IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 29 of 2010 Reserved on: 6.8.2010 Decided on : 17.9.2010 Manjeet Singh and others …Petitioners Versus Arun Bhoil and another ...Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioners : Mr. Praneet Gupta, Advocate. For the Respondents : Mr. Ajay Kumar, Advocate for respondent No.1. Kuldip Singh , Judge The petitioners have suffered ejectment from the premises vide order dated 17.3.2009 passed by the learned Rent Controller, Court No.(6), Shimla in Rent Application No. ½ of 2006 which has been affirmed by the learned Appellate Authority, Fast Track Court, Shimla in Rent Appeal No. 20- S/14 of 2009, hence this revision under Section 24 of the H.P. Urban Rent Control Act, 1989 (for short ‘Act’). 2. The facts, in brief, are that respondent No.1 had filed petition under Section 14 of the Act against petitioners, one Mrs. Nasib Kaur and proforma respondent No.2 on the 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 grounds that premises in question has become unfit and unsafe for human habitation and same is bonafide required for the purpose of re-building or additions and alterations. The name of Mrs. Nasib Kaur was deleted on 23.7.2007. It is the case of respondent No.1 that premises in question are very old and have out-lived normal life. There is sagging at various places at ground floor and first floor of the building. The walls and floors have tilted. The premises are centrally located in residential-cum-commercial locality. The premises after re- construction and re-building will be put to more beneficial economic use. The premises require re-building and re- construction. The petition was contested by the respondents. It has been alleged that respondent No.1 had earlier filed petition against petitioners on the ground of additions and alterations. It has been denied that premises are bonafide required by respondent No.1 for building, re-building. The means of respondent No.1 for carrying out re-building and re- construction were also questioned. In brief, the petitioners contested the claim of respondent No.1. 3. On the pleadings of the parties, the following issues were framed:- 1. Whether the premises in question have become unsafe and unfit for human habitation? OPP 2. Whether the premises in question is bonafide required by the petitioner for the purpose of rebuilding or additions and alteration ?OPP 3. Whether the petition has not been properly verified? OPR 3 4. Whether the petition is bad for non-joinder and mis- joinder of the parties? OPR 5. Whether the material particular have not been furnished, if so, its effect? OPR 6. Whether the petitioner is estopped to file the present petition? OPR. 7. Relief. The issues No.1, 2 were answered in affirmative and issues No. 3 to 6 in negative and the learned Rent Controller allowed the petition on 17.3.2009 on the grounds that premises in question have become unsafe and unfit for human habitation and same are bonafide required by respondent No.1 for the purpose of re-building or additions and alterations. In appeal, the learned Appellate Authority on 21.12.2009 has affirmed the order dated 17.3.2009 and dismissed the appeal. It was however clarified that in view of the directions issued by this Court in C.R. No. 187 of 2006 Sita Ram Vs. Kalawati and another decided on 27.12.2006 the ejectment order shall not be available for the Executing Court on the ground of re- building and re-construction unless the landlord produces before the Executing Court the building plan duly sanctioned /approved by the competent authority whereupon and whereafter only the Executing Court shall allow the execution of the ejectment order on the ground of rebuilding and reconstruction. 4. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel 4 for the petitioners has submitted that two authorities below have misconstrued and misinterpreted the material on record in deciding issues No.1 and 2 in favour of respondent No.1. It has been submitted that the findings rendered by the two authorities below on issues No.1 and 2 are not in consonance with the evidence on record. The premises in question are in good habitable condition. The respondent No.1 has failed to prove bonafide need for carrying out re-construction or re- building of the premises. There is no sanction plan. The premises are situated in core area. The means of respondent No.1 for re-construction and re-building have also not been proved. It has been submitted that respondent No.1 has no locus-standi to file the petition inasmuch as he has already sold the premises in the year 2005. The learned counsel for the petitioners has submitted that petitioners have filed CMP No. 249 of 2010 for additional evidence and has prayed for allowing the said application. 5. The learned counsel for respondent No.1 has submitted that two authorities below have concurrently held issues No.1 and 2 in favour of respondent No.1. The findings recorded by the authorities below are based upon evidence. In revision, re-appreciation of the evidence is not possible unless view taken by two authorities below is perverse or not at all emerges from the evidence on record, but the present case does not fall in that category. It has been submitted that petitioners either before the Rent Controller or before the 5 Appellate Authority never challenged the locus-standi of respondent No.1 to file the petition. CMP No. 249 of 2010 has been opposed and it has been submitted that no case for additional evidence has been made out by petitioners. The documents sought to be proved by way of additional evidence are not necessary to adjudicate the real controversy between the parties. No petitioner has entered into witness box to rebut the case of respondent No.1. The learned counsel for respondent No.1 has supported the impugned judgment. 6. In the additional evidence application, the petitioners have submitted that respondent No.1 has sold the premises in the year 2005 and he is now not the owner of the premises and, therefore, he has no locus-standi to file the eviction petition. The sale deed, dated 6.8.2005, Ext. RW1/A, whereby respondent No.1 had sold his half undivided share in favour of Anurag Sharma etc., is already on record. The jamabandi and mutation, referred to in the application, are not documents of title and, therefore, not necessary to adjudicate the real controversy between the parties. The petitioners have failed to make out a case as to why jamabandi and mutation, referred to in the application, were not placed on record earlier by way of evidence. The due diligence for not proving these documents earlier has not been established. The petitioners have failed to bring their case within the parameters laid down for leading additional evidence. Hence, CMP No. 249 of 2010 for leading additional evidence is dismissed. 6 7. AW1, Arun Bhoil, has stated that he has purchased the land underneath 33, Lakkar Bazaar vide sale deed, Ext. AW1/A, dated 19.2.2007 from the Government. He has stated that he has requisite money for raising construction. He has about Rs. 15 lacs in PPF and Rs. 2 lacs in the saving bank account of his wife and children. He wants to rebuild the building to augment his income and he has asked Engineer, Vivek Karol to submit plan to Municipal Corporation, Shimla. He has stated that he is owner of ground floor and first floor. But, he has sold upper two storeys to Anurag Sharma, who has given no objection for construction of the building. The premises cannot be rebuilt without vacation. The building is centrally located. The condition of the building is not good, which is 100 years old. The building has developed cracks. There is seepage in the walls and walls are out of plumb. The wooden work has rotten. The premises has become unsafe for residence. The building was got inspected from Engineer, Vivek Karol. The portion, which he has sold to Anurag Sharma, is above the disputed portion. He has denied that sale deed, Ext.AW1/A is not of the land underneath the premises in question. 8. AW2, Vivek Karol, Engineer of respondent No.1 has proved report, Ext.AW2/D. He has stated that the building is 100 years old. RW1, Gulab Singh has proved the sale deed, dated 6.8.2005, Ext. RW1/A. RW2, Lalit Sharma, has stated that the condition of the building is good. The petitioners were 7 proceeded ex-parte on 6.3.2009 and their evidence was also closed. The learned Rent Controller vide order dated 16.3.2009 in application No. 13-6 of 2009 has permitted the petitioners to join the proceedings, but did not relegate them to the stage when they were proceeded ex-parte. The orders, dated 6.3.2009 and 16.3.2009 were not specifically assailed in appeal before the Appellate Authority. However, reference of orders, dated 6.3.2009 and 16.3.2009 has been made in the grounds of appeal before the learned Appellate Authority. The fact remains no petitioner has appeared in the witness box. 9. The learned counsel for the petitioners has submitted that respondent No.1 has no locus-standi to file the petition. In C.R. No. 28 of 2010, decided on 17.9.2010, which is also between the parties, it has been held that respondent No.1 is the landlord and petitioners are the tenants of the premises. In the present case, respondent No.1 has placed on record copy of sale deed, Ext. AW1/A, whereby he has purchased the land underneath the premises in question from the Government. It is the case of respondent No.1 that he has sold upper two floors to Anurag Sharma etc., but he has taken no objection of Anurag Sharma for raising construction. He has asked AW2, Vivek Karol, Engineer, to submit plan for raising construction. He has given details of funds available with him for reconstruction. Ext. AW2/D is the technical report submitted by Vivek Karol, wherein he has stated that building is more than 100 years old, which is clear from the type of specification and style of construction of the building. 8 The walls are out of plumb and there are wide cracks in the flooring and walls of the building. The new construction cannot be raised till the building is completely vacated. It has also come in evidence that the building is centrally located. 10. The learned counsel for the petitioners has submitted that sanction plan of the building has not been proved. The building is situated in core area where reconstruction is not permissible. 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. The core area construction has also been considered in Naresh Kumar (supra) and it has 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. 9 11. In Prem Chand alias Prem Nath Vs. Shanta Prabhakar (Smt.) (1998) 1 SCC 274 , the Supreme Court has held as follows :- “ 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 10 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.” 12. 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.” 11 13. The respondent No.1 is owner of land underneath the premises in question. He has sold upper two floors to Anurag Sharma etc., but has taken no objection from Anurag Sharma for reconstruction. The respondent No.1 has taken steps for getting the plan sanctioned. The condition of the building is bad and not fit for human occupation. The respondent No.1 has proved his means to reconstruct the building. The building is located in residential-cum- commercial area. It is, thus, clear that respondent No.1 bona fide requires the premises for reconstruction, which cannot be carried out unless the premises are vacated by the petitioners and respondent No.2. The two Authorities below have appreciated the entire oral as well as documentary evidence on record and have recorded findings of facts in favour of respondent No.1 on issues No.1 and 2. The Appellate Authority has safe guarded the interest of the petitioners regarding sanction plan by ordering ejectment on the ground of rebuilding and reconstruction subject to production of sanctioned plan by respondent No.1 from a competent authority. In Naresh Kumar (supra) and in Phoola Devi versus Chandul Lal, 2010 (1) Him.L.R. 523, 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 have miserably failed to establish their case that two Authorities below have misconstrued and misinterpreted the evidence on record. There is no perversity in the impugned judgment. In these circumstances, revision is liable to be rejected. 12 14. In view of above discussion, the revision is dismissed with no order as to costs. 15. The pending application (s), if any, also stand disposed of. September 17, 2010. ( Kuldip Singh ) (pankaj) Judge.