-^. j '^ ^.-^»....,^^^^,,-^ •Ih IN THE HON'BtiE HIGH OOURT OF GHHATTISGAKH AT BIIiASSUR A\^^ C,R. €^^^ /2003 S.B. (REVISION XJ/S 23E C.G. ACGOMMODATION GONTM3L%CT._1 <" APPLICANT JaftNDLORD ^.-^ ^ s^^" ^^Q^ ..y>^ Saheb lal Namdeo aged about 63 years S/o late Shri Kanhaiya Lal Namdeo^ Retd» Govt» Servant Pensioner^ R/o Bhagat Singh Chowk^ Dongargarh^ Tahsil Dorxgargarh^ District Rajnandgaon (C»G<») Senior citizen, •^' VERSUS ^ ^dN-APPLI CANT/ 'TENENT L.R. OF ORIGINAL. NON-APPLI CANTAENENT . ^ s l^y" Raju Shandilya S/o Late Shri Sondhulal Shandilya^ aged about 45 years^ R/o Bhagat Singh Chowk^ Dongargarh, District Kajnandgaon (G.G.) • , \^' REVI_SION JJNDER SECTION 23 E C.G. ACCO 4iOI)AlION OONTROL w^"" ACT AGAINST 2HE 0|®ERDATED 07-0^^^^^^^ 1/X/^0(7) YEAR 96-_97 BY I'EA8NED RENT OONTROLLING AUTHORITY DONGARGARH DISTRIGr RAJNANDGAON. s^ .y=>- HI^H COURT OF CHHATTIS6ARH ATBILASPUR C.R. No. 247/2003 Applicant Saheb Lal Namdeo Versus Respondent Raju Shandilya Postfor 3/ /03/2005 Sd/- Dhirendra Mishra Judge HI6H COURT OF CHHATnSGARHATBILASPUR € Applicant C.R. No. 247/2003 Saheb Lal Namdeo Versus Respondent Raju Shandilya Shri Yashwant Tiwari counsel for the applicant. Shri Prafull Bharot counsel for the respondent. OR D E R '.€. 7^ (Passed on3( -3-2005) This revision petition has been filed by the applicant under Section 23 (E) of the C.G. Accommodation Control Act Oiereinafter referred to as Act for brevity) against the order dated 07/06/2003 passed by Kent Controlling Authority, Don9argarh in Case No. Ol/A/90 (7) 1996-1997. By the said order, the application of the appiicant filed for eviction of the non applicant under Section 23 (A) of the Act hcis been rejected. 2) Case of the applicant before the Court below was that the applicant was the owner of the suit accommodationsttuated in -2- 5 f: <- — <2..— Bandhowa Chowk, &on9argarh which was purchased by him on 15/05/92 through a registered sale deed from its erstwhile owner namely Smt. Nirmala Tumane. The said accommodation was given on rent to -Hie non applicant by Nirmala Tumcme on monthly rent of Rs. 60/- for his residence omd running the tailoring shop. Subsequently, the appliccmt informed the non applicant that the ^xid accommodation was purchased by him and thus, he became the kmdlord of the same. Application for eviction was filed on the ground that the non applicant had not paid rent for the period from 15/05/92 to 31/07/96 despite notice and thus, he wos entitled to recover rent of Rs. 2310/- for the period from 15/05/92 to 31/07/96 @ Rs. 60/- per month. The applicant also took the ground of bona fide need of the said accommodation for opening of the stationery shop and since the condjtion of the said accommodation had become dilapidated and the reconstruction of the same was not possible without obtaining the vaccint possession thereof, the application for eviction w<xs filed. The cpplicant was Assistant Accountdnt in District Court, Durg and he retired on 31/07/96. 3) The non appJicant in his reply denied the ownership of the applicant for wouit of knowledge. Itwas submJtt-ed by him that he being an old and poor person was residing in the said house on monthly rent of Rs, 8A for last 40 years and in 5' x 5' portion of the front verondah of the sajd house hewas carryin9 on the business of toiloring. He further pleaded that the applicant is possessed of well furnished residential accommodation which coutd be used by him for non residential purpose also and this fact has been suppressed by hitn^TTie non -3 ^ .--^. ;--€ <, —3- applicant further pleaded that he was never the tenont of the cipplicant. Non applicant has also pleaded that earlier he had contacted Nirmala Tumane to purchase the said accommodation and even after the poyment of advance money towards the same said Nirmala Tumane resiled from her stand and in that connection he had preferred an objection to the Re9istrar. The non-opplicant further pleaded that the application for eviction on the ground of non-poyment of rent is not maintainable under the provisions of Section 23-A of the Act as the regular Civil Suit under Section 12 (1) A of the Act was maintainable and thus the Rent Controlling Authorit/ had no jurisdiction to grant decree of eviction under Section 23 - A of 1+te Act. According to the non-opplicant the application for eviction was not maintain'able also on the ground of bona fide need for non- residential purposes though the applicant has averred that vacant possession of the accommodation was required for its reconstruction which according to the applicant was not possible without obtaining its vacant possession. However, no documents have been filed to show that the permission was obtained from the concern Municipality nor the proposed map of the construction etc. have been submitted which shows that the application for eviction was filed by the applicant malafidely, It was further pleaded by the non-dpplJcant that the applicant is possessed of a well furnished accommodation just adjacent to the disputed accommodation which is more than the requirement of the applioant ond his family members and the front portion of which is lying vacant which can be used by the applicant for the purpose mentioned above. -^'v-^ll^^lliilil ^iiSiS \J >.-: f. ^ -^- 4) Earlier the non-applicant had filed an applJcation on 09-04-1997 for leave to defend which wcus subsequently rejected by the Rent Controlling Authority on 12-01-1998 and the non-applicant was directed to give vacant possession of the disputed accommodation within two months there-from. Against the order dated 12-01-1998 the Civil Revision No. 1436/98 was preferred by the original non-applicant which was albwed by the Hjgb Court of M.P. on 22-09-1999, the order dated 1Z-01- 1998 was set aside and the matl-er was remanded back to the ftent Controlling Authority, Dongargarh with a direction to decide the same on merits in accordonce with law after giving due opportunity of hearin9 to both the parties. 5) The non-applicant filed an application under Section 37 of the Act statln9 that roof of the said accommodation had become dilapidated and if the Mime is not repaired it may collapse any day and therefore he may be permitt-ed to carry out necessary repair work In the said house. It was also stated by the non- applicant that as he could not deposit the r-ent as directed by the Hi9h Court. he may be permitl'ed to get the repair work done from the amount of rent payable by him to the flpplicant and the account for repair work shall be furnished by him. 6) The landlord also moved an applicatJon under Section 23 (H) of the Act on 24-11-1999 stating that as the non-cypjicant had not deposited the rent his defence should be struck off. The ftent Controlling Authority by order dated 15-03-2000 directed the non-Qpplicont to pay the rent to the applicant up to Feb. 2000 -5- .< -$-- and to furth^r submit the estimate of the expenditure incurred for repairs. Subsequently, estimate regarding expenditure of fts. 3090/- was submifted by the non-opplicant which was obtdned by him from Chief Municipality Officer, Dongargarh. Thus the non-appliccxnt was permitt-ed to undertake the repair work. The Rent Controlling Authority held thatonly Rs. 360/- i.e. six months rent @ Rs. 60/- per month woyld be adjustable towards the rent payable by the non-applicant, During the pendency of the said <yplication the original non-applicant Sondhu Lal died on 22-02-2001 and his legal heirs were brought on record. During the summary enquiry the applicant examined bimself os A.W. 1 and previous owner of the said accommodation namely Nirmala Tumane as A.W.2 whereas non-appliccxnt examined one Lalit Kumar as D.W.l and Ashok as D.W. 2. 7) The Rent Controlling Authority dismissed the application of the applicant by recording a finding that contention of the applicant that he requires the said accommodation bonafidely for business purpose is controdicted by his own evidence by which it is evident that the suit accommodation is not suitable for business purpose as the applicant has a cemented house with slab (concrete) roof on the prominent square of Dongargarh town, The application has been rejected also on the ground that the applicant has only two daughters who are living in their respective houses after marridge and that the appticant is incapable of dojng any business. The non-applicant further contended that the applicant is getting pension of fts. 3100A per month and this apart he is also getl'ing interest from the deposits and the rent from the tendnted fliccommodation. He -6 u -< ^- —6"~ further contended that the appliccxnt is not even abte to see properly and thus is incapable of doing any business. The Rent Controlling Authority also recorded a finding that there was no compulsion with the opplicant to engage himself in omy business and thus the bona fide requirement of the landlord / opplicdnt has not been proved- The contention of the applicant that he is a disabled person and needs the accommodation bonafidely to run the business with the help of his grand son has also been rejected on the ground that there was no pleading to this effect. He further recorded a finding that since the applicant is in possession of the alternative reasonably suitable accommodation in Dongargarh tpwn for the purpose of business and first floor of which has been let out and Iherefore his requirement for the said accommodation can not be held to the bona fide. 8) Learned counsel for the applicant submits that the manner in which the plea of bona fide requirement of the soiid accommodation taken by the applicant has been rejected is illegal. The finding of the Kent Gontrollin9 Authority that the applicant is receiving pension of Rs. 3100/- and that he is btind ond as such cannot run the business without the help of others is absolutely arbitrary and against the provisions of hw. He has further argued that the house in which the cpplicant is residing does not belong to the applicant which is evident from the suggestion put to the oyplicant (A.W.l) during cross examination by the tenant in reply to which he has stated that the house in which he is residing belongs +o his daughter Madhuri and therefore he has not submitted the documents of -7 -7' -^; -^' v^ the same. The objection of the non-applicant that the opplicant has not pleaded in the application for eviction that he does not have any reasonably suitable altemative accommodation in the town of Dongargarh ound therefore the order of eviction can not be passed against the applicant as per the provisions of Section 23 (A)(b) of the Act because as per Section 23 (A)(b) of the Act the lcmdlord is required to plead and prove that he is the owner of the accommodation let for non residential purpose and he requires it bonafidely for the purpose of continuing or starting the business or fpr major sons or unmarried daughters or that the landlord or such person hois no other reasonably suitable non residentJal accommodation of his own in his occupation in the city or town concerned, However, in view of the suggestion put by the tenant as mentioned above <and reply of the landlord to the said suggestion it is established that the tenont was aware of the fact that the house in which theapplicantwas residing belongs to his daughter Madhuri cxnd therefore no prejudice would be caused to the tenant by not pleading in the opplication regarding non availability of the alternative suitable accommodation in the city of Dongergarh by the applicant and in the absence of such pleading chim of the applicant for eviction can not be thrown out. The finding of the Rent Controlling Authority that the appliccint is havin9 suitable alternative cfficommodation in Dongargarh town is not correct. Even if it is held that the londlord is having accommodation in the Dongargarh town, it was required to be proved by the tenant that the same is suitable in comparjson to the suit premises. It is the choice of the land lord as to where he -2' ^ ^ ^- wishes to start his business and which aceommodation is suitable to him and the same can not be questioned by the tenant. In support of this contention learned counsel for the applicdnt places reliance in the judgment of Apex Court in the mafter of Dhannatal Vs. Kalavati Bai and others report-ed in AIR 2002 SC 2572 and in the maUer of Ashok Kuinar 6upta Vs. Vijay Kumar Agrawal reported in ^IR 2002 SC 1310. It is further argued by the counsel for the applicoint that from the order sheet dated22.9.99 possed in CR No. 1436/1998 ond order sheets dated 15.10.2001 ond 15.3.2000 passed by the Rent Controllin9 Authroity it is clear that the tencxnt was in the habit of making a willful default in paying the rent and accordingly the defence is likely to be struck off under section 23-H read with section 13 of the Act. The further argument of the applicant is that merely by acceptance of the rent by the landlord tendered by the tenant, the default does not stand cured. 9) On the other hand learned counsel for the non applicant submits that the accommodation in question was let out for residential purposes whereas the applicomt wants the said premises for non residential purposes and therefore the provisions of section 23-A (b) of the Act are not applicable in the case and the ftent Controlling Authority has rightly arrived at the conclusion that the applicant is possessed of well furnished alternative suitable accommodation which is more th<sn his requirement and the front portion of which is lying vacant whichcould be used by the applicant for his business purposes. The other stand taken by the non applicont is that ? under section 23-A (b) of the Act eviction of the tencnt can be / effected only on the following ground: \J ^ <. 10) That the accommodation let for non residentjal purposes is required bonafidely by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters, if he is the owner thereof or for any person for whose benefit the accommodation is held and that the lcxndlord or such person hcxs no other reasonably suitable non residential accommodation of his own in his occupation in the city or town concerned< However, by the present application the landlord is praying for eviction on the grounds enumerated in the aforesaid section. By the instant application the opplicant hexs prayed for eviction <xs he needs the accommodation as he wants to start the stationery business from the said accommodation and for that he has to demolish the existing structure and reconstruct the same and thereafter to open the stationery shop -Hierein. Rent Controlling Aul+iority has no jurisdiction to entertain the application under section 23-A of the Act on this ground. It is further argued by the counsel for the non opplicant that the applicant has averred in his application that he wants to start his stationery business. However, there is no mention in ! -?0 M 'v< -10- the application that the applicant will do the business with the help of his rekxtives or any other person. From the cross examination of the applicant it is clear that due to diminishin9 eye sight he is unable to run the stationery business and therefore claim of the applicant that he needs the accommodation bonafidely for his business purpose is not made out/The application was rightly dismissed by the Rent Controlling authority on the ground that there is no pleading in the application that the land lord has no other suitable aiternative accommodation for his business purpose in the city or town of Dongargarh whereas the non applicant in his written statement has specifically pleaded that the cpplicant possesses reasondbly suitable well furnished specious accommodation and the front portion of which is still lying vacant and the applicant can use the same for his business purposes, Even after the pleadings in the written statement/the applicant did not amend his application and has admjfted in his cross examination that he is residing in the first block ond has dismantled the roof and raised the cemented roof in the first block and in the third block the non oppliccxnt resides as tenant, Thus the applicant failed to establish that he has no other reasonably suitable alternative accommodation for his business in -rfie Dongargarh town and therefore the landlord was not entitled to get the decree for eviction. fteliance has been placed in the jud9ment of the Supreme Court in the matt-er qf Hasmat Rai and another Vs. Raghunath Prasad reported in AIR 1981 SC 1711. Learned counsel for the non applicant submits that for the aforesaid reasons the applicant has not been able to make out -(( ^/ the ccxse of bona fide requirement <md for these reasons the instant revision petition deserves to be dismissed, 11) I have heard learned counsel for the parties and perused the material available on record. ^ 12) The opplication of the applicant has been dismissed by the Rent Controlling Authority on the following ground: a. That, the need of the applicant can not be termed to be bona fide inasmuch as the applicouit is incapable of doing any business becaus? of his diminishing eye sight as he is not even able to do his house hold work without the help ofothers. b. TTiat, -rfie appljcant is earning Rs. 3,100/- from pension and opart from this he is also gett-ing interest from the deposits and rent from the tenant and as such there is no compulsion on the part of the landlord to engage himself in any vocation. /^c c. That, the appljcflnt is in possession of alternative suitable accommodation on a prominent square of Dongargarh town and as such the order of eviction against the non applicant can not be pas^d. Thus, it is not in dispute that the appliccmt is a retired government servant and as such he comes within the category of section 23-J (i) of the Act, It has also emerged from the evidence of the respective parties that the cipplicant is almost blind and as such the case of the applicant is atso covered under section 23-J (iv) of the Act which -/2- 12-- V. ^ -<:; gives the benefit to the physically handicapped persons. The contention of the non Gpplic<xnt that the lcxndlord is praying for eviction on the ground that he requires the suit accommodation firstly for demolition and reconstruction as the said house is in dilapidated condition omd the reconstruction can not be undertaken unless its vacant possession is obtained by him and secondly after reconstruction, he wants the same for the business of statlonery shop, and thus the ground taken by the applicant does not fall within the purview of section 23 A (b) of the Act as the above ground is available to the cpplicflBit only under section 12 (1) (g) or Qi) of the Act. However, the submission of the non applicant is not acceptable on 1+iis ground because once it is held that the applicant fallswithin cmy of the cate9ories of section 23-J of the Act and the lcxndlord raises the contention that he bonafidely requires the non residential accommodation, the application in the present form is maintainable. The only point which the Rent Controlling Authority had to satisfy is that the landlord is a person described under section 23-J of the Act and the accommodation in question is requiped by the landlord for his bona fide necessity under section 23 A(b) of the Act. 13) In the instant case, the Ifluidlord has come with the case that he requires the suit accommodation bonafidely for the purpose of opening the stationery shop which falls under section 23 (A) (b) of the Act and as such the application is maintainable. 14) The finding of the Rent Controlling Authority that the requirement of the landlord is not bona fide is based on the following assumptions: \ -13 ^ •V/ y .^J. '^ -13- (i) that the applicant is a physically handicapped person and there is no pleading in the (xpplication that he is doing the business with the help of the relatives and therefore the bona fide requirement for his business is not made out, cannot be accepted <xs while arriving at the conclusion this aspect of the matter has been completely ignored by the Rent Controlling Authority. It is for the landlord to do his business according to his own limitation and it was not appropriate on the part of the Rent Controlling Authority to ascertain the capability of the hndlord on the basis of his physical handicappedness and come to the conclusjon that he is incapable of doing oiny business because of his handicappedness and as such tihe bona fide requjrement of the applicant of opening the stationery shop is not made out, (ii) The other ground that the applicont is earning through other sources and therefore there is no compulsion on the part of the landlord to do any business after retirement and therefore the need is not bona fide, is also erroneous and unjustified because a person aged about 60 years after retirement cannot be denied the post retirement vocation if he so desires and his bona fide requirement of the non residential accommodation cannot be doubted on this ground. Thus, the above finding is erroneous and the same cannot be upheld. -^ v >-\. -t-4- (iii) The other ground that the applicant has altemative reasonably suitable accommodation in Dongargarh town omd on the basis of which the application for eyjction has been rejected hos to be considered. 15) Learned counsel for the non applicant relying upon the decision of the Supreme Court in the case of Hasmat Rai (Supra) submits that language of Section 12 (1) (f) and Section 23 (A) (b) of the Act are identical. He further argued that in paragraph 10 of tiie said judgment, it has been categorically held that where the landlord seeks a decree of eviction of the tenant he must establish (1) that he requires bona fide possession of a building let out for non residential purpose for continuing or starting his business and (2) that he has no other reasonably suitable non residential accommodation of his own in his occupation in the city or town concerned. The burden to establish both the requirements of Section 12 (1) (f) is squarely on the landlord and before an allegation of fact to obtain the relief required is to be proved, the law of pleadings require that such facts have to be alleged and must be put in issue and it is well established proposition that ony amount of proof offered without pleadings is generally of no relevouice, 16) Learned counsel for the non applicants submits that fromthe perusal of the application it is clear that the applic<int has no where pleaded that he has no other alternative residential accominocbtion in the Dongargarh town for the purpose mentioned above. It is also argued that the non applicant in his reply to the application for eviction has categorically mentioned -}^ ^) r-^ -]5-' •Hiat the flpplicant is possessed of reasonable well furnished spacious alternative accommodation and the front portion of which is lying vacouit and which can be used by the landlord but the landlord even after reply has not amended his application to incorporate the ingredients of Section 23 (A) (b) of the Act regarding non availabjlity of the alternative suitable accommodation. Even otherwise from the evidence it is clear that the applicant possesses a house on the prominent part of Dongargarh town which is suitable for the business purpose and which is owned by thedpplicant. 17) On the other hoaid, tearned counsel for the c^plicant submits that the altemative accommodation cited by the non applicant belongs to the daughter of the appliccxnt namely Madhuri which is evident from the cross examination of the tenant* He further submits that the alternative accommodation is used for