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2002 DIGILAW 277 (HP)

Rakesh Kumar v. Itishri

2002-09-25

R.VERMA

body2002
JUDGMENT : 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') is directed against the judgment dated 20.2.1999 passed by the learned Appellate Authority, Solan allowing rent appeal No. 44-S/14 of 1998 preferred by the respondent/Tenant (hereafter referred to as 'the respondent') and dismissing the rent appeal No. 48-S/14 of 1998 preferred by the landlord-petitioners (hereafter referred to as 'the petitioners') against the order dated 24.7.1998 passed by the learned Rent Controller. 2. Brief facts leading to the presentation of this petition are that the petitioners instituted a petition under section 14 of the Act in the Court of the learned Rent Controller, Kandaghat for eviction of the respondent from a hall in Ward No.4, Hill Top Kothi, Subathu, which is owned by the petitioners and is in occupation of the respondent as a tenant on a payment of rent of Rs, 150/- per month on the grounds that the premises are very old and the building has outlived its life and has thus become unfit and unsafe for human habitation, that the respondent is in arrears of rent and that the building is bonafide required by the petitioners for the purpose or re-construction which cannot be carried out without getting the vacant possession of the premises 3. The respondent resisted the petition and averred in her reply that the petitioners have no locus standi to institute the petition and the same is also bad for joinder of necessary parties, it is also averred that the rate rent is Rs. 50/- per month, the building is in very good condition, requiring for no repairs, the petitioners have no sources and means to carry out reconstruction and the petition had been filed with the malafide intentions to harass the respondent to compel her to vacate the premises. 4. On the pleadings of the parties, the learned Rent Controller from the following issues; 1. Whether the premises in question has become unfit for human habitation, as alleged? OPP 2. Whether the premises are bonafide required by the petitioner of rebuilding which can not be done without the premises being, vacated, as alleged? OPP 3. Whether the respondent is in arrears or rent? If so, to what extent?... OPP 4. Whether the petitioner has no locus standi to file the petition ?..OPR 5. OPP 2. Whether the premises are bonafide required by the petitioner of rebuilding which can not be done without the premises being, vacated, as alleged? OPP 3. Whether the respondent is in arrears or rent? If so, to what extent?... OPP 4. Whether the petitioner has no locus standi to file the petition ?..OPR 5. Whether the petition is bad for non joinder of necessary parties ?..OPR 6. Relief. 5. Vide order dated 24.7.1999, the learned Rent Controller decide issue Nos.1 and 2 in favour of the petitioners and issue No.3 against there whereas issue Nos.4 and 5 were decided against the respondent and as consequence of findings on issue Nos. 1 and 2, the learned Rent Controller allowed the petition and directed the respondent to put the petitioners possession of the demised premises. However, the eviction on the ground non payment of rent was disallowed. 6. Being aggrieved by the order of eviction, the respondent preferred rent appeal No. 44-S/14 of 1998 and the petitioners being aggrieved by It order declining the eviction on the ground of the respondent being in arrears of rent preferred rent appeal No. 48-S/14 of 1998 before the learn Appellate Authority, Solan which allowed the appeal of the respondent and reversed the eviction order and dismissed the appeal preferred by 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 respondent as none appeared for her 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 apart of the building has already collapsed and the remaining part of the building including the part in the possession of the respondent is in dilapidated condition. 9. Relying on the statements of Rakesh Kumar (examined twice as PW-1 and PW-3 and hereafter referred to as 'PW-T), Ranjit Singh (PW-2) read with his report Ext. PW-2/C and site map Ext. PW-2/D and the admissions made by Dev Raj (RWr2) in his cross-examination, the learned Rent Controller concluded as follows: "24. 9. Relying on the statements of Rakesh Kumar (examined twice as PW-1 and PW-3 and hereafter referred to as 'PW-T), Ranjit Singh (PW-2) read with his report Ext. PW-2/C and site map Ext. PW-2/D and the admissions made by Dev Raj (RWr2) in his cross-examination, the learned Rent Controller concluded as follows: "24. In view of the aforesaid petitioners have proved on record that they are owners of the building in question and that building in question has become unsafe for human habitation. Petitioners have further proved on record that premises/building in question is bonafidly 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. Accordingly issues No. 1 and 2 are answered in favour of the petitioners and against the respondent. Issues No. 4 and 5 are answered against the respondent and in favour of the petitioners." 10. The learned Appellate Authority did not agree with the aforesaid finding of fact recorded by the learned Rent Controller and observed as follows: "28 In the present case there is no concrete evidence that building in occupation of the tenant is in such a dilapidated dangerous condition that it is un-safe and un-fit for human habitation. 29. The learned Rent Controller as such without any cogent evidence came to wrong conclusion that the building in occupation of the tenant was un-safe and un-fit for human habitation. The findings is against facts so liable to be reversed and no eviction on this ground can be maintained. Xxxxxxxxx 34. In the present case 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 reconstruct the building. Had they any such bonafide desire would have taken steps in this direction. Non-taking of the steps speaks e contrary of their intention." 11. In absence of this material, it cannot be concluded that desire or wish of the land owners was bonafide to reconstruct the building. Had they any such bonafide desire would have taken steps in this direction. Non-taking of the steps speaks e contrary of their intention." 11. A perusal of the record revels 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-1 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-2) 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-2 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-2/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. R-W-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 note 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. 15. Contents of Ext. PA-11 lend corroboration to the above evidence. 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. 15. Contents of Ext. PA-11 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 m respondent when this document was produced by PW-1 in his statement, yet the witness has been cross-examined about this document by the respondent. Once the respondent has chosen to cross-examine the witness on this document, it cannot be ignored altogether. It is implicit in the suggestion put to PW-1 in his statement, yet the witness has been cross-examined about this document by the respondent. Once the respondent has chosen to cross-examine the witness on this document, it cannot be ignored altogether. It is implicit in the suggestion put to PW-1 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-2, the disputed building is incapable of being repaired unless it is demolished. 16. Thus, what clearly emerges from the above discussed evidence on record is that a part of the building has already collapsed, it has developed cracks and a window has already fallen and the structure is very old. 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 substantial portion of the building has already fallen and the remaining portion is in a dilapidated condition having cracks in the walls and window had fallen years before, the irresistible conclusion is that the building is unsafe and unfit for human habitation and the claim of the petitioners in this regard could not be denied merely because the part of the building in which the respondent is residing has still not fallen down. 17. 17. 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 & 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 Shakuntla Devi v. Daulat Ram, 1967 P.L.R. 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." 18. In Ram Lal v. Davinder Kaur and others, {1991 (2) RLR 266} the Punjab & 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. Undisputedly, 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. On the shop of the tenant, there was a Chobara which has admittedly fallen down. Undisputedly, 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 respondent's expert witness, who is a retired Executive Engineer, admitted that some portion of the roof of the upper story 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 Lal (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 longstanding 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 fat 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. On the facts and circumstances of the case in hand and as noticed above that the building is unfit for human habitation, affirm the finding of the appellant Authority. The revision petition is accordingly dismissed with no order as to coast." 19. 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 RW-2, the learned Rent Controller has rightly concluded that the building is in dilapidated condition and is unsafe and unfit for human habitation. 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 RW-2, the learned Rent Controller has rightly concluded that the building is in dilapidated condition and is unsafe and unfit for human habitation. 20. 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 whatsoever for reconstruction. 21. Be it stayed that aforesaid acts may be relevant for re-enforcing the claim of a landlord's bona find 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 be 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. 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 source 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." 22. In Amar Nath v. Balbir Kochhar, 1997 (10) 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. In Amar Nath v. Balbir Kochhar, 1997 (10) 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. There is no dearth of arranging the finances in today date as lot of finances in today 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. This part of the statement has been brushed 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." 23. 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." 23. 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. 24. 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. 25. 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 respondent on the grounds 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.