IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 41 of 2010 Judgment Reserved on : 29.7.2010 Date of Decision : 16.9. 2010. Smt. Rukmani Devi and others …Petitioners Versus Pyare Lal Sood ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioners : Mr. G.D.Verma, Senior Advocate with Mr. B.C.Verma, Advocate. For the Respondent : Mr. Satyen Vaidya, Advocate. Kuldip Singh , Judge The petitioners were respondents in Rent Application No.50-2 of 2002. The learned Rent Controller, Court No.(V), Shimla has ordered their eviction under Section 14 of the H.P.Urban Rent Control Act, 1987 (for short ‘Act’) which has been affirmed by learned Appellate Authority, Shimla on 24.2.2010 in Civil Misc. Appeal No. 4-S/14 of 2009. 2. The facts, in brief, are that respondent had filed petition under Section 14 of the Act against the petitioners on the grounds of arrears of rent at the rate of Rs.550/- per annum from January 2002 onwards, premises in question has 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 become unfit and unsafe for human habitation and the same is required by him bonafide for the purpose of rebuilding and re-construction. The premises in question is more than 100 years old. It has outlived its value and utility. It has become dilapidated, unfit and unsafe for human habitation. The walls, floors, roof have worn out. The walls are also out of plumb and have developed big cracks. The rebuilding and reconstruction cannot be carried out unless premises is vacated. 3. The petition was contested by filing reply. The objections of maintainability, estoppel, malafide and concealment of material facts were taken. The relationship of landlord and tenant was admitted. The rent of the premises according to petitioners is Rs. 400/- per annum inclusive of taxes. The old and dilapidated wooden stair was replaced by iron stair by petitioners with the consent of respondent. It has been submitted that the rent upto date has already been paid. The building is in good condition and it does not require re- construction and re-building. 3. On the pleadings of the parties, the following issues were framed:- 1. Whether the respondent is in arrears of rent ? OPP. 2. Whether the premises in dispute has become unfit and unsafe for human habitation and as such are bonafide required for the purpose of rebuilding and reconstruction? OPP 3. Whether the present petition is not maintainable in the present form? OPR. 3 4. Whether the present petition has been filed with malafide intention? OPR 5. Whether the petitioner is estopped from filing the present petition on account of his own acts, deeds and conducts? OPR 6. Relief. The issues No.1 and 2 were answered in affirmative and issues No.3 to 5 in negative. The learned Rent Controller allowed the petition and held that petitioners are in arrears of rent w.e.f. January, 2002 at the rate of Rs. 400/- per annum amounting to Rs. 2400/-. The respondent was held entitled to interest at the rate of 9% per annum on the arrears of rent. It was also held that the premises in question has become unfit for human habitation and the same is required by the respondent for the purpose of rebuilding which cannot be carried out unless it is vacated. The learned Appellate Authority on 24.2.2010 has affirmed the ejectment order dated 19.11.2008 passed by the learned Rent Controller, hence tenants have come in revision. 4. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the petitioners has submitted that the two authorities below have erred in returning the finding that petitioners are in arrears of rent at the rate of Rs.400/- per annum from January 2002 onwards. It has also been submitted that learned Rent Controller as well as learned Appellate Authority have misconstrued and mis-interpreted the evidence in returning 4 the finding that premises in question is bonafide required by respondent for reconstruction which cannot be carried out unless premises is vacated. The learned counsel for the respondent has submitted that the two authorities below have concurrently held in favour of respondent issues of arrears of rent and bonafide requirement of respondent for reconstruction of the premises in question which cannot be carried unless the premises is vacated by the petitioners. He has supported the ejectment order passed by the learned Rent Controller and affirmed by the learned Appellate Authority. 5. The learned counsel for the petitioners has submitted that there is no sanction plan for raising the construction, the eviction cannot be ordered on the mere asking of the landlord. The premises cannot be reconstructed unless there is a sanction plan. In absence of sanction plan, the ejectment of the petitioners from the premises will be futile. The respondent has not pointed out what kind of construction is to be raised by him. The premises is situated in core area of Shimla where construction is not permissible. It has been submitted on behalf of the petitioners that desire of the landlord is not enough to vacate the petitioners. There is no legal evidence on record to allow the petition. 6. PW-1 Pyare lal Sood has stated that he is the owner of the premises. The building is about 100 years old. One side of the building has sunk as a result of which the building has tilted. The building is of dhajji wall construction with mud 5 plaster which has fallen at various places. There is seepage of water in the walls as a result of which walls have become damp. There are cracks in the walls as well as in the floor. The wood in dhajji walls, windows and doors has rotten. The building was repaired in the year 1983-84 but despite that its condition has not improved. Now, the condition of the building is very bad. It is not habitable. He wants to reconstruct the building on old lines. The reconstruction will start from base and new construction cannot be raised without demolishing old structure and unless the premises is vacated by the petitioners. 7. The respondent has stated that the rent of the premises is Rs. 550/- per annum which has not been paid. The building was got inspected by an expert who gave his report. He has some money for reconstruction and remaining amount he will arrange by raising loan from the bank. In cross-examination, he has stated that he has not submitted the plan of reconstruction to Municipal Corporation, Shimla but stated that he has requested the Engineer to prepare the plan. He has submitted that Rs.5,00,000/- to Rs.7,00,000/- would be required for new construction. He has stated that he has consulted the bank for loan. He has denied that rent is Rs.400/- per annum and entire rent has already been paid. 8. PW-2 Desh Raj Sharma has stated that he is an Architect. The petitioner had requested him for inspection of the building in question. He has inspected the building and 6 prepared report Ex.PW-2/A which is correct as per spot. He also took photographs of the building Ex.PW-2/B to Ex.PW- 2/G, negatives Ex.PW-2/B-1 to Ex.PW-2/G-1. He has proved the site plan Ex.PW-2/H of the building. In cross- examination, he has stated that he had inspected the premises from inside and outside, at that time Jagan Nath was there. The tenants are occupying three storeys and landlord one storey of the building. 9. RW-1 Vivek Karol has stated that on the asking of Jagan Nath he carried out the inspection of the building on 24.5.2004 and prepared report Ex.RW-1/A. The building is of dhajji walls and bricks. In cross-examination, he has stated that if existing structure is replaced by RCC structure then occupants cannot reside. He has also stated that if RCC pillars and beams are to be laid at the place of existing foundations, then entire structure will have to be demolished. The building according to him is 60 – 70 years old. He has admitted that photographs Ex.PW-2/B, Ex.PW-2/G are of the building. 10. The petitioner No.3 has appeared as RW-2. He has stated that earlier the rent of the premises was Rs.400/- per annum. Now during the pendency of the petition, it has been increased to Rs. 600/- per annum. He has stated that the condition of the building is good. In cross-examination, he has stated that the shop is with his father for the last more than 60 years. He has paid rent upto 2005 to the respondent. He 7 has admitted photograph Ex.PW-2/B. He has stated that photograph Ex.PW-2/G is also of the same building which is shown in Ex.PW-2/B. He has stated that he does not know that respondent wants to reconstruct RCC frame structure after demolishing the building in question. RW-3 Satish Kumar has stated that the building is 30-40 years old. He has denied that building is of dhajji construction. 11. In Ex.PW-2/A it has been recorded that building is not habitable as it has dampness. The rooms, toilet and kitchen are not built according to specification and are unsafe due to the settlement of foundation, load bearing walls are out of plumb, dhaji walls got decayed and floors have sunk. The building cannot be repaired in ordinary way due to cracks in the wall and sinking of floors. The building is more than 100 years old. The building cannot be reconstructed if it is not completely vacated. The photographs Ex.PW-2/B to Ex.PW-2/G indicate bad condition of the building. In technical report Ex.RW-1/A of the expert of the petitioners, it has been stated that re-construction of the building if required at any time is possible without vacating the entire premises. RW-2 in his statement however has stated that if RCC structure is to be raised, then existing structure will have to be demolished. 12. The Supreme Court in Prem Chand alias Prem Nath Vs. Shanta Prabhakar (Smt.) (1998) 1 SCC 274 has held as follows :- 8 “ 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 9 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.” 13. In Jagat Pal Dhawan Vs. Kahan Singh (dead) by LRS. and others (2003) 1 SCC 191, the Supreme Court has 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 reconstruction obviously his requirement would remain a mere wish and would not be bona fide.” 10 14. In Amar Nath vs. Mrs. Balbir Kochhar and others 1997 (1) S.L.C. 227, it has been held that funds is only a circumstance in order to test the bona fide of the landlord and it is not a statutory requirement. The funds can be arranged from financial institutions. In Naresh Kumar and others vs. Surinder Paul 2001 (2) S.L.C. 337, Harswarup vs. Ram Lok Sharma, 2000 (3) S.L.C. 160 and Amarjeet Singh vs. Anju Rani 1997 (1) SLC 492, it has been held that mere fact of the landlord has not obtained necessary permission from 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. In Naresh Kumar (supra), it has also 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. The Supreme Court in P.S. Pareed Kaka and others vs. Shafee Ahmed Saheb 2004 (1) R.C.R. 503, has held that even if the building is in good condition, if it is not suitable for the landlord, he can always demolish such building and put up a new building as per his requirement. 15. The condition of the building is bad. One side of the building has sunk and therefore, the building has tilted. The building is 100 years old. The walls, floor have developed cracks. The building is of dhaji walls with mud plaster which has fallen from many places. The walls are damp. The 11 respondent has asked his Engineer to prepare the plan of new construction which cannot be carried out unless premises is vacated. The estimated cost of construction is Rs.5,00,000/- to Rs.7,00,000/-. The respondent has some money and for rest of the money he had talked to the bank. The sanctioning of plan is not sine qua non for eviction on the ground of re- construction. In core area construction can be raised with the permission of Government. The respondent has proved his bonafide requirement for raising construction which cannot be carried out unless premises is vacated. He has also proved that petitioners are in arrears of rent as held by the two authorities below. 16. The learned counsel for the respondent has submitted that in the same building another tenant Shiv Nath has accepted the ejectment order and a coordinate Bench on 21.10.2009 in Civil Revision No. 109 of 2009 has passed the consent order. The order dated 21.10.2009 has been relied by the learned counsel for the respondent in order to support his submissions that tenant in Civil Revision No. 109 of 2009 after admitting the reality and condition of the building and requirement of the landlord to reconstruct the building has agreed for consent order. The passing of ejectment order against another tenant in the same building in CR No.109 of 2009 has not been denied by learned counsel for petitioners. 17. The two Courts below have appreciated the evidence on record and thereafter recorded findings that 12 petitioners are in arrears of rent and premises is required bonafide by the respondent for reconstruction which cannot be carried out unless the premises is vacated. In Naresh Kumar (supra) 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. The petitioners in the present case could not bring their case within the parameters laid down in Naresh Kumar (supra).The two Courts below have rightly appreciated the material on record. The petitioners have failed to make out any case for interference. There is no merit in the revision. 18. In view of the above discussion, the revision fails and is accordingly dismissed with no order as to costs. CMP No. 386 of 2010 also stands dismissed. . September 16, 2010. ( Kuldip Singh ) (GR) Judge.