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2001 DIGILAW 93 (HP)

NARESH KUMAR v. SURINDER PAUL

2001-05-18

R.L.KHURANA

body2001
JUDGMENT R.L. Khurana, J.—The petitioners before this Court are the legal representatives of the original tenant Dhanpat Ram, who has died during the pendency of the proceedings before the learned Rent Controller. For the sake of convenience they are being hereinafter referred to as the tenant. 2. The landlord sought the eviction of the tenant from the tenanted premises comprising of Shop No. 2, Lakkar Bazar, Shimla, inter alia on the following ground:— "the premises in occupation of the tenant are bona fide required by the landlord for building/rebuilding and making thereto substantial additions and alterations on the old lines and which work cannot be carried out without the building being vacated." 3. In seeking the eviction of the tenant on the above noted ground, the landlord has averred in para 18(a) of his petition as under:— "That the petitioner has purchased the building known as Shop No. 2, Lakkar Bazar, Shimla from its previous owner Shri Thakur Dass Dogar Advocate for valuable consideration. The building is about 110 years old. The building is constructed of Dhajji and mud-stone which has out lived its life. The building in question has common walls and roofs with other building known as Shop No. 1 which was own and possessed by Shri Karam Chand and his brothers, who have since demolished and reconstructed their portion. Due to removal of wall and cutting the roof of the building, it has become dangerous and has tilted one side. The walls have bulged out. In fact the building is standing on temporary supports. Petitioner, with a purpose to reconstruct the building on the old lines after demolition, submitted a plain for sanction by the Town and Country Planning Department and Municipal Corporation, which has sanctioned by the said authorities. Petitioner has also arranged funds for reconstruction of the said building." 4. The tenant while resisting the petition raised the following pleas:— (a) there is no relationship of landlord and tenant between the parties since the tenanted premises were let out to a registered partnership firm Messrs. Petitioner has also arranged funds for reconstruction of the said building." 4. The tenant while resisting the petition raised the following pleas:— (a) there is no relationship of landlord and tenant between the parties since the tenanted premises were let out to a registered partnership firm Messrs. Dhanpat Ram and Sons and not to the tenant in his individual capacity; (b) the petition has been filed with a mala fide motive in order to force and coerce the tenant to pay rent at an enhanced rate; (c) the petition lacks in material particulars and the same is not in accordance with law; (d) the landlord is estopped from filing the present petition on account of his own acts, deed, conduct and acquiescence inasmuch as he has already carried out the necessary repairs and reconstruction of the tenanted premises; (e) the tenanted premises were purchased by the father of the landlord benami in the name of the landlord and being a benami owner, the landlord is not competent to maintain the present petition; (f) the sanction, if any, obtained from the Municipal Corporation, Shimla for reconstruction etc. stood expired and the present petition has become incompetent; (g) the sanction of Municipal Corporation was obtained by fraud; (h) the construction in the area of Lakkar Bazar has been banned by the State Government; and (i) the tenancy created in favour of the tenant by the previous owner is a permanent one and for indefinite period. 5. On the basis of the pleadings of the parties, following issues were framed by the learned Rent Controller on 12,10.1988, 20.3.1989, 12.1.1990 and 18.1.1991: 1. Whether the premises are required bonafide for rebuilding reconstruction by the petitioner? OPP 2. Whether the relationship between the landlord and tenant does not exists between the parties? OPR 3. Whether the petitioner is estopped from filing the petition as alleged? OPR 4. Whether the petition is bad for lacks material particulars, if so, its effect? OPR 4A. Whether the disputed premises was purchased Benami in the name of Dev Raj as alleged? OPR 4B. Whether the petition is not maintainable in the present form as alleged? OPR 4C. Whether the sanction was obtained by the petitioner by fraud as alleged? OPR 4D. Whether the construction in the Lakkar Bazar area stands banned as alleged, if so, its effect? OPR 4E. OPR 4B. Whether the petition is not maintainable in the present form as alleged? OPR 4C. Whether the sanction was obtained by the petitioner by fraud as alleged? OPR 4D. Whether the construction in the Lakkar Bazar area stands banned as alleged, if so, its effect? OPR 4E. Whether the tenancy in question is for indefinite period as alleged, if so, its effect? OPR 5. Relief. 6. The learned Rent Controller found issue No. 1 in favour of the landlord and issues No. 2 to 4, 4A, 4B, 4C, 4D and 4E against the tenant. Consequent upon such findings an order of ejectment was passed against the tenant by the learned Rent Controller on 28.8.1997 by holding that the tenanted premises are required bona fide by the landlord for reconstruction. 7. The appeal preferred by the tenant before the learned Appellate Authority, Shimla, was dismissed on 11.10.1999. The learned Appellate Authority while dismissing the appeal of the tenant upheld the findings of the learned Rent Controller on all the issues. 8. Feeling aggrieved by and being dis-satisfied with the order dated 11.10.1999 of the learned Appellate Authority, the tenant is before this Court by way of the present revision petition under Section 24(5) of the H.P. Urban Rent Control Act, 1987 (for short: the Act). Section 14(3)(c) of the Act reads: "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 are required bona fide by hrtn for the purpose of building or re-building 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." 9. The scope and ambit of the above provision was considered by the Honble Supreme Court in Prem Chand alias Prem Nath v. Shanta Prabhakar, (1998) 1 SCC 274. The scope and ambit of the above provision was considered by the Honble Supreme Court in Prem Chand alias Prem Nath v. Shanta Prabhakar, (1998) 1 SCC 274. It was held: “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 situations/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” 10. From the above analysis, it will be seen that the condition of the building is required to 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." 11. 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." 11. Thus, the settled position is that while seeking ejectment of a tenant on the ground that the tenanted premises are required bonafide 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. 12. In the present case the bonafide requirement of the landlord is ascertainable from the evidence corning on record. It is in the evidence of the tenant itself in the form of statement of RW 5 Shri H,S. Bisht, a retired engineer that the beams have tilted downwards. There is also evidence by the landlord that the plan for reconstruction of the building was sanctioned by the Municipal Corporation, Shimla which was valid upto 31.10.1997. There is no denying that the landlord has the necessary means for carrying out the work of re-construction. 13. Much stress was laid on behalf of the tenant on the fact that all constructions, whether private or Government within the "core area" of Shimla Planning Area have been banned by the State Government. Vide notification dated 11.8.2000 published in H.P. Gazette (Extra-ordinary) dated 14.8.2000, the following area has been declared as "core area" of the Shimla Planning Area:— "Central Shimla bounded by the circular road starting from Victory Tunnel and ending at Victory Tunnel via Chhota Shimla and Sanjauli and the area bounded by Mall Road starting from Railway Board Building to Ambedkar Chownk, covering Museum Hall by a road starting from Ambedkar Chownk, on the north side, joining the chownk of Indian Institute of Advance Studies and following the road joining Summer Hill Post Office and via Upper road to Boileauganj Chownk and then joining the Cart Road, along Cart Road to Victory Tunnel." 14. Vide this notification, it has been provided that— "All private as well as Government constructions are totally banned within the core area of Shimla Planning Area. Only reconstruction on old lines shall be permitted in this area with the prior approval of the State Government." (Emphasis supplied) 15. A bare reading of the above notification issued by the State Government shows that there is no absolute ban on the constructions within the "core area". Reconstruction on old lines is permissible within such area with the prior approval of the State Government. 16. There is no denying that the tenanted premises fall within the "core arean. The landlord, as pointed out above, in para 18(a)(2) of his petition has specifically averred that the tenanted premises are bona fide required by him for building/rebuilding and making thereto substantial additions and alterations on the old lines and that such work cannot be carried out without the building being vacated. Thus, the specific case put forth by the landlord is that he intends to carry out the work of building/rebuilding and/or making substantial additions and alterations thereto "on old lines". Such work is permissible with the prior approval of the State Government •n terms of notification dated 11.8.2000 referred to above. 17. The mere fact that no approval has been obtained by the landlord in terms of the notification dated 11.8.2000 will not disentitle him from claiming the ejectment of the tenant on the ground stated or that his requirement is not bona fide. 18. In Harswarup v. Ram Lok Sharma, 2000 (3) Shim. L.C. 160, a contention was raised on behalf of the tenant that no new construction was permissible without the permission of the Collector under Section 5 of the H.P. Roadside Land Control Act, 1968 as well as the approval of the Town and Country Planning Department and that since no such permission/approved was obtained by the landlord therein, his requirement could not be held to be bona fide. 19. Repelling the contention it was held by this court that the mere fact that the landlord has not obtained the necessary permission under the H.P. Roadside 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. 20. In Amarjeet Singh v. Anju Ram, 1997 (1) Sim. 20. 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. 21. To the similar effect it has been held in Gulzari Lal Jaggi v. Kamlesh Kumari and others, Civil Revision No. 388 of 1998, decided on 29.4.1999. 22. The two courts below on appreciation of evidence coming on record have concurrently found the requirement of the landlord to be bona fide. This court in exercise of its revisional powers cannot interfere with such findings. It is not permissible for this court in exercise of revisional jurisdiction to come to a different fact finding unless the findings arrived at by the two courts below, on the facts of the case, are so unreasonable that no court could have reached such a finding on the material available. [See : Chaman Prakash Pun v. Ishwar Dass Rajput and another, 1995 Suppl (4) SCC 445 and Sarla Ahuja v. United India Insurance Company Ltd., 1999 (1) RCJ 158]. 23. It was contended on behalf of the tenant that the petition made by the landlord for ejectment of the tenant was not maintainable since there is no relationship of landlord and tenant between the parties and that the landlord is only a benami holder of the building. The real owner being his father. 24. According to the tenant, the tenancy premises were let out to a partnership firm Messrs. Dhanpat Ram and Sons and not to Shri Dhanpat Ram in his individual capacity. 25. There is no merit in this contention raised on behalf of the tenant. Ex. PW 1/F is the rent note executed by the late Shri Dhanpat Ram in favour of Shri D.D, Dogar, Advocate, the previous owner of the tenanted premises. Dhanpat Ram and Sons and not to Shri Dhanpat Ram in his individual capacity. 25. There is no merit in this contention raised on behalf of the tenant. Ex. PW 1/F is the rent note executed by the late Shri Dhanpat Ram in favour of Shri D.D, Dogar, Advocate, the previous owner of the tenanted premises. A bare perusal of the same shows that the tenanted premises were taken on rent by late Shri Dhanpat Ram in his individual capacity. The execution of rent note Ex. PW 1/F has been admitted by the tenant. It is also not denied that the tenanted premises have been purchased by the landlord from the previous owner Shri D.D. Dogar, Advocate. Therefore, the two courts below have rightly held that there is relationship of landlord and tenant between the parties. 26. Even if it be assumed, though there is no evidence in this behalf, that the landlord is only a benami owner of the tenanted premises and that the real owner is his father, evidence has come on the record in the form of rent receipts Ex. PW I/A to PW 1/ C that rent in respect of the tenanted premises was being paid to and received by the landlord. Therefore, the petition by a landlord for ejectment of the tenant under Section 14 of the Act is maintainable. The words used in Section 14 of the Act are "A landlord may....." and not "An owner may......". The word "landlord” has been defined under Section 2(d) of the Act, as under : "landlord means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf, or for the benefit, of any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised, a specified landlord, and every person from time to time deriving title under a landlord". 27. The above definition shows that a "landlord* need not be the owner of the tenanted premises. 28. For the foregoing reasons, the present petition fails and the same is dismissed, leaving the parties to bear their own costs. Petition dismissed.