Himachal Pradesh High Court
Sh. Lin Kuei Tsan vs Sh. Ashok Kumar Goel on 14 July, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Revision No. 178 of 2007 a/w
.
Civil Revision No. 44 of 2014.
Judgment reserved on: 02.07.2015
Date of decision: July 14th , 2015.
1. C.R. No. 178 of 2007
Sh. Lin Kuei Tsan ... Petitioner
r Vs.
Sh. Ashok Kumar Goel ... Respondent
2. C.R. No. 44 of 2014
Sh. Lin Kuei Tsan ...Petitioner
Vs.
Sh. Ashok Kumar Goel ....Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes 1
For the petitioner : Mr. R. K. Bawa, Senior Advocate,
with Mr. Ajay Sharma, Advocate, in
both the petitions.
For the respondent : Mr. Ajay Kumar, Senior Advocate,
with Mr. Dheeraj K. Vashisht,
Advocate, in both the petitions.
Tarlok Singh Chauhan, J.
This revision petition under Section 24 (5) of the Himachal Pradesh Urban Rent Control Act, 1987 is preferred by the petitioner/tenant against the judgment dated 10.9.2007 passed by learned Appellate Authority, Fast Track Court, Shimla in RBT No. 69- Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...2...
S/14 of 2005/2002 whereby he set-aside the order dated 29.11.2001 passed by learned Rent Controller, Court No.4, Shimla in Case No. .
80/2 of 1999/1998 and ordered the eviction of the tenant.
2. The parties shall be referred to as the landlord and the tenant. The landlord filed an eviction petition against the tenant on number of grounds, however, for the purpose of determination of this revision petition the only ground which survives for consideration is as to whether the premises in question are bonafidely required by the landlord for the purpose of building or rebuilding which cannot be carried out without the building being vacated by the tenant.
3. It is not in dispute that the building No. 20, the Mall, Shimla is owned by the landlord and the tenant is in occupation of one shop on the level of the Mall Road and the entire basement below it consisting of a room and a toilet under the stairs. The tenant was already in possession of the disputed premises when the same was purchased by the landlord from its previous owner Sh. Mehar Chand S/o Lala Mauza Mal. The eviction of the tenant was sought on the following grounds:-
(i) Arrears of rent alongwith interest ;
(ii) Liability to pay future rent ;
(iii) The tenant after commencement of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the 'Act') had without the prior written consent of the landlord carried out material additions and alterations in the basement floor of the building ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...3...
thereby impair the value and utility and thus liable to be evicted; and .
(iv) That the premises in question are bonafidely required by the landlord for the purpose of building or rebuilding which building or rebuilding cannot be carried out without the tenanted premises being vacated by the tenant/petitioner.
4. It is not in dispute that insofar as the grounds No. (i) to
(iii) are concerned, the same have been rendered redundant because the arrears of the rent already stand paid in accordance with law and insofar as the eviction of the tenant on the ground of his having committed such acts as are likely to impair materially the value and utility of the building is concerned, the same was not pressed before the learned Appellate Authority as would be clear from para 12 of the judgment of the Appellate Authority.
5. In support of ground No.(iv), the landlord pleaded that the premises in dispute under the tenancy and occupation of the tenant were bonafidely required by him for the purpose of building or rebuilding which building or rebuilding could not be carried out without the tenanted premises being vacated by the tenant. The building was more than 100 years age and had now out-lived its span of life. The upper two floors of the building were in the physical possession and in occupation of the landlord and his wife where the landlord and his wife were jointly running a hotel and the landlord was also having his office on a part of the said premises under his occupation. It was specifically pleaded that the landlord wanted to ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...4...
reconstruct/rebuild the entire building by pulling down the existing old structure which was made of dhajji, bricks and chuna surkhi and .
would be replaced by RCC structure which would be put to personal use by opening restaurant and hotel therein. It was further pleaded that the structure of the building had been badly damaged on account of fire which had occurred in the adjoining building No. 19, The Mall, Shimla. Lastly, it was submitted that the landlord was possessed of sufficient means to reconstruct the building and for such reconstruction, the landlord was also taking steps for approval of the plans on old lines as the RCC structure is to be built in place of the present old structures on old lines.
6. The tenant contested the eviction petition by raising preliminary objections that the petition had not been properly verified because of which the same was not maintainable, the petition lacked material particulars, locus standi of the landlord to sue, the petition being bad for non-joinder of necessary parties viz the other owners of the building, the landlord had not come to the Court with clean hands and he was harassing the tenant for the last many years were taken.
It was also pleaded that no steps had been taken by the landlord for obtaining requisite sanction from the Municipal Authorities or Town and Country Planning Department for doing the building and re-
building work. The landlord had already carried out unauthorized construction in the building in question.
7. On merits, the relation of landlord and tenant was admitted. It was averred that the basement floor below the shop is/was used by him (respondent) as a work-shop. The rest of the ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...5...
premises were used as a residence. The tenant was residing in the basement with his family members. The rented premises consist of a .
shop on the Mall Road and residential portion cum work-shop comprising of three rooms and WC in the basement floor facing Middle Bazar. No rough plan of the premises had been submitted by the landlord as required under the law. The tenant was carrying on the business in the name and style of 'Ta Tung and Company' from the very beginning. He had been dragged into a number of frivolous proceedings by the landlord for the last many years. The building was in good condition and neither the landlord needed it for rebuilding nor he had any intention to do so. The landlord was in occupation of the upper portion of the building and was running a hotel in the name and style of 'Hotel Ghar' in the top floor of the building. Recently, the landlord had inducted a new tenant in a part of the building just above the shop in question. All this showed the falsity of the claim put forth by the landlord. For the last several years, the landlord was renovating and repairing the portions of the building which were in his occupation. The landlord was also doing the addition and alteration work in the portion just above the portion in dispute. Municipal authorities had initiated action against the landlord for carrying out the work unauthorisedly. The structure was neither 100 years old nor it is made of dhajji, bricks or chuna surkhi. The landlord did not want to replace old structure with the new RCC structure. The landlord did not want to open a Restaurant or Hotel as claimed. He was running flourishing business of multi storeyed hotel in Fingask Estate, Shimla and in Chotta Shimla known as 'Moon International Hotel'. The ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...6...
building in dispute was not damaged due to the fire which broke out in the adjoining building No. 19, The Mall, Shimla. It was averred that .
the landlord did not have sufficient funds to reconstruct the building nor he had taken any steps for approval of the plan on the old lines.
On these pleadings, the tenant sought the dismissal of the petition with penal and special costs.
8. In rejoinder, the landlord reiterated the contents of the petition and refuted the objections put forth by the tenant. It was denied that the building was in sound condition or that he had carried out additions or alterations in the portion which was in his occupation.
9. On 7.12.1999 the learned Rent Controller, framed the following issues:
1. Whether the respondent has committed such acts as have or are likely to impair the value and utility as alleged? OPP.
2. Whether the tenanted premises are required by the petitioner for building or re-building purpose as alleged? OPR
3. Whether the petition is not maintainable in the present form? OPR
4. Whether the petitioner is estopped to file the present petition as alleged? OPR
5. Whether the petitioner has no locus-standi to file the petition? OPR
6. Whether the petition is bad for non-joinder of necessary parties? OPR
7. Relief.
10. The learned Rent Controller, vide order dated 29.11.2001 dismissed the petition filed by the landlord. Aggrieved by the order dated 29.11.2001 passed by learned Rent Controller, the landlord filed appeal under Section 24 of the Himachal Pradesh Urban Rent Control Act, before the learned Appellate Authority, Shimla, who vide ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...7...
judgment dated 10.9.2007 accepted the appeal and set-aside the order of the learned Rent Controller and directed the eviction of the .
tenant on the ground of bonafide need of the landlord for building or rebuilding purpose which cannot be carried out without the premises being vacated.
11. Feeling aggrieved and dissatisfied with the impugned judgment dated 10.09.2007 passed by the learned Appellate Authority, the tenant has preferred this revision before this Court on the ground that the learned appellate authority had not appreciated that the eviction orders could not be passed against the tenant on the mere asking of the landlord particularly when there was no iota of evidence produced on record which may prove that the tenanted premises in question are bonafidely required by the landlord for rebuilding. It is further averred that the bonafides of the landlord stand not only doubted but demolished when it is proved on record that the landlord had not only rented a part of the tenanted premises in occupation to the ICICI Bank, but had also carried out extensive construction work in the third and fourth floor of the premises. It is further averred that the bonafides of the landlord are lacking when it is proved on record that there is no proposed building map submitted by the landlord on the ground taken in the memo of the petition.
12. I have heard learned counsel for the parties and have gone through the records of the case carefully.
13. Mr. R.K. Bawa, learned Senior counsel for the tenant has strenuously argued that the bonafide of the landlord can be judged from the fact that even after the decision of the learned ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...8...
appellate authority and during the pendency of this revision petition the landlord has again rented out a part of the premises in the third .
floor for running a restaurant in the name and style of "SICHUAN PALATE" and this fact has been duly brought to the notice of this Court by moving an application being CMP No. 8461 of 2014.
14. On the other hand, Mr. Ajay Kumar, learned senior counsel for the landlord has submitted that once it is disputed that the premises are more than 100 years old, then the mere fact that a part of the premises may have been let out, from time to time, would not in any manner adversely reflect upon the bonafides of the landlord as the landlord cannot be expected to keep the premises vacant and wait for the decision of the case. He further argued that in terms of the latest law the landlord now was not required to prove the sanctioned map and was further not even required to prove his financial resources, though the landlord in the instant case had otherwise led sufficient evidence to prove that he had already submitted the map and had further led evidence to show that he had the finances to raise the construction. This fact according to landlord has not been denied even by the tenant when he in his reply to the petition had admitted the landlord to be having a flourishing business in multi storeyed hotel at Fingask Estate, another hotel at Chhota Shimla known as 'Moon International Hotel' and lastly running a flourishing business of property dealing from the premises in question.
15. The term 'bonafide' used in Section 14 of the H. P. Urban Rent Control Act, 3 (c) is referable to the bonafides of the landlord.
Section 14 (3) (c) of the Act reads as under:-
::: Downloaded on - 15/04/2017 18:34:07 :::HCHP...9...
"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]".
16. In view of the above position, the landlord in the instant case is only required to show that he requires the building bonafidely for demolition and reconstruction. If the landlord wants to demolish by taking into condition of the building then the bonafide is also referable to the building that is why normally though not mandatorily required, the age and condition of the building and the other aspects such as means etc. are taken into consideration to decide as to whether the building really requires demolition and reconstruction to judge the bonafides of the landlord.
17. The tenant has filed CMP No. 8461 of 2014 for taking into on record the subsequent events whereby a portion of the third floor has been rented out by the landlord for running a restaurant "SICHUAN PALATE". Indisputably, as of today, the premises are lying ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...10...
vacant. Even otherwise, the tenant has miserably failed to prove parting of possession by the landlord in favour of third person.
.
18. The learned counsel for the tenant would then argue that the bonafides of the landlord are lacking for the following reasons:
(i) That the landlord was not exclusive owner of the premises ;
(ii) There was a loan standing on the building and, therefore, could not be demolished.
(iii) The sanctioned map though not a sine qua non for evicting the tenant under law would go a long way to prove the bonafides of the landlord and;
(iv) No reason why the co-owner had not been made a party.
19. Indisputably, the premises in question were owned by the landlord and his wife Kamlesh and this fact has infact been mentioned in the eviction petition, though not in so many words. Even otherwise, it is more than settled that one co-owner can maintain an eviction petition. That apart, no prejudice has otherwise been shown to have been caused to the tenant by not arraying the co-owner so as to make a grievance. It was not disputed before me that the co-owner Smt. Kamlesh is no more in the land of living and, therefore, even this objection of the tenant therefore holds no water.
20. Now, coming to the question of loan, it would be seen from the material placed on record that as a matter of fact there was no loan outstanding against the premises. Rather, it was the landlord who infact had given a personal guarantee for the same but after ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...11...
repayment of the entire loan amount alongwith interest, the financing authority itself has given 'No Dues Certificate', the copy whereof is .
placed as Annexure R-1 with the sur-rejoinder filed to CMP No. 8461 of 2014.
21. The learned Rent Controller in order to hold the tenant not liable for eviction on the ground of the landlord requiring the premises bonafide for the purpose of rebuilding or reconstruction, gave the following reasons:
"....In this case, the version of the landlord is that he went to rebuild the building, but if his intentions are so, then why he has recently raised third and fourth floor by spending huge amount. He has further rented out a portion of a newly constructed floor to a new tenant and is getting considerable rent. It is submitted that in such a situation rebuilding itself is not possible and the present petition deserves dismissal. I have also gone through the evidence. Admittedly, the petitioner has recently raised fresh construction over third and fourth floor of the building in question. He has also rented out a portion of upper floor to a tenant, in these circumstances, how demolition or rebuilding is possible is unexplained. No proposed building map has been placed on record to show that the proposed rebuilding undertaking will be of such a nature and of such an extent that it is not possible to carry out the same until the premises are vacated by the respondent. In these circumstances, I hereby proceed to hold that petitioner has failed to establish his bonafide on record..."
22. A perusal of the aforesaid findings prima-facie establishes that the learned Rent Controller considered irrelevant material and discarded the relevant material to arrive at the aforesaid conclusion. This would be further clear when this Court takes note of certain precedents on the subject.
23. In Prem Chand alias Prem Nath vs. Smt. Shanta Prabhakar1997(2) RCR, 672, the Hon'ble Supreme Court carved out ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...12...
different and independent situations/circumstances enabling the landlord to apply eviction of the tenant and it was held that even if the .
building was not unsafe or unfit for human habitation but the landlord required it for building or rebuilding or making substantial additions and alterations, he was entitled to the order of eviction. It was held as under:
"8. 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 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
(ii) When the tenanted premises have become unsafe or unfit for human habitation; or
(iii) When the tenanted premises are required bonafide by the landlord for carrying out repairs which cannot e carried out without such tenanted premises being vacated; or
(iv) When the tenanted premises are required bonafide 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."
9. From the above analysis, it will be seen that the condition of the buildings required to be considered when the application falls under the above mentioned Category Iii). 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 materia 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."
::: Downloaded on - 15/04/2017 18:34:07 :::HCHP...13...
24. The judgment of the Hon'ble Supreme Court in Jagat Pal Dhawan vs. Kahan Singh (dead) by LRs and others (2003) 1 SCC .
191 has been relied by both the parties in support of the case wherein the Hon'ble Supreme Court held that while trying eviction petition on grounds of demolition and reconstruction, the Court may look into the relevant facts regarding age and condition of building, availability of necessary funds and whether building plan have been sanctioned by local authorities in 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 are 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 ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...14...
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 of the landlord are relevant factors for determining the bona fides of the requirement for demolition and reconstruction.
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 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 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 ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...15...
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.
15. The appeal deserves to be allowed. The orders of the High Court and the Courts below are set aside. Instead the tenant- 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 the usual undertaking within a period of three weeks from today before the executing Court undertaking to deliver vacant and peaceful 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."
25. 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 ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...16...
14(3)(c) no where provides that reasons for rebuilding and reconstruction are to be pleaded in the petition.
.
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:-
r to "(i) When the tenanted premises are required by the 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
(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 ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...17...
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 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."
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 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 ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...18...
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 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 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 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 ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...19...
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 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. 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 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 ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...20...
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."
26. 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 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:
"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 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 ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...21...
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.
17. 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 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 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 possession to the landlord and till then the tenants ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...22...
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 being approved was clearly contrary to the provisions of Section 14(4) of the Act and the proviso thereto."
27. 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 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, 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.
28. In view of the aforesaid exposition of law, the submission of the tenant even if assumed to be correct that the landlord does not have a sanctioned plan, holds no water as the same is not a pre-
requisite for maintaining a petition for eviction.
::: Downloaded on - 15/04/2017 18:34:07 :::HCHP...23...
29. Learned counsel for the tenant would then argue that since the premises is in the core area where the reconstruction is not .
permitted, therefore, the eviction petition ought to be dismissed.
Needless to say even this issue is no longer res-integra in view of the judgment rendered by this Court in Naresh Kumar and others vs. Surinder Paul 2001 (2) SLC 337, which in turn, has been relied upon by this Court in Phoola Devi's case (supra) and it was held that reconstruction even in the core area was not banned absolutely and reconstruction on the old lines was permissible within the core area with the prior approval of the State Government.
30. In addition to what has been observed aforesaid, it would be seen that not only the landlord has resources, which fact is not denied by the tenant, but even his plea appears to be bonafide when the tenant himself does not dispute that the premises are more than 100 years old.
31. The fact that the landlord may have rented out a part of the building or carried out extensive repairs, will not work as an impediment or disadvantage in considering his bonafides. After all, it is for the landlord to decide as to in what manner the premises are to be used and it is not open for the tenant to dictate terms. Therefore, no exception can be taken to the act of the landlord in letting out temporarily a portion of the building. After all, the landlord is not expected to keep the premises vacant during the pendency of the litigation which was instituted nearly two decades back i.e. on 30.10.1998.
::: Downloaded on - 15/04/2017 18:34:07 :::HCHP...24...
32. It is by now more than settled that this Court will not normally interfere with the findings of fact recorded by the first .
appellate authority, only because on reappreciation of the evidence, its view is different from the authority below.
33. The consideration or examination of evidence by this Court is confined to find out that the findings of fact recorded by the authority below is according to law and does not suffer from any error of law. This was so held by the five Judges Bench of the Hon'ble Supreme Court in Hindustan Petroleum Corporation Limited vs. Dilbahar Singh (2014) 9 SCC 78 and it was further held that finding of facts recorded by the 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 that it is open to correction because it is not treated as a finding according to law. In that event, this Court in exercise of its revisional jurisdiction is entitled to set-aside the impugned order as being not legal or proper. However, even while satisfying itself to the regularity or correctness, legality or propriety of the impugned order, this Court will 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. This court while satisfying itself regarding the decision being in accordance with law, may examine whether the ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...25...
order impugned before it suffers from procedural illegality or irregularity, which is not the case in the instant revision.
.
34. In view of the aforesaid discussion, I find no illegality, impropriety or perversity in the order of the learned appellate authority and accordingly, the revision is dismissed, so also the pending application(s) if any.
35. Before parting, it may be noticed that the respondent-
landlord has taken exception of findings recorded by the learned Appellate Authority to the effect that the eviction order shall not be available for execution unless the petitioner/landlord/appellant produces before the Executing Court the building plan duly sanctioned/approved by a competent authority whereupon and whereafter only the Executing Court shall allow the execution of the ejectment order. He would argue that once the requirement of having a duly sanctioned plan is held not to be a pre-requisite for maintaining the eviction petition by the Hon'ble Supreme Court in Hari Dass Sharma's case (supra) and by this Court in numerous judgments (some of which have already been quoted above) then such a condition could not have been imposed by the learned Appellate Authority. He further contended that the law declared by the Hon'ble Supreme Court in terms of the mandate of Article 141 of the Constitution of India is binding on all unless the same is held to be prospective in the judgment itself.
36. I have considered the aforesaid submission and I am of the considered opinion that no exception to such condition can be taken by the landlord, particularly, when the landlord has not chosen ::: Downloaded on - 15/04/2017 18:34:07 :::HCHP ...26...
to assail these findings by filing a separate revision petition. Even otherwise this condition is otherwise just and equitable.
.
37. Further, this Court cannot also loose sight of the fact that it was the landlord who in order to prove and establish his bonafides had himself pleaded that he was taking steps for approval of the building plans on old lines and this was one of the considerations which weighed with the learned Appellate Authority to conclude that the need of the landlord was bonafide. Therefore, at this stage the landlord cannot be permitted to resile from his pleadings or else this would itself cast a doubt on his bonafides.
38. 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 look into the availability of the building plan duly sanctioned by local authorities for the purpose of determining the bonafides of the landlord.
39. Though the present revision petition has been dismissed, however, it is made clear that in terms of the judgment of the Hon'ble Supreme Court in Hari Dass Sharma's case (supra), it shall be open to the tenant to apply for re-entry into the building in accordance with the proviso to Clause (c) of Section 14 (3) of the Act, introduced by the Amendment Act, 2009.
::: Downloaded on - 15/04/2017 18:34:07 :::HCHP...27...
C.R. No.44 of 201440. The tenant by way of instant revision has questioned the .
order dated 24.3.2014 passed by the learned Rent Controller (V), Shimla whereby pursuant to the execution proceedings having been carried out by the landlord, the tenant was granted three months' time to vacate the premises, however with the right of re-entry. Now, that the revision petition preferred by the tenant itself has been dismissed and the order passed by the appellate authority, has been upheld, this revision is disposed of with the clarification that the eviction order shall not be put to execution unless the petitioner/landlord/ appellant produces before the Executing Court the building plan duly sanctioned/approved by a competent authority and it shall be open to the tenant to apply for re-entry into the building in accordance with the proviso to Clause (c) of Section 14 (3) of the Act introduced by the Amendment Act. Pending application(s) if any, stands disposed of.
The parties are left to bear their own costs.
July 14, 2015. ( Tarlok Singh Chauhan ),
(GR) Judge
::: Downloaded on - 15/04/2017 18:34:07 :::HCHP