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2010 DIGILAW 723 (PNJ)

B. B. Bahl v. S. Sawinder Singh Patwalia

2010-01-29

S.D.ANAND

body2010
Judgment S.D.Anand, J. 1. The respondents-landlords initiated eviction action against the petitioner-tenant on an averment that they require the tenanted premises for their personal bonafide necessity; that the petitioner-tenant had done acts which had materially impaired the value and utility of the premises to the extent that it had led to the issuance of a notice for resumption thereof and that there had been change of user inasmuch as the leasing out of the tenanted premises was for the running of general business but the premises are being presently utilised for the purposes of hotel business. 2. It may be noticed, at the very outset, that the plea with regard to change of user of the tenanted premises was not pressed by the respondents-landlords in appeal. The learned Rent Controller had recorded a finding at the trial that the respondents-landlords have not been able to prove that plea. The fact that the relevant plea was not pressed in the course of arguments is noticed in para 2 of the judgment of the learned Appellate Authority. ("During the course of arguments in this appeal, landlords did not press the ground of change of user as this ground was held against them"). 3. Both the Courts ( i.e. the learned Rent Controller and also the learned Appellate Authority) recorded a finding of concurrence upholding the plea raised by the respondents-landlords on point of personal bonafide necessity and also the commission of acts by the tenant which (acts) have caused material impairment in the value and utility of the premises aforementioned. 4. (The outer limit within which a Revisional Court can undertake the adjudicatory exercise was provided by the Apex Court in judicial pronouncements reported as Sarla Ahuja v. United India Insurance Company Limited, 1998(2) R.C.R.(Rent) 533 : 1999 (1) Punjab Law Reporter 805 and Shamshad Ahmad and others v. Tilak Rak Bajaj (deceased) through LRs. and others, 2008(2) R.C.R.(Rent) 346 : 2008(5) R.A.J. 496 : (2008)9 Supreme Court Cases 1. and others, 2008(2) R.C.R.(Rent) 346 : 2008(5) R.A.J. 496 : (2008)9 Supreme Court Cases 1. On perusal thereof, it can safely be culled out that "a reappraisal of evidence can be made, but that should be for the limited purpose to ascertain whether the conclusion arrived at by the fact finding court is wholly unreasonable.") The constriction of revisional powers noticed, the adjudicatory exercise is undertaken as under :- In the course of the petition, the respondents-landlords had raised a plea that they are presented based in Tehran, a country where there is an increasing tendency on the part of the Government to disable the Indians from running business and they would like to shift over to their home land for running their business. It was indicated in the pleadings that Sawinder Singh Patwalia has three sons, out of whom two are married and are pursuing business with their father; while the third is on the verge of completing studies where after he would like to come over to India and pursue business activity. Similar pleadings, on point of personal necessity, were made on behalf of other respondents. The petition also contains statutory announcement that the respondents-landlords do not own any other similar premises in the urban area of Chandigarh and they have also not vacated any similar premises in the urban area of Chandigarh since the coming into operation of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as "the Act"). It is apparent, from a perusal of the pleadings-related resistance offered by the petitioner-tenant and also the contents of the cross-examination directed at the witness examined on behalf of the respondents-landlords (Sawinder Singh Patwalia who entered witness box, as his own witness, as PW-4), that a plea of want of bonafides on the part of the respondent-landlords has been raised. 5 There is plethora of law on the point that the requirement of the landlord to be in occupation of the tenanted premises has to be essentially adjudged on the touch-stone of the requirement projected by the landlord and it is not feasible to grant allowance to the tenant to dictate terms to the landlord about where exactly the business activity projected by the landlord could be pursued by the latter. The following observations made by the Apex Court in Sarla Ahujas case (supra) would be determinative of the manner of appreciation of evidence applied for on behalf of the petitioner-tenant in the course of the presentation before this Court:- "When a landlord asserts that he requires his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bona-fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bonafide. It is often said by Courts that it is not for the tenant to dictate terms of the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself." 6. It is in the deposition on oath of PW-4 Sawinder Singh Patwalia, one of the respondent-landlords that the conditions in Tehran are not congenial inasmuch as the Government of Iran is presently not allowing the Indians to do business over there. Besides testifying on oath that he had addressed the Government of India including the Ministry of External Affairs to come to the aid of Indian community living in Tehran by addressing letters Ex. PW-4/A and Ex. PW-4/B, he testified that he has virtually wound up his business in Tehran and wants to shift over to Chandigarh where he owns the tenanted premises. He also clarified disability which the Indians in Iran are facing by indicating that restrictions imposed by the Government of Iran on the business activities of the Indians include the non issuance of import lincences and the non extension of work permit etc. The relevant part of the statement made by Sawinder Singh Patwalia-PW-4 is quoted hereunder for facility of reference :- "The condition in Tehran have become adverse and now the Iranian Government is not allowing Indians to do business in Tehran. I have requested Government of India as well as Ministry of External Affairs requesting them to impress upon the Government of Iran to come to the help of Indian community in Tehran. I have requested Government of India as well as Ministry of External Affairs requesting them to impress upon the Government of Iran to come to the help of Indian community in Tehran. But no action has so far been taken and conditions in Tehran have become miserable. Indians doing business in Tehran have bleak and virtually no future. The letters written to the authorities are Ex. PW-4/A and Ex. PW- 4/B. ......... In these circumstances and due to the disturb condition in Tehran, I have virtually wound up my business and want to settle down in Chandigarh where I own the premises in question. The restriction put up by the Iranian Government for carrying out business also includes not issuing import licences and not extending work permits etc. It is, therefore, impossible to do business in Iran." He categorically announced, in the course of his statement, that the respondents-landlords are inclined to shift to India as soon as the premises are vacated. He also held out an assurance at law that the respondents- landlords would not let out the premises to any one else because they require the same for their own business need. ("We are not to let out the premises to any person on its vacation. The premises are strictly required by us for our business need"). 7. It was argued by learned Senior Counsel appearing on behalf of the petitioner, with noticeable vehemence, that the projected need of the respondents-landlords is a mere wishful thoughts and deserves to be negatived for the very reason that PW-1 Sawinder Singh Patwalia was not in a position even to indicate the nature of business the respondents-landlords would like to have in the tenanted premises. In support of the advocated stance, the learned Senior Counsel invited the attention of this Court to the statement of Sawinder Singh Patwalia to the effect that he had not finalised any particular business to be run by him in the tenanted premises. ("I have not finalised any particular business to be run by me in this building.") 8. The plea raised is denuded of merit, particularly when it is oblivious of the statement made by this witness in the preceding paras of that statement. In those paras, PW-4 Sawinder Singh Patwalia unequivocally testified that "I can do any business in the premises in question when I get its vacant possession. The plea raised is denuded of merit, particularly when it is oblivious of the statement made by this witness in the preceding paras of that statement. In those paras, PW-4 Sawinder Singh Patwalia unequivocally testified that "I can do any business in the premises in question when I get its vacant possession. I can have any agency of any product or I can do any type of business there." 9. The statement made by PW-4 Sawinder Singh Patwalia has to be appreciated in the light of the uncontroverted position that the respondents-landlords are running import and export business of auto spare parts and tyres in Tehran ever since they started their business in the year 1958. ("I started business in Iran in the year 1958. ..... I am doing business of auto spare part in Tehran Iran. I have got three grown up sons. Two of my sons are married and are doing business in London UK. ..... My two sons are doing the business of import and export in London. UK i.e. of tyres right from the beginning. I am doling business of auto spare parts right from the beginning. Not doing any other business."). Qua his brother respondent-landlord, he testified that he is independently running a business of auto spare parts. 10. Learned Senior Counsel appearing on behalf of the petitioner-tenant tried to read much into the statement of the witness aforementioned to the effect that though he had been to India a number of times, he had not undertaken any exploration exercise for the pursuit of the proposed business. 11. Learned Senior Counsel is reading something into the statement which, infact, not there. The respondents-landlords are doing two types of particular business in Tehran since the year 1958. There can, be a valid inference therefrom that they must have come to acquire certain amount of expertise in that business. That inference has to be appreciated in the light of the statement made by that witness that he would go in for an agency which he would like to run in the tenanted premises. 12. In that view of things, it is inappropriate to argue that the respondents-landlords had not indicated the nature of business to be run by them in the tenanted premises. 13. 12. In that view of things, it is inappropriate to argue that the respondents-landlords had not indicated the nature of business to be run by them in the tenanted premises. 13. In that view of appreciation of evidence, the reliance placed by the learned Senior Counsel upon Kanwar Singh v. Maman Chand 1980 (1) R.C.R. 678, Man Singh v. Brij Lal 1980 (1) R.C.R. 682 and Sh. Ram Dass Mahajan v. Sh. Brahm Bhushan, 1984 (1) Rent Control Reporter 9, is misconceived. In Kanwar Singhs case (supra), there was a finding of fact recorded by the learned Rent Controller and upheld by this court was that "the landlord has not succeeded in establishing his case that he really and genuinely wants to shift from Calcutta to Bhiwani". In Man Singhs case (supra), there was a finding of fact that the landlord had not come to the Court with clean hands. The landlord, in that case, had denied that he was running any business in certain premises other than the tenanted premises belonging to his wife. It was only in the course of cross-examination that he conceded that fact. It was in the light of those peculiar facts that the Court found fault with the landlord in not having disclosed the type of business he wanted to run in the tenanted premises. In Ram Dass Mahajans case (supra) too, the landlord did not, at all, disclose what business he wanted to set up in the tenanted premises. It was in the context of that refrain on his part that the want of evidence about exploration of business exercise was noticed by the Court. The Court found that the plea lacked bonafides because there was certain accommodation already in his possession which he did not occupy. The Court held that if the landlord was inclined to start the projected business, he would have occupied that accommodation and would have started business over there. In that view of things, the three judicial pronouncements relied upon do not advance the case of the petitioner-tenant. 14. In the light of the above noticed facts, I have no reservations in agreeing with the finding (and also the reasoning recorded in support thereof) that the respondents-landlords have been able to prove that they require the tenanted premises for their personal bonafide need. 15. 14. In the light of the above noticed facts, I have no reservations in agreeing with the finding (and also the reasoning recorded in support thereof) that the respondents-landlords have been able to prove that they require the tenanted premises for their personal bonafide need. 15. That would bring to the fore the controversy about the finding qua the material impairment of value and utility of the building. It is in evidence (Ex. RW7/A) that there are five violations which were noticed by the Estate Office and inditmated to the petitioner-tenant and also the respondents- landlords. The violation are extracted hereunder :- "1. Partition wall between SCO No. 21 & 22 has been removed and same has been converted into one unit. 2. Elevation and planning of Gd. Floor, Ist Floor and 2nd floor have been changed. 3. 2nd floor is fully covered. 4. Gd. Floor of the show room is converted into small booths and bar room. 5. Hall of the Ist floor is converted into dining room/Restaurant." Ofcourse, the petitioner-tenant denied that averred alterations have been made; while the respondents-landlords attributed acts aforementioned to the petitioner-tenant and the latter also called upon the Estate officer to require the tenant to undo acts which had impelled it (Estate Office) to issue the notice for violation of the bye-laws of the Chandigarh Administration. Insofar as the violations indicated at Serial Nos. 1, 3, 4 & 5 are concerned, those have been proved to be sanctionable with composition fee. This fact would be apparent from a perusal of the statement made by Rakesh Kumar, J.E., S.D.O. Building, Sector-17, Chandigarh in another case filed by the respondents-landlords against one J.M. Mehra in respect of a part of the tenanted premises. That witness, whose statement was tendered as Ex. RW7/A, made the following statement, in the relevant behalf :- "It is correct that the violation mentioned in notice Ex. PW5/1 at Sr. No. 1, 3, 4 and 5 are sanctionable with composition fee." 16. Thus, it is not appropriate on the part of the respondents-landlords to aver that the acts relatable to the violation at item Nos. RW7/A, made the following statement, in the relevant behalf :- "It is correct that the violation mentioned in notice Ex. PW5/1 at Sr. No. 1, 3, 4 and 5 are sanctionable with composition fee." 16. Thus, it is not appropriate on the part of the respondents-landlords to aver that the acts relatable to the violation at item Nos. 1, 3, 4 & 5 are violations which have led to the impairment of value and utility and that those acts furnish a ground to the landlord to seek vacation of the petitioner-tenant from the tenanted premises because the premises would otherwise be resumed by the Estate Office. However, the same is not true of the violation at item No. 2. The subject of that violation is the removal of wall intervening SCO Nos. 21 and 22. It is in evidence that premises No. 22 is owned by the petitioner-tenant; while the premises bearing No. SCO No. 21 (which is adjacent to the premises owned by respondents-landlords) is under the tenancy of petitioner-tenant. It is also in evidence that with the removal of that intervening wall, two units (i.e. SCO Nos. 21 and 22) have been converted into a single unit. That violation would render the tenanted premises liable to resumption. In such an eventuality, the landlord is entitled to require the tenant to vacate the tenanted premises. If any law on the point is required, reference may be made with advantage to Durga Seed Farm v. Raj Kumar Chadha, 1995(1) R.C.R.(Rent) 606 : 1995(2) All India Rent Control Journal 258. 17. Except with regard the variation on finding in respect of violations at items No. 1, 3, 4 & 5, the finding recorded by the learned Rent Controller and also the learned Appellate Authority are affirmed in toto. The petition is held to be without any force and is ordered to be dismissed. In peculiar circumstances of the case including the use to which the tenanted premises are being put, the petitioners shall have six months times from today to vacate the premises aforementioned.