IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C. Revision No. 58/2010 Reserved on : 6.7.2010 Decided on:7.9. 2010. Gandhi Ram. ...Petitioner. Versus Satpal Sharma ... Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Neeraj Gupta, Advocate. For the Respondent : Mr. Ajay Kumar, Advocate. Justice Rajiv Sharma, Judge. This revision petition is directed against the judgment dated 4.3.2010 passed by the learned Appellate Authority, Shimla in civil Misc. Appeal No. 78-S/14 of 2009. 2. Material facts necessary for the adjudication of this petition are that respondent-landlord (hereinafter referred to as ‘the landlord’ for convenience sake) claimed eviction of the petitioner-tenant (hereinafter referred to as ‘the tenant’ for convenience sake) from two rooms in first floor and one room in ground floor of building No.31, Alley No.7, Middle Bazar, Shimla (hereinafter referred to as ‘tenanted premises’ for brevity sake) on the ground that the building in which the tenanted premises is located is about 100 years old, out lived its life, 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 cracks have appeared and the same is in dilapidated condition and hence unfit and unsafe for human habitation. The tenanted premises have also posed danger to its residents as well as other residents of adjoining buildings. Consequently, the tenanted premises are bonafidely required for rebuilding and reconstruction, which cannot be carried out without its vacation, rather without vacation of the whole building. According to the landlord, the building is situated in commercial locality and after its reconstruction; it can be put to better use for augmenting income by making a new structure in place of old one. He is in possession of sufficient funds and he can also borrow funds from Banks and other financial institutions. He has submitted building plans for rebuilding and reconstruction of the building with the authorities, which are under consideration. The tenant resisted the petition. On merits, the averments made in the petition were termed as wrong and incorrect. It was further pleaded that tenanted premises consists of one room and kitchen in the second floor and one room in the lower floor and rent of the premises is Rs. 1800/- per annum. It was further claimed that the building in which the tenanted premises is located is not in a dilapidated condition and the same is in sound condition and the structure is of recent years. No cracks are visible in the tenanted premises and the same is fit for habitation. It was disputed that the building is situated in a commercial locality or the landlord requires the same bonafidely for rebuilding. It was also disputed that the landlord has sufficient means for construction of the building. The Rent Controller framed the issues on 5.3.2008. He allowed the petition on 29.7.2009. He ordered the eviction of the tenant on the ground that the suit premises, i.e. two rooms in first floor, one room in ground floor of building No.31, Middle Bazar, Shimla in possession of tenant has become unsafe and unfit for human habitation 3 and the eviction was also ordered on the ground that the suit premises is bonafidely required by the landlord for reconstruction and rebuilding, which cannot be carried out without getting the suit premises vacated by the tenant. The tenant preferred an appeal before the Appellate Authority on 24.8.2009. The Appellate Authority dismissed the appeal on 4.3.2010. Hence, this petition against the judgment dated 4.3.2010. 3. Mr. Neeraj Gupta has strenuously argued that the judgment and order of both the authorities below are not based on proper appreciation of evidence and legal principles, which has led to failure of justice. He further contended that the landlord has failed to prove that the building was unfit for human habitation. He lastly contended that the landlord has also failed to prove that he required the building bonafidely for the purpose of rebuilding and reconstruction and according to him, the only endeavour of the landlord is to evict the tenant. 4. Mr. Ajay Kumar has supported the judgment and order passed by both the authorities below. 5. I have heard the learned counsel for the parties and have perused the pleadings carefully. 6. Sat Pal, landlord, has appeared as PW-1. He has proved in evidence the site plans Ex.PW-1/A and Ex.PW-1/B. He has deposed that the building in which the tenanted premises is located is more than 100 years old. It was made of Dhajji walls, cracks have developed in the walls, floors have sagged and the building in these circumstances has become unfit for habitation and is in dangerous condition. He got the tenanted premises inspected from PW-3 Vivek Karol. He has taken photographs Ex.PW-1/C and Ex.PW-1/D. PW-1 has deposed in his cross-examination that the Municipal Corporation has sent notice to him regarding building in question, i.e. mark P-1. 4 7. Statement of PW-1 has been supported by PW-3 Vivek Karol. He is a qualified Civil Engineer working in construction and structural designing. He has testified that the building was unfit for habitation. The construction material used for building has outlived its life. The cracks have developed in the walls and the building is more than 100 years old. He has proved in evidence technical report Ex.PW- 3/A and photographs Ex.PW-1/C and Ex.PW-1/D. 8. RW-2 Gian Chand has proved the notice mark P-1 as Ex. RW-1/A. He has deposed that the said notice was issued by the Health Department of Municipal Corporation. The notice Ex.RW-2/A is dated 19.4.2007. He himself had visited the spot and thereafter the notice was issued. 9. Tenant has appeared as RW-1. He has deposed that the building was reconstructed in the year 1970. However, he has not placed any material on record to support this contention. He has admitted that the building was made of Dhajji walls and he also admitted the correctness of photographs, Ex.PW-1/F to Ex.PW-1/S. He has also admitted that the construction material used in the building in question has become old. 10. RW-3 Anil Jain has only deposed that about 30-35 years ago, the building was repaired. He has also stated in his cross- examination that the building in question was made of Dhajji walls. He has also admitted that the building was quite old. 11. It is thus, evident on the basis of the statements of PW-1, PW-3 and RW-2 that the building in questions is more than 100 years old. The walls are made of Dhajji. The construction material of the building has become old. The floor has sagged and the walls have developed cracks. The Municipal Corporation had issued notice to the landlord, i.e. RW-2/A. In view of the overwhelming evidence, the 5 findings recorded by the authorities below are not required to be interfered. 12. Now, the Court will advert to the evidence led by the parties to see bonafide requirement of the tenanted premises for the purpose of rebuilding and reconstruction. PW-1 has testified that he intends to rebuild and reconstruct the building. He has deposed that he has submitted the building plans to the concerned authorities, i.e. Municipal Corporation and the same had been sent by it to the State Government for sanction. PW-2 Yashwant Singh, Senior Clerk of the Assistant Planner Branch Municipal Corporation, Shimla has deposed that the proposed plan, Ex.PW-1/U for rebuilding and reconstruction was submitted by the landlord before the Municipal Corporation, which has been duly forwarded to the State Town Planner for clearance from Municipal Corporation. He has admitted that the building plan was returned to the Municipal Corporation, however, he further stated that the proposed plan was re-submitted to the Town and Country Planner. PW-1 has deposed that the building is located in commercial locality and it can be put to better use and would augment income if it is reconstructed. He has admitted in his cross-examination that the building is situated at No.6, down the Mall Road, Shimla and above the lower Bazar at 6th and 7th number. He has also led evidence to establish that he had the funds and means to reconstruct the building by way of fixed deposit receipt Ex. PW-1/B and national saving certificates, Ex.PW-1/W and Ex. PW-1/Y. He also deposed that he can raise the loans from the banks etc. PW-3 Vivek Karol, qualified Civil Engineer, has deposed that in case the building is to be reconstructed of RCC, the same cannot be carried our without its vacation. He has also mentioned about this fact in his report Ex.PW-3/A. 6 13. The tenant had admitted that he had paid whole of the rent in favour of the landlord till 2007. He also admitted that the rent of the tenanted premises is Rs. 2100/- per annum. 14. What emerges from the scanning of the evidence hereinabove is that the landlord has amply proved that he requires the premises in question for re-building and reconstruction and the same is not possible without evicting the tenant. He has also established that his income will be augmented in case the new building is constructed; he has sufficient funds for reconstructing the same and has also submitted the building plans to the competent authority. However, in the interest of justice, in view of the judgment rendered by their Lordships of the Hon’ble Supreme Court in Harrington House School versus S.M. Ispahani and another, (2002) 5 SCC 229, though the orders passed by both the authorities are upheld/sustained, however, it is directed that only on the plans being sanctioned by the competent authority, the order of eviction shall be available for execution. The sanctioned or approved plans shall be produced before the executing court whereupon the executing court shall allow a reasonable time to the tenant for vacating the property and delivering possession to the landlord. Till then the tenant shall remain liable to pay charges for use and occupation of the premises at the same rate at which they are being paid earlier. Subject to these modifications, the orders passed by both the authorities below are maintained. The petition is disposed of. No order as to costs. (Rajiv Sharma), Judge. 7.9. 2010. *awasthi*