1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Civil Revision No. 6 of 2004 Reserved on : 26th October, 2009 Date of Decision: 13th November,2009 Rikhi Ram Petitioner/tenant Versus Lajwanti Respondent/landlady. Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the Petitioner : Mr.G.D.Verma, Sr. Advocate, with Mr.B.C.Verma, Advocate. For the respondent: Mr.Suneet Goel, Advocate. Sanjay Karol, J. This is the tenant’s petition filed under Section 24 (5) of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the Act), assailing the order dated 23.12.2003 passed by the Appellate Authority, Shimla, H.P., in CMA No.73-S/14 of 2003/2001, whereby the order dated 31.5.2001 passed by the Rent Controller, Shimla, H.P., in Rent Case No. 39/2 of 1998, titled as Smt. Lajwanti vs. Shri Rikhi Ram stands affirmed. The Authorities below, while allowing the landlady’s petition for eviction filed under Section 14 of the Act, have concurrently held that the tenanted premises are bonafidely required by her (i) for her use and occupation alongwith her other family members and (ii) for re- construction which cannot be carried out without the premises being vacated. Whether the reporters of Local Papers are allowed to see the Judgment? 2 The petitioner herein is referred to as the tenant and the respondent is referred to as the landlady. The landlady filed a petition for eviction of the tenant from the tenanted premises comprising two rooms, described as Shop No.18, Kaithu, Shimla-3, on the ground that the old “stone walls” are required to be replaced as per the plans sanctioned by the municipal authorities vide sanction order dated 4.2.1998” and the re-construction cannot be carried out without the premises being vacated. Her husband having been retired as a Peon was possessed with sufficient funds to carry out the re- construction. Further the landlady bonafidely required the building for her own use and occupation as also use and occupation of her family members, comprising herself, her husband, two married sons and school going grand-children. The total accommodation available with her comprising of two rooms, an improvised kitchen cum bath room is insufficient. She neither possesses nor owns any other residential accommodation within the municipal area of Shimla. She has also not vacated any such accommodation within 5 years prior to the filing of the petition. The landlady requires one bed room for herself, one bed room for her son, who is residing with her and one guest room cum study room for her grand-children. Her other son, who lives at Mehalli occasionally visits her and, therefore, space for accommodating him is also required. In reply, the tenant admitted the premises to be residential in nature, but denied personal bonafide requirement of the landlady and that construction could not be carried out without the premises being vacated by him. On the pleadings of the parties, the Rent Controller framed the following issues:- 3 1. Whether the demised premises are bonafide required by the petitioner for re-construction as alleged? OPP. 2. Whether the demised premises are bonafide required by the petitioner for her own use and occupation of her family? OPP 3. Whether the demised premises are on rent @ Rs.30/- per month with the respondent? OPP 4. Whether the respondent is in arrears of rent as alleged? OPP 5. Whether the application is not maintainable as alleged? OPD. 6. Whether the petitioner is estopped from filing the present petition by her act and conduct? OPD. Based on the statements of the expert examined by the landlady, Shri Surjit Singh (PW-5) and the expert examined by the tenant Shri H.S.Bist (RW-4), the Court found that the landlady had been able to sufficiently prove and establish through the expert’s report (Ext. PW-5/A), that the building originally constructed in the year 1905 the proposed construction on the sanctioned lines could not be carried out without the tenant being evicted. The proposed construction envisaged replacing of wooden planks of the roof of the tenanted premises on the ground floor with an R.C.C. slab in order to have similar slab on the roof of the first floor. The plan stood sanctioned by the municipal authorities (Ext.PW-4/A and Ext.PW-4/B) and the assessment stood established as per expert’s report (Ext.PW-5/A). That the landlady had funds to carry out the construction stood proved through the statement of Shri Hukam Singh (PW-1). 4 Considering the dominant use of the premises being residential in nature it was held that since in a corner of one of the rooms the tenant was carrying out the work of cobbler, that by itself would not change the nature and character of tenancy so as to make it non-residential within the meaning of Section 2 (e) of the Act. Considering the number of family members, the landlady possessing only two rooms with her had been able to sufficiently establish her personal bonafide requirement as the accommodation currently available with her was not sufficient. Order dated 31.5.2001 passed by the Rent Controller, Shimla, in Rent Case No.39/2 of 1998, was assailed by the tenant before the Appellate Authority, who, framed the following points for determination:- 1. Whether the demised premises were non-residential in nature within the meaning of Section 2(e) of the H.P. Urban Rent Control Act, 1987? 2. Whether the demised premises were bonafide required by the landlady for reconstruction? 3. Whether the demised premises were bonafide required by the landlady for her own use and occupation and occupation by her family members? In terms of order dated 23.12.2003, the Appellate Authority, based on the pleaded case of the tenant as also his oral statement held the tenancy not to be non-residential in nature. The findings of personal requirement of the landlady and her bonafide requirement for re-construction without evicting the tenant were reaffirmed. I have heard the learned counsel for the parties and also perused the record. 5 Mr. Verma, learned senior counsel has firstly urged that the landlady’s pleas of bonafide requirement of the tenanted accommodation for personal use and bonafide requirement for reconstruction which cannot be carried out without the tenant being evicted, are mutually destructive. The landlady’s petition ought to have been rejected on this sole ground. Section 14 of the Act lays down several grounds on which a tenant can be evicted from the tenanted premises. The landlady essentially filed a petition on the following two grounds:- “14. (3). A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession – (a) In case of residential building, if – (i) he requires it for his own occupation: Provided that he is not occupying another residential building owned by him, in the urban area concerned: Provided further that he has not vacated such a building without sufficient cause within five years of the filing of the application, in the said urban area.” ………………………………………………. (c) in the case of any building or rented land, if he requires it 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 if it has become unsafe or unfit for human habitation or is required bonafide by him for carrying out repairs which cannot 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 6 building or re-building or addition or alteration cannot be carried out without the building or rented land being vacated;” The Apex Court in Modern Tailoring Hall vs. H.S.Venkusa and others, (1997) 5 SCC 315, while dealing with the provisions of Karnataka Rent Control Act, 1986, which provided for eviction of a tenant on the ground of bonafide requirement of landlord [Section 2(h)] and requirement for demolition and re-construction [Section2(1)(j)] held that grounds for eviction are mutually exclusive having flown from separate and individual rights and obligations. The Court relied upon its earlier decision in Ramniklal Pitambardas Mehta vs. Indradaman Amratlal Sheth, AIR 1964 SC 1676, wherein the distinct and separate grounds of eviction contained under the provisions of Section 13(1)(g) and 13(1)(hh) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 came up for consideration. Therein the Court was also dealing with two distinct grounds of eviction i.e. bonafide requirement of the landlord for occupation of the tenanted premises himself and premises reasonably and bonafidely required for the purpose of demolishing and erecting a new building. In Arya Samaj, Sagar and others vs. Pinjamal and another, (1986) 4 SCC 3, the Apex Court while dealing with some what similar provisions contained in Section 12(f) and (h) of the M.P. Accommodation Control Act, 1961, also held to the said effect. Considering the ratio laid down in the aforesaid decisions, in my considered view, the grounds pleaded by the landlady are mutually independent and exclusive. They are neither contradictory nor destructive to each other. One is for personal bonafide requirement and the other is 7 where the premises are bonafidely required for re-construction which cannot be carried out without the tenant being evicted. The law specifically entitles the landlord to evict the tenant on several grounds. There is no bar in filing a joint petition by clubbing separate grounds for eviction. As long as the landlord pleads, proves and establishes the essential ingredients with respect to each ground a joint petition would be maintainable. Ratio of law laid down by the Apex Court in Vimal Chand Ghevarchand Jain and others vs. Ramakant Eknath Jadoo, (2009) 5 SCC 713, as referred to by Mr. Verma, learned senior counsel, does not apply to the facts of the instant case. There cannot be any dispute that mutually destructive pleas cannot be permitted to be taken, but, however, in the instant case as has been observed hereinabove the grounds for eviction are distinct, mutually exclusive and not mutually destructive. It is further urged that the ground for eviction under Section 14(3)(a) is not available for the reason that the premises in question are non-residential in nature. It is argued that the Authority below wrongly held the premises to be non-residential in nature within the meaning of Section 2(e) of the Act and thus the order of eviction passed on the ground of bonafide requirement of the landlady is erroneous. The Authorities below have referred to the pleadings of the parties as also the statement of the tenant Shri Rikhi Ram (RW-1) while arriving at its conclusion that the premises are predominantly used by him for residential purposes, hence even if the tenant was carrying out the work of a cobbler therefrom, it would not change the character of the tenanted premises. 8 Section 2(e) of the Act reads as under:- “ ‘non-residential building’ means a building being used- (i) mainly for the purpose of business or trade; or (ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carried on business or trade in the building resides therein.” Undisputedly, the tenant has not denied the averments made in para 4 of the petition wherein the landlady has described the premises to be residential. The tenant has also admitted that he was using the premises substantially for residential purposes. But, however, this by itself would not change the nature and character of the tenancy, particularly, when there is other contemporaneous material on record to prove to the contrary. Agreement Ext.R-2 dated 7.5.1973 entered into between the tenant and the predecessor of the landlady unambiguously described the premises to be a shop. The work to be carried out in the shop is also mentioned. The tenant was to carry out the work of a cobbler. Even in the legal notice dated 103.1998 (Ext.PW-7/A), issued by the landlady the premises described are “Shop-18”. In the first eviction petition (Ext.RW- 2/A) dated 17.1.1989 filed by the present landlady the tenanted premises were described as “One room, residential and one room non-residential”. In the previous statement made before the Rent Controller (Ext.R-1) the landlady also admitted the tenant working as a cobbler therefrom. In this background, in my considered view, the Courts below have erred in holding that the tenancy was for residential purposes and that simply 9 because the tenant was carrying out the work of cobbler therefrom, the nature and character of the same would not change. In Thimmappa Rai vs. Ramanna Rai and others, (2007) 14 SCC 63, the Apex Court has held that the admission made by a party in an earlier suit is admissible against him and as such admission being relevant fact, the Courts are entitled to take notices thereof for arriving at its decision on the basis thereof together with other materials brought on record by the parties. Mr. Goel, has referred to the decision in Atul Castings Ltd. vs. Bawa Gurvachan Singh, (2001) 5 SCC 133 and Probal Roy vs. S.K.Bhowal, 1999 (1) RCR (Rent)-521, to contend that dominant use of the premises should be considered for considering the nature of the tenanted premises. I am afraid the ratio of law laid down in the said decisions would not apply as in the instant case original tenancy agreement and the subsequent conduct of the landlady clearly establishes that the premises were not let out for residential purposes. It being a different matter that part of the same may have been used by the tenant for residential purposes. It is not a case where the premises were incidentally used for some commercial activity. Therefore, Mr. Verma is right in contending that no order of eviction under Section 14(3)(a)(i) of the Act could have been passed by the authorities below. However, this would not mean that landlady’s petition filed on the ground available under Section 14(3)(c) of the Act is required to be rejected automatically. The limitation stipulated under Section 14(3)(a) of the Act cannot be extended to Section 14(3)(c) of the Act. 10 The Apex Court in Prem Chand Alias Prem Nath vs. Shanta Prabhakar (Smt.) (1998) 1 SCC 274, has interpreted the provisions of Section 14(3)(c) of the H.P. Urban Rent Control Act as under:- “Section 14(3)(c) of the H.P. Urban Rent Control Act 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 (iii) 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 re- building or making thereto any substantial additions or alterations and that such building or re-building or addition or alteration cannot be carried out without the building or rented land being vacated." The Apex Court in Jagat Pal Dhawan vs. Kahan Singh (dead) by LRs and others, (2003) 1 SCC 191, has held as under:- 7. 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 11 tenancy premises in case of any building or rented land being required bona fide 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 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. 8. So is the view taken in R.V.E. Venkatachala Gounder v. Venkatesha Gupta & Ors., and in Harrington House School v. S.M. Ispahani & Anr. The fact that demolition and reconstruction would result in modernization, making additional space available and/or would augment the earning of the landlord is relevant factors for determining the bona fides of the requirement for demolition and reconstruction.” (Emphasis supplied) In the present case, the authorities below have found the landlady to have established her bonafide requirement of carrying out 12 reconstruction which cannot be carried out without the building being vacated. There is clear, cogent and convincing material on record to prove the same. Ext.PW-5/A, Ext.PW-4/A and Ext.PW-4/B are the sanctioned plans/orders and assessment of the reconstruction work. Landlady has proved the means to carry out the re-construction. The Expert PW-5 has clearly and convincingly established that since the construction of the premises relates back to the year 1905 and the walls of the building not being in a good condition needs to be removed. If the construction is to be carried out as per sanctioned plans, it would necessarily require vacation of the premises and only thereafter the reconstruction/repair can be carried out. The building evidently is old and not in good condition. The landlady has been able to prove that the premises are bonafidely required by her. It can also not be said that the petition has been filed malafidely with the sole object and intention of evicting the tenant without any sufficient cause. Further the statement of Shri Sukh Lal (PW-3) is also clear on the point of the landlady’s bonafide requirement for reconstruction. Importantly, the landlady is in possession of two rooms, one improvised kitchen and bath room on the first floor. The tenanted premises are on the ground floor and the wooden roof of the building is to be replaced with RCC structure and walls have also to be changed with new walls. The next point urged is that the landlady has not been able to disclose the extent and nature of construction sought to be carried out. This contention needs to be rejected. The tenanted premises comprised of two rooms on the ground floor and the landlady has two rooms on the first 13 floor. They form part of the same structure. This is the undisputed position emerging from the record, which evidently stands proved by the evidence led by the parties. The landlady has proved the sanctioned plan (Ext.PW-4/A) and the order (Ext.PW-4/B) issued by the municipal authorities. The construction is to be carried out in accordance with such plans. There is no requirement in law to plead the extent of construction to be carried out. In the instant case the landlady has clearly pleaded and proved that the tenanted premises are bonafidely required for the purposes of re-construction which cannot be carried out without being vacated. The landlady has also proved that she has no other residential house (accommodation) available with her and after re-construction she would use the whole of the structure as her residence. Similarly the contention that the sanction accorded by the municipal authority is vague, unspecific and unwarranted under the law and is no sanction needs to be rejected. The correctness or validity of the sanction accorded by the authority was not subject matter of challenge at all. The tenant has neither pleaded nor led any evidence to prove the same. It cannot be held that in the absence of any valid sanction the order of eviction is bad in law and therefore unexecutable. It is further contended that the exact amount of money required for carrying out the construction has neither been disclosed nor proved, hence the landlady cannot be said to be possessed with sufficient funds. PW-1, husband of landlady, has deposed that pursuant to his retirement from the Government service he has sufficient funds and in fact has Rs.48,000/- in his savings account No. 777 271, opened in the General Post Office, Shimla. 14 Hence, the ground for eviction has been clearly made out by the landlady and as such the landlady’s petition under Section 14(3)(c) of the Act is clearly maintainable and needs to be allowed. The findings of the authorities below on this ground need to be upheld. The landlady cannot be guided by the whims and fancies of the tenant for the purposes of determining the landlady’s bonafides. Scope of interference in the present petition is restricted and only where there is material illegality or impropriety that the Court would interfere, which in the present case is none [Hari Shankar and others vs. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698, Pooran Chand vs. Motilal and others, 1964 SC 461, Phiroze Bamanji Desai vs. Chandrakant M.Patel and others, AIR 1974 SC 1059, Sh. Kuldip Kumar Sharma vs. Smt. Nirmal Chandel, 1996 (2) S.L.J. 1329 and P.S.Pareed Kaka and others vs. Shafee Ahmed Saheb, (2004) 5 SCC 241.] In view of my aforesaid findings, it is not necessary to go into the other submissions made by Mr. Verma, learned counsel, pertaining to the findings on the ground of personal bonafide requirement rendered by the appellate authority. For the aforesaid reasons, the appeal is partly allowed. The landlady’s petition filed on the ground under Section 14(3)(a) of the Act is dismissed and the order of eviction on the ground under Section 14(3)(c) of the Act is upheld. However, there shall be no order as to costs. 13th November, 2009 (Sanjay Karol) (C) Judge.