C.R.No.7760 of 2011 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.7760 of 2011 (O&M) Date of decision:15.12.2011 Surinder Kumar ...Petitioner vs Smt.Leela Sharma and others ....Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.Y.K.Sharma, Advocate, for the petitioner. Mr.M.L.Sarin, Senior Advocate, with Mr.Nitin Sarin Advocate, for the respondents. -- Rakesh Kumar Garg,J. This is tenant's revision petition challenging the impugned order of eviction dated 15.2.2011 whereby Rent Controller,Jagadhri, has ordered his eviction, in a petition filed under section 13-A of the Haryana Urban ( Control of Rent and Eviction)Act, 1973, (hereinafter referred to as “the Act”) by one Raj Kumar Sharma ( i.e. predecessor-in-interest of the respondents). As per the averments emerging from the impugned order, one Raj Kumar Sharma (predecessor-in-interest of the respondents) was the owner/landlord in respect of the demised premises wherein the petitioner was inducted as a tenant at a monthly rent of Rs. 575/-. The ejectment petition was filed on the ground that the petitioner was in arrears of rent w.e.f. 1.1.2007 to 31.1.2008 and that landlord was serving in the Indian Armed Forces and is going to retire in June 2008 and after his retirement he required the shop bona fidely for his personal use and occupation for running the business of electronics goods and the shop lying vacant C.R.No.7760 of 2011 2 measuring 7'x12' was not sufficient for his business. It was further averred that respondent was not having any other shop/non residential building in his possession as landlord or in any other capacity except the shop in dispute and the other shop lying vacant. Neither he had vacated any other non residential building without any sufficient cause after the commencement of 1949 Act. He being an employee of the Armed Forces of the Union of India, was entitled to the possession of the demised premises immediately as per law under sections 13,13-A and 3-A of the Act. It was further averred that Raj Kumar Sharma respondent was suffering from a serious disease like cancer and he was under the treatment of Army Hospital Research and Referral Delhi Cantt-10. Moreover, he had two sons namely Vikrant Sharma aged 25 years and Vikas Sharma aged 23 years. Vikrant Sharma has got the Diploma in Radio and T.V. From ITI whereas Vikas Sharma has got the Diploma in Electrician from ITI and at present both of them were unemployed and were dependent upon him. He wanted to settle both of his sons in business of electronics goods in the shop in question along with the shop lying vacant and with the help of his sons the respondent who was suffering from cancer would be able to carry on the business in the shop in question after retirement in 2008. Another ground for eviction of the petitioner was projected stating that he had purchased one shop vide registered sale deed dated 11.5.2001 over which shop has been constructed thereon and was most suitable and sufficient for the use and occupation of the petitioner. Hence, the instant petition for ejectment of the petitioner was filed. Upon notice petitioner appeared. Vide order dated 16.4.2008 provisional rent was assessed by the rent Controller which was tendered. It C.R.No.7760 of 2011 3 may also be noticed at this stage that on 4.5.2009 respondents prayed for withdrawal of all other grounds of ejectment, except the ground of personal necessity and for treating the present petition as the one under section 13A of the Act. Vide order dated 12.6.2009, the said application was allowed and the respondents/landlord was permitted to withdraw the other grounds of eviction except the ground of personal necessity and the petition was treated as the one under section 13-A of the Act. It may not be out of place to mention here that the petitioner challenged the aforesaid order dated 12.6.2009 before this Court vide C.R.No.4578 of 2009, which was dismissed vide order dated 13.8.2009. The instant petition was filed by the landlord Raj Kumar Sharma on 24.1.2008. However, he died on 20.2.2008. Respondents were brought on record as his legal representatives on 1.8.2008. Thereafter, petitioner applied for leave to contest which was granted vide order dated 24.9.2009. The petitioner contested the petition by filing written statement raising preliminary objection that the petition was not maintainable because after the death of Raj Kumar Sharma his legal representatives have no legal right to seek relief under section 13-A of the Act and have no locus standi to file the present petition. Petitioner also raised various other preliminary objections. On merits, relationship of landlord and tenant was admitted between the parties. It was also admitted that Raj Kumar Sharma was serving in the Armed Forces. However, it was disputed that the shop in question was required by them as alleged. It was also averred that the respondents were already in possession of a shop and thus they did not fulfill the requirement for eviction of the petitioner under section 13-A of the Act. All other averments were denied and dismissal of the petition was sought. C.R.No.7760 of 2011 4 From the pleadings of the parties, the following issues were framed:- 1.Whether the respondent is liable to be ejected from the shop in dispute on the ground mentioned in the petition under section 13-A of the Haryana Urban (Control of Rent and Eviction)Act, 1973 ? OPP 2. Whether the present petition is not maintainable ? OPR 3. Whether the petitioner is estopped from filing the present petition by his own act and conduct ?OPR 4. Whether the petitioner has concealed the material facts from this Court and has not come to the Court with clean hands ? OPR 5. Relief. After considering the evidence on record and hearing the arguments of counsel for the parties, the Rent Controller vide impugned order dated 15.2.2011 allowed the ejectment petition and ordered ejectment of the petitioner on the ground of bona fide personal necessity by the respondents i.e. legal heirs of respondent Raj Kumar Sharma. Challenging the impugned order, learned counsel for the petitioner has vehemently argued that in the instant case as per the pleadings Raj Kumar Sharma/landlord was going to retire from the service in June 2008 and he needed the demised shop for his personal use and occupation. However, as per retirement certificate Ex.A2 Raj Kumar Sharma could serve upto 57 years of age and his date of birth was 5.10.1961 and in this manner at the time of moving the ejectment application by him on 24.1.2008 he was 47 years and still a period of about 10 years remained for his retirement and thus the ejectment application moved by him was pre- mature in view of the provisions of section 13-A of the Act, according to C.R.No.7760 of 2011 5 which an application by landlord, who is or was a member of the Armed Forces of Union of India, for the ejectment of the tenant from a residential building can be filed within one year prior to or after the date of of his retirement or discharge from the services. According to the learned counsel, the Rent Controller has not taken consideration this fact and has passed the impugned order illegally. Elaborating his argument learned counsel has further submitted that as per the said certificate Ex.A2, a non enrolled combatant member i.e. NC(E) could apply for his pre-mature discharge from service at any stage of his career on compassionate, higher education and selection to civil posts grounds. In the instant case no evidence worth the name has come on the record of the case to establish that Raj Kumar Sharma had applied for his pre-mature discharge from service and that he was going to retire in the month of June 2008. Thus, the ejectment application moved by him was not maintainable and consequently his legal representatives i.e. the respondents also could not maintain and prosecute the said ejectment application. It useful to refer to the provisions of section 13-A of the Act which reads thus:- “13-A Special Procedure for disposal of application in certain cases:-(1) Where the application is made by a landlord who is or was a member of the Armed Forces of the Union of India within one year prior to or after the date of his retirement or discharge or within one year from the date of commencement of the Haryana Urban (Control of Rent and Eviction) Amendment Act, 1986 whichever is later, on the ground mentioned in sub-clause (i) of clause (a) of sub-section (3) of section 13, the same shall be dealt with in accordance C.R.No.7760 of 2011 6 with the procedure specified in this section. Provided that in case of death of such landlord, his widow and in the case of death of such widow, his child, grandchild or widowed daughter-in-law who has dependent upon him at the time of his death shall be entitled to make an application under this Section to the Controller.- (a) in the case of death of such landlord before the commencement of the Haryana Urban (Control of Rent & Eviction)amendment Act, 1988, within one of such commencement; (b) in the case of death of such landlord after such commencement, but before the date of his retirement or discharge, within one year of the date of his death; (c) in the case of death of such landlord after such commencement and the date of his retirement or discharge, within one year of the date of such retirement or discharge; and on the date of such application the right to recover the possession of the residential building which belonged to such landlord at the time of his death shall accrue to the applicant.” The proviso to the aforesaid section clearly provides that in the case of death of a landlord who was serving in the Armed Forces of the Government of India his dependent/legal representatives can maintain an ejectment petition under the provisions of section 13-A of the Act within one year from the date of death of such landlord. In the instant case, Raj Kumar Sharma who was the landlord of the demised premises was serving in the Armed Forces and had died on 24.2.2008 and, thus, the respondents who are legal representatives/dependents could very well maintain an ejectment petition under the provisions of the aforesaid Act. Not only this, admittedly they were brought on record on 1.8.2008 and vide application C.R.No.7760 of 2011 7 dated 4.5.2009, they had given up all other grounds and had prayed for treating the instant ejectment application under the provisions of section 13-A of the Act and the Rent Controller vide order dated 12.6.2009 had accepted the prayer of the respondents and had allowed them to contest the petition under section 13-A of the Act. The petitioner had filed C.R.No.4578 of 2009, challenging the aforesaid order and even the said petition was dismissed. Thus, objection raised by the petitioner as argued is without any merit. In fact, no prejudice has been caused to the petitioner by continuation of the ejectment petition filed by Raj Kumar Sharma by therespondents as in view of the proviso to section 13-A of the Act, the respondents could have filed an independent petition in their own right for eviction of the petitioner from the demised premises being dependent of Raj Kumar Sharma who was admittedly serving in the Armed Forces. Not only this, the averments with regard to the need of the respondents had already been pleaded. Faced with this situation, learned counsel appearing on behalf of the petitioner has further argued that the very fact that respondents are in occupation and possession of another adjoining shop, to the shop in dispute which is lying vacant disentitles the respondents to file and maintain the present ejectment application in view of the provisions of section 13 (3)(a) (i) of the Act, as the respondents were not competent to file the ejectment petition against the petitioner because they were admittedly occupying another shop within the locality. Thus, no benefit could have been granted to them under section 13-A of the Act. The argument is again liable to be ejected in view of the Full Bench C.R.No.7760 of 2011 8 judgment of this Court in the case M/s Sant Ram Das Raj Kalka v. Karam chand Mangal Ram AIR 1963 Punjab 1, wherein it has been held that meaning and content of the word “residential building” is inextricably connected with the requirement of the landlord and it is the quantitative aspect of accommodation in the other residential building which has to be given consideration and weight in reaching a conclusion about the sufficiency of his requirement in sub clause (a) of section 2 of the Act. It may also be noticed that a Full Bench of this Court in the case of Ramesh Kumar v. Atma Devi and another, 1987(1) RCR (Rent) 101, wherein it has been reiterated that landlord can eject tenant if the building in his occupation is not sufficient or suitable for his needs. No other argument has been raised. In view of the aforesaid, I find no merit in this revision petition and the same is dismissed. (Rakesh Kumar Garg) Judge December 15, 2011 rk