IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Civil Revision No. 54 of 2002 Judgment Reserved on 27.7.2009 Date of decision July 31, 2009 __________________________________________________________ Kewal Mahajan ….Petitioner Versus Mahesh Lal & others ….Respondents _________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the Petitioner : Shri K.D.Sood, Advocate. For the Respondents : Shri Bhupinder Gupta, Sr. Advocate With Shri Neeraj Gupta, Advocate. __________________________________________________________ Dev Darshan Sud, J. This is the tenant’s revision petition against the judgment of the learned Appellate Authority affirming the judgment and order of the learned Rent Controller ordering the eviction of the petitioner/tenant from the suit premises. The landlords-respondents filed the petition (out of which present proceedings arise) for eviction of the petitioners on the grounds of rebuilding/reconstruction which, it was pleaded, was not possible without vacating the suit premises and that the tenant-petitioner had materially impaired the value and utility of the premises. The landlord invoked the provisions of Section 14 (2) (3) of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as “Act”). The facts pleaded were that the landlords were owners of the suit premises described as shop Nos. 3 and 4, Both Well Estate, Sanjauli road, Shimla- 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 6, which were let out to the petitioner-tenant for the purposes of running a shop, but later on he installed a printing press. The premises consist of two rooms with electric fittings and the rent was fixed at Rs. 720/- per annum. The grounds pleaded for eviction were (a) that the suit premises have been let out for the purposes of running a shop, but after taking possession, the petitioner without the written consent of the landlords converted the same into a printing press and installed a heavy machinery therein. The constant vibrations of this machinery had damaged the value and utility of the suit premises; (b) that the doors of the suit premises had been replaced by fixing shutters etc. which acts also amounted to impairment of the building; (c ) that the suit premises require additions, repairs, and alterations which could not be carried out without the building being vacated. The petition was resisted by the tenant on the preliminary objections that there was no relationship of landlord and tenant between the parties and the petitioners-respondents were not the owners of the premises. On merits, the tenant submitted that these were commercial premises, no damage has been caused and that requirements of the petitioners-landlords are not bonafide. The learned Rent Controller settled seven issues. The important issues for determination were issues No. 1 and 2 which related to adjudication of the fact as to whether the petitioner-tenant had materially impaired the value and utility of the premises by fixing heavy machinery etc., whether the premises were required bonafide by the respondents-landlords to carry out the additions and alterations etc. The third issue was with respect to the relationship of landlord and tenant. On the first issue the learned Rent Controller considered the evidence of PW1 Inder Singh who had testified that heavy machinery for printing work had been installed about 20-25 years prior to the institution of the petition. He also stated regarding the removal of wooden doors and fixing of iron shutters. 3 The learned Rent Controller held that this evidence could not be relied upon for holding that the petitioner-tenant had unauthorisedly converted the user of the premises by installing machinery for printing etc. and had caused material impairment/damage to the building/structure. On the second issue, the learned Rent Controller considered the evidence of PW1 Inder Singh Verma, RW1 Shri Balwant Rai Mahajan and RW2 Shri H.S. Bisht, retired Executive Engineer to hold that the case of the landlords for construction of one more floor was established and that this could not be carried out without vacating the building. The learned Court holds that basement of this building is not in habitable condition, the pillars of the basement were admittedly of brick without any plaster. He relies upon the report Ext.RW2/A prepared by Shri H.S. Bisht detailing that removing the walls will not be safe because in such a case there will be no support for the slab which would render the condition of the building dangerous. Ext.PW2/A was a report prepared by PW2 Lal Singh produced by the landlords as an expert witness. He is a Civil Engineer and affirms on oath that the existing pillars which are of bricks require to be replacement with RCC pillars and the walls and floor of the ground floor also require to be replaced with RCC slab, but the same is not possible without the building being vacated. After examination of both the reports, the learned Court holds that building is required bonafide for the purpose of construction, which cannot be carried out without the building being vacated. PW1 Inder Singh has proved adequacy and availability of funds and states that these are made available with him for the construction. The proof is in the nature of Fixed Deposit Receipts. The statement of accounts shows the availability of this money. On the question of relationship of landlord and tenant, the Court holds in favour of the respondents. To arrive at this conclusion a reference is made to the jamabandis 4 Ext.PW4/A, Ext.PX and Ext.PY, where the petitioners-landlords are recorded as co-owners of this property. Being aggrieved by the order of eviction, the tenant-petitioner preferred an appeal before the learned Appellate Authority, where same points as urged before the learned Rent Controller were reiterated. One of the points urged before the learned Appellate Authority was that petition was an abuse of the process of law as the landlords-petitioners had not approached the Court with clean hands and material facts had been concealed viz. (i) by an agreement Ext.R1 dated 13.11.1988, the landlord had assigned all his interest and title in favour of Shri Viri Chand Guleria son of Shri Mauni Ram Guleria and one Deepak Verma son of Shri Inder Singh Verma (Inder Singh Verma has appeared as PW1 in this case). The submission was that Ext.R1, which was an agreement to sell, does infact transfer the title in the entire property to these persons namely S/Shri Viri Chand Guleria and Deepak Verma as the entire sale consideration had been paid. Only a formal sale deed was to be executed. In these circumstances, it could not be said that the requirement was bonafide. Urging this point further, it was argued that it was proved that there was no relationship of landlord and tenant between the parties. The Court holds that one of the requirements was of re-construction which means that the requirement is not personal to the landlords, that is to say that in case of bonafide requirement for personal use and occupation, the requirement is personal but in case of the additions of the building, it is altogether a different and runs with the building. PW1 Inder Singh is the father of Deepak Verma who has proved the adequacy of funds and the bonafide requirement. One of the landlords Amrit Lal has appeared as PW4 whereas the tenant has not appeared in the witness box but his General Power of Attorney Shri Balwant Rai Mahajan (authorized vide Ext.RW1/A) has tried to negative the case set up by the petitioner. At this juncture, I may also 5 notice that an application under Order 22 Rule 10 readwith Section 151 of the Code of Civil Procedure was filed before the Appellate Court in which it was pleaded that an application for substitution of parties had been filed but was withdrawn because of the death of one of the proposed parties namely Shri V.S. Guleria and the present application had been filed with a prayer that the estate of deceased Shri Guleria has been inherited by his widow etc. This application was contested on merits. The Court by a detailed judgment disposed of this application and the necessary substitution was made After re-appreciation of the entire evidence on record, eviction of the petitioner was ordered. Learned counsel appearing for the petitioner contends that there is no relationship of landlord and tenant between the parties and that the petition as such is not bonafide, as litigation is being contested by proxy. Before adverting to this submission, I may note that tenant has not appeared in the witness box and there is no explanation forthcoming as to why he never appeared as witness in this case. This Court in Satya Devi Vs.M/s Ram Gopal Angania Ram & others, ILR 1986 HP Page 293 held “6. It iw well settled law that it is within the domain of the Rent Controller to find out if relationship of landlord and tenant exists between the parties arrayed before him and further that mere denial of such relationship would not oust his jurisdiction. At the same time, his is not the proper forum for determining the question of tile which has to be decided by a civil court. In other words, if Rent Controller is of the view that he cannot determine the question of relationship of landlord and tenant between the parties without deciding the question of title he can refer the parties to the civil court. In this connection, reference may be had to the law laid down in Om Parkash Gupta Vs. Dr. Rattan Singh and another, 1963 PLR 543, Ms. Kharati Ram Bansi Lal and others vs. Smt. Radha Rani and another, 1968 PLR 978 and Dev Raj and another vs. Sodhan Devi and others 1978 RCR 146.” 6 So far as the question of title is concerned, it would be for the Civil Court to determine it. However, I do not find any fault with the findings of the learned trial Court holding that the relationship of landlord and tenant stands established and for which purpose reference has been made to the documents showing the landlords to be co-owners of the property. On the other aspect of the matter, the submission made by the learned counsel appearing for the petitioner that infact by an agreement Ext.R1 title had passed cannot be accepted for the reason that title would pass on the registration of the sale deed and not merely by an agreement to sell. On other aspects, it is noticed that PW1 Inder Singh Verma father of the one of the co- owners Deepak Verma has appeared as a witness, but no question has been directed to him to show that litigation is being carried out as ‘benami’ (proxy litigation) or that the requirement is not bonafide. PW2 Lal Singh who is also an expert produced by the landlords establishes the case of the landlords that no re- construction etc. can be carried out without the building being vacated. Section 14 (2) (iii) (3) of the Act reads as under:- “(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, it satisfied— (iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land; or (3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:- (a) in the case of a residential building, if— Provided that he is not occupying another 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; or” 7 Another submission made by the learned counsel appearing for the petitioner is that the litigation should not be manipulative that is to say the ground for eviction being set up is mere a ruse for evicting the tenant and the requirement is not bonafide. PW2 Lal Singh in his report Ext.PW2/A has dealt with the condition of the building in detail and has stated in clear terms that no re- construction, addition, alteration is possible unless the pillars, on which the slab of the first floor is raised, are removed and instead RCC pillars are constructed. This also finds support from the evidence RW2 H.S. Bisht, the expert witness who was produced by the respondent. These findings of fact have been affirmed by both the Courts below and I cannot persuade myself to re-appreciate the evidence as I do not find any perversity in the conclusions arrived at by both the Courts below. The next contention raised by the learned counsel appearing for the petitioner is that there is insufficiency of funds with the landlords and in such a event no construction can be carried out. This submission cannot be accepted as it is negatived by the evidence of PW1 Inder Singh Verma, father of one of the landlords, who says that he has ample funds which are available with him for the purposes of reconstruction of the building. Learned counsel appearing for the petitioner has urged that since there is no sanctioned municipal plan which is proved on record of the case, the petition deserved to be dismissed. It is true that a valid building plan sanctioned by the Municipal Corporation/Statutory Authority is required before the construction can be carried out and the tenant cannot be dispossessed from the suit premises without this fact being established. The petitioner had stated in clear terms that plan had been submitted to the Municipal Corporation. Moreover, it is by now a notorious fact that litigation continues for a long period of time by 8 which period the sanction elapses. In the present case, the petition was instituted in the year 1993, and it has come up for arguments before this Court in the year 2009 i.e. after a period of 16 years. Nonetheless there is nothing on record to establish that bonafides on the part of the landlord are lacking. It is not as if the Court is helpless in such a situation. The interest of the tenant can be protected in execution proceedings if the eviction is made conditional on the production of a valid plan sanctioned by the statutory authority after complying the mandatory requirements of law. Learned counsel appearing for the petitioner relies upon a judgment of the Supreme Court in K.N. Ananthraja Gupta Vs. D. V. Usha Vijaykumar, 2008(1) Civil Court Cases 21 (S.C) to urge that before granting decree for vacating the suit premises, the Court must be satisfied that the suit premises is in dilapidated condition and it needs immediate demolition, the landlord has the capacity to reconstruct the premises after demolition, and the plan has to be sanctioned from the competent authority. The Supreme Court in that case examined the provisions of Section 27 (2) (r )of the Karnataka Rent Act. Learned counsel appearing for the respondents has placed reliance on judgment of the Supreme Court specifically dealing with the provisions of the Section 14 of the Himachal Act in Jagat Pal Dhawan Vs. Kahan Singh, 2003 (1) SLC 394. The Court held 5. The learned counsel for the appellant has submitted that none of the reasons assigned by the High Court or any of the Courts below could have been relevant to deny the relief prayed for by the landlord. Examined in the backdrop of the relevant material available on record including documents of undoubted veracity brought the notice of this Court the landlord has clearly made out a case for eviction under Section 13(3)(c ) of the Act and denial of eviction of the 9 respondent has occasioned failure of justice to the appellant. 9. So is the view taken in R.V. E. Ventakachala Gounder v. Venkatesha Gupta and others (2002) 4 SCC 437, and in Harrington House School v. S.M. Ispahani and another, (2002) 5 SCC 229. The fact that demolition and reconstruction would result in modernization, making additional space available and/or would augment the earning of the landlord are relevant factors for determining the bonafides of the requirement for demolition and reconstruction.” To similar effect is the judgment in Prem Chand alias Prem Nath Vs. Smt. Shanta Prabhakar 1997(2) RCR (Rent) 672 wherein the Court held that:- 8. A careful reading of the above Section will show that the Section contemplates different independent situations/circumstances enabling the landlord to apply for eviction of a tenant. Those different and independent situations/circumstances can be set out as follows:- “(i) When the tenanted premises are required by the landlord to carry out any building work at the instance of the Government or local authority or any Improvement Trust under some improvement or development scheme; or (ii) When the tenanted premises have become unsafe or unfit for human habitation or (iii) When the tenanted premises are required bonafide by the landlord for carrying out repairs which cannot be carried out without such tenanted premises being vacated; or (iv) When the tenanted premises are required bonafide by the landlord for purpose of building or rebuilding or making thereto any substantial additions or alterations and that such building or rebuilding or 10 addition or alteration cannot be carried out without the building or rented land being vacated.” 9. From the above analysis, it will be seen that the condition of the building is required to be considered when the application falls under the above mentioned Category (ii) Admittedly, the application for eviction in the present case falls under Category (iv) and there is no requirement in such cases to go into the condition of the building. It is true that this Court has held that the requirement of the condition of the building is a vital factor whether such requirement is specifically stated in the Section or not. It must be remembered that the decision of this Court was rendered while interpreting Section 14(1)(b) of the Tamil Nadu Act which is not in pari materia with the Himachal Pradesh Act. In other words, there are no different categories as set out above in the Tamil Nadu Act as in Himachal Pradesh Act.” Learned counsel also urged that it was not necessary that the building required immediate demolition because of its condition and referred to the decision of the Supreme Court in Vijay Singh Vs. Vijaya Lakshmi Ammal, (1996) 6 SCC 475 where the Court while the Court interpreting the provisions of Section 14(1)(b) of the Tamilnadu Rent Control Act held “10. On reading Section 14(1)(b) along with Section 16 it can be said that for eviction of a tenant on the ground of demolition of the building for erecting a new building, the building need not be dilapidated or dangerous for human habitation. If that was the requirement there is no occasion to put a condition to demolish within a specified time, and to erect a new building on the same site. Sub/section (1) of Section 16 contemplates that permission has been granted by the Rent Controller under Section 14(1)(b) for demolition of 11 the building, but if such demolition is not carried out in terms of the order and undertaking, then the Rent Controller can order the landlord to put the tenant in possession of the building on the original terms and conditions. If the building is dangerous and dilapidated requiring immediate demolition for safety, then there is no question of the Rent Controller directing the landlord to put the tenant in possession of such building on the original terms and conditions, on account of the failure of the landlord to commence the demolition within the period prescribed. Similarly, there was no occasion to link the demolition of such building with erection of new building and then to give the landlord freedom from the restrictive provisions of the Act for a period of five years from the date on which the construction of such new building is completed and notified to the local authorities concerned. In this background, it has to be held that neither of the extreme position taken by the respondent or the appellants can be accepted. Permission under Section 14(1)(b) cannot be granted by the Rent Controller on mere asking of the landlord, that he proposes to immediately demolish the building in question to erect a new building. At the same time it is difficult to accept the stand of the appellants that the building must be dilapidated and dangerous, unfit for human habitation. For granting permission under Section 14(1)(b) the Rent Controller is expected to consider all relevant materials for recording a finding whether the requirement of the landlord for demolition of the building and erection of a new building on the same site is bonafide or not. For recording a finding that requirement for demolition was bonafide, the Rent Controller has to take into account : (1) bonafide intention of the landlord far from the sole object only to get rid of the tenants; (2) 12 the age and condition of the building; (3) the financial position of the landlord to demolish and erect a new building according to the statutory requirements of the Act. These are some of the illustrative factors which have to be taken into consideration before an order is passed under Section 14(1) (b). No court can fix any limit in respect of the age and condition of the building. That factor has to be taken into consideration along with other factors and then a conclusion one way or the other has to be arrived at by the Rent Controller.” The provisions in the Himachal Act are in-pari-materia with the Act as aforesaid. I do not find any merit on the submissions made by the learned counsel appearing for the petitioner. Having held that the requirement of landlords is bonafide, this petition is dismissed and the order of eviction of both the Courts below is affirmed. However, it is directed that the petitioner herein shall not be evicted from the premises in dispute unless it is proved to the satisfaction of the Executing Court that there is a valid sanctioned building plan. The Executing Court shall also ensure the compliance of all statutory requirements for rebuilding, additions, alterations/repairs before ordering dispossession of the petitioner herein. This petition is accordingly dismissed with the directions as given above. There shall be no order as to costs. July 31, 2009 (Dev Darshan Sud), (ms) Judge