appeal having been ::: Downloaded on - 18/09/2017 12:38:43 :::HCHP ...10...
preferred by the tenant or the sub-tenant, assailing the findings returned against them by the Rent Controller, is it open for the tenant to now assail the same and that too .
in the present petition. It be only observed that the Rent Controller decided issues No.2 and 3 (supra) against the tenant.
18. Even this question is no longer res-integra.
Clause (b) of sub-section(1) of Section 24 provides for the party.
r to remedy of appeal against an order passed by the Rent Controller. Such right is not confined to a particular In fact, right to file an appeal against an order passed by the Rent Controller is conferred upon "any person aggrieved" by such an order.
19. A Coordinate Bench of this Court in Ashok Kumar and others v. Uttam Chand, 1995(2) Sim.L.C. 373, has observed as under:
"9. Learned Counsel for the petitioner has tried to take advantage from1983 SLJ(HP) Vol. XIII, P. 160, M/s Ram Asra Hari Chand v. Shri Tara Chand and Another, wherein, it has been held that right to file an appeal provided in the Act can be availed of by any person aggrieved by an order passed by the Rent Controller, and 'person aggrieved' means a person against whom a decision has been pronounced which has lawfully deprived him of something or wrongfully refused him something or wrongfully affected his title to do something. In this reported case, it has been held that the landlord was a person aggrieved and could file an appeal against the order of ejectment passed in ::: Downloaded on - 18/09/2017 12:38:43 :::HCHP ...11...
his favour by the learned Rent Controller on the ground of non-payment of rent, which could be nullified by depositing the arrears of rent within the statutory period of 30 days and not on any other ground. It was held that landlord was definitely a person aggrieved as he was not .
granted relief on any other ground and could file an appeal against the order of Rent Controller.
10. On the strength of the aforesaid rulling, it is being argued that the landlord did not assail the findings given against him by the Rent Controller by way of an appeal, but only by way of cross- objections, therefore, as the cross-objections were not legally maintainable, the appellate authority acted illegally in allowing the cross-objections, and in case, those cross objections are excluded, there does not remain anything in favour of the landlord."
20. Significantly, even in the appeal preferred by the landlord, tenant did not agitate the correctness of findings returned by the Rent Controller.
21. Having said that, still to satisfy its conscience, this Court ventured to examine the correctness of such findings.
22. Record reveals that neither the tenant nor his brother (third person, to whom possession stands handed over) stepped into the witness box.
23. In support of the petition, landlord examined seven witnesses and on 26.4.2013, evidence was closed.
Thereafter, despite six opportunities granted to the tenant, he did not produce any evidence. It appears that ::: Downloaded on - 18/09/2017 12:38:43 :::HCHP ...12...
in order to delay and procrastinate the proceedings, tenant preferred two applications, and one of them for seeking amendment of the response. With the dismissal .
of the application, another opportunity to lead evidence was afforded, which was also not availed. Since none was present on 3.9.2015, tenant was proceeded exparte and on 2.12.2015 arguments heard and order pronounced on 11.12.2015.
24. From the perusal of testimony of Desraj (PW-
7) and Rakesh Mehta (PW-5), it stands established that the existing structure is more than 100 years old. As per the building plan (Ex.PW-2/A), reconstruction cannot take place without the tenant being evicted and the premises vacated.
25. Also, document (Ex. PW-1/A), being a Ration Card so prepared in the year 2004, negates the plea taken by the tenant of both the brothers residing together as a joint family. Only names of respondent No.2 and his family members are entered therein. It has come in the evidence that the tenant is permanently residing in Ghaziabad (Uttar Pradesh), which averment is also not disputed. Hence, reasonable presumption about existence of such fact can be drawn, particularly when no ::: Downloaded on - 18/09/2017 12:38:43 :::HCHP ...13...
evidence was led by the tenant, for had he done so, it would have been only unfavourable to him and as such deliberately withheld the same.
.
26. In the response, the tenant admits having constructed a flush latrine and washing place. Now, under what circumstances, it came to be set up, onus to prove the same was upon the tenant, which he failed to discharge by leading any evidence, ocular or documentary.
27. Even on the question of non-payment of rent findings are correct.
28. The next question, which arises for consideration, is as to whether a tenant, who has parted away with possession of the premises in favour of respondent No.2, has forfeited his right of re-entry in the premises or not. The answer cannot be in the affirmative, for with the parting of possession, tenant forfeits all rights in the tenanted premises.
29. In Kusum Devi v. Mohan Lal (Dead) by LRs, (2009) 11 SCC 594, the Hon'ble Supreme of India, has held as under:
"18. As stated above, what is to be ascertained by the court in a suit for eviction under Clauses (e) and (g) is the bona fide requirement of the ::: Downloaded on - 18/09/2017 12:38:43 :::HCHP ...14...
landlord; under Clause (e) for own occupation and under Clause (g) for carrying out repairs, etc. in the suit premises. If, on the basis of the pleadings and evidence led, the court is satisfied that the landlord has established his bona fide requirement of the suit premises for his own occupation or for .
any member of his family under Clause (e), it may order eviction of tenant under the said clause. Once such a decree is passed, the landlord, by grant of such decree in his favour, gets a right to either move to the building so vacated without or after making repairs, alterations, additions, etc."
"50. In case decree for eviction is passed only under Clause (e), the landlord would be entitled to move into the premises without or after making any repairs and the provisions of Section 17 of the Act would apply. But if the same is passed under Clause (g) alone, the provisions of Section 18 would apply. However, in case decree is passed under Clauses (e) and (g) both, in that eventuality, the same shall be deemed to have been passed mainly under Clause (e), as such the provisions of Section 17 of the Act would alone apply and not Section 18 thereof."
30. In any event, this aspect would have no bearing on the outcome of the decision, for eviction on the ground of value and utility having been impaired and the premises being bonafidely required for reconstruction, which cannot be carried out without the tenant being evicted, has to be unfettered and absolute in every aspect.
31. The landlord filed the petition for ejectment, on the grounds of arrears of rent [Section 14(2)(1)], rebuilding and reconstruction [Section 14(3)(c)], sub-let the premises [Section 14(2)(ii)(a)], and that the tenant ::: Downloaded on - 18/09/2017 12:38:43 :::HCHP ...15...
has made substantial additions and alteration [Section 14(2)(iii)], impairing the value and utility of the demised premises.
.
32. There is yet another issue, which needs to be considered and that being, payment of use and occupation charges to the landlord. Order of eviction was passed in December, 2015. Appeal of the landlord was also allowed vide order dated 30.12.2016. This Court had not stayed operation of the order of eviction.
these circumstances, tenant is required to pay use and occupation charges to the landlord. Mr. R.L. Sood, Under learned Senior Advocate, has placed on record interim order dated 29.12.2015, passed by this Court, in CR No.189 of 2015, titled as Smt. Kunta Devi v. EIH Associated Hotels Limited, whereby, tenant in the very same Block (building) agreed to pay a sum of `6,000/- per month. Record reveals that in relation to Quarters No.35 and 6, Block No.4 itself, where the demised premises are situate, various Courts/authorities have passed orders, directing the tenants to pay use and occupation charges at the rate of `6,000/- per month. This is for premises comprising only of one quarter.
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33. Under these circumstances, this Court is unable to fathom as to why similar order be not passed in the present case. As such, it is directed that w.e.f.
.
1.1.2016, till the time possession of the premises is handed over to the landlord, the tenant/occupier shall pay a sum of `6,000/- per month, for each one of the three quarters (premises) in their possession. In all a sum of `18,000/- per month shall be paid as use and occupation charges.
Hence, for all the reasons, present petition is disposed of in the terms. Pending application(s), if any, also stand disposed of.
( Sanjay Karol ) September 18, 2017(sd) Acting Chief Justice ::: Downloaded on - 18/09/2017 12:38:43 :::HCHP