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2000 DIGILAW 126 (HP)

HARSWARUP v. RAM LOK SHARMA

2000-05-30

R.L.KHURANA

body2000
JUDGMENT R.L. Khurana, J.—The petitioner before this Court is the tenant. His ejectment was sought by the respondent (landlord) from the tenanted premises comprising of shop in the land measuring 25.55 Sq. meters in khasra No. 821 of Up-Mohal Naya Nalagarh, on the following grounds: (a) The tenanted premises are dilapidated and have become unfit and unsafe for human habitation; and (b) The tenanted premises are required bona fide by the landlord for the purpose of rebuilding and reconstruction which cannot be carried out without the same being vacated. 2. The learned Rent Controller vide order dated 24.5.1996 disallowed the eviction petition of the landlord on both the grounds and accordingly dismissed the same. 3. The landlord went up in appeal before the learned Appellate Authority assailing the findings of the learned Rent Controller. The learned Appellate Authority vide its order dated 21.9.1996 allowed the appeal of the landlord and ordered the ejectment of the tenant from the tenanted premises on the ground that the same are in a dilapidated condition and have become unsafe and unfit for human habitation. Insofar as the other ground that the tenanted premises are required bona fide for the purpose of rebuilding and reconstruction is concerned, no findings were recorded by the learned Appellate Authority in its order dated 21.9.1996. 4. Feeling aggrieved by the order of ejectment passed against him by the learned Appellate Authority, the tenant has come up before this court by way of the present revision petition under Section 24(5), H.P. Urban Rent Control Act, 1987 (for short: the Act). 5. Since no findings were recorded by the learned Appellate Court on the ground of the tenanted premises being bona fide required by the landlord for the purpose of rebuilding and reconstruction this court on 21.7.1999 had called for the findings of the Appellate Authority on this ground of ejectment. The learned Appellate Authority in compliance of the order of this Court, after having afforded opportunity to the parties of being heard, vide order dated 26.10.1999 has recorded the findings that the tenanted premises are bona fide required by the landlord for rebuilding and reconstruction and that such rebuilding and/or reconstruction cannot be carried out without the tenanted premises being vacated. Consequent upon such findings the order of ejectment has come to be passed against the tenant by the learned Appellate Authority on both the grounds on which the landlord had sought the eviction. 6. On the receipt of the findings dated 26.10.1999 from the learned Appellate Authority, the tenant has raised additional grounds for assailing such findings vide petition being CMP No.99/2000. 7. While assailing the findings of the learned Appellate Authority the learned counsel for the tenant has contended that the learned appellate authority has committed a grave error in ordering the ejectment of the tenant since there is no cogent and reliable evidence to show that the tenanted premises are in a dilapidated condition and are unfit and unsafe for human habitation. It has further been contended that in the absence of evidence that the tenanted premises are dilapidated and required rebuilding and reconstruction, the requirement of the landlord cannot be said to be bona fide. Besides, neither the site plan of the proposed construction has been got approved/sanctioned nor any approval under the H.P. Road Side Land Control Act, 1968 or from the Town and Country Planning Department. 8. In the support of his contention, the learned counsel for the tenant has placed reliance on the decisions of a learned Single Judge of this court in Vidya Devi and others y. Gulzari Lal [1990(1)Rent L.R.12]; Munna Devi v. Daropati Devi and others, [1990(1) Rent L.R. 23] and Ashok Kumar v. Tilak Raj, [1990 (2) Sim. L.J. 801]. 9. The ratio relied upon by the learned counsel for the tenant is no more a good law in view of the pronouncement of the Supreme Court in Prem Chand alias Prem Nath v. Shanti Prabhakar (Smt). [(1998)1 SCC 274], while dealing with a case, like the present one, arising under Section 14(3) (c) of the Act, it was held: "It is obvious from the rival submissions that we have to set out the section itself before proceeding further. Section 14(3)(c) of the Act reads as follows : 14. [(1998)1 SCC 274], while dealing with a case, like the present one, arising under Section 14(3) (c) of the Act, it was held: "It is obvious from the rival submissions that we have to set out the section itself before proceeding further. Section 14(3)(c) of the Act reads as follows : 14. (3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession— (a) - (b) * * * * (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 bona fide 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; 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 situation/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 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 analysis it will be seen that the condition of the building is required id 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(l)(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.” 10. In view of the above, the settled law now is that while seeking ejectment of the tenant on the ground that the tenanted premises are required bona fide by the landlord for the purpose of rebuilding or reconstruction or making thereto any substantial additions /alterations, the landlord is not required to show the condition of the building and prove that it has become dilapidated, unfit and unsafe for human habitation. The landlord has to show only that his requirement is bona fide and that such building or rebuilding or additions/alterations cannot be carried out without the building being vacated. To the similar effect it has been held in Inder Pal Thakur v. Hukam Chand and another, [1997(3)Sim. L.C. 358] and in Gulazari Lal Jaggi v. Smt. Kamlesh Kumari and others, Civil Revision No. 338/98, decided on 29.4.1999. 11. In the present case the bona fide requirement of the landlord is ascertainable from the evidence coming on record. There is a sanctioned plan from the Municipal Committee. There is no denying that the landlord has the necessary means for carrying out the construction of the new building. It is also admitted case of the parties that the present construction of the tenanted premises is that of stone and mud plaster. The premises are 50 to 60 years old. A part thereof has collapsed. A hole has appeared in one of the walls. 12. It is also admitted case of the parties that the present construction of the tenanted premises is that of stone and mud plaster. The premises are 50 to 60 years old. A part thereof has collapsed. A hole has appeared in one of the walls. 12. Much stress was laid on behalf of the tenant on the fact that no new construction can be raised without the permission of the Collector under Section 5 of the H.P. Road Side Land Control Act, 1968, as well as the approval of the Town and Country Planning Department and that since no such permission/approval has been obtained by the landlord, his requirement cannot be held to be bona fide. 13. There is no merit in the contention raised on behalf of the tenant. The mere fact that the landlord has not obtained the necessary permission under the H.P. Road Side 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. 14. In Amarjeet Singh v. Anju Ram, [1997 (1) Sim. L.C. 492], where the landlord therein had sought eviction of the tenant on the ground that the tenanted premises were required bona fide for reconstruction, a contention was raised by the tenant that sanction of Town and Country Planning was required for raising construction and since no such sanction was obtained the requirement of the landlord was not bona fide. It was held that merely because the sanction was not obtained, the same would not be a ground to defeat the claim of the landlord. Such a sanction could be obtained by the landlord at a subsequent stage. To the similar effect, it has been held in Gulazari Lal Jaggis case (supra). 15. The learned Appellate Authority, on appreciation of evidence, has rightly come to the conclusion that the requirement of the landlord is bona fide. Such findings do not call for any interference. 16. It is in evidence that the tenanted premises are about 50/60 years old. The construction is of wood-rafters, stones and mud plaster. The expert examined by the tenant himself as RW 3, has admitted to the following facts : (i) One wall towards the shop of Ramakant (PW-3) has fallen down; (ii) There is an opening in the wall. 16. It is in evidence that the tenanted premises are about 50/60 years old. The construction is of wood-rafters, stones and mud plaster. The expert examined by the tenant himself as RW 3, has admitted to the following facts : (i) One wall towards the shop of Ramakant (PW-3) has fallen down; (ii) There is an opening in the wall. Such opening has been closed by stacking wooden boxes in front of it; (iii) the shop, that is, the tenanted premises are in a dilapidated condition. 17. In addition to the above evidence coming from the tenant himself, there is evidence in the form of Ex. PW 4/A, the report of the Local Commissioner, who was appointed by the learned Rent Controller to visit the spot and report about the condition of the tenanted premises. As per this report the condition of the tenanted premises was dilapidated. A hole of about 2.10 feet wide was found in the roof which had occurred on account of collapsing of the walls. 18. Be it stated that the tenant has not dared to step into the witness box to state about either the condition of the tenanted premise or the bona fide requirement of the landlord for rebuilding and/or reconstruction. Only his general attorney Kuldip Singh has appeared as RW 5. 19. It has been held by the Apex Court in Ishwar Bhai C. Patel v. Harihar Behera and another, [1999 (2) Current Civil Cases 171 (SC), that if a defendant does not enter the witness box to make a statement on oath in support of the pleadings set out in the written statement, an adverse inference would arise that what he had stated in the written statement was not correct. 20. This court in Gurdev Singh v. Gulaboo, R.S.A. No.302 of 1992, decided on 24.4.2000, has held that the appearance of a general attorney cannot be regarded as appearance of the party. The appearance of a general attorney is only as a witness in his personal capacity. 21. 20. This court in Gurdev Singh v. Gulaboo, R.S.A. No.302 of 1992, decided on 24.4.2000, has held that the appearance of a general attorney cannot be regarded as appearance of the party. The appearance of a general attorney is only as a witness in his personal capacity. 21. Therefore, in the present case, on the failure of the tenant to step into the witness box to make a statement on oath in support of his pleadings and to subject himself to cross-examination, an adverse inference will have to be drawn against him and it will have to be presumed that the tenanted premises are dilapidated and have become unfit and unsafe for human habitation. The findings recorded by the learned Appellate Authority, therefore, call for no interference. 22. As a result, the present petition alongwith C.M.P. No. 99 of 2000, fails and the same is accordingly dismissed with no orders as to costs. Petition dismissed.