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2001 DIGILAW 37 (HP)

P. C. SHARMA v. RAMESHWAR NATH SOOD

2001-03-20

R.L.KHURANA

body2001
JUDGMENT R.L. Khurana, J.:- The respondent, Shri Rameshwar nath Sood, is the owner (hereinafter referred to as the landlord) of the tenanted premises (specifically detailed in the petition) which were let out to the petitioner, Shri P.C. Sharma (hereinafter referred to as the tenant) on a monthly rental of Rs.400/-. The landlord sought ejectment of the tenant under Section 14 of the H.P. Urban Control Act, 1987 (for short: the Rent Act) from the tenanted premises on the following grounds:- (a) Non-payment of rent; and (b) the tenant has been allotted a residence by the State Government reasonably sufficient for his requirements. 2. The tenant, while resisting the petition raised an objection as to the petition being bad for non-joinder of necessary parties, it was pleaded that the tenacy was jointly created in his favour and in favour of his wife Smt. Saroj Sharma. Therefore, the said smt. Saroj Sharma was a necessary party. Arrears of rent as claimed by the landlord were denied. It was averred that rent till September 1989 stood paid. With regard to allotmet of residential accommodation by the State Government, it was averred in para 13 of the reply dated 6.11.1989, as under: "Para 18(a)(ii), as alleged, is not admitted to be correct and the same is denied, it is specifically denied that the Respondent has been allotted type-VI Government accommodation in the Forest Colony at Khalini. However, there was an allotment of govt. accommodation to the Respondent which was conditional allotment and on seeking the clarification it was made clear by the allotting authority that the allotment is purely temporary and conditional and the house which was allotted to the Respondent was earmarked house meant to be occupied by the Principal Chief Conservator of Forests and it was required to be vacated as and when required by the principal C.C.F. It was not a suitable accommodation and when the Respondent sought clarification it was cancelled. The respondent never acquired possession of the said accommodation nor was possession of the same ever delivered to the Respondent. Otherwise also, under the law, the allotment of accommodation should be permanent in nature and it should be suitable. A conditional allotment of any accommodation will not amount to allotment merely allotment of any house particularly earmarked house will not give a ground of eviction to the petitioner. Otherwise also, under the law, the allotment of accommodation should be permanent in nature and it should be suitable. A conditional allotment of any accommodation will not amount to allotment merely allotment of any house particularly earmarked house will not give a ground of eviction to the petitioner. As has been submitted above Respondent is not required to hand over the possession of the premises as he has not occupied Type-VI accommodation, as alleged. It is specifically denied that after the commencement of this Act Respondent has been allotted any suitable accommodation by the Government. The alleged allotment order has been subsequently superseded and cancelled by the order of the competent authority rest of para is denied." 3. On the pleadings of the parties, following issues were framed by the learned Rent Controller, Shimla on 9.4.1990: 1. Whether the respondent is in arrears of rent. If so, to what rate and to what amount? OPP 2. Whether the respondent has acquired vacant possession of type 6 accommodation after allotment of the same and the same is sufficient, for his requirement. If so, to what effect? OPP 3. Whether the petition is bad for non-joinder of Smt. Saroj as party?OPP 4. Whether the petitioner has no cause of action? OPR 5. Whether the petitioner is estopped to file the present petition due to his family members, act and conduct as alleged? OPR 6. Relief. 4. Under issue No. 1, the learned Rent Controller came to the conclusion that the tenant was in arrears of rent at the rate of Rs.400/- per month with effect from 1.5.1989. While deciding issue No.2 in favour of the landlord, the learned Rent Controller found that the tenant was allotted residential accommodation by the State Government which was reasonably sufficient for his requirement. Under issue No.3, the tenant was held to be the sole and exclusive tenant and as such Smt. Saroj Sharma was held to be not a necessary party. Issues No.4 and 5 were also found against the tenant by the learned Rent Controller. Consequent upon such findings, the learned Rent Controller on 4.8.1997 passed an order of ejectment against the tenant on both the grounds put forth by the landlord. 5. Issues No.4 and 5 were also found against the tenant by the learned Rent Controller. Consequent upon such findings, the learned Rent Controller on 4.8.1997 passed an order of ejectment against the tenant on both the grounds put forth by the landlord. 5. In appeal preferred by the tenant, the learned Appellate Authority, vide order dated 2.8.1999 set aside the findings of the learned Rent Controller holding the tenant to be in arrears of rent with effect from 1.5.1989. The order of ejectment passed against the tenant on the ground of non-payment of rent was thus set aside. The learned Appellate Authority, however, concurred with the findings of the learned Rent Controller on other issues. Resultantly, the order of ejectment against the teant on the ground that he has been allotted a residential accommodation by the State Government, which is reasonably sufficient for his requirement, was affirmed. 6. Feeling aggrieved, the tenant has come up before this court by virtue of the present revision petition preferred under Section 24(5) of the Rent Act. Admittedly, the ground of non-payment of rent, no more survives in the present case. The findings of the learned Appellate Authority holding that the tenant is not in arrears of rent were assailed by the landlord by way of a separate revision petition, being Civil Revision No.325 of 1999. Such revision petition was dismissed as withdrawn on 7.3.2001. The only point involved in the present case is whether the tenant is liable to be evicted from the tenanted premises on the ground that residential accommodation was allotted to the tenant by the State Government which accommodation was reasonably sufficient for his requirement. 7. Section 14(3)(a)(iv) of the Rent Act, insofar as it is material for the purpose of the present case, provides that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession, in case of residential building, if the tenant has, whether before or after the commencement of the Act — (i) Built, or (ii) Acquired vacant possession of, or (iii) Been allotted, a residence reasonably sufficient for his requirement. 8. 8. The tenant in his reply as well as in his statement while appearing as RW 1 has admitted to the following facts :- (a) He was posted as Chief Conservator of Forests (Settlement) at Shimla at the relevant time, that is, as on the date of filing of the eviction petition against him; (b) He was himself a member of the House Allotment committee of the forest Department and was present in the meeting of such committee on 23.3.1989 and that the resolution, copy of which is Ex. PW 5/A was passed in his presence; (c) Vide resolution Ex. PW 5/A passed on 23.3.1989, residential accommodation (Type-VI) was allotted in his favour; (d) In pursuance of the resolution dated 23.3.1989 (Ex. PW 5/A) allotment order (Ex. PW 5/B) was issued in his favour on 21.4.1989 by the Member Secretary of the House Allotment Committee; (e) The residential accommodation so allotted to him was bigger than the tenanted premises and more than his requirement; (f) Vide letter Ex. PW I/A he had applied for the shifting of his telephone No.4694 from the tenanted premises to the accommodation allotted to him. 9. The case put forth on behalf of the tenant is that though a type VI residential accommodation was allotted in his favour vide Ex.PW5/A and PW 5/B, such residential accommodation was earmarked for the Principal Chief Conservator of Forests and since the then Principal Chief Conservator of Forests was residing in his own private accommodation and was not interested in shifting to the earmarked official residential accommodation, the same was allotted in his favour with a specific condition that he would be required to vacate the same, as and when the Principal Chief Conservator of Forests desired to occupy the same. Further case of the tenant is that since such conditional allotment was not acceptable to him, the allotment made vide Ex.PW5/A and PW5/B was cancelled by the House Allotment committee on 28.6.1989 vide resolution No.Ex.PW5/C and the office order of the same day Ex. RY issued in pursuance of the resolution Ex.PW5/C. On these facts, it was contended on behalf of the tenant that there was no allotment of residential accommodation in favour of the tenant and he was not liable to be ejected from the tenanted premises on the ground envisaged under Section 14(3)(a)(iv) of the Rent Act. RY issued in pursuance of the resolution Ex.PW5/C. On these facts, it was contended on behalf of the tenant that there was no allotment of residential accommodation in favour of the tenant and he was not liable to be ejected from the tenanted premises on the ground envisaged under Section 14(3)(a)(iv) of the Rent Act. It was further contended that even if it be assumed that there was allotment of residential accommodation in favour of the tenant, the same was never occupied by him till the allotment was cancelled. Mere allotment of residential accommodation is not sufficient under the law to afford a ground for ejectment. The tenant must be shown to have occupied or acquired possession of such alloted accommodation. 10. The provisions contained in section 14(3)(a)(iv) of the Rent Act are analogous to the provisions contained in section 14 (l)(n) of the Delhi Rent Control Act, 1958. The scope and ambit of these provisions came up for consideration before the Delhi High Court in Ganpat Ram Sharma and others v. Smt. Gayatri Devi 1980(2) R.C.J. 624. While noting the apparent purpose of providing clause (h) of sub-section (1) of section 4 of the Delhi Rent Control Act, 1958, the High Court was of the opinion that the object of clause (h) as is apparent, is not to allow the tenant more than one residence in Delhi. Therefore, it provided that in case the tenant builds a residence, the landlord could get his house vacated. It also provided that if the tenant acquires vacant possession of any other residence, he is not protectd. Lastly, it also stipulated that if a residential accommodation has been allotted to a tenant, he is not entitled to retain the premises taken on rent by him. The contention raised on behalf of the tenant, that if a residential accommodation is allotted to a tenant or if a tenant builts a house, he must be shown to have obtained vacant possession thereof before an order of ejectment from the tenanted premises can be passed against him, did not find favour with the Delhi High Court. The contention raised on behalf of the tenant, that if a residential accommodation is allotted to a tenant or if a tenant builts a house, he must be shown to have obtained vacant possession thereof before an order of ejectment from the tenanted premises can be passed against him, did not find favour with the Delhi High Court. It was held that the word "or" appearing in section 14(l)(h) shows that the three circumstances appearing in the section were different that is, (i) if the tenant had built a new residence, or (ii) if he had acquired vacant possession of it or (iii) if he had been allotted a residence. 11. Dealing with the words "built" and "allotted" appearing in the section, it was held that these words do not mean that after building residence or after allotment of residence, the tenant must also acquire possession thereof. If a tenant builds a house and does not occupy it, he is liable to eviction. Similarly, if a residence is allotted to a tenant but he does not occupy the" same, he is not protected. The Act provides that the building of a house by a tenant or allotment of residence to him is a ground of eviction available to the landlord against his tenant. The Delhi High Court was of the view that it is not necessary for the landlord to prove either that the tenant has built and acquired vacant possession of the building or that he has been allotted and take possession of the allotted premises. 12. The above view of the Delhi High Court was approved and affirmed by the Honble Supreme court in Ganpat Ram Sharma and others v. Smt. Gayatri Devi AIR 1987 SC 2016). 13. Again in Sham Lal v. Baroo Mal 1997(2) RCJ 119, it has been held by the Delhi High Court that the only question to be seen is whether the tenant has acquired another residential accommodation. The reason why the tenant has acquired another residence is not relevant. Similarly, the fact that the tenant had not shifted to such another accommodation is irrelevant. 14. The above ratio applies to the facts of the present case on all fours, therefore, the mere fact that the tenant has not occupied the residential accommodation allotted to him before such allotment was cancelled, would not protect the tenant from eviction. Similarly, the fact that the tenant had not shifted to such another accommodation is irrelevant. 14. The above ratio applies to the facts of the present case on all fours, therefore, the mere fact that the tenant has not occupied the residential accommodation allotted to him before such allotment was cancelled, would not protect the tenant from eviction. Once the accommodation stood allotted to him which admittedly was more than his requirement, he was legally entitled to occupy the same and if he has failed or refused to do so, he is himself to be blamed and he is not entitled to any protection from eviction. 15. The contention raised on behalf of the tenant that with the cancellation of the allotment in favour of the tenant during the pendency of the proceedings before the learned Rent Controller, the ground of ejectment is no more available to the landlord, has no merit. This court in Diwan Chand Bhalla v. Dr. A.K. Bhoil 1990(2) Sim. L.C. 146, has held that the protection under the Rent Act to the tenant was lost on his obtaining allotment of government accommodation and such protection will not be revived either for the reason of surrendering of government accommodation or for the reason of his having retired from government service. The ratio laid down by this court has since been affirmed and approved by the Honble Supreme Court in Dewan Chand Bhalla v. Dr. Ashok Kumar Bhoil AIR 1995 SC 10, wherein it has been held that a tenant of a residential building who on being allotted a residence reasonably sufficient for his requirements becomes liable for eviction from the tenanted premises on an application made by his landlord under section 14(3)(a)(iv) of the Rent Act, cannot resist the grant of such application on the ground that he has lost the allotted residence by surrender made either before or after the filing of such application. In arriving at the said conclusion, the Honble Supreme court in para 5 of the judgment observed: "....The landlords right to obtain possession of a residential building in the occupation of a tenant under the said provision accrues, as becomes clear from the plain words employed therein, when the tenant either before the commencement of the Act, that is 17.11.1971 or after the commencement of the Act, that is, 17.11.1971, has built or acquired vacant possession of or been allotted a residence, reasonably sufficient for his requirements. If that is so, can it be said that it is open to a tenant who builds, acquires vacant possession of or is allotted a residence, reasonably sufficient for his requirements, either before or after the commencement of the Act, and thereby entitles the landlord to make an application under the provision to get possession of residential building from such tenant to defeat such entitlement of the landlord, by parting with the residence got by him either before or after the landlord makes such application. Clear and unequivocal words employed in the said provision give no scope for a tenant to say that the accrued entitlement or right of the landlord to get back possession of the residential building from him under the provision is lost when he (tenant) parts with possession of residence which had come to him in one or the other ways referred to therein. To hold that the provision enables the tenant to make his landlord lose his right to recover possession of the residential building accrued there under by the tenant parting with possession of residence got by him either before or after the application is made by the landlord under the provision would amount to saying that the tenant, by having recourse to certain means, could defeat the accrued right of the landlord to get possession of the residential building. But, we cannot say so since that could result in encouraging unscrupulous tenants to practice deceit against landlord by adoption of some trick or strategy which could defeat their valuable accrued rights. But, we cannot say so since that could result in encouraging unscrupulous tenants to practice deceit against landlord by adoption of some trick or strategy which could defeat their valuable accrued rights. As the landlords right to obtain possession of tenanted premises from the tenant when it is un authorisedly sublet cannot be defeated by a tenant cancelling the sub-lease before or after an application for eviction is made by the landlord on that ground, so also a landlords right to obtain possession of the residential building when the tenant gets a separate residence as indicated in the provision cannot be permitted to be defeated by the tenant parting with possession of such residence before or after an application is made by the landlord under that provision. What we have said being the scope and ambit of provision in section 14(3)(a)(iv) we are impelled to take the view that a tenant of a residential building who being allotted a residence reasonably sufficient for his requirements becomes liable for eviction from the residential building on an application made by his landlord under section 14(3)(a)(iv) of the 1987 Act cannot resist the grant of such application on the ground that he lost the allotted residence by surrender made either before or after the filing of such application..." 16. It was contended by the learned counsel for the tenant that in the present case the allotted accommodation was not surrendered by the tenant. The allotment, which was a conditional one, was cancelled and as such the ratio laid down in Dewan Chand Bhallas case (supra) would not be applicable. 17. There is not merit in the contention of the learned counsel for the tenant. A perusal of the resolution dated 23.3.1989 (Ex. PW 5/A) to which the tenant himself was a party being a member of the House Allotment committee, shows that no condition was attached to the allotment of a Type-VI accommodation in favour of the tenant. Similarly, no condition is imposed in the allotment order dated 21.4.1989, Ex.PW5/B. It is only vide letter dated 21.6.1989 Ex.R3 issued by the Conservator of Forests, Shimla Circle in reply to some communication dated 30.5.1989 addressed to him by the tenant, that it has been stipulated that the tenant may be required to vacate the accommodation allotted to him as and when the Principal Chief Conservator of Forests, H.P. desire to occupy the said house. It is not known as to what was the communication dated 30.5.1989 addressed by the tenant and in reply of which Ex.R3 was issued. Besides, the stipulation in Ex.R.3 appears to have been included by the Conservator of Forests in an unauthorised manner since no such stipulation was imposed by the competent authority, that is, the House Allotment Committee. 18. The allotment of accommodation in favour of the tenant was cancelled by the House Allotment Committee in its meeting held on 28.6.1989 vide resolution Ex. PW 5/C. The allotment was cancelled at the request of the tenant himself. The relevant portion of this resolution reads:- "Meeting of the House Allotment Committee for the allotment of Type-VI, Type-V and Type IV accommodation was held in the office of the Pr. CCF H.P. on 28th June 1989 at 10.30 A.M. In view of the fact that Shri P.C. Sharma, C.C.F. Settlement has conveyed his disinclination to accept the conditional allotment of the house earmarked for the Pr.C.C.F.H.P., it was decided that the allotment may be cancelled." 19. In view of the fact that the allotment of residential accommodation in v favour of the tenant vide Ex.PW5/A and PW 5/B, as stated above, was without any j condition attached to it, the cancellation of such allotment at the instance of the tenant would tantamount to surrendering of accommodation by him. 20. The evidence coming on record in the present case shows that the allotment of accommodation was not only accepted by the tenant, he appears to have occupied such accommodation for some time. As discussed above, the allotment of residential accommodation was made in favour of the tenant on 23.3.1989 by the House Allotment Committee vide resolution Ex. PW 5/A. On 31.3.1989 the tenant had addressed a letter Ex. PWl/A to the Telephone Department for the shifting of his telephone No.4694 from the tenanted premises to the premises allotted to him. Admittedly, this telephone is not an official telephone, it is in the name of Smt. Saroj Sharma wife of the tenant. It is in the evidence of PW 1 and PW 7 that in pursuance of the request made vide Ex. PWl/A, this telephone was shifted to the premises allotted to the tenant and later on re-shifted to the tenanted premises. It is in the evidence of PW 1 and PW 7 that in pursuance of the request made vide Ex. PWl/A, this telephone was shifted to the premises allotted to the tenant and later on re-shifted to the tenanted premises. Had the tenant not shifted to the residential accommodation allotted to him, there was no need for him to get the telephone shifted from the tenanted premises to such premises. It appears I that the tenant, on the petition for eviction filed against him, not only returned I to the tenanted premises but also manipulated the cancellation of allotment made in his favour. Therefore, it is not open to the tenant to say that the landlord is not entitled to recover possession of the tenanted premises since the allotment in his favour stood cancelled. The order of ejectment stands rightly passed against the tenant by the two courts below. 21. As a result, the present revision petition, being devoid of merit, is dismissed. No orders as to costs.