Himachal Pradesh High Court
Amarjeet Singh vs Anju Rani on 7 January, 1997
Equivalent citations: AIR1997HP64
Author: Arun Kumar Goel
Bench: Arun Kumar Goel
ORDER Arun Kumar Goel, J.
1. This is tenant's revision against the order passed by Shri Janeshwar Goyal, Appellate Authority-1 Sirmour District at Nahan. By means of impugned judgment dated 2-7-1996 in Rent Appeal No. 13-N/14 of 1994, the appellate authority below has upheld the order of ejectment passed by Rent Controller-11. Paonta Sahib, District Sirmour in Rent Petition No. 3/2 of 1993 dated 27-10-1994.
2. Respondent (hereinafter referred to as 'the landlady') had filed an ejectment petition under. Section I4(3)(c) of the Himachal Pradesh Urban Rent Control Act 1987, (hereinafter referred to as the Act") for ejectment of the respondent on the ground that the premises (shop) in question is in a very old condition/construction, roof whereof is not 'pukka' one and it rests on the wooden rafters, the walls of the shop were also of 'kachha' nature and the floor of the shop is on higher level than the floor of the shops in the vicinity, as such the premises were bona fide required by her for reconstruction/construction which cannot be carried out without ejectment of the tenant. The respondent was stated to he in arrears of rent of the premises in question from the date of its purchase i.e. 24-12-1991 and rent at the rate of Rs. 200/- p.m. total arrears amounting to Rupees 3380/-,: was claimed.
3. This petition was resisted and contested by the tenant who pleaded that the rent was initially Rs. 100/- but was increased up to Rs. 190/- and thus, it was pleaded that the rent is Rs. 190/- and not as claimed by the landlady in respect of the premises in question. Plea of the petitioner regarding the requirement of the premises for bona fide construction/reconstruction was also repudiated and it was further pleaded that since the premises arc non-residential, as such the plea of bona fide requirement is not open to the landlady under the Act. It was further pleaded thai the petition is mala fide and the construction/ reconstruction can be carried out without the premises being vacated by the tenant. Regarding rent, it was pleaded that the landlady herself had refused to accept the rent, not only this, but she had also got the electricity supply disconnected to the premises in question with a view to pressurise the tenant to vacate the premises in question. Another ground pleaded was that the present petition is not maintainable, as the previous landlady-Krishna had filed petition for ejectment which was dismissed on 30-12-1989 and thus the petition is hit by the principles of res judicata in view of the bar of Section 18 under the Act. In the rejoinder filed by the landlady, the ease set up by the tenant was controverted and the pleas raised in the ejectment petition were reiterated. The premises in question are identified bearing shop No. 72(1), situate in Ward No. 6 at Paonta Sahib. District Sirmour.
4. In the aforesaid background, the parties went to trial on the following issues:--
1. Whether the premises in question is required for the bona fide requirement of reconstruction which cannot be carried out without the ejectment of the respondent? OPP
2. Whether the respondent is in arrears of rent as alleged? OPP
3. Whether the rent of the premises in question is Rs. 200/- per month? OPP
4. Whether the petitioner is entitled for the increase in rent as prayed for? OPP
5. Whether the petition is not maintainable? OPR
6. Whether the petition is hit by principle of res judicata? OPR
7. Relief.
5. Issues Nos. 1. 2 and 4 were held in favour of the landlady and issues Nos. 5 and 6 were held against respondent, under issue No. 3. it was held that the rate of rent of the premises is Rs. 190/-and the respondent is in arrears of rent w.e.f. I -1 -1992 to September. 1994 and it was further observed under this issue that w.e.f. January. 1994 the rent was liable to be increased to Rs. 209/- p.m. While granting relief under issue No. 7, the ejectment of the tenant was ordered on the ground of reconstruction as well as on the ground of arrears of rent, and at the same lime, it was ordered that the arrears of rent in terms of the order were liable to be deducted out of Rs. 3610/- which were paid by the tenant who was also held liable to pay interest at the rate of 99% per annum on the balance amount. It was further ordered that in case of default in payment of arrears of rent within the stipulated period (which is 30 days under the Act), the tenant was also liable for eviction on the ground of arrears of rent.
6. The order of ejectment passed by the Rent Controller was assailed by the tenant before the appellate authority below, where he also filed an application under Order 41, Rule 27 for leading additional evidence on two grounds, namely, that during the pendency of the appeal, the husband of the landlady had left Paonta and settled at Jagadhri where he is running shop under the name of Raj Kumar Praveen Kumar and after institution of the rent petition, H.P. Town and Country Planning Act has been made applicable to the Paonta Sahib and a map is required to he approved by the authorities of the Town and Country Planning. According to the tenant, these subsequent events were required to be brought on record which constituted substantial cause and were likely to affect the decision of the appeal. This application was contested and resisted by the landlady. In reply, it was pleaded by her that husband of the tenant had taken a shop on rent at Paonta Sahib. However, on being compelled by the landlord to vacate the same, he vacated it and in these circumstances in order to make livelihood, her husband shifted to Jagadhri where he started doing his business which shifting is of temporary nature and it was further pleaded in this behalf that going lo Jagadhri would not affect the bona fide requirement for reconstruction as she would undertake the work in hand as soon as the premises are vacated by the tenant. Regarding the applicability of the H.P. Town and Country Planning Act, there was no specific denial. The appellate authority below after hearing the arguments dismissed the appeal there by upholding the order of ejectment passed against the tenant and in favour of the landlady.
7. So far the ground of non-payment of arrears of rent is concerned, that no more exists as it was conceded al the time of hearing that so far arrears of rent are concerned, those have been paid by the tenant as such the only ground of ejectment that subsists is of construction/reconstruction which cannot be carried out without the tenant's vacating the premises in question which ground has been found by both the authorities below in favour of the landlady.
8. Shri Sharwan Dogra, learned counsel appearing on behalf of the tenant, has attacked the ejectment order against his client by submitting that no bona fide of the landlady is made out from the evidence on record as also from sequence of facts to show muchless prove the so-called bona fide. According to Shri Dogra, the petition was hit by Section 18 of the Act in view of the earlier decision Ex. R-2 whereby the ejectment petition : filed by the predecessor-in-title of the landlady was dismissed. In support of the revision petition, it was further urged that the attending laws applicable on the date of reconstruction/ construction are to govern the new construction, as such in the absence of sanction by the Town and Country Planning Authorities, the landlady cannot undertake reconstruction/construction of the premises. By referring to the plea raised in the application of the tenant under Order 41, Rule 27 of the Civil Procedure Code filed before the lower appellate authority, it was urged that since the petitioner's husband with whom she is residing, has shifted lock, stock and barrel to Jagadhri where he is running his own business, this is an additional circumstance to defeat the claim of the landlady. Shri Dogra has also referred to the statements of RW-1 Amarjeet, PW-2 tenant of the adjoining shop and RW-3 Jaswant Singh and according to him, even if the landlady succeeds, then after reconstruction the premises deserves to be given back on rent to his client. Rent legislation being a beneficent enactment aimed at cheeking the unscrupulous landlords to throw out the poor tenants, so far as possible it should be titled in favour of the tenant.
9. In order to advance his submissions, Shri Dogra has placed reliance on certain decided cases which are 1983 (2) Ren CR 251, Nawab Ali v. smt. Hira Devi : AIR 1963 SC 499, Neta Ram v. Jiwan Lal : AIR 1971 SC 942. Panchmal Narayana Shenoy v. Basti Vendatesha Shenoy and 1979(2) Rem CR 239 : (AIR 1979 SC 1559) Metalware & Co. v. Bansilal Sharma. Thus, on these basis Shri Dogra has urged for allowing the revision petition and consequently setting aside the order of ejectment passed by both the authorities under this Act against his client and in favour of the landlady. On the other hand, Shri Kanwar while controverting the submissions made on behalf of the tenant, has urged that his client has been able to establish bona fide inasmuch as that she got the building plan sanctioned in accordance with law, she has demonstrated her adequate financial resources required for reconstruction/construction of the premises after those are vacated and further it Was urged that even if sanction: under the Municipal and H.P. Town and Country Planning Act are required to be taken, this-is not a condition precedent for ordering ejectment of the respondent under the Act. This plea was further-extended by pointing out that sanction for carrying out building work accorded by Municipal and Town and Country Planning Authorities are for limited purpose and in the case by the Town Planning . Authorities only one extension is-permissible under Section 34 of the, Himachal Pradesh Town and Country, Planning, Act. As such in case, the sanction of Town and Planning Authorities was there, it would have been of no consequence as on account of pendency of litigation that would have lapsed. In this case ejectment petition was presented in the court of Rent Controller below on 18-5-1993 and more than 3 years have lapsed but the matter is still pending, and even the sanction accorded by the Municipal authorities shall have to be got revalidated/renewed/ extended. As such, it was pointed out that even if the permission was there, that would not have been of any consequence because it would have lapsed. In any event it was pointed out by Shri Kanwar that his client would carry out the construction in, accordance with law but that cannot be made the basis for non-suiting his client. Lastly, it was urged that the findings recorded by both the authorities under be Act are concurrent findings of fact based on due and proper appreciation of evidence as, such, this court is not exercising the powers of an appellate authority under Section 24 of the Act and nor this court would act us second court of appeal. It was further pointed out on behalf of the landlady that neither any illegality nor impropriety has been pointed out on behalf of the tenant so as to call upon this court to interfere with the orders passed by the authorities below. In support of his submissions. Shri Kanwar has placed reliance on decided cases viz,, decision of this court in C.R. 103 of 1995, Central Co-operative Consumers Store v. Satwant Singh, 1992 (1) Rent CR 411 :
Nizzar Rawther v. Varghese Mathew; 1994 (2) Ren CR 236, K.S. Sundararaju Chettiar v. M.R. Ramachandra Naidu; 1994 (2) Ren CR 514, State of Himachal Pradesh v. Satwant Singh Kochhar, 1993 (1) SCC 499 : (AIR 1993 SC 1616), Rukmini Amma Saradamma v. Kallyani Sulochana and AIR 1996 SC 510, Dev Kumar (died) through LRs v. Smt. Swaran Lata and has thus prayed for dismissal of the present revision petition. In order to properly appreciate the submissions made on behalf of the parties, it is necessary to look into the evidence produced by the parties before the Item Controller below.
10. P.W. 1 is the Landlady, who has pledged her oath and has stated that the premises in question ate purchased by her on 24th Dec. 1991 and the area of the premises is 22 feet x 12 feet and its Walls are in mud-plaster and the roof has wooden rafters whereon soil is put. Foundation is also 'kachha' and the level of the shop is 2 feet above the ground level. She has further stated that there is no passage to go on to the roof, whereas on 3 sides of the premises in question there are shops of other persons and on the 4th side there is bazar. According to her, she intends to re-construct the shop after demolishing the same thereby providing a stair case for going to the upper storeys and she further intends to raise two more storeys on the shop in question. She has placed on record letter Ex . PA issued by the Municipal authorities according sanction and the plan mark 'A' which was later on exhibited as EX; PA/1 and Ex. PA/2 which have been duly proved as per statement of Secretary, Municipal Committee Paonta Sahib, PW-2.
11. P.W. 3 is Sanjay Aggarwal, who has proved that the proposed construction cannot be carried out without the premises being vacated and for the purposes of raising two storeys on the shop, provision has to be made for stairs, as such the premises were required to be vacated.
12. P.W. 5 AtuI Kumar who has proved that in this company, the husband of the Lanlady has got shares of the value of Rs. 60,000/-, besides this amount, the said husband of the petitioner had deposited a sum of Rs. 60,000/- with the said company and this amount is repayable by the company on a week's notice. He has placed on record copies of the annual return of the company as well as of the ledger.
13. P.W. 5 is Preveen Kumar, husband of the Landlady who has also supported the case of his wife, and described the resources available with them for re-construction of the premises.
14. On the other hand, the respondent has appeared as RW 1 and has tried to make out a case that since the walls are joint, us such it Is not possible to carry out re-construction/construction as proposed by the Landlady and has further tried to defeat her claim. RW-2 is Ramesh Lal tenant of the adjoining shop, who has stated that since the wall between the premises of the Landlady and the one occupied by him is common as such the re-construction cannot be carried out. He has gone on record to say that the condition of the building of the tenant is good and its walls arc solid. There is no crack either in any of the walls or in the roof. Incase the tenanted premises of the tenant are demolished, his premises are likely to be affected. He further says that the level of the premises in question is about l1/2 feet. He has shown his ability to say anything regarding the condition of the walls of the premises in question being bad. He further admits that the tenant owns two shops in the vicinity where he has put a board of 'To let' which suggestion the tenant himself has denied.
15. RW-3 of Jaswant Singh, who is retired Draftsman from H.P. PWD. Firstly, he has not a technical person being a Draftsman and having retired in his capacity as such. Secondly he was only concerned with the preparation of plans and at the most further making out the estimates. Strangely enough, while appearing as an expert, he has feigned ignorance regarding construction of soak-pits of septic tank in a building immediately below it. Though he has admitted that in case the level of the premises in question is to be reduced from 11/2 feet to I feet and stairs as well as roof has to be constructed, the same cannot be carried out without the premises being vacated. He has further stated that in case stairs and new roof is to be constructed, even then for carrying out such construction, the premises have to be vacated. Besides this, the witness has admitted that in case two more storeys arc to be constructed above the shop and stairs are to be put up, then the roof has to be replaced, though he states that if only stairs are to be constructed, then those can be put up without tenant's vacating the premises in question.
16. RW-4 is Malkiat Singh, who is mason, if a reference is made to his statement, it appears that he is a hired witness simply lo support the case of the tenant,
17. From the evidence on record, ii is clear that the Landlady has got the building plan for re-construction/construction approved in accordance with law which governed such sanction when the petition has filed. In case H.P. Town and Country Planning Act has come into force, then it can be safely inferred that she would obtain the necessary permission from the authorities concerned. But mere non-having the permission of the Town and Country Planning Authorities, would not be a ground to defeat the claim of the Landlady which she has otherwise successfully established. In this behalf it may be appropriate to say that the sanction of a building plan is not a requirement of the Act, but is a circumstance to test the bona fide of the person seeking eviction. In the instant case the Landlady had admittedly obtained sanction from the Municipal Authorities, however, in case any other permission is required, she is bound to obtain the same but on this ground alone the claim of the Landlady cannot be defeated. Moreover, the Landlady is certainly within her right to put the premises in question to more profitable use after re-construction thereof. This in fact, has been clearly established from the evidence produced by her. Similarly no ground has been made out to doubt the bona fide of her claim in this behalf.
18. Regarding bona fide claim of the Landlady, it stands established beyond any shadow of doubt. Relevant circumstances to establish the same are that the Landlady has got the plan sanctioned from the Municipal Authorities, then she has established on record by her own statement as well as from the statement of her husband the sufficiency of funds "for carrying out reconstruction of the premises in question and above all she has further pointed out that they want to put up the premises to more profitable use inasmuch as that after carrying out reconstruction of the premises in question her husband would run a shop whereas, two new storeys which are proposed to be put up above the shop, are to be used by her as residence by them. In this view of the matter by no stretch of imagination, it can be said that the need of the Landlady is not bona fide or the circumstances are there to defeat her claim in this behalf. Similarly, the Landlord having shifted to Jagadhri, as claimed by Shri Dogra, also docs not defeat her claim for getting the tenant evicted. If a reference is made to the reply filed by the Landlady to the application under Order 41. Rule 27. C.P.C., it is clear that it was under the compelling circumstances her husband was forced to vacate the premises and for the purpose of earning his livelihood he had to go to Jagadhri. I see no reason not to accept this version of the Landlady.
19. Regarding the plea of tenant that after reconstruction the tenant should be put in possession, his counsel has placed reliance on 1983 (2) Rent Control Reporter 251, Nawab Ali v. Smt. Hira Devi, and has thus urged that even if Landlady succeeds in that event directions need to be given. Firstly this judgment of the Hon'ble Apex Court does not spell out that under what circumstances the said order has been passed and further whether it was a case under the Rent Act or under the ordinary law of land and secondly, on facts also this case is distinguishable. In this case before the Hon'ble Apex Court, while remanding the case to High Court, it was ordered to enquire whether there other tenants adjacent and around the premises in question, and whether the proposed reconstruction could be proceeded with without evicting those tenants. As such it cannot be said that an absolute proposition of law has been laid down in this judgment or that in every case the tenant has to be put back in possession after the premises are re-constructed. Lastly, the powers of the Hon'ble Apex Court under Art. 142 are wide which arc exclusive with the said court. In this behalf, a reference lo AIR 1987 SC 2117 Prabhakakrana Nair etc. etc. v. State of Tamil Nadu can be usefully made wherein the Hon'ble Apex Court has held that in the absence of provision for re-induction of an evicted tenant after re-construction of the premises, the same is not violative of Article l4 of the Constitution of India simply because in case of repairs, there is a provision for induction and such a classification was held to be reasonable and rational.
20. Admittedly, there is no such provision under the Act except that in a case where a Landlady who had obtained possession of a building under Clause (c) of Sub-section (3) of Section 14 puts that building to any use other than that for which it was obtained or lets it out to any tenant other than the tenant evicted from it in such a situation the tenant has been given a right to apply to Controller for an order directing that he be restored the possession of such building and the Controller shall make an order accordingly. In order to properly appreciate the submissions of Shri Dogra provisions of Section I4(3)(c) find 14(5) are extruded herein below :--
"14.................................
(3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession.
(c) in the case of any building or rented land, if he requires it to carry out any bulding 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 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.
(5) Where a landlord who has obtained possession of the building or rented land in pursuance of an order under Sub-section (3) does not occupy, it himself, or if possession was obtained by him for his family in pursuance of an order under Sub-clause (iii) of clause (a) of subsection (3), his family does not occupy the residential building, or if possession was obtained by him on behalf of his son in pursuance of an order under clause (d) of Sub-section (3) his son does not occupy it for the purpose for which the possession was obtained, for a continuous period of twelve months from the dale of obtaining possession or if possession was obtained under Sub-section (2) of Section 15 he does not occupy it for personal use for a continuous period of 3 months from the date of obtaining possession or where a landlord who has obtained possession of a building under Clause (c) of Sub-section (3) puts that building to any use other than that for which it was obtained 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 or rented land and the Controller shall make an order accordingly."
21. Admittedly, there is no provision under the Act for restoring the possession save and except under Section 14(5) thereof as such, submission made in this behalf by the learned counsel for the tenant is hereby rejected. Similar view was taken by this court in 1994 (2) Rent Controller Reporter 514. State of Himachal Pradesh v. Satwant Singh Kochhar.
22. Similarly, the crux of the Judgments cited on behalf of the tenant, namely, AIR 1963 SC 499 supra: 1979 (2) Rent Control Reporter 239 : (AIR 1979 SC 1559) (supra) and AIR 1971 SC 942, (supra) have held that it should not he a mere wish or fanciful desire of the Landlord while seeking ejectment, but there has to be bona fide and genuine need whereon ejectment can be sought by the Landlord and in order to ascertain the bona fide of the Landlord, sanction of building plan being possessed of sufficient means arc some of the relevant factors. In the present case both the authorities below after proper appreciation and through investigation of the materials produced by the parties on record, have come to the concurrent findings of fact regarding the bona fide requirement of the Landlady and this court finds no reason to lake a different view there from. Similarly, this court is not sitting as a court of second appeal and when no illegality and or impropriety was pointed, as such, the ejectment order of the tenant from the premises in question deserves to he upheld. If any authority in this behalf is required, a reference can be usefully made to 1993 (I) SCC 499 :(AIR I993 SC 1616) (supra) and to AIR 1996 SC 510. (supra). In the face of these decisions of the Hon'ble Apex Court, this revision petition deserves to be dismissed.
23. Regarding the plea that the present petition is hit by Section 18 of the Act. because the earlier petition filed by the predecesor-in-the of the Landlady was dismissed. When a reference is made to Ex. R-2. it is clear that in earlier ejectment petition, the premises in question were slated to be in dilapidated condition requiring reconstruction which was not possible without eviction therefrom. Bona fide requirement of the premises was also pleaded by the Landlady as she wanted to establish her business. The said petition was dismissed and under issue No. 1, the Rent Controller had observed that the evidence led by the Landlady regarding premises in question was of general natural without any expert substantiating the same, the Landlady in that case had not proved her resources, nor proper estimate for the new building was produced. Further the evidence produced in support of her case showed that she was not sure whether she wanted to reconstruct the building or just wanted to repair it. So fur other ground is concerned, she was non-suited on that ground as it was not available to her in law. Now taking up the present case, it is clearly established that the Landlady has proved to the hilt not only her bona fide need to reconstruct the building but also the sanctioned plan and her resources in support of her case. As already observed, sanction under the Municipal and other laws is for limited purpose, so even if the Landlady had obtained such a sanction, it would be of no consequence because the tenant had been successful in prolonging the litigation for over more than 31/2 years. In case any sanction under the Himachal Pradesh Town and Country Planning Act is required, or the extension/ revalidation/renewal of the sanctioned plan by the Municipal authorities is required it would only be fruitful to be obtained when the premises arc available to the Landlady, as such on this court the tenant cannot improve his ease.
24. From whatever angle the case of the tenant may be viewed, there is no illegality much less impropriety committed by the authorities below in ordering his ejectment and this court finds no reason to take a different view.
25. No other point has been urged by the parties.
26. As a result of the aforesaid discussion, this revision petition fails and is dismissed accordingly with costs which is quantified at Rs. 2,000/-.