CR No.4054 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.4054 of 2011 (O&M) Date of decision: 19.12.2011 Ramesh Gupta ......Petitioner(s) Versus Ashok Kumar Jain ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Avnish Mittal, Advocate for the petitioner. Mr. Akshay Bhan, Advocate for the respondent. Rakesh Kumar Garg, J. This is tenant's revision petition challenging the impugned order of eviction dated 19.11.2010 of the Rent Controller, Hoshiarpur ordering his eviction from the demised premises and also the judgment dated 12.5.2011 of the Appellate Authority dismissing his appeal against the aforesaid order of eviction. Shorn of unnecessary details, it is suffice to say that eviction of the petitioner has been ordered from the demised premises on the ground that the same is required by the respondent-landlord for his personal use and occupation. The bona fide need as set by the respondent-landlord in the ejectment petition reads thus: “That the applicant bonafide requires the premises in dispute for his personal use and occupation. The applicant along with his son, daughter-in-law and wife have started doing business by forming a private company on 11.10.2004 under the name and style of Lords Carbon (P) Ltd. The applicant is the Managing CR No.4054 of 2011 (O&M) 2 Director of the company. The company has its manufacturing unit at village Mehangarwal, tehsil and district Hoshiarpur. The Head Office of the company is at Hoshiarpur in Bhagya Tara outside Garhi Gate, Hoshiarpur. The applicant for the time being has set up the Head Office of his company in his drawing room. The applicant requires the property in dispute for making his office in the shop in dispute and also the adjoining shop for setting up his accounts department and placing samples of the goods to be sold. In the office there will only be the cabin of Managing Director and the Directors of the Company and the second shop will be needed for the sitting of accountant and placing of records and samples of the company to be put to sale and for showing the same to the customers. Presently, due to lack of availability of property accommodation, applicants' business is suffering and not developing at required pace. Otherwise too it is convenient for the applicant to have the Head Office in the city. Daily bank transaction are to be conducted and the customers cannot afford to go to factory place which is at a distance of about 10 kms from Hoshiarpur city. The applicant is not having any other commercial building in his possession within the urban area of Hoshiarpur City nor the applicant ever occupied any such commercial building as tenant or owner within the urban area of Hoshiarpur City or vacated the same without reasonable cause after coming into force of the East Punjab Urban Rent Restriction Act. None of the Directors of the company is having any commercial premises within the urban area of Hoshiarpur City for being used as Head Office of the company nor they occupied or vacated any commercial building as owner or tenant at any point of time after coming into force of the East Punjab Urban Rent Restriction Act. The applicant has also filed an ejectment application against his other tenant Shri Raj Kumar, who is occupying the adjoining shop as tenant. The convenience of the CR No.4054 of 2011 (O&M) 3 customers of the applicant also require that the Head Office of the company should be within the city. Moreover the entire correspondence by the customers of the Lords Carbon (P) Ltd. is to be conducted at its Head Office. So the need of the applicant is most, genuine, urgent and bonafide for the purpose of its company.” The reply filed by the petitioner reads as under:- “That this sub-para is wrong and is denied. The petitioner does not require the demised premises for his own use and occupation. He has made up a totally false story in connivance with Suraj Kumar Jain. Both the petitioner and Suraj Kumar Jain are having so may commercial properties in their possession. They have intentionally not disclosed about the same. The petitioner is running the factory since long but the name of the factory is not known to the respondent nor he knows about its constitution of firms or company. There is also a factory of petitioner in village Thathlan. Tara Chand Jain was great grand father of petitioner and Bhagya Wati was his grandmother. The 18 other shops of Suraj Kumar Jain and petitioner within the Municipal limits of Hoshiarpur. Out of which four shops are still lying vacant. They have even created a family Trust of which the petitioner-Ashok Kumar Jain is one of the trustee. They are also having 7 other shops near choe bridge on old Hariana road, Hoshiarpur. Ashok Kumar Jain was having a tractor agency and was running the business in Gaushala Bazar, Hoshiapur. Ashok Kumar Jain was also partner in M/s Bansi Lal Suraj Kumar. It is absolutely wrong that the petitioner require the demised premises. He is already having sufficient commercial accommodation with him. The petitioner in Gaushala Bazar, Hoshiarpur used to run his tractor business and then in place thereof 18 shops were constructed and have recently been rented out. Not only this four shops are still lying vacant. The CR No.4054 of 2011 (O&M) 4 property on the backside of the demised premises and the adjoining shops is commercial property and the same is in possession of the petitioner. It is absolutely wrong that the petitioner is not having or he never occupied or vacated any commercial premises in Hoshiarpur. The petitioner is guilty of concealment of true and correct facts. There are no bonafides at all on the part of the petitioner. He is in collusion with his father and other family members have malafide manufactured and created false documents. The petitioner has made up a totally false story. The premises in dispute is not at all required by the petitioner for any alleged company. It is also wrong that none of the Directors have any commercial premises. The petitioner has not disclosed the names of all the Directors. The alleged need is neither genuine nor urgent or bonafide. The petitioner only want to harass the respondent in increase the rate of rent, for which the petitioner and his father had compelling since long.” After considering the evidence on record and hearing learned counsel for the parties, the Rent Controller, Hoshiarpur while ordering the eviction of the petitioner held as under: “At this stage I proceed to examine case law quoted by Mr. Sharma before me. I have gone through contents of rulings SALIM AHMED versus SURJIT KUMAR SAHAI – 1998(2) – RENT LAW REPORTER – 289 AND SRI KEMPAIAH versus LINGAIAH AND ORS- 2001(2) – RENT LAW REPORTER – 612. It is jotted down here that I am in respectful agreement with dictum laid in both these rulings and do agree with Mr. Sharma on the point that mere wish or the desire on the part of landlord to vacate the premises would not amount to bonafide requirement. In the light of these observations made by Honorable High Court and Honorable Apex Court, I proceed to examine record of this case. No doubt applicant admits that he was having in his possession a CR No.4054 of 2011 (O&M) 5 big hall, where he was running tractor agency of Eicher make. It has come in his statement that he had carried on that agency from 1998 to 2001 i.e. About 4 years earlier to filing of this application. It is true that applicant has not stated in his application any reason as to why he had vacated this hall where now 18 shops exist. Point to ponder is, whether this lapse on his part proves fatal to his case or not? Undisputedly applicant has got no concern with those shops, which are in the name of Bhagya Tara Charitable Trust Hoshiarpur, created in 1965. Applicant had closed business of tractor sale in the year 2001. At that time he had not started business of carbon manufacturing. Applicant had promoted the company, M/s Lords Carbons Private Limited in the year 2004 and got it registered on 11.10.2004 as is evident from document Ex.A5/A. It means in the year 2001 when he had vacated the hall, he had no idea of floating this company and in light of that eventuality it does not make any difference, if he had not mentioned in the application that aforesaid hall was vacated by him without any reason. All the witnesses examined by respondent admit that over that hall there is a janghghar and shops now constructed there over have been let out by the trust. Evidence of applicant shows that he has been able to establish the prima facie existence of his necessity and applicant is entitled to raise a presumption in law that his need is bonafide. Thereafter onus shifts to the tenant to establish otherwise. I draw support to my this view from the law laid down in Anil Kumar vs Harpal Siingh Banwait and another – 2008 (2) – Local Acts Reporter – 176 a judgment given by our own Honorable High Court. Now when evidence of respondent and his witnesses was examined minutely, I have not been able to lay my hand on any material to show that applicant has any other property where he can set up his office or he has sufficient office accommodation within the premises of the plaint of M/s CR No.4054 of 2011 (O&M) 6 Lords Carbons Pvt. Ltd, Mehangorwal. Admittedly Mehangorwal is situated at a distance of more than 10 kilometer from Hoshiarpur and it is a rural area. It is possible that customers of applicant might be facing problem to visit his plant, if any office is made there and by setting up an office in urban area, applicant will certainly be benefited in his business. From that angle his necessity is found to be bonafide. Overall analysis of the evidence brought on record by both the parties, make it clear that applicant is running a manufacturing unit of carbon under the name and style of M/s Lords Carbons Private Limited, at Mehangorwal (Hoshiarpur), which is a rural area. For promotion of his business setting up of the office in urban area is a genuine necessity. It has also come in evidence of the respondent and his witnesses that presently applicant is doing his office work in his drawing room. If at all applicant has an office within factory premises that does not mean that applicant has no necessity to set up office in urban area for facility of his clients. Respondents have not brought on record any evidence to prove that applicant has other accommodation where he can set up desired office. In the given set of circumstances, both these issues are decided in favour of applicant and against respondent by holding that there exists relationship of landlord and tenant between the parties and applicant requires the demised premises for his own bona fide use and occupation.” Aggrieved from the aforesaid order of eviction, the petitioner filed an appeal before the Appellate Authority which was also dismissed vide impugned judgment dated 12.5.2011. The relevant part of the judgment reads as follows: “In the considered opinion of the court in their cross examination the respondent witnesses RW1 to RW3 have virtually admitted the case of the petitioner Ashok Kumar. In this context reference is made to the CR No.4054 of 2011 (O&M) 7 following cross examination of respondent witnesses:- RW1 Jagan Nath has stated in his examination in chief itself that Bhagya Tara Trust has been constituted by Tara Chand Jain and his wife Bhagyawanti which is owner of number of commercial properties. In his cross examination RW1 Jagan Nath has stated that he has seen the house of the petitioner and the petitioner is residing on the first floor. RW1 Jagan Nath has testified that Ashok Kumar is owner of 27 shops in Hoshiarpur but he has not seen any document of title in the name of Ashok Kumar. He does not know as to when and from whom the shops were purchased. RW1 Jagan Nath states that petitioner is having his office in his drawing room. RW2 Ramesh Gupta has stated in his cross- examination as follows:- “It is true that in the year 1965 Tara Chand created a trust under the name of Bhagyatara Charitable Trust. It is true that when the trust was created a hall and Janj Ghar was constructed at the Gaushala Bazaar Hoshiarpur. That the trust is being run by Suraj Kumar and the shops at Gaushala Bazaar were constructed by the trust 5/6 years ago in the place of a big hall. That earlier to construction of the shops petitioner was running a tractor agency in the said place and that business was closed by him in the year 2002.” RW2 Ramesh Gupta has further stated that “it is true that there is hospital of the trust behind the shops of Hariana Raod. I can not say if the shops at old Hariana Road belongs to the trust namely Bhagwanti Tara Chand Memorial Trust which was created in the year 1983.” RW2 Ramesh Gupta further stated that “it is true that the house behind the shop in dispute was the ownership of Suraj Kumar and he gifted the same to his grand son and daughter-in-law. It is true that the front of the disputed shop faces towards the western side of CR No.4054 of 2011 (O&M) 8 the road. It is true that the gate of the above said house is in the southern side street.” RW2 Ramesh Gupta further states that “petitioner is running business of Carbon for the last 4/5 years. The accountants of the petitioner are doing the work of accounts in the portion behind the shop of Raj Kumar and myself. RW2 Ramesh Gupta further states that Mehangarwal is situated at a distance of 8/9 kilometer from Hoshiarpur. I can not say if the petitioner is not having any commercial property except the shop in dispute and two other shops in Hoshiarpur city. RW3 Mohinder Pal also admits in his cross examination that shops located at Gaushala Bazaar and at Hariana Road belong to the trust and not to petitioner Ashok Kumar. RW3 Mohinder Pal states in his cross examination that trust has got shops across the choe also. Except for the shops in Gaushala Bazaar and the choe Bhagyatara trust have no other shop. Ashok Kumar Jain is running Carbon factory for the last 8/10 years. It is true that the shops at Gaushala Bazaar are the ownership of Bhagyatara Charitable trust. RW3 Mohinder Pal further states that there are seven shops on Hariana road and all the shops alongwith the hospital are the ownership of Bhagyawanti Tara Chand Jain Memorial Trust. After perusal of the entire evidence adduced by both the parties especially on the basis of cross examination of respondent witnesses it has become crystal clear that none other but the respondent witnesses themselves admit that 18 shops located in Gaushala Bazaar, seven shops located on Hariana Road and some other shops located across the choe are the ownership of Bhagyawanti Tara Chand Jain Memorial trust. These are not the ownership of petitioner Ashok Kumar. Except the shops mentioned above the respondents have failed to point out any other commercial property or shop which is ownership of Ashok Kumar Jain. As such the court is of considered CR No.4054 of 2011 (O&M) 9 opinion that the allegations of appellant/tenant Ramesh Gupta that the petitioner Ashok Kumar owns a number of commercial properties and shops which are lying vacant has remained unproved on the record. Except the three shops at Gaushala Bazaar petitioner Ashok Kumar Jain does not own any other shops or commercial establishments in the Municipal Jurisdiction of Hoshiarpur town. As such it is held that the petitioner Ashok Kumar Jain has got bonafide requirement of the shop in dispute to set up his office. Therefore, appellant/tenant Ramesh Gupta is liable to be ejected from the disputed shop. As such the findings of the learned Rent Controller dated 19.11.10 are perfectly legal and valid and do not call for any interference in the appeal.” Still not satisfied, the tenant-petitioner has filed the instant revision petition before this Court challenging the orders/judgments of the Authorities below. On 7.7.2011, after noticing the contentions raised by the learned counsel for the petitioner, this Court passed the following order:- “Counsel for the petitioner contends that the petitioner has failed to plead and prove the ingredients of Section 13(3)(b) and (c ) of the East Punjab Urban Rent Restriction Act, 1949. It is his further contention that it has been established on record that the respondent has vacated the premises which was in his possession without any sufficient reason after commencement of the Act. Notice of motion for 10.08.2011. Dispossession of the petitioner is stayed till further orders.” Upon notice, the respondent-landlord put in appearance through his counsel. Record of the Authorities below was also summoned. During the course of hearing, learned counsel appearing on behalf of the CR No.4054 of 2011 (O&M) 10 petitioner could not dispute that all the necessary ingredients as required under Section 13(3)(a)((i)(a)(b)(c) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 'Act') were pleaded by the respondent-landlord and while stepping into the witness box, the respondent-landlord supported his version as pleaded. However, according to the learned counsel for the petitioner-tenant, the Authorities below have failed to consider that actually respondent-landlord was having in his possession a big hall in the area known as Gaushala Bazar, Hoshiarpur where he used to run a tractor agency and it was vacated but the respondent, has not given any reason for leaving possession of that big hall despite the fact that it was more suitable to set up his office in that hall. Not only this, the respondent-landlord was also having six shops more, which are alleged to be transferred to Bhagwanti Tara Chand Jain Memorial Trust. Since there was no sale deed or transfer deed qua the same in favour of said Trust and immovable property cannot be transferred to Trust or anybody else without registered instrument thus, he could not seek eviction of the petitioner from the demised premises as respondent was having so many commercial properties in the urban area, as Section 13(3)(a)(i)(c) of the East Punjab Urban Rent Restriction Act, 1949 stipulates a condition on the landlord that he may apply for eviction only if he has not vacated such a building without sufficient cause after the commencement of the Act. Elaborating his argument further learned counsel for the petitioner has referred to cross-examination of AW-6 Ashok Kumar (i.e the respondent-landlord) wherein he has admitted that some of the shops of property of Gaushala Bazar were lying vacant and also the fact that the shops about 6 in number situated at Old Hariana road near Cho bridge were of his ownership. Moreover, the respondent has admitted in his CR No.4054 of 2011 (O&M) 11 cross-examination that he had transferred the shops situated at Hariana road to Trust and keeping in view the aforesaid admission and the fact that in the absence of any document of transfer of these shops, alleged to have been transferred to the Trust, such transaction is only illegal and sham. Thus, having failed to prove the necessary ingredients of Section 13(3)(c) of the Act, the ejectment petition was liable to fail and the impugned orders are liable to be set aside. Learned counsel appearing on behalf of the respondent- landlord has refuted the arguments of the learned counsel appearing on behalf of the petitioner. Replying to the arguments raised, Sh. Akshay Bhan, learned counsel appearing on behalf of the respondent has referred to admission of the petitioner himself, who has appeared as RW-2 before the Court. Learned counsel has referred to the statement of the petitioner and his witnesses where it has been admitted that the shops across the choe are the ownership of Bhagwanti Tara Chand Jain Memorial Trust and are not the ownership of the respondent. Learned counsel has further argued that the respondent-landlord has fully explained the fact that there were sufficient reasons for vacating the big hall at Gaushala Bazar as the tractor agency being run by him was admittedly closed in the year 2001 whereas the instant petition has been filed in the year 2005 and thus, it cannot be said that the need of the respondent-landlord was not genuine and bona fide. I have heard the learned counsel for the parties and have perused the impugned judgments and the record. The pith and substance of the argument raised on behalf of the petitioner-tenant is that the respondent-landlord does not fulfill the conditions of Section 13(3)(a)(i)(c) of the Act as he had vacated a big hall in Gaushala Bazar after the commencement of the Act in the said urban CR No.4054 of 2011 (O&M) 12 area without sufficient cause and that the landlord was having sufficient accommodation i.e. Six shops across the choe at this disposal and has concealed the availability of the aforesaid shops and in view of the aforesaid fact, the petitioner was not liable to be evicted from the demised premises. On the other hand, the defence taken by the respondent is that the demised shop along with the adjoining shop is required by him for setting up his office for which no other commercial building is available to him and the shops located at Gaushala Bazar and on Hariana Road, near choe belongs to the Trust created by the forefathers of the respondent- landlord and there was no other shop available to him except the one in dispute and therefore, the argument raised on behalf of the petitioner is without any merit and liable to be rejected. It may be noticed that the respondent-landlord while appearing as AW-6 has testified that he had set up a private company under the name Lords Carbon Private Limited with a manufacturing unit at village Mehangarwal and the head office of the company had set up in his drawing room and he requires the shop in question for making an office for the said Company. So far as requirement of the respondent of the shop in dispute for his personal use and occupation i.e. For setting up his office for the aforesaid Company is not disputed. What is disputed is that the respondent owns a number of commercial properties and shops at Hoshiarpur and many of these shops are lying vacant. It has also been argued that the gift deed in favour of the respondent-landlord is a sham transaction and has been created to get the shops vacated in collusion with his father Suraj Kumar Jain. At this stage, it may be noticed that it has been fully proved on record that Suraj Kumar Jain, father of the respondent-landlord executed a CR No.4054 of 2011 (O&M) 13 gift deed dated 18.6.2002 in his favour and according to which Ashok Kumar Jain-respondent was gifted three shops. The aforesaid gift deeds stand proved on record in accordance with law. There is nothing on record to controvert the aforesaid evidence on record of the case. Even otherwise before this court, relationship of landlord and tenant between the parties is not disputed. According to the petitioner, four shops out of the shops constructed in Gaushala Bazar are lying vacant and the same can be used by him for setting up his office. However, at this stage, it is necessary to point out that RW-1 Jagan Nath has admitted that though he has stated in his testimony that the respondent owns 27 shops in Hoshiarpur, however, he has not seen any document of title of said shops in the name of the respondent. He also