IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No.:179/2008 Reserved on: 21.7.2011 Decided on:2.9. 2011 _____________________________________________ Vikas Sood and others. …Petitioners. Versus Hari Dass Sharma …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioners : Mr. Bhupender Gupta, Sr. Advocate with Mr. Neeraj Gupta, Advocate. For the Respondent: Mr. Vikas Bhardwaj, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This revision petition is directed against the judgment dated 23.8.2008 of the learned Appellate Authority rendered in Civil Misc. Appeal No. 28-S/14 of 2007. 2. Material facts necessary for the adjudication of this petition are that the respondent-landlord (hereinafter referred to as ‘landlord’ for convenience sake) filed a petition before the Rent Controller on the ground that the predecessor-in-interest of the petitioners-tenants (hereinafter referred to ‘tenant’ for convenience sake) was in 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 arrears of rent and the premises were required by him bona fide for the purpose of building/rebuilding, which could not be carried out without evicting the tenant. Landlord got issued notice to the tenant, which was replied by him on 11.3.2000 through his counsel. Landlord has also approached the tenant for negotiations and asked him to allow to carry out rebuilding, renovations, additions and alterations but the tenant delayed the matter on one pretext or the other. It is in these circumstances that the landlord has filed the eviction petition against the tenant. 3. Detailed reply was filed by the tenant. Tenant has not disputed the relationship of landlord and tenant. According him, he was not in arrears of rent and the premises were not required bona fide by the landlord for the purpose of building/rebuilding or making additions or alterations in the building. It was also disputed that the building/rebuilding or additions or alterations could not be done without vacation of the demised premises. According to him, stand taken by the landlord is mutually destructive. 4. Rejoinder was filed by the landlord. He has reiterated the averments contained in the petition. Issues were framed by the Rent Controller on 2.5.2003. Rent Controller rejected the contention of the landlord as far as arrears of rent is concerned, however, he ordered the 3 eviction of the tenant on 30.3.2007 on the ground that the premises were bond fide required by the landlord for the purpose of building and rebuilding, which could not be carried out without vacating the premises by the tenant. Tenant preferred an appeal before the Appellate Authority, Shimla. He dismissed the same on 23.8.2008. Hence, the present revision petition. 5. Mr. Bhupender Gupta, Senior Advocate has strenuously argued that the findings recorded by the Rent Controller and Appellate Authority that the premises were required by the landlord bona fide for building/rebuilding which could not be carried out without vacation of the premises is contrary to evidence led by the parties. He then argued that the landlord through his counsel had sent a notice to the tenant on 20.1.2000; vide Ex.PW-3/D that he may facilitate him to undertake to carry out the construction and renovation by erecting pillars from the ground floor so that the tenant would not be disturbed. Mr. Bhupender Gupta has also drawn the attention of the Court to Ex.PW-3/F dated 14.5.2000 whereby the counsel of the landlord had reiterated that negotiations could still be held. He has also argued that as per para 17 of the petition, the landlord had approached his client for negotiations for allowing to build/rebuild or additions/ 4 alterations to the building but the same was not accepted by the tenant under one pretext or the other. Mr. Bhupender Gupta has also argued that the landlord while appearing as PW-3 has admitted that the negotiations were held with the tenant. He has also referred to statement of PW-4 Sh. Yogesh Gautam. 6. Mr. Vikas Bhardwaj has supported the orders passed by the learned Rent Controller and the judgment passed by the Appellate Authority. According to him, the landlord has proved his case to the hilt that the premises were required bona fide for the purpose of building and rebuilding, which could not be carried out without the eviction of the tenant. He has drawn the attention of the Court to Ex.PW-3/E dated 11.3.2000. 7. I have heard the learned counsel for the parties and have gone through the records meticulously. 8. PW-1 Ramesh Chand has testified that on 23.6.1994, reconstruction of the old building has been sanctioned vide Ex.PW-1/A as per sanction plan Ex.PW- 1/B. According to him, the same was extended vide Ex.PW-1/C. 9. PW-2 is Sh. H.S. Bisht. He has proved report Ex.PW-2/A, photographs Ex.PX, spot maps Ex.PW-2/B and Ex.PW-2/C. He has conducted the inspection of the 5 premises on 19.6.2003 and 23.6.2003. According to his report, the building was in dilapidated condition. There were three shops on the ground floor and the building was not fit for habitation. The walls have bulged out and gone out of plumb. The wooden floors were decayed. According to his report, the building shall be commercially and economically beneficial if the same is rebuilt. He has deposed that in case of rebuilding, the building, including the demised premises, is required to be vacated. 10. Landlord has appeared as PW-3. He has deposed that he is owner of the premises on the strength of sale deeds Ex-3/A, Ex.PW-3/B and Ex.PW-3/C. He has further testified that he wants to reconstruct the building after its demolition and according to him the building is in dilapidated condition and the same could not be rebuilt without getting it vacated. He also testified that two upper stories were lying vacant. He has denied the suggestion that the building was not in dilapidated condition. He has also explained that all the adjoining buildings in the area have been reconstructed. He has further deposed that Municipal Corporation has accorded necessary building permission vide Ex.PW-1/B and extension of order for reconstruction on old lines Ex.PW-1/C. Ex.PW-1/C was issued on 27.6.1995 and it was valid only for a period of 6 one year. He has also proved F.D.Rs Ex.PW-3/G-1 to PW- 3-18. PW-4 Yogesh Gautam has supported the version of PW-3. 11. Tenant has produced four witnesses, namely, H.S. Gulati (RW-1), Sanjeev Kumar (RW-2), Prikshit Mehdudia (RW-3) and Vivek Karol (RW-4). RW-1 H.S. Gulati has deposed that negotiations have taken place in the month of November, 2000 between the parties. The landlord has expressed his willingness to reconstruct the building and he asked the tenant for its permission on the ground that the map has been duly approved and sanctioned. According to him, negotiations also took place regarding the manner of construction and time schedule for the completion of construction. According to him, the landlord was asking the tenant only regarding raising pillars inside the premises without disturbing his possession. RW-2 Sanjeev Kumar and RW-3 Prikshit Mehdudia have also supported the version of RW-1. 12. Tenant has also produced RW-4 Vivek Karol, who is a Civil Engineer. According to him, the building is in good condition. It has not developed any cracks and the building can be repaired effectively. He has proved his report Ex.RW-4/A and map Ex.RW-4/B. In his cross- examination, he has admitted that he has not seen the 7 building plan. He has also admitted that upper storeys were lying vacant and the same were locked. He has not taken into consideration the dimensions of the building. 13. What emerges from the facts enumerated hereinabove is that the building in question is 100 years old. It is in a dilapidated condition. Its walls have developed cracks. The wooden planks of the floors are also rotten. The landlord has necessary funds to reconstruct the building. The commercial value of the building will improve manifold if the same is permitted to be rebuilt. The building plan had already been sanctioned vide Ex.PW- 1/B, which was extended vide Ex.PW-1/C for a period of one year in the year 1995. Thereafter, the landlord was required to get it renewed from the competent authority in accordance with law. The landlord has got the premises inspected from PW-2 H.S. Bisht. His report is Ex.PW-2/A. Spot maps are Ex.PW-2/B and PW-2/C and photographs are Ex.PX. The Court has also seen the photographs and the perusal of the same makes it abundantly clear that the building is old and in a dilapidated condition. The landlord has amply proved that he required the building bona fide for the purpose of building and rebuilding and the same cannot be carried out without the same being vacated by the tenant. 8 14. Mr. Bhupender Gupta has strenuously argued that as per the contents of Ex.PW-3/D dated 20.1.2000, the building can be refurbished without evicting the tenant. However, as per the contents of reply Ex.PW-3/E dated 11.3.2000, the tenant has denied that the landlord has ever requested the tenant to allow him to carry out construction by erecting pillars on the ground floor. The landlord has also stated in para 17 of the petition that he has made several efforts to settle the matter but the response of the tenant was lukewarm. It is also evident from the reply Ex.PW-3/F dated 14.5.2000 filed to Ex.PW-3/E dated 11.3.2000 that the landlord was always open to negotiations with the tenant. It is also evident from the statements of PW-3 and PW-4 that at one given time they were open to settle the matter with the tenant. According to PW-4, negotiations were held in 1990. However, the fact of the matter is that negotiations were not fruitful and the landlord has to file the eviction petition to get the premises vacated for the purpose of building/rebuilding, which could not be carried out without vacating the tenant. The landlord while appearing as PW-3 has denied the suggestion that the building could be reconstructed without vacating the same. Both the courts below have 9 correctly appreciated the oral as well as documentary evidence led by the parties. 15. 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 10 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 11 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.” 16. 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 12 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.” 13 17. 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.” 18. 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.” 19. 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. 14 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 15 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.” 20. Their Lordships of the Hon’ble Supreme Court in Vijay Singh and others versus Vijayalakshmi Ammal, 16 (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.” 21. 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. 22. In R.V.E. Venkatachala Gounder