Kuljit Singh Sehgal vs M/s Gupta Agencies and another

S.S. Sudhalkar, J.—The Petitioner of this Revision Petition is the land-lord and the Respondents are tenants. Petitioner filed an eviction petition before the Rent Controller. The eviction petition was dismissed on 21.3.1983. Appeal filed against the same was also dismissed on 2.8.84. Petitioner came in revision to this Court. The same was decided on 27.1.1992 and this Court remanded the matter to the Appellate Authority with the direction for allowing additional evidence. The Appellate Authority got the evidence recorded by the Rent Controller. It may be mentioned that the Rent Controller had held that it is not proved that Respondents raised the additional structure after the creation of tenancy and that there was no hesitation in observing that the back court-yard was already covered when the premises were let out to the Respondents. After recording of the evidence, the appeal was again dismissed on 17.5.1995 and hence this revision petition.

The premises was let out to the Respondents in the year 1979. It consisted of three floors. The ground floor was to be used for business and first and second floors for residential purpose. The possession was sought for on the following grounds:

i) That the premises are required by the Petitioner for his use and occupation;

ii) That the Respondents, after the commencement of the East Punjab Urban Rent Restriction Act (hereinafter referred to as "the Act") without the written consent of the Petitioner have used the first floor for the purpose other than it was let out by converting into a store for stocking the articles and hence has changed the user of the same;

iii) That the Respondents have raised un-authorized construction on the back yard on the ground floor of the premises which has impaired the value and utility of the building.

In this revision petition, counsel for the Petitioner advanced argument only qua the first and third grounds therefore, I shall deal with these grounds only. I shall first deal with the ground regarding the construction of the back court yard and impairing the value and utility of the building. The pleading of the Petitioner in this regard is as under:

That the Respondents have constructed an unauthorized structure on the backyard of ground floor of the demised premises with bricks, cement and iron doors for the storage of the stocks, without any written permission of the Petitioner and which is in violation of the Capital of Punjab (Development and Regulation) Act, 1952.

ii) That the Respondent has raised the unauthorized construction of the back yard on ground floor of the demised premises which has impaired materially the value and utility of the building.

Respondents have contended in the written statement that they have not made the construction but the premises is, as it was when they took it on rent. The relevant part of the written statement is as under:

Para 6 of the petition is incorrect and denied. The Respondent has made no addition or alteration of the premises in dispute. The premises is, as it was, when the Respondents took it on rent in October, 1979.

(ii) The Respondents have not impaired the value and utility of the premises in dispute.

It has been argued by the learned Counsel for the Petitioner that a notice was given for pulling down the unauthorized construction by the Chandigarh Administration and this act of the Respondents made the premises liable for resumption, thus impaired the value of the premises.

The stand of the Respondents is two-fold:

i) that they have not made the construction and the construction is not such which can be said to be of a permanent nature or which would lead to resumption of the premises by the Administration. It has come in the evidence that before 1979 the owner of the premises was one Brij Nath Asharfi Lal and the tenant was "Panchsheel Emporium". It is argued by the learned Counsel for the Respondents that the structure was there when the premises were let out, and actually the earlier owner and the tenant were given notice by the Chandigarh Administration regarding the same. He has also argued that under pressure from the Petitioner, the Chandigarh Administration has given notice regarding the structure. The argument by the counsel for the Petitioner is that the illegal structure erected by the earlier tenant was pulled down and was not in existence at the time of commencement of tenancy with the Respondents and the structure was again erected by the Respondents and that Respondents had made room at that place. It is also argued that the CGI sheets which were there in the earlier structure, and which were removed, were lying in the back yard and were taken again in use by the present Respondents-tenants.

Therefore, the question is whether it is proved that the Respondents erected the structure and if yes whether it amounted to such an act which would impair the value of the premises.

What the Petitioner has stated regarding structure in the plaint has been reproduced above. The Petitioner has examined himself as AW-1. In the last part of examination-in-chief, he has stated that the Respondents have raised the structure in the court yard of the premises in dispute. He has further stated that regarding this structure, the Estate Officer has launched prosecution and the construction has been raised without consent. However, in the cross-examination, he has also stated that the shop was leased out through his father-in-law as his General Attorney. He has further staled that in his absence, his father-in-law used to look after the shop-cum-flat. He has also stated that before the shop-cum-flat was leased out to the Respondents, "Panchsheel Emporium" were the tenants. They have purchased the property from Brij Nath Asharfi Lal. He has also stated that it was correct that the back court yard was covered at the time of purchase and it was having CGI sheets. He has also stated that it was leased out to "Panchsheel Emporium" at the rate of Rs. 6317/- per month and at that time also, the back court yard was covered. According to him. the CGI sheets were removed in June, 1979 after Panchsheel Emporium vacated in May, 1979. However, they were kept in the back court yard only. He has stated that CGI sheets were got removed by his father-in-law.

The father-in-law of the Petitioner is Maj. Sadhu Singh Sethi AW-2. In the last portion of his examination-in-chief, he has stated that the roof in the back court yard was covered with CGI sheets at the time of tenancy. However, he has further stated that nothing was constructed except the roof in the back court yard and the Respondents have constructed a room in the back court yard after the tenancy. Though this witness has tried to make contradictory statement in the subsequent part of the deposition, the above statement made by him cannot easily be brushed aside.

Counsel for the Petitioner has shown to me a copy of the writ petition filed by Respondents in this Court vide which he had challenged the notice of demolition. It is Civil Writ Petition No. 1341 of 1983 filed by the present Respondents against the Chief Administrator, Chandigarh Administration, Estate Officer of the Administration and the Petitioner. The copy of the petition is Ex. PW/1-1.

Counsel for the Petitioner argued that so far as the construction having been made by the Respondents is concerned, there is finding of fact by the Appellate Authority. He has, in this regard, - relied on the observations made by the Appellate Authority in paragraph No. 37 of the Judgment. The appellate authority relying on the order passed in the writ petition held as under:

Even from joint reading of all these documents, it is abundantly clear that the tenant has been resisting demolition of unauthorised construction raised in the back yard. Ex. PW1/2 provide a clincher in clearly spelling out that the construction existing earlier was demolished and fresh construction was raised by the present tenant.

For the purpose of appreciation of this finding, it would be proper to quote the order made in the writ petition as reproduced in the Review Petition. A Review was filed because it was mentioned in the order that admittedly, the construction was made by the Land-lord. By the order in the Review petition, the words "by landlord" were deleted. The order in the review petition is as under:

We have heard the learned Counsel for the parties and find that our order dated 19th January, 1984 passed in C.W.P. No. 1341 of 1983 needs modification. Consequently, that order would read now as follows:

Admittedly, unauthorized construction was raised. The same is being demolished. The Petitioner is only a tenant in the shop. He cannot resist the demolition of unauthorized construction, especially when the land owner is willing to get it demolished. No case for interference has been made out.

Consequently this petition is dismissed in limine.

The review petition stands disposed of.

In this order, or the earlier order, mentioned in the earlier part of the review petition. It is not mentioned that it was admitted that the Petitioner made the construction. The question is whether it can be presumed from this that the Respondents are responsible for this construction. This is what the Appellate Authority has done. It has in Para No. 37 (quoted above) considered that the Respondents have been resisting demolition of the unauthorized construction and PW-1/2 provides the clincher that the construction which was existing earlier was demolished and fresh construction was made.

PW-1/2 is copy of the written statement of Shri J.P. Rattan, HCS, Assistant Estate Officer in the writ petition, filed by the Respondent. He has stated that the previous tenant had made unauthorized construction but the same was demolished. However, one fact cannot be lost sight of i.e. that even in the writ petition it has been alleged that the notice has been got issued by the Petitioner by putting pressure on the Administration. No document to show actual demolition is shown. The admission mentioned in the order of the writ petition and the review petition has also been considered by the Rent Controller in coming to his conclusion. He has quoted the relevant paragraph of the order in review petition Ex. PW 3/1 in Para No. 36 of the judgment.

No doubt, if this is only a case of a pure finding of fact, the court in revision would not normally interfere. However, if the finding of fact can be seen to be based on certain evidence which cannot be considered a proper evidence according to law, then the court sitting in revision can certainly set-aside the finding, being perverse and not based on legal footings. The Respondents have not been confronted in the deposition with the admission mentioned in the order in the writ petition and/or in the order of review petition. There was no reason for not doing so. A witness can be cross examined as to his previous statement made by him in writing and if he had made such an admission, he should have been cross-examined u/s 145 of the Evidence Act because it was an admission, allegedly made by the Petitioner as per the trend adopted by the lower Appellate Court. An admission is a statement, oral or documentary, which suggests an inference as to any fact, any issue or relevant fact and it is made by any of the persons under the circumstances mentioned in the Evidence Act. It is not shown that in the writ petition filed by the tenant, he had made admission regarding construction. In the writ petition, Ex. PW/1-1. it has been stated by the Respondents that when the premises were taken on lease, the back court yard was covered with GIC sheets and one room was constructed with pucca steel door. They do not say that they constructed it. Moreover, if a tenant is given possession of a premises including such a construction and if the local authority tries to demolish the construction, the tenant has every right to protect the construction because it is a part of the tenanted premises of which he is in possession. Therefore, adverse inference cannot be drawn because he filed a writ petition. Therefore, the reliance of the Lower Court on the written statement filed by the Administration in the writ petition, the observations of alleged admission made in the orders of Court and the conduct of the Respondents in filing the writ petition cannot lead to the finding that construction is made by the Respondents and when the finding is based on the ground, which itself is hazy one, and is not a legal one or to say is a perverse one, and the High Court sitting in revision cannot shut its eyes to it and uphold such a finding.

Moreover, in the writ petition, the main contesting parties were three i.e. the Petitioner, Respondents and the Chandigarh Administration. It is not known as to who has made the admission as has been mentioned in the order of the court in the writ petition and the order in review petition.

In addition to this, the admission made by the power of attorney of the Petitioner, AW-2, that the roof of the back court yard was covered with GIC sheets at the time of tenancy cannot be over-looked. Though he has stated that nothing was constructed except the roof in the back yard after the tenancy, this assertion is not in consonance with the deposition of the Petitioner and appears to be an improvement. It may be mentioned that the above mentioned statements have been made by AW-2 in his examination-in-chief.

Moreover, the contention of the Petitioner that the GIC sheets which were on the construction earlier made, were allowed to remain in the back court yard even when the tenancy in favour of the Respondents was created, appears to be an absurd proposition because if the earlier tenant had made the construction, he would have taken away the GIC sheets.

Moreover, the landlord should have come forth saying as to what was the construction made. The pleading in the rent petition are so vague that it will not be proper even to hold that the room was constructed below the GIC sheets by the present Respondents.

Raghunath G. Panhale (Dead) By Lrs. Vs. M/s. Chaganlal Sundarji and Co., was a case in which there was finding of fact regarding bona fide requirement by the court below and the High Court had dismissed the writ petition under Article 227 of the Constitution, stating that it could not interfere with findings of the fact. The Supreme Court found that the trial court and appellate court had clearly erred in law and practically equated the test of "bona fide need or requirement" with "dire or absolute or compelling necessity". The Supreme Court found that this was not proper and High Court should not have rejected the contention of the Appellant on the ground that it was finding of fact.

Here in this case also finding of fact has been arrived at and for the reasons mentioned above, which I do not repeat, the finding of fact can be set-aside. It is not that all the findings of fact are such that they cannot be touched in revision. As mentioned above, if the findings are not based on correct appreciation of law, or which are perverse or which are against even the evidence cannot be over looked. Again, the powers of the Court u/s 15(5) of the Act are wider than u/s 115 of the CPC (CPC) however. Court has to consider legality and propriety of the order under revision. According to Order 41 Rule 33 of the CPC, the Court can use its power for setting aside the finding even when the revision is filed by the Respondent-tenant. Even if Code of CPC is held to be not applicable. Section 15(5) of the Act gives wider power to this Court to do so.

Counsel for the Petitioner has shown various authorities to support his case that when there is addition or alteration, culminating into a permanent construction, the same can be considered and the same also can be considered from the question of impairment of value of the premises as the premises becomes subject to resumption. However, it is held that the Petitioner has not proved that the construction has been made by the Respondents, it is not necessary to go into the said authorities and discussion regarding the effect of the construction.

The next argument is regarding the issue of bona fide requirement. The Petitioner has pleaded bona fide requirement as one of the grounds for eviction. However, this issue was not pressed for in the courts below. In the judgment of the Rent Controller in para No. 9, it has been mentioned that this issue is not pressed during the course of argument and it has become redundant in view of the change of law since SC Fs have been declared as non-residential buildings vide notification No. 42 of 1982. In the judgment of the appellate court, it has been mentioned in Para No. 18 that this ground is not pressed for and even otherwise the ground of personal necessity was not available in view of Section 2(d) of the Act. The appellate authority has relied on the amended provision i.e. Section 2(d) of the Act which defines non-residential buildings.

Counsel for the Petitioner has argued that earlier the ground of bona fide requirement was not available to him in view of the fact that the premises were for non-residential use, and the ground has become available in view of the judgment of the Supreme Court in the case of Harbilas Rai Bansal Vs. State of Punjab and another, . The judgment of the Supreme Court is dated 5.12.1995 and the appeal was decided by the Appellate Authority on 17.5.1995. By the said judgment, the amendment made in Section 13(3)(a) of the Act by amending Act No. 29 of 1956 which deprived the landlord of his right of ejectment from a non-residential premises for his bona fide requirement was struck down by the Supreme Court. According to learned Counsel for the Petitioner, he did not press for this issue because the amendment stood operational at the time when the case was pending before the courts below and that in view of the amendment prevailing no sufficient evidence was led and therefore, the matter now is to be decided on this issue also. Mr. Aggarwal, learned Counsel for the Respondents has relied on the case of Harishankar Khanna (Since dead, by his Lrs.) Vs. Union of India (UOI) and Another, . He has relied on Para No. 5 of the judgment in which it has been observed by the Supreme Court as under:

..... Now so far as the applicability of Section 240 of the Government of India Act is concerned, that point was apparently not pressed before the High Court and it cannot be allowed to be raised now. No rule has been shown by which Khanna was governed which contained the same requirements as are to be found in Sub-section (2) and (3) of the above section regarding the authority which was competent to pass the order of discharge or the giving of a reasonable opportunity to show cause against the action proposed to be taken.

He has also relied on the case of Gauri Shanker Vs. Hindustan Trust (Pvt.) Ltd. and Others, . It has been held therein that the question of the factum and validity of a notice to terminate the contractual tenancy was not at all raised, let alone, pressed before the Tribunal. It is further observed that on the other hand, the judgment showed that all other contentions which would include an argument relating to the validity of the notice were expressly abandoned and that raising grounds in the Memorandum of Appeal is not sufficient to show whether a particular point was actually argued or pressed before the Court. It is further observed that if the court expressly says that only certain points have been argued and no other point has been argued the statement in the judgment has prima facie to be accepted as correct.

It is found that this point, (regarding the bona fide requirement) has been raised half heartedly and therefore, not pressed for when the case was argued before the Rent Controller and the Appellate authority. The distinction between the authorities cited by the learned Counsel for the Respondent and this case is that a provision of the Rent Act which precluded the land lord to obtain possession of a non-residential premises on the ground of bona fide requirement has been struck down after the decision of the Appellate Authority. In view of the position that the provision has been struck down, it will be open for the landlord to put forth his case as if the provision never existed in the Rent Act.

Mr. Sarin, learned Counsel for the Petitioner has argued that the matter may not be remanded in view of the principle laid down by the Supreme Court in Ashwinkumar K. Patel Vs. Upendra J. Patel and Others, . In that case it has been held that the High Court should not ordinarily remand a case merely because it considers the reasoning of the lower court in some respect to be wrong because such remand orders lead to unnecessary delays and cause prejudice to the parties to the case and when the material was available before the High Court, it should have itself decided the appeal one way or the other. It will be worthwhile to note that the words "ordinarily" is used by the High Court. This discussion is found in Para No. 8 of the judgment. Here in the present case, as mentioned above, the amendment which was struck down was in existence when the matter was argued before the courts below.

Mr. Aggarwal argued that the case cannot be decided by this Court when evidence was adduced by the parties in view of the prevailing position of law at that time. I agree with this submission. In this case, the issue though framed, has not been pressed for by the Petitioner and the reason given by the appellate court in rejecting the contention also does not hold good now after the judgment of the Supreme Court in the case of Harbilas Rai Bansal and Anr. (supra). This case, therefore, will be analogous to the case which is decided on the preliminary point because the ground is now available to the Petitioner.

Therefore, if the Petitioner is to be allowed, to raise this point now and the parties are to be permitted to lead evidence, the case will have to be remanded under Order 49 Rule 23 of the Code of Civil Procedure. In view of the fact that this ground which otherwise, would have been available but could not be taken because of the above mentioned provision of the Rent Act not being struck down when the matter was argued before the courts below, I find it proper to permit this point to be raised to and also to adduce additional evidence and for this, as mentioned above, the case will have to be remanded to the Appellate Authority.

Mr. Aggarwal, learned Counsel for the Respondents, also argued that the Act was extended by the Central Government to the Chandigarh territory by notification and that notification has not been declared ultra-vires so far the above mentioned provisions of the Rent Act, applicable to Punjab, which has been held to be ultra-vires. However, I do not find it proper to express any opinion on this point and leave it to be decided by the lower appellate court.

As a result, this appeal is partly allowed. The finding of the Appellate Authority on issue No. 3 is set aside and it is held that it is not proved that the alleged construction was made by the Respondents or that the Respondents have materially impaired the value and utility of the demised premises.

Finding on issue No. 2 regarding change of user is affirmed.

Finding on issue No. 1 regarding bona fide requirement is set-aside and the case is remanded to the lower Appellate court for taking decision in accordance with law. The Appellate Authority shall permit the parties to lead additional evidence and Appellate Authority may record the evidence itself or by sending the matter to the Rent Controller.

Parties to appear before the Appellate Authority on 5.1.2001.