Gulam Mohammad Wani vs Rajinder Sharma And Another

Tarlok Singh Chauhan, J

The instant revision petition is directed against the judgment passed by the learned Appellate Authority (III), Shimla, on 09.06.2011 whereby it dismissed the appeal preferred by the petitioner-tenant.

The parties hereinafter shall be referred to as the 'landlords' and 'tenant'.

Patu Devi and Rajinder Sharma moved an application under Section 14 of the H.P. Urban Rent Control Act, 1987, seeking eviction of Gulam Mohammad from sub basement in building known as "Fay Lodge, Circular Road, Shimla" on the ground that he was in arrears of rent since January, 2004; the tenanted premises had become unsafe and unfit for human habitation and the landlords required the premises for reconstruction purposes which cannot be carried out without vacating the same. He had sub-let the premises to other persons. The tenanted premises was claimed to be under the tenancy of Gulam Mohammad at a rental of Rs.200/- per month, the building had outlived its life, the material used had rotten and cracks stood developed and the building had become unsafe and unfit for human habitation.

The petition was contested by tenant Gulam Mohammad on the ground that the landlords had no title to land underneath the tenanted premises and, therefore, no right is available to them. It was averred that Smt. Patu Devi was the landlord of the premises and so far as the identity of the premises is concerned, there is no dispute. It was further averred by the tenant that he had been paying rent to Ratni Devi and thereafter Atul Sharma received the rent. Since, there was dispute qua title of the property, rent was not received by the landlords. The building is fit and good for human habitation and it did not require any reconstruction and the requirement of the landlords for reconstruction is not bonafide. Minor repairs are required and there was no sub-letting.

The landlords filed rejoinder and the averments made in the reply were controverted.

From the pleadings of the parties, the following issues were framed on 22.07.2009:-

"1. Whether the respondent is in arrears of rent, as alleged? OPA.

Whether the suit premises has become unfit and unsafe for human habitation, as alleged? OPA.

Whether the suit premises is bonafide required by the applicants for rebuilding and reconstruction, as alleged? OPA.

Whether the respondent has sublet the suit premises, as alleged? OPA.

Whether the application is bad for mis-joinder of parties, as alleged? OPR.

Whether the application is not maintainable, as alleged? OPR.

Whether the applicants are estopped to file the present application, as alleged? OPR.

Relief."

After recording evidence and evaluating the same, the learned Rent Controller vide order dated 20.08.2010 allowed the petition filed by the landlords on the ground of arrears of rent and that the building is required bonafide by them for reconstruction purposes.

Feeling aggrieved by the order of the learned Rent Controller, two separate appeals were preferred before the learned Appellate Authority. The tenant challenged the order of eviction on the grounds of arrears of rent and the premises being required bonafide for reconstruction and rebuilding. The landlords preferred an appeal on the ground that the learned Rent Controller ought to have passed eviction on the ground that the premises had become unfit and unsafe for human habitation.

The learned Appellate Authority vide its judgment dated 09.06.2011 dismissed the appeal preferred by the tenant and allowed the appeal preferred by the landlords on the ground that the premises are required bonafide for reconstruction as also on the ground that the tenanted premises had become unsafe and unfit for human habitation.

Feeling aggrieved by the judgment passed by the learned Appellate Authority on 09.06.2011, the tenant has filed this revision petition.

I have heard the learned counsel for the parties and have gone through the records of the case.

At the outset, the scope of revisional jurisdiction which Court can exercise must borne in mind, as the Constitution Bench of the Hon'ble Supreme Court in Hindustan Petroleum Corporation Limited vs. Dilbahar Singh (2014) 9 SCC 78 has laid down certain broad principles for exercise of revisional jurisdiction which can be summarized as under:

(i) The term 'propriety' would imply something which is legal and proper.

(ii) The power of the High Court even though wider than the one provided under Section 115 of the Code of Civil Procedure is not wide enough to that of the appellate Authority.

(iii) Such power cannot be exercised as the cloak of an appeal in disguise.

(iv) Issues raised in the original proceedings cannot be permitted to be reheard as a appellate Authority.

(v) The expression "revision" is meant to convey the idea of much narrower expression than the one expressed by the expression "appeal". The revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the CPC but certainly it is not wide enough to make the High Court a second court of first appeal. While holding so the Court reiterated the view taken in Dattonpant Gopalvarao Devakate vs. Vithalrao Maruthirao Janagawal, (1975) 2 SCC 246.

(vi). The meaning of the expression "legality and propriety" so explained in Ram Dass vs. Ishwar Chander, (1988) 3 SCC 131 was only to the extent that exercise of the power is not confined to jurisdictional error alone and has to be "according to law".

(vii) Whether or not the finding of fact is according to law or not is required to be seen on the touch stone, as to whether such finding of fact is based on some legal evidence or it suffers from any illegality like misreading of the evidence; overlooking; ignoring the material evidence all together; suffers from perversity; illegality; or such finding has resulted into gross miscarriage of justice. Court clarified that the ratio of Ram Dass (supra) does not exposit that the revisional power conferred upon the High Court is as wide as an appellate power to reappraise or reassess the evidence for coming to a finding contrary to the findings returned by the authority below.

(viii) In exercise of its revisional jurisdiction High Court shall not reverse findings of fact merely because on reappreciation of the evidence it may have a different view thereupon.

(ix) The exercise of such power to examine record and facts must be understood in the context of the purpose that such findings are based on firm legal basis and not on a wrong premise of law.

(x) Pure findings of fact are not to be interfered with. Reconsideration of all questions of fact is impermissible as Court cannot function as a Court of appeal.

(xi) Even while considering the propriety and legality, high Court cannot reappreciate the evidence only for the purposes of arriving at a different conclusion. Consideration of the evidence is confined only to adjudge the legality, regularity and propriety of the order.

(xii) Incorrect finding of fact must be understood in the context of such findings being perverse, based on no evidence; and misreading of evidence."

In the aforesaid decision, the Hon'ble Supreme Court was dealing with the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, T. N. Buildings (Lease and Rent Control) Act, 1960 and Haryana Urban (Control of Rent and Eviction) Act, 1973. The incongruity in the decisions rendered by the Hon'ble Supreme Court in Rukmini Amma Saradamma vs. Kallyani Sulochana, (1993) 1 SCC 499 and Ram Dass (supra) was the backdrop in which the Constitution Bench was called upon to decide the scope of the revisional jurisdiction and the expression "legality and propriety" provided in the relevant statues. The essential question being as to whether in exercise of such powers, the revisional authority could re-appreciate the evidence or not. Finally the Hon'ble Supreme Court answered the reference by making the following observations:-

"43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers."

It was vehemently contended by Mr. Neeraj Gupta, Senior Advocate, assisted by Ms. Rinki Kashmiri, Advocate, for the petitioner that the findings rendered by the learned Appellate Authority regarding the condition of the building are perverse. In addition, he argued that even if the findings rendered by both the learned Authorities below are not interfered, even then, the petitioner has a right of re-entry.

Mr. Sumit Sood, learned counsel for respondent No.1, on the other hand, argued that taking into consideration the scope of the revisional jurisdiction as laid down in Hindustan Petroleum Corporation Limited's case (supra), no case for interference is made out as the findings cannot be said to be perverse as the same are based on the material placed on record. As regards the contention of re-entry, he argued that right of re-entry is available to the petitioner only when the vacation of the premises is sought on the ground of re-building and not when eviction is sought on any other ground(s).

As regards the condition of the building, there is an overwhelming evidence available on record to prove that the building has outlived its life and is unsafe and unfit for human habitation.

AW-1 Rajinder Singh has proved on record that the building in question is more than 100 years old upon which cracks have developed and the wooden doors, windows and other material over the years have rotten. He further proved that the floors have sunk.

AW-3 Shri B.C.Sharma inspected the premises on 12.02.2009 and found the building more than 100 years old and the building was constructed on 'Dhajji' walls. He also noticed cracks and sinking of the floors. This is mentioned in his report Ext. AW-3/A and is also reflected in the photographs Exts. AW3/C-1 to C-12.

As against this evidence, RW-1 Gulam Mohammad tried to claim that the building is in good and fit state, but he admitted that the tenanted premises was in the sub-basement floor and it was made of 'dhajji' walls and wood. He admitted the photographs Exts. AW3/C-1, C-3, C-4, C-5,C-7 and C-12 go to show that the condition of the building cannot be said to be habitable.

RW-2 Desh Raj had visited the premises and gave his report Ext. RW2/A. He had not taken any photograph and admitted that photographs Exts. AW3/C-1, C-3, C-4, C-5,C-7 and C-12 relate to the sub-basement floor. Even, as per this witness, the building is very old and is made of 'dhajji' walls and wood. He also admitted that the building as of now cannot be constructed on RCC pattern without getting the same vacated.

The findings recorded by the Authorities below on this issue are pure findings of fact and warrant no interference, more particularly, when learned counsel for the petitioner failed to show any perversity in appreciating the oral and documentary evidence led by the parties.

Thus, it stands established on record that not only are the premises bonafidely required by the landlord for re-building and reconstruction, but the premises have otherwise become unsafe and unfit for human habitation. Thus, the findings recorded by the learned Appellate Authority to this effect are affirmed.

As regards the right of re-entry, the same is provided in Section 14(3)(c) of the H.P. Urban Rent Control Act, 1987, which reads as under:-

"(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 and unfit for human habitation or is required bona fide 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 bona-fide by him for the purpose of building or re-building or making thereto any substantial additions or alterations and that such building or rebuilding of addition or alteration cannot be carried out without the building or rented land being vacated;

11[Provided that the tenant evicted under this clause shall have right of reentry on new terms of tenancy, on the basis of mutual agreement between the landlord or tenant, to the premises in the re-built building equivalent in area to the original premises for which he was tenant. Provided further that in case of non residential premises, the landlord shall not compel the tenant for a change of business under the new terms of tenancy; and]"

A bare reading of the aforesaid Section would go to show that a tenant ordered to be evicted under the provisions of Section 14(3)(c) has a right of re-entry on new terms of tenancy and not merely because this proviso contains an expression in the re-built building. The same nowhere goes to indicate or establish that this right of re-entry is available only when eviction is sought for the purpose of building or rebuilding, as contended by Shri Sumit Sood, Advocate, because the proviso appears after the entire sub-section and, therefore, does not apply only to the last part of the sub-section when eviction is sought on the ground of rebuilding.

In view of the aforesaid discussion, though the findings of the learned Appellate Authority are upheld, however, with the modification that the tenant shall have a right of re-entry. For this purpose, the tenant is given time upto 31.05.2021 to handover vacant possession of the premises in question to the landlord so as to enable him to commence construction. The tenant will file an undertaking on affidavit within two weeks from today that in any eventuality he would hand over the vacant possession to the landlord within the aforesaid stipulated time, failing which he would render himself liable for penal consequences and will have a right of re-entry in the premises on its being re-built.

With the above modification, the civil revision is disposed of, so also the pending application(s), if any. However, the petitioner has a right of re-entry in accordance with the proviso as aforesaid.