Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 172 (HP)

New Krishna Fruit Agency v. Sat Pal Sharma

2013-03-07

KULDIP SINGH

body2013
JUDGMENT : Kuldip Singh, J. This revision is directed against the judgment dated 29.02.2012 passed by learned Appellate Authority(II), Shimla in Rent Appeal No. 27-S/13(b) of 2009 affirming order dated 29.04.2009 passed by learned Rent Controller, Shimla, in Rent Application No. 40-2 of 2007. The facts, in brief, are that respondent had filed a petition u/s 14 of the Himachal Pradesh Urban Rent Control Act, Whether the reporters of the local papers may be allowed to see the Judgment? Yes 1987 (for short 'Act') against petitioner on the ground that tenanted premises has become Unsafe and unfit for human habitation which is part of the building which is more than 100 years old and has outlived its normal life. The building is in the dilapidated and ruinous condition. The tenanted premises is bonafide required by the respondent for purposes of reconstruction which cannot be carried out unless the tenanted premises is vacated. The premises is located in commercial locality. The respondent after reconstruction wants to put the building to better use. He has sufficient funds and may also borrow funds from financial institutions. The building plan has been submitted. Sanjay Sud sole proprietor of respondent has constructed his own building within urban area about four years back which is sufficient for his own use and accommodation. 2. The petition has been contested by petitioner, several preliminary objections have been taken such as maintainability, petition is not bonafide, respondent has failed to disclose material particulars. The building is in perfect habitable condition. The respondent has no right to raise construction as the property is owned by the State of Himachal Pradesh. The petition is mala fide. The building is situated in heritage zone and in core area where reconstruction is banned. 3. On merits, it has been denied that building has become unsafe and unfit for human habitation or the building has outlived its life. It has been denied that building is in dilapidated and ruinous condition. The bonafide need of respondent for building and rebuilding has been denied. It has been denied that rebuilding and reconstruction cannot be carried out without getting the tenanted premises vacated. It has been denied that respondent possesses sufficient funds or he has submitted building plans. 4. The respondent filed rejoinder. On the pleadings of the parties, the following issues were framed:- 1. It has been denied that rebuilding and reconstruction cannot be carried out without getting the tenanted premises vacated. It has been denied that respondent possesses sufficient funds or he has submitted building plans. 4. The respondent filed rejoinder. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit premises has become unsafe and unfit for human habitation as alleged? OPP. 2. Whether the suit premises is bonafide required by the applicant for rebuilding and reconstruction? OPP. 3. Whether the respondent has acquired reasonably sufficient accommodation for his use within the urban area of Shimla, as alleged? OPP. 4. Whether the application is not maintainable? OPR. 5. Whether the petition is mala fide?...OPR. 6. Whether the applicant has suppressed the vital details?...OPR. 7. Relief. The issues No. 1 and 2 were answered in affirmative and issues No. 3 to 6 in negative. The learned Rent Controller allowed the petition on 29.04.2009. It has been ordered that before the petitioner is evicted on the ground of bonafide requirement for rebuilding/reconstruction, the respondent will have to produce requisite sanctioned plan from the competent authorities. The learned Appellate Authority (II), Shimla, dismissed the appeal on 29.02.2012, hence revision by the tenant. 5. I have heard learned counsel for the parties and have also gone through the record. It has been submitted by learned counsel for the petitioner that the learned Appellate Authority and learned Rent Controller have erred in allowing the petition. The pleadings and evidence have been misconstrued. The learned counsel for the petitioner has reiterated the stand taken by the petitioner in defence. The learned counsel for the respondent has supported the impugned judgment. He has submitted that the respondent has filed ejectment petitions against all the tenants occupying different premises in the building. In three cases, the High Court has affirmed the ejectment orders. On the same grounds, ejectment of the petitioner has been sought. He has prayed for dismissal of the petition. 6. PW-1 Satpal Sharma owner has stated that building is 100 years old with 'dhajji' walls. The cracks have developed, floors have sunk, the material used in the building is old and has deteriorated. The building is in dangerous condition and is not fit for residence. It has become unsafe. The building was shown to expert Vivek Karol. He wants to reconstruct the building. The reconstruction cannot be done without vacating the premises. The cracks have developed, floors have sunk, the material used in the building is old and has deteriorated. The building is in dangerous condition and is not fit for residence. It has become unsafe. The building was shown to expert Vivek Karol. He wants to reconstruct the building. The reconstruction cannot be done without vacating the premises. He has submitted plan for rebuilding and reconstruction, copy of proposed plan is Ex. PW1/B. He wants to put the premises in question for better use after reconstruction. He has means to reconstruct, photocopy of FDR is Ex. PW1/C, copies of NSC are Ex. PW1/D to Ex. PW1/F. He can arrange loans from the bank. He got transferred the land under the building from the government vide sale deed Ex. PW1/G. 7. PW-1 continued there are 10 tenants in the building and he has filed petitions against all of them for reconstruction. Sanjay respondent has constructed his own building in Subzi Mandi 4-5 years ago. In addition, he has two residential floors in building No. 14 Subzi Mandi which is sufficient for him and his family. In cross-examination, he has stated that he has received no notice from Municipal Corporation regarding condition of building. The Corporation has sent the plan to the Town and Country Planning Department. The building is in core area and not in heritage zone. He has not received any sanction from the government. He has stated that building plan has not been sanctioned. He denied that only minor repairs are required in the building. 8. PW-2 Vivek Karol, Civil Engineer, has stated that he has inspected the building on 08.08.2007. The building is load bearing and having 'dhajji' walls. The walls have developed cracks, floors have sunk and developed cracks. The material used in the building has become old and deteriorated. In his opinion, the building is 100 years old. The building is unfit and unsafe. He proved his report Ex. PW2/A. He has proved photographs of the building Ex. PW2/B to Ex. PW2/T. The building cannot be reconstructed without vacation. In cross-examination, he has stated that as per plan and sanction, the proposed construction is of RCC. He denied that he did not inspect the building. He denied that report Ex. PW2/A is not as per spot position. He denied that building requires only repairs. 9. PW2/B to Ex. PW2/T. The building cannot be reconstructed without vacation. In cross-examination, he has stated that as per plan and sanction, the proposed construction is of RCC. He denied that he did not inspect the building. He denied that report Ex. PW2/A is not as per spot position. He denied that building requires only repairs. 9. PW-3 Yashwant Singh, Senior Clerk, A.P. Branch, Shimla, has stated that as per the record petitioner is owner of the building. The plan Ex. PW1/B after sanction has been sent on 04.03.2008 to Town and Country Planning Department. The building falls in core area and plans of the core area are sanctioned only by the government. Till now the Corporation has no record that the Government has sanctioned the plan. Ex. PW1/B was earlier rejected, but it has been re-submitted. 10. RW-1 Sanjay Sood has stated that building is in good condition. The walls are of 'dhajji' having cement plaster and in good condition. There are no cracks in the floors nor they have sunk. The wood used in the building has not rotten from any place. There are about 10-11 sets in the building. The reconstruction will require huge investment. The petitioner has no funds for reconstruction. He got the building inspected from Sanjeev Sharma, Architect. The petition has been filed for enhancement of rent. The building requires no reconstruction. In cross-examination, he has stated that building is quite old. The building is four storeyed. He has admitted photographs Ex. PW2/B to Ex. PW2/T. He has stated that material used in the building is old. He admitted notice Ex. PX. He has filed eviction petition against his tenant Sanjay Sharma and order of eviction has been passed against him. He has stated that Sanjeev Sharma has not carried out inspection of whole of the building, he inspected only tenanted premises. 11. RW-2 Sanjeev Sharma, Architect, has stated that he has inspected the tenanted premises. He has proved his report Ex. RW2/A which is as per spot position. In cross-examination, he has stated that he only inspected the tenanted premises and not the whole of the building. He has stated that building is 100 years old. The value of the building will enhance after reconstruction. 12. He has proved his report Ex. RW2/A which is as per spot position. In cross-examination, he has stated that he only inspected the tenanted premises and not the whole of the building. He has stated that building is 100 years old. The value of the building will enhance after reconstruction. 12. The Rent Controller has allowed the petition on the grounds that the building has become unsafe and unfit for human habitation and premises is bonafide required by the respondent for rebuilding and reconstruction. The Appellate Authority has affirmed the ejectment order on both the grounds. PW-1 Satpal Sharma has proved that he got the land transferred under the building from the government vide sale deed Ex. PW-1/G. The building is 100 years old and is in deteriorated condition. The building is in dangerous condition and is not fit for residence. The building material has deteriorated. He has submitted the plan for reconstruction. He has means to reconstruct the building. He has proved FDR Ex. PW-1/C and NSC Ex. PW-1/D to Ex. PW-1/F. He has also stated that he can arrange loans from the bank. He has filed eviction petition against all the tenants. The building has been inspected by PW-2 Vivek Karol, Civil Engineer, who has stated that the building is 100 years old. The walls of the building have developed cracks and sunk. The material used in the building is old and has deteriorated. The building is load bearing and having 'dhajji' walls. The building is unfit and unsafe. PW-1 and PW-2 have been put suggestions that building requires only repairs. 13. RW-1 Sanjay Sood has admitted that walls of the building are of 'dhajji'. The building is quite old and the material used in the building is old. He has admitted photographs Ex. PW2/B to Ex. PW2/T. RW-2 Sanjeev Sharma, Architect examined by the petitioner has stated that the building is 100 years old. The value of the building will enhance after reconstruction. The photographs Ex. PW2/B to Ex. PW2/T reveal that condition of the building is not good. The petitioner has not disputed that the building is 100 years old and the material used in the building is old. RW-2 Architect has inspected only the tenanted premises and not entire building. On the basis of material on record, it can be safely inferred that report Ex. PW2/A is more reliable than the report Ex. The petitioner has not disputed that the building is 100 years old and the material used in the building is old. RW-2 Architect has inspected only the tenanted premises and not entire building. On the basis of material on record, it can be safely inferred that report Ex. PW2/A is more reliable than the report Ex. RW2/A. The respondent has means to reconstruct the building. The premises has deteriorated and is not fit for human habitation. The building and rebuilding work cannot be carried out unless vacated by petitioner. The respondent has filed ejectment petitions against all the tenants. The premises is not fit for human habitation due to deteriorated condition of the building. It has come on record that respondent has already taken steps for obtaining sanction from the competent authority for reconstruction and has submitted the plan for reconstruction but till now the sanction has not been received. In Om Parkash v. Ganga Ram, Latest HLJ 2001 (HP) 161 it has been held that sanctioning of plan is not absolutely necessary. It has not been denied that CR No. 142 of 2009 Ramesh Sharma v. Sat Pal Sharma has been decided on 2.1.2010, CR No. 58 of 2010 Gandhi Ram v. Satpal Sharma has been decided on 7.9.2010 and CR No. 86 of 2010 Sunita Kahol and others v. Satpal Sharma has been decided on 8.10.2010. In the aforesaid revisions, the High Court has affirmed the ejectment orders on similar grounds against the tenants of different sets in the same building in which premises in question in the present case is located. The authorities below have appreciated the material on record properly. There is no misconstruction of evidence. In Sarla Ahuja Vs. United India Insurance Company Limited, (1998) 8 SCC 119 Rafat Ali Vs. Sugni Bai and Others, (1999) 1 SCC 133 , Kailash Chander v. Om Parkash and another (2003) 12 SCC 728 and Ajit Singh and Another Vs. Jit Ram and Another, (2008) 9 SCC 699 , it has been held that scope of revision under different Rent Acts is very limited. There is no merit in the revision and the same is accordingly dismissed, so also the pending application.