IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 127 of 2009 Reserved on : 2.3.2010 Decided on : 8. 3. 2010 Phoola Devi and others …Petitioners Versus Chandu Lal and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioners : Mr. Ajay Sharma, Advocate. For the Respondents : Mr. Ajay Kumar, Advocate for respondent No.1. Kuldip Singh , Judge The petitioners have filed this revision against the judgment dated 19.8.2009 passed by the learned Appellate Authority, Fast Track Court, Shimla in Rent Appeal No. 66- S/14 of 2007 affirming order dated 31.10.2007 passed by the learned Rent Controller, Court No.4, Shimla in Rent Petition No. 22/2 of 2004. 2. The respondent No.1 had filed ejectment petition against the petitioners and respondents No.2 to 8 on the grounds of arrears of rent, change of user and bonafide re- construction and re-building. The petition was contested and 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 resisted by petitioners by filing reply. The respondents No.2, 3 and 4 had also filed separate reply. The respondents No. 5 to 8 were proceeded exparte. The petitioners took preliminary objections of mis-joinder of parties. It was submitted that respondents No.2 to 8 have nothing to do with the tenancy and possession of the premises. The petition has been filed with a malafide intention to harass the petitioners to enhance the rent. The pleas of estoppel and want of proper verification of the petition were also taken. The petitioners admitted the rent of the premises Rs.180/- per annum. The respondent No.1 had avoided the receipt of rent. The petitioners were ready to make the payment of arrears of rent. The respondent No.1 is not entitled to interest. The change of user of the premises was denied. The respondent No.1 has concocted and invented the ground of re-construction just to evict the petitioners. The premises does not require re-construction or re-building, the respondent No.1 has no intention to carry out such work. The premises is situated in core area of Shimla where there is a total ban on construction. The plan of the proposed construction has not been approved by the concerned authority. The respondents No.2 to 4 have also taken more or less the same pleas as taken by petitioners. 3. On the pleadings of the parties, the following issues were framed:- 1. Whether the respondents are in arrears of rent w.e.f. 1994 till 2002 as alleged? OPP. 3 2. Whether the respondents have changed the user of premises after demise of predecessor of interest as alleged? OPP. 3. Whether the premises are bonafidely required by the petitioner for purpose of reconstruction & rebuilding as alleged? OPP. 4. Whether the petition is bad for mis-joinder of parties as alleged? OPR. 5. Whether the petition has been filed malafidely as alleged? OPR. 6. Whether the petitioner is estopped from filing the present petition as alleged? OPR. 7. Whether the petition has not been properly verified as alleged? OPR. 8. Whether the present petition is not maintainable as alleged? OPR. 9. Relief. The issues No.1, 3 were answered in affirmative and issues No.2, 4 to 8 were answered in negative and the petition was allowed on 31.10.2007 by the learned Rent Controller on the grounds of arrears of rent, bonafide re-construction and re- building. The ground of change of user was rejected. The petitioners filed an appeal against the decision dated 31.10.2007 which has been dismissed by the learned Appellate Authority on 19.8.2009, hence this revision. 4. Mr. Ajay Sharma, Advocate, learned counsel for the petitioners has confined his submissions only with respect to ground of re-construction and re-building of the premises. It has been submitted by Mr. Ajay Sharma, Advocate that the premises is situated in core area of Shimla 4 where re-construction and re-building as claimed by respondent No.1 is not permissible. The respondent No.1 has taken the ground that building is not in good shape, therefore, re-construction is required. But the authorities below have passed the ejectment order by erroneously construing the case of the respondent No.1 that the building can be put to better use. The statement of DW-2 V.C.Sharma has been totally mis- read to reject his report on the ground that it has been proved that the witness has taken a wrong stand that the shop was shown to him by Puran Chand on 25.4. 2006 whereas Puran Chand had admittedly died prior to the year 2004. It has been submitted that in order to ascertain the bonafide of the landlord, it is necessary that he should plead why he requires the premises for re-building, re-construction. 5. The learned counsel for the respondent No.1 has submitted that two authorities below have categorically recorded a finding of fact that the premises is required by landlord for bonafide re-building, re-construction. There is no perversity in the impugned judgment, therefore, the petition deserves to be dismissed. He has submitted that the H.P.Urban Rent Control Act, 1987 (for short’Act’) provides several independent grounds of eviction. The condition of the building is a ground of eviction whereas the bonafide re- construction is a separate ground of eviction. The respondent No.1 has filed the petition for ejectment on the ground of bonafide re-construction in addition to other grounds. It is not 5 necessary that only if the condition of the building is dilapidated then the landlord is entitled to order of ejectment under the Act on the ground of bonafide re-construction. 6. The learned counsel for the petitioners has submitted that in the ejectment petition the petitioner has not pleaded the reasons for reconstruction of the premises. He has submitted that in view of Section 14 (3)(c ) of the Act the landlord is required to plead the reasons to reconstruct, rebuild the premises. The perusal of Section 14(3)(c ) of the Act indicates that the landlord is entitled to eject the tenant on several grounds of eviction which are independent. In para 18(3) of the ejectment petition, it has been pleaded that premises in dispute are required bonafide for the purpose of reconstruction and rebuilding and the work of reconstruction cannot be carried out without vacating the premises. The Section 14 (3) (c ) provides that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession of tenancy premises in the case of any building or rented land if he requires it bonafide for the purpose of building or rebuilding. The Section 14 (3) (c ) no where provides that reasons for rebuilding and reconstruction are to be pleaded in the petition. 7. In Prem Chand alias Prem Nath Vs. Shanta Prabhakar (Smt.) (1998) 1 SCC 274 after noticing Section 14 (3) (c ) of the Act it has been held as follows :- 6 “ A careful reading of the above section will show that the section contemplates different independent situations/circumstances enabling the landlord to apply for eviction of a tenant. Those different and independent situations/circumstances can be set out as follows:- “(i) When the tenanted premises are required by the landlord to carry out any building work at the instance of the Government or local authority or any Improvement Trust under some improvement or development scheme; or (ii) When the tenanted premises have become unsafe or unfit for human habitation; or (iii) When the tenanted premises are required bona fide by the landlord for carrying out repairs which cannot be carried out without such tenanted premises being vacated; or (iv) When the tenanted premises are required bona fide by the landlord for purposes of building or rebuilding or making thereto any substantial additions or alterations and that such building or rebuilding or addition or alteration cannot be carried out without the building or rented land being vacated.” From the above alanysis, it will be seen that the condition of the building is required to be considered when the application falls under the above-mentioned category. (ii) Admittedly, the application for eviction in the present case falls under category (iv) and there is no requirement in such cases to go into the condition of the building. It is true that this Court has held that the requirement of the condition of the building is a vital factor whether such requirement is specifically stated in the section or not. It must be remembered that the decision of this Court was 7 rendered while interpreting Section 14(1)(b) of the Tamil Nadu Act which is not in pari material with the Himachal Pradesh Act. In other words, there are no different categories as set out above in the Tamil Nadu Act as in Himachal Pradesh Act.” 8. The Supreme Court in Jagat Pal Dhawan Vs. Kahan Singh (dead) by LRS. And others (2003) 1 SCC 191 has again noticed Section 14 (3) (c ) of the Act and held as follows:- “Section 14(3)(c ) provides inter alia that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession of tenancy premises in case of any building or rented land being required bonafide by him for the purpose of building or rebuilding, which cannot be carried out without the building or rented land being vacated. The provision does not have as an essential ingredient thereof and as a relevant factor the age and condition of the building. The provision also does not lay down that the availability of requisite funds and availability of building plans duly sanctioned by the local authority must be proved by the landlord as an ingredient of the provision or as a condition precedent to his entitlement to eviction of the tenant. However still, suffice it to observe, depending on the facts and circumstances of a given case, the court may look into such facts as relevant, though not specifically mentioned as ingredient of the ground for eviction, for the purpose of determining the bona fides of the landlord. If a building, as proposed, cannot be constructed or if the landlord does not have means for carrying out the construction or 8 reconstruction obviously his requirement would remain a mere wish and would not be bona fide.” 9. The landlord while appearing as PW-1 has stated that condition of the building is not good, it is lying broken at several places. It is 80 – 90 years old. He wants to reconstruct it after demolition. He has got the plan Ex.PW-1/A approved from Municipal Corporation. In cross-examination, he has denied that he is not in a position to reconstruct the building. It has come in the statement of PW-1 landlord that after approval of the plan Ex.PW-1/A, he could not reconstruct the premises due to litigation. He has also stated that he is an income tax assessee. PW-3 Satinder Kalia has stated that he has seen the premises, the condition of the shop is in bad shape and is dilapidated. In cross-examination, a suggestion was given to him which he has admitted that the landlord has reconstructed the portion adjacent to the disputed premises. 10. DW-1 Rakesh son of Puran Chand has stated that Puran Chand and Durga Dass were the tenants in the shop, his father has died. After the death of Durga Dass, he and his father were running the shop. In cross-examination, he has admitted that tarpaulin has been placed on the shop. He got the shop inspected through Architect about 15 – 20 days earlier. DW-2 V.C.Sharma has stated that on the asking of Phulla Devi he had inspected the shop in question and prepared report Ex.DW-2/A. There is scarp on the roof of the shop as a result of which the roof is being damaged. He was 9 told that the scrap is of the landlord. In core area repair is permissible but construction is banned. DW-3 Raj Kumar in examination in chief has stated that the condition of the disputed shop is good. In cross-examination, he has stated that the roof leaks and it has been covered by tarpaulin. DW-4 Bhajana Ram is not in a position to state that the premises in dispute was 80 years old. He has denied that the shop in dispute is covered by tarpaulin. 11. The building plan has been sanctioned vide Ex.PW-1/A, but it is the case of the landlord that despite approval of the building plan, he could not reconstruct the building due to litigation. The bona fide of the landlord to reconstruct is supported from the fact that in addition to sanction plan he has constructed adjacent portion of the building which has been established when suggestion was given to PW-3 Satinder Kalia in cross-examination conducted by the tenants that the adjacent portion of the premises has been reconstructed by the landlord. PW-1 in his statement has stated that he wants to reconstruct the premises after demolishing it. PW-3 Satinder Kalia has stated that the condition of the shop is in bad shape and it is in dilapidated condition. PW-1 Chandu Lal has also stated that the condition of the shop is also not good and it has broken at several places and it is about 80 – 90 years old. 10 12. DW-2 in his report Ex.DW-2/A has stated that condition of the building is good and it does not require any repair, renovation or reconstruction. DW-1 Rakesh has stated that he got the shop inspected through architect 15 – 20 days ago. His statement was recorded on 27.6.2006. Thus, according to him, the shop was inspected by the architect somewhere around the first week of June, 2006. DW-2 V.C.Sharma has stated that he had visited the site on 25.4.2006. The perusal of report Ex.DW-2/A indicates that DW-2 allegedly inspected the shop on 25.4.2006 on the request of Puran Chand tenant. There are thus apparent contradictions regarding the dates of visit of the shop for carrying out inspection by the expert of the petitioners. DW-2 V.C.Sharma in Ex.DW-2/A has stated that the shop was got inspected on the request of Puran Chand tenant, but there is no Puran Chand tenant, therefore, report Ex.DW-2/A is a suspicious document. 13. In Amar Nath vs. Mrs. Balbir Kochhar and others 1997 (1) S.L.C. 227, it has been held that the arrangement to be made in respect of the finances is only a circumstance in order to test the bona fide and is not a requirement of law. There is no derth of arranging the finances in todays as lot of financial corporations, banks and persons having surplus money do always lent out for such projects. On the requirement of sanction plan in the same judgment, it has been held that there is no statutory 11 requirement that the building plan has to be got sanctioned before ejectment is sought. When the ejectment petition is filed no one is sure about the time consuming factor in litigation and thus the storing of the building material would lead to nowhere. In Naresh Kumar and others vs. Surinder Paul 2001 (2) S.L.C. 337 judgment Harswarup vs. Ram Lok Sharma, 2000 (3) S.L.C. 160 has been noticed wherein it has been held that mere fact that the landlord has not obtained necessary permission under the H.P.Roadside Land Control Act, 1968 and / or the approval of the Town and Country Planning Department before the filing of the petition would not mean that the need of the landlord is not bona fide. Similar view has been taken in Amarjeet Singh vs. Anju Rani 1997 (1) SLC 492. 14. The learned counsel for the petitioners has submitted that the premises is situated in core area where reconstruction is not permitted. The learned counsel for the landlord has submitted that reconstruction in the core area is not absolutely banned. The reconstruction is permissible with the approval of competent authority. In Naresh Kumar (supra), it has been held that there is no absolute ban on reconstruction within the “core area”. Reconstruction on old lines is permissible within such area with the prior approval of the State Government. 15. In P.S. Pareed Kaka and others vs. Shafee Ahmed Saheb 2004 (1) R.C.R. 503, it has been held by the 12 Apex Court that even if the building is in good condition, if it is not suitable for the landlord, he can always demolish even a good building and put up a new building to suit his requirements. It is not necessary for the landlord to prove that the condition of the building is such that it requires immediate demolition particularly when the premises is required by the landlord. 16. The two authorities below have recorded a finding of fact that the premises in question is bonafide required by the landlord for reconstruction and rebuilding. The learned counsel for the petitioners has failed to establish that the finding recorded by the two authorities below is perverse. It has also not been established that material evidence having bearing on the merits of the case has been ignored or irrelevant evidence has been considered in support of the findings. In Naresh Kumar (Supra) after noticing Chaman Prakash Puri vs. Ishwar Dass Rajput and another 1995 Suppl. (4) SCC 445 and Sarla Ahuja vs. United India Insurance Company Ltd. 1999 (1) RCJ 158, it has been held that it is not permissible for this court in exercise of revisional jurisdiction to come to a different fact finding unless the findings arrived at by the two courts below, on the facts of the case, are so unreasonable that no court could have reached such a finding on the material available. This has, however, not been established in the present case. There is no merit in the revision. 13 17. No other point was urged. 18. The result of the above discussion, the revision fails and is accordingly dismissed with no order as to costs. . March 8, 2010. ( Kuldip Singh ) (GR) Judge.