Punjab-Haryana High Court
Sohan Lal (Died) And Ors. vs Amar Nath And Ors. on 14 February, 1992
Equivalent citations: (1992)102PLR273
JUDGMENT G.C. Garg, J.
1. The matter here concerns the ejectment of the tenant, now represented by his legal representatives, inducted as such on September 9, 1958 on the premises consisting of two shops and three Chobaras constructed thereon at the instance of landlords on the grounds, amongst other, that the tenanted premises have become unsafe and unfit for human habitation in terms of provisions of Section 13(3) (a) (iii) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act). Other grounds of ejectment taken by the landlords are no longer relevant for this revision petition, having been either not pressed at the time of arguments or found against them. The only question raised and required to be decided is, thus whether the tenanted premises have become unsafe and unfit for human habitation.
2. The Rent Controller by order dated May 21, 1984 allowed the application for ejectment and ordered ejectment of the tenant by holding that the building was old and in a dilapidated condition and could fall at any time and thus, was unfit for hum in habitation. On appeal by Sohan Lal tenant, order of ejectment was upheld and the appeal was dismissed by order dated April 15, 1987. Hence, this revision petition at the instance of the tenant,
3. The matter was argued at some length on an earlier occasion. During the courage of arguments, learned counsel for the tenant as also of the landlords agreed that it was a fit case where a local commissioner be appointed by this Court and a report sought about the condition of the building in question. Accordingly, Shri Baljinder Singh, Advocate was appointed as local Commissioner with a direction to visit the premises in dispute and submit his report. The report submitted by him is Mark C. 1 on the record. He made a detailed report about each and every portion of the shops as also of the Chobaras A reading of his report clearly shows that the premises in question cannot be said to be unsafe or unfit for human habitation.
4. Counsel for the petitioner challenged the findings of the courts below whereby it was concluded that the premises had become unsafe or unfit for human habitation.
5. Learned Rent Controller after noticing report Exhibit A. 4 of Jagan Nath AW-2, notice dated August 22, 1956, Exhibit A-7 issued by the Notified Area Committee and the statement of landlord Babu Ram AW-7 concluded that the building was unsafe and unfit for human habitation. Babu Ram AW-7 had stated that the building was in dilapidated condition ; eight Balas had been replaced ; walls were Rehi eaten and the building could fall any time. He also stated that it was 100 years old. The appellate authority concluded the building to be unsafe and unfit for human habitation as it was 70/80 years old, eight Balas were defective and an equal number had been replaced It also concluded that the walls were Rehi eaten on some portion, moisture was present inside because of water tap and that the building was even unsafe in the year 1956.
6. At the out set, it may be noticed that the building in question consists of two shops (three Khans each) and three Chobaras thereon. No evidence has been produced or referred to from which it may be found that foundation of the building has sagged at any place or any of the walls has gone out of plumb or that cracks have appeared that account. No portion of the roof has been shown to have fallen though it was concluded that in a portion of a Chobara, eight Balas were white aunt eaten. Under these circumstances, a local Commissioner was appointed by this Court with the consent of learned counsel for the parties to report about the existing condition of the building.
7. The local Commissioner has reported that all the Khans of the two shops were in good condition and were safe and fit for human habitation. Regarding this portion, it was only pointed out that dust came out from the roof when Karris were touched with the help of a stick and the walls had been laid in mud. As regards the Chobaras, it was reported that the roof and the front Chobara showed that it had been repaired and had it not been done the roof would have certainly fallen. The Balas replaced were clearly-different from the ones originally laid and still 4/5 Balas which are old have cracks and the old portion of the roof was weak but the roof after repairs was fit |and safe. In reference to the two Chobaras on the back, it was observed by the local Commissioner that though Shatirs were in a bending position and had crack, but did not cause any imminent danger. In the end he observed that the building was old but maintained well
8. Learned counsel for the petitioner contended that the authorities below came to the conclusion that the building was unsafe or unfit for human habitation illegally. According to the learned counsel, much reliance was placed on notice Exhibit A-7 though no reliance could be placed on this notice which was admittedly issued by the Committee in the year 1956 and the building had been let out to tenant Sohan Lal on September 9, 1958. He went on to contend that upper portion of the building as per notice Exhibit A-7 needed repairs in the defective portion which was in ruinous state with a possibility of its sudden fall. it has not been shown that the tenant, at any point of time, effected repairs after taking the building on rent. The re- pairs, as has been noticed by the local Commissioner, must have been effected after receipt of the notice and before letting out to Sohan Lal and for which the tenant could not have produced any evidence being not in his knowledge. No assistance could thus have been taken from this irrelevant evidence by the authorities below for arriving at the above conclusion The building which is an old one, may be 90 years, could not again be a circumstance to conclude about its condition. Reliance for this was placed on the observations of M. S. Liberhan, in Trilok Chand v. Smt. Dropati Devi, 1990 (1) Rent C. R. 30, wherein it was observed thus :
"Solely the building being old and being built of small bricks, is no ground to assume or infer that it has outlived its life and is unsafe and unfit for human habitation." Reference was also made to observations made in Piara Lal v. Kewal Krishan Chopra, A. I. R. 1988 S. C. 1432. for contending that even if a roof had fallen and required replacement, in the absence of evidence that the entire or a substantial portion was in a damaged condition, it could not be held that the building as a whole had become unsafe or unfit for human habitation. The matter was considered by the Supreme Court in the following words :
'it is true that a roof of one of the rooms on the rear side had fallen down and required replacement but there was no evidence whatever that the entire building or a substantial portion of it was in a damaged condition and consequently the building as a whole had become unfit and unsafe for human habitation. Unless the evidence warranted an interference that the fall down of the roof in one room was fully indicative of the damaged and weak condition of the entire building and that the collapse of the roof was not a localised event, we fail to see how the High Court could have concluded that the entire building had become unsafe and unfit for human habitation."
Exhibit A-4 report of the expert produced by the landlords was also referred to which in toto is reproduced below :
"The shop is old one made of small bricks, its age is more than ninety years, A door is newly opened in the back portion of ground floor. The small bricks in 1st Floor of Southern side room are Ren-eaten and floor is broken. Eight Ballas are defective and eight Ballas are newly replaced in front Chobara of 1st Floor. The shop is over aged and unfit for human habitation "
9. Learned counsel for the petitioners thus, contended that there Was no evidence available on record to support the findings of the authorities below Having considered the matter, I am of the view that the findings recorded by the authorities below are vitiated and have been arrived at illegally and are not supportable by evidence on record The report of the expert reproduced above is on the basis of age of the building only. Nothing was brought out in the said report, such as sagging of foundation, the walls going out of plumb and as a result cracks having appeared, to opine that the entire building had become unsafe and unfit for human habitation. Each portion of the building was not considered for rendering this opinion. By I reference to notice Exhibit A 7 issued in the year 1956, it could not be concluded that the building was unsafe and unfit for human habitation or had not been repaired before renting out to Sohan Lal in September 1958. This notice does not show that the entire or a substantial portion of the building was in dilapidated condition. The replacement of few Balas in the roof of the Chobara over the two shops and the bad condition of another eight Balas could not be said to be such so as to conclude that the tenant was liable to eviction under Section 13(3)(a)(iii) of the Act on the ground of the building unsafe and unfit for human habitation. The other circumstances noticed by the authorities below such as moisture, Rehi walls (some portion) and missing plaster at some places are by themselves not enough to return a finding against the tenant by holding the building to be unsafe and unfit for human habitation.
10. Learned counsel for the landlords sought to argue in sup- port of the finding recorded by the authorities below that safety and fitness for human habitation of the premises from which eviction is sought does not depend on the imminence of danger involved and repair which is likely to be protracted would naturally render the premises unsafe and unfit for human habitation and ejectment could not be refused on a mere ground that the premises can still for some time more be used or the same may not fall in the near future. Support for this proposition was sought from the observations made in Sat Pal v. Charan Dass, (1968) 70 P L. R. 459 and Shrimati Shakuntla Devi v. Daulat Ram, (1967) 69 P. L. R. 251.
There is no dispute about the proposition of law as canvassed by learned counsel for the respondents. There is no evidence on the record that the building in question needs extensive repairs. No conclusion is also being drawn against the landlords for arriving at the conclusion that the building cannot be said to be unsafe arid unfit for human habitation on the ground that it may still not fall in the near future. The conclusion that was arrived at by the authori ties below was merely on the basis of age of the building. In my view mere age of a building is no ground to hold that building has become unsafe and unfit for human habitation as was observed by M. S. Liberhan, J. in Trilok Chand's case (supra).
11. Learned counsel for the respondents argued that the question, as to whether the building is unsafe and unfit for human habitation is necessarily a question of fact and the High Court in its revisional jurisdiction ought not to interfere with such a finding. Again I find no merit in the contention of the learned counsel I have detailed above various circumstances from which it can safely be concluded that the conclusion arrived at by the authorities under the Act is neither just nor proper. Rather it has been arrived at illegally and on mere surmises and conjectures. No evidence has been refer- red to by the authorities below to conclude that the entire building or a substantial portion thereof had become unsafe or unfit for human habitation, before ordering ejectment of the tenant on a petition filed by the landlords for the purpose. The jurisdiction of the High Court under Section 15(5) of the Act is, no doubt, a revisional jurisdiction but there is no doubt that this power conferred on the High Court is wider than the power conferred by Section 115 of the Code of Civil Procedure and in a given case the High Court will be well within its right to reverse findings recorded by the authorities below if it is of the opinion that the findings have been arrived at illegally und were not just and proper.
12. Mr. Jagan Nath Kaushal, Senior Advocate, learned counsel for the respondents, as a matter of last resort, referred to various sentences appearing in the report of the local Commissioner appointed by this Court to contend that in fact, the said report clearly points out that the building in question was neither safe nor fit for human habitation. It is not profitable to pick a sentence from here or there and give meaning to it out of context. The report which is a detailed one and self explanatory, when read as a whole, does not support the contention of the learned counsel.
13 As a resume of the aforesaid observations, this revision petition is allowed, the order of ejectment passed by the authorities below set aside and the application for ejectment is dismissed. The parties will bear their own costs.