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2013 DIGILAW 696 (HP)

Rajinder Parshad Dogra v. Raj Kumar Kataria

2013-07-26

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. This petition is directed against the order dated 30.6.2001 passed by the Appellate Authority-II, Kangra at Dharamshala in Rent Civil Misc. Appeal No. 26-P/2000. "Key facts" necessary for the adjudication of this petition are that the petitioner-landlord (hereinafter referred to as the "landlord" for convenience sake) filed eviction petition u/s 14 of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the "Act" for brevity sake) before the Rent Controller (II), Palampur against the respondent-tenant (hereinafter referred to as the "tenant" for convenience sake). According to the landlord, premises situated in M-585, Arya Samaj Mohalla, Ward No. 3, Municipal Council, Palampur were rented out to tenant for residential accommodation comprising of one set. The monthly rent was Rs. 450/-. The eviction was sought on the ground that the premises were bonafidely required for personal use. The tenant has committed such acts, which were likely to impair the value and utility of the building. The tenant has damaged the doors, windows etc. of the rented premises. The premises were required for general repairs, which could not be otherwise carried out without getting the premises vacated. His son was an Architect and, as such, the landlord required the premises for the use as an office/consulting room, who intended to start practice as an Architect at Palampur. 2. The petition was contested by the tenant. The relationship of landlord and tenant was admitted. The rate of rent was also admitted. It was denied that the premises were required for his personal use. According to him, the landlord has rented out other portion of the building to other tenants. He has sufficient accommodation to his family. He has not committed any acts which impaired the value and utility of the building. The building was not required for general repair. It was denied that the son of landlord was an Architect. 3. The rejoinder was filed by the landlord. Issues were framed by the Rent Controller on 8.11.2000. The Rent Controller has accepted all the grounds taken by the landlord except that the premises were required by landlord bonafidely for his personal use. The Rent Controller ordered the eviction of the tenant within a period of one month. The tenant preferred an appeal before the Appellate Authority-II, Kangra at Dharamshala. The Appellate Authority set aside the order of the Rent Controller dated 25.11.2000 vide order dated 30.6.2001. The Rent Controller ordered the eviction of the tenant within a period of one month. The tenant preferred an appeal before the Appellate Authority-II, Kangra at Dharamshala. The Appellate Authority set aside the order of the Rent Controller dated 25.11.2000 vide order dated 30.6.2001. Hence, the present petition. 4. Mr. Aman Sood has supported the order passed by the Rent Controller. According to him, the Appellate Authority has not correctly appreciated section 14(3)(d) of the Act. According to him, what is to be seen whether landlord's son intended to start practice as an Architect. He was not required to be registered as per the provisions of the Architect Act, 1972. 5. Mr. K.D. Sood, learned Senior Advocate has supported the order passed by the Appellate authority. According to him since the landlord's son was not registered under the Architect Act, 1972, thus, he could not be termed as an Architect to get the benefit of section 14(3)(d) of the Act. 6. I have heard the learned counsel for the parties and have perused the record carefully. 7. The landlord Rajinder Parsad Dogra has appeared as PW-1. According to him, his son was an Architect. He wanted to establish his office at Palampur. He was married. In his cross-examination, the landlord has testified that his son was serving in a private firm at Delhi. His daughter-in-law was also serving in All India Radio and she could be transferred from Delhi to Dharamshala. 8. PW-2 Sat Parkash Dogra has deposed that landlord's son is an Architect. He wanted to practice as an Architect at Palampur. He has denied the suggestion that the landlord's son was not interested to practice as an Architect at Palampur. 9. The landlord has examined his son Sanjay Parshad Dogra as PW-6. He has testified that he is diploma holder in Architect and certificate to this effect is Ex. AW-6/A. He was married and wanted to start practice as an Architect at Palampur. He has denied the suggestion that certificate Ex. AW-6/A and mark 'A' and mark 'B' were forged. 10. According to certificate Ex. AW-6/A, Sanjay Parshad Dogra (PW-6) has completed three years diploma course of instruction in Architectural Assistantship in the year 1989 from Government Polytechnic, Sundernagar. He has passed the final Board examination. He has denied the suggestion that certificate Ex. AW-6/A and mark 'A' and mark 'B' were forged. 10. According to certificate Ex. AW-6/A, Sanjay Parshad Dogra (PW-6) has completed three years diploma course of instruction in Architectural Assistantship in the year 1989 from Government Polytechnic, Sundernagar. He has passed the final Board examination. There is nothing on record to prove that the landlord's son was occupying in the urban area concerned any other building for the use as office. There is also no evidence that the landlord's son has vacated such building without sufficient cause after the commencement of the Act in the urban area concerned. 11. The landlord's son intended to start practice as an Architect. According to the Appellate Authority section 14(3)(d) of the Act was to be construed with reference to Architect Act, 1972. According to the Appellate Authority, the landlord's son was required to be registered under the Architect Act, 1972. He has referred to sections 2, 23, 25 and 35 of the Architect Act, 1972. 12. According to the Appellate Authority section 14(3)(d) of the Act was to be construed with reference to Architect Act, 1972. According to the Appellate Authority, the landlord's son was required to be registered under the Architect Act, 1972. He has referred to sections 2, 23, 25 and 35 of the Architect Act, 1972. 12. Section 14(3)(d) of the Himachal Pradesh Urban Rent Control Act, 1987 reads as under: (d) in the case of any residential building, if he requires it for use as an office, or consulting room by his son who intends to start practice as a lawyer, an architect, a dentist, an engineer, a veterinary surgeon or a medical practitioner, including a practitioner of Ayurvedic Unanai or Homoeopathic System of Medicine or for the residence of his son who is married, if- (i) his son as aforesaid is not occupying in the urban area concerned any other building for use as office, consulting room or residence, as the case may be; and (ii) his son as aforesaid has not vacated such a building without sufficient cause, after the commencement of this Act, in the urban area concerned: Provided that where the tenancy is for a specified period, agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub-section before the expiry of such period: Provided further that where the landlord has obtained possession of any building or rented land under the provisions of clause (a) or clause (h), he shall not be entitled to apply again under the said clause for the possession of any other building of the same class or rented land: Provided further that where a landlord has obtained possession of any building under the provisions of clause (d), he shall not be entitled to apply again under the said clause for the use of, or for the residence of the same son, as the case may be. 13. The Appellate Authority has misconstrued the provisions of section 14(3)(d) of the Act. 13. The Appellate Authority has misconstrued the provisions of section 14(3)(d) of the Act. It is clear from the language of section 14(3)(d) of the Act that the landlord may require residential building if he requires it for use as an office, or consulting room by his son who intends to start practice as a lawyer, an architect, a dentist and if his son was not occupying in the urban area concerned any other building for use as office, consulting room or residence and he has not vacated such a building without sufficient cause, after the commencement of the Act in the Urban area concerned. 14. The landlord's son has obtained certificate Ex. AW-6/A. It has been issued by the duly recognized institute. He was not required to be registered as an Architect under the Architect Act, 1972 to get the benefit of provisions of section 14(3)(d) of the Act. The requirement u/s 14(3)(d) of the Act is that the landlord's son intends to start practice and not that he should be registered as an Architect. Merely that the landlord's son was not registered under the Architect Act, 1972 would not disentitle the landlord to get the premises for his son. 15. Learned Single Judge of Punjab and Haryana High Court Inder Sain Vs. Gian Chand Malik, (1992) 101 PLR 392 has held that the statute requirement is only that the landlord's son "intend to start practice" and not that he must actually be practicing as a lawyer before the landlord can invoke this provision to seek the tenant's ejectment. The learned Single Judge has held as under: 7. Gian Chand Malik, (1992) 101 PLR 392 has held that the statute requirement is only that the landlord's son "intend to start practice" and not that he must actually be practicing as a lawyer before the landlord can invoke this provision to seek the tenant's ejectment. The learned Single Judge has held as under: 7. The relevant extract of Section 13 of the East Punjab Urban Rent Restriction Act, 1949, reads as under:- 13(3)(a)(iv): In the case of any residential building, if he requires it for use as an office, or consulting room by his son who intends to start practice as a lawyer or as a "registered practitioner" within the meaning of that expression as used in the Punjab Medical Registration Act, 1916 or for the residence of his son who is married, if- (a) his son as aforesaid is not occupying in the urban area concerned any other building for use as office, consulting room or residence, as the case may be; and (b) his son as aforesaid has not vacated such a building without sufficient cause after the commencement of this Act, in the urban area concerned: 8. It will be seen that the statutory requirement is only that the landlord's son "intends to start practice" and not that he must actually be practising as a lawyer before the landlord can invoke this provision to seek the tenant's ejectment. This is what both the appellate authority as also the Rent Controller failed to appreciate and thus fell in error. 16. Learned Single Judge of Madras High Court in Thirunavukkarasu Vs. Vasantha Ammal in a case where the landlord wanted the premises for her son, who was the student of MBBS, has held that being the medical practitioner, which is a prerequisite to start a clinic is one step for the said purpose and once qualified, he is entitled to start a clinic. Learned Single Judge has further held that undergoing studies in a medical college and thereafter getting qualified will satisfy the statutory requirements. Learned Single Judge has held as under: 2. The main ground on which eviction is sought by the landlady is that her son requires the schedule building for his occupation. Learned Single Judge has further held that undergoing studies in a medical college and thereafter getting qualified will satisfy the statutory requirements. Learned Single Judge has held as under: 2. The main ground on which eviction is sought by the landlady is that her son requires the schedule building for his occupation. It is her case that her son who has studied M.B.B.S. is in dire need of a non-residential building for running a clinic, and either she or her son does not own any other nonresidential building, for the said purpose. It is said that various demands were made to the petitioner/tenant to vacate the premises, and at last a notice was issued on 27.2.1989, for which a reply was sent on 17.3.1989, refusing to hand over possession, and at the same time, taking untenable contentions. On the above grounds, eviction petition was filed by the landlady. 3. In the counter-statement filed by the tenant, bona fide requirement for the son is denied. It is said that even before and after notice, other buildings became vacant, and if the landlady had any intention to occupy any building for her son, she could have occupied one such building. He further said that landlady's son is only studying for M.B.B.S. and he is not doing any profession. He prayed for dismissal of the petition. 18. From the above legal position, it is clear that one step is taken with intent to do actual business in future that will mean carrying on business and that will be sufficient compliance of this Section. In view of the interpretation given to these words, it is clear that a future need is also contemplated. The only requirement is that step must have been taken in contemplation of the future need. That will amount to/carrying on business. 19. In this case, the landlady's son who is a medical practitioner, wants to start a clinic. In all the cases referred to, it was a trade. The interpretations given for "carrying on business" depends upon the nature of business to be started. Being a medical profession, obtaining necessary qualification which is a pre-requisite to start a clinic is one step for the said purpose. Once he gets qualified, he is entitled to start a clinic. That itself enables him to start a business. Undergoing studies in a medical college and thereafter getting qualified, will satisfy the statutory requirement. Being a medical profession, obtaining necessary qualification which is a pre-requisite to start a clinic is one step for the said purpose. Once he gets qualified, he is entitled to start a clinic. That itself enables him to start a business. Undergoing studies in a medical college and thereafter getting qualified, will satisfy the statutory requirement. 20. It was argued by learned counsel that the person for whose requirement the building is needed, is not examined, and that shows the lack of good faith. I do no think that such an argument can be accepted, for it is settled law that in rent control petition, it is only the bona fide that has to be proved. The factum of bona fides can be proved in any manner known to law. The person for whose occupation the building is required, is not a necessary witness to prove the claim. It is the desire of the landlady to provide for her dependent son, the building in question for starting a clinic. It is a mother's wish that her son must be settled in life. The tenant has no case that the landlady's son is not going to occupy the building. If the landlady herself has come to court and deposed that her son will occupy the building, I think that is sufficient compliance of the statutory requirement. A similar contention was taken in a decision reported in Gulraj Singh Grewal Vs. Dr Harbans Singh and Another, AIR 1993 SC 1574 as stated in paragraph 8 (at page 72 of the Reports), namely, that the person for whose requirement the tenant was sought to be evicted, was not examined. Their Lordships repelled the said contention. The argument was that the building is required for the personal need of the son and that person need can be proved only by that son. In the decision of the Supreme Court referred to above. It was held thus:- ..the non-examination of respondent of respondent 2 also, when respondent 1 has examined himself and proved the need of the landlord, is immaterial and, at best, a matter relating only to appreciation of evidence, on which ground this finding of fact cannot be reopened. In this case, we are concerned about the bona fides of the landlady, and the bona fides are proved by her evidence. In this case, we are concerned about the bona fides of the landlady, and the bona fides are proved by her evidence. She comes forward and says that she bona fide requires the building for her son's occupation. Both the authorities below have accepted the evidence of the landlady and held that she has proved the bona fides. It is a finding of fact purely based on appreciation of evidence. No circumstances has been made out challenging the said finding as perverse. 17. Their Lordships of the Hon'ble Supreme Court in G.C. Kapoor Vs. Nand Kumar Bhasin and Others, AIR 2002 SC 200 have held that where the landlord's son, who had completed technical education and was not employed in the Government service, wanted to engage himself in self-employment, the criteria laid down in rule 16(2)(d) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 was adequately proved for entitling the landlord to the decree for eviction. Their Lordships have further held that failure to obtain the franchise of a computer institute to start business would not have any effect on the bona fide need of the landlord, particularly when his son was a diploma holder in computers and having capacity to arrange the funds. Their Lordships have further held that landlord's son not able to start business in rented premises during pendency of eviction proceedings; decree for eviction cannot be denied on that ground. Their Lordships have held as under: 12. Regarding second finding of the withdrawal of the letter for franchise by BITS of the courts below, we find from the record that there is a clear averment made by the appellant that his son wanted to open a computer consultancy centre on his own and only to make the business viable, he made an application for franchise after the eviction suit was filed. Merely because the franchise was withdrawn by BITS, it will be incorrect to come to the conclusion that the son of the appellant would not be able to start the business when he has the requisite qualification of post graduate diploma in computer science and has the capacity to arrange funds. It was not the case of the appellant that his son would be able to start the business only after obtaining franchise. It was not the case of the appellant that his son would be able to start the business only after obtaining franchise. It has also been urged on behalf of the appellant that letter from BITS was produced before the court only to show the requirement of 2000 sq. ft. of space for the purpose of running the business in question. We are, therefore, of the opinion that the findings of the courts below are erroneous. Courts below have taken adverse note, as Rohit did not file any affidavit to show his technical know-how and inclination to run the business, Such an affidavit is not necessary as regarding technical know-how, a copy of the diploma of Rohit has been filed and his father has made a categorical statement that his son would run the business in the suit premises. 13. Another reasoning of the courts below is that as Rohit did not start the business between the year 1992 and 1997 by taking any property on rent, it could not be said that the appellant needed the suit premises to run the business. There is a categorical averment by the appellant that the business was to be started in the suit premises and the appellant would not be able to take any other premises on rent. Not starting the business in a rented premises during the abovementioned period, cannot be a ground to deny decree for eviction of the suit premises. This Court in Gaya Prasad Vs. Sh. Pradeep Srivastava, AIR 2001 SC 803 relying on early decisions of this Court held that the crucial date for deciding as to bona fide of requirement of the premises in question for starting a clinic by the son of the landlord. The litigation continued for 23 years and during that period the son of the landlord joined provincial medical service and was posted at different places. The court refused to take notice of the subsequent event holding that crucial date was the date of filing of the eviction petition. 18. In the instant case, Mr. K.D. Sood, learned Senior Advocate has argued that the landlord has not placed any material on record to establish that his son has got himself registered under the Architect Act even after the filing of the eviction petition. The situation, which was prevalent at the time of eviction, has to been seen. 18. In the instant case, Mr. K.D. Sood, learned Senior Advocate has argued that the landlord has not placed any material on record to establish that his son has got himself registered under the Architect Act even after the filing of the eviction petition. The situation, which was prevalent at the time of eviction, has to been seen. The tenant cannot take the benefit of prolong litigation. According to the dictionary meaning word "intend" contemplates design, aim or purpose. 19. Their Lordships of the Hon'ble Supreme Court in Sushila Vs. IInd Addl. District Judge, Banda and Others, AIR 2003 SC 780 have held that when the landlord's son was in possession of technical qualification, the appellate court has misdirected itself by not agreeing with the contention of the landlord. Their Lordships have held as under: 11. It may be mentioned that we are not taking into account of clause (d) of sub-rule 2 of rule 16 of the rules; where yet another factor is to be borne in mind, in favour of releasing the shop, if the person has some technical education to his credit but not employed in any government service and wants to engage in self-employment. The petitioner had shown that her son Prem Parkash had undergone a training course in household electrical wiring and had obtained a certificate from industrial training Institute, Banda. He did not get any government job and wanted to be self-employed by starting a shop of electrical goods and utensils. The prescribed authority considered this factor but we find that the appellate court expressed doubt on the fact that the certificate related to Prem Parkash being lead by the fact that his residence was shown as village Lukhtara, undisputedly that village also falls in the district of Banda. It was also observed by the appellate court that it could not be shown as to what government job Prem Parkash could get by virtue of the certificate he had obtained from industrial training institute, Banda. The whole approach to the point was misdirected. It was also observed by the appellate court that it could not be shown as to what government job Prem Parkash could get by virtue of the certificate he had obtained from industrial training institute, Banda. The whole approach to the point was misdirected. Be that as it may, we make it clear that even by excluding the factor of Prem Parkash being technically educated, otherwise as well we find that the need and requirement of the landlady is bonafide even after considering the same in the light of rule 16 of the rules and in the background of comparative hardship which we find would be more to the landlady, in the event of disallowing the application for eviction. 20. Their Lordships of the Hon'ble Supreme Court in Sait Nagjee Purushotham and Co. Ltd. Vs. Vimalabai Prabhulal and Others, AIR 2006 SC 770 have held that normal rule is that rights and obligations of parties are to be determined on date of petition and subsequent events can be taken into consideration for moulding relief, provided such events are of such a nature and dimension as to completely eclipse the need and make it lose significance altogether. Process of litigation cannot be made the basis for denying landlord relief while litigation at last reaches the final stage. Their Lordships have further held that courts have to take a very pragmatic approach of the matter. Neither a person who has started the litigation can sit idle nor development of events can be stopped by him. Their Lordships have further held that the landlords or their progeny engage in other activities or business, the same cannot establish that the need for the premises in question is not bona fide. Their Lordships have held as under: 7. In the case of Pratap Rai Tanwani and Another Vs. Uttam Chand and Another, (2004) 7 JT 366 it was held that the bona fide requirement of the landlord has to be seen on the date of the petition and the subsequent events intervening due to protracted litigation will not be relevant. It was held that the crucial date is the date of petition. Uttam Chand and Another, (2004) 7 JT 366 it was held that the bona fide requirement of the landlord has to be seen on the date of the petition and the subsequent events intervening due to protracted litigation will not be relevant. It was held that the crucial date is the date of petition. Their Lordships further observed that the normal rule is that the rights and obligations of the parties are to be determined on the date of the petition and that subsequent events can be taken into consideration for moulding the reliefs provided such events had a material impact on those rights and obligations. It was further observed by their Lordships that it is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. Therefore, the courts have to take a very pragmatic approach of the matter. It is the common experience in our country that specially landlord-tenant litigation prolongs for a long period. It is true that neither the person who has started the litigation can sit idle nor the development of the events can be stopped by him. Therefore, the crucial event should be taken as on the date when the suit for eviction was filed unless the subsequent event materially changed the ground of relief. 8. In the case of Gaya Prasad Vs. Sh. Pradeep Srivastava, AIR 2001 SC 803 their Lordships observed that the landlord should not be penalized for the slowness of the legal system and the crucial date for deciding the bona fide of the requirement of the landlord is the date of his application for eviction. Their Lordships also observed that the process of litigation cannot be made the basis denying the landlord relief while litigation at least reaches the final stages. However, their Lordships further added that subsequent events may in some situations be considered to have overshadowed the genuineness of the landlord's need but only if they are of such nature and dimension as to completely eclipse such need and make it lose significance altogether. 21. In view of the definitive law laid down by the various High Courts and Hon'ble Supreme Court, the case, i.e. Om Prikash Mittal Vs. Council of Architecture and Others, AIR 1983 Delhi 223 referred by Mr. 21. In view of the definitive law laid down by the various High Courts and Hon'ble Supreme Court, the case, i.e. Om Prikash Mittal Vs. Council of Architecture and Others, AIR 1983 Delhi 223 referred by Mr. K.D. Sood, learned Senior Advocate is not applicable to the facts of the present case. 22. The provisions of section 13(3)(a)(iv) of the East Punjab Urban Rent Restriction Act are almost pari materia to section 14(3)(d) of the Himachal Pradesh Urban Rent Control Act, 1987. Accordingly, in view of the observations and analysis made hereinabove, the petition is allowed. The judgment of the Appellate Authority dated 30.6.2001 is set aside and the order of the Rent Controller dated 25.11.2000 for eviction of the tenant is restored. Pending applications), if any, also stands disposed of. The tenant is directed to handover the vacant possession of the premises in question to the landlord within a period of three months from today. No costs. CMP Nos. 472/2001 and 658/2013: In view of the analysis made hereinabove, both the applications are rendered infructuous and the same are dismissed having become infructuous.