IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No.:85/2010 Reserved on: 8.4.2011 Decided on:28.4.2011 _____________________________________________ Jagdish Chand. …Petitioner. Versus Kangra Ram. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. K.D. Sood, Advocate. For the Respondent: Mr. N.K. Sood, Advocate. _____________________________________________________ Rajiv Sharma, Judge. This Revision Petition is directed against the judgment dated 26.7.2010 passed by the learned Appellate Authority, Hamirpur in Rent Appeal No. 4 of 2008. 2. Material facts necessary for the adjudication of this petition are that the respondent-landlord (hereafter referred to as ‘landlord’ for convenience sake) filed petition, under section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as ‘the Act’ for brevity sake) against the petitioner-tenant (hereinafter referred to as ‘tenant’ for 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 convenience sake) before the Rent Controller, Hamirpur on the following grounds: 1. “The respondent has not paid the rent as damages since October, 1996 till date for use and occupation of the demised premises at the rate of Rs. 200/- per month. 2. The building has been burnt in devastating fire on 21.3.2002 in which the first floor was completely burnt and the roof of the ground floor was partially burnt. Even otherwise the ‘Karies’ and rafters of the roof of ground floor are completely worn out and the supports have been provided by the respondent after the fire incident in the form of six iron girders. The walls of the demised premises as well as first floor have developed big cracks. Some of the 11 to 12 inches in width and a length from ground to the end of the first floor. The flooring is also badly damaged. The building is in such a condition which may collapse at any time and is unsafe and can only be re-built and cannot be repaired. The inspection report dated 23.3.2002 of Sh. K.D. Sharma, Retired Assistant Engineer, H.P. PWD (B&R) and another inspection report dated 26.3.2002 of Sh. Arvind Sharma Architect, New Road, Hamirpur (H.P.) are appended herewith. 3. That the respondent has made the following alterations, additions and repairs without the consent of the petitioner either oral or written:- a. The respondent has plugged the cracks in the walls with earth mortar and kucha bricks. The cracks are still visible. b. The steel channel frame counting of six numbers have been used to make a frame as a permanent support for ground floor roof, since the first floor is made of wooden karies and ballies which are completely worn out and have outlived their life. c. Brick work is used in the outer wall bottom of the roof top girder in the gap of the roof covering and walls and cement mortar is used. 3 d. Old wooden roof framing, i.e. old wooden girder, karies and slates have been replaced with new wooden karies, steel girder and roof slates are replaced by 19 corrugated tin sheets. e. Central rook and outer verandah which has been re-plastered and while washed after the repair done to the middle room and outer verandah. All these additions and alterations and repairs are permanent in nature and have been done after the fire incident of 21.3.2002 without the consent of the petitioner. The assessment work report dated 2.8.2002 of Sh. Arvind Sharma, Architect, Hamipur, (H.P.) is appended herewith. 4. That building cannot be repaired and can only be reconstructed. The petitioner wants to reconstruct the building having three storeyed instead of two storeyed with the latest technology for better monetary returns and also wants to utilize and cover his vacant land in the back as well as front of the demised premises.” 3. Learned Rent Controller framed issues on 10.5.2006. Rent Controller held that monthly rent of premises was Rs. 150/- and the tenant was in arrears of rent since January, 1998. Rent Controller also returned a finding that the premises have become unfit and unsafe for human habitation. Rent Controller also held that the premises were bona fide required by the landlord for the purpose of building and rebuilding, which could not be carried out without vacating the building. The tenant preferred an appeal before the Appellate Authority. The Appellate Authority dismissed the appeal on 4 26.7.2010. Hence, this revision petition against the judgment dated 26.7.2010. 4. Mr. K.D. Sood has strenuously argued that the landlord has not proved his bona fide for the purpose of building and rebuilding of the premises. According to him, the premises could be constructed without vacating the same. He also argued that one Sh. Sita Ram Chaman is also the tenant in the premises and till he is evicted, the building cannot be reconstructed. He lastly contended that the premises have not become unfit and unsafe for human habitation. 5. Mr. N.K. Sood has supported the judgments passed by the Rent Controller as well as Appellate Authority. 6. I have heard the learned counsel for the parties and have perused the pleadings carefully. 7. Landlord has appeared as PW-6. He has deposed that the tenant has not paid rent with effect from October, 1996 @ ` 200/- per month. He has also deposed that he got the site plan Ex.PW-2/A approved from the Municipal Council, Hamirpur. He issued notice to the tenant vide Ex.PW-6/A. 8. PW-1 Prem Dass has deposed that he has seen the demised premises. These were burnt in a fire. The shop was not in a good condition. The roof was burnt and the building was likely to collapse down. PW-2 Ashwani Kumar has deposed 5 that he visited the spot and the site plan Ex.PW-2/A was approved by the Executive Officer. PW-3 Arvind is an Architect. He visited the spot and gave his reports Ex.PW-3/A and Ex.PW- 3/B. He visited the spot on 26.3.2002 and thereafter in the month of August, 2002. PW-4 Rajinder Nath has deposed that suit premises were gutted in fire on 21.3.2002. It was made of kucha bricks and was slate-posh building. PW-5 A.S. Jaswal has proved on record copies of F.D.Rs. 9. Tenant has appeared as RW-1. He has deposed that he was tenant on the ground floor and on the first floor, Sita Ram Chaman was tenant. He admitted that the shop was burnt in fire about 5-6 years back. He carried out repairs in the building after getting permission from the Rent Controller. According to him, the building was in habitable condition. He has paid rent upto the year 1998. 10. RW-2 Surender Kumar and RW-3 B.R. Sharma have supported the version of tenant. According to them, the shop was not likely to collapse. 11. RW-4 Sita Ram has deposed that he was practicing as an Advocate since 1971. His office was on the upper floor of the premises consisting of three rooms. According to him, all the walls of the premises, in his possession, were in good condition. In his cross-examination, he has admitted that the 6 premises and other two shops were burnt in fire on 21.3.2002. Thereafter, the tenant has put tin sheets with the permission of the court. 12. An application under order 41 rule 27 of the Code of Civil Procedure was also preferred before the learned Appellate Authority. Appellate Authority has permitted the notice dated 5.4.2002 to be taken on record whereby the Executive Officer, Municipal Council, Hamirpur has ordered the landlord to pull down the disputed premises because they were likely to collapse. The tenant had preferred an appeal against the order dated 5.4.2002 before the Collector, Hamipur. The same was dismissed on 1.1.2006. These documents were admitted into evidence as Ex.CA and Ex.CB. 13. What emerges from the oral as well as documentary evidence led by the parties is that the premises are old. These have become unfit and unsafe for human habitation. The building was constructed with mud bricks. It was slate-posh. It was also gutted into fire. The tenant had sought the permission of the Rent Controller to carry out repairs. The walls have become dilapidated. Plaster was worn out and the cracks were filled up with mud. 14. Mr. K.D. Sood submits that ground No.4 taken in the petition is not in conformity with law. In ground No.4, 7 expression used is that the petitioner wants to construct the building having three storeyed instead of two storeyed with the latest technology for better monetary returns and also wants to utilize and cover his vacant land in the back as well as front of the demised premises. However, in the rejoinder filed to the reply, specific plea has been taken that the building was required bona fide and the building and rebuilding could not be done without vacating the same. During the course of hearing, Mr. N.K. Sood has produced before the Court, copy of replication/rejoinder for the perusal of the Court. It is well settled law by now that the plea which is not raised in the petition or in the affidavit, can be taken in the affidavit in rejoinder. Moreover, in this case, tenant was put to notice (See AIR 1965 SC 1578). 15. Mr. K.D. Sood has also argued that on the basis of Ex.RW-3/A, the building could survive upto 80 years. When the ground for building and rebuilding has been taken by the landlord, it was not necessary that the building should be dilapidated. It is for the landlord to decide after proving his bona fide that he requires premises for building and rebuilding, which could not be carried out without vacating the building. In the case in hand, the building is old. The landlord has necessary funds as is evident from the statement of PW-5 A.S. Jaswal, 8 Senior Manager of UCO Bank. The site plan was approved vide Ex.PW-2/A. The landlord has already been issued notice by the Municipal Council, Hamipur on 5.4.2002 to pull down the demised premises. 15. Now, as far as the other ground taken by Mr. K.D. Sood that Sh. Sita Ram Chaman is also one of the tenants is concerned, there is an agreement mark ‘YX’ on record between the landlord and Sh. Sita Ram Chaman to the effect that he would vacate the premises as soon as the landlord requires the same. Sh. Sita Ram Chaman has supported such agreement while appearing as RW-4 in his cross-examination. 17. 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 9 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 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 10 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 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 11 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.” 18. 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 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 12 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.” 19. 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.” 20. 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 13 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.” 21. 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. 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 14 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 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 15 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.” 22. Their Lordships of the Hon’ble Supreme Court in Vijay Singh and others versus Vijayalakshmi Ammal, (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.