CR No.251 of 2009 1 IN THE HIGH OF PUNJAB AND HARYANA AT CHANDIGARH CR No.251 of 2009 (O&M) Date of Decision: 08.7.2010 M/s Paper Pac. & Ors. ..Petitioners Vs. Ramesh Mangal & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Ashok Aggarwal, Sr. Advocate, with Mr.Alok Jain, Advocate, for the petitioner. Mr.Arun Palli, Sr.Advocate, with Mr.Namit Gautam & Mr.KVS Kang, Advocates, for respondents No.1 to 4. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. This judgment shall dispose of CR Nos.251 & 252 of 2009 titled M/s Paper Pac. & Ors. Vs. Ramesh Mangal & Ors., and M/s United CR No.251 of 2009 2 Knitters & Ors. Vs. Ramesh Mangal & Ors., as common questions of law and facts are involved in both these revision petitions. For the sake of brevity, facts are being taken from CR No.251 of 2009. This is tenants' revision against the order of eviction passed by the learned Rent Controller as affirmed by the learned Appellate Authority ordering eviction of the petitioners on the ground of impairing value and utility of the building and on the ground of personal necessity. The respondents/landlords filed a petition under section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short the Act) for ejectment of the petitioners herein from the property shown red in site plan attached with the eviction petition forming part of property No.B.XXIII. 845 (old) and 2467 (new) plot No.264, Industrial Area-A, Ludhiana. Ayudhya Parshad Mangal son of Lala Babu Ram, was owner of the tenanted premises. It was the case of the landlord that during his lifetime both Ayudhya Parshad and his wife Sushila Devi were the landlords of the property who had let out the premises in dispute measuring 1195 square yards to the petitioners through Bhagirath Chaudhary, its partner. A registered lease deed dated 8.12.1984 was duly executed and the rate of rent settled for the building was Rs.2200/- (Rupees two thousand and two hundred only) per month starting w.e.f. 1.1.1985. House tax was to be paid by the landlord and the period of lease was fixed as 15 years. The rent was agreed to be paid every month. The case set up was that the tenants were not entitled to effect any changes which would affect the building materially. CR No.251 of 2009 3 However, constructions, alterations, additions and repairs which were necessary for enjoyment of the premises were permitted to be carried out by the tenant at its own costs. Electricity bills, sewerage bills and water bills were to be paid by the tenants and it was agreed, that after the expiry of 15 years, vacant possession of the property was to be handed over to the landlord and superstructure raised by the tenants was not to be removed by them. Case further set up was that after some time the petitioners prevailed upon Shri Ayudhya Parshad and obtained another portion on rent measuring approximately 342 square yards which was marked ABCD in the site plan and also shown red consisting of one hall, two rooms, etc. and the total rent, therefore, was fixed to be Rs.6000/- (Rupees six thousand only) per month which was paid up to 31.3.2002.The case set up by the landlord was that Shri Ayudhya Parshad died on 9.1.1991 leaving behind a registered will dated 9.10.1975 bequeathing his property to Smt. Sushila Devi, his wife, without any right to alienate, mortgage, sell or gift the property. It was stipulated in the Will that after her death all the four sons of the couple shall be the owners of the property left by Ayudhya Parshad. After the death of Shri Ayudhya Parshad Mangal, Smt.Sushila Devi started receiving the rent from the tenants till 31.3.2002. The case of the landlords/respondents further was, that after the death of Smt.Sushila Devi, all the four petitioners in the rent petition became owners of the property and thus, the petitioners herein became tenants of the petitioners in the rent petition, therefore, there exists the CR No.251 of 2009 4 relationship of landlord and tenant between the parties. The eviction was sought on the ground of non-payment of rent w.e.f. 1.4.2002 at the rate of Rs.6000/- (Rupees six thousand only) and also on account of non-payment of water and sewerage charges amounting to Rs.14,186/- (Rupees fourteen thousand one hundred and eighty six only), which were paid by the landlords. A separate petition was also filed against other tenants namely M/s United Knitters and Sohan Lal. Liability of the tenants was said to be joint and several. On the first date of hearing payment of rent along with interest, costs etc. was made and therefore, this ground of eviction on account of non-payment of rent ceased to exist. Other ground on which the eviction was sought was that the property in dispute was required for the own use and occupation of the landlord and their family members. Personal necessity set out read as under:- Petitioner No.1 Ramesh Mangal was posted in State Bank of India in Zonal office at Savitri Complex, G.T.Road, Ludhiana. He was having one son Arun Mangal who was aged about 28 years married and having one daughter aged 2 years. He was said to be carrying on a business of assembling cycle parts i.e. side stand and springs at Daba Colony, Ludhiana. Plot measuring 231 square yards was said to be in his possession which was claimed to be insufficient for carrying on his business as it was situated in the residential colony. The case set up was that Arun Mangal CR No.251 of 2009 5 wanted to start cycle parts manufacturing business in the tenanted premises as assembling job was not a paying job. Daba Colony was said to be a residential colony situated at a remote place where the customers were not going, whereas demised premises were situated in the Industrial Area-A, Ludhiana which was most suitable for carrying on manufacturing activities. Arun Mangal was not having property in his name, therefore, it was claimed that he wanted to start his manufacturing business. Detailed reasons were mentioned as to why the tenanted premises were required for setting up a manufacturing process which was not possible in the premises in possession of Arun Mangal. The property in his possession was in the name of Smt. Trishla Mangal, mother of Arun Mangal. It was also pleaded that Ramesh Mangal was to retire in January, 2007 and was interested in seeking voluntary retirement as he had already put in 31 years of service. He also wanted to start the business of manufacturing cycle parts after his retirement. He claimed to be in possession of sufficient funds to invest in the business by joining his son. It was also the case of the landlord that all the petitioners in the rent petition were equally entitled to the said property, where an area of 600 sq.yards was to fall to the share of each of petitioners in the rent petition. Landlord No.2 Kailash Mangal was said to be having two sons Sanjay Mangal and Ajay Mangal. Kailash Mangal was carrying on a trading business in cycle parts under the name & style of M/s Peak and company, 50, New Cycle market, Gill Road, Ludhiana. He was said to have one shop No.50 and godown No.197 in the said market besides having one vacant CR No.251 of 2009 6 unbuilt plot measuring 460 square yards without any electric or water connection at a distant place i.e. 10 KMs away from Industrial Area-A, Ludhiana i.e. Dhandari, Ludhiana. It was claimed that it was not possible for Kailash Mangal to use the said property for industrial purpose. Sanjay Mangal elder son of Kailash Mangal was said to be 29 years of age who was working as an employee with his father at a salary of Rs.2000/- (Rupees two thousand only) per month during spare time. He was also carrying on some commission business from where he was earning an amount of Rs.3000- 4000/- per month. He was also married and having two children - one daughter and one son, his income was said to be on lower side. It was claimed that Kailash Mangal landlord wanted to settle Sanjay Mangal in business of manufacturing. Sanjay Mangal was also the owner of one plot measuring 460 square yards which was purchased on 14.6.1990 with a small kacha room and four walls around the said plot, but with the passage of time said room and the walls had fallen down. The said plot was also at Dhandari Kalan, Ludhiana at a remote place. It was claimed that no business activity was possible there. Second son of Kailash Mangal was Ajay Mangal who was 26 years of age who was without any work. Ajay Mangal was said to be an employee of M/s KT Industries, Kailash Street, Gill Road, Ludhiana, on a meagre salary of Rs.7000/- (Rupees seven thousand only), he was also married and having one daughter. It was the case of Kailash Mangal who was petitioner No.2 in the rent petition that he wanted his second son to start the manufacturing CR No.251 of 2009 7 business of cycle parts. The landlord also showed his desire to join his son in the manufacturing business. Ajay Mangal was said to be having no property in his name, it was claimed that the property was immediately required for starting business of cycle parts for settling his sons Ajay Mangal and Sanjay Mangal. It was claimed that the trading business of Kailash Mangal was not doing well and there was no scope of increase in business. He also claimed to have sufficient funds to start the manufacturing process. The landlord No.3 Vinod Kumar Mangal was said to be carrying on his business of trading under the name and style of M/s Apsons Industries, 211, Cycle Shopping Centre Gill Road, Ludhiana where he was doing the business of trading in cycle parts. He also had a son namely Prince Mangal aged about 26 years who was said to be without any work. It was claimed that Vinod Mangal, the landlord No.3 and his son Prince Mangal were in dire need of property rented out to the petitioners. He also intended to start the manufacturing of cycle parts. He also had sufficient funds for installing a manufacturing unit. It was pleaded that Vinod Mangal was having one shop No.211, Cycle Shopping Centre, Gill Road, Ludhiana, whereas Prince Mangal was also having one son aged about 2 years. Landlord No.4, Satish Kumar Mangal was said to be living in Abdullapur, Ludhiana at B, XVII 2081, Abdullapur, Ludhiana. The property in his possession was 220 square yards which was mainly used by him and his wife's family for residence on the first floor which was most insufficient as he was compelled to use the entire ground floor for the CR No.251 of 2009 8 purpose of manufacturing of cycle parts. He was in business of manufacturing brake shoes, brake clips and other small cycle parts and had installed a power process. The manufacturing process was producing extreme noise and vibrations which made the life of occupants at the first floor injurious to health, therefore he also claimed that he required the premises immediately for setting up business of manufacturing cycle parts. He also had sufficient funds for this purpose. He also has a son Amit Mangal aged 18 years who was a student and after completion of his studies he was also said likely to join his business of manufacturing. It was claimed that neither Satish Kumar Mangal nor Amit Mangal had any other place except B.XXIII, 845 (old) and 2467 (new), plot No.264, Industrial Area, Ludhiana for the purpose. Area of Basti Abdulapur was said to be not fit for manufacturing of cycle parts and business which was liable to be stopped immediately. It was also pleaded that the shop in Cycle shopping Centre Gill Road, Ludhiana was merely a shop and no manufacturing activity could be carried out there as it was merely an outlet for purchase and sale of items. Thus, the property was said to be urgently required for personal need. It was also pleaded that none of the landlords was occupying any other non-residential building in Ludhiana except as detailed above which was not appropriate and was insufficient for the purpose of carrying on manufacturing business. They also pleaded that the landlords or their family members had not vacated any other non-residential building after the commencement of the Act without any sufficient cause. CR No.251 of 2009 9 Eviction was also sought on the ground that the tenants/petitioners had made wholesale additions and alterations in the property in dispute which materially impaired the value and utility of the premises in dispute. It was also pleaded that the lease deed had expired in the year 1999, and that the tenants were allowed to make temporary alteration without affecting the main structure. The tenants without the consent of the landlords or their predecessor effected wholesale additions and alterations in the building by raising fresh walls etc.. They were also said to have broken some other walls already existing and made material alterations and changes in the basic structure of the building in dispute and therefore, materially impaired the value and utility of the premises in dispute. Notice of the petition was served on the respondents in the rent petition who filed two separate written statements. Preliminary objection was taken that the rent petition was liable to be dismissed as the landlords had not come to the court with clean hands. Petition was said to be bad for non-joinder of necessary parties since all the legal representatives of Ayudhya Parshad and Smt. Sushila Devi were not joined as petitioners. It was claimed that joint petition by four petitioners on the ground of personal necessity without alleging their necessity separately and without mentioning the area and getting the property partitioned was not maintainable. It was pleaded that the claim of landlord Ramesh Mangal was that he was in need of 600 square yards out of the demised premises which was not possible without partition. It was claimed that Ayudhya CR No.251 of 2009 10 Parshad settled all his sons as per their choice and each of the son was given separate property and furthermore, no necessity was shown during the life time of Ayudhya Parshad and Smt. Sushila Devi. Petition was, therefore, said to be an attempt to harass the respondents in the rent petition and put pressure on them. However, factum of tenancy through lease deed and rate of rent was not disputed. Demised premises as shown in site plan was said to be correct. However, while accepting that Smt. Sushila Devi was collecting the rent after the death of Ayudhya Parshad, it was denied that Smt. Sushila was entitled to only manage the property. It was also denied that all the four petitioners in the rent petition were the owners of the property. The Will was challenged to be not genuine or legal. The other grounds of eviction were denied. It was the case of the tenants that the respondents/landlords did not require the property for their own use or for their family members. It was also denied that Arun Mangal son of Ramesh Mangal was carrying a business of assembling of cycle stands in Daba Colony. It was also denied that he was having only 231 square yards in his possession. It was denied that area in possession was insufficient for him. It was further denied that area in possession was a residential area. The case set up by the tenants was that there were many industrial units in the said area. It was asserted that Arun Mangal did not require the property and the petition was filed to increase the rent. It was asserted that the property was purchased by Trishala Mangal, mother of Arun Mangal as per suitability. Factum of retirement of Ramesh Mangal in January, 2007 was CR No.251 of 2009 11 denied, it was also denied that he wanted to start cycle manufacturing business or wanted to join his business. It was also denied that Kailash Mangal had two sons. It was asserted that Kailash Mangal was having a plot of 460 square yards which he purchased as per his choice. It was denied that said plot was not sufficient for carrying on the business. It was asserted that Kailash Mangal was owner of many properties which were sufficient for him. Factum of Sanjay Mangal being an employee with his father was also denied to assert that they did not want separate manufacturing business. It was denied that landlords wanted the premises for their own use and occupation and for the use of their family members. The case set up was that it was an attempt to increase the rent and therefore, it was pleaded that the petition be dismissed with heavy costs. Other respondents in the rent petition filed their written statement by taking preliminary objection. It was claimed by them that the landlords wanted to sell the property in dispute after getting it vacated from the respondents as the landlord had approached the Property Dealers with an offer to sell the property to the respondents/tenants but no settlement could be reached as the landlords were demanding sale consideration of the suit property on higher side, whereas the offer of the petitioners/tenants was on the lower side. Other objections were also denied, while admitting the tenancy created by Shri Ayudhya Parshad and his wife. However, rate of rent was admitted and was tendered on the first date of hearing as referred to above. In the replication, the averments made in the petition were CR No.251 of 2009 12 reiterated and those of the written statement were denied. On the pleadings of the parties, learned Rent Controller framed the following issues:- 1. Whether the respondents are in arrears of rent? OPA 2. Whether the applicant requires the demised premises for their personal use and occupation? OPA 3. Whether the respondents have carried out major alterations in the demised premises without consent of the landlord,if so its effect? OPA 4. Whether the respondents are liable to be ejected from the demised premises? OPA 5. Whether the petition is not maintainable in the present form? OPR 6. Whether the site plan placed on record is not correct? OPR 7. Whether the petition is bad for non-joinder of Legal representatives of Ayudhya Parshad and Sushila Devi? 8. Relief. In support of their case landlords examined Ramesh Mangal PW 1, Kailash Chander PW 2, Vinod Mangal PW 3, Satish Mangal PW 4, Arun Mangal PW 5, Sanjay Mangal PW 6, Ajay Mangal PW 7, Prince Mangal PW 8, Amit Mangal PW 9, Sandeep Sharma PW 10, Satpal Gupta PW 11, Anil Kumar Shara PW 12, Surinder Sharma Photographer PW 13 CR No.251 of 2009 13 and G.D.Wadhera PW 14 and closed their evidence. The petitioners/tenants on the other hand examined RW 1 Gopal Chaudhary, RW 2 Naveen Chander Talwar, RW 3 Bagirath Chawdhary , RW 4 Raj Kumar, and K.L.Mahajan RW 5 and closed their evidence. Issue No.1 was decided against the respondents/landlords being not pressed as the rent along with house tax, water and sewerage charges were paid on the first date of hearing. Issues No.2 and 7 were taken up together. Learned Rent Controller recorded a finding that onus of proof of issue No.2 was on the landlords, whereas onus to prove issue No.7 was on the tenants. The learned Rent Controller held that relationship of landlord and tenant was not denied. Therefore the petitioners in the rent petition were held to be landlord/owners of the property. On appreciation of evidence, learned Rent Controller decided issue No.2 in favour of the landlords and issue No.7 against the tenants. On issue No.3 learned Rent Controller recorded a finding that the lease deed executed in favour of the tenant was on record as PW 2/1 showing the original condition of the property when given on rent to the tenants. The court found that in the site plan Ex.P.1 the portion in green colour was the portion where additions and alterations were made by the tenants without the consent of the landlords. The factum of additions and alterations made were proved by PW 14 Shri G.D.Wadhera, Retired Deputy Executive Engineer. He proved on record his report Ex.PW 14/2 and site CR No.251 of 2009 14 plan Ex.PW 14/3. He also proved the photographs taken by the photographer at his instructions i.e. Ex.PW 13/1 to Ex.PW 13/32 depicting the correct condition of the property existing at the spot along with negatives. After inspection Shri G.D.Wadhera, PW 14 found as under:- “ That marked ABCD on the map/plan is outer boundary of the entire property, out of which portion falling on Northern, Eastern side shown in orange colour is with United Knitters and on Southern, Eastern side shown in brown colour with Shivalik Poly Pack and one small room shown in black colour on the map is with the petitioner and portion marked in hatches in red colour on the map is with paper pac. In this property, there is 20' – 0 and 16' -3' wide common passage.” He also found that 9” thick old brick wall marked EF to GH on the map was utilized for the construction of rooms, toilet and sheds. He also deposed that some portion was dismantled to make provision for doors of rooms No.4 and 5 and toilet. He also proved the construction of rooms marked 1, 2, 3, 4, 5, 6 and two open baths., sheds marked 1 and 2 and one shed on the back side of toilet, besides raising of pillars for installation of plastic tank, built on parchatti and two brick masonry pillars. PW 14 also found: “ That floor level of 20' - 0' and 16' - 3' wide common passage and 9'-9' wide passage on Western side have been raised to such an extent that the existing floor level of the entire CR No.251 of 2009 15 structure under the possession of m/s Paper Pac, M/s United Knitters,M/s Shivalik Poly Pack and the petitioners has become lower except room No.1 to 5 and rainy water, which would enter in the premises, would damage the entire property. So with the new construction it has impaired the value and utility of the property and entire outlook of the property has been completely changed.” The learned Rent Controller held that this construction made without the consent of the landlords amounted to impairing the value and utility of the building and accordingly decided issue No.3 in favour of the landlords and against the petitioners/tenants. In view of the findings on issues No.2 and 7, issue No.4 was decided in favour of the landlords and against the tenants. Issue No.5 was decided in favour of the landlords and against the tenants, by placing reliance on the judgment of this court in the case of Mathra Dass Vs.Smt. Tam Piari 1982 (1) RLR 222. Issue No.6 was also decided against the tenants and in favour of the landlords and consequently petition was allowed. In appeal, findings recorded by the learned Rent Controller were affirmed and the appeal filed by the tenants/petitioners was dismissed. Mr.Ashok Aggarwal, learned senior counsel appearing on behalf of the petitioners challenged the findings of the learned Rent Controller and the learned Appellate Authority on the question of impairing CR No.251 of 2009 16 the value and utility of the building by contending that learned courts below completely misread the lease deed executed between the parties to hold the petitioners guilty of impairing the value and utility of the building. He referred to Clause 4 of the lease deed Ex.P.2 which reads as under:- “4. That party No.2, however,shall not be entitled