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2023 DIGILAW 584 (HP)

Sunil Thakur v. Brij Mohan Sharma

2023-12-22

VIVEK SINGH THAKUR

body2023
JUDGMENT : VIVEK SINGH THAKUR, J. 1. Present Revision Petition, invoking provisions of Section 24 (5) of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the ‘Rent Act’), has been preferred against judgment dated 29.7.2022 passed by Appellate Authority, Shimla in Rent Appeal No. 2-S/13B of 2022, titled as Sunil Thakur vs. Brij Mohan Sharma, whereby order dated 7.1.2022, passed by Rent Controller, Shimla in Rent Case No. 9/2 of 2019, titled as Brij Mohan Sharma vs. Sunil Thakur, ordering eviction of tenant from the demised preemies, has been affirmed. 2. For convenience, parties hereinafter shall be referred according to their status before the Rent Controller, i.e. respondent herein as landlord and petitioner herein as tenant. 3. Landlord preferred a Rent Petition seeking eviction of tenant from non-residential premises, on the ground of bona-fide requirement for the purpose of establishing office to practice as an Advocate and also for his daughter, who was likely to complete her degree in Bachelor of Laws in the year 2019, to establish her as an Advocate. It was declared by landlord that he had not acquired any such suitable accommodation within the limits of Municipal Corporation, Shimla within five years of filing of Rent Petition nor he had rented out any such accommodation. 4. Tenant had denied the fact that petitioner or his daughter were Advocates, rather it has been claimed that they were doing their jobs outside Shimla and further that within five years from filing of petition a similar shop was vacated by other tenant of landlord which has been rented out to Himachal Pradesh State Co-operative Bank after March, 2016 for installation of ATM Machine, and further that first floor of the premises, consisting of 4-5 rooms, was in occupation of landlord and it was vacant, but it was rented out by the landlord to BJP IT Cell in the month of August-September, 2018 and further that, thereafter the same has been rented out for residential purpose to a family. 5. Landlord was employee of Ambuja Cement Limited, Darlaghat w.e.f. 27.8.2008 to 10.12.2018 and his daughter has completed her BALLB in the year 2019 and she has been enrolled as an Advocate on 7.8.2019 with registration No. HIM/107/2019 with Bar Council of Himachal Pradesh. 6. 5. Landlord was employee of Ambuja Cement Limited, Darlaghat w.e.f. 27.8.2008 to 10.12.2018 and his daughter has completed her BALLB in the year 2019 and she has been enrolled as an Advocate on 7.8.2019 with registration No. HIM/107/2019 with Bar Council of Himachal Pradesh. 6. After taking into consideration pleadings and evidence on record, Rent Controller has passed eviction order against the tenant and, thereafter, appeal preferred by him has also been dismissed by Appellate Authority by passing impugned order. 7. Main ground on behalf of tenant, argued in present Revision Petition, is that landlord is not fulfilling, rather is in breach of provision of Section 14(3)(a)(i) of the Rent Act, as he was occupying another non-residential house owned by him in the same building and he has rented out a shop in the year 2016 to the Bank and thus his declaration in the Rent Petition is false and he has not come to the Court with clear hands and on this sole ground the Revision Petition deserves to be allowed and Rent Petition preferred by the landlord deserves to be dismissed. 8. It has been further contended on behalf of tenant that even if bona-fide requirement for the purpose of establishing Office of an Advocate is taken as a ground for eviction, then also there is breach of provision contained in Section 14(3)(d) of the Rent Act, wherein it has been provided that the child for whom eviction is sought should not be occupying any other building for use as Office or consulting room in the urban area concerned and child should not have vacated such building without ‘sufficient cause’ after commencement of the Act in the urban area concerned. He has submitted that alongwith landlord, being a family of landlord, daughter for whose benefit eviction is being sought, can also not take a plea that she was not occupying the building in the area concerned or she vacated such building as her father i.e. landlord has rented out a shop to the Bank within five years after commencement of the Act and had occupied the premises in the first floor of the building. 9. In order to substantiate the plea raised on behalf of tenant, his learned counsel has referred judgment in Onkar Nath vs. Ved Vyas, (1980) 4 SCC 270 , Tara Chand Sharma vs. Brij Nath and Others, 1994 (Supp.) Sim. 9. In order to substantiate the plea raised on behalf of tenant, his learned counsel has referred judgment in Onkar Nath vs. Ved Vyas, (1980) 4 SCC 270 , Tara Chand Sharma vs. Brij Nath and Others, 1994 (Supp.) Sim. L.C. 87 and judgment dated 24.10.2019 of this High Court passed in Civil Revision No. 240 of 2018, titled as P.C. Marpa vs. Rewat Kumari. 10. Learned counsel for the landlord submits that suitability of the premises for opening and establishing office of Advocate is to be adjudged by the landlord, but not by tenant. Therefore, it cannot be stated that he has vacated the building or premises available with him without any ‘sufficient cause’. It has been submitted that at that time, there was no plan of the landlord to establish Office as an Advocate for himself and his daughter and, therefore, there was no occasion to retain the said premises with him. He has further submitted that premises in first floor of the building is not suitable for opening office and as a matter of fact that has been rented out for residential purposes. 11. Learned counsel for the landlord in support of his contention has referred judgments in Krishanlal Ishwarlal Desai vs. Bai Vijkor and Others, AIR 1967 SC 375 , Surinder Singh Sibia vs. Vijay Kumar Sood, (1992) 1 SCC 70 , Kailash Chand and Another vs. Dharam Dass, (2005) 5 SCC 375 , Nand Lal Sharma vs. Bimla Sharma, 2007 (3) Shim. LC 406 and Dunlop India Limited vs. A.A. Rahna and Another, (2011) 5 SCC 778 . 12. I have heard learned counsel for the parties and have gone through the record and also the case law referred. There is no dispute with respect to the ratio contained in the judgments, however, in the given facts and circumstances, the case law referred on behalf of tenant is of no help to him for discussion hereinafter. 13. Section 14(3)(a)(i) reads as under: “(a) in the case of a residential and non-residential building, if-(i) he requires if for his own occupation: Provided that he is not occupying another residential and non-residential building owned by him in the urban area concerned: Provided further that he has not vacated such a building without sufficient cause within five years of the filing of the application, in the said urban area......” 14. Section 14(3)(d) reads as under: “(d) in the case of residential and non-residential building, if he requires it for use as an office, or consulting room by his son or his daughter 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 Unani or Homeopathic 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. (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.” 15. Learned counsel for the landlord has submitted that there is difference between ‘occupation’ and ‘possession’ as possession of a building is not sufficient with reference to the condition contained in Section 14 of the Rent Act referred supra, but it has to be seen that as to whether landlord was occupying suitable premises for the purpose, for which eviction of tenant has been sought or not, and for that reason only the world “occupy” has been used in Section 14 instead of “possession” and further that question of occupying the suitable premises for establishing office would arise only after retirement of landlord and/or acquiring BALLB degree by his daughter, but not prior to that. 16. It is more than settled that a premises required for bona-fide requirement of the landlord is to be identified and chosen by the landlord only. Unless availability and suitability of similar premises available with the landlord is established on record, premises in the judgment of land is to be considered appropriate for meeting the requirement of the landlord. 17. In present case, first floor of the building has been proved to be a residential area, which was earlier rented out by the landlord to BJP IT Cell for 2-3 months and thereafter, to a family for residential purposes and such area may not be suitable for establishing office of an Advocate as has been commented by the Courts below. The declaration in the Rent Petition by landlord is that he has not acquired any other such ‘suitable accommodation’ within five years of filing of petition, nor he has rented out any such accommodation. The declaration in the Rent Petition by landlord is that he has not acquired any other such ‘suitable accommodation’ within five years of filing of petition, nor he has rented out any such accommodation. Landlord is claiming that the premises rented out to the tenant is suitable accommodation for his office. There is no cogent and reliable material available on record to establish that the premises are not suitable for establishing office of an Advocate or to prove availability of other suitable accommodation. 18. Though it has come on record that adjoining shop has been rented out by the landlord to the Bank in the year 2016, but there is nothing to establish on record that same is also suitable for the Office or more suitable than the premises in reference. It is also noticeable that provision in Sections 14(3)(a)(i) as well as 14(3)(d)(ii) says that premises should not have been vacated without ‘sufficient cause’. In the year 2016, landlord was in service and his daughter has completed BALLB in the year 2019 and, therefore, at that time it cannot be construed that landlord or his daughter were intending to practice as a lawyer and to establish Office in Shimla and, therefore, considering facts existing at that time renting out a shop to Bank cannot be said to have been rented out without ‘sufficient cause’. Here is a case where landlord after his retirement on 10.12.2018 had decided to establish his Office as an Advocate and file petition for the said purpose on 23.2.2019 and as, at that time, his daughter was also likely to complete BALLB course, he intended to establish his daughter as an Advocate by opening office in the premises in reference. Before that there was no cause for the landlord or his daughter to establish an office of an Advocate and, therefore, as also recorded by the Courts below, renting out of premises prior to that is of no consequence to the cause of the landlord. 19. In view of above discussion, I do not find any judicial impropriety, illegality, irregularity or perversity in the order and judgment passed by the Courts below, and accordingly, Revision Petition is dismissed being devoid of any merit. 20. The Revision Petition stands disposed of in the above terms, so also pending applications, if any. Interim order stands vacated. 21. Records of the Courts below be sent back forthwith.