IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No.:128/2011 Reserved on: 25.11.2011 Decided on:2.12. 2011 _____________________________________________ Kanchana Devi. …Petitioner. Versus Arun Kumar …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Rahul Mahajan, Advocate. For the Respondent: Mr. Atul Jhingan, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This revision petition is directed against the judgment dated 31.5.2011 of the learned Appellate Authority-II, Kangra at Dharamshala rendered in Civil Misc. Appeal No. 3-K/2009. 2. Material facts necessary for the adjudication of this petition are that the respondent-landlord (hereinafter referred to as ‘landlord’ for convenience sake) filed an application under sections 14 (2) i, 14 (3) of the Himachal Pradesh Urban Rent Control Act, 1987 seeking eviction of 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 the petitioner-tenants (hereinafter referred to as ‘tenants’ for convenience sake) in respect of the property situated in main Bazar within M.C. Kangra on the ground that the premises were let out for the purpose of sweet shop having latrine and small Tapri of temporary nature alongwith courtyard constituting the entire premises at the rent of ` 100/- per month. The premises were let out to Milkhi Ram, predecessor-in-interest of the tenants by the forefather of the landlord about 50 years back. The eviction was filed on the ground that the petitioner-tenants had not paid rent with effect from 1.9.2000 and the premises were required bona fide for rebuilding, which could not be carried out without the same being vacated. 3. The application was contested by the tenants. According to the tenants, one part of the shop was used as sweet shop and other part as beauty parlour and for the residential purpose. According to the tenants, they have paid the rent and sent the same through money order to the landlord but he did not accept the same. According to them, the building was in good condition and has not outlived its life. 4. Rejoinder was filed by the landlord. Issues were framed by the learned Rent Controller on 25.11.2006. He allowed the same and ordered the eviction of tenants by 3 holding them in arrears of rent and also the premises were bona fide required by the landlord, which could not be carried out without vacating the same by the tenants. Tenant, namely, Kanchan Devi, preferred an appeal before the learned Appellate Authority. He dismissed the same on 31.5.2011. Hence, the present petition against the judgment dated 31.5.2011. 5. Mr. Rahul Mahajan has strenuously argued that his clients were not in arrears of rent. His clients were always ready and willing to pay the rent to the landlord, but he has not accepted the same. He then argued that the premises were not required bona fide by the landlord for building and rebuilding. According to them, it is only an excuse to get premises evicted from the tenants. 6. Mr. Atul Jhingan has supported the order passed by the learned Rent Controller and the judgment passed by the Appellate Authority. 7. I have heard the learned counsel for the parties and have gone through the pleadings meticulously. 8. It is evident from the examination-in-chief of the landlord Arun Kumar that after the filing of the application, money order was sent to him. However, it was not of full amount of the arrears of the rent so he returned the same. The tenant herself has admitted that she has not paid the 4 rent since 2000 of the premises. There is no evidence on record about sending the amount through post to the landlord. It is in these circumstances that the learned Rent Controller has given findings that the tenants were in arrears of rent with effect from September, 2000 @ ` 100/- per month. 9. Now, the Court will advert to: whether the premises in question were required bona fide by the landlord for building and rebuilding, which could not be carried out without evicting the tenants. AW-1 Smt. Sujata Sharma has produced the record with regard to map Ex.PW-1/A. It was approved as per resolution No. 836 on 25.6.2004. AW-3 Bhagwan Singh, Assistant Manager, State Bank of Patiala had issued certificate Ex.AW-3/A and AW-3/B certifying therein that there were about ` 3,70,000/- in the account of landlord. AW-4 Desh Raj has proved on record R.Ds. in respect of landlord vide Ex.AW-4/A, AW-4/B, AW-4/C, AW-4/D, AW-4/E and AW-4/F amounting to ` 50/- each. AW-5 Kuldeep Kumar, Assistant Post Master, Kangra has proved on record saving account of the landlord vide Ex.PW-5/A. He has also proved copies of pass books Ex.PW-5/B to Ex.PW-5/E wherein the landlord was shown having more than ` 7.5 lakhs in his accounts. AW-6 Pritam Chand, Mason has 5 testified that rebuilding could not be raised without the same being vacated by the tenants. 10. Landlord has appeared as AW-2 and has deposed that he intended to raise a modern building in order to augment his income and the same could not be carried out without being vacated by the tenants. Landlord has also placed on record Ex.P-3 copy of jamabandi for the year 1998-99 and copy of Aks Sajra Ex.P-4. 11. RW-1 Kanchan Devi has admitted that the premises were located in the heart of Kangra town. She has admitted that the building was 50 years old, though she has denied that the wood used in the building has decayed. She has denied the suggestion that the landlord has also got the map sanctioned. RW-2 Ramesh Chand has admitted in his cross-examination that adjoining building has been demolished and new building has come in existence. 12. What emerges from the facts enumerated hereinabove is that the building in question is old and has outlived its life. The landlord has sufficient funds to reconstruct the building in order to augment his income. The building plans have already been sanctioned vide Ex.PW-1/A. According to AW-6 Pritam Chand, the building 6 cannot be reconstructed without the same being vacated by the tenant. 13. Their Lordships of the Hon’ble Supreme Court in Metalware and Company etc. versus Bansilal Sarma and Company etc. (1979) 3 SCC 398 while interpreting section 14 (1) (b) of the Tamil Nadu Buildings (Lease and Rent Control Act , 1960 have held that the Rent Controller is required to take into account all the surrounding circumstances including not merely the factors of the landlord being possessed of sufficient means or funds to undertake the project and steps taken by him in that regard but also the existing condition of the building, its age and situation and possibility or otherwise of its being put to a more profitable use after reconstruction. Their Lordships have further held that if the building happens to be decrepit or dilapidated it will readily make the bona fide requirement of the landlord, though that by itself in the absence of any means being possessed by the landlord would not be sufficient. Their Lordships have held as under: “6. As stated earlier it cannot be disputed that the phrase used in S. 14 (1) (b) of the Act is 'the building is bona fide required by the landlord' for the immediate purpose of demolition and reconstruction and the same clearly refers to the bona fide requirement of the landlord it is also true that the requirement in terms is not that the building should need immediate demolition and reconstruction. But we fail to appreciate how the state or condition of the 7 building and the extent to which it could stand without immediate demolition and reconstruction in future would be a totally irrelevant factor while determining "the bona fide requirement of the landlord". If the Rent Controller has to be satisfied about the bona fide requirement of the landlord which must mean genuineness of his claim in that behalf the Rent Controller will have to take into account all the surrounding circumstances including not merely the factors of the landlord being possessed of sufficient means or funds to under take the project and steps taken by him in that regard but also the existing condition of the building, its age and situation and possibility or otherwise of its being put to a more profitable use after reconstruction. All these factors being relevant must enter the verdict of the Rent Controller on the question of the bona fide requirement of the landlord under S. 14 (1) (b). In a sense if the building happens to be decrepit or dilapidated it will readily make for the bona fide requirement of the landlord, though that by itself in the absence of any means being possessed by the landlord would not be sufficient. Conversely a landlord being possessed of sufficient means to under take the project of demolition and reconstruction by itself may not be sufficient to establish his bona fide requirement if the building happens to be a very recent construction in a perfectly sound condition and its situation may prevent its being put to a more profitable use after reconstruction. In any case these latter factors may cast a serious doubt on the landlord's bona fide requirement. It is, therefore, clear to us that the age and condition of the building would certainly be a relevant factor which will have to be taken into account while pronouncing upon the bona fide requirement of the landlord under S. 14 (1) (b) of the Act and the same cannot be ignored. 7. We would like to observe that each side has adopted an extreme stand on the question at issue which is obviously incorrect. On the one hand counsel for the appellant urged that the words 'bona fide required' refer to 8 the condition of the building and not to the honest or bona fide intention entertained by the landlord to undertake demolition and reconstruction, suggesting thereby that the condition of the building should be a decisive factor while counsel for the respondent on the other hand contended that that aspect was totally irrelevant and the bona fide requirement of the landlord should be determined on the basis of factors such as the financial capacity of the landlord to undertake the project and whether he had taken any steps in that behalf etc. We do not agree that old age and dilapidated condition of the building is a sine qua non or a decisive factor for eviction under S. 14 (1) (b) nor is it possible to accept the view that the said circumstances in totally irrelevant in pronouncing upon the bona fide requirement of the landlord. We are clearly of the view that the age and existing condition of the building - whether it is a recent construction or very old and whether it is in a good and sound condition or has become decrepit or dilapidated - are relevant factors forming part of 'all the circumstances' that having to be considered while determining the bona fide requirement of the landlord under S. 14 (1) (b) of the Act and in the totality of the circumstances these factors may assume lesser or greater significance depending upon whether in the scheme of the concerned enactment there is or there is not a provision for reinduction of the evicted tenant into the new construction. Such a view would be in accord with the main objective of the benign legislation enacted with the avowed intention of giving protection to the tenant.” 14. In P.ORR and sons (P) Limited versus Associated Publishers (Madras) Limited, (1991) 1 SCC 301, their Lordships of the Hon’ble Supreme Court have held that the Tamil Nadu Buildings (Lease and Rent Control Act, 1960 does not accept the requirement by the landlord as a bona 9 fide requirement within the meaning of the provision unless the condition of the building, in the context of the relevant circumstances, requires demolition. Their Lordships have held as under: “30. We accordingly hold that S. 14(l)(b) is satisfied only if the building is bona fide required by the landlord for the "immediate", i.e., direct, sole and timely purpose of demolishing it with a view to erecting a new building on the site of the existing building. Various circumstances such as the capacity of the landlord, the size of the existing building, the demand for additional space, the condition of the place, the economic advantage and other factors justifying investment of capital on reconstruction may be taken into account by the concerned authority in considering an application for recovery; but the essential and overriding consideration which, in the general interests of the public and for the protection of the tenants from unreasonable eviction, the legislature has in mind is the condition of the building that demands timely demolition by reason of the extent of damage to its structure making it uneconomical or unsafe to undertake repairs. While the condition of the building by itself may not necessarily establish the bona fide requirement under clause (b), that condition is not only one of the various circumstances which may be taken into account by the Controller, but it is the essential condition in the absence of which it would not be possible for the land-lord to prove that he has a bona fide requirement which is timely, directly and solely for the purpose of demolition of the building. The Act does not accept the requirement by the landlord as a bona fide requirement within the meaning of the provision unless the condition of the building, in the context of the relevant circumstances, requires demolition. These are matters which are to be proved by evidence.” 10 15. It will be apt at this stage to refer to section 14 (b) of the Tamil Nadu Buildings (Lease and Rent Control Act , 1960, which reads thus: “14 (b)- that the building is bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished.” 16. Section 14 (b) of the Tamil Nadu Buildings (Lease and Rent Control Act, 1960 is not pari materia with section 14 (3) (c) of the Himachal Pradesh Urban Rent Control Act, 1987. Section 14 (3) (c) of the Himachal Pradesh Urban Rent Control Act, 1987 reads thus: “14 (3) (c)- in the case of any building or rented land, if he requires it to carry out any building work at the instance or the Government or local authority or any Improvement Trust under some improvement or development scheme or if it has become unsafe or unfit for human habitation or is required bonafide by him for carrying out repairs which can not be carried out without the building or rented land being vacated or that the building or rented land is required bonafide by him for the purpose of building or re-building or making these to any substantial additions, or alterations and that such building or re-building or addition or alteration can not be carried out without the building or rented land being vacated.” 17. Their Lordships of the Hon’ble Supreme Court in Shyamlal Agarwal versus Ratanlal Malviya (dead) by LRs, 1991 Supp. (2) SCC 449 had the occasion to construe section 12 (1) (h) of M.P. Accommodation Control Act, 1961. 11 Section 12 (1) (h) of the Act permits eviction of tenant from any accommodation on the ground that the accommodation is required bona fide by the landlord for the purpose of building or rebuilding or making therein any substantial addition or alteration. The language employed in section 12 (1) (h) of the M.P. Accommodation Control Act, 1961 is more akin to the phraseology employed in section 14 (3) (c) of the Himachal Pradesh Urban Rent Control Act, 1987. Their Lordships after interpreting section 12 (1) (h) have held that the building should be in a dilapidated condition requiring repair or demolition was not a statutory requirement. Their Lordships have further held that there is no statutory requirement that while considering the bona fide need of the landlord for reconstruction of the accommodation the building must necessarily be in a dilapidated condition requiring repair without demolition. However, their Lordships have held that even in the absence of such a provision dilapidated or otherwise, condition of the building would be one of the relevant circumstance while considering the bona fide of the landlord under section 12 (1) (h) of the Act although that could not be a decisive circumstance in determining the question of bona fide need. Their Lordships have held as under: “3. Learned counsel for the appellant urged that the High Court has failed to record any finding that the shop in 12 dispute was in dilapidated condition or that, it required reconstruction, in the absence of such a finding the landlord' & bona fide need could not be upheld. He placed reliance on a number of decisions but since none of them relate to interpretation of S. 12(1)(h) of the Madhya Pradesh Accommodation Control Act, 1961, it is not necessary to refer to those decisions. S. 12(1)(h) of the Act permits eviction of tenant from any accommodation on the-ground that the accommodation is required bona fide by the landlord for there purpose of building or rebuilding or making therein any substantial, addition or alteration. There is no statutory requirement that while, considering the bona fide need of the land-lord for reconstruction of the accommodation the building must necessarily be in a dilapidated condition requiring repair. or demolition. Unlike other Rent Control Laws the Madhya Pradesh Accommodation Act does not expressly provide for any such condition. But even in the absence of such a provision dilapidated or otherwise, condition of the building would be one of the relevant circumstance while considering the bona fide need of the landlord under S. 12(1)(h) of the Act, although that could not be a decisive circumstance in determining the question of bona fide need. Bona fide requirement of the landlord under S. 12(1)(h) may include many relevant factors i.e. the need of the landlord to put the building for better use to obtain higher income, the condition of the building, shortage of accommodation and necessity of having larger accommodation. the capacity of the landlord to rebuild the accommodation, his financial resources etc. All these factors are relevant for the purposes of determining tile question whether the accommodation is required bona fide by the landlord for the purpose of rebuilding the accommodation.” 18. Their Lordships of the Hon’ble Supreme Court in Vijay Singh and others versus Vijayalakshmi Ammal, 13 (1996) 6 SCC 475 had again the occasion to consider section 14 (1) (b) of the Tamil Nadu Rent Control Act. Their Lordships have culled out the following principles: “For granting permission under Section 14(1)(b) the Rent Controller is expected to consider all relevant materials for recording a finding whether the requirement of the landlord for demolition of the building and erection of a new building on the same site is bonafide or not. For recording a finding that requirement for demolition was bonafide, the Rent Controller has to take into account: (1) bonafide intention of the landlord for from the sole object only to get rid of the tenants; (2) the age and condition of the building; (3) the financial position of the landlord to demolish and erect a new building according to the statutory requirements of the Act. These are some of the illustrative factors which have to be taken into consideration before an order is passed under Section 14(1)(b). NO court can fix any limit in respect of the age and condition of the building. That factor has to be taken into consideration along with other factors and then a conclusion one way or the other has to be arrived at by the Rent Controller.” 19. The principle laid down in Vijay Singh and others versus Vijayalakshmi Ammal, (1996) 6 SCC 475 were explained and reiterated in Amaiyappa Transport versus N.S. Rajulu, (2002) 9 SCC 437 as well. 20. In R.V.E. Venkatachala Gounder versus Venkatesha Gupta and others, (2002) 4 SCC 437 their Lordships of the Hon’ble Supreme Court have laid down the following parameters under section 14 (1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960: 14 “11. We may refer to two decisions of Madras High Court. In S.Raju and others Vs. K. Nathamani, 1998 (3) LW 214, the Constitution Bench decision has been followed and it has been held that when new buildings with modern amenities have come up in that locality, naturally the building in question may become unsuitable to the surroundings and a liability, in its present condition, to the landlord. Keeping the building in the same condition will amount to asking the landlord to shoulder the burden for ever. Tenants may be satisfied with the present state of the building since they have to pay only a nominal rent but the Rent Control Legislation, beneficial to the landlord and the tenant both, should be interpreted in that way. For the purpose of proving his bona fides the landlord need only show that he has got the capacity to raise the necessary funds. In A.N. Srinivasa Thevar Vs. Sundarambal alias Prema W/o. Chandrakumar, 1995 (2) LW 14, even before the decision by Constitution Bench in Vijay Singh's case was available, it was held in the light of the decision in P. Orr & Sons that the availability of the following factors was sufficient to make out a case of bona fide requirement under Section 14(1)(b): "(a) Capacity of the landlord to demolish and to reconstruct is undisputed and also proved satisfactorily; (b) The size of the existing building occupies only one third of the site, leaving two third behind vacant and unutilized; (c) Demand for additional space: The demised premises is situated in a busy locality. Therefore, there is a great demand for additional space in the locality which could be met by demolishing the existing small building and putting up a larger building providing for future development vertically also, by building pucca terraced building; (d) The economic advantage: A modern construction of a larger building shall certainly yield better revenue and also appreciate in value, when compared to the asbestos sheet roofed old building." In that case, it was observed that the existing building was an old, out-model asbestos sheet building proposed to be replaced with better and modern building which would provide for better quality accommodation to the needs of the present 15 days as the preservation of such building in a busy locality of a town shall not only be an eyesore but also against the souring public demand for additional space. Viewed from the angle of general interest of the public which, according to the decision in P. Orr & Sons is one of the considerations, it was observed that a big site should yield to a larger modern building with an increased and enlarged accommodation having better facilities to solve the ever increasing demand for more space. Stalling growth and development for the sake of one tenant who is in occupation of an old model building constructed with mud and mortar and asbestos sheets occupying only one third of the site was held to be not conducive to public interest. We approve the statement of law and the approach adopted by Madras High Court in both the above said decisions. The structural and physical features and the nature of the construction of the building cannot be ignored. Even in P. Orr & Sons, this Court was of opinion that various circumstances, such as the capacity of the landlord, size of the existing building, the demand for additional space, the condition of the place, the economic advantage and other factors, justifying investment of capital on reconstruction may be taken into account by the concerned authorities, while considering the requirement for reconstruction of the building as the essential and overriding consideration in the general interest of the public and