IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. C.R. No. 92/2004 Reserved on : January 8, 2010 Date of Decision : February 24, 2010 Col. Som Dutt Sharma …Petitioner Versus: Sham Lal …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Dushyant Dadwal, Advocate. For the respondent : Mr. Karan Singh Kanwar, Advocate. Sanjay Karol, J. The petitioner, who is the landlord has filed the present revision petition under Section 16(8) read with Section 24(5) of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the Act), assailing the order passed by the Rent Controller, Shimla in Case No. 166/2 of 1997 titled as Col. Som Dutt Sharma vs. Sham Lal. Petitioner is aggrieved of the fact that his petition filed under Section 15(2) of the Act, seeking eviction of the respondent-tenant stands dismissed. The eviction petition filed on 20.10.1997 was initially decided by the Rent Controller on 29.6.1999. The tenant was directed to hand over the vacant possession of the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 demised premises. The tenant filed Civil Revision No. 216 of 1999, titled as Sham Lal vs. Co. Som Dutt Sharma and vide order dated 14.8.2001, this Court set aside the order of eviction and remanded the matter to the Rent Controller for consideration afresh after framing issues and affording opportunity of hearing to the parties. Pursuant to the order passed by this Court, the Rent Controller considered the matter afresh and after fully complying with the prescribed procedure and affording opportunity to the parties dismissed the petition in terms of the impugned order. The demised premises comprises of two rooms, one kitchen, one bathroom commonly known as Set No. 104, Ground Floor, Kanwar Niwas, Chhota Shimla-2 (hereinafter referred to as the demised premises). The same was initially owned by Dr. Roshan Lal Kanwar (hereinafter referred to as the “seller”). Respondent Sh. Sham Lal (hereinafter referred to as the tenant) was occupying the same as a tenant. They were purchased by the present petitioner, Col. Som Dutt Sharma (hereinafter referred to as the landlord) on 21.8.1997. The tenant was informed about the same vide Registered letter dated 3.9.1997 (Ext.PW-3/A). Since the landlord who was serving as a Colonel in the Indian Army was to retire on 15.5.1998, vide notice dated 4.9.1997 (Ext.PW-1/C), he called upon the tenant to vacate the demised premises. The tenant neither respond to the same nor handed over vacant 3 possession of the demised premises, hence on 20.10.1997, the landlord filed a petition for eviction under Section 15(2) of the Act. The ground for eviction, as pleaded by the landlord is reproduced as under:- “That the premises in the tenancy of the respondent (tenant), is bonafide required by the petitioner, for his own use and occupation and for the use and occupation of his family members which consists of his wife, two major sons (one of whom is doing law, in Shimla) and his aged mother (who is dependant on him, for the purpose of residence etc.). That the petitioner is the Specified Landlord, as defined in Section 2(i) of the Himachal Pradesh Urban Rent Control Act, 1987. He is at present staying and occupying the Govt. allotted accommodation, in Knollswood Lodge (Upper Floor), Chhotta Shimla. He is posted as a Colonel in the Army, stationed at Shimla and is retiring from the Army on 15.5.1998 and has to vacate the said allotted accommodation, on his retirement. He purchased the premises in question, from its previous Owner Dr. Roshan Lal Kanwar on 21st August, 1997, vide Sale Deed, duly registered in the office of Sub Registrar, Shimla and became entitled to receive rent from 21st August, 1997. He has to vacate the Govt. allotted accommodation, on his retirement on 15.5.1998 as such, his need and requirement to occupy the premises in question (in the tenancy of the respondent), is bonafide, as he wants to settle, in Shimla, after his retirement. That he is filling the requisite certificate, of his retirement, from the Army and also the requisite affidavit, to the effect that he or his spouse (wife), does not own and possess, any other suitable accommodation within 4 the urban area of Shimla, as he wants to reside in Shimla after his retirement.” The tenant opposed the petition inter alia denying the landlord to be a “specified landlord” within the meaning of Section 2(i) of the Act. In effect he pleaded the petition, filed at the instance of the seller, to be proxy litigation. The transaction showing the transfer of the demised premises by the seller to the landlord in effect is a sham transaction. The seller was pressurizing the tenant to increase the rent from Rs.200/- to Rs.300/- and then to Rs.600/-, which illegal demands were not acceded to. The seller wanted to evict the tenant by hook or by crook. Such intention is manifest from the fact that the water/electricity supply to the demised premises was disconnected and also access was blocked by stacking stones in front of the building. It is further pleaded that in any event, the demised premises are not befitting the standard and the status of the landlord, who having retired as a Colonel from the Indian Army would not be in a position to occupy the same along with his family. Based on the pleadings of the parties, on 24.12.2001, the Rent Controller framed the following issues:- 1. Whether the demised premises are required bonafide by the petitioner for his own use and occupation and that of his family as alleged? ….OPP 2. Whether this petition is not maintainable? …OPR 3. Relief. 5 Opportunity to lead evidence was afforded to the parties. The landlord examined himself as PW-1, Shri Suresh Chand Sharma (PW-2), Jr. Assistant from the office of the Sub-Registrar, Shimla and the seller Dr. Roshan Lal (PW-3). In rebuttal the tenant examined himself as RW-1, Shri Bhawani Dutt Sharma (RW-2) and Shri Ramesh Kumar (RW-3). The Rent Controller decided issue No.1 against the landlord and issue No.2 against the tenant. While deciding issue No.1, the Rent Controller held the sale transaction dated 21.8.1997 entered into between the landlord and the seller to be sham for the reason that (i) sale consideration of Rs.82,000/- was paid in cash; (ii) the landlord did not furnish proof of having withdrawn the money from the bank; (iii) as provided under the Income Tax Act, no payment exceeding a sum of Rs.20,000/- could have been made in cash; (iv) the seller was in possession of other vacant accommodation which could have been conveniently purchased by the landlord; (v) water and electricity supply to the demised premises was dishonestly disconnected by the seller who had wanted to get the rent enhanced to Rs.1000/-. Since the tenant did not accede to his demands, petition for eviction was filed with malafide intention; (vi) the petition was filed within a short span of three months from the date of sale. Heard learned counsel for the parties and also perused the record. 6 I am of the considered view that the findings returned by the Rent Controller are perverse and are as a result of complete misreading and mis-appreciation of the provisions of Law and material on record. It has resulted into serious miscarriage of justice. Hence interference by this Court is warranted. The demised premises were sold to the petitioner in terms of registered Sale Deed dated 21.8.1997 (Ext.PW-1/A). The document stands duly proved by PW-2. In terms thereof, parties agreed the payment to be made by the landlord to the seller at the time of registration of the Sale Deed before the Sub-Registrar (U), Shimla. The Sale Deed further records the following endorsement made by the Sub-Registrar himself: “21.8.1997 The consideration amount of Rs.82000/- has been paid to the seller in cash in my presence today.” Plan Ext.PW-2/B duly proved on record indicates that the entire house belonging to the seller was built on Khasra No.168/A at Mauja Khalini, Shimla-1. It is a double storeyed house with a basement. The entire first floor and half portion of the ground floor is in possession of the seller and the other half portion on the ground floor is under the occupation of the tenant. This stands sold to the landlord. Total area is approx. 38.33 sq.mtrs. Both the landlord (PW-1) and the seller (PW-3) stepped in to the witness box and proved payment and receipt 7 of a sum of Rs.82,000/- at the time of registration of the Sale Deed. The sale deed was registered before the Sub Registrar and carries his endorsement of payment made to the seller. There is material on record indicating that pursuant to the sale transaction Ext.PW-1/A, the Municipal Corporation, Shimla had initiated proceedings for assessment of house tax in the name of the landlord. Registered deed of sale carries presumption that the transaction is genuine. The execution of the sale deed having been proved in accordance with law, the onus lies on the tenant to prove the fact that the document had actually not been executed or that it was a sham transaction. (Vimal Chand Ghevarchand Jain & Ors. vs. Ramakant Eknath Jadoo, (2009) 5 SCC 713). Importantly, the seller sent a letter dated 3.9.1997 (Ext.PW-3/A) to the tenant, informing him about the sale and asking him to pay a sum of Rs.7664/- as arrears of rent @Rs.300/- per month, w.e.f. 1.10.1995 upto 20.8.1997. The same was received by the tenant (acknowledgement card Ext.PW-3/C) and duly acknowledged by him vide letter dated 12.9.1997 (Ext.PW-3/D) wherein he stated as under:- “To Dr. Roshan Lal Kanwar, Kanwar Niwas, Morley Bank Estate, Nigam Vihar, Shimla -171002. Dear Sir, 8 With reference to your registered letter No. Nil dated 3.9.1997, I am enclosing a cheque No. 302681 for an amount of Rs. Seven thousand six hundred sixty four (Rs.76664.00) on account of rent w.e.f. 1.10.95 to 20.8.97 alongwith pending water charges i.e. Rs.243 and interest amounting to Rs.621.00 only. Please acknowledge receipt. Yours faithfully, Sd/- (Shaym Bansal)” Importantly, the tenant did not make out any grievance about the transaction being sham or being either harassed or pressurized to enhance the rent and/or evict the premises. Except for the tenant’s bald oral statement (RW-1) there is nothing on record to prove that the sale transaction is sham. The sale consideration was not a substantial amount. The landlord who was to retire as a Colonel from the Army has categorically deposed that he maintained a bank account and prior to the registration of the sale deed had withdrawn the amount from the bank. The provision of the Income Tax Act does not render the transaction made in cash to be void. Except for a bald assertion made by RW-1, there is nothing on record to prove that at the time of registration of the Sale Deed the seller was in possession of vacant accommodation (five sets) which could have been purchased by 9 the landlord. Even this statement of his is extremely vague and unspecific. No particulars as to when and by whom the alleged accommodation was vacated and possession handed over to the seller has been furnished. His statement in any event is falsified by his own admission that the entire building owned by the seller is double storeyed. From the statement of RW-3, it is evident that the entire first floor is being utilized by him as his residence and half portion on the ground floor in his possession is being utilized by him as his clinic. He is a Veterinary doctor. The other half portion on the ground floor is in possession of the respondent-tenant. The accommodation in the basement, even if in possession of the seller, undisputedly cannot be utilized for the purpose of a residence. Further except for the bald statement of RW-1, there is nothing on record to prove that the seller had been pressurizing the tenant to enhance the rent and/or vacate the demised premises. RW-1 has admitted being in possession of the demised premises as a tenant of the seller since 1976. With regard to the amount of rent paid by the tenant, there is variation in his statement. He has deposed that since inception the rent was Rs.250/- which was later on enhanced to Rs.300/- and further enhancement of a sum of Rs.1000/- was demanded. However, in the reply it has been pleaded that the initial rent of Rs. 200/- was enhanced to Rs.300/- and there was a further demand for enhancement to Rs.600/- per month. Be that as it may be, there is nothing on record to even show, 10 much less prove that any demand for enhancement of rent was made by the seller. The respondent had an opportunity and occasion to bring the said fact on record while replying to the letter Ext.PW-2/D and legal notice Ext.PW-3/A. It was not done so. Hence it cannot be said that any demand for enhancement of rent was made by the seller. With regard to the disconnection of water and electricity supply again the tenant has failed to bring on record any material to prove as to when, how and by whom the same was disconnected or restored. What was the nature of the proceedings, if any, initiated by the tenant has not been brought on record. In terms of letter (Ext.PW-3/A), the seller (PW-3) had asked the tenant to make his own arrangement of water and electricity w.e.f. 21.8.1997. It is in this background that the water and electricity supply to the demised premises was disconnected by the seller. This is evident from his statement. There is nothing to show that the disconnection was prior to the sale transaction. Hence, it cannot be said that the amenities were discontinued by the seller with the motive of harassing the tenant and pressurizing him to either enhance the rent or vacate the demised premises. Therefore it cannot be said that the sale transaction entered into between the landlord and the seller is sham and in effect a paper transaction. The findings to the contrary returned by the Rent Controller are set-aside/reversed. The 11 petitioner is the owner and the landlord of the demised premises. Section 15(2) of the Act reads as under: “Where a specified landlord, at any time within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the appointed day whichever is later, applies to the Controller, along with a certificate from the authority competent to remove him from service indicating the date of his retirement and his affidavit to the effect that he or his spouse does not own and possess any other suitable accommodation in the local area in which he intends to reside or to start his own business, to recover possession of one residential building for his own occupation, there shall accrue, on and from the date of such application to such specified landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether expressed or implied), custom or usage to the contrary, a right to recover immediate possession of such residential building or any part or parts of such building if it is let out in part of parts……….” Specified landlord has been defined under Section 2(i) as under: “Specified landlord means a person who is entitled to receive rent in respect of a building on his own account and who is holding or has held an appointment in a public service or post in connection with the affairs of the Union or of a State.” 12 There is no bar in law for the landlord to have filed the eviction petition within a period of three months from the date of purchase of the demised premises. The landlord has a right in law to immediately get the tenant evicted from the suit premises. The landlord (PW-1) has categorically deposed that he has retired from the Army on 15.5.1998. He has placed on record an affidavit and deposed to the effect that both he and his wife do not own any other house in Shimla. He has also deposed that after his retirement he has chosen to settle in Shimla as there is an army hospital and has his acquaintances residing here. He has further deposed that his family consists of himself, his wife, one daughter, old mother and two sons. Both the sons are law graduates. One is working in Delhi and the other is practicing Law at Chandigarh. It cannot be disputed that the petitioner has retired as a Colonel from the Indian Army. Certificate of retirement Ext.PW-1/F to the said effect is on record. He is a specified landlord. It is evident that the petitioner has been able to prove that he fulfills all the ingredients required under the Act and is entitled to immediately recover the possession of the demised premises. It cannot be said that the landlord had filed the eviction petition in collusion and at the behest of the seller. Having done so the petitioner would have lost his lifetime 13 chance of recovering possession of any tenanted premises. Further there is nothing on record to show that the landlord and the seller are either relatives, close friends or business acquaintances. Except that both belong to District Hamirpur, there is nothing on record to prove a common connection between them. By no stretch of imagination can it be said that the petition is malafide. The Rent Controller has therefore seriously erred in holding to the contrary. The building is residential in nature. The demised premises may be small but then the petitioner has chosen to occupy and use the same as his residence after retirement. The landlord is the best judge of his requirement and suitability and the tenant cannot dictate to him the manner in which he should live. (Deep Chandra Juneja vs. Lajwanti Kathuria (dead) through LRs (2008) 8 SCC 497 and A. K. Jain vs. Prem Kapoor (2008) 8 SCC 593). The petitioner thus having proved that he is a specified landlord, he or his wife does not own or possess any other accommodation in Shimla in which he intends to reside, is entitled for eviction of the tenant from the demised premises as the same are bonafidely required by him for his own use and occupation of his family. For the aforesaid reasons, the present petition is allowed and the impugned order is set aside. The petitioner succeeds in his eviction petition and the respondent is directed to hand over the vacant possession of the demised premises as 14 shown in the site plan. The petitioner is entitled to costs quantified at Rs.5000/-. ( Sanjay Karol ), Judge. February 24, 2010. (rana)