Punjab-Haryana High Court
Modern Construction Co. vs Lt. Col. R.K. Sapra on 7 June, 1990
Equivalent citations: (1990)98PLR332
JUDGMENT G.R. Majithia, J.
1. The tenant has come up in revision petition against the order of the Appellate Authority, Gurgaon, dated November 23, 1987, affirming on appeal the order of the Rent Controller, Gurgaon, dated November 13, 1986 directing its ejectment from the demised premises.
2. The facts: --
The demised premises were owned by Iqbal Singh, Gurnam Singh and Inder Singh, who sold the same to the respondent (hereinafter referred to as the landlord) vide registered Sale Deed dated June 11, 1981. The landlord retired as Lt. Col. from the Armed Forces of the Union of India on December 15, 1981. He was a qualified Engineer. He required the demised premises bona fide for his own use and occupation for running his own business in electronic goods and for manufacturing Magnetic Tape drivers, etc. He got the project report prepared and was making efforts to get his unit registered as a small scale industry.
3. The tenant controverted the allegations of the landlord, it was pleaded that the sale deed in favour of the landlord was not a genuine document. The demised premises which were consisting of two shops and store were taken by the tenant on rent under two different rent deeds on different dates. The rate of rent of one premises was Rs. 100/- including house-tax and Rs 50/- per month including house tax for the second. Since the tenancies were separate, the landlord had no bona fide requirement to get both the tenanted premises vacated. It was further pleaded that the landlord had been working in Naraina Industrial Complex, Delhi and the eviction petition had been moved for the benefit of the previous owners.
4. On the pleadings of the parties, the Rent Controller framed the following issues :--
1. Whether the respondent is liable of be evicted on the ground mentioned in the petition ?
2. Whether the tenancies were separate as alleged in para No. 2 of the written statement ? OPR (Onus objected to)
3. Whether the alleged sale in favour of the petitioner is bogus, Sham and benami as alleged in para No. 1 of the written statement ?
4. Whether the petitioner is entitled to house tax as 12% as claimed in the petition ? If so, to what effect ? (Onus objected to)
5. Whether the respondent has no right to challenge the sale deed ? OPP.
6. Relief.
5. The Rent Controller disposed of issues No. 1, 3 and 5 together. He held that the landlord required the demised premises bona fide for starting his own business. He found that the sale deed, Exhibit A.1, in favour of the landlord was for consideration and was not a sham transaction. It was further held that the tenant had no right to challenge that the sale deed in favour of the landlord was a sham transaction. The Rent Controller also found that the original landlord had been issuing single consolidated receipt evidencing payment of rent for the demised premises for the last 10/12 years. He also held that even if originally two tenancies were created, there was revocation of the contract and both the tenancies were merged into one single tenancy by the parties. The Rent Controller also held that even if there were two tenancies in favour of the tenant, even then a single petition for eviction was maintainable. It was also found that House-tax was included in the rent. The Appellate Authority affirmed these findings of the Rent Controller.
6. The learned counsel for the tenant-petitioner reiterated the same submissions which were made before the Appellate Authority. He argued that the sale in favour of the landlord was a sham transaction. According to him, the transaction of sale was only entered into to evict the tenant. The Kent Controller legislation does not for bid transfers by the landlord of premises in possession of tenants. A sham transaction is one which creates no right in the property and does not exist in law. The tenant can assail the validity of the sale deed made in favour of the landlord. The execution of sale deed dated June 11, 1981 (Exhibit A.1) his duly been proved. Inadequacy of sale consideration will not make the transaction a sham transaction. Recital in the sale-deed that there was a litigation between the original owner and the tenant will not make the transaction of sale a sham transaction. To the contrary, the vendee has purchased the property with his eyes open knowing fully well the encumberances and the property was subject-matter of litigation. This fact will not in any manner render the transaction of sale invalid.
7. I have gone through the evidence on record. I am not persuaded to hold that the transaction of sale is invalid or vitiated being a sham transaction as is being propounded.
8. The learned counsel further submitted that two separate tenancies of two shops were created at different times and different rates of rent were fixed Single application for eviction was not maintainable. This plea deserves to be rejected for the reasons, namely, (i) single application for eviction on the ground of non payment of arrears of rent with regard to demised premises (alleged to have been created under two different tenancies) was filed. The rent was claimed at the rate of Rs. 150/- per mensem. The tenant tendered the arrears of rent at the rate claimed by the landlord (inclusive of house tax, costs and interest) as is evidenced by the Rent Controller's order dated October 11, 1983 (copy Exhibit R-6). The tenant calculated the arrears of rent at the rate of Rs. 150/- per mensem as is evidenced by Exhibit Rule 7. The identity of these two tenancies disappeared when the tenant started paying rent at the rate of Rs. 150/- per mensem against a single receipt; and (ii) Two tenancies might have been created at the initial stage. The tenant and the landlord were the same. It appears that after the creation of the first tenancy, more accommodation was required by the tenant and for the additional accommodation the rate of rent was agreed upon at Rs. 150/- per mensem. Addition of accommodation in the original tenancy on payment of enhanced rent will not amount to creation of an independent tenancy. As a matter of fact, the concept of two tenancies, as is being propounded, disappeared and the tenanted premises leased out in the first instance and in the second instance came to be regarded as demised premises. Even otherwise, I do not find any prejudice having been caused to the tenant. The learned counsel urged that there can be no division of tenancy. In fact, none was made. Even if two tenancies were created by the parties, they by their conduct have treated these as a single tenancy There can be no exception to this course being adopted. In law, the submission of the learned counsel cannot be sustained.
9. It was further submitted that the landlord did not bona fide require the demised premises for his own use and occupation. The Rent Controller and, the Appellate Authority, after scrutiny of the evidence produced by the parties, gave a firm finding of fact that the requirement of the landlord was bona fide. The landlord retired from the Army on December 15, 1981. He is a qualified Engineer having post-graguate degree in Mechanical Engineering and Business/Industrial Management as is evidenced by Exhibits A.W. 2/1 to AW 2/4. He applied for installation of a small scale industrial unit on March 7, 1987. The Municipal Committee, Gurgaon granted him the necessary permission. The landlord purchased the property before his retirement, viz. June 11, 1981. He retired from service on December 15, 1981 and moved the Rent Controller for obtaining possession of the demised premises on January 18, 1982, immediately after his retirement. The fact that the landlord is running a business at Delhi or is having a residence at Delhi will not remotely suggest that the requirement of the landlord is not bona fide or genuine. He appears to be a brilliant officer and a qualified engineer and may be keen to set up small scale industrial unit in the demised premises. The licence to set up the small scale industrial unit has already been granted to him. The totality of proved facts unmistakably suggests that the landlord reeds the premises for setting up his small scale industrial unit. The mere fact that he has got his residence in Delhi or that he is running some business at Delhi will not disprove the landlord's case that he needs the demised premises for his own use and occupation. The landlord is entitled to explore avenues for expansion of his business and exploit his skill for furthering his prospects in life. I do not find any infirmity in the conclusions arrived at by the learned Appellate Authority that the landlord bona fide required the demised premises for his own use and occupation. I have been taken through the evidence by the learned counsel for the tenant and I am not persuaded to take a contrary view than the one taken by the learned Appellate Authority.
10. For the reasons recorded above, the revision petition is dismissed but with no order as to costs. The tenant is allowed two months' time to vacate the demised premises provided he deposits the arrears of rent within two weeks from today and also gives an undertaking that he will vacate the demised premises on the expiry of the period allowed for vacating the demised premises.