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2002 DIGILAW 272 (HP)

RAKESH KUMAR v. BHIM BAHADUR

2002-09-24

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J.—This revision petition under Section 24(5) of the H.P. Urban Rent Control Act, 1987 (hereafter referred to as the Act) has been preferred by the landlords/petitioners (hereafter referred to as the petitioners) against the judgment dated 20.2.1999 passed by the learned Appellate Authority, Solan whereby rent appeal No. 45-S/14 of 1998 preferred by the tenant/respondent Bir Bahadur, since deceased and now represented by his legal representatives, the present tenants/respondents (hereafter referred to as the respondents) against the order dated 24.7.1998 of the learned Rent Controller has been allowed and rent appeal No. 49-S/14 of 1998 preferred by the petitioners against the said order has been dismissed. 2. Brief facts leading to the presentation of the present petition are that the petitioners presented a petition under Section 14 of the Act before the learned Rent Controller for eviction of Bir Bahadur, the then tenant of the premises consisting of two rooms and one kitchen in Ward No. 4, Hill Top Kothi, Subathu, which the said tenant occupied on monthly rent of Rs. 30 on the grounds that the demised premises are very old and the building has outlived its life and has been rendered unfit and unsafe for human habitation, that the tenant is in arrears of rent and that the building is bona fide required by the petitioners for the purpose of re-construction which cannot be carried out without getting the vacant possession of the premises. 3. Bir Bahadur, the then tenant, now represented by the respondents being his legal representatives, resisted the claim of the petitioners and averred in the reply that the petitioners have no locus standi to file the eviction petition which was also bad for non-joinder of necessary parties. It was further claimed that the building in question is in a very good condition and does not require any repair and is not unfit and unsafe for human habitation. It was also denied that the vacant possession of the building is required by the landlords bona fide for the purpose of reconstruction as they had no source of income nor any repair is required and that the eviction petition has been filed with mala fide intentions to harass the respondent. 4. On the pleadings of the parties, the learned Rent Controller framed the following issues : 1. 4. On the pleadings of the parties, the learned Rent Controller framed the following issues : 1. Whether the demised premises have outlived its life and the building is unfit and unsafe for human habitation, as alleged? OPP 2. Whether the respondent is in arrears of rent, if so, for what period and at what rate? OPP 3. Whether the petitioners require demised premises for purpose of reconstruction, as alleged? OPP 4. Whether the petitioners have no locus standi to file the present petition, as alleged? OPR 5. Whether there is no relationship of landlord and tenant between the parties? OPR 6. Whether the petition is bad for non-joinder of necessary parties? OPR 7. Relief. 5. Vide order dated 24.7.1998, the learned Rent Controller decided Issue Nos. 1 and 3 in favour of the petitioners whereas Issue No. 2 was decided against them. Remaining Issues were decided against the respondents and as a consequence the respondents were directed to put the petitioners in possession of the premises on the grounds that the disputed premises have become unsafe for human habitation and were also bona fide required by the petitioners for re-building. However, the order of eviction on the ground that the respondents are in arrears of rent was declined. 6. Being aggrieved by the eviction order, the predecessor-in-interest of the respondents preferred rent appeal No. 44-S/14 of 1998 before the learned Appellate Authority, Solan who vide the impugned judgment allowed the appeal preferred by the predecessor-in-interest of the respondents and set aside the order of eviction but dismissed the appeal preferred by the petitioners. Hence, this petition by the petitioners. 7. I have heard the learned Counsel for the petitioners but could not have the advantage of hearing anyone for the respondents as none appeared for them at the time of hearing. 8. The learned Counsel for the petitioners contended that the material on record fully justifies the conclusions arrived at by the learned Rent Controller and the contrary conclusions arrived at by the learned Appellate Authority are not sustainable on the basis of such material which clearly shows that a part of the building has already collapsed and the remaining part of the building including the part in the possession of the respondents is in dilapidated condition. 9. Relying on the statements of Rakesh Kumar (PW-2), Ranjit Singh (PW-4 though wrongly mentioned as TW-3) read with his report Ext. 9. Relying on the statements of Rakesh Kumar (PW-2), Ranjit Singh (PW-4 though wrongly mentioned as TW-3) read with his report Ext. PW-3/C and site map Ext. PW-3/B and the admissions made by Bir Bahadur (RW-1) and Dev Raj (RW-2) in their cross-examination the learned Rent Controller concluded as follows: "19. In view of the aforesaid findings, petitioners have proved on record that they are owners of the building in question and that building has out lived its life and has become unsafe for human habitation. Petitioners have further proved on record that premises/ building in question are bonafide required by them for re-construction which cannot be done unless the premises is vacated. On the other hand respondent has failed to prove on record that the petitioners have no locus standi to file the petition. It is not pointed out as to why the petition is bad for non joinder of necessary parties. The respondent has failed to point out as to who was the necessary party ought to have been joined. Petitioners have also proved on record that relationship of landlord and tenant exists between the parties. Accordingly issues No. 1 and 3 are answered in favour of the petitioners and against the respondent. Issues No. 4, 5 and 6 are answered against the respondent and in favour of the petitioners." 10. The learned Appellate Authority did not agree with the aforesaid findings of fact recorded by the learned Rent Controller and observed as follows:— "If 2-3 superficial cracks in plaster or window frames or door frames were rotten or tin-sheets of the roof were loose, would not bring condition of the building amounting to worse, deteriorated unfit for human habitation or dwelling." Otherwise "there is no concrete evidence that building in occupation of the tenant is in such a dilapidated dangerous condition that it is unsafe or unfit for human habitation." and "that bona fide of the landlord required to be determined from the steps taken by him to fulfil his desire of re-construction of the building. Such steps are preparing plan of the proposed construction, getting estimates for the new building prepared, that obtained necessary sanction of the local body or Municipal authority and that has got the necessary funds to carry out such re-construction." Whereas "there is no iota of evidence or inkling that land-owners are possessed of funds, made preparation by drawing plan of the building or got it approved from the Cantonment Board. In absence of this material, it cannot be concluded that desire or wish of the land owners was bonafide to re-construct the building. Had they any such bona fide desire would have taken steps in this direction. Non-taking of the steps speaks contrary of their intention." 11. A perusal of the record reveals that the evidence on record fully supports the conclusions arrived at by the learned Rent Controller but the conclusions arrived at by the learned Appellate Authority are not sustainable on the basis of such evidence. 12. PW-2 has stated that the building in question is in a dilapidated condition and the petitioners have received a notice from the Cantonment Board in this regard. He got the building inspected by Virdhi (PW-4) who reported that the repairs of the building could not be carried out unless it was vacated, and it was not in a proper condition and worth-living. 13. PW-4 has stated that the building in question is in a highly dilapidated condition and it can be repaired only after its demolition and vacation. His report in this regard is Ext. PW-3/C. In the said report the net conclusions given by the witness is that all good characters of the building material are detracted and it is in most deteriorated condition and is not fit for human living and is most dangerous. 14. Bir Bahadur (RW-1) in his examination-in-chief though has stated that the building in question is in good condition but in his cross-examination he has admitted that a portion of the building had already fallen, on different sides of the building holes have developed under the roof and some frames have fallen and such condition of the building is in the portion adjacent to the room occupied by him. He has further admitted that one part of the roof had already blown over and the building is quite old. 15. He has further admitted that one part of the roof had already blown over and the building is quite old. 15. Similarly, RW-2 in his examination in chief has stated that the building in question which consists of different blocks, is in a good condition and does not require re-construction and by carrying out minor repairs its age can be increased by 20 years. However, in his cross-examination he has admitted that one side of block No. 2 of the building has already collapsed and there might be cracks in the plaster of the walls and he did not measure such cracks which were noticed by him. He further goes on to say that the roof and the wood used in the construction of the building has not rotten but is old. 16. Contents of Ext. PA-II lend corroboration to the above evidence. Though the production of this document, which is a photo copy of the notice under Section 140 of the Cantonment Act, 1924 issued by the Cantonment Executive Officer, Subathu to the petitioners, was objected to for the respondents when this document was produced by PW-2 in his statement, yet the witness has been cross-examined about this document by the respondents. Once the respondents have chosen to cross-examine the witness on this document, it cannot be ignored altogether. It is implicit in the suggestion put to PW-2 one of the petitioners that such notice has been issued by the Cantonment Board to the petitioners. As per the contents of this notice, the building in question is in a state of disrepair/dilapidated and may fall down at any time causing danger to the lives of the inhabitants and has out-lived its life. Therefore, the petitioners have been required to carry out the necessary repairs/alterations and as per the opinion of PW-4, the disputed building is incapable of being repaired unless it is demolished. 17. Thus, what clearly emerges from the above discussed evidence on record is that a part of the building has already collapsed, its sides have developed holes, some portion of its roof has already blown away and the frames are very old and some have already fallen. In view of this situation of the building in question, the learned Appellate Authority wrongly concluded that it was not proved that the building is unsafe and unfit for human habitation. In view of this situation of the building in question, the learned Appellate Authority wrongly concluded that it was not proved that the building is unsafe and unfit for human habitation. If a portion of the building has already fallen and the remaining portion has holes on the sides, cracks in the walls and the roof has been damaged and frames have fallen, the irresistible conclusion is that the building is unsafe and unfit for human habitation and the claim of the petitioner in this regard could not be denied merely because the part of the building in which the respondents are residing has still not fallen down. 18. In Ram Lal (died represented by L.Rs.) v. Rajinder Kaur (died represented by L.Rs), 1987 (3) RLR 183, while dealing with similar situation, the Punjab and Haryana High Court held as under: "8. The learned Appellate Authority has elaborately discussed the evidence brought on the record and has come to a firm finding that the shop in dispute is unfit and unsafe for human habitation. No doubt, it has not yet fallen down but when its first and second floors are already in a dilapidated condition, it is within the right of the landlord to get the entire building reconstructed as held in Shrimati Shakuntala Devi v. Daulat Ram, 1967 PLR 251. Merely because a building may not be imminently dangerous, it should not be considered to be a building which is not unfit and unsafe for human habitation. It is not necessary that the building should be in a ruinous state and should be likely to be tumbled down within a short duration. In Sardarni Sampuran Kaur and another v. Sant Singh and another, 1982 (1) Rent Control Reporter 413, it has been held that if the substantial part of the integrated larger building has become unsafe and unfit for human habitation the tenant can be ejected from the demised premises forming part thereof under Section 13(3) (a) (iii) of the Act despite the fact that the particular portion in his occupation may not be so." 19. In Ram Lal v. Davinder Kaur and others, 1991 (2) RLR 266, the Punjab and Haryana High Court held as under:— "6. The finding that the building is unfit for human habitation is a finding of fact to be arrived at on the facts and circumstances of each case. In Ram Lal v. Davinder Kaur and others, 1991 (2) RLR 266, the Punjab and Haryana High Court held as under:— "6. The finding that the building is unfit for human habitation is a finding of fact to be arrived at on the facts and circumstances of each case. Reading of Exhibit R-2 the site plan produced by the respondent tenant, shows that there are two shops. One was in possession of Lahori Ram and the other was in possession of petitioner tenant. On the back of each shop, there was a small room. On the shop of the tenant, there was a Chobara which has admittedly fallen down. Undisputably, Lahori Ram was ejected on the ground of his shop being unfit for human habitation. There is only a small passage, though covered, between the shops of Lahori Ram and that of the tenant. Mr. S.C. Vermani, the respondents expert witness, who is a retired Executive Engineer, admitted that some portion of the roof of the upper storey has fallen and the same was in a dilapidated condition. He also admitted that a part of the floor was in a broken condition. One of the witnesses of the respondent, namely, Ajit Lai (R.W. 3) admitted that batons of the Chaubara had been removed. There is no cogent evidence on record that the Chaubara was pulled down by the landlords. Keeping these factors in view, the Appellate Authority came to the conclusion that the building is unfit for human habitation and is likely to collapse, though the shop in dispute long-standing independently may or may not be in the imminent danger of collapse. In view of the undisputed fact that a major portion of the building has either fallen down or is in a dilapidated condition, the mere fact that some portion of the shop is in good condition is not sufficient to hold that the building is fit for human habitation. One cannot wait till the actual fall of the building. The landlord has a right to reconstruct the building and he cannot be deprived of the same under the provisions of the said Act. No sufficient ground has been made out to take view other than the one taken by the Appellate Authority. One cannot wait till the actual fall of the building. The landlord has a right to reconstruct the building and he cannot be deprived of the same under the provisions of the said Act. No sufficient ground has been made out to take view other than the one taken by the Appellate Authority. On the facts and circumstances of the case in hand and as noticed above that the building is unfit for human habitation, I affirm the finding of the Appellate Authority. The revision petition is accordingly dismissed with no order as to costs." 20. In view of the aforesaid position in law and the present condition of the building in question as it emerges not only from the evidence led by the petitioners but as is partially admitted even by the respondents and their witnesses, the learned Rent Controller has rightly concluded that the building is in dilapidated condition and is unsafe and unfit for human habitation. 21. The learned Appellate Authority has disbelieved the alleged bona fide requirement of the petitioners to get the vacant possession of the building for the purpose of re-construction on the grounds that they are not shown to be in possession of sufficient funds nor they are shown to have taken any steps for reconstruction in any manner. 22. Be it stated that aforesaid acts may be relevant for re-enforcing the claim of a landlords bona fide requirement of vacant possession of the premises for the purpose of rebuilding but it cannot be said that absence of any evidence having been led in this regard is sufficient to disbelieve the landlord. By now, it is well known that final orders in eviction petition have to await for years together. In view of this sole circumstance, a landlord is not expected to start purchasing material for rebuilding and stack it unless he is sure that he will the in a position to commence the building work in the near future. Similarly, unless he is sure that the building work can be commenced within a short period, he would not go to the sanctioning authorities with his application for grant of permission to rebuild the premises sought to be demolished. Similarly, unless he is sure that the building work can be commenced within a short period, he would not go to the sanctioning authorities with his application for grant of permission to rebuild the premises sought to be demolished. Such sanction is for a limited period and can be renewed for some years but not beyond that, whereas there is no guarantee that the eviction petition filed by the landlord will be disposed of finally within that period. Keeping in view the facilities to avail loans from various sources like banks, Insurance Companies, house building societies etc., the absence of evidence that the landlord has money enough to start rebuilding of the premises, is also not a good reason for disbelieving his intention to rebuild. 23. In Amar Nath v. Balbir Kochhar, 1997 (1) RLR 250, this Court held as under: "22. The learned Appellate Authority has thus doubted the bona fide of the landlords and found that the claim put up by them is false. From my point of view there is no such statutory requirement that the building plans have to be got sanctioned before ejectment is sought. When the ejectment petition is filed no one is sure about the time consuming factor in litigation and thus the storing of the building material would lead to nowhere. In so far as cost of rebuilding and reconstruction the same has been estimated at Rs. 75 lakhs. As per observations made by the learned Appellate Authority the landlords have only Rs. 10 lakhs with them and they have not been able to prove as to how they are going to meet the deficit. The arrangement to be made in respect of the finances is only a circumstance in order to test the bona fide and is not a requirement of law. 24. There is no dearth of arranging the finances in todays date as lot of financial corporations, banks and persons having surplus money do always lent out for such projects. The reasoning adopted by the learned Appellate Authority does not appear to be correct. It is at this stage that the statement of PW-7 C.L. Gupta an Architect who has appeared for the landlords cannot be ignored. It is in his statement that he has stated that the landlords has paid him Rs. 5,000 for the preparation of the plans and payment has already been made. It is at this stage that the statement of PW-7 C.L. Gupta an Architect who has appeared for the landlords cannot be ignored. It is in his statement that he has stated that the landlords has paid him Rs. 5,000 for the preparation of the plans and payment has already been made. This part of the statement has been brused aside on the ground that there is no documentary proof in respect of any such payment. It is for the Rent Controller before whom the evidence is recorded to judge the intention of the landlords in the given situation whether he actually intends to rebuild and reconstruct the building and has bonafide intentions or not. The findings have not to be disturbed by pick and choose method from the statements of the witnesses to project only one side of the picture. The entire material has to be examined as a whole and is to be appreciated thereafter." 24. In view of the above settled position in law, mere absence of evidence that the petitioners have money enough for rebuilding, had started collecting building material and had sanctioned plans of the proposed construction of the building, cannot be a substantial ground to disbelieve the bonafide of the landlord. 25. In view of the above discussion, the conclusions arrived at by the learned Appellate Authority are unsustainable whereas those arrived at by the learned Rent Controller are reasonable and sustainable on the basis of the evidence on record. The impugned order of the learned Appellate Authority, therefore, deserves to be set aside. 26. As a result, this revision petition is allowed and the impugned order is set aside and the order of the learned Rent Controller directing eviction of the respondents on the ground that the building in question has become unsafe and unfit for human habitation and the vacant possession thereof is required for reconstruction, is restored, in the facts and circumstances of the case, there is no order as to costs.