Himachal Pradesh High Court
Bharti Chauhan And Others vs Kuldeep Kumar (Dead) Through Lrs on 22 August, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No.79 of 2004 Reserved on : July 28, 2016 .
Date of Decision : August 22, 2016 Bharti Chauhan and others ...Petitioners.
Versus Kuldeep Kumar (Dead) through LRs and others ...Respondents of Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
rt Whether approved for reporting? No. 1 For the Petitioners : Mr. Karan Singh Kanwar, Advocate.
For the Respondents : Mr. Bhupinder Gupta, Senior Advocate, with Mr. Neeraj Gupta, Advocate.
Sanjay Karol, Judge Parties, who have been litigating since the year 2001, were apprised of their rights and benefits of having the matter amicably resolved. In fact, parties were also apprised of the advantages of mediation and despite best efforts put in by the learned Mediator, a designated Senior Advocate of this Court, parties could not arrive at any amicable solution.
Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:03:18 :::HCHP
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2. Hence, this Court is called upon to adjudge the illegality/perversity, if any, in the impugned order dated .
31.3.2004, passed by Appellate Authority-II, Sirmaur District at Nahan, in Rent Appeal No.1-N/14 of 2003, titled as Kuldeep Kumar & another v. Bharti Chauhan & another, whereby order dated 13.1.2003, passed by Rent of Controller-I, Nahan, in Rent Petition No.6/2 of 2001, titled as Bharti Chauhan & another v. Kuldeep Kumar & another, stands reversed.
rt
3. Present petition stands filed under the provisions of Section 24(5) of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the Act). The scope of interference in a petition, filed under sub-section (5) of Section 24 of the Act, is now well settled. This Court in Civil Revision No.154 of 2004, titled as Yog Raj Sood v.
Smt. Sunita Kaushal & another, decided on 1.6.2016, has observed as under:
"28. "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 ... ... ... ... ::: Downloaded on - 15/04/2017 21:03:18 :::HCHP ...3...
(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]
29. A Full Bench of this court in Vinod alias of 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.
rt
30. 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 party or suo motu by the Court. The court can call for and examine the records for "satisfying itself" about the "legality and propriety" of the "order" or the "proceedings". The High Court may pass orders as it may "deem fit".
31. Now what is the scope of such revisional jurisdiction and the extent of the power which the court can exercise is now well settled by 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 the Code of Civil Procedure is not wide enough to that of the appellate Authority.::: Downloaded on - 15/04/2017 21:03:18 :::HCHP
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(iii) Such power cannot be exercised as the cloak of an appeal in disguise.
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(iv) Issues raised in the original proceedings cannot be permitted to be reheard as a appellate Authority.
(iv) 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 of 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 rt 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 justice. Court clarified that the ratio of Ram Dass (supra) does not exposit that the revisional ::: Downloaded on - 15/04/2017 21:03:18 :::HCHP ...5...
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.
of
(ix) The exercise of such power to examine record and facts must be understood in the context of the rt 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.
32. The Court was dealing with the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, T. N. Buildings (Lease and Rent ::: Downloaded on - 15/04/2017 21:03:18 :::HCHP ...6...
Control) Act, 1960 and Haryana Urban (Control of Rent and Eviction) Act, 1973. The incongruity in the decisions rendered by the apex Court in Rukmini Amma Saradamma vs. Kallyani .
Sulochana, (1993) 1 SCC 499 and Ram Dass (supra) was the backdrop in which the Constitution Bench was called upon to decide the scope of the revisional jurisdiction and the expression "legality and propriety" provided in the relevant statues. The essential question being as to whether in exercise of such powers, the revisional authority could reappreciate the evidence or not. Finally the Court answered the of reference by making the following observations:-
"43. We hold, as we must, that none of the above Rent Control Acts entitles the rt High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order ::: Downloaded on - 15/04/2017 21:03:18 :::HCHP ...7...
impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High .
Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may of examine whether the order impugned before it suffers from procedural illegality or irregularity."
[Emphasis supplied]
4. rt In view of the aforesaid discussion, correctness, legality and propriety of the orders passed both by the Rent Controller and the Appellate Authority are required to be examined.
5. The landlords (petitioners herein) filed a petition, under the provisions of Section 14 of the Act, seeking ejectment of the tenants (respondents herein), from the premises, commonly known as "No.20 Ward No.7", comprising of two shops, where they are running a Dhaba.
6. Nature of the premises is non-residential and the rent is `600/- per month. The premises came to be acquired by the landlords from the erstwhile owner, vide ::: Downloaded on - 15/04/2017 21:03:18 :::HCHP ...8...
sale deed dated 20.11.2000. Undisputedly, the tenants, who were inducted by the previous owner, for the last .
several years, are running their Dhaba. Petition for ejectment came to be filed, on 28.3.2001, i.e. immediately after the purchase of the premises.
7. Para-18(a) of the petition reveals the ground of for ejectment. The landlords desired the old structure, constructed 35 years prior to the filing of the petition, to be demolished for raising a new structure to be put for rt their residential use, for which plan from the Architect, for raising two storeyed residential house, was prepared. A similar petition was also filed against another tenant and after demolition of the entire structure, comprising of three shops, including the premises in question, two storeyed residential building is to be constructed. Also, the tenant is in default of rent w.e.f. 1.12.1999.
8. The petition came to be opposed by the tenant, inter alia, on the ground that it came to be filed with an oblique motive and malafide intent of unfairly having him evicted without any legally justifiable cause or ground. Other pending litigation pertaining to the ::: Downloaded on - 15/04/2017 21:03:18 :::HCHP ...9...
easementary rights of enjoyment of the tenanted premises also came to be highlighted by the tenants.
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9. Based on the pleadings of the parties, Rent Controller framed the following issues:
1. Whether the respondents are in arrears of rent w.e.f. 1-12-1999 to date at the rate of Rs.600/- per month as alleged? If so its effect? ...OPP of
2. Whether the petitioners bona fide require the disputed premises for reconstruction which cannot be carried out without rtejectment of respondents? ...OPP
3. Whether the petition is mala fide? ...OPR
4. Whether the petition is not legally maintainable, as alleged? ...OPR
5. Whether the respondents have not attorned the petitioners as landlords? If so its effect?
...OPR
6. Relief.
10. On the basis of the evidence led by the parties, Rent Controller decided Issues No.1 and 2 in favour of the landlords and allowed the petition.
11. In an appeal filed by the tenants, the order passed by the Rent Controller stands reversed by the Authority below, holding the petition not to be maintainable, in view of sub-section (6) of Section 14 of the Act.
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12. For the purpose of controversy in issue, at this stage, it would be appropriate to reproduce the relevant .
portion of Section 14 of the Act as under:
"14(1) A tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this Act or otherwise, whether before or after the termination of the tenancy, except in accordance with the provisions of this Act. ................"
of (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against rt the applicant, is satisfied-
(i) that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable:
Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at the rate of 9 percent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid;
Provided further that if the arrears pertain to the period prior to the appointed day, the rate of interest shall be calculated at the rate of 6 percent per annum:
Provide further that the tenant against whom the Controller has made an order for eviction on the ground of non payment of rent ::: Downloaded on - 15/04/2017 21:03:18 :::HCHP ...11...
due from him, shall not be evicted as a result of his order, if the tenant pays the amount due within a period of 30 days from the date of order; or .
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(3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:-
(a) in the case of a residential building, if-
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(i) he requires it for his own occupation :
Provided that he is not occupying another residential building owned by him in the urban area concerned:
rt Provided further that he has not vacated such a building without sufficient cause within five years of the filing of the application, in the said urban area; or .................
(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 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 is required bona-fide by him for the purpose of building or re-building or making these to 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;
...............
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(6) Where a landlord has acquired any premises by transfer, no application for the recovery of possession of such premises shall be made under this section on the ground specified in sub-clause .
(i) of clause (a) of sub-section(3) unless a period of five years has elapsed from the date of such acquisition."
13. Statutory provisions are unambiguously clear.
The embargo laid down under sub-section (6) of Section 14 would apply only where the landlord is seeking recovery of of possession of the premises specified under sub-section (3) of Section 14. Sub-section (3) of Section 14 applies only to rt residential premises.
14. In the instant case, premises in question cannot be said to be residential. Undisputedly, both the tenancy and the tenanted premises are non-residential in nature. Cause of action for ejectment and the ground available would not be dependent upon the nature of requirement or need of the landlord, but the nature and character of the tenancy and the tenanted premises.
15. Hence, to this extent, the Authority below seriously erred in holding the petition not to be maintainable for having filed within a period of five years from the date of purchase of the tenanted premises, it being a different matter that the ground of ejectment ::: Downloaded on - 15/04/2017 21:03:18 :::HCHP ...13...
under sub-section (3) of Section 14 was otherwise not available to the landlord and as such the petition was to .
be dismissed on this count.
16. Now, the petition does not disclose under which of the clauses of Section 14 of the Act landlord is seeking ejectment of the tenants. There is no clarity in the of mind of the landlords with regard thereto. As per the pleaded case, they want the shops to be demolished and a residential house to be constructed.
rt
17. At this stage, learned counsel points out that landlords' case falls under clause (c), sub-section (3) of Section 14 of the Act, as reproduced supra. Now significantly, ejectment on the ground of simpliciter bonafide requirement is not a specified ground available under this clause. Landlords have to make out a case that
(a) the premises are required to carry out the building work at the instance of the Government or local authority, or (b) the premises have become unsafe or unfit for human habitation, or (c) required bonafide for carrying out repairs, which cannot be carried out without the premises being vacated, or (d) required bonafide for the purpose of building/ re-building or making thereto any substantial ::: Downloaded on - 15/04/2017 21:03:18 :::HCHP ...14...
additions or alterations, which otherwise cannot be carried out without the building being vacated.
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18. At best the landlords' case would fall under Part (c) or (d) of the said clause, for it is neither pleaded nor proven that ejectment is under part (a) or (b).
19. Now, the Authority below has fully appreciated of the evidence led by the parties, while deciding Issue No.2.
The premises in question are not very old. It has come in the evidence of Kuldeep Kumar (RW-1), the tenant, that rt construction is of concrete masonry walls, thickness of which is 18". Significantly, Shri Baldev Krishan (RW-2), an Expert, visited the spot and prepared his report (Ex.RW-
2/A). His testimony also reveals that the existing construction is sufficiently strong for raising the super-
structure thereupon. Now, if the landlords want to raise further construction over the existing structure, technically it is permissible. Hence tenants cannot be thrown out only for reconstruction of a building to be put to residential use by the landlord. If the landlords want to build their house and live therein, they can conveniently do so by raising construction over the existing structure. It is permissible in law and possible as per the building standards.
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20. Statement of Shri Baldev Krishan (RW-2) that the structure of the ground floor needs to be demolished is .
only in the context where the landlords want the existing structure to be knocked down and the building constructed as per the designs prepared by the Architect. It is not that otherwise plans cannot be sanctioned, if further of construction was to be raised over the existing super-
structure.
21. No Expert has come forward to depose or rt establish that unless and until the existing structure is knocked down, no construction of whatever nature can be raised. Version of Shri Pankaj Kaushal (PW-3) and his report (Ex.PW-3/A) that unless and until the existing structure is knocked down, new structure cannot be raised thereupon, rightly stands disbelieved by the Authority below, for he could not withstand the test of cross-
examination. He was vague with regard to his visit to the spot. Quite apparently, this witness had not examined the matter in entirety, more so from the point of view as to whether any construction could be raised over the existing super-structure or not.
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22. On the contrary, it stands established on record that the structure is strong enough to sustain any .
load of any construction raised thereupon. That construction on the existing structure is possible also stands amplified from the example of a similarly situated property cited by the tenants, wherein one Mr. Chawla, of who had also purchased the adjoining building, had raised three storeys without demolishing the existing structure.
23. rt Hence, for the aforesaid reasons, it cannot be said that the impugned order passed by the Authority below is perverse or illegal, warranting interference by this Court.
Hence, the petition, without any merit, is dismissed. Pending application(s), if any, also stand disposed of.
( Sanjay Karol ),
August 22, 2016(sd) Judge.
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