Himachal Pradesh High Court
Shri Naresh Kumar vs Shri Naresh Kumar And Another on 22 August, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
.
Civil Revision No.142/2014
Decided on : 22.08.2016
Shri Naresh Kumar
.... Petitioner
Versus
Shri Naresh Kumar and another
.... Respondents.
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The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? No.1
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For the Petitioner : Mr. Bhupinder Gupta, Senior Advocate
with Mr. Janesh Gupta, Advocate.
For the Respondents: Mr. I.S. Chandel, Advocate.
Sanjay Karol, J. (oral)
Petitioners, Naresh Kumar and Ashok Kumar (landlord) filed a petition for ejectment against respondent Naresh Kumar (tenant). The tenanted premises being a shop on the ground floor ( measuring 3.30 x 4.80 meters) in a building situate over Khasra No.459 of Chak Shali, Tehsil Theog came to be let out on a monthly rental being `1270/-.
2. A petition for ejectment came to be filed under Section 14 (3) C of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the Act).
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:03:37 :::HCHP 23. Relevant portion of the provision is extracted herein under:-
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"(c) 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 of 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 rt or that the building or rented land is required bona-
fide by him 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 or rented land being vacated;
[Provided that the tenant evicted under this clause shall have right to reentry on new terms of tenancy, on the basis of mutual agreement between the landlord or tenant, to the premises in the re-built building equivalent in area to the original premises for which he was tenant.
Provided further that in case of non residential premises, the landlord shall not compel the tenant for a change of business under the new terms of tenancy; and]"
4. The factum of tenancy and the quantum of rent were never disputed by the tenant as is evident from the ::: Downloaded on - 15/04/2017 21:03:37 :::HCHP 3 response filed to the petition. However whether the landlord required the building for re-construction/ .
addition/alternation, which could not be carried out without the tenant being evicted, was disputed.
5. The Courts below, concurrently have held the landlord to have established through the testimonies of four of witnesses, that construction of a new building cannot be carried out without the tenant vacating the premises in rt question. On the factual aspect, findings returned by the authorities below cannot be held to be perverse, warranting interference by this Court. The petition cannot be said to have been filed with a malafide intent, of ejecting the tenant without any sufficient and justifiable cause.
6. Noticeably, there has been previous litigation inter-se the parties with respect to the use of amenities including the staircase existing on the spot. It stands established that except for the portion which is in occupation of the tenant, the entire four storeyed building is vacant and as such, the premises are bonafidely required by the landlord for carrying out repairs/making substantial addition/alteration/re-building which cannot be so done without the tenant being ejected.
::: Downloaded on - 15/04/2017 21:03:37 :::HCHP 47. As such, keeping in view the ratio of law laid down by this Court in Civil Revision No.154 of 2004, titled as .
Sh. Yog Raj Sood vs. Smt. Sunita Kaushal and another, decided on 1.6.2016, no ground for interference is made out in the present petition filed under Sub Section (5) of Section 24 of the Act, save and except that the authorities below of failed to acknowledge the tenant's right of re-entry as stipulated under rt the first proviso of the ground of ejectment.
8. A Co-ordinate Bench of this Court, while dealing almost similar circumstance, in Sh. Lin Kuei Tsan vs. Sh Ashok Kumar Goel, Latest HLJ 2015 (HP) 1096, has observed as under:-
"40. The tenant by way of instant revision has questioned the order dated 24.3.2014 passed by the learned Rent Controller (V), Shimla whereby pursuant to the execution proceedings having been carried out by the landlord, the tenant was granted three months' time to vacate the premises, however with the right of re-entry. Now, that the revision petition preferred by the tenant itself has been dismissed and the order passed by the appellate authority, has been upheld, this revision is disposed of with the clarification that the eviction order shall not be put to execution unless the petitioner/landlord/appellant ::: Downloaded on - 15/04/2017 21:03:37 :::HCHP 5 produces before the Executing Court the building plan duly sanctioned/approved by a competent authority and it shall be open to the tenant to apply .
for re-entry into the building in accordance with the proviso to Clause (c ) of Section 14 (3) of the Act introduced by the Amendment Act. Pending application(s) if any, stands disposed of. The parties are left to bear their own costs."
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9. The Act itself entitles the tenant so evicted under the said Clause, a right of re-entry, which provision rt significantly stands upheld by a Division Bench of this Court in CWP No.2072 of 1995, titled as Chamna Lal Bali vs. State of Himachal Pradesh and another, decided on 2.8.2016.
10. As such, the impugned orders dated 18.11.2010, passed by Rent Controller, Theog, District Shimla, in Rent Petition No.4-2 of 2008, titled as Naresh Kumar and another vs. Naresh Kumar, as affirmed vide order dated 31.5.2014, passed by Appellate Authority (III), Shimla, H.P., in Rent Appeal No.7-T/13 B of 2013/12, titled as Naresh Kumar vs. Naresh Kumar and another, are modified to the extent that the directions issued in Lin Kuei Tsan (supra) shall also apply mutatis mutandis to the instant case. Of course this is in acknowledgement of the tenant's right of re-entry, in accordance with law.
::: Downloaded on - 15/04/2017 21:03:37 :::HCHP 611. No other point is urged.
With the aforesaid observations, present petition .
stands disposed of accordingly, so also, pending application(s), if any.
(Sanjay Karol), August 22, 2016 (KS) of Judge.
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