Research › Search › Judgment

Himachal Pradesh High Court · body

2003 DIGILAW 131 (HP)

J. M. SHARMA v. DR. M. M. BHALLA

2003-05-30

A.K.GOEL

body2003
JUDGMENT Arun Kumar Goel, J.: —Petitioner (hereinafter referred to as the tenant), has filed this revision against the order dated 18.6.2002 passed by the learned Rent Controller, Solan, in Petition No. 46/2 of 2001. By impugned order, petition under Section 15(2) of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the Act), filed by the respondent, who will be referred to as the landlord in this decision, was allowed. 2. Admitted facts of this case are that tenant hired premises from the landlord in the month of April, 2000. Rent settled was Rs. 3,600 per month. Landlord further admits that the tenanted premises are a part of three storeyed building. It is also admitted by him that he is occupying the top floor of the building as his residence which consists of three bed rooms, one drawing room, one dining room, one kitchen and one bath room. Almost identical accommodation is with the tenant. 3. At the time of hearing it was also not disputed that landlord had in fact retired on and w.e.f. 30.6.2002 from the Health Department of Himachal Pradesh Government as a Senior Medical Officer. In the aforesaid factual background, landlord applied for eviction of the tenant from the demised premises as a "specified landlord", under the Act, as he required the premises in question for opening a clinic for which purpose he did not have suitable accommodation. Alongwith the petition, a certificate of retirement issued by the Director Health Services was appended as also a rough site plan of the two storeys, i.e. one in occupation of the landlord and other with the tenant. 4. When put to notice, tenant applied for leave to contest. What was pleaded by him in this application for leave to contest is reproduced hereinbelow for ready reference :— "That petitioner is already in possession of sufficient accommodation in his building in IInd floor and there is no case of urgent and dire necessity to seek the eviction of the respondent under this provision and the claim of the petitioner is not bona fide and the respondent shall disclose such facts that would dis-entitle the petitioner from obtaining an order for the recovery of possession of the premises on the ground specified in sub-clause (iii) of Clause (a) of sub-section 3 of Section 14 or in Section 15 of H.P. Urban Rent Control Act. That petitioner and his wife have sufficient accommodation in their building and rented out many portions of their building to the tenants within 5 years from the filing of this petition and also already have clinic in the building and with mala fide intention has filed the eviction petition under this section instead of filing the eviction petition under Section 14 of H.R Urban Rent Control Act." This was duly supported with his affidavit. In this behalf it may be noted that what was stated by the petitioner in paragraph 18 while seeking eviction of the tenant from the premises in question was as under :— "18. The petitioner is owner of building known as Dr. M.M. Bhallas building situated at mauja Thodo-Solan near Kunj Villa School, Solan City. The petitioner inducted the respondent as a tenant in the above mentioned premises and as such there is a relationship of landlord and tenant between the petitioner and respondent. The respondent is liable to pay rent of the tenanted premises to the petitioner. The petitioner is working as Zonal Leprosy Officer and is posted at Mandodhar Sanitorium at present. The petitioner is serving in H.R Health Department since 1972 and is in public service, in connection with affairs of State of H.R and as such is a specified landlord under H.P. Urban Rent Control Act. The petitioner is to retire from service of H.R Health Department on 30th June, 2002, a certificate from Director Health Services in this regard is attached as Annexure P-l. The petitioner intend to start Private Practice as a Medical Practitioner at Solan. The building of petitioner consist of various portions/ sets. The petitioner at present is in occupation of 3 bed rooms, drawing room, dining room, kitchen, two batch rooms, situated on 2nd floor of the building owned by petitioner. The size of rooms etc. in possession of the petitioner is more specifically detailed in copy of map attached with the petition as Annexure P-2. The respondent is in occupation of 1st floor having similar accommodation/the portion in possession of respondent is shown with red dots in the map Annexure P-2, in the ground floor/basement, there are only two rooms, kitchen bath cum-W.C. The petitioner intend to run his own clinic in the premises in occupation of the respondent as a tenant. The respondent is in occupation of 1st floor having similar accommodation/the portion in possession of respondent is shown with red dots in the map Annexure P-2, in the ground floor/basement, there are only two rooms, kitchen bath cum-W.C. The petitioner intend to run his own clinic in the premises in occupation of the respondent as a tenant. It will not be out of place to mention that even at the time of induction of the respondent as a tenant it was made clear to the respondent that the premises are required by the petitioner after 30.6.2002 for running clinic. The respondent had promised to vacate the premises but now for the reasons best known to the respondent, the respondent has been creating trouble in one or other way to the petitioner and his family members. Moreover the respondent intend to blackmail the petitioner. The petitioner does not own any other suitable accommodation to start his own occupation as a Doctor. The premises in the ground floor are not suitable for running the clinic as said accommodation is neither suitable nor fit for running clinic. The need of the petitioner to have the tenanted premises for his personal use and occupation is bona fide. The respondent is liable to be evicted and directed to put the petitioner in possession of the premises immediately, there are no reasons or obstacle in treating the present petitioner under Section 15 of H.P. Urban Rent Control Act, 1987 and further to decide the same in accordance with Section 16 of the Act. There are no reasons on the basis of which the respondent can resist the claim of the petitioner as at the time of induction he himself had promised to vacate the premises on or before 30.6.2002 and as such the respondent by his acts, conducts, deeds and acquiescences etc. etc. is estopped from resisting the present petition. The petitioner does not own or possess any other suitable area for running clinic within Municipal limits of Solan City. Notice dated 18.4.2001 has been served and reply dated 23.4.2001 is being attached separately. It will not be out of place to mention that respondent had promised to vacate the premises in the month of March, 2001 as detailed in notice, the respondent had been using telephone of Dr. Notice dated 18.4.2001 has been served and reply dated 23.4.2001 is being attached separately. It will not be out of place to mention that respondent had promised to vacate the premises in the month of March, 2001 as detailed in notice, the respondent had been using telephone of Dr. Kusum Bhalla, wife of petitioner with a promise to pay the bill of the telephone and has failed to pay the same also. The respondent is creating other problems to the petitioner and his family members, against all such causes of actions, which are separate, independent and further distinct, the petitioner will be filing separate petition has already filed separate petition and the same is pending for 27.8.2001. The cause of action in the present petition is different than that in the earlier petition." 5. Learned Rent Controller below after examining the whole case refused leave to contest prayed for by the tenant and ordered his eviction from the premises in question by means of the impugned order hence this revision petition. 6. Learned Senior Counsel appearing for the tenant at the time of hearing of this revision petition submitted that the petition could not have been entertained by the learned Rent Controller below for the simple reason that it was not accompanied with a certificate showing the date of retirement of the landlord from an authority who was competent to remove him, (the landlord) from service. In this behalf reliance was placed by him on the certificate of retirement issued by the Director Health Services. He further pointed out that certificate was not filed as noted by the Court official while making report on the back of page 15 of the trial Court file. Per him learned Rent Controller ought to have rejected the petition in question. By not doing so, it had fallen into error. He further submitted that the landlord was not entitled to seek eviction from the premises in question for opening the clinic, i.e. for a non residential purpose in the face of the provisions of Section 15(2) of the Act. For ready reference Section 15(2) of the Act is reproduced hereinbelow:— "15. By not doing so, it had fallen into error. He further submitted that the landlord was not entitled to seek eviction from the premises in question for opening the clinic, i.e. for a non residential purpose in the face of the provisions of Section 15(2) of the Act. For ready reference Section 15(2) of the Act is reproduced hereinbelow:— "15. (2) Where a specified landlord, at any time within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the appointed day whichever is later, applies to the Controller, alongwith a certificate from the authority competent to remove him from service indicating the date of his retirement and his affidavit to the effect that he or his spouse does not own and possess any other suitable accommodation in the local area in which he intends to reside or to start his own business, to recover possession of one residential building for his own occupation, there shall accrue, on and from the date of such application to such specified landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether expressed or implied), custom or usage to the contrary a right to recover immediate possession of such residential building or any part or parts of such building if it is let out in part or parts." (Emphasis supplied) 7. For the reasons to be recorded hereinafter, both these pleas must fail. So far plea of non filing of the certificate from the person competent to remove the landlord being not there on the file is concerned, it is no more res integra in view of the decision of the Supreme Court. In a case arising from this Court under Section 15(2) of the Act, this Court while considering this aspect in Tarsem Singh v. Ramesh Chand Aggarwal and another, 2001 (3) SLC 35, was dealing with exactly identical plea. Relevant paras 11, 12 and 13 from this judgment are extracted hereinbelow:— "11. If all the above conditions exists, the "specified landlord" has a right to recover immediate possession of the tenanted premises notwithstanding anything contained elsewhere in the Rent Act or in any other law for the time being in force or in any contract, whether express or implied, customs or usages to the contrary. If all the above conditions exists, the "specified landlord" has a right to recover immediate possession of the tenanted premises notwithstanding anything contained elsewhere in the Rent Act or in any other law for the time being in force or in any contract, whether express or implied, customs or usages to the contrary. 12. Relying upon the above provisions, a contention was raised on behalf of the tenants that the petition filed under Section 15(2) of the Act by the landlord was bad inasmuch as, the same was not supported by a certificate of the authority competent to remove the landlord from service, indicating the date of retirement, and that the petition filed by the landlord, therefore, stood rightly dismissed by the learned Rent Controller. 13. This Court in Messers Banarsi Dass and Co, v. Lalit Sood, Civil Revision No. 399 of 1998 decided on 20.4.1999 has held that the filing of certificate from the competent authority alongwith the ejectment petition is mandatory and that in the absence of the requisite certificate, the Rent Controller cannot assume jurisdiction to try the petition in a summary way by following the special procedure laid down in Section 16 of the Act. It was further held that before the Rent Controller is called upon to assume jurisdiction under Section 16 of the Act, a "specified landlord" is obliged to state all the jurisdictional facts." 8. After considering the fact of non filing of requisite certificate as envisaged under Section 15(2) of the Act, this court dismissed the landlords revision upholding the order of the Rent Controller for want of requisite certificate. Matter when came up before the Honble Supreme Court in Civil Appeal No. 8278 of 2000 arising out of SLP (Civil ) No. 20492/01, it was held by the Supreme Court was as under:— "It must be mentioned that when the appellant retired on 30th April, 1992, a notification was also issued setting out that the appellant had so retired. That notification was also placed on record in the eviction petition. The High Court seems to have overlooked that notification completely. Even otherwise, we are of the view that the High Court has adopted too technical a view. The aforementioned provision is enacted for the benefit of a person who is retiring. This is to ensure that such persons get back their premises. The High Court seems to have overlooked that notification completely. Even otherwise, we are of the view that the High Court has adopted too technical a view. The aforementioned provision is enacted for the benefit of a person who is retiring. This is to ensure that such persons get back their premises. The provision regarding production of certificate is for purposes of ensuring that the person is actually retiring. Neither the Act nor the rules prescribe any particular form for such a certificate. In the absence of any particular form or requirement of such a certificate the High Court erred in holding that the letter dated 1.2.1991 was not sufficient. The letter clearly indicated that the appellant was retiring. Further, in this case there is also a notification. The notification is in the name of the Governor. The Governor is the authority competent to remove him from service. This notification confirms the fact of retirement. The appellant has also filed an affidavit, as required under the Section. Therefore, all the requirements of Section 15(2) of the Act had been complied with. In our view the High Court was wrong in dismissing the petition on this ground." 9. Thus, while reversing the aforesaid decision of this Court in the case of Tarsem Singh v. Ratnesh Chand Aggarwal, appeal of the landlord was allowed and case was remitted back to this court. In this view of the matter, plea on behalf of the tenant based for want of non filing of requisite certificate has no basis and is thus rejected. 10. So far other plea urged on behalf of the tenant that the landlord cannot get the premises vacated for opening a clinic is concerned, it has been raised simply to be rejected in the face of the provisions of Section 15(2) of the Act extracted hereinabove. On a plain reading of this provision a landlord is entitled to seek eviction of the tenant from the premises in question. 11. So far requirement of suitable accommodation by a landlord is concerned, this Court and for that purpose, Rent Controller also does not have to super-impose its view. Requirement is that of the landlord and it is for him to determine which part of the building is suitable for putting up of clinic by him. 11. So far requirement of suitable accommodation by a landlord is concerned, this Court and for that purpose, Rent Controller also does not have to super-impose its view. Requirement is that of the landlord and it is for him to determine which part of the building is suitable for putting up of clinic by him. He is the sole judge of his requirement, unless of course the tenant is in a position to show that other suitable accommodation which meets his requirement like putting up of a clinic in the present case. Only plea urged in that behalf was that the landlord had let out the premises within the last five years as such his need is mala fide and, therefore, this revision deserves to be allowed. While seeking leave to defend, there was nothing prima facie to suggest that the landlord has other suitable accommodation in addition to the premises occupied by him in the top floor of the building in question, as such to say that he has let out premises during the last five years is firstly not relevant ground while considering the case of the landlord, like respondent in the present case and secondly is purely a vague and uncertain plea. To whom such premises were let out and at what point of time, there is no factual foundation laid in the application seeking leave to defend. On the other hand, landlord has admitted that the tenant was inducted as such in the demised premises somewhere in the month of April, 2000. He has further pleaded that he was assured by the tenant that the premises in question will be vacated near the date of retirement, but without any avail. In these circumstances it cannot be said that the requirement of landlord of the tenanted premises was either not bona fide or those are not unsuitable for his need. At the risk of repetition, it may be observed that the tenant is no body to suggest as to what premises are suitable and what not. Thus on this ground also this revision must fail. 12. Thus, it is evident that no exception can be taken to the impugned order of eviction passed by the Rent Controller below which deserves to be upheld and is ordered accordingly. 13. No other point is urged. 14. Thus on this ground also this revision must fail. 12. Thus, it is evident that no exception can be taken to the impugned order of eviction passed by the Rent Controller below which deserves to be upheld and is ordered accordingly. 13. No other point is urged. 14. In view of the aforesaid discussion this revision has no merit and the same is dismissed with no order as to costs, after it was formally admitted and heard finally at the joint request of learned Counsel for the parties. 15. Before parting it is felt that the tenant will take some time to look for alternate premises, thus time till 31st August, 2003 is allowed to him to vacate the premises in question. This is, however, subject to the condition that he shall deposit with the learned Rent Controller below arrears of use and occupation charges/rent alongwith municipal taxes, if any, as per agreement and the statutory interest by or before 15th June, 2003. He shall also deposit the use and occupation charges for the month of June with these arrears. For the months of July and August, 2003 such charges be deposited by 1st of each month. In case he fails to deposit either arrears or these monthly charges by the fixed date, the landlord will be free to execute the eviction order against the tenant forthwith. Subject to these conditions, this revision petition stands dismissed. Revision dismissed.