HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CR No.: 308 of 2000 Reserved on: 12.12.2008 Decided on: 29.12.2008 Nand Kishore Bansal ………petitioner. Versus Mohd. Idrish and another ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? For the petitioner: Mr.Bimal Gupta, Advocate. For the respondents: Mr.Sanjeev Kuthiala, Advocate. V.K. Ahuja, J: This is a civil revision under Section 24(5) of the H.P. Urban Rent Control Act, 1987 filed by the petitioner/landlord against the judgment, dated 13.7.2000, passed by the learned Appellate Authority (II), Sirmaur at Nahan, affirming the judgment, dated 3.7.1999, passed by the learned Rent Controller (II), Nahan, on the grounds of arrears of rent and dismissing the petition on other grounds. Briefly stated the facts of the case are that the petitioner as Landlord filed a petition for eviction of the respondents/tenants under Section 14 of the H.P. Urban Rent Control Act (hereinafter referred to as the Act). The premises in ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? - 2 - question were shop No.12, ward No.1, Mohalla Katcha Tank, Nahan. It was alleged that the premises were let out for running a shop to the respondent as single and joint tenancy but presently only respondent No.1 is in occupation of the shop since respondent No.2 has shifted to Chandigarh and the monthly rent was Rs.350/- per month w.e.f. 1.11.1987, which was increased to Rs.400/- after one year. The eviction of the respondents was sought on the ground that they have carried out additions and alternations in the premises without the consent of the petitioner which has resulted in closing the door of the rear wall of the shop and which was being used as access to backyard part of the shop, which is vacant land of the petitioner. It was alleged that there is no other passage through which the petitioner can have an access to the vacant part of the land comprised in Khasra No.367. It was also pleaded that the building is required bona fide by the petitioner for the purpose of making substantial additions and alterations. It was alleged that the petitioner wants to build accommodation in the rear portion of the shop and also add one storey on the shop which cannot be undertaken without reopening the doors in the rear portion, which have been closed by the respondents and the proposed accommodation cannot be built without the premises being vacated. The petitioner alleged that he has got the building plan approved form the Municipal Committee as well as from the Town and Country Planning Department. He alleged that the petitioner is presently living alongwith his family and his mother and he has been compelled to make other arrangements by his mother. In reply, the respondents denied that the agreed rent was increased to Rs.400/- per month. It was pleaded that the premises in question are non- - 3 - residential and cannot be claimed for own bona fide occupation by the petitioner. It was also submitted that the nature of the premises cannot be changed without the prior permission of the Rent Controller and the petitioner was having sufficient and suitable residential accommodation in Nahan Town which was in the name of his wife. It was denied that there was any passage in the rear portion and that the proposed construction cannot be carried out without the premises being vacated. On the pleadings of the parties, the following issues were settled by the learned trial Court: 1. Whether the respondents are in arrears of rent as alleged? If so, its effect? OPP 2. Whether the premises in dispute are required bona fide by the petitioner for the purpose of making substantial additions and alterations as alleged? OPP 3. Whether the respondents have closed access to the backyard part of the vacant land of the petitioner, if so its effect? OPP 4. Relief. The parties led their evidence and the learned Rent Controller, vide its impugned judgment, ordered the eviction of the respondents on the ground of arrears of rent and Issues No.2 and 3 were decided against the petitioner that the premises are required bona fide for making substantial additions and alterations or that the respondents have closed the access to the part of portion of the vacant land of the petitioner On appeal, those findings were affirmed by the learned Appellate Court, but the respondent was held entitled to be not evicted from the shop in question in case he deposited the arrears of rent alongwith interest etc. - 4 - A revision was preferred by the petitioner against the judgment of the learned Appellate Authority and the same was dismissed by this Court holding that the petitioner cannot be termed as a person aggrieved by the order since the ejectment order was passed against the tenant and in favour of the landlord only on one ground i.e. non-payment of rent. The petition was accordingly dismissed being not maintainable vide judgment dated 12.12.2002. However, the Apex Court in appeal presented before it, set aside the order passed by this Court on 16.1.2004, holding that the petition was maintainable and it was directed that it be decided afresh on merits. This is how the petition is before this Court for disposal. I have heard the learned counsel for the parties and have gone through the record of the case. In so far as the question of arrears of rent is concerned, the point is not in dispute since, as has been submitted during the course of arguments, the same have been deposited by the respondent in accordance with the order. The findings of the learned trial Court on two other issues, firstly in regard to closure of the door under issue No.3 and in regard to additions and alterations under issue No.2, have been challenged by the learned counsel for the petitioner, during the course of arguments. In regard to issue No.3 that the door in the rear portion of the shop leading to the vacant land belonging to the petitioner was closed by the respondents, a perusal of the petition shows that it was alleged by the petitioner in para 17 as under: “From the shop, there was a door at the rear of the room, to go to the back yard portion of the petitioner which was closed by the - 5 - Respondents without the consent of the Petitioner and stealthily the respondents have constructed shelfs in its place.” In reply to these assertions made in the petition, the respondents in para 10 of the reply submitted that at the time of letting out, there was no door, instead the petitioner used to go in the back portion through the adjacent vacant property of one Nauna. It was denied that the door was closed by the respondents or that they constructed the shelf in its place. However, it was pleaded that the premises are being used in the same state as these were occupied by the respondents. A perusal of the record of the case shows that the findings under issue No.3 were given by the learned trial Court alongwith the findings under issues No.1 and 2, though these issues were required to be discussed separately for better appreciation of evidence. The learned trial Court observed that there is no sufficient evidence on record to come to the conclusion that the respondents have closed access to the backyard part of the vacant land of the petitioner. It was observed that the bare allegation of the petitioner in this respect is not of much relevance. This is in all what was observed by the learned trial Court, in regard to the findings under issue No.3. However, the learned Appellate Authority formulated this point and discussed the evidence in para 22 of its judgment. It was observed that in para 18(a)(I), the petitioner had alleged that additions and alterations done by the respondents have resulted in closing of the door at the rear wall. However, in paragraph 18(a)(III) of the petition, he has asserted that building process at the rear of the shop can only be undertaken by reopening the doors in the rear portion of the shop, which the respondents have - 6 - closed without the consent of the petitioner. Thus, the Appellate Authority had observed that even the petitioner himself is not sure if there was one door or two doors which were allegedly closed by the respondents. PW-2 Nand Kishore has stated that the door was inside the shop in question and no other specific evidence was led on record to prove the existence of the door or doors, the closure of the same by the respondents and putting of the shelves on that portion. It also looks surprising that the landlord will rent out the shop to the respondents and will have a door as an access to the back portion of the shop, which was vacant space, since it will cause hindrance to the use of the shop by the tenants/respondents. There appears to be substance in the plea of the respondents that the landlord was going to that vacant portion through the adjoining land and the said access could only be permissive with the consent of the adjoining land owners. Respondent as RW-1 had denied that there was any door or it has been closed by him or he has constructed any shelves. Keeping in view the above evidence and discussion, I am of the view that the findings recorded by both the courts below under Issue No.3 as against the petitioner that he has failed to prove that any doors were there or the same were closed by the respondents are liable to be affirmed which are affirmed accordingly. The only question left for consideration is in regard to Issue No.2. The assertions were made in this regard in paragraph 18(a)(III) that the building is required bonafidely for the purpose of making substantial additions and alterations. It was alleged that the petitioner wants to build accommodation in the rear portion of the shop and also wants to add one storey on the shop as - 7 - well as on the portion to be built in the rear of the shop for his own bona fide occupation. It was also alleged that the petitioner can neither build at the rear portion nor add new storey on the existing shop as well as on the accommodation to be built at the rear portion without the passage and the proposed accommodation, which cannot be built without the premises being vacated. The fact that the petitioner has some open space on the back portion of the shop was not disputed by the respondents, but they have pleaded that there was no access to the back portion through the shop and the petition has not been filed bona fidely for the purpose of rebuilding, but it has been filed for making substantial additions and alterations for his own bona fide occupation. It is clear from the assertions made in the petition that the vacation of the shop has not been sought mainly on the ground for reconstruction so that the back portion of the shop can be used by the petitioner. However, it has been mentioned that it is required bona fide for making substantial additions and alterations and further it was alleged that the premises are required to add one storey to the shop and to build portion in the rear of the shop for his own bona fide occupation. In my view, the petitioner himself is not sure as to whether he wants to raise construction on the back portion for his bona fide use or he only wants the shop to be vacated for the purpose of making substantial additions and alterations. Before I refer to the facts of the case or the evidence led in this regard, I may make a reference to the decisions relied upon by the learned counsel for both the parties. - 8 - The learned counsel for the petitioner had relied upon the decision in P.S. Pareed Kaka and others versus Shaeee Ahmed Sahed, (2004) 5 Supreme Court Cases 241, which shows that the building in which the landlord was currently residing was in a unhygienic location and the schedule premises was 100 years old requiring demolition, portions of which had already collapsed. It was held on facts that there was sufficient cause for the landlord to shift his residence to the schedule premises, demolish and reconstruct it and then reside there. The above decision does not apply to the facts of the present case, as it was based upon the facts of that case. The decision in Kempaiah versus Lingaiah and others, (2001) 8 Supreme Court Cases 718, relied upon by the learned counsel for the petitioner, shows that the bona fide requirement of landlord must be more than a mere wish or impulse or desire on the part of the landlord. The landlord had sought the eviction of a number of tenants in order to convert the entire premises into one portion for the use of his own large family. It was held on facts that the appellant/landlord had failed to establish that his requirement was reasonable and bona fide. This decision rather goes against the petitioner and does not help him. The decision in Shaw Wallace & Co. Ltd. versus Govindas Purushothamdas and another, (2001) 3 Supreme Court Cases 445, shows that the revisional powers vested in the High Court under the provisions of Rent Control Act are wider than Section 115 of the Code of Civil Procedure. The Provisions of T.N. Rent Act were considered by their Lordships and the - 9 - observations made in para 13 of the judgment are relevant which are being reproduced below: “On a plain reading of Section 25 of the Act, it is clear that the revisional jurisdiction vested in the High Court under that section is wider than Section 115 of the Code of Civil Procedure. The High Court is entitled to satisfy itself as to the regularity of the proceeding, of the correctness, legality or propriety of any decision or order passed therein and if, on examination, it appears to the High Court that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, it may pass such orders accordingly.” The decision in Jagat Pal Dhawan versus Kahan Singh (dead) by LRs. and others, (2003) 1 Supreme Court Cases 191, shows that where tenanted building which was located in a busy commercial locality. The landlord had received sanction for his building plans, had sufficient funds and wished to demolish the 100-year-old suit building to construct a more spacious three-storey structure. It was held on facts that the High Court erred in dismissing appellant landlord’s appeal. The decision in Sanjay Thakur versus Smt.Asha Devi and others, Latest HLJ 2006 (HP) 679, shows that it was observed that the present structure is hundred years old, it is necessary to re-build the Hotel and the shop in question to be vacated and the Hotel building could not be constructed unless the shop is vacated. It was held that it cannot be said that the shop in dispute is not bona fide required for the purpose of reconstruction/re-building of the Hotel premises as approved by the competent Authority. The respondent-tenant was directed to hand over the vacant possession of tenanted shop. It was also observed in para 11 of the said judgment that the fact that demolition and reconstruction would result in modernization, making additional space available - 10 - and/or would augment the earning of the landlord are relevant factors for determination of bona fide requirement for demolition and reconstruction. The decisions in Prem Chand alias Prem Nath versus Shanta Prabhakar (Smt.), (1998) 1 Supreme Court Cases 274, shows that it was held that condition of the building is not a vital factor for consideration in ordering eviction on the ground of bona fide requirement for building, rebuilding, additions or alterations. On the other hand, the learned counsel for the respondent had placed reliance upon the decision in Kumari Pushpa Chauhan versus Shreedhar Sharma, Latest HLJ 2006 (HP) 981, wherein the tenanted premises were required by the landlord and on facts, it was held that the need of the landlord is not bona fide for setting up a veterinary clinic since he had retired from service. It was also held that the revisional powers of the High Court under Section 24(5) of the H.P. Urban Rent Control Act were wider than the revisional powers under Section 115 of the Code of Civil Procedure. The decision in Yamin versus Jai Kishore, AIR 1991 HP 22, shows that it was observed in para 7 of the judgment as under: “Where the existing shop in dispute is in good shape and the proposed new construction can be done even without vacating the shop, the claim of the landlord for eviction of tenant on ground of reconstruction would not be considered to be bona fide and genuine.” The decision in Smt.Dakhanu versus Hem Raj and others, 1990(1) Sim. L.C. 42, shows that the bona fide claim of the landlord was established since the premises were held to be old and in dilapidated condition. The landlord - 11 - intended to construct new building and had got the plan sanctioned and there was also the proof of sufficient financial resources. Coming to the facts of the present case, it is clear that the petitioner alleged that he wants to make additions and alterations and also alleged that he wants to construct a building on the vacant space for his own bona fide occupation. However, to my mind, the petitioner has not been able to prove either of the two facts for the reasons given herewith. There is no question of additions and alterations to the building in question since the construction sought to be raised is on the vacant space behind the shop of the respondents and not at the same space on which the shop exists, though it was alleged that one storey is sought to be added on the shop also, apart from the construction to be raised in the vacant space. It was also alleged that the petitioner wants to build in the rear of the shop for his bona fide occupation and it was for the petitioner to prove that he was not having sufficient accommodation in Nahan Town, how much will be required for him and for his family and how much construction can be raised on the back portion, which is a vacant space owned by him. In his statement as PW-2, the petitioner has simply stated that he wants to raise construction on the back portion and on the upper storey, but he cannot go to this portion since the passage has been closed by the respondents. He only alleged that his mother had been asking him to make arrangements for his own occupation but neither the mother of the petitioner has been examined nor any other evidence has been led to prove as to how much accommodation was in his possession and how much construction can be raised for residential purpose in the vacant space. He further stated that his bona fide requirement is - 12 - for himself, which cannot be fulfilled without vacating the shop in question. In case the site plan got approved by him from the Municipal Committee and Town and Country Planning Department Ext.PW-1/B and Ext.PW-1/E are also closely seen, there is nothing to show as to the approach to the vacant space over which the construction is sought to be raised. The petitioner’s assertions in the petition as well as in his own statement are for having an access through the doors in question on the rear portion of the shop and it is a common knowledge that in case the petitioner uses the rear portion of the shop through the doors for going to the back portion over which construction is sought to be raised, the respondents will not be able to use the shop since they will be at the beck and call of the petitioner to open the shop for him to have an access to the back portion. This cannot be permitted in any way since the respondents are entitled to use the property rented out to them and the petitioner should have proposed the construction in this manner that the approach to the back portion should have been either through the front portion of the shop by constructing a stair- case or by constructing a stair-case on the side of the shop, which would have necessitated the petitioner to get the shop vacated and use a part of it for having an access to the back portion. His insistence all along of going through the shop in question only leads to the inference that he is bent upon to get the premises vacated. The bona fide requirement of the landlord, to my mind, mainly can be on two grounds – firstly to have the premises vacated for bona fide residential accommodation required by him and secondly, for rebuilding the property to put it to more profitable use by raising a modern structure and the assertions made - 13 - by the petitioner are not on any of these lines. There is no specific ground given in the H.P. Urban Rent Control Act for the landlord to get the premises vacated for having an access to the back portion owned by him without making any provision for reconstruction in the manner in which the tenant will be given accommodation on the same terms and conditions. A perusal of the record also shows that this Court had also appointed a Commissioner to visit the spot and submit his report and the said Architect Commissioner submitted his report to the court which has been attached with the file. In his report, the Commissioner had observed that it is not possible to reach the first floor of the existing shop without going through the shop itself and, therefore, a stair-case has been proposed through the shop to reach the first floor. The area of the stair-case has been mentioned as 72.5 cm wider and this should have been suggested by the petitioner himself, but he never suggested the construction of the stair-case in this manner. It was also observed by the Commissioner, so appointed, in his report that the shop adjoining the premises under reference is in possession of other person and it will not be possible for the landlord to reach the first floor of the existing shop without going through the shop itself. It was observed by the Commissioner also that in the sanctioned building plan, the stair-case to the top floor has been provided at the rear of the shop, thus disturbing the whole shop. A reference was also made to the question that it has to be considered if the present bye- laws of the Municipal Council permitted construction for use of first and second floor for residential purposes since the areas and the dimensions of the rooms will not be as per the bye-laws. - 14 - This Commissioner was appointed by this Court for better appreciation of the claim of both the parties and for better appreciation of the evidence and suffice to say that it does not substantiate the case of the petitioner in any manner. He was a disinterested person appointed by the Court and his report cannot be taken either in favour of one party or against the other party, but had to be considered for better appreciation of evidence and to my mind, the question remains the same that unless and until proper provision was made for the construction of the stairs for having an access to the back portion, no construction was possible, but the petitioner was insisting in his petition as well as