Himachal Pradesh High Court
Asha Tiwari vs Manoj Kumar Kansara on 5 September, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No.122 of 2007 Reserved on : 4.8.2016 .
Date of Decision : September 5, 2016 Asha Tiwari ....Petitioner.
versus Manoj Kumar Kansara ...Respondent.
of Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes.rt 1
For the Petitioner : Mr. Neeraj Gupta, Advocate. For the Respondents : Mr. Ashok Sood, Advocate.
Sanjay Karol, Judge Finding tenant-respondent Manoj Kumar Kansara, hereinafter referred to as the tenant, to have acquired an alternate vacant possession, the Rent Controller, in terms of order dated 29.12.2004, passed in Case No.23/2 of 2001, titled as Asha Tiwari v. Manoj Kumar Kansara, allowed the petition filed by landlady-
petitioner Asha Tiwari, hereinafter referred to as the landlady, directed eviction of the tenant from the tenanted premises.
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2. Such order and findings of fact, came to be reversed by the Appellate Authority, in terms of order dated 27.6.2007, passed in Civil Misc. Appeal No.55- .
S/14 of 2006/05, titled as Manoj Kumar Kansara v. Asha Tiwari.
3. The Rent Controller found the tenant not to have produced the ration card, indicating the extent of of his family, whereas the Appellate Authority, by taking note of the Voters' List, has held the extended family to rt be the family of the tenant.
4. For the purpose of ready reference, relevant provision of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the Act), entitling the landlord to seek ejectment of the tenant, at the time of filing of the present petition, was as under:
"14(3)(a)(iv). The tenant has, whether before or after the commencement of this Act built or acquired vacant possession of or been allotted, a residence reasonably sufficient for his requirement."
(Emphasis supplied)
5. Certain facts are not in dispute. Tenanted premises consist of two rooms, kitchen, bath-cum-
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latrine, comprising Set No.5, Himachali Bhawan, Sanjauli, Shimla-6.
6. Concurrently, the authorities below have .
held the tenant to have purchased premises within the municipal limits, comprising of three rooms, one kitchen, one store, one bathroom, one balcony and terrace of the top floor alongwith attic, in a building, of commonly known as Gaurav Niwas.
7. According to the tenant, both the tenanted rt as also the newly acquired premises were already in use and occupation by him, including his "family" and only during its occupancy, these premises in Gaurav Niwas, came to be acquired by way of ownership.
8. Record reveals that tenant examined four witnesses. Now significantly, there is nothing on record to establish, by way of documentary evidence, that the premises in Gaurav Niwas were also under tenancy, that of the tenant or his family members. On this issue, ocular evidence cannot be said to be inspiring in confidence, for except for bald assertion, relevant facts pertaining to such tenancy are conspicuously absent.
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Also, prior to its acquisition, there is nothing to establish the tenant's possession in these premises.
9. Significantly, the erstwhile owner of the .
newly acquired premises has not stepped into the witness box. There is nothing on record to establish that the tenant or his brother was ever residing there, either as a tenant or otherwise. In the response filed to of the petition, tenant admits that his family as also his brother's family have been jointly residing in both the rt premises. But, he is conspicuously silent as to when he came into possession of the newly acquired premises.
Hence, such plea, so made before this Court, is palpably false.
10. The Act, defines "family" as "parents and such relation(s) of the landlord as ordinarily reside with him and is/are dependent upon him".
11. The definition would, in equal measure, apply also to a tenant, for there is no separate provision defining the "family" of a tenant.
12. What is a "family" is no longer integra. It has to be liberally and broadly construed, so as to include near relations of the head of the family.
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Dependent for the purposes of residence or economic consideration, whose responsibility is accepted by the landlord, would be a member of the family. (Joginder .
Pal v. Naval Kishore Behal, (2002) 5 SCC 397;
Dwarkaprasad v. Niranjan and another, (2003) 4 SCC 549; and Kailash Chand and another v. Dharam Dass, (2005) 5 SCC 375).
of
13. According to the tenant, his family consists of himself, his wife, two children, father, mother and rt brother Mukesh, his wife and two children. In all there are ten members in the family.
14. Onus to establish as to whether Mukesh and his family were ordinarily residing and were dependent upon him or not, was on the tenant, which in the instant case, remains unestablished/unproven on record. The Rent Controller rightly observed that it was necessary for the tenant to have placed on record the ration card, indicating that the entire family was living jointly as a single unit.
15. What weighed with the lower Appellate Authority in dismissing the petition was the Voters' List (Ex.RW-2/A) and photocopy of the Voter Identify Cards.
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Document (Ex.RW-2/B), so prepared on 28.9.2001, subsequent to the filing of the petition (26.6.2001), is not reflective of complete family of the tenant. Names .
of children are missing. Perhaps they may be minor, but then, the tenant ought to have lent some explanation. Preparation of the document for the sake of convenience cannot be ruled out. Attention is of invited to the Voters' Identity Card (Ex.RW-4/A) issued by the Election Commission of India, but then this rt document pertains to the year 1995 and it has not come on record that thereafter, both the brothers have been residing together, as a single unit, in the tenanted premises, which address is so indicated in the said document.
16. This Court has already held the tenant's plea of simultaneously being in possession of both the tenanted as well as the newly acquired premises not to have been proven on record.
17. In Kailash Chand (supra), the apex Court held as under:
"26. Undoubtedly, the Himachal Pradesh urban Rent Control Act, 1987 has been enacted for the purpose of providing for the control of rents and ::: Downloaded on - 15/04/2017 21:09:29 :::HCHP ...7...
evictions because of paucity of accommodation in urban areas. The Rent Control Legislations, generally aim at preventing rack-renting 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 of his own occupation, residential or non- residential. There are weak amongst the tenants as also amongst the landlords. (See Joginder Pal v. Naval Kishore Behal, (2002) 5 SCC rt397). 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......"
18. Further, assuming hypothetically that the tenant's brother and his family have been living together as a single unit in the tenanted premises, even then one finds that the newly acquired premises are sufficient enough for meeting the requirement of the tenant and his family. Such conclusion is clearly deducible when the premises in question are compared with the tenanted premises. As against two rooms, one kitchen and one bath-cum-latrine, tenant has acquired ::: Downloaded on - 15/04/2017 21:09:29 :::HCHP ...8...
possession of three rooms, one kitchen, one bath, one balcony, one terrace and attic.
19. The expression "reasonably sufficient for .
his requirement" is of relative amplitude. Its application differs from case to case. Sufficiency of the building for a man's requirement is reasonable sufficiency. Courts have to objectively decide the same. (S.N.D.P. Union v.
of Vamana Naik, 1994(1) RCR 157).
20. It is a settled principle of law that it is rt essential that the ingredients must be pleaded by the landlord who seeks eviction but after the landlord has proved or stated that the tenant has built, acquired vacant possession or has been allotted a residence, whether it is suitable or not, and whether the same can be really an alternative accommodation for the tenant or not, are within the special knowledge of the tenant and he must prove and establish those facts. (Ganpat Ram Sharma and others v. Smt. Gayatri Devi, (1987) 3 SCC 576). In the instant case, it is not so done.
21. The onus to establish that the alternate premises are reasonably sufficient for the requirement of the tenant is on the landlord, (Kunhiraman v.
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Kumaran, 2004(2) RCR 528; and Quiet Corner India, Bangalore v. Hameedulla Khan and another, 2004(1) RCR 310), which, in the instant case, one finds it to .
have been established.
22. What is perversity, illegality and impropriety is now well settled. The principles stand elucidated by this Court in Civil Revision No. 154 of of 2004, titled as Yog Raj Sood v. Sunita Kaushal & another, decided on 1.6.2016, by relying upon a rt decision of the apex Court in Hindustan Petroleum Corporation Limited vs. Dilbahar Singh, (2014) 9 SCC
78.
23. Hence, the lower Appellate Authority erred in correctly and completely appreciating the material on record.
24. In view of the aforesaid discussion, the present petition is allowed and the findings returned by the lower Appellate Authority, vide order dated 27.6.2007, passed in Civil Misc. Appeal No.55-S/14 of 2006/05, titled as Manoj Kumar Kansara v. Asha Tiwari, being perverse, illegal and improper, not based on correct appreciation of material on record, are set ::: Downloaded on - 15/04/2017 21:09:29 :::HCHP ...10...
aside. However, findings returned by the Rent Controller, vide order dated 29.12.2004, passed in Case No.23/2 of 2001, titled as Asha Tiwari v. Manoj .
Kumar Kansara, are upheld.
Present Revision Petition stands disposed of, so also pending application(s), if any.
of
( Sanjay Karol ),
September 5, 2016(sd) Judge.
rt
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