IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No.:32/2010 Reserved on: 21.7.2011 Decided on: 09.12. 2011 _____________________________________________ 1. Bimla Goel wife of late Sh. Uttam Chand Goel, r/o Belmount House, Lower Jakhu, Shimla-1 2. Dinesh Goel son of late Sh. Uttam Chand Goel, r/o Belmount House, Lower Jakhu, Shimla-1 3. Satish Goel son of of late Sh. Uttam Chand Goel, r/o Belmount House, Lower Jakhu, Shimla-1 4. Sandeep Goel son of late Sh. Uttam Chand Goel, r/o Belmount House, Lower Jakhu, Shimla-1. …Petitioners. Versus Satpal Sharma s/o Sita Ram Sharma, r/o 13/2 Subzi Mandi, Shimla, H.P. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioners : Mr. Suneet Goel, Advocate. For the Respondent: Mr. Ajay Kumar, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This revision petition is directed against the judgment dated 5.3.2010 of the learned Appellate Authority rendered in Rent Appeal No. 62-S/14 of 2009. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 2. Material facts necessary for the adjudication of this petition are that the respondent-landlord (hereinafter referred to as ‘landlord’ for convenience sake) filed a petition, under section 14 of the H.P. Urban Rent Control Act, 1987 against the petitioners-tenants (hereinafter referred to as ‘tenants’ for convenience sake). Landlord is owner of building No.31, Alley No.7, Middle Bazaar, Shimla. The tenants are in accommodation of three rooms, one bath room and one verandah in the first floor on annual rent of ` 4,800/-. The eviction of the tenants has been sought on the ground that the suit premises has become unsafe and unfit for human habitation. It has outlived its life, material used has decayed, cracks have appeared in the walls, floors have sagged and the entire building is in a dilapidated condition. The building is made of Dhajji walls and wooden frame structure. The building was inspected by the expert. The tenants have been requested several times to vacate the premises but in vain. The eviction has also been sought on the ground that the entire building, including premises under tenancy and occupancy of the tenants is bona fide required by the landlord for the purpose of building/rebuilding, which could not be carried out without the same being vacated by the tenants. The entire building was required to be pulled down to raise RCC structure. The building is situated in commercial area. The landlord has sufficient funds to raise construction. The eviction has also been sought on the grounds that the tenants 3 have changed the user of the premises from residential to non-residential without the consent of the landlord. The tenants have started storing raw material. 3. The petition was resisted by the tenants. According to the tenants, the building has not outlived its utility. The petition has been filed to coerce the tenants to enhance the rent. The reconstruction of the premises is not possible without approval and sanction from the competent authorities. The building falls in heritage zone and core area. It is denied that the building is 100 years old or cracks have appeared in the walls. It is denied that the material used has worn out or that the building is in dilapidated condition. It is also denied that the floors of the building have started sagging or that the load bearing walls have developed cracks. It is also denied that the building is bona fide required by the landlord for rebuilding and reconstruction. 4. Rejoinder was filed by the landlord. Issues were framed by the Rent Controller on 19.3.2008. Rent Controller ordered the eviction of the tenants on the ground that the suit premises in possession of the tenants have become unsafe and unfit for human habitation. The eviction of the tenants was also ordered on the ground that the suit premises were bona fide required by the landlord for building/rebuilding, which could not be carried out without getting the premises vacated by the tenants The tenants were directed to handover vacant possession of the suit premises to the landlord 4 forthwith. Rent Controller has rejected the case of the landlord as far as eviction was sought on the ground that the tenants have changed the user of the premises from residential to non-residential. The tenants feeling aggrieved by the order passed by the Rent Controller filed an appeal before the Appellate Authority, Fast Track Court, Shimla. The Appellate Authority rejected the same on 5.3.2010. Hence, the present revision petition. 5. Mr. Suneet Goel has strenuously argued that the landlord has failed to prove that the premises were unsafe and unfit for human habitation. He then argued that the findings recorded by both the courts below that the premises were required bona fide by the landlord for building/rebuilding is also contrary to the evidence placed on record. He also argued that the landlord has not got the maps approved from the competent authority and was not in possession of sufficient funds. 6. Mr. Ajay Kumar has supported the orders passed by the learned Rent Controller and the judgment passed by the Appellate Authority. 7. I have heard the learned counsel for the parties and have gone through the records meticulously. 8. Landlord has appeared as PW-1. He has proved location plan Ex.AW-1/A. According to him, the building is more than 100 years old. It is made of Dhajji walls. The building has developed cracks. The entire building is in 5 dilapidated condition. It has become unsafe and unfit for human habitation. He had sought the expert opinion from PW-3 Vivek Karol. He has proved photographs Ex.AW-1/B to Ex.AW-1/U. He further stated that the building has outlived its life and he intends to rebuild the same by raising RCC structure for which the vacation of the suit premises is necessary. The building plans have been approved by the M.C. Shimla. He had sufficient funds to raise the construction. He has proved on record F.D.R. Ex.AW-1/V and National Saving certificates Ex.AW-1/V-1 to V-3. He has denied the suggestion that the rent petition has been filed to coerce the tenants to enhance the rent. He has denied that the suit premises fall in heritage zone but deposed that the same is in core area where the construction and reconstruction has not been banned. He has denied the suggestion that the building is not more than 100 years old. 9. PW-2 Yashwant Singh of A.P. Branch, M.C. Shimla has testified that the building plan for reconstruction has been sent by M.C. Shimla to State Town Planner, Shimla for approval on 4.3.2008. He has proved on record Ex.PW- 2/A. He has stated that initially the building plan was rejected but later on the same was approved by the M.C. Shimla and sent to the State Town Planner. 10. PW-3 Vivek Karol has inspected the suit premises. He has proved report Ex.PW-3/A. According to 6 him, the building was dilapidated. The same could not be reconstructed without the same being vacated. 11. Tenant Dinesh Goel while appearing as RW-1 has deposed that the landlord had been pressurizing the tenants to raise rent. The building is in good condition. The floors, roofs, windows and doors are intact. The walls have been plastered with cement. He had sought the opinion of RW-4 Shiv Saran Dass Vaish. According to him, the building falls in core area. The reconstruction of the building was not possible being completely banned. Only repairs were possible. M.C. had no authority to pass the map as it can only be approved by the Cabinet. The suit premises were not required for building and rebuilding bona fide by the landlord. 12. RW-2 Suresh Kumar and RW-3 Gian Chand have supported the version of RW-1. RW-2 has admitted that photographs Ex.AW-1/B to AW-1/U are the photographs of the building. He has admitted that the condition of the building was bad as per photographs. 13. RW-4 Shiv Saran Dass Vaish has proved report Ex.RW-4/A. He has shown his ignorance about the photographs Ex.AW-1/B to AW-1/U. He has stated that the building was not made of Dhajji walls. He has also admitted that the building was more than 100 years old. 14. The plaintiff has placed on record Ex.AW-1/V F.D.R. He has also proved on record national saving certificates Ex.AW-1/V-1 to AW-1/V-3. It establishes that the 7 landlord is in possession of sufficient funds to reconstruct the building. 15. What emerges from the oral as well as documentary evidence led by the parties is that the building is 100 years old. It is in dilapidated condition. The walls have developed cracks. It is made of Dhajji walls. The floors have sagged. The M.C. Shimla has also issued notice Ex.PX. The Statement of PW-1 is duly corroborated by PW-3. It is also established from report Ex.AW-3/A that the condition of the building is precarious. It poses danger to the life and property of the occupant as well as passersby. According to the report Ex.PW-3/A also the building has gone out of plumb, cracks have sagged and wood has decayed and has outlived its life. The condition of the building is also apparent from photographs Ex.AW-1/B to AW-1/U. RW-2 has admitted that the photographs Ex.AW-1/B to AW-1/U are of the suit premises. It has come in the statement of PW-2 Yashwant Singh that the building plans were sent for approval on 4.3.2008. According to him, initially the building plan was rejected, however, later on the same has been approved by M.C. Shimla and sent to the State Government for approval. RW-4 has stated that the building was not made of Dhajji walls but RW-1 has admitted that the building was made of Dhajji walls. RW-4 technical expert has also admitted that the building is 100 years old. Building material has become old and has decayed. RW-1 has admitted that the value of the 8 property will increase if the same is constructed/reconstructed. He has admitted that the land beneath the building belongs to landlord. Consequently, the landlord has duly proved that the building has become unsafe and unfit for human habitation. The premises are required bona fide for building/rebuilding which can not be carried out without the same being vacated by the tenants. The findings recorded by both the authorities below are based on correct appreciation of oral as well as documentary evidence. 16. 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: 9 “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 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. 7. We would like to observe that each side has adopted an extreme stand on the question at issue which is obviously 10 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.” 17. In P.ORR and sons (P) Limited versus Associated Publishers (Madras) Limited, (1991) 1 SCC 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 11 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 has a bona fide requirement which is timely, directly and solely for the purpose of demolition of the building. The Act 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. These are matters which are to be proved by evidence.” 18. It will be apt at this stage to refer to section 14 (b) of the Tamil Nadu Buildings (Lease and Rent Control Act, 1960, which reads thus: “14 (b)- that the building is bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is 12 to be made for the purpose of erecting a new building on the site of the building sought to be demolished.” 19. Section 14 (b) of the Tamil Nadu Buildings (Lease and Rent Control Act, 1960 is not pari materia with section 14 (3) (c) of the Himachal Pradesh Urban Rent Control Act, 1987. Section 14 (3) (c) of the Himachal Pradesh Urban Rent Control Act, 1987 reads thus: “14 (3) (c)- in the case of any building or rented land, if he requires it to carry out any building work at the instance or the Government or local authority or any Improvement Trust under some improvement or development scheme or if it has become unsafe or unfit for human habitation or is required bonafide by him for carrying out repairs which can not be carried out without the building or rented land being vacated or that the building or rented land is required bonafide by him for the purpose of building or re-building or making these to any substantial additions, or alterations and that such building or re-building or addition or alteration can not be carried out without the building or rented land being vacated.” 20. Their Lordships of the Hon’ble Supreme Court in Shyamlal Agarwal versus Ratanlal Malviya (dead) by LRs, 1991 Supp. (2) SCC 449 had the occasion to construe section 12 (1) (h) of M.P. Accommodation Control Act, 1961. Section 12 (1) (h) of the Act permits eviction of tenant from any accommodation on the ground that the accommodation is required bona fide by the landlord for the purpose of building or rebuilding or making therein any substantial addition or alteration. The language employed in section 12 (1) (h) of the M.P. Accommodation Control Act, 1961 is more akin to the phraseology employed in section 14 (3) (c) of the Himachal 13 Pradesh Urban Rent Control Act, 1987. Their Lordships after interpreting section 12 (1) (h) have held that the building should be in a dilapidated condition requiring repair or demolition was not a statutory requirement. Their Lordships have further held that there is no statutory requirement that while considering the bona fide need of the landlord for reconstruction of the accommodation the building must necessarily be in a dilapidated condition requiring repair without demolition. However, their Lordships have held that even in the absence of such a provision dilapidated or otherwise, condition of the building would be one of the relevant circumstance while considering the bona fide of the landlord under section 12 (1) (h) of the Act although that could not be a decisive circumstance in determining the question of bona fide need. Their Lordships have held as under: “3. Learned counsel for the appellant urged that the High Court has failed to record any finding that the shop in dispute was in dilapidated condition or that, it required reconstruction, in the absence of such a finding the landlord' & bona fide need could not be upheld. He placed reliance on a number of decisions but since none of them relate to interpretation of S. 12(1)(h) of the Madhya Pradesh Accommodation Control Act, 1961, it is not necessary to refer to those decisions. S. 12(1)(h) of the Act permits eviction of tenant from any accommodation on the-ground that the accommodation is required bona fide by the landlord for there purpose of building or rebuilding or making therein any substantial, addition or alteration. There is no statutory requirement that while, considering the bona fide need of the land-lord for reconstruction of the accommodation the building must necessarily be in a dilapidated condition requiring repair. or demolition. Unlike other Rent Control 14 Laws the Madhya Pradesh Accommodation Act does not expressly provide for any such condition. But even in the absence of such a provision dilapidated or otherwise, condition of the building would be one of the relevant circumstance while considering the bona fide need of the landlord under S. 12(1)(h) of the Act, although that could not be a decisive circumstance in determining the question of bona fide need. Bona fide requirement of the landlord under S. 12(1)(h) may include many relevant factors i.e. the need of the landlord to put the building for better use to obtain higher income, the condition of the building, shortage of accommodation and necessity of having larger accommodation. the capacity of the landlord to rebuild the accommodation, his financial resources etc. All these factors are relevant for the purposes of determining tile question whether the accommodation is required bona fide by the landlord for the purpose of rebuilding the accommodation.” 21. Their Lordships of the Hon’ble Supreme Court in Vijay Singh and others versus Vijayalakshmi Ammal, (1996) 6 SCC 475 had again the occasion to consider section 14 (1) (b) of the Tamil Nadu Rent Control Act. Their Lordships have culled out the following principles: “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 for from the sole object only to get rid of the tenants; (2) 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 15 along with other factors and then a