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Himachal Pradesh High Court · body

2017 DIGILAW 814 (HP)

Anil Bansal v. Dinesh Kohli

2017-07-19

DHARAM CHAND CHAUDHARY

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Dharam Chand Chaudhary, J. (Oral) Order dated 16.3.2010 passed by Learned Rent Controller, Solan, District Solan in a petition filed under Section 15 of the H.P. Urban Rent Control Act (hereinafter referred to as ‘Act’ in short) registered as Rent Petition No. 5/2 of 2005 is under challenge in this petition. 2. The petitioner herein is the landlord. He was employed as Ortho Specialist in Zonal Hospital, Solan. On account of adverse family circumstances as well as to look after his old mother he had decided to seek voluntary retirement and to run Multi Specialty Hospital with super speciality in Orthopedic. Since neither he nor his wife and children were owner in possession of any other suitable accommodation except the demised premises within the municipal area Solan, he being a co-sharer and in possession of the demised premises i.e. ground floor of the building known as “Dev Building” situated near District Employment Exchange building, Ward No. 11, Solan, which was rented out to the respondent, hereinafter referred to as the ‘tenant’, asked him to vacate the same being required by the petitioner-landlord for his personal bonafide requirement. The respondent-tenant continued seeking extension of time from the petitioner-landlord from time to time with the assurance that he will vacate the demised premises, but of no avail. In the meanwhile, the petitioner after seeking pre-mature retirement stood retired from government job on and w.e.f. 8.3.2004. The demised premises was rented out to the respondent. The rent initially was being received by the mother of the petitioner on his behalf through cheque in view of he being in government job at that time, however, was being deposited in account joint with his mother. On finding that the respondent was not willing to vacate the premises, a petition under Section 15 of the Act came to be filed before learned Rent Controller, Solan, District Solan. 3. The respondent-tenant on entering appearance and seeking permission to contest the petition filed for his eviction has denied the relationship of landlord and tenant inter-se them as according to him it is Smt. Nirmala Bansal PW5, the mother of the petitioner, who inducted him as tenant in the demised premises. It is she who had been receiving rent from him. The respondent-tenant on entering appearance and seeking permission to contest the petition filed for his eviction has denied the relationship of landlord and tenant inter-se them as according to him it is Smt. Nirmala Bansal PW5, the mother of the petitioner, who inducted him as tenant in the demised premises. It is she who had been receiving rent from him. Apart from this, the question of maintainability of the petition was also raised as according to him the demised premises being commercial/nonresidential in nature is not covered under Section 15(2) of the Act. 4. The petitioner-landlord has filed the rejoinder. Out of the pleadings of the parties, the following issues were framed: 1. Whether petitioner is entitled for vacation of demise premises being landlord which is alleged required by the petitioner for bonafide use for establishing hospital as alleged? OPP. 2. Whether the petition is not maintainable. OPR 3. Whether there is no relationship of the land lord and tenant between the parties as alleged? OPR 4. Relief. 5. The petitioner-landlord in support of his case has himself stepped into the witness box as PW1 and has examined patients visiting his Clinic PW2 Rajnish Gupta, PW3 Amrit Lal Aggarwal and PW4 Madan Singh. He has also placed reliance on documentary evidence i.e. his service record Ext.P1 to Ext.P5. On the other hand, the respondent-tenant has himself stepped into the witness box as RW1. 6. Mr. Bhupender Gupta, learned Senior Advocate assisted by Mr. Neeraj Gupta, Advocate has drawn the attention of this Court to the provisions contained under Section 15 of the Act and also the evidence available on record as well as the law applicable to a proposition as is under consideration in the present lis. On the other hand, Mr. Naresh Kumar Gupta, Advocate appearing on behalf of the respondent-tenant has supported the impugned order as according to him the petitioner has failed to prove a case within the meaning of Section 15 of the Act for seeking eviction of the tenant. 7. In the nature of the controversy involved the provisions contained under Sub Section (2) of Section 15 are relevant for the purpose of just decision of this petition. 7. In the nature of the controversy involved the provisions contained under Sub Section (2) of Section 15 are relevant for the purpose of just decision of this petition. The same reads as follows: “(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 along with 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 posses 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 to 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.” 8. The bare perusal of Sub Section (2) of Section 15 of the Act ibid make it crystal clear that a specified landlord within one year prior or within one year after the date of his retirement or even after his retirement may apply to the Controller along with his certificate issued by the Competent authority qua his removal from service i.e. by way of retirement to recover possession of one residential building for his own occupation, of course, on filing an affidavit to the effect that he or his spouse does not own or possess any other suitable accommodation in the local area in which he intends to reside or to start his own business. 9. In the case in hand learned Rent Controller has decided the question of maintainability of the petition raised under Issue No.2 first. Learned Rent Controller while interpreting the provisions contained under Sub Section (2) of Section 15 of the Act has concluded that a specified landlord can apply only for the recovery of the demised premises, if it is residential and not that of non-residential premises. Learned Rent Controller while interpreting the provisions contained under Sub Section (2) of Section 15 of the Act has concluded that a specified landlord can apply only for the recovery of the demised premises, if it is residential and not that of non-residential premises. Admittedly, the demised premises is commercial, hence non-residential. The close scrutiny of the provisions contained under Sub Section (2) of Section 15 of the Act, however, make it crystal clear that a specified landlord can recover immediate possession of premises rented out to the tenant subject to he or his spouse is not having any other premises to reside or to start his own business, meaning thereby that a specified landlord within one year before his retirement or within one year thereafter can recover the possession of the demised premises rented out to a tenant not only for residential purpose but also to start his/her own business. 10. In the case in hand as per the evidence which remained uncontroverted, the petitioner is an Orthopedic Surgeon. After his retirement on and w.e.f. 8.3.2004 he opened a Clinic under the name and style ‘Bansal Orthopedic Centre’ Dev Building near Sainik Rest House, the Mall Solan. The proposed layout of the clinic in the ground floor is Ext.P4 whereas that of first floor Ext.P5. At present he is running the Centre in first floor of the building. The patients suffering from various types of ailment connected with Locomotor function of the various parts of body can have easy access to the Centre in case situated in ground floor. Therefore, it can reasonably be believed that for the patients with such type of disease/ailment, it is difficult to climb up to first floor through stairs. 11. The respondent-tenant while in the witness box has himself admitted such type of difficulties being faced by the patients visiting the Centre opened by the petitioner-landlord. The documentary evidence i.e. Ext.P1 and Ext.P2 reveal that the petitioner-landlord was working as Orthopedic Surgeon in Zonal Hospital, Solan and stand retired under the provisions of Rule 3 of the Himachal Pradesh Civil Services (Pre-mature Retirement) Rules, 1976 on and w.e.f. 8.3.2004. The present, as such, is a case which squarely falls in the domain of the provisions contained under Sub Section 2 of Section 15 of the Act. Learned Controller below has failed to appreciate and interpret the same in its right perspective. The present, as such, is a case which squarely falls in the domain of the provisions contained under Sub Section 2 of Section 15 of the Act. Learned Controller below has failed to appreciate and interpret the same in its right perspective. The findings as recorded on Issue No. 2 that the petition is not maintainable are, therefore, neither legally nor factually sustainable, hence, quashed and set aside. 12. The issue of relationship as landlord and tenant inter-se the parties has also been contested on both sides. Admittedly, the petitioner is one of the co-sharer of the demised premises. There is again no quarrel so as to the respondent was inducted as tenant in the demised premises by the mother of the petitioner Smt. Nirmala Bansal PW5. It is she who used to collect the rent from the respondent-tenant. Before coming to the disputed question qua this aspect of the matter, it is desirable to take note of the law applicable in a situation as in the present case. The Apex Court in Biswanath Agarwalla versus Sabitri Bera and Others, (2009) 15 Supreme Court Cases 693 has held that in a case where even if the relationship of landlord and tenant inter-se the parties not proved, however, the landlord plead and prove his title over the demised premises, he may obtain a decree on the basis thereof. The relevant extract of this judgment reads as under:- “17. The landlord in a given case although may not be able to prove the relationship of landlord and tenant, but in the event he proves his general title, may obtain a decree on the basis thereof. But in a case of this nature, a defendant was entitled to raise a contention that he had acquired an indefeasible title by adverse possession. In Radha Devi v. Ajay Kumar Sinha the Patna High Court accepted that landlord is entitled to obtain a decree of eviction on the basis of his general title, though he could not prove the relationship of landlord and tenant. It was opined: (BLJR p.1064, para 9) “9. ….In other words, where there is relationship of landlord and tenant, order of eviction be passed on the existence of any one of the grounds mentioned in Section 11 of the said Act. It was opined: (BLJR p.1064, para 9) “9. ….In other words, where there is relationship of landlord and tenant, order of eviction be passed on the existence of any one of the grounds mentioned in Section 11 of the said Act. It is, therefore, clear that proof of relationship of landlord and tenant gives right to a landlord to get an order of eviction under the provisions of the aforesaid Act.” 18. In Champa Lal Sharma v. Sunita Maitra it was held: (BLJR pp.273-74, paras 21-22 and 30) “21……..It is also well settled that once such a relationship is admitted or established, a tenant would be stopped and precluded from challenging the title of the landlord and if he does so, under the general law, makes himself liable for eviction on that ground alone. 22. It, therefore, logically follows that a finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenant except in a case, as mentioned hereinbefore, the plaintiff on payment of ad valorem court fee may obtain a decree for eviction on the basis of his general title. 30. It is, therefore, evident that the court has to ultimately decide the question as to whether the plaintiff in case his title is in dispute, would be entitled to withdraw the rent so deposited by the tenant or not. It, therefore, makes the position, in my opinion, absolutely clear that before the said question is decided finally so as to enable the court to come to a decision whether the plaintiff landlord is entitled to a decree for eviction or not must come to the finding that there exists a relationship of landlord and tenant by and between the plaintiff and the defendant, if such an issue is raised. In absence of any such finding the court will have no jurisdiction to pass a decree of evidence as against the defendant in such a suit.” 13. The Apex Court has held again in Rishab Chand Bhandari (dead) by LRs and Another versus National Engineering Industry Limited, (2009) 10 Supreme Court Cases 601 that natural landlord of a premises is ordinarily the owner thereof. Sometimes he may not be in a position to collect the rent, hence may appoint an agent or authorize any other person to collect rent on his behalf. Sometimes he may not be in a position to collect the rent, hence may appoint an agent or authorize any other person to collect rent on his behalf. It does not mean that the meaning of word ‘landlord’ who is the owner of the premises would disappear. This judgment also reads as follows: “4. Under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, under Section 3(iii) the word “landlord” has been defined as under: “3.(iii) ‘landlord’ means any person who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or as an agent, trustee, guardian or receiver for any other person, or who would so receive or be entitled to receive the rent, if the premises were let to a tenant; it includes a tenant in relation to a sub-tenant;” 5. Learned counsel for the appellant submitted that there were no arrears of rent as rent was being paid to Ram Das Modani, who was collecting rent on behalf of the Trust. Hence, he submitted that there was no default in payment of rent. On the other hand, learned counsel for the respondent submitted that the respondent Company was the landlord and hence rent should have been paid to it and thus there was default in payment of rent. He further submitted that it was the respondent who had let out the premises and accordingly in terms of the Act it was entitled to receive rent. 6. We have heard learned counsel for the parties. We are required to interpret the word “landlord” as provided under the Act. In our opinion a purposive, and not literal interpretation has to be given to the definition of “landlord” in the Act. 7. The natural landlord of a premises is ordinarily the owner. However, an expanded definition has been given in various rent statutes of many States for the reason that sometimes the owner may not himself be in a position to collect the rent and may hence appoint an agent or authorize any person to collect rent on his behalf because he may be abroad or is unable to do so for any other reason. This does not mean that the natural meaning of the word “landlord”, who is the owner of the premises, would disappear and that the owner goes out of the picture altogether. This does not mean that the natural meaning of the word “landlord”, who is the owner of the premises, would disappear and that the owner goes out of the picture altogether. This is the view taken by the Delhi High Court in Madan Lal vs. Hazara Singh. We approve of the view taken in the said decision. 8. If we interpret the definition of “landlord” in the Act literally it will result in strange consequences. It will mean that even if the owner, who is the natural landlord, does not want to evict a tenant, his agent may do so. Surely this is an absurd situation. It is well settled that if a literal interpretation leads to absurd consequences, it should be avoided and a purposive interpretation be given.” 14. Now if disputed questions are examined in the light of the legal proposition settled by the Hon’ble Apex Court in the aforesaid pronouncements, there is ample evidence suggesting that the mother of the petitioner had been collecting rent from the respondent at a stage when the petitioner was in government service. It can reasonably be believed that while in government service it may have not been possible for him to collect the rent and also to attend to other affairs connected with the tenancy. The rent received by the mother of the petitioner through cheque was being deposited in their joint account i.e. of the petitioner and his mother. The petitioners’ case that in family settlement the demised premises fell in his share is also proved from his own testimony and also from that of his mother PW5 Smt. Nirmala Bansal. The respondent-tenant has not produced any evidence in rebuttal thereto meaning thereby that on partition the petitioner has become absolute owner of the demised premises. His mother while in the witness box has stated in so many words that she had been receiving the rent on behalf of the petitioner. The petitioner, therefore, has been proved to be a specified landlord within the meaning of Section 15 of the Act. Issue No. 3, as such, should have been answered in negative and against the respondent-tenant. Learned Rent Controller however, has failed to appreciate this part of the controversy also in its right perspective. The fact remains that the relationship between the petitioner and respondent as landlord and tenant stand satisfactorily established on record. Issue No. 3, as such, should have been answered in negative and against the respondent-tenant. Learned Rent Controller however, has failed to appreciate this part of the controversy also in its right perspective. The fact remains that the relationship between the petitioner and respondent as landlord and tenant stand satisfactorily established on record. Therefore, the findings to the contrary recorded on issue No. 3 are neither legally nor factually sustainable, hence quashed and set aside. 15. Now if coming to the controversy covered under issue No. 1, learned Rent Controller having not found the relationship of landlord and tenant proved inter-se the parties and the petition also not maintainable has answered issue No. 1 on this score alone against the petitioner. This Court, however, is not in agreement with the findings so recorded for the reasons that the petitioner and landlord after seeking premature retirement due to adverse family circumstances and with a view to run his own Orthopedic Centre in the demised premises was bonafidely in need of the same. On account of the failure of the respondent to vacate the demised premises the petitioner was compelled to open the Centre in the first floor of the building as a result thereof the patients with different type of Locomotive ailment visiting the Centre have faced lot of difficulty, particularly to climb-up stairs and reach the Centre on the first floor. When the petitioner-landlord has satisfactorily pleaded and proved that due to adverse family circumstances he sought voluntary retirement and to open Orthopedic Centre in the demised premises was as such in need of the same for establishing the Centre there. The petitioner-landlord is, therefore, entitled to recover the possession of the demised premises immediately from the respondent-tenant who has no legal right to remain in possession thereof any further. 16. For all the reasons hereinabove, the impugned order is neither legally nor factually sustainable and the same, as such, deserves to be quashed and set-aside. This petition is accordingly allowed. The impugned order is quashed and set aside. Consequently, the petitioner-landlord is entitled to recover the possession of the demised premises from the respondent-tenant immediately. 17. The petition is accordingly disposed of. Pending application(s), if any shall also sand disposed of.