Jai Karan vs Madan Lal

A.L. Vaidya, J.—Jai Karan Petitioner is the landlord while Respondent Madan Lal is the tenant of the demised premises which consisted of two rooms, one kitchen, one latrine, one glazed and one open verandah as per plan attached with the main petition for eviction, and these premises have been described as Upper Flat of House No. 115-C, Krishna Nagar, Shimla 1. The landlord preferred a petition u/s 14 of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter to be called as the Act) for eviction of the tenant on the following grounds:

That the Petitioner bona fide requires the vacant possession of the premises in question as he intends to carry out repairs and renovation of the building in question and therefore he also intends to carry substantial additions and alterations work which cannot be carried out without the premises being vacated by the Respondent. It is pertinent to mention here that the premises in question were purchased by the Petitioner from its previous owners vide a registered sale deed registered in the office of the Sub-Registrar, Shimla at Sr. No. 93, Book No. I, Volume No. I at page 112 dated 3-5-1988. After the purchase of the said building the Respondent was immediately informed about the purchase of the property by the Petitioner and a legal notice was also subsequently served upon the Respondent wherein it was made clear to the Respondent that the building in question has outlived its life and the same requires repairs and substantial additions and alterations and same cannot be carried out until and unless the Respondent vacates the premises in question. Further it may be added here that the Respondent has also submitted a plan showing his intentions to carry out the proposed work in the building in question and during the pendency of the petition the requisite sanction would definitely be obtained by the Petitioner. Further the Petitioner is possessing sufficient means for carrying the proposed work which would be immediately carried after getting the eviction of the Respondent from the premises. It is pertinent to mention here that the ground floor of the building in question is lying vacant ever since the purchase of the premises by the Petitioner and he would be only in a position to use the same after he carries the proposed works of repairs, additions and alterations. Hence, in view of the said facts the Petitioner bona fide requires the vacant possession of the premises in question and the Respondent is liable to be evicted from premises in dispute.

The tenant contested the petition for eviction and denied the existence of grounds for eviction alleged by the landlord.

Learned Rent Controller framed the following issues:

Whether the premises in question are bono fide required by the Petitioner for carrying out repairs and renovation and carrying out substantial additions and alterations, which cannot be carried out without the premises being vacated? OPP

Whether there is no relationship of landlord and tenant between the parties? OPR

Relief.

Both aforesaid issues were decided in favour of the landlord and the petition accordingly was allowed.

The tenant assailed the aforesaid order of eviction before the Appellate Authority, Shimla, on various pleas.

The Appellate Authority after hearing the parties, came to the conclusion that the building was fit for human habitation and it had not out lived its utility. It was also held that wooden planks of the building in case found in rotten condition could be replaced by the landlord without vacation of the premises. Appellate Authority, as such, allowed the appeal and dismissed the petition for eviction, preferred by the landlord.

The aforesaid order passed by the Appellate Authority, has been assailed in the present revision petition, on various grounds.

Learned Counsel for the parties have been heard and record has been scrutinised The landlord has sought eviction of the tenant u/s 14(3)(c) of the Act, which runs as under:

A Landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:

(a)....

(b)....

(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 bona fide by him for carrying out repairs which can, net 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 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.

As per pleading of the Landlord the building in question has outlived its life and the same required repairs and substantial additions and alterations which could not be carried out unless and until the tenant vacated the demised premises. In order to have those substantial repairs, the landlord further pleaded that he had submitted a plan showing his intentions to carry out the proposed work in the building in question and during the pendency of the petition the requisite sanction would definitely be obtained by the Petitioner.

On the basis of the aforesaid pleadings and in view of the aforesaid provision of the Act, the Landlord has to establish the following circumstances before the petition for eviction is favorably considered:

(i) that the building of which demised premises were a part had outlived its life and were required bona fide for substantial additions and alterations;

(ii) that the repairs and substantial additions and alterations cannot be effected without the tenant having vacated the demised premises.

In order to establish his case the landlord examined oral as well as documentary evidence. In order to prove the pica that building has outlived its life and requires substantial additions and alterations, parties examined expert witnesses. On behalf of the landlord Sh. S.P. Kapoor a retired Engineer was examined as PW 1 who deposed on oath that he had forty years experience in building construction and at the instance of the landlord he inspected the building under reference as the landlord had informed that he wanted to carry out repairs and substantial additions and alterations. Witness has brought on record report (Ex. P-1). In this report, witness has dealt with various aspects of the building and he came to the conclusion that building was not fit for human habitation in its present condition and needed substantial repairs and alterations, as per sanctioned plan. He also opined in the report that it was not possible to do this work without getting the building vacated. He further mentioned in the report that the ground floor of the building was with the owner and it was lying vacant due to poor condition of the building. This witness also stated before the Rent Controller that Plan ''Mark X'' had been shown to him and on the basis of this, repairs, additions and alterations could not be carried out without the premises being vacated.

On the other hand, tenant examined Sh. R.B. Saksena (RW 4), again a retired Engineer, who inspected the building under reference in March 1992. He stated that except one set in the ground floor, other sets were occupied and condition of the building was good. Report given by this witness was Ex. PW 4/A on record and plan was Ex. PW 4/B. Witness has given the age of the building to be about 60 to 70 years. He has been very specific in deposing that building requires minor repairs which could be carried out without vacating the premises.

It may not be out of place to mention here that the landlord''s requirement for effecting substantial repairs, which could not be so done without the premises being vacated has to be bona fide one, which aspect reflects honest intention on the part of the landlord. The intention of the landlord has to be gathered from the circumstances established in a particular case.

In the present case, as referred earlier, it has to be decided in the present proceedings that even if the landlord required the building for effecting substantial repairs, but additionally it has to be proved that the alleged substantial repairs could not be effected without vacating the demised premises. In order to prove this aspect of the matter in the present case, the landlord as per his pleadings, has to prove that he had asked for sanction of the plan from the Municipal Corporation, Shimla and according to that sanctioned plan, repairs which were being described as substantial one could not be done at the spot without the tenant having vacated the demised premises, In order to establish this aspect PW 1 Sh. S.P. Kapoor stated that plan Mark X could not be executed at the spot without the demised premises being vacated. This Mark X was exhibited as Ex. PW 4/A. According to the landlord, this Ex. PW 4/A was the sanctioned plan by the Corporation submitted by him and according to PW 1 sanctioned plan, referred in his report, was the same plan. There is no doubt that in case Ex. PW 4/A is the sanctioned plan for effecting substantial additions and alterations of the building, under reference, in that event, opinion of the expert would be very much relevant not only to establish this fact that on the basis of the sanctioned plan without the demised premises being vacated, repairs could not be taken in hand but also bona fides of the landlord in this behalf could also be inferred. In order to establish these facts, landlord examined PW 4 Sh. Rishi Raj, Supervisor, Municipal Corporation who deposed on oath that the landlord-Petitioner had submitted a plan with the proposed repairs in the office on 15-9-1989. Witness further stated that it was correct that plan submitted if within 90 days was not sanctioned it would be deemed to have been sanctioned. Witness further stated that he had brought the plan which was submitted and its true copy was Ex. PW 4/A, which was correct to the original. Witness further stated that it was correct that on the basis of record, rejection of the plan was not communicated to the landlord-Petitioner within 90 days of the submission of the plan. This witness admitted that it was correct that plan which was submitted by the landlord, Corporation on 25-10-1989 had rejected the same. Witness stated that he has made the statement on the basis of the record kept at the Corporation office, brought by him in the court.

It has been very forcefully contended on behalf of the landlord that on the basis of the statement of this witness, plan Ex. PW 4/A shall be deemed to have been sanctioned and that being so version given by expert (PW 1) has to be appreciated accordingly. It is not so simple a matter as has been contended on behalf of the landlord.

There is no doubt that u/s 247 of Himachal Pradesh Municipal Corporation Act, 1994 where within a period of sixty days after the receipt of any notice u/s 243 or Section 244 or of the further information, if any, required u/s 245 the Commissioner does not refuse to sanction the building or work or upon refusal does not communicate the refusal to the person who has given the notice, the Commissioner shall be deemed to have accorded sanction to the building of work and person by whom the notice has been given shall be free to commence and proceed with the building or work in accordance with his intention as expressed in the notice and the documents and plans accompanying the same.

When the matter was being argued on the aforesaid lines, this Court thought it proper to summon the relevant record from the Municipal Corporation, in order to test the veracity of this PW 4 with respect to the version given by him especially when he deposed on oath that the plan had been rejected on 25-10-1989, and this rejection order was not communicated to the landlord. Whatever this witness stated did not appeal to reasoning inasmuch it was expected of the Corporation to convey rejection order, if any passed on the plan submitted by the landlord. The relevant file has been summoned and there is a specific order passed by the Corporation, whereby plan submitted for the proposed repairs of the house at Khasra No. 676/2 at Krishna Nagar, Shimla by the landlord on 15-9-1989 had been rejected, on the basis of the objections mentioned in the order. Those objections have been referred as under:

Prior permission from Town and Country Planning Department for reconstruction of house on old line may be obtained.

The Plan is unsigned.

Hand wash basin is not shown in WC/Toilet.

In this rejection order, which has been signed on 25-10-1989, there is an endorsement whereby its copy has been sent to the landlord along with objections and there is an entry in this document itself that copy has been issued on 26-10-1989.

From the aforesaid record of Municipal Corporation, version given by PW 4 does not inspire any legal confidence whatsoever. It has been argued that copy has not been received by the landlord as stated by him and the witness and that statement remained unrepeated and has to be accepted. To repel this argument there is a legal presumption in favour of the official act to have been done in a lawful manner and in the present cast, there is an entry in the order itself that copy has been issued on 26-10-1989 to landlord. It appears that this argument is being addressed when the version given by PW 4 has been found to be-incorrect. This PW 4 has very specifically stated that the rejection order was not communicated but it is not to be so from the record, as referred to above.

There is nothing in the file of Corporation that this Jai Karan Landlord on the basis of the rejection of the plan at any time made any attempt to remove the objections referred therein. The main objection was that plan has not been sanctioned by the Town and Country Planning Department. This was essential and mandatory requirement so far as-the premises within the municipal limits were concerned. The aforesaid facts clearly reflects the intention of the landlord apart from the objections being raised on behalf of the Corporation. Sanction of the Town and Country Planning authorities was required to be procured which in the present case has not been so done. It may not be out of place to mention here that in the background of the aforesaid circumstances at first instance landlord''s intention being bona fide one for making substantial repairs is adversely affected and not only that other aspect of the matter that on the basis of the sanctioned plan substantial repairs could not be effected without the demised premises being vacated, cannot be accepted especially when opinion to that effect could be considered from the expert in case plan had been sanctioned.

It has been submitted on behalf of the landlord that in order to establish bona fide requirement of the landlord for effecting substantial repairs at the spot of the demised premises, it is not essential in all the cases to prove that plan has been submitted to the Corporation and sanctioned also. This proposition may be otherwise correct but would not be available to the landlord to the facts of the present case, inasmuch as it has been pleaded by the landlord that he has submitted the plan for effecting substantial repairs and which was likely to be sanctioned. In the background of all these circumstances, sanction of the plan was very much required not only to reflect bona fide on the part of the landlord but to come to a conclusion whether the substantial repairs, alterations etc. as per sanctioned plan could be effected at the spot after vacating the premises or without vacating the demised premises.

Learned Counsel for the landlord-Petitioner has cited certain precedents in order to find support for his aforesaid submissions. The authorities cited are Shari Sham Dass v. Sh. Sudder Singh and Anr. 1978 (1) RCJ 276; Jaswant Rai Gupta v. Ram Sarup 1973 RCJ 6; Dr. Piara Lal Kapur v. Smt. Kaushalya Devi and Anr. 1970 RCJ 536 and Parkash Chand v. Jagdish Rai 1980 (2) RCJ 225.

Ratio of these rulings shall not be applicable to the facts of the present case inasmuch as the facts in those cases as compared to the case under reference, are quite distinct. There is absolutely no dispute to the proposition that landlord has got fundamental right to get the premises vacated being occupied by the tenant but that right can be exercised strictly in accordance with the provisions of the Act and not otherwise.

Learned Counsel for the Petitioner has argued that the landlord-Petitioner has got finances to raise such a construction and he has proved the same on record. In the context of the present case that will not carry any legal weight whatsoever. Even, if he has got sufficient financial resources to raise such a construction that aspect no doubt may be a circumstance to support the bona fide requirement of the landlord but cannot be a sole circumstance, more so in the present case.

No other point has been stressed.

In view of the foregoing reasons, revision petition being devoid of any merit is accordingly dismissed. However, the parties are left to bear their own costs.