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2006 DIGILAW 4287 (PNJ)

Gram Panchayat, Karhali Math v. Pawan Kumar

2006-11-08

MAHESH GROVER

body2006
Judgment Mahesh Grover, J. 1. The present revision has been filed by the landlord impugning the orders of the Rent Controller dated 29.7.1997 and the Appellate Authority dated 26.3.1998 whereby his petition for ejectment of the respondents under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter referred to as the Act) was dismissed. 2. Briefly stated, the facts of the case are that initially the petitioner set up a tenancy in favour of the father of the respondents No. 1 to 3 in respect of a vacant plot at a monthly rent of Rs. 450/- since long. Shops had been constructed on this plot by the respondents and ever since they were in occupation of the same. However, the shops had been sublet to respondents No. 4 to 7 who are now running their business from the said premises. The eviction of the respondents was sought on the following grounds :- 1. That the respondents are in arrears of rent and house tax since 1.3.1990 upto date which they have not paid despite repeated requests and demands. 2. That the shops in dispute are unfit and unsafe for human habitation and multiple cracks have developed in the shops in question and the walls have left the corner. The rafters have taken bent and have been eaten by white ants, the roof of the some shops in question is in dangerous condition and some has fallen. The floor is broken. As a matter of fact the whole shops have become ruined conditions and may fall at any time. 3. That the respondents No. 1 to 3 have sublet/assigned the shops in dispute to the respondents No. 4 to 7 who are running their business in the disputed shops openly. However, the respondents No. 1 to 3 have no right to sublet the shops in question. 3. Respondents No. 1 to 3 contested the petition and admitted that the tenancy had been created in favour of their father Jagan Nath on a vacant plot and that the shops had been constructed by them. It was further pleaded that the rent of the shops was increased from Rs. 450/- to Rs. 1,000/- on 26.6.1981 and all other grounds for eviction were denied and it was stated that the shops had been constructed by the respondents at their own expense and the subletting was also admitted. It was further pleaded that the rent of the shops was increased from Rs. 450/- to Rs. 1,000/- on 26.6.1981 and all other grounds for eviction were denied and it was stated that the shops had been constructed by the respondents at their own expense and the subletting was also admitted. But a plea was taken that since the original rent note executed by the petitioner permitted the use of shops in any manner, therefore, it did not amount to subletting and rather was covered by the terms stipulated in the rent note. 4. The Rent Controller on the pleadings of the parties framed as many as four issues which are as follows :- 1. Whether the respondents are in arrears of rent plus house tax since 1.3.90 upto date ? OPA 2. Whether the shop in question is unfit and unsafe for human habitation ? OPA 3. Whether the respondents No. 1 to 3 have sublet the shops in question in favour of respondents No. 4 to 7 ? OPA 4. Relief. 5. After appraisal of the evidence adduced by the parties, the Rent Controller dismissed the petition on the ground that the rent note revealed that tenancy was created qua the vacant land and, therefore, the provisions of the Rent Act were not applicable. In appeal the Appellate Authority affirmed the findings of the Rent Controller vide its order dated 26.3.1998. Dissatisfied with the orders of the Rent Controller and the Appellate Authority the petitioner is in revision. 6. Mr. Rakesh Gupta, learned counsel for the petitioner contended that even though the original tenancy did mention the plot to be vacant, however, the rent note was being executed from year to year and in 1990 the rent note Ex.A.7 was executed between the petitioner and respondents Pawan Kumar, Satish Kumar and Parmod Kumar. A specific mention was made regarding the shops and, therefore, the Rent Controller and the Appellate Authority fell in error in not noticing the aforestated existence of shops. It was further contended that the father of petitioners No. 1 to 3 had executed the rent note at the time of creating the initial tenancy also. Thereafter in the event of the subsequent rent notes coming into existence a fresh tenancy was created every year and the respondents were bound by the terms of the said tenancy. It was further contended that the father of petitioners No. 1 to 3 had executed the rent note at the time of creating the initial tenancy also. Thereafter in the event of the subsequent rent notes coming into existence a fresh tenancy was created every year and the respondents were bound by the terms of the said tenancy. Further, the respondents have admitted that the premises had been sublet to respondents No. 4 to 7 and this in itself is a valid ground for eviction. 7. On the other hand, Mr. R.S. Tacoria, learned counsel for the respondents contended that the shops had been constructed by the respondents by using their own money and that they had the right to use the same in any manner whatsoever especially in view of the terms set out in the rent note. 8. I have heard learned counsel for the parties and have perused the record. 9. Concededly, Ex.A.7 is the rent note executed between the petitioner and respondents No. 1 to 3 in which description of the property has been given as shops. The Rent Controller and the Appellate Authority, therefore, clearly fell in error in ignoring this aspect of the matter. Admittedly, rent notes were being executed every year and a similar recital was there in the rent notes which were being executed between the parties for all these years. There is no denial to the existence of shops which was also borne out from Ex.R.1 which is the register of Vasika Navis. The findings of the courts below is that the definition of rented land as given in Section 2(f) of the Act is attracted as the father of respondents No. 1 to 3 had taken the vacant land on rent which was not for the purpose of being used principally for business or trade, thereby excluding from its purview the rest of the provisions of the Rent Act. There is an inherent fallacy in the aforesaid argument. The land which was given to respondents No. 1 to 3 was given with a specific purpose of building shops and transacting business or trade from thereon. The business or trade was not to be transacted from the vacant land alone. The nature of the vacant land was permitted to be changed and brought to the shape of shops from which business or trade could be conducted. The business or trade was not to be transacted from the vacant land alone. The nature of the vacant land was permitted to be changed and brought to the shape of shops from which business or trade could be conducted. It was explicit in the rent note which created the original tenancy that the premises which were a vacant land were being given for the purpose of construction of shops for transacting business or trade. Consequently, the provisions of the Act were certainly attracted and the petition under Section 13 of the Act was maintainable. 10. The next question that is to be determined is as to whether the premises had been sublet. Respondents No. 1 to 3 have admitted the factum of subletting but have pleaded that they were entitled to do so as the rent note permitted them the use in whatever manner they wished. A perusal of Ex.A.7 shows that the respondents had the limited right to permit subletting during the holding of fairs etc. and that too only on the area in front of the shops. The rest of the terms do not imply that the shops can be sublet. The words to be used in any manner as occurring in the rent note would mean only the commercial activity of any sort. 11. The rent note assumes the nature of a contract and the rights of the parties flow from it. Ex.A.7 nowhere grants the liberty to the respondents to sublet the premises except as aforesaid. 12. The respondents are, therefore, liable to be evicted from the premises in question. However, keeping in view the peculiar circumstances of the case the respondents are at liberty to establish before the court of competent jurisdiction the amount spent by them on raising the construction and recover the same from the petitioner, if so advised.