Himachal Pradesh High Court
Shri Jagdev Prasad vs Of on 31 December, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Civil Revision No.188 of 2015.
Date of decision: 31.12.2015.
Shri Jagdev Prasad .....Petitioner/Appellant.
Versus of Smt.Sunita Kumari and others .....Respondents/Applicants.
Coram rt The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1No For the Petitioner : Mr.Avinash Jaryal, Advocate.
For the Respondents : Mr.Ajay Kumar, Senior Advocate with Mr.Dheeraj K.Vashisht, Advocate, for respondent No.1 to 3. Tarlok Singh Chauhan, Judge (Oral) .
This revision petition under Section 24(5) of the Himachal Pradesh Urban Rent Control Act, 1987, (for short the 'Act') is directed against the order passed by the learned Appellate Authority on 02.06.2015 whereby it affirmed the order of eviction passed against the petitioner by the learned Rent Controller, Court No.II, Shimla, vide order dated 30.04.2013.
2. The facts, in brief, leading to the filing of the present case are that the respondents-landladies filed eviction petition against the petitioner from Shop No.4 Babu Ram Market, Chhota Shimla, on the grounds that these premises were required bonafidely by the respondents-landladies for the purpose of reconstruction and rebuilding which work could not be carried out without the petitioner vacating the premises.
Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 19:38:09 :::HCHP 2
3. The petitioner-tenant objected to the petition by filing reply and raising therein various preliminary objections regarding .
maintainability, locus standi, respondents-landladies being not the true owners of the suit premises and not having the sanctioned plan in their favour etc. On merits, petitioner admitted that he was in possession of the premises as tenant, but denied the bonafides of the landladies.
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4. On 23.07.2009, the learned Rent Controller framed the following issues:-rt
1. Whether the suit premises is bonafide required by the applicants for rebuilding and reconstruction, as alleged? OPA.
2. Whether the application is not maintainable, as alleged?
OPR.
3. Whether the application is bad for non-joinder of necessary parties? OPR.
4. Relief.
5. After recording evidence and evaluating the same, the learned Rent Controller ordered the eviction of the petitioner by holding the necessity of the respondents to be bonafide. However, this order was ordered to be kept in abeyance till the respondents obtained a valid sanctioned map or plan for rebuilding or reconstruction in their favour from the competent authority. It was further held that the right of entry would be also available to the petitioner.
6. Aggrieved by the order passed by the learned Rent Controller, the petitioner-tenant filed an appeal before the learned lower Appellate Authority which as observed earlier was ordered to be dismissed. It is against the concurrent findings recorded by the learned authorities below that the present revision has been filed on the ground that the same are perverse and the Courts failed to appreciate that the ::: Downloaded on - 15/04/2017 19:38:09 :::HCHP 3 respondents-landladies had to prove much more than their mere wish to reconstruct the premises and having failed to do so, the eviction .
petition ought to have been dismissed.
I have heard the learned counsel for the parties and have gone through the records of the case.
7. At the outset, it may be observed that this Court while of exercising its revisional jurisdiction is only entitled to satisfy itself as to the correctness, legality or propriety of any decision or order impugned rt before it. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or order, this Court shall not exercise its powers 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. This was so held by the Hon'ble Supreme Court in Hindustan Petroleum Corporation Ltd. versus Dilbahar Singh (2014) 9 SCC 78 wherein after discussing various provisions of rent laws in India, the following conclusion was arrived at:-
"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 or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that findings 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 ::: Downloaded on - 15/04/2017 19:38:09 :::HCHP 4 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 exercise its power as an appellate power to reappreciate or reassess the evidence for coming of 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 rt order impugned before it suffers from procedural illegality or irregularity."
8. In order to prove their case, the respondents examined Shri Naresh Kumar Vij their GPA as AW-1, Shri B.C.Sharma, Technical Expert, as AW-2 and Shri Purshotam Ram, Draftsman, A.P. Branch, M.C., Shimla as AW-3. Whereas, the petitioner only examined himself in support of his case.
9. AW-1 Naresh Kumar Vij tendered in evidence his sworn affidavit (Ex. AW-1/A) wherein he reiterated the contents of the petition.
He also proved the copy of the GPA. In his cross-examination, this witness denied the suggestion that the respondents did not have the necessary funds or did not intend to reconstruct the building.
10. AW-2, Shri B.C. Sharma, Technical Expert, also tendered in evidence his sworn affidavit (Ex. AW-2/A) wherein he also reiterated the version as put forth by AW-1. He proved the photographs of building Ex.AW-2/D to Ex. AW-2/E alongwith its negatives Ex.AW-2/F. He also proved his report Ex. AW-2/B and spot map Ex.AW-2/C. He further deposed that the proposed construction plan was of RCC frame structure and the said construction work could not be carried out without the entire building being vacated by all the tenants.
::: Downloaded on - 15/04/2017 19:38:09 :::HCHP 511. AW-3,Purshotam Ram, Draftsman, A.P. Branch, M.C., Shimla, stated that on 14.09.2009 Shri Gurucharan Dass and his .
brothers, who were the earlier owners of the premises, had submitted reconstruction map of their building. In cross-examination, he stated that the revenue papers and sale deed etc. of the building in question were annexed with the proposed reconstruction map.
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12. On the other hand, the petitioner examined himself as RW-1 and stated that rt he was tenant in the premises for the last 30 years and the condition of the building was good and, therefore, the same was not required to be demolished or even reconstructed. This is the entire evidence led on behalf of the parties.
13. Section 14(3) (c) of the Act reads as under:-
"14(3) (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 bonafide by him for the purpose of building or rebuilding or making thereto any substantial additions or alterations and that such building or rebuilding 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]".
14. It would be evident from bare reading of the aforesaid provisions that the landlord in order to avail the benefit of this provision ::: Downloaded on - 15/04/2017 19:38:09 :::HCHP 6 is only required to show that he requires the building bonafidely for demolition and reconstruction.
.
15. In Jagat Pal Dhawan vs. Kahan Singh (dead) by LRs and others (2003) 1 SCC 191, it has been held by the Hon'ble Supreme Court that while trying eviction petition on grounds of demolition or reconstruction, the Court may look into the relevant facts of regarding age and condition of building, availability of necessary funds and whether building plan have been sanctioned by local authorities in rt order to assess landlord bonafides, even if the statute concerned has not specifically made them ingredients of the grant of eviction. The relevant observations of the Hon'ble Supreme Court read as under:
"6. Section 14(3)(c) provides inter alia that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession of tenancy premises in case of any building or rented land being required bona fide by him for the purpose of building or rebuilding which cannot be carried out without the building or rented land being vacated. The provision does not have as an essential ingredient thereof and as a relevant factor the age and condition of the building. The provision also does not lay down that the availability of requisite funds and availability of building plans duly sanctioned by the local authority must be proved by the landlord as an ingredient of the provision or as a condition precedent to his entitlement to eviction of tenant. However still, suffice it to observe, depending on the facts and circumstances of a given case, the Court may look into such facts as relevant, though not specifically mentioned as ingredient of the ground for eviction, for the purpose of determining the bona fides of the landlord. If a building, as proposed, cannot be constructed or, if the landlord does not have means for carrying out the construction or reconstruction obviously his requirement would remain a mere wish and would not be bona fide.
9. So is the view taken in R.V.E. Venkatachala Gounder v. Venkatesha Gupta and Ors., [2002] 4 SCC 437 and in Harringaton House School v. S.M. Ispahani and Anr., [2002] 5 SCC 229. The fact that demolition and reconstruction would result in modernization, making additional space available and/or would augment the earning ::: Downloaded on - 15/04/2017 19:38:09 :::HCHP 7 of the landlord are relevant factors for determining the bona fides of the requirement for demolition and reconstruction.
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10. The locality where the premises are situated has, with the lapse of time, become a busy commercial locality. The structure of the building is more than 100 years old. It is in mud mortar and with slates' roofing-Instead of outdated two floor space, the landlord proposes to construct a modern three-storeyed building which would obviously provide additional space and much better return to the of landlord. The landlord has stated that he had no other residential house of his own available with him and having reconstructed the building he would like to shift his residence too in his own newly rt constructed house. The bona fides of such a requirement could not have been doubted solely on the ground that the structure of the building, though old and outdated, had not gone so weak as was needed to be demolished immediately.
11. So far as the neighbours are concerned, none has objected to the proposed reconstruction. In any case that is a matter to be settled by the landlord with his neighbours. The learned counsel for the appellant submitted during the course of hearing, and rightly in our opinion, that even if the neighbours were not agreeable to have the common wall demolished and replaced by a new wall the appellant was prepared to raise additional walls of his own next to the common walls, if any, and rest his entire structure on such walls. This obviates the need of proving consent of the adjoining building owners for the proposed reconstruction.
14. In the abovesaid circumstances we are clearly of the opinion that relief of eviction as sought for could not have been denied to the appellant. There is no material available to hold that the landlord has something else in his mind such as getting rid of the tenant without raising construction. Sub-Section (5) of Section 14 of the Act protects the interest of the tenant by guarding against malafide evictions. It provides that where a landlord has obtained possession of the building or rented land for the purpose of building or rebuilding and puts the building to any other use 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. This provision would not permit the building from which the tenant is being evicted being subjected to any other user or misuse.::: Downloaded on - 15/04/2017 19:38:09 :::HCHP 8
15. The appeal deserves to be allowed. The orders of the High Court and the Courts below are set aside. Instead the tenant-
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respondent is directed to vacate the tenancy premises as the same are required bona fide by the landlord-appellant for carrying out building or rebuilding under Section 14 (1)(c) of the Act which cannot be carried out without the building being vacated. The tenant is allowed four months time for vacating the premises subject to his filing of the usual undertaking within a period of three weeks from today before the executing Court undertaking to deliver vacant and peaceful rt possession over the suit premises to the landlord-appellant on the expiry of the time granted and in between clearing and continuing to clear all the arrears of rent and not creating any third party interest.
Costs as incurred."
16. In Phoola Devi and others vs. Chandu Lal and others 2010 (1) Him. L.R. 523, a learned Single Judge of this Court while holding that the premises were bonafidely required by the landlord for reconstruction and rebuilding observed as under:
"6. The learned counsel for the petitioners has submitted that in the ejectment petition the petitioner has not pleaded the reasons for reconstruction of the premises. He has submitted that in view of Section 14(3)(c) of the Act the landlord is required to plead the reasons to reconstruct, rebuild the premises. The perusal of Section 14(3)(c) of the Act indicates that the landlord is entitled to eject the tenant on several grounds of eviction which are independent. In para 18(3) of the ejectment petition, it has been pleaded that premises in dispute are required bonafide for the purpose of reconstruction and rebuilding and the work of reconstruction cannot be carried out without vacating the premises. The Section 14(3) (c) provides that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession of tenancy premises in the case of any building or rented land if he requires it bonafide for the purpose of building or rebuilding. The Section 14(3)(c) no where provides that reasons for rebuilding and reconstruction are to be pleaded in the petition.::: Downloaded on - 15/04/2017 19:38:09 :::HCHP 9
7. In Prem Chand alias Prem Nath Vs. Shanta Prabhakar (Smt.) (1998) 1 SCC 274 after noticing Section 14 (3) (c) of the Act it has .
been held as follows :-
"A careful reading of the above section will show that the section contemplates different independent situations /circumstances enabling the landlord to apply for eviction of a tenant. Those different and independent situations/circumstances can be set out as follows:-
"(i) When the tenanted premises are required by the of landlord 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 rt (ii) When the tenanted premises have become unsafe or unfit for human habitation; or
(iii) When the tenanted premises are required bona fide by the landlord for carrying out repairs which cannot be carried out without such tenanted premises being vacated; or
(iv) When the tenanted premises are required bona fide by the landlord for purposes of building or rebuilding or making thereto any substantial additions or alterations and that such building or rebuilding or addition or alteration cannot be carried out without the building or rented land being vacated."
From the above alanysis, it will be seen that the condition of the building is required to be considered when the application falls under the above-mentioned category, (ii) Admittedly, the application for eviction in the present case falls under category
(iv) and there is no requirement in such cases to go into the condition of the building. It is true that this Court has held that the requirement of the condition of the building is a vital factor whether such requirement is specifically stated in the section or not. It must be remembered that the decision of this Court was rendered while interpreting Section 14(1)(b) of the Tamil Nadu Act which is not in pari material with the Himachal Pradesh Act. In other words, there are no different categories as set out above in the Tamil Nadu Act as in Himachal Pradesh Act."
8. The Supreme Court in Jagat Pal Dhawan Vs. Kahan Singh (dead) by LRS. And others (2003) 1 SCC 191 has again noticed Section 14 (3) (c) of the Act and held as follows:-
"Section 14(3)(c) provides inter alia that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession of tenancy premises in case of any building or rented land being required bonafide by him for the purpose of building or rebuilding, which cannot be carried out without the building or rented land being vacated. The provision does not have as an essential ingredient thereof and as a relevant factor the age and condition of the building. The provision also does not lay down that the availability of requisite funds and availability of building plans duly sanctioned by the local authority must be proved by the ::: Downloaded on - 15/04/2017 19:38:09 :::HCHP 10 landlord as an ingredient of the provision or as a condition precedent to his entitlement to eviction of the tenant. However still, suffice it to observe, depending on the facts and .
circumstances of a given case, the court may look into such facts as relevant, though not specifically mentioned as ingredient of the ground for eviction, for the purpose of determining the bona fides of the landlord. If a building, as proposed, cannot be constructed or if the landlord does not have means for carrying out the construction or reconstruction obviously his requirement would remain a mere wish and would not be bona fide."
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9. The landlord while appearing as PW-1 has stated that condition of the building is not good, it is lying broken at several places. It is 80 - 90 years old. He wants to reconstruct it after demolition. He has got the plan Ex.PW -1/A approved from Municipal rt Corporation. In cross-examination, he has denied that he is not in a position to reconstruct the building. It has come in the statement of PW-1 landlord that after approval of the plan Ex.PW-1 /A, he could not reconstruct the premises due to litigation. He has also stated that he is an income tax assessee. PW -3 Satinder Kalia has stated that he has seen the premises, the condition of the shop is in bad shape and is dilapidated. In cross-examination, a suggestion was given to him which he has admitted that the landlord has reconstructed the portion adjacent to the disputed premises.
10. DW-1 Rakesh son of Puran Chand has stated that Puran Chand and Durga Dass were the tenants in the shop, his father has died. After the death of Durga Dass, he and his father were running the shop. In cross-examination, he has admitted that tarpaulin has been placed on the shop. He got the shop inspected through Architect about 15 - 20 days earlier. DW-2 V.C.Sharma has stated that on the asking of Phulia Devi he had inspected the shop in question and prepared report Ex.DW -2/A. There is scarp on the roof of the shop as a result of which the roof is being damaged. He was told that the scrap is of the landlord. In core area repair is permissible but construction is banned. DW-3 Raj Kumar in examination in chief has stated that the condition of the disputed shop is good. In cross- examination, he has stated that the roof leaks and it has been covered by tarpaulin. DW-4 Bhajana Ram is not in a position to state that the premises in dispute was 80 years old. He has denied that the shop in dispute is covered by tarpaulin.
11. The building plan has been sanctioned vide Ex.PW-1/A, but it is the case of the landlord that despite approval of the building plan, he could not reconstruct the building due to litigation. The bona fide of the landlord to reconstruct is supported from the fact that in addition to ::: Downloaded on - 15/04/2017 19:38:09 :::HCHP 11 sanction plan he has constructed adjacent portion of the building which has been established when suggestion was given to PW-3 .
Satinder Kalia in cross-examination conducted by the tenants that the adjacent portion of the premises has been reconstructed by the landlord. PW-1 in his statement has stated that he wants to reconstruct the premises after demolishing it. PW-3 Satinder Kalia has stated that the condition of the shop is in bad shape and it is in dilapidated condition. PW-1 Chandu Lal has also stated that the of condition of the shop is also not good and it has broken at several places and it is about 80 - 90 years old.
12. DW-2 in his report Ex.DW -2/A has stated that condition of the rt building is good and it does not require any repair, renovation or reconstruction. DW -1 Rakesh has stated that he got the shop inspected through architect 15 - 20 days ago. His statement was recorded on 27.6.2006. Thus, according to him, the shop was inspected by the architect somewhere around the first week of June, 2006. DW-2 V.C.Sharma has stated that he had visited the site on 25.4.2006. The perusal of report Ex.DW -2/A indicates that DW -2 allegedly inspected the shop on 25.4.2006 on the request of Puran Chand tenant. There are thus apparent contradictions regarding the dates of visit of the shop for carrying out inspection by the expert of the petitioners. DW-2 V.C. Sharma in Ex.DW -2/A has stated that the shop was got inspected on the request of Puran Chand tenant, but there is no Puran Chand tenant, therefore, report Ex.DW-2/ A is a suspicious document.
13. In Amar Nath vs. Mrs. Balbir Kochhar and others 1997 (1) S.L.C. 227, it has been held that the arrangement to be made in respect of the finances is only a circumstance in order to test the bona fide and is not a requirement of law. There is no derth of arranging the finances in todays as lot of financial corporations, banks and persons having surplus money do always lent out for such projects. On the requirement of sanction plan in the same judgment, it has been held that there is no statutory requirement that the building plan has to be got sanctioned before ejectment is sought. When the ejectment petition is filed no one is sure about the time consuming factor in litigation and thus the storing of the building material would lead to nowhere. In Naresh Kumar and others vs. Surinder Paul 2001 (2) S.L.C. 337 judgment Harswarup vs. Ram Lok Sharma, 2000 (3) S.L.C. 160 has been noticed wherein it has been held that mere fact that the landlord has not obtained necessary permission under the H.P.Roadside Land Control Act, 1968 and /or the approval of the Town and Country Planning Department before the filing of the ::: Downloaded on - 15/04/2017 19:38:09 :::HCHP 12 petition would not mean that the need of the landlord is not bona fide. Similar view has been taken in Amarjeet Singh vs. Anju Rani 1997 (1) .
SLC 492.
14. The learned counsel for the petitioners has submitted that the premises is situated in core area where reconstruction is not permitted. The learned counsel for the landlord has submitted that reconstruction in the core area is not absolutely banned. The reconstruction is permissible with the approval of competent authority.
of In Naresh Kumar (supra), it has been held that there is no absolute ban on reconstruction within the "core area". Reconstruction on old lines is permissible within such area with the prior approval of the rt State Government.
15. In P.S. Pareed Kaka and others vs. Shafee Ahmed Saheb 2004 (1) R.C.R. 503, it has been held by the Apex Court that even if the building is in good condition, if it is not suitable for the landlord, he can always demolish even a good building and put up a new building to suit his requirements. It is not necessary for the landlord to prove that the condition of the building is such that it requires immediate demolition particularly when the premises is required by the landlord.
16. The two authorities below have recorded a finding of fact that the premises in question is bonafide required by the landlord for reconstruction and rebuilding. The learned counsel for the petitioners has failed to establish that the finding recorded by the two authorities below is perverse. It has also not been established that material evidence having bearing on the merits of the case has been ignored or irrelevant evidence has been considered in support of the findings. In Naresh Kumar (Supra) after noticing Chaman Prakash Puri vs. Ishwar Dass Rajput and another 1995 Suppl. (4) SCC 445 and Sarla Ahuja vs. United India Insurance Company Ltd. 1999 (1) RCJ 158, it has been held that it is not permissible for this court in exercise of revisional jurisdiction to come to a different fact finding unless the findings arrived at by the two courts below, on the facts of the case, are so unreasonable that no court could have reached such a finding on the material available. This has, however, not been established in the present case. There is no merit in the revision."
17. The question whether the requirement of sanctioned building plan is sine qua non before ordering the eviction of the tenant came up for consideration before the Supreme Court in Hari Dass Sharma vs. Vikas Sood and others (2013) 5 SCC 243 and the ::: Downloaded on - 15/04/2017 19:38:09 :::HCHP 13 Hon'ble Supreme Court after discussing the case of Jagat Pal Dhawan (supra), held that under Section 14 (3) (c) of the Act, the requirement of .
having a duly sanctioned plan was not a condition precedent for maintaining a petition for eviction. The relevant observations of the Hon'ble Supreme Court are as follows:
of "13. In Jagat Pal Dhawan v. Kahan Singh (dead) by L.Rs. & Ors.
(supra), this Court had the occasion to consider the provisions of Section 14(3)(c) of the Act and R.C. Lahoti J. writing the judgment for rt the Court held that Section 14(3)(c) does not require that the building plans should have been duly sanctioned by the local authorities as a condition precedent to the entitlement of the landlord for eviction of the tenant. To quote from the judgment of this Court in Jagat Pal Dhawan v. Kahan Singh (dead) by L.Rs. & Ors. (supra): (SCC p. 194, para 6) "6.......The provision also does not lay down that the availability of requisite funds and availability of building plans duly sanctioned by the local authority must be proved by the landlord as an ingredient of the provision or as a condition precedent to his entitlement to eviction of the tenant. However still, suffice it to observe, depending on the facts and circumstances of a given case, the court may look into such facts as relevant, though not specifically mentioned as ingredient of the ground for eviction, for the purpose of determining the bona fides of the landlord. If a building, as proposed, cannot be constructed or if the landlord does not have means for carrying out the construction or reconstruction obviously his requirement would remain a mere wish and would not be bona fide."
It will be clear from the aforesaid passage that this Court has held that availability of building plans duly sanctioned by the local authorities is not an ingredient of Section 14(3)(c) of the Act and, therefore, could not be a condition precedent to the entitlement of the landlord for eviction of the tenant, but depending on the facts and circumstances of each case, the Court may look into the availability of building plans duly sanctioned by the local authorities for the purpose of determining the bonafides of the landlord.
::: Downloaded on - 15/04/2017 19:38:09 :::HCHP 1417. In fact, the only question that we have to decide in this appeal filed by the appellant is whether the High Court could have directed .
that only on the valid revised/renewed building plant being sanctioned by the competent authority, the order of eviction shall be available for execution. The High Court has relied on the decision of this Court in Harrington House School v. S.M. Ispahani & Anr.(2002) 5 SCC 229 and we find in that case that the landlords were builders by profession and they needed the suit premises for the immediate purpose of of demolition so as to construct a multi-storey complex and the tenants were running a school in the tenanted building in which about 200 students were studying and 15 members of the teaching staff and 8 members of the non-teaching staff were employed and the school was rt catering to the needs of children of non-resident Indians. This Court found that although the plans of the proposed construction were ready and had been tendered in evidence, the plans had not been submitted to the local authorities for approval and on these facts, R.C. Lahoti, J, writing the judgment for the Court, while refusing to interfere with the judgment of the High Court and affirming the eviction order passed by the Controller, directed that the landlords shall submit the plans of reconstruction for approval of the local authorities and only on the plans being sanctioned by the local authorities, a decree for eviction shall be available for execution and further that such sanctioned plan or approved building plan shall be produced before the executing court whereupon the executing court shall allow a reasonable time to the tenant for vacating the property and delivering the posses sion to the landlord and till then the tenants shall remain liable to pay charges for use and occupation of the said premises at the same rate at which they are being paid.
18. In the present case, on the other hand, as we have noted, the Rent Controller while determining the bonafides of the appellant- landlord has recorded the finding that the landlord had admittedly obtained the sanction from the Municipal Corporation, Shimla, and has accordingly passed the order of eviction and this order of eviction has not been disturbed either by the Appellate Authority or by the High Court as the Revision Authority. In our considered opinion, once the High Court maintained the order of eviction passed by the Controller under Section 14(4) of the Act, the tenants were obliged to give vacant possession of the building to the landlord and could only ask for reasonable time to deliver vacant possession of the building to the landlord and hence the direction of the High Court that the order of eviction could only be executed on the revised plan of the building ::: Downloaded on - 15/04/2017 19:38:09 :::HCHP 15 being approved was clearly contrary to the provisions of Section 14(4) of the Act and the proviso thereto."
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18. Notably, the ratio of the judgment in Hari Dass Sharma's case (supra) has been repeatedly followed by this Court in Karam Chand and others vs. Jasbir Kaur and others, C.R. No. 125 of 2012, decided on 16.8.2013, Roshan Lal Bhardwaj vs. Ashok Sud and of another, C.R. No. 4034 of 2013 decided on 4.10.2013, R.R.Sharma vs. Gopla and others, C.R. No. 4053 of 2013 decided on 24.10.2013, rt Deepak Boot House and another vs. Dr. Piyare Lal Sood, 2014 (1) Shim. L.C. 47, Janmejai Sood vs. Ram Gopal Sood, C.R. 62 of 2013 decided on 4.11.2014, Vinod Kumar vs. Varinder Kumar Sood, C.R. No. 60 of 2013 decided on 13.5.3015.
19. What emerges from the aforesaid exposition of law is that for the purpose of eviction on the ground of rebuilding or reconstruction, the existing condi tion of the building is not of much importance or relevance. Even the availability of requisite funds and availability of building plans duly sanctioned by the local authorities are some of the ingredients which may go long way to prove the bonafides of the landlord/landlady. But, all these are not essential pre-requisites to maintain an eviction petition. Even if, the condition of the building is good but still the landlord considers it to be unsuitable for him, he can seek eviction on the ground of reconstruction or rebuilding.
20. Adverting to the facts, it would be noticed that AW-1 Naresh Kumar Vij, the General Power Attorney of the landladies, has duly proved on record the availability of funds as also bonafides of the landladies in seeking evicti on of the petitioner on the ground of rebuilding or reconstruction. Similarly, AW-2 Shri B.C.Sharma, Technical Expert, has proved on record the existing as also the ::: Downloaded on - 15/04/2017 19:38:09 :::HCHP 16 proposed construction plan of the premises of the landladies. Lastly, AW-3 Purshotam Ram, Draftsman, A.P. Branch, M.C.Shimla, has .
categorically stated that the Municipal Corporation received the revised maps for reconstruction of the premises which had been submitted by the predecessor-in-interest of the landladies. On the other hand, the petitioner has led no evidence, rather has failed to prove that the need of and requirement of the landladies was not bonafide.
21. In view of the aforesaid discussion, there is no merit in this rt petition and accordingly the same is dismissed.
22. However, before parting, I find that the learned lower Appellate Court has strangely enough set aside the orders passed by the learned Rent Controller whereby it protected the possession of the petitioner till the time the respondents did not possess a valid sanctioned plan for reconstruction and rebuilding from the competent authority. The learned Appellate Court by relying upon the judgment of this Court in C.R.No.125/2012, titled as Karam Chand and others versus Jasbir Kaur and others and further relying upon Hari Dass Sharma's case (supra) held that no such rider could be put forth by the learned Rent Controller and proceeded to modify the order passed by the learned Rent Controller by holding that there was no need for the respondents to produce the plan.
23. It is not only strange rather shocking how such findings came to be rendered by the learned lower Appellate Authority that too in the appeal filed by the tenant because insofar as the landladies-
respondents are concerned, the findings of the learned Rent Controller have attained finality as they did not choose to assail the same and ::: Downloaded on - 15/04/2017 19:38:09 :::HCHP 17 could not, therefore, be tinkered with to the disadvantage of the petitioner.
.
24. That apart, this Court cannot lose sight of the fact that it was the respondents, who in order to prove and establish their bonafides had themselves examined AW-2 to prove on record the steps taken by them for approval of the building plans and it was on the basis of of such evidence that not only the learned Rent Controller but even the learned lower Appellate Authority had come to a conclusion that the rt need of the landladies was bonafides. Therefore, at this stage, the landladies cannot be permitted to resile from their pleadings and evidence led or else this plea itself would cast a doubt on their bonafides.
25. Even, the Hon'ble Supreme Court in Jagat Pal Dhawan's case (supra) has itself held that the availability of building plan duly sanctioned by local authorities is not an ingredient of Section 14 (3) (c) of the Act and, therefore, could not be a condition precedent to the entitlement of the landlord for eviction of the tenant, but depending upon the facts and circumstances of each case, the Court may still look into the availability of the building plan duly sanctioned by local authorities for the purpose of determining the bonafides of the landlord.
26. Having said so, it is directed that the order of eviction as concurrently passed by the learned Courts below shall not be available for execution unless the respondents obtain a vali d sanctioned plan for rebuilding or reconstruction in their favour from the competent authority.
It is further directed that the petitioner-tenant shall have a right of re-entry in terms of the law laid down by the Hon'ble Supreme Court in Hari Dass Sharma's case (supra) and it shall be open for him to apply ::: Downloaded on - 15/04/2017 19:38:09 :::HCHP 18 for re-entry into the building to the learned Rent Controller in accordance with the proviso to Clause (c) of Section 14 (3) of the Act, .
introduced by the Amendment Act, 2009.
27. It is also made clear that the respondents shall be free to approach the learned Rent Controller for determination of the use and occupation charges which application, needless to say, as and when of preferred, shall be decided on its own merits, uninfluenced by what has been observed hereinabove.
rt
28. The petition is disposed of in the aforesaid terms alongwith all pending applications, if any, leaving the parties to bear their own costs.
December 31, 2015. (Tarlok Singh Chauhan),
(krt) Judge.
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