Himachal Pradesh High Court
Mandeep Singh vs Gian Chand on 18 July, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.R. No. 41/2019 Reserved on: 11.7.2019 Date of decision: 18.7.2019 .
Mandeep Singh .....Petitioner
Versus
Gian Chand .....Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 Yes For the petitioner: Mr. Pratap Singh Goverdhan, Advocate.
For the respondent: Mr. Sudhir Thakur, Senior Advocate with Mr. Anirudh Sharma, Advocate.
Tarlok Singh Chauhan, Judge The moot question in in this petition is whether the eviction of petitioner/tenant can be ordered for settling married son of the respondent/landlord under Section 14 (3)(a)(i) of the H.P. Urban Rent Control Act (in short, the Act) even if the same is not covered under Section 14(3)(d) of the Act. However, before answering this question, certain minimal facts need to be adverted to.
The parties shall be referred to as the "landlord" and "tenant".
2 The landlord filed a rent petition under Section 14 of the Act before the learned Rent Controller seeking eviction of the 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 29/09/2019 00:56:18 :::HCHP 2 tenant on the ground that his son intended to settle his business of readymade garments in Solan by shifting the same business from Mexico and that since he and his wife were old, they wanted to live .
with their son at Solan. The landlord also claimed arrears of rent and sought eviction on the ground of material addition and alteration being carried out by the tenant in the premises in question. The tenant contested the petition tooth and nail and denied the grounds taken in the petition seeking his eviction from the premises in question.
3 The learned Rent Controller vide order dated 24.5.2018 partly allowed the eviction petition on the ground of nonpayment of the arrears of rent and the premises in question being required by the landlord for his son for running business of garments.
4 Feeling aggrieved by the order dated 24.5.2018, the tenant went in appeal before the learned Appellate Authority, who vide judgment dated 1.11.2018 dismissed the same, constraining the tenant to file the instant petition.
5 I have heard the learned counsel for the parties and have also gone through the records of the case carefully.
6 At the outset, it would be necessary to reproduce relevant provisions of Act as contained in Sections Sections 14(3)(a)
(i) and14(3) (d), which read as under: ::: Downloaded on - 29/09/2019 00:56:18 :::HCHP 3 "14. Eviction of tenants (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
(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:
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 xxx xxx xxx
(d) in the case of any residential building, if he requires it for use as an office, or consulting room by his son who intends to start practice as a lawyer, an architect, a dentist, an engineer, a veterinary surgeon or a medical practitioner, including a practitioner of Ayurvedic Unani or Homoeopathic System of Medicine or for the residence of his son who is married, if
(i) his son as aforesaid is not occupying in the urban area concerned any other building for use as office consulting room or residence, as the case may be; and
(ii) his son as aforesaid has not vacated such a building without sufficient cause, after the commencement of this Act, in the urban area concerned :
Provided that where the tenancy is for a specified period, agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this subsection before the expiry of such period:
Provided further that where the landlord has obtained possession of any building or rented land under the ::: Downloaded on - 29/09/2019 00:56:18 :::HCHP 4 provisions of clause (a) or clause (b), he shall not be entitled to apply again under the said clause for the possession of any other building of the same class or rented land: Provided further that where a landlord has obtained .
possession of any building under the provisions of clause (d), he shall not be entitled to apply again under the said clause for the use of, or for the residence of the same son, as the case may be."
7 Similar issue came up before the Hon'ble Supreme Court while construing pari materia East Punjab Urban Rent Restriction Act, 1949 in Joginder Pal vs. Naval Kishore Behal, 2002 (5) SCC 397, wherein it was observed that the expression "for his own use" as occurring in Section 13 (3)(a)(iii) of the East Punjab Urban Rent Restriction Act, 1949 equal to Section 14(3) (a)(i) of the Act cannot be narrowly construed. The expression must be assigned a wider, liberal and practical meaning. It was further observed that the requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement, he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use. This could include the requirement of the wife, husband, sister, children including son, daughter, a widowed daughter and her son, nephew, ::: Downloaded on - 29/09/2019 00:56:18 :::HCHP 5 coparceners, members of family and dependents and kith and kin of landlord as "his" or "his own" requirement and user. It shall be apposite to reproduce the relevant observations as contained in para .
24, which read thus:
24. We are of the opinion that the expression 'for his own use' as occurring in Section 13(3)(a)(iii) of the Act cannot be narrowly construed. The expression must be assigned a wider, liberal and practical meaning. The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use. In the several decided cases referred to hereinabove we have found the pari materia provisions being interpreted so as to include the requirement of the wife, husband, sister, children including son, daughter, a widowed daughter and her son, nephew, coparceners, members of family and dependents and kith and kin in the requirement of landlord as "his" or "his own"
requirement and user. Keeping in view the social or socio religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the ::: Downloaded on - 29/09/2019 00:56:18 :::HCHP 6 requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire : (i) whether the requirement of such person can be considered to .
be the requirement of the landlord, and (ii) whether there is a close interrelation or identity nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the abovesaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent. The landlord is not going to let out the premises to his son and though the son would run his office in the premises the possession would continue with the landlord and in a sense the actual occupation by the son would be the occupation by the landlord himself. It is the landlord who requires the premises for his son and in substance the user would be by landlord for his son's office. The case squarely falls within the scope of Section 13(3)(a)(ii) of the Act.
8 Similar observations can be found in subsequent judgment of the Hon'ble Supreme Court in Dwarkaprasad vs. Niranjan and ors. 2003 (4) SCC 549, wherein an identical provision of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 was under consideration and it was held as under: "9. This brings us to the legal question about the meaning to be given to the word "himself" used in subsection (g) of Section 13(1) of the Act. Normally, the rent legislations are ::: Downloaded on - 29/09/2019 00:56:18 :::HCHP 7 meant for the benefit of the tenants but the rent statutes contain exceptions in favour of the landlord which give him a right to evict the tenant, the most important being to ensure that he gets payment of rent regularly and promptly and that .
in case the tenanted premises is required by him for his personal need, he is able to get its possession from the tenant. So the provision regarding eviction of tenant to meet the personal requirement of the landlord with respect to the premises is a provision for the benefit of the landlord. The question arises that should such a provision be construed strictly so as to confine it to the requirement of the landlord alone or can it be extended to include the requirement of members of landlords' family. In the present case, the plaintiff has pleaded right from the beginning that he constitutes a joint family with his mother and brothers and sisters. It is also in evidence that the plaintiff holds the property for the benefit of the entire family. Even when the plaintiff is sole owner of the property, it is open to him to use the property for the benefit of his larger family which includes his brothers and sisters. The respondenttenant cannot dispute the fact about the plaintiff's constituting a joint family because it is specifically provided in the lease deed which is an admitted document. Moreover, the defendant had not led any evidence to contradict or dispute this plea. The way the case has been argued before the courts below also clearly suggests that the only objection raised on behalf of the tenant was a legal objection that the need of the brothers and sisters of the landlord cannot be considered under sub section (g). The fact that the plaintiff constituted a joint family with his brothers and sisters was never disputed."::: Downloaded on - 29/09/2019 00:56:18 :::HCHP 8
9 Now, as regards provisions of Section 14(3)(a)(i) of the Act, the same came up for consideration before the Three Judge Bench of Hon'ble Supreme Court in Kailash Chand and anr. vs. Dharam .
Das, AIR 2005 SC 2362, wherein interpretation given to the words "his own occupation" in Joginder Pal and Dwarkaprasad's cases (supra) was reiterated and it was observed as under: "25 The expression 'his own occupation' as occurring in sub clause (i) of clause (a) of section (3) is not to be assigned a narrow meaning. It has to be read liberally and given a practical meaning. 'His own occupation' does not mean occupation by the landlord alone and as an individual. The expressions "for his own use" and "for occupation by himself"
as occurring in two other Rent Control Acts, have come up for the consideration of this Court in Joginder Pal v. Naval Kishore Behal, (2002) 5 SCC 397 and Dwarkaprasad v. Nirnajan and Another, (2003) 4 SCC 549. It was held that the requirement of members of family of the landlord or of the one who is dependent on the landlord, is the landlord's own requirement. Regard will be had to the social or socio religious milieu and practices prevalent in a particular section of society or a particular region to which the landlord belongs, while interpreting such expressions. The requirement of the family members for residence is certainly the requirement by the landlord for 'his own occupation'.
26 Undoubtedly, the Himachal Pradesh Urban Rent Control Act, 1987 has been enacted for the purpose of providing for the control of rents and evictions because of paucity of accommodation in urban areas. The Rent Control ::: Downloaded on - 29/09/2019 00:56:18 :::HCHP 9 Legislations, generally aim at preventing rackrenting and resorting to evictions by unscrupulous and greedy landlords, who take advantage of the shortage in availability of accommodations in cities and dictate their terms to the .
tenants and if they do not follow the dictates, subject them to eviction. The Rent Control Legislations are generally heavily loaded in favour of the tenants and the provision dealing with which the courts at times lean in favour of the landlords is the one which permits the landlord to seek eviction of the tenant on the ground of requirement for his own occupation, residential or nonresidential. There are weak amongst the tenants as also amongst the landlords. (See Joginder Pal's case, supra, paras 9 and 32) Take the case of a landlord knocking the doors of the court seeking its assistance for a roof over his head or for a reasonably comfortable living, when he is himself either in a rented accommodation or squeezing himself and his family members in a limited space, while the tenant protected by the Rent Control Law is comfortably occupying the premises of the landlord or a part thereof. Provisions like Section 14(3)(a)(i) of the Act should be so interpreted as to advance the cause of justice instructed by the realties of life and practical wisdom. While the tenant needs to be protected, the courts would not ordinarily deny the relief to the landlord, who genuinely and bona fide requires the premises in occupation of the tenant for occupation by himself or for the members of his family, unless they feel convinced that the so called requirement of the landlord was a ruse for getting rid of an inconvenient tenant or was otherwise mala fide and did not fall within the four corners of the ground for eviction provided by the law."
::: Downloaded on - 29/09/2019 00:56:18 :::HCHP 1010 Similar reiteration of law can be found in number of judgments of this Court, some of which are enumerated below:
1. Nand Lal Sharma vs. Smt. Bimla Sharma, Latest .
HLJ 2007 (HP) 1112;
2. Shri Jasvinder Singh vs. Shri Kedar Nath, Latest HLJ (2012) (HP) 1452;
3. Jagat Ram Chauhan vs. Smt. Avinash Partap and anr., Latest HLJ 2014 (HP) 420;
4. Madan Lal Gupta vs. Smt. Avinash Partap and anr., 2014(2) Shim.LC 593);
5. Sham Lal (dead) through LRs vs. Smt. Rama Sharma, Latest HLJ 2015 (HP) 1342;
6. Sh. Ram Krishan Melu vs. Smt. Kusum Bhasin, Latest HLJ 2015 (HP) 1479;
7. Asha Tiwari vs. Manoj Kumar Kansara, ILR 2016(V) HP 286;
8. Hari Singh vs. Devender Pratap, ILR 2016 (V) HP1740; and
9. Urmil Kumari Sharma vs. K. D. Sharma, Latest HLJ 2008 (HP) 828.
11 Thus, in view of the aforesaid exposition of law, it can conveniently be held that the eviction of the landlord can be sought for settling his son under Section 14 (3)(a)(i) of the Act even if the same is not covered under Section 14(3)(d) of the Act.
12 As regards merit of the case, the scope of revisional jurisdiction which this Court can exercise must borne in mind, as ::: Downloaded on - 29/09/2019 00:56:18 :::HCHP 11 the Constitution Bench of the Hon'ble Supreme Court in Hindustan Petroleum Corporation Limited vs. Dilbahar Singh (2014) 9 SCC 78 laid down certain broad principles for exercise of .
revisional jurisdiction, which 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.
(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".::: Downloaded on - 29/09/2019 00:56:18 :::HCHP 12
(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 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.
::: Downloaded on - 29/09/2019 00:56:18 :::HCHP 13(xii) Incorrect finding of fact must be understood in the context of such findings being perverse, based on no evidence; and misreading of evidence."
13 In the aforesaid decision, the Hon'ble Supreme Court .
was dealing with the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, T. N. Buildings (Lease and Rent Control) Act, 1960 and Haryana Urban (Control of Rent and Eviction) Act, 1973. The incongruity in the decisions rendered by the Hon'ble Supreme 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 Hon'ble Supreme Court answered the reference by making the following observations: "43. We hold, as we must, that none of the above Rent Control Acts entitles the 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 ::: Downloaded on - 29/09/2019 00:56:18 :::HCHP 14 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 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 examine whether the order impugned before it suffers."
14 Bearing in mind the aforesaid exposition of law, it would be noticed that the landlord in order to prove his case examined himself as PW1 and tendered in evidence his affidavit, Ext.PW1/A, wherein he reiterated and reasserted the averments set out in the petition and stated that there was no one to look after him and his ::: Downloaded on - 29/09/2019 00:56:18 :::HCHP 15 wife, therefore, his son, Sanjeev Sharma, had to shift to Solan along with his family. He further stated that he had recently undergone gallbladder operation and his wife had also to be operated for .
gallbladder and uterus. The tenanted premises were the best suited place for his son as it was located in the prime location of Solan Town. In crossexamination, he stated that nowadays his son was doing private job in Delhi and was not residing at Solan. He further stated that neither his son had made preparation to do business at Solan nor he had applied for sale tax number.
15 Sanjeev Sharma, son of the landlord, appeared in the witness box as PW2 and tendered his evidence by way of an affidavit, Ext.PW2/A, wherein he stated that he required the tenanted premises to set up his business of ready made garments as he and his family wanted to shift his business from Mexico to Solan. After winding up business in Mexico, he was temporarily residing in Delhi and doing private job there, but was not satisfied with his job and wanted to start ready made garments business. He further stated that his father had recently undergone gallbladder operation and his mother had also to be operated upon, therefore, he wanted to shift to Solan and to set up business of ready made garments in the tenanted premises. In crossexamination, he stated that when he returned from abroad, he came to Solan and later on went to Delhi. He admitted that he had no documents from which it could be inferred that he wanted to do ready ::: Downloaded on - 29/09/2019 00:56:18 :::HCHP 16 made garments business, however he volunteered that he could show his visiting card.
16 On the other hand, the tenant appeared in the witness .
box as RW1 and deposed that son of the landlord was residing abroad and doing business there and he had no intention to shift or settle at Solan. He stated that the landlord intended to sell the tenanted premises and the proposed buyer had been forcing the landlord to get the tenanted premises vacated and in order to give vacant possession to the buyer, the landlord had concocted false plea of bona fide requirement.
17 This in entirety is the evidence led by the parties.
18 Thus, what stands established on record is that the respondent is the landlord of the tenanted premises, whereas the petitioner is the tenant in the same.
19 It would be noticed that the specific case of the landlord is that he wants to get his son settled at Solan. Obviously, there can be no reason to doubt the bona fide of the landlord as admittedly the landlord is a senior citizen aged about 83 years and thus require someone to look after him and his property. PW2 Sanjay Sharma, has specifically stated that after winding up his business in Mexico, he wants to settle for business at Solan. Even statement of PW2 Sanjay Sharma cannot be taken to be suspicious much less doubted.
Moreover, the tenant has failed to lead any evidence or produce on ::: Downloaded on - 29/09/2019 00:56:18 :::HCHP 17 record any positive material to show and establish that the requirement of the landlord is neither genuine nor bona fide.
20 In view of the aforesaid discussion, no interference is .
warranted on the pure findings of fact rendered by both the learned authorities below. There is neither any illegality nor any perversity in the same. The testimonies of the witnesses stand correctly and completely appreciated. The oral and documentary evidence also stand considered in its right perspective and even the provisions of law have been correctly applied to the given facts and circumstances of the case. This petition is devoid of any merit and is dismissed as such along with all pending application(s), leaving the parties to bear their own costs.
18.7.2019 (Tarlok Singh Chauhan)
(pankaj) Judge
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