IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No.:129/2001 Reserved on: 13.9.2011 Decided on:23.9. 2011 _____________________________________________ Roop Lal Jaura. …Petitioner. Versus Adarsh Confectioners through its Proprietor Sh. Om Parkash. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Ashok Sood and Mr. Raman Sethi, Advocates. For the Respondent : Mr. Bhupender Gupta, Sr. Advocate with Mr. Neeraj Gupta, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This revision petition is directed against the judgment dated 2.1.2001 passed by Appellate Authority (II), Kangra at Dharamshala in C.M. Appeal No. 9- D/XIV/99. 2. Material facts necessary for the adjudication of this petition are that the petitioner-landlord (hereinafter referred to ‘landlord’ for convenience sake) filed a petition under sub-sections (2) (i) and (3) (c) of section 14 of the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the ‘Act’ for brevity sake) seeking eviction of the respondent-tenant (hereinafter referred to as ‘tenant’ for convenience sake) on the following grounds: i) He requires the premises for bona fide rebuilding, which cannot be carried out without the same being vacated, and ii) The respondent was in arrears of rent from 1.6.1988 to the date of institution of the petition. 3. According to the landlord, two non-residential rooms in the building known as ‘Jaura building’ situated in Kotwali Bazar, were let out to the tenant through its proprietor Sh. Om Prakash on a monthly rent of Rs. 160/- on 10.6.1971. The purpose for which the premises were let out was for running a confectionery business. The demised premises came to be bona fide required by the landlord for the purpose of building and rebuilding since necessity of a reception room and proper approach to his hotel known as ‘Shiva Hotel’ arose. According to the landlord, Hotel Shiva is located just behind the premises in dispute. The hotel business was running in losses since the hotel has neither any reception room nor there was any proper entrance. In order to make the business 3 more profitable, he planned to demolish the tenanted premises and reconstruct a reception room alongside the main road in accordance with the site plan. He also planned to make a proper entrance for the hotel. The reconstruction could not be carried out without the premises being vacated by the tenant. 4. The petition was contested by the tenant. According to the tenant, the landlord had earlier sought eviction from the demised premises by filing two petitions in the years 1979 and 1981. No plea of building and rebuilding was taken in those petitions even though Shiva Hotel was constructed in the year 1978-79. The hotel, according to the tenant, was constructed without proper sanction. It was being run for the last 4-5 years without registration under the Himachal Pradesh Registration of Tourist Tract Act, 1988. The tenant has also refuted the dimensions of the tenanted premises. According to the tenant, the site plan relied upon by the landlord is neither correct nor the same has been approved by the competent authority. According to the tenant, the filing of the petition was actuated with mala fides since no action has been taken against other tenants. 5. The issues were framed by the learned Rent Controller on 20.9.1993. He dismissed the petition on 4 25.9.1998. Landlord preferred an appeal before the learned Appellate Authority. The Appellate Authority dismissed the appeal on 2.1.2001. Hence, the present petition. 6. According to Mr. Ashok Sood, landlord has pleaded and proved that the tenanted premises were required by the landlord bona fide for building and rebuilding, which could not be carried out without evicting the tenant. He then contended that both the courts below have misread and misconstrued the evidence led by the parties. He further contended that his client has got the map Ex.PW-2/B duly approved and was having sufficient funds. He has also relied upon the additional material placed on record by way of affidavit, including copy of tatima, jamabandi and sketch. 7. Mr. Bhupender Gupta, learned Senior Advocate has supported the orders passed by the learned Rent Controller and Appellate Authority. According to him, the landlord has failed to prove that the premises were required by him bona fide for the purpose of building and rebuilding, which cannot be carried out without the eviction of the tenant. According to him, the construction of ramp is an excuse merely to evict the tenant. He further argued that the proposed ramp cannot be 5 constructed for the simple reason that there are other private buildings between Hotel Shiva and the tenanted premises. He has also relied upon the photographs and reports filed alongwith the plan annexed to the reply filed to the supplementary affidavit. 8. I have heard the learned counsel for the parties and have perused the record carefully. 9. According to the averments contained in para 18 (a) (ii) of the petition, the landlord required the premises in dispute bona fide for rebuilding which cannot be carried out without the premises being vacated. He has constructed a big hotel styled as ‘Hotel Shiva’ just behind the premises in dispute. There was no proper entrance for the hotel and no reception so as to put the hotel in its proper use. He wanted to build reception room for the hotel after demolishing the premises which cannot be done without the premises being vacated by the tenant. The tenant has filed reply to the petition. According to the tenant, the petition was actuated with mala fide. According to him, the construction of the hotel started in the year 1978-79 and the hotel was functioning for the last more than 4-5 years. The landlord had earlier filed two petitions seeking his eviction in the years 1979 and 6 1981. These were dismissed. The landlord had not taken the ground of building and rebuilding in these petitions. 10. Landlord has appeared as PW-3. According to him, he has constructed Shiva Hotel behind the tenanted premises and Binny’s shop comprising 30-35 rooms. The approach to this hotel is not proper. The customers do not like to come to this hotel for this reason. The passage to the hotel is between the shop of C.L. Mehra and doctor Mool Chand. Though the passage is 2-2½' wide, however, the hotel is not visible from K.B. Main Road. He wanted to construct reception and approach to the hotel and the same cannot be carried out without getting the tenanted premises vacated. After this, hotel would be visible from the main road. He has admitted, in his cross- examination, that he has not sought the necessary permission for carrying out additions/alterations of the tenanted premises. According to him, there was no requirement to seek permission. He has also admitted that neither any Department nor Municipal Council has permitted him to carry out additions/alterations. He has admitted that the condition of the shop is good. He has also admitted that the construction material was carried through the passage, which is 2-2½' wide. He has got sufficient funds for the purpose of building and rebuilding. 7 11. PW-2 Charanjit Rai has supported the version of the landlord. According to him, the landlord has constructed hotel, which is behind the ‘Jaura building’ comprising 30-35 rooms. In front of the hotel, there is a shop of Binny and tenanted premises. There is a narrow passage of 3-4' to reach the hotel. The customers do not like to visit the hotel due to this narrow approach. In case the approach is improved, then hotel business will flourish. He has visited the hotel once with his friends. 12. PW-1 O.C. Sharma has brought the record. According to him, the permission to construct ramp was accorded on 31.3.1995, vide Ex.PW-1/A and the site plan of ramp is Ex.PW-1/B. In his cross-examination, he has admitted that according to the contents of Ex.PW-1/A, the landlord has not sought any permission for reconstruction of the building. The landlord has not given khasra number where the ramp is to be constructed. According to him, the Municipal Council has not granted the permission. He has not visited the shop. 13. S.C. Mahindroo has appeared as RW-1. He has proved Ex.RW-1/A. Statements of RW-2 Bakshi Chand and RW-3 Mast Ram are only relevant for the purpose of rent. 8 14. RW-4 Darshan Lal has testified that the Municipal Council has not sanctioned any map for the construction of Shiva Hotel with effect from 1979 to 1987. The Committee has not passed any resolution to this effect. He was not aware whether any map with respect to reception had been sanctioned. 15. Tenant has appeared as RW-5. He has also deposed that he has made inquiries from the Municipal Council. He was apprised that no building plan of Hotel Shiva has been approved, which was constructed in the year 1976-77. According to him, there is passage available by the side of C.L. Mehra and Dev Medical. According to him, the passage is 4-5 feet wide. There is another passage which is between Chattar Singh and store. He has deposed that construction material has gone through these passages. Shiva Hotel is situated below 10-15 feet and it is not visible. According to him, there were residences. The suit premises were in perfect condition. The Municipal Council has not passed any map with regard to reconstruction or alterations. The house of Sansar Chand is situated behind the disputed premises. The booking of the hotel is made by the landlord from his shop. He has denied the suggestion that in case entrance and new reception are made then the 9 hotel would be visible and it will increase the business. He has denied the suggestion that after the construction of approach, the facilities would improve for the customers. 16. RW-6 Krishan Lal Sood has also supported the version of tenant. According to him, Shiva Hotel is situated below the shops on the back side. The maximum portion of the hotel is behind Subhash Brothers and Khadi Bhandar. There are residences between the hotel and the disputed shop. There cannot be direct link to the hotel through demised premises. The construction of hotel commenced in the year 1978-80. The width of the path is 3-4 feet. There is another passage available to the hotel. It is not necessary for the landlord to get the shop vacated. He has further deposed that even if the shop is vacated, the hotel would not be visible from the main road. This is the entire evidence led by the parties. 17. Landlord has filed documents alongwith additional affidavit. He has filed copy of tatima and copy of jamabandi of Jaura building and Shiva Hotel alongwith photographs. The tenant has filed reply to the same. He has relied upon photographs and report of the Architect. 18. Landlord has pleaded and proved that the premises are required bona fide by him for building and 10 rebuilding, which could not be carried out without evicting the tenant. The landlord has appeared as PW-3. He has categorically deposed that he required the tenanted premises bona fide for the purpose of linking his Hotel Shiva with the main road to improve his business. He has also deposed that the approach cannot be constructed without evicting the tenant. He has got the map sanctioned as is evident from Ex.PW-1/A and PW-1/B. He is in possession of sufficient funds, as per his statement. It has come in his statement that he has not got the maps approved from the Municipal Committee. It is not the requirement of law that the maps have to be got approved before the petition is filed seeking eviction of the tenant for the purpose of building and rebuilding. The version of PW-3 has been supported by PW-2 Charanjit Rai. He has also deposed that Shiva Hotel is behind the disputed shop. According to him, 3-4 feet wide passage is available, but the customers face difficulties in reaching the hotel. He has categorically testified that there is no house between Hotel Shiva and disputed premises. RW-4 has also deposed that the landlord has not got the maps of Hotel Shiva approved from 1979 to 1987. In case the landlord has not got the map approved, he was to be proceeded in accordance with law. RW-5 has given the 11 details of two passages. RW-6 has also deposed that two passages are available. According to RW-6, between hotel and tenanted premises, there are two other residential houses. 19. According to the landlord, Hotel Shiva can be linked with the main road if the ramp is permitted to be raised as per drawings. In Ex.PW-1/B, there is a reference to ramp though khasra number is not mentioned. Ex.PW-1/A and PW-1/B have been duly proved by PW-1. It is evident from the tatima placed on record by the landlord that Jaura building adjoins the Hotel Shiva. Jaura building is situated over khasra Nos. 1672, 1673, 1674, 1675, 1671 and 1670. Hotel Shiva is situated at the back side of Jaura building and adjoins it through khasra Nos. 1670 and 1671 as per tatima. The house of Sansar Chand Mahajan is situated over khasra No. 1703. Even according to the reply filed by the tenant to the additional affidavit only, the portion of house of Sansar Chand touches the portion of Jaura building at the back side. According to the sketch placed on record, i.e. Annexure ‘E’, there are two proposals. The first proposal, according to the landlord, is more beneficial and the second proposal will be more expensive. It is evident from Annexure ‘PE’ that no building will come in the way if the 12 Jaura building is connected with Hotel Shiva as per proposal ‘A’ of Annexure ‘PE’. The tenant has also relied upon the report filed by one Sh. Anuj Lakhan Pal registered with Council of Architects. The only reason assigned by Sh. Anuj Lakhan Pal about the proposal is that it is not feasible mainly due to fall in the level. 20. It is for the landlord how he maintains and keeps his property. The Rent Controller has given undue weightage to the statement of RW-6, who has deposed that there are houses between Hotel Shiva and Joura building. There is only one building of Sansar Chand and only portion of this building touches the Joura building. The Rent Controller has also given undue weightage to the earlier petitions filed by the landlord. These petitions were filed for the recovery of rent and on the ground of sub- letting. The ground of eviction for building and rebuilding was a new ground and the landlord was within his right to institute the same. It is for the landlord to see how the hotel constructed by him, which is behind the Jaura building, was to be made profitable. There is variance in the statements made by the witnesses with regard to width of the road. According to few witnesses, the width of passage is 2-2 ½ feet and according to other witnesses it is 4-5 feet. The Jaura building is situated on the main 13 road, Kotwali Bazar. The Court can take judicial notice of the fact that in case the reception of the hostel is on the main road and is connected with the ramp, the hotel will get more business. Carrying material for the construction of the hotel through narrow links and to provide passage to the hotel is entirely different. The customers, who have to come to the hotel, would like a direct approach to the hotel through reception. It is for the landlord to see how to put his property to the maximum use. It is also clear from the photographs that only the portion of Sansar Chand building touches the Jaura building and Shiva Hotel. The Rent Controller has given undue importance to the fact that the landlord has only chosen to evict the tenant. It was for the landlord to decide where the ramp was to be raised for connecting the hotel. It is always open to the landlord to get the maps approved from the Municipal Council, Dharamshala. The Appellate Authority has not discussed the evidence at length. According to the Appellate Authority, since the landlord has not got the maps approved from the Municipal Council and he was not in possession of sufficient funds, the petition was not maintainable for building and rebuilding. It is now well settled that it is not necessary for the landlord that he has to get the building plan sanctioned or that he should be in 14 possession of sufficient funds. Now-a-days, a person can take loan either from the banks or corporations for construction purposes. Moreover, these are only relevant factors but not the determinative factors. 21. Their Lordships of the Hon’ble Supreme Court in Metalware and Company etc. versus Bansilal Sarma and Company etc. (1979) 3 SCC 398 while interpreting section 14 (1) (b) of the Tamil Nadu Buildings (Lease and Rent Control Act , 1960 have held that the Rent Controller is required to take into account all the surrounding circumstances including not merely the factors of the landlord being possessed of sufficient means or funds to undertake the project and steps taken by him in that regard but also the existing condition of the building, its age and situation and possibility or otherwise of its being put to a more profitable use after reconstruction. Their Lordships have further held that if the building happens to be decrepit or dilapidated it will readily make the bona fide requirement of the landlord, though that by itself in the absence of any means being possessed by the landlord would not be sufficient. Their Lordships have held as under: “6. As stated earlier it cannot be disputed that the phrase used in S. 14 (1) (b) of the Act is 'the building is bona fide required by the landlord' for the immediate purpose of demolition and reconstruction and the same clearly refers to the bona fide requirement of the landlord it is also true 15 that the requirement in terms is not that the building should need immediate demolition and reconstruction. But we fail to appreciate how the state or condition of the building and the extent to which it could stand without immediate demolition and reconstruction in future would be a totally irrelevant factor while determining "the bona fide requirement of the landlord". If the Rent Controller has to be satisfied about the bona fide requirement of the landlord which must mean genuineness of his claim in that behalf the Rent Controller will have to take into account all the surrounding circumstances including not merely the factors of the landlord being possessed of sufficient means or funds to under take the project and steps taken by him in that regard but also the existing condition of the building, its age and situation and possibility or otherwise of its being put to a more profitable use after reconstruction. All these factors being relevant must enter the verdict of the Rent Controller on the question of the bona fide requirement of the landlord under S. 14 (1) (b). In a sense if the building happens to be decrepit or dilapidated it will readily make for the bona fide requirement of the landlord, though that by itself in the absence of any means being possessed by the landlord would not be sufficient. Conversely a landlord being possessed of sufficient means to under take the project of demolition and reconstruction by itself may not be sufficient to establish his bona fide requirement if the building happens to be a very recent construction in a perfectly sound condition and its situation may prevent its being put to a more profitable use after reconstruction. In any case these latter factors may cast a serious doubt on the landlord's bona fide requirement. It is, therefore, clear to us that the age and condition of the building would certainly be a relevant factor which will have to be taken into account while pronouncing upon the bona fide requirement of the landlord under S. 14 (1) (b) of the Act and the same cannot be ignored. 16 7. We would like to observe that each side has adopted an extreme stand on the question at issue which is obviously incorrect. On the one hand counsel for the appellant urged that the words 'bona fide required' refer to the condition of the building and not to the honest or bona fide intention entertained by the landlord to undertake demolition and reconstruction, suggesting thereby that the condition of the building should be a decisive factor while counsel for the respondent on the other hand contended that that aspect was totally irrelevant and the bona fide requirement of the landlord should be determined on the basis of factors such as the financial capacity of the landlord to undertake the project and whether he had taken any steps in that behalf etc. We do not agree that old age and dilapidated condition of the building is a sine qua non or a decisive factor for eviction under S. 14 (1) (b) nor is it possible to accept the view that the said circumstances in totally irrelevant in pronouncing upon the bona fide requirement of the landlord. We are clearly of the view that the age and existing condition of the building - whether it is a recent construction or very old and whether it is in a good and sound condition or has become decrepit or dilapidated - are relevant factors forming part of 'all the circumstances' that having to be considered while determining the bona fide requirement of the landlord under S. 14 (1) (b) of the Act and in the totality of the circumstances these factors may assume lesser or greater significance depending upon whether in the scheme of the concerned enactment there is or there is not a provision for reinduction of the evicted tenant into the new construction. Such a view would be in accord with the main objective of the benign legislation enacted with the avowed intention of giving protection to the tenant.” 22. In P.ORR and sons (P) Limited versus Associated Publishers (Madras) Limited, (1991) 1 SCC 17 301, their Lordships of the Hon’ble Supreme Court have held that the Tamil Nadu Buildings (Lease and Rent Control Act, 1960 does not accept the requirement by the landlord as a bona fide requirement within the meaning of the provision unless the condition of the building, in the context of the relevant circumstances, requires demolition. Their Lordships have held as under: “30. We accordingly hold that S. 14(l)(b) is satisfied only if the building is bona fide required by the landlord for the "immediate", i.e., direct, sole and timely purpose of demolishing it with a view to erecting a new building on the site of the existing building. Various circumstances such as the capacity of the landlord, the size of the existing building, the demand for additional space, the condition of the place, the economic advantage and other factors justifying investment of capital on reconstruction may be taken into account by the concerned authority in considering an application for recovery; but the essential and overriding consideration which, in the general interests of the public and for the protection of the tenants from unreasonable eviction, the legislature has in mind is the condition of the building that demands timely demolition by reason of the extent of damage to its structure making it uneconomical or unsafe to undertake repairs. While the condition of the building by itself may not necessarily establish the bona fide requirement under clause (b), that condition is not only one of the various circumstances which may be taken into account by the Controller, but it is the essential condition in the absence of which it would not be possible for the land-lord to prove that he