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Himachal Pradesh High Court · body

1990 DIGILAW 8 (HP)

ASHOK KUMAR v. TILAK RAJ

1990-03-07

BHAWANI SINGH

body1990
JUDGMENT Bhawani Singh, J.—All these revision petitions are being disposed of by a common judgment since in all of them a common ground of eviction has been raised by the landlords against the tenants. They were decided by the courts below by a common judgment. 2. Briefly, the facts are that the petitioners are the landlords. They have their business at Chandigarh They purchased the building in question on 23-8-1974 and the eviction petitions were filed against the tenants on 31-8-1977. It is a double storeyed building situate in Ward No. 8, the Mall, Solan. The tenants are occupying shops on the ground floor for the last many years. 3. The eviction was sought on number of ground namely non-payment of arrears of rent, bona fide requirement for reconstruction after demolition of the building and sub-letting by certain tenants, who are not relevant for the decision of this case since they having failed in both the courts below, did not file any appeal against their evictions In these cases, I am concerned only with the second ground raised by the petitioners for the eviction of the tenants. At this stage, it is pertinent to quote verbatim the ground of eviction raised by the landlords: "18 (a) The grounds on which the eviction of the tenant is sought: (1) * (2) The building is old one of the age of about 70 years. The petitioner wants to reconstruct the building on modern lines keeping in view the other surrounding of the building of the Mall Road, Solan, after demolishing the existing building as it is not practical and economical to carry out extensive repairs of the building. (3) * * * *" 4. The tenants refuted the above allegations. They contended that the building is in good condition and does not require any reconstruction. According to them, the building is hardly jO/35 years old and is better than the newly constructed buildings. They also say that the building consists of eight shops on the ground floor and same in the first floor. Many other tenants are there but eviction has been sought only against a few which proves the mala fide intention of the landlords. 5. On these pleadings, of the parties relating to this aspect of the matter, the trial Court framed the following issue: "Issue No. 2 : Whether the premises are required for reconstruction, as alleged ? Many other tenants are there but eviction has been sought only against a few which proves the mala fide intention of the landlords. 5. On these pleadings, of the parties relating to this aspect of the matter, the trial Court framed the following issue: "Issue No. 2 : Whether the premises are required for reconstruction, as alleged ? OPP." 6. The trial Court decided this issue against the tenants and ordered the eviction of the tenants from the premises in their occupations This decision was assailed before the District Judge (Appellate Authority) in Appeal No. ll-S/14 of 1981 and other connected matters, where their appeals were allowed and the eviction petitions were dismissed. Now, the petitioners-landlords have moved this Court by way of these revision petitions thereby assailing the findings of the Appellate Authority and it is urged that this decision deserves to be set-aside for the reasons that the findings of the Appellate Authority are absolutely against law and evidence on the record of this case. It was contended quite strenuously by Shri Inder Singh, learned Counsel for the petitioners, that the decision of the Appellate Authority holding that the petitioners have not been able to prove their bona fide requirements for demolition of the building, is not only against the evidence on record but also in derogation of number of decisions of the apex Court. Since this is the only point involved in these cases, and the parties confined their submissions only to this issue, therefore, I proceed to examine the impugned decision to know whether these findings deserve to be set-aside, 7. Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 deals with the eviction of the tenants. The relevant parts of this provision are quoted below: "14. Eviction of tenants.—(!) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this Act. Eviction of tenants.—(!) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this Act. (2) * * * * (3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession— * * * * * * * * (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 bonafide 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 are required bonafide by him for the purpose of building or rebuilding or making thereto any substantial additions or alterations and that such building or re-building or addition or alteration cannot be carried out without the building or rented land being vacated ; * * * * * * * Therefore, under section 14 (j) (c) of the Act, there are four grounds on which a landlord can apply for the eviction of a tenant : (a) 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, (b) If the building has become unsafe or unfit for human habitation, (c) If the building is required bonafide by the landlord for carrying out repairs which cannot be carried out without the building being vacated, and (d) If the building is required bonafide by the landlord 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 being vacated. 8. 8. In the present case, I am concerned with ground (d) and reading of the provisions of section 14 (3) (c) would clearly demonstrate that the landlord may apply for the eviction of the tenant for the purpose mentioned in (d) above, but he can succeed only if he proves to the satisfaction of the court that his requirement is bona fide. The onus to prove the same is obviously on the landlord. Looking to the fact that the statute is benignly designed to protect the tenants from unreasonable evictions, so the court has to put strict constructions to such provisions to fulfil the purpose of the statute (See Onkar Nath v. Ved Vyas ILR 1979 HP 1 (SC). "Bina fide requirement" has been the subject-matter of discussion and decision in large number of judicial pronouncements. The apex Court has also decided it in cases like AIR I963 SC 499, Neta Ram and others v. Jiwan Lal and another, AIR 1971 SC 942, M/s. Panchmal Narayana Shenoy v. Basthi Venkatesha Shenoy and AIR 1979 SC 1559, Metalware and Co etc. v. Bansi Lai Sharma and others etc. In Neta Rams case {supra), the Court observed in para 8 of the judgment as under: "The Controller has to be satisfied about the genuineness of the claim To reach this conclusion, obviously the Controller must be satisfied about the reality of the claim made by the landlord, and his can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation, the possibility of its being put to a more profitable use after construction, the means of the landlord and so on. It is not enough that the landlord comes forward and says that he entertains a particular intention, however strongly, said to be entertained by him. The clause speaks not of the bona fides of the landlord, but says on the other hand, that the claim of the landlord that he requires the building for reconstruction and re-erection must be bona fide, that is to say, honest in the circumstances. It is impossible, therefore, to hold that the investigation by the Controller should be confined only to the existence of an intention in the mind of the landlord to reconstruct. This intention must be honestly held. It is impossible, therefore, to hold that the investigation by the Controller should be confined only to the existence of an intention in the mind of the landlord to reconstruct. This intention must be honestly held. in relation to the surrounding circumstances." (emphasis mine) Further, in M/s. Panchmal Narayana Shenoys case (supra), the observations of the Court in paras 11 to 13 are as under : "11. The proviso to section 21 (1) enumerates the various circumstances under which a landlord may seek to recover possession of the property from his tenant. The requirement contemplated under clause (j) of the proviso to sub-section (1) is that of the landlord and it does not have any reference to the condition of the building as such. What is necessary under that clause is that the landlord must satisfy the Court that he reasonably and bona fide requires the premises for the immediate purpose of demolishing it and the demolition is for the purpose of erecting a new building in the place of the old one. No doubt, as to whether the landlords requirement is reasonable and bona fide has to be judged by the surrounding circumstances, which will include his means for reconstruction of the building, and other steps taken by him in that regard. 12. In considering the reasonable and bona fide requirement of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord. In our opinion, it is not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition. That the condition of the property may be such which requires immediate demolition is emphasised in clause (k) of the proviso. When such a specific provision has been made in clause (k), the condition of the building cannot come into the picture nor could it have been dealt with again in clause (j). So the requirement under clause (j) is that of the landlord and cannot have any reference to the building. 13. This Court, in Neta Ram v. Jiwan LaL, (1962) Supp. So the requirement under clause (j) is that of the landlord and cannot have any reference to the building. 13. This Court, in Neta Ram v. Jiwan LaL, (1962) Supp. 2 SCR 623 : AIR 1963 SC 499, in interpreting no doubt a slightly differently worded provision in section 13 (3) (a) (iii) of the Patiala and East Punjab States Union Urban Rent Restriction Ordinance, 2006 BK (8 of 2006 BK) held that one of the circumstances which could be taken iotQ aQQOU&t in coni4eripg the requirements of the landlord with reference to the existing building is the possibility of its being put to a more profitable use after construction. In the case before us all the Courts have concurrently held that the requirement of the landlord is reasonable and bona fide and that he had obtained the necessary sanction from the municipality concerned and that the landlord had also the means for reconstruction of the building, If the landlord does not commence demolition of the premises within the period specified in the order of the Court, the tenant is given a right under section 26 (1) to issue a notice to the landlord of his intention to occupy the premises from which he had been evicted and also to apply to the Court for relief if the landlord does not comply with his request. Again, under section 27, the tenant has got a right to occupy the new building on its completion provided he satisfies the requirements contained in that section. Under section 28 (1), the landlord is bound to intimate the tenant from whom he had received a notice under section 27 of the date on which the erection of the new building will be completed from which date the tenant will be entitled to occupy the same.* (emphasis mine) In Metalware and Co.s case (supra), the apex Court said in paras 6 and 7 of the judgment as under : "It cannot be disputed that the phrase used in section 14 (l)(b) of the Act is "the building is bona fide required by the landlord for the immediate purpose of demolition and reconstruction and the same clearly refers to the bona fide requirement of the landlord ; it is also true that the requirement in terms is not that the building should need immediate demolition and reconstruction. But we fail to appreciate how the state or condition of the building and the extent to which it could stand without immediate demolition and reconstruction in future would be a totally irrelevant factor while determining "the bona fide requirement of the landlord". If the Rent Controller has to be satisfied about the bonafide requirement of the landlord which must mean genuineness of Ms claim in that behalf the Rent Controller will have to take into account all the surrounding circumstances including not merely the factors of the landlord being possessed of sufficient means or funds to undertake the project and steps taken by him in that regard but also the existing condition of the building, its age and situation and possibility or otherwise of its being put to a more profitable use after reconstruction. All these factors being relevant must enter the verdict of the Rent Controller on the question of the bonafide requirement of the landlord under section 14 (l)(b). In a sense if the building happens to be decrepit or dilapidated it will readily make for the bonafide requirement of the landlord, though that by itself in the absence of any means being possessed by the landlord would not be sufficient. Conversely a landlord being possessed of sufficient means to undertake the project of demolition and reconstruction by itself may not be sufficient to establish his bonafide requirement if the building happens to be a very recent construction in a perfectly sound condition and its situation may prevent its being put to a more profitable use after reconstruction. la any case these latter factors may cast a serious doubt on the landlords bonafide requirement. It is, therefore, clear to us that the age and condition of the building would certainly be a relevant factor which will have to be taken into account while pronouncing upon the bona fide requirement of the landlord under section 14 (1) (b) of the Act and the same cannot be ignored. It is, therefore, clear to us that the age and condition of the building would certainly be a relevant factor which will have to be taken into account while pronouncing upon the bona fide requirement of the landlord under section 14 (1) (b) of the Act and the same cannot be ignored. We are clearly of the view that the age and existing condition of the building whether it is a recent construction or very old and whether it is in a good and sound condition or has become decrepit or dilapidated are relevant factors forming part of "all the circumstances" that have to be considered while determining the bona fide requirement of the landlord under section 14 (1) (b) of the Act and in the totality of the circumstances these factors may assume lesser or greater significance depending upon whether in the scheme of the concerned enactment there is or there is not a provision for reinduction of the evicted tenant into the new construction. Such a view would be in accord with the main objective of the benign legislation enacted with the avowed intention of giving protection to the tenant." (emphasis mine) 9. From the reading of the cases mentioned above, it is quite clear that the apex Court took care to see that in order to achieve the purpose of the Act, it is necessary that the landlord must prove his bona fide requirements for demolition of the building for reconstruction by convincing the Court on various factors mentioned in the above judgments. Although certain factors have been expressly mentioned, however, it appears that the Court did not make any exhaustive mention of these grounds meaning thereby that in addition to these factors, the Court dealing with the matter, it may take note of other factors as well, if so brought to its notice for the purpose of deciding the bona fide claim of the landlord. In these circumstances, the task of the court is quite onerous. It has to examine the claim of the landlord carefully and cautiously so that a helpless tenant may not be divested of his shelter by a clever landlord who may have means to demolish and reconstruct the building even if there is no need for doing so. In these circumstances, the task of the court is quite onerous. It has to examine the claim of the landlord carefully and cautiously so that a helpless tenant may not be divested of his shelter by a clever landlord who may have means to demolish and reconstruct the building even if there is no need for doing so. In recent times, it is a truth universally acknowledged that the gap between the rich and the poor is increasing enormously There is retrace for acquisition of properties by the haves thus posing a constant threat to the have-nots. In such circumstances, as already observed, the duty of the court becomes all the more sensitive, meaningful and repository of discharging function in accordance with the terms and spirit of the rent law. 10. The petitioners, in these cases, have not successfully discharged the onus cast on them. Their requirement of demolition and reconstruction is not bona fide. It appears from the evidence that the building is not old. It is in good condition. According to Shri S. P. Kapur, Superintending Engineer, HP. PWD. (retired), a Valuer under Wealth Tax Act (RW 5), the building is of stone masonry, cemented floor, cemented plaster on walls with C. G. I. sheets roofing. The life of such a building is more than 100 years and the building can exist in the present condition for more than 50 years. The type of construction, according to him, is good and good specifications have been used for the same. He did not see any water seepage in the building, as stated by some of the witnesses of the petitioners. He further states that the building can exist without major repairs or renovations. Even repairs are not needed. This building is well ventilated This version is supported by Shri Tilak Raj (RW I), Lekh Ram (RW 2), Tarlok Chand (RW 3) and Mathara Dass (RW 4) also. From the perusal of their statements, the evidence of the landlords appears to be weak, shaky and full of exaggerations. The reason is obvious. They want the eviction of the tenants, which they can do if they can establish the essentials needed for this purpose. 11. From the perusal of their statements, the evidence of the landlords appears to be weak, shaky and full of exaggerations. The reason is obvious. They want the eviction of the tenants, which they can do if they can establish the essentials needed for this purpose. 11. From the ground of eviction, quoted in the petition, they want to say that the building is old and of 70 years of age and they want to construct it on the modern lines in view of the other surrounding building at the place and it is not practicable and economical to carry out extensive repairs. Although the age of the building is one of the considerations, however, evidence, that has come on the record, does not show that the building is of this age. Proceeding further, the landlords may have right to demolish the building for the purpose of earning more profits, however, the same has not been spelt out by them. Further, financial resources, which are necessary for demolition and reconstruction of the building, have not been clearly placed and proved. Only Amar Nath states that he possesses Rs. 70,000 in the bank as a running capital. Other share-holders of the premises have not said anything about their contributions, though all of them purchased this building. Obviously, to demolish and reconstruct the same, they will have to contribute individually since it is in evidence that all the portions will have to be demolished and reconstructed simultaneously as they reconnected with each other and, therefore, even if it is taken that Amar Nath has Rs. 70,000, that cannot be enough for the reconstruction of the building. In addition to this, no evidence has been led to show how the reconstruction is to be done and what arrangements have been settled by the landlords amongst themselves. 12 Although a plan has been sanctioned by the Municipal Committee on 24-7-1978, but the sanction has lapsed by this time. Whether it can be renewed on the same terms and conditions in view of the Himachal Pradesh Town and Country Planning Act and Himachal Pradesh Road Side Land Control Act, nothing has been placed on record. It also appears that eviction petitions have been filed against certain tenants only and no reason has been given why the other tenants, including those on the first floor, have been left out. It also appears that eviction petitions have been filed against certain tenants only and no reason has been given why the other tenants, including those on the first floor, have been left out. In such a situation, demolition and reconstruction cannot be possibly conceived and accepted. 13. The tenants moved applications for bringing on record certain additional facts which occurred during the pendency of these petitions in this Court. They contend that the landlords have rented certain premises, originally in the occupation of M/s. Solan Co-operative Multipurpose Society, Solan, and one Shri Sona Ram, to persons like M/s, Sethi Brothers, with General Sales Tax and Central Sales Tax registration No. SOL/111/ 1224-SOL/CST/l 198, Narinder Sood, carrying on business in the name and style of M/s. Chinku Stores, the Mall Solan, with General Sales Tax No. SOL/H1/2613, dated 2-7-1988-CST-SOL/CST/2667, dated 2-7-1988. It is also states that one more godown is still in possession of Shri X M« Sharma, against whom no proceedings for eviction were taken They also say that electricity installations have also been carried out and commercial connection obtained from the H. P. State Electricity Board. To prove these contentions, certain documents have been filed. On the other hand, the landlords have denied these allegations by asserting that the premises have not been sub-let. As a matter of fact, eviction orders have not been executed against the tenants in those premises for the reason that even if they are evicted and possession taken, that would not serve any purpose till the present tenants are also evicted. Installation of electricity and payment of taxes to the Municipal Committee, Solan, has, of course, been admitted, although reasons given therefor are other than those contended by the tenants I see substance in the contentions of the tenants. The explanation given by the landlords is not understandable. When evictions have been sought against other tenants, obviously, the landlords should have taken possession of the premises also by initiating execution proceedings. In such a situation, the pleas raised by the tenants cannot be termed untenable on the grounds asserted by the landlords. It is only an additional factor to assess the bonafide plea of the landlords although I have already observed that the landlords have not been able to establish their pleas on the basis of the evidence that has been taken into consideration by the Appellate Authority. 14. It is only an additional factor to assess the bonafide plea of the landlords although I have already observed that the landlords have not been able to establish their pleas on the basis of the evidence that has been taken into consideration by the Appellate Authority. 14. I have perused the judgment of the Appellate Authority in the light of the evidence on the record. Its findings are absolutely correct and in tune with the nature of evidence and the principles of law applicable to the facts and circumstances of these cases. I up hold these findings and confirm this judgment. My conclusion, therefore, is that the landlords have failed miserably to establish their bona fide requirements for the demolition and the reconstruction of the building in question and the impugned decision is absolutely unassailable 15. The result, therefore, is that there is no merit in any of these petitions. They are dismissed leaving the parties to bear their own costs in this Court. Petition dismissed.