IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.R. No. 105 of 2009. Reserved on: 22.10.2009 Date of decision: 26.11.2009 Sh.Ram Rattan & another. …. Petitioners Versus Sh.Sunil Sood and ors. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? Yes For the petitioners: Mr.G.D.Verma, Sr.Advocate with Mr.Romesh Verma, Advocate. For the caveator: Mr.Bimal Gupta, Advocate. _____________________________________________________ Deepak Gupta, J. The petitioner (hereinafter referred to as the ‘appellant’) has filed the present revision petition under Section 24(5) of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the ‘Act’) against the judgment dated 15.5.2009 passed by the learned Appellate Authority, Fast Track Court, Shimla in Rent Appeal No.21-S/14 of 2008 whereby the appeal filed by the tenant has been dismissed and the order of the Rent Controller (III) Shimla dated 1.4.2008 has been upheld. 2 The brief facts of the case are that respondents No.1 and 2 are the landlords. Admittedly, they are the owners of the building known as 10 Sabzi Mandi, Shimla. They filed a petition under Section 14 of the H.P Urban Rent Control Act, 1987 seeking eviction of the tenants who are running a shop and have their residence in the building in question. The main grounds for seeking eviction are that the building known as 10, Sabzi Mandi, Shimla has become unsafe and unfit for human habitation. The building is more than 80 years old and the landlords bona fide require the same for the purpose of rebuilding/reconstruction work which cannot be carried out without the premises being vacated. The tenants resisted the said petition on various grounds including the ground that earlier also a petition filed on similar grounds had been rejected and that the building was not in a dilapidated condition and was not required for reconstruction. It was however, not denied that the building is about 80 years old. The parties led evidence and thereafter, the learned Rent Controller came to the conclusion that the landlords were within their right to put the premises in question to profitable use after re- construction. He also held that the building was in a 3 dilapidated condition and the reconstruction work was not possible without it being vacated. The petition was accordingly allowed. The tenants filed an appeal which has been rejected. Hence the present revision petition. Sh.G.D.Verma, learned counsel for the appellants urges that the orders of both the Rent Controller and the appellate authority are incorrect and illegal. The mere desire of the landlord is not sufficient to make it a bona fide requirement. According to him since the landlord has failed to prove that any plan has been approved, no eviction could be ordered. He further submits that there is no evidence to show what is the type/reconstruction work which is sought to be done. He further urges that there is a common wall with another building and the landlord had led no evidence to show how the construction can be carried on without demolition of this wall. According to him this wall cannot be demolished except if the neighbour agrees and the neighbour was not examined as a witness. Sh.Bimal Gupta, learned counsel for the respondents on the other hand urges that the eviction order has been passed against the other tenants of the 4 building and now only the present petitioner is left in the building. To appreciate the rival contention of the parties, it would be pertinent to refer to Section 14(3)(c) of the Act which reads as follows:- “Section 14(3) A landlord may apply to the Controller for an order directing the tenant to put the landlord inn possession- (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 building or re-building or addition or alteration cannot be carried out without the building or rented land being vacated.” It would also be relevant to the revisional powers of this Court under Section 24(5) which enable this Court to call for the records of any proceedings pending before any of the authorities below only for the purpose of 5 satisfying itself in regard to the legality or propriety of such order. It is well settled law that under the revisional jurisdiction this Court cannot re-appreciate the evidence. With the assistance of the parties, I have gone through the evidence of both the sides. The building in question is situated between the Lower Bazar and the Mall Road. Admittedly, the building is more than 80 years old. A part of the building is in the possession of the petitioners. PW/1 one of the landlords stepped into the witness box and stated that the building is a three storied building and a Dhaba and a shop are being run in the basement. The respondents are running a shop in the ground floor and they reside in the rear of the same floor. The first floor is lying vacant and is in the possession of the petitioners. In the top floor, there is an attic in which one Basti Ram resides and eviction orders have been passed against Basti Ram and Vidya Devi. Photographs of the premises have also been marked in evidence. According to the landlords they want to reconstruct the building and a map of reconstruction has been forwarded by the Municipal Corporation, Shimla to the Town and Country Planning Department. The landlords have proved that they have sufficient funds to construct the new RCC 6 building on old lines. The evidence led shows that more than Rs.4 lac is available with the landlords and furthermore they are income tax payees owning six flats in Kaithu. They have also examined Sh.L.P.Gupta, an expert as PW/2 to show that the building has developed cracks etc and is not fit for human habitation. The main argument of Sh.G.D.Verma is that no approved plan of the building has been proved on record. The appellants have produced a letter Ext.PW1/B sent by the Commissioner, Municipal Corporation, Shimla to the Principal Secretary, Town and Country Planning to the Government of Himachal Pradesh which reads as follows:- “From Commissioner, Municipal Corporation, Shimla. To The Principal Secrtary (T&CP) to the Government of Himachal Pradesh, Shimla-2. Sub: Regarding planning permission case for reconstruction of building on Kh.No.778 at Sabzi Mandi, Shimla. Sir, Sh.Rajeev Sood and Sunil Sood have applied for planning permission for the reconstruction of building on Kh.No.778 at Sabzi Mandi, Shimla. The case was 7 placed before the ‘General Function Committee’ and the said committee has decided in its meeting that the same may be forwarded to the Govt. for prior approval. The case of the applicants has been examined and found that it fulfills all the requirements of H.P.M.C Act, 1994 and M.C. building bye laws except the fact that the area falls in ‘Core Area’ notified by the Govt. where no development can take place without the specific permission of the Town and Country Planning Deptt. It is, therefore, requested the case of the applicants may be considered for giving relaxation in ‘Core Area’. The copy of plan, revenue papers, i.e., tatima & jamabandi and format duly filled in are enclosed. Sd/- Encl: As above Commissioner No._____________ M.C.Shimla Dated 24.8.2009 Copy to:- Sh.Rajeev Sood and Sunil Sood, C/o 56/2 at Lower Bazar, Shimla for information, please. Commissioner, M.C.Shimla.” A bare reading of this letter clearly shows that according to the Commissioner, the case of the landlords for planning permission to reconstruct the building fulfilled all the requirements of the Municipal Corporation Act and the building bye-laws. A perusal of this letter also clearly shows that the only reason why planning permission was not granted was that specific permission of the Town and Country Planning Department was required since the 8 building fell in the core area. The plan etc. submitted by the landlord was also sent to the State. It is, therefore, obvious that other than the permission of the Planning Department, the Municipal Corporation has no objection to the building being reconstructed on old lines. Section 14(3)(c) of the H.P Urban Rent Control Act came up for consideration before the Apex Court in Prem Chand Vs. Shanta Prabhakar 1998(1) SCC 274 wherein the Apex Court 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 9 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. 9. From the above analysis, 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 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.” It is thus clear that the condition of the building is not required to be taken into consideration when the premises are required bona fide for rebuilding. However, in the present case, there is sufficient evidence to show that the building itself is very old and dilapidated. In Jagat Pal Dhawan Vs. Kahan Singh (Dead) by LRs and others 2003(1) SCC 191 again while 10 considering the provisions of the H.P Urban Rent Control Act, the Apex Court held as follows:- “So far as the neighbours are concerned, none has objected to the proposed reconstruction. In any case, that is a matter to be settled by the landlord with his neighbours. The learned counsel for the appellant submitted during the course of hearing, and rightly in our opinion, that even if the neighbours were not agreeable to have the common wall demolished and replaced by a new wall the appellant was prepared to raise additional walls of his own next to the common walls, if any, and rest his entire structure on such walls. This obviates the need of proving consent of the adjoining building-owners for the proposed reconstruction.” This judgment deals with the argument of the tenant that in case a common wall has to be demolished, the neighbour should have been examined to show that he had no objection to the demolition of the wall. It would also be pertinent to refer to para 14 of the judgment of the learned Apex Court which reads as follows:- “In the abovesaid circumstances we are clearly of the opinion that relief of eviction as sought for could not have been denied to the appellant. There is no material available to hold that the landlord has something else in his mind such as getting rid of the tenant without raising construction. Sub-section (5) of Section 14 of the Act protects the interest of the tenant 11 by guarding against mala fide evictions. It provides that where a landlord has obtained possession of the building or rented land for the purpose of building or rebuilding and puts the building to any other use or lets it out to any tenant other than the tenant evicted from it, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly. This provision would not permit the building from which the tenant is being evicted being subjected to any other user or misuse.” The Act itself provides that in case the building is not used for re-construction, the tenant can ask to be put back in possession. Therefore, there can be no misuse of the provision. This view has been followed by a Single Judge of this Court in Sanjay Thakur v. Smt.Asha Devi and others, Latest HLJ 2006 (HP) 679. In Jagdish Chand Sharma Vs. Parmeshwari Dass and others, Latest HLJ 2009(H.P) 942, a learned Single Judge of this Court has laid down the following tests:- “7. Before granting a decree for eviction on the ground of building or re-building, the Court requires to be satisfied that: (i) The suit premises are bona fide required for the purpose of building or re-building which cannot be carried out without the building being vacated; (ii) The landlord has the capacity to reconstruct the suit premises after demolition; 12 (iii) The sanctioned plan has to be taken from the authority. “ According to Sh.Verma, the landlord has not satisfied these tests. As far as test No.1 is concerned, this test is satisfied since obviously the construction of a new RCC building even on old lines cannot be carried out without the same being vacated. The landlord has satisfied the second test by proving on record his financial capacity to re-build the demised premises. As far as the third test is concerned, as held by me above, the plan has virtually been approved by the Municipal Corporation except that the permission of the Town and Country Planning department is required. The interest of the tenant has already been safeguarded by the learned Appellate Authority who has directed that the tenant shall not be evicted from the demised premises till the landlord produces before the Executing Court the duly sanctioned and approved building plan. Reliance placed by the tenant on the judgment passed by this Court in Civil Revision No.224 of 2007 titled Sh.Kanshi Vs. M/s.Ram Krishan & another is totally misplaced since in that case this Court at the very outset held that the landlord had failed to prove that the building is required by them for reconstruction. In that 13 case no evidence had been led and no plan was placed on record. On the other hand, in this case, a perusal of Ext.PW1/B shows that a plan has been submitted to the authorities and only the approval of the Town and Country Planning is awaited. Similarly reliance placed by the tenant on the judgment of the Apex Court in K.N.Ananthraja Gupta Vs. D.V.Usha Vijay Kumar, 2008(1) Civil Court Cases 21 (S.C.) is misplaced. That case arises out of the Rent Control Act of Karnataka and has been decided in the light of the provisions of the said Act. The provisions of the H.P Act have been dealt with specifically by the Apex Court in the judgments cited above and they support the landlord and not the tenant. In view of above discussion, I find no merit in the revision petition which is accordingly dismissed. No order as to costs. November , 2009 ( Deepak Gupta ) (m) Judge