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Himachal Pradesh High Court · body

2001 DIGILAW 162 (HP)

TARSEM SINGH v. RAMESH CHAND AGGARWAL

2001-07-26

R.L.KHURANA

body2001
JUDGMENT R.L. Khurana, J.—The present revision petition under Section 16(8) read with Section 24(5) of the H.P. Urban Rent Control Act, 1987 (for short the Act), at the instance of the landlord has been directed against the order dated 14.9.1998 of the learned Rent Controller (3), Shimla, whereby the petition made by the landlord under Section 15 of the Act for ejectment of the tenants from the tenanted premises comprising of a residential Set No. 6, Braham Sabha Building, Pursharthi Basti, Shimla, was dismissed. 2. Claiming himself to be a "specified landlord" the landlord sought the ejectment of the tenants from the tenanted premises. It was averred that he was due to retire from Government Service on attaining the age of superannuation on 30.4.1992. He was occupying Government Accommodation at Bilaspur, the place of his posting, which was to be vacated by him on retirement. After retirement he intended to settle down at Shimla and that he did not possess any other suitable accommodation at Shimla. It was further averred that though the landlord was in occupation of Set No. 10 of the same building, the accommodation available was not sufficient and adequate for his needs. Another ground put forth for ejectment of the tenants being non-payment of rent since March 1992. 3. Be it stated that by a subsequent amendment of the petition, the ground of non-payment of rent was given up. 4. The tenants applied for leave to contest the ejectment petition as contemplated by Section 16(4) of the Act. The requisite leave was granted by the learned Rent Controller on 6.5.1994. 5. The tenants while resisting the petition denied the landlord to be a specified landlord. It was pleaded that the landlord had sufficient accommodation with him in Set No. 10. Besides, he owns and possess other properties, namely, Waxlaw, Lower Kaithu, Shimla and Thapa Villa at Kaithu, Shimla. It was also pleaded that two sets, being Set Nos. 7 and 13 in the Braham Sabha Building have been vacated by other tenants in July and October/November, 1998. An objection was raised that the landlord was guilty of suppression/concealment of material facts and that the petition was bad since the landlord had failed to file the requisite certificate of the authority competent to remove him from service. 6. On the pleadings of the parties, following issues were framed by the .learned Rent Controller:— 1. An objection was raised that the landlord was guilty of suppression/concealment of material facts and that the petition was bad since the landlord had failed to file the requisite certificate of the authority competent to remove him from service. 6. On the pleadings of the parties, following issues were framed by the .learned Rent Controller:— 1. Whether the petitioner is entitled to the possession of the premises in dispute as a specified landlord? OPP 2. Whether the petition is not maintainable? OPR 3. Whether the petition is mala fide? OPR < 4. Whether the petitioner has concealed the material fact? OPR 5. Whether the affidavit and certificate is not properly filed. OPR 6. Relief. 7. The learned Rent Controller decided issues No. 1 and 2 against the landlord and issues No. 3 to 5 against the tenants. Consequent upon such findings, the petition was dismissed vide the impugned order dated 6.5.1994. 8. As stated above, the landlord is claiming himself to be a "specified landlord" within the meaning of Section 2(i) of the Act. He filed the petition for ejectment of the tenants under* Section 15(2) of the Act. Consequent upon such findings, the petition was dismissed vide the impugned order dated 6.5.1994. 8. As stated above, the landlord is claiming himself to be a "specified landlord" within the meaning of Section 2(i) of the Act. He filed the petition for ejectment of the tenants under* Section 15(2) of the Act. Section 15(2) of the Act provides : "Where a specified landlord, at any time within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the appointed day whichever is later, applies to the Controller, along with a certificate from the authority competent to remove him from service indicating the date of his retirement and his affidavit to the effect that he does not own and possess any other suitable accommodation in the local area in which he intends to reside to recover possession of one residential building, for his own occupation, there shall accrue, on and from the date of such application to such specified landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether expressed or implied), custom or usage to the contrary a right to recover immediate possession of such residential building or any part or parts of such building if it is let out in part or parts: Provided that in case of death of the "specified landlord, the widow or widower of such specified landlord and in the case of death of such widow or widower, mother or father or a child or a grand-child or a widowed daughter-in-law who was dependent upon such specified landlord at the time of his death shall be entitled to make an application under this Section to the Controller,— (a) in the case of death of such specified landlord before the appointed day, within one year of the said day; (b) in the case of death of such specified landlord after the appointed day, but before the date of his retirement, within one year of the date of his death; (c) in the case of death of such specified landlord, after the appointed day and the date of his retirement, within one year of the date of such retirement; and on the date of such application the right to recover the possession of the residential building which belongs to such specified landlord at the time of his death shall accrue to the applicant : Provided further that nothing in this section shall be so construed as conferring a right, on any person to recover possession of more than one residential building inclusive of any part or parts thereof if it is let out in part or parts : Provided further that the Controller may give the tenant a reasonable time for putting the specified landlord or, as the case may be, the widow, widower, child, grand-child or widowed daughter-in-law in possession of the residential building, and may extend such time not exceeding three months in the aggregate. Explanation.—For the purposes of this section, the expression "retirement" includes the voluntary retirement but does not include resignation, discharge or dismissal from service." 9-10. The above provision has been enacted for the benefit of landlord of specified categories. The special procedure for the disposal of petitions for eviction of tenants by "specified landlords" is laid down in Section 16 of the Act. For the adjudication of such kind of cases in order to enable the "specified landlords" to recover immediate possession of the premises let out by him, the conditions specified in Section 15(2) of the Act are required to be fulfilled. Such conditions are: (a) the landlord has to file the petition within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the appointed day, whichever is later; (b) he has to file a certificate along with the petition from the authority competent to remove him from service indicating the date of his retirement; and (c) he has to file an affidavit to the effect that he or his spouse does not own and possess any other suitable accommodation in the local area in which he intends to reside or to start his business. 11. If all the above conditions exist, the "specified landlord" has a right to recover immediate possession of the tenanted premises notwithstanding anything contained elsewhere in the Rent Act or in any other law for the time being in force or in any contract, whether express or implied, customs or usages to the contrary. 12. Relying upon the above provisions, a contention was raised on behalf of the tenants that the petition filed under Section 15(2) of the Act by the landlord was bad inasmuch as, the same was not supported by a certificate of the authority competent to remove the landlord from service, indicating the date of retirement, and that the petition filed by the landlord, therefore, stood rightly dismissed by the learned Rent Controller. 13. This Court in Messers Banarsi Dass and Co. 13. This Court in Messers Banarsi Dass and Co. v. Lalit Sood, Civil Revision No. 399 of 1998 decided on 20.4.1999 has held that the filing of certificate from the competent authority along with the ejectment petition is mandatory and that in the absence of the requisite certificate, the Rent Controller cannot assume jurisdiction to try the petition in a summary way by following the special procedure laid down in Section 16 of the Act. It was further held that before the Rent Controller is called upon to assume jurisdiction under Section 16 of the Act, a "specified landlord" is obliged to state all the jurisdictional facts. 14. Following the meaning of the word "jurisdictional fact" given by the Honble Supreme Court in Shrisht Dhawan (Smt) v. M/. Shaw Brothers, (1992) 1 SCC 534, it was held that the fact that landlord is a "specified landlord" and is to retire or has retired on a particular date, are jurisdictional facts which must be shown to exist before the Rent Controller can properly assume jurisdiction under Section 16 of the Act. Such facts can be shown to exist only by production of the requisite certificate of the competent authority. 15. In the present case, the landlord while averring that he is a "specified landlord" and was going to retire from service on attaining the age of superannuation on 30.4.1992, has failed to file the requisite certificate of the authority competent to remove him from service. There is no denying that the authority competent to remove the landlord from service was the State Government. In place and instead of the certificate, the landlord has filed a cyclostyled copy of the letter No. SE. Xth-BLP/ E-PF/Sh Tarsem Singh, E.O./91-9438-4501 dated 1.2.1991, of the Superintending Engineer, 10th Circle, H.P. PWD, Bilaspur addressed to the Chief Engineer (North), H.P. PWD, Dharamsala and all the Superintending Engineers and the Executive Engineers in the State of Himachal Pradesh, whereby a request was made to them to supply the "Demand/No demand Certificate1 in respect of the landlord, who was due to retire from service on 30.4.1992. A reference to this letter is made in para 18(a)(2) of the petition preferred by the landlord under Section 15(2) of the Act. 16. The above said letter dated 1.2.1991 cannot be termed as the certificate required to be filed along with the petition under Section 15(2) of the Act. A reference to this letter is made in para 18(a)(2) of the petition preferred by the landlord under Section 15(2) of the Act. 16. The above said letter dated 1.2.1991 cannot be termed as the certificate required to be filed along with the petition under Section 15(2) of the Act. Therefore, in the absence of the compliance the requirements of Section 15(2) of the Act, the petition for ejectment filed by the landlord is bad and liable to be dismissed on this short ground alone. 17. A contention was raised on behalf of the landlord that since no plea as to the non-filing of the requisite certificate was raised by the tenants either in their application made under Section 16(4) of the Rent Act seeking leave to contest/defend the ejectment petition or in the reply filed by them to the ejectment petition, this Court cannot go into such question in the present revision petition. In support of the contention, reliance was sought to be placed on the ratio laid down by the Honble Supreme Court in Kashmir Singh Bhular v. Punjab and Sind Bank and others, (1997) 10 SCC 470. 18. The above ratio has no application to the facts of the present case. In the present case, an objection as to non filing of the requisite certificate was taken by the tenants in their application for leave under Section 16(4) of the Act as well as in their reply to the ejectment petition. Not only that an objection was taken by the tenants with regard to non-filing of the requisite certificate along with the petition, the learned Rent Controller had also framed two issues, namely, one, with regard to the maintainability of the ejectment petition (Issue No. 2) and secondly, with regard to non-filing of the requisite certificate (Issue No. 5). The learned Rent Controller failed to record any specific finding under Issue No. 2 with regard to maintainability of the petition for want of requisite certificate and has proceeded to hold that the ejectment petition was not maintainable in view of the findings recorded under Issue No. 1. In so far as Issue No. 5 is concerned, the learned Rent Controller has erred in holding that a proper certificate was filed by the landlord along with the petition. 19. In so far as Issue No. 5 is concerned, the learned Rent Controller has erred in holding that a proper certificate was filed by the landlord along with the petition. 19. In Executive Officer Arthanareszwarar Temple v. R. Sathyamoorthy and others, (1999) 3 SCC 115, the Honble Supreme Court has held that the High Court in exercise of its revisional jurisdiction can examine the question whether jurisdictional facts have been rightly or wrongly decided by the Court below. 20. As stated above, since the learned Rent Controller has failed to examine the jurisdictional facts and has wrongly held that the requisite certificate was filed with the petition, this Court can examine the question and record a finding in this regard. 21. Since the landlord failed to file the requisite certificate along with his petition made under Section 15(2) of the Act, the learned Rent Controller could not have assumed special jurisdiction under Section 16 of the Act and the ejectment petition was liable to be rejected on this short ground alone. 22. The order of the learned Rent Controller dismissing the ejectment petition is to be upheld for the aforesaid reasons. 23. Resultantly, the present petition fails and the same is accordingly dismissed leaving the parties to bear their own costs. 24. Be it stated that the dismissal of the ejectment petition preferred in this case by the landlord under Section 15(2) of the Act, will not preclude him from seeking ejectment of the tenants on the ground(s) under Section 14 of the Act. Petition dismissed.