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Himachal Pradesh High Court · body

2001 DIGILAW 9 (HP)

NITYA NAND SHARMA v. PURAN CHAND

2001-01-05

C.K.THAKKER

body2001
JUDGMENT C.K. Thakker, CJ.(Oral- This petition is filed by the petitioner-landlord against the respondent-tenant being aggrieved by the order passed by the Rent Controller, Una, on September 30, 1995 in R.R. No. 15 of 1992 and confirmed by the Appellate Authority, Una, on February 6,1998, in Civil Misc. Appeal No. 60 of 1995. 2. The petitioner-landlord filed a petition under Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the Act), for eviction of respondent-tenant from a shop situated in Ward No. 1, Main Bazar Una. It was his case that the respondent was his tenant at the monthly rent of Rs.120/- plus municipal taxes and electricity charges. As averred by the landlord, the tenant had not paid rent, municipal taxes, house tax and electricity charges and he was in arrears of rent from June 20, 1990 to August 19, 1992 plus interest to the extent of Rs.283/-. It was also asserted by him that formerly, house tax was Rs.135/-, which was revised to Rs.207/- from 1981. The second ground of eviction, pressed in service by the landlord, was that the shop was let out to the tenant for running business of radio mechanism and electircal goods, but since last two years prior to the institution of the petition, the respondet had started sale of sewing machines and thus there was change of user on his part. The third ground, according to the landlord, was that he was District Ayurvedic Officer, posted at Bilaspur. He, however, intended to start medical practice at Una. Moreover, his son Ashwani Kumar, had also obtained Diploma in Pharmachy who also intended to start his profession at Una. On all these grounds, a prayer was made before the Rent Controller to pass an order of eviction against the tenant. 3. The respondent-tenant filed a reply and admitted that rent of the shop was Rs.l2 (V- per month. But he was not liable to pay other charges, like municipal taxes, electricity charges, etc. He also denied that there was change of user of the premises by him. It was also stated that the landlord had ample accommodation within the limits of Una Municipal Committee just behind the shop in question and his requirement was not bona fide. 4. On the basis of the pleadings of the parties, issues were framed by the Ret Controller. It was also stated that the landlord had ample accommodation within the limits of Una Municipal Committee just behind the shop in question and his requirement was not bona fide. 4. On the basis of the pleadings of the parties, issues were framed by the Ret Controller. Regarding arrears of rent, he held that the tenant was liable to pay rent but as he paid the rent in accordance with law, no order of eviction could be passed against him. On change of user, it was observed by the Rent Controller that there was no evidence to show that the shop was let out to the tenant for a particular purpose and there was change of user by him, hence, on the ground of change of user also, the landlord was not entitled to an order of eviction. On so-called bona fide requirement of landlord, the Rent Controller held that in accordance with the provisions of the Act, the landlord was not entitled to evict the tenant. That ground was, therefore, held to be infructuous and the petition was accordingly dismissed. 5. Being aggrieved by the order of dismissal of petition, the landlord approached Appellate Authority. The Appellate Authority once again considered the evidence on record and held that the order passed by the Rent controller was not contrary to law and hence, could not be interfered with. Accordingly, the appeal was also dismissed. The said order is challenged by the petitioner-landlord in the present revision. 6. I have heard the learned Advocate for the parties. 7. It was contended by the learned counsel for the petitioner that though the amount of arrears of rent was paid, other charges, such as municipal tax, house tax, electricity charges, etc. were not paid by the tenant. Since taxes can be said to be a part of rent under the Act and as they were not paid, the tenant was liable to eviction. In this connection, my attention was invited to the relevant provisions of the Act by the learned counsel. 8. In my opinion, however, from the evidence on record, both the authorities have come to the conclusion that there was nothing on record to show that over and above Rs.120/- as rent, the tenant was liable to pay taxes. Once, it is proved that the tenant is liable to pay taxes; he cannot refuse to pay such taxes. 8. In my opinion, however, from the evidence on record, both the authorities have come to the conclusion that there was nothing on record to show that over and above Rs.120/- as rent, the tenant was liable to pay taxes. Once, it is proved that the tenant is liable to pay taxes; he cannot refuse to pay such taxes. If he neglects to pay such charges; he can be evicted. But on the basis of the record, it was not proved by the landlord that the tenant was liable to pay such taxes. It, therefore, cannot be said that any illegality was committed by the authorities in not passing an order of eviction on that ground. Hence, that ground is not available to the petitioner- landlord and the contention cannot be upheld. 9. Regarding change of user, both the authorities appreciated materials on record and held that there, was no evidence to show that there was change of user. It was asserted by the landlord that there was change of user which was emphatically denied by the tenant. In the light of evidence on record, the authorities held that there was no change of user. Such a finding of fact also cannot be interfered with in exercise of revisional jurisdiction. Even that ground also cannot be upheld. 10. The last ground relates to bona fide requirement or personal use by the landlord. Before the Appellate Authority, it was conceded on behalf of the landlord that such a ground is not available under Section 14 of the Act. I do not see any reason to interfere with the said finding as well. 11. No doubt, the learned counsel for the petitioner-landlord invited the attention of the Court to two decisions of the Supreme Court in Harbilas Rai Bansal v. State of Punjab and another, (1996) 1 SCC 1 and Gian DeviAnand v. Jeevan Kumar and others, (1985) 2 SCC 683. In Gian Devi Anand, the Supreme Court was dealing with the Delhi Rent control Act, 1958. While considering the provisions of Section 14(l)(d) of the Act, the Apex Court noticed that the Legislature treated commercial tenancy differently from residential tenacy in the matter of eviction of tenants. It also noticed as to how difference was made in respect of obtaining possession on the ground of bona fide requirement of premises let out for residential purpose but not for commercial purposes. It also noticed as to how difference was made in respect of obtaining possession on the ground of bona fide requirement of premises let out for residential purpose but not for commercial purposes. Commenting upon the provisions of the Act, in Para 39, the Court observed; "Before concluding, there is one aspect on which we consider it desirable to make certain observations. The owner of any premises, whether residential or commercial, let out to any tenant, is permitted by the Rent Control Acts to seek eviction of the tenant only on the grounds specified in the Act, entitling the landlord to evict the tenant from the premises. The restrictions on the power of the landlords in the matter of recovery of possession of the premises let out by him to a tenant have been imposed for the benefit of the tenants. In spite of various restrictions put on the landlords right to recover possession of the premises from a tenant, the right of the landlord to recover possession of the premises from the tenant for the bona fide need of the premises „ by the landlord is recognised by the Act, in case of residential premises. A landlord may let out the premises under various circumstances. Usually a landlord lets out the premises when he does not need it for own use. Circumstances may change and a situation may arise when the landlord may require the premises let out by him for his own use. It is just and proper that when the landlord requires the premises bona fide for his own use and occupation, the landlord should be entitled to recover the possession of the premises which continues to be his property inspite of his letting out the same to a tenant. The Legislature in its wisdom did recognise this fact and the Legislature has provided that bona fide requirement of the landlord for his own use will be a legitimate ground under the Act for the eviction of his tenant from any residential premises. This ground is, however, confined to residential premises and is not made available in case of commercial premises. A landlord who lets out commercial premises to a tenant under certain circumstances may need bona fide the premises for his own use under changed conditions on some future date should not in fairness be deprived of his right to recover the commercial premises. A landlord who lets out commercial premises to a tenant under certain circumstances may need bona fide the premises for his own use under changed conditions on some future date should not in fairness be deprived of his right to recover the commercial premises. Bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residetial or commercial. We, therefore, suggest that Legislature may consider the advisability of making the bona fide requirement of the landlord a ground of eviction in respect of commercial premises as well." (emphasis supplied) 12. In Harbilas Rai Bansal, constitutional validity of the amendment in Section 13 of the East Punjab Urban Rent Restriction Act, 1949 as amended by the East Punjab Urban Rent Restriction (Amendment) Act, 1956 (Punjab Act 29 of 1956) had been challenged on the ground that it was arbitrary and unreasonable. The unamended provision of Section 13 of the Act allowed the landlord to get possesison of non-residetial premises from his tenant on the ground of bona fide requirement. The amendment in the section, however, deprived him to seek possession of premises if they are non-residential. The amendment was" challenged inter alia on the ground that the classification of the premises into residential and non-residetial sought to be created by the amendment had no reasonable nexus with the object sought to be achieved by the Act. It did not satisfy twin test; viz. (i) such classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) such differentia must have a rational relation to the object sought to be achieved by the statute under consideration. 13. Upholding the contention and observing that the so called distinction made by the Legislature between two types of premises residential and non-residential was without nexus, the Court observed; "The Scheme of the Act, unmistakably aims at regulating the conditions of tenancy, controlling the rents and preventing unreasonable and mala fide eviction of tenants of the residetial and non-residential buildings. For the advancement of these objects, tenants are invested with certain rights and landlords are subjected to certain obligations. These rights and obligations are attachded to the tenants and the landlords of all buildings, residential or non- residential. For the advancement of these objects, tenants are invested with certain rights and landlords are subjected to certain obligations. These rights and obligations are attachded to the tenants and the landlords of all buildings, residential or non- residential. None of the main provisions of the Act, to which we have referred, make any serious distinction between residential and non- residetial buildings. The court proceeded to state; "The provisions of the Act, prior to the amendment, were uniformly applicable to the residental and non-residetial buildings, the amendment, in the year 1956, created the impugned classification. The objects and reasons of the Act indicate that it was enacted with a view to restrict the increase of rents and to safeguard against the mala fide eviction of tenants. The Act, therefore, initially provided conforming to its objects and reasons-bona fide requirement of the premises by the landlord, whether residential or non-residential, as a ground of eviction of the tenant. The classification created by the amendment has no nexus with the object sought to be achieved by the Act. To vacate a premises for the bona fide requirement of the landlord would not cause any hardships to the tenant. Statutory protection to a tenant cannot be extended to such an extent that the landlord is precluded from evicting the tenant for the rest of his life even when he bona fide requires the premises for his personal use and occupation. It is not the tenants but the landlords who ate suffering great hardships because of the amendment. A landlord may genuinely like to let out a shop till the time he bona fide needs the same. Visualise a case of a shopkeeper (owner) dying young. There may not be a member in the family to continue the business and the widow may not need the shop for quite some time. She may like to let out the shop till the time her children grow up and need the premises for their personal use. It would be wholly arbitrary - in a situation like this - to deny her the right to evict the tenant. The amendment has created a situation where a tenant can continue in possession of a non-residential premiases for life and even after the tenants death his heirs may continue the tenancy. It would be wholly arbitrary - in a situation like this - to deny her the right to evict the tenant. The amendment has created a situation where a tenant can continue in possession of a non-residential premiases for life and even after the tenants death his heirs may continue the tenancy. We have no doubt in our mind that, the objects, reasons and the scheme of the Act could not have envisaged the type of situation created by the amendment which is patently harsh and grossly unjust for the landlord of a non-residential premises. In Gian Devi case the question for consideration before the Constitution Bench was whether under the Delhi Rent control Act, 1958, the statutory tenancy in respect of commercial premises was heritable or not. The Bench answered the question in the affirmative. The above-quoted observations were made by the Bench keeping in view that hardship being caused to the landlords of commercial premises who cannot evict their tenants even on the ground of bona fide requirement for personal use. The observations of the Constitution Bench that "bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residential or commercial" fully support the view we have taken that the classification created by the amendment has no reasonable nexus with the object sought to be achieved by the Act. We, therefore, hold that the provisions of the amendment, quoted in earlier part of the judgment, are violative of Article 14 of the Constitution of India and are liable to be struck down." (emphasis supplied) 14. In the instant case, constitutional validity of the Act has not been challenged. Even otherwise, have my own doubts while exercising powers under sub-section (5) of Section 24 of the Act, whether this Court can consider constitutional validity of the Act. It is settled law that a Court or a Tribunal constituted under a statute and exercising power under the Act cannot decide validity of the statute. (See Dhulabhai etc. v. State of Madhya Pradesh and another, AIR 1969 SC 78, L. Chandra Kumar v. Union of India and others, AIR 1997 SCI 125). 15. It is settled law that a Court or a Tribunal constituted under a statute and exercising power under the Act cannot decide validity of the statute. (See Dhulabhai etc. v. State of Madhya Pradesh and another, AIR 1969 SC 78, L. Chandra Kumar v. Union of India and others, AIR 1997 SCI 125). 15. In the instant case, this Court is exercising jurisdiction not under Article 226 of the Constitution but under sub-section (5) of Section 24 of the Act and hence, it would be doubtful whether a question " as to constitutionality of Section 14 of the Act can be raised by the petitioner, and can be considered by the court. In any case, such question has more or less become academic in view of concession made by the learned counsel for the landlord before the Appellate Authority. I, therefore, may not be understood to have expressed any opinion on validity or vires of sub-section (3) of Section 14 of the Act. As and when such question will arise in an appropriate proceeding, the same will be decided in accordance with law on its own merits. 16. So far as the findings reached by the authorities below are concerned, all findings have been reached on the basis of evidence and materials placed on record on appreciation and reappreciation. It cannot be said that there is no evidence or they are otherwise arbitrary or perverse. The scope of jurisdiction under sub-section (5) of Section 24 is not appellate in nature. The revision petition, therefore, deserves to be dismissed and is, accordingly dismissed. In thefacts and circumstances of the case, however, there shall be no order as to costs.