Leela Thakur And Another vs Himachal Shiksha Samiti Saraswati Vidya Mandir

Jiya Lal Bhardwaj, J

The petitioners, who are tenants, have assailed the order dated 18.12.2017, passed by the learned Rent Controller, Solan, District Solan, H.P., in Rent Case No.07/2 of 2009, titled, Himachal Shiksha Samiti Saraswati Vidya Mandir Vs. Leela Thakur and another, whereby, the eviction petition preferred by the respondent/Landlord, has been partly allowed, on the grounds of material additions and alterations being made by the petitioners in the tenanted premises, which order has also been affirmed by the learned Appellate Authority-II, Solan, District Solan, H.P.

The grounds of challenge in the petition are that the respondent had not pleaded in the eviction petition that what alterations/additions have impaired materially the value and utility of the tenanted premises and the learned Rent Controller has not adhered to the principles and requirements, so postulated in Section 14(2)(iii) of the Himachal Pradesh Urban Rent Control Act, 1987 (for short "the Act").

Although, the learned Appellate Authority has returned a finding that the alteration and repairing work has been carried out, but at the same time it has presumed that certainly when the premises were let out about 44-45 years back, deterioration and wear and tear must have occurred in the building, for which repair and construction is required, however, the said findings are unsustainable for the reasons that the same cannot be based on mere presumption.

The respondent has not produced any documentary or oral evidence to show that at any point of time, there existed an open verandah, in the building. The reliance cannot be placed upon the notice (Exhibit PW-2/C), issued by the Municipal Council, Solan, to hold that the premises are unsafe and unfit for human habitation. It has not been proved from the report that the condition of the building was not fit for habitation. It has also not been proved that the alteration was done after creation of the tenancy. Notice was issued by the Municipal Council, Solan, behind the back of the petitioners and thus, the findings recorded by the learned Rent Controller are unsustainable in law.

The respondent filed the eviction petition against the petitioners on the ground that the premises had become unsafe and unfit for human habitation and the tenanted premises is required bona fide by the respondent, for the purpose of re-building and such building or re-building cannot be carried out without the building/rented premises being vacated. Another ground, which was raised was that the petitioners have illegally converted the verandah into one room and kitchen, without the written consent and permission of the respondent and his predecessor-in-interest and also of local authority and hence the additions/alternations and structural changes in the tenanted premises have made the petitioners liable for eviction.

The petitioners filed reply to the eviction petition and took preliminary objections that the respondent is neither competent nor authorized to file present petition, there is no relationship of tenant and landlord between the respondent and the petitioners; and the petition is bad for non-joinder of necessary parties etc.

On merits, it was admitted that the petitioners are residing in the demised premises along-with other legal representatives of deceased Saroj Thakur, original tenant. It was however, denied that the petitioners converted the verandah into one room and kitchen. The accommodation with them is stated to be same from the very beginning. It was denied that the rented premises had become unsafe and unfit for human habitation. It is pleaded that the respondent intends to start commercial activity by opening a school and is harassing the tenants, so that the premises can be vacated.

The respondent is not entitled to construct any portion of the tenanted premises forcefully. The society is not entitled to raise construction around the tenanted premises for blocking or obstructing the path of the tenant and all illegal activities are being carried out by the respondent to compel the petitioners to vacate the premises.

The respondent filed rejoinder to the reply and controverted the facts.

The learned Rent Controller on the basis of the pleadings framed the following issues:-

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

2 Whether the building (suit premises) is bonafide required by the petitioner for the purpose of rebuilding and reconstruction, as alleged? ...OPP

3 Whether the respondents have illegally converted the veranda into the room and kitchen without the consent and permission of the petitioner, as alleged? ...OPP

4 Whether the petitioner is neither competent nor authorized to file the present petition? ...OPR

5 Whether there is no relationship of tenant and landlord between the petitioner and the respondents? ...OPR

6 Whether the petition is bad for non-joinder of necessary parties? ...OPR

7 Whether the petitioner has no locus standi to file the present petition? ...OPR

8 Whether the petitioner is estopped to file the present petition due to his own act, conduct and admissions? ...OPR

9 Relief."

After framing the issues, the parties led their evidence. The respondent to prove that the suit premises has become unsafe and unfit for human habitation, has examined PW-3 Shri R.P Swami, Assistant Engineer, who proved his report Ex.PW-3/A, that the building is beyond repair and reconstruction is the only alternative. The respondent examined PW-2 Shri Devender Singh, Clerk, to prove notice Ex.PW-2/C issued by M.C. Solan to the respondent-Society under Section 116 of the HP Municipal Act, to the effect that the building has become unsafe. The Rent Controller after discussing all the material placed before it, returned the findings that the building occupied by the petitioners is unsafe. However, it recorded the findings that the tenanted premises are not required for reconstruction and rebuilding, but returned the findings that the tenanted premises is in dilapidated condition, however, the respondent could not prove that it is bona fide required by the respondent for rebuilding, rather they want to construct a building to start a non-residential building.

So far as, the second ground with respect to eviction of the petitioners on account of theirs having converted the verandah into one room and kitchen without written consent and permission of the respondent, is concerned, the Rent Controller on the basis of the notice Ex.PW-2/D, issued under Section 211 of Himachal Pradesh Municipal Act, 1994, by the Municipal Council, Solan, to petitioner No.1, came to the conclusion that she was carrying out construction work of room without prior permission of the Municipal Corporation and the Municipal Corporation had served the notice to stop the unauthorized construction activity. The Rent Controller, on the basis of above material, concluded that the petitioners have raised illegal construction and thus illegally converted one toilet and one room and verandah in the tenanted premised without the consent and permission of the respondent and made material additions, alterations and structural changes in the tenanted premises.

The petitioners as well as the respondent preferred appeals against the order of the Rent Controller dated 18.12.2017 and the Appellate Authority after considering the evidence and the arguments advanced by the parties came to the conclusion that the findings returned by the learned Rent Controller do not require any interference after discussing the judgments passed by this Court as well as of the Hon'ble Supreme Court and dismissed both the appeals. The Appellate Authority had come to the conclusion that when the expert had visited the spot and prepared a report, he had found some CGI sheets in rust condition and some replaced in the premises. It was held by the Appellate Authority that there is sufficient record to show that the building is unsafe and unfit for human habitation. However, the plea taken by the respondent that the building is bona fide required was rejected on the ground that the residential building cannot be converted into non-residential building, except with the permission of the Rent Controller and hence the appeal preferred by the respondent was dismissed.

The respondent has not preferred appeal against the finding returned by the Appellate Authority, but the petitioners feeling aggrieved by the judgment passed by the learned Appellate Authority has assailed the same on the aforementioned grounds.

I have heard the learned counsel for the parties and also perused the record carefully.

Learned counsel for the petitioners has argued that once the respondent had not specifically pleaded in the petition that the alteration has impaired materially value and utility of the building, the findings returned by the Rent Controller and affirmed by the Appellate Authority, are unsustainable. A perusal of the issues framed by the Rent Controller reveals that it had framed one of the issues to the effect that the petitioners have illegally converted the verandah into one room and kitchen without the consent and permission of the respondent. Both the authorities below have returned the findings that the petitioners have raised one room and kitchen without the consent and permission of the respondent. Now the plea raised that the construction raised has not impaired the value and utility, without there being any specific pleadings, is of no use, when it has come in evidence of PW-5 Dr. Satya Vrat Bhardwaj that the construction raised has diminished the value of land and building. The plea now raised that the alteration has not impaired the value and utility, also proves that the petitioners admit that they had carried out the material alternation and additions. Once the petitioners did not specifically raise the plea in the written statement that the material additions and alterations have not materially impaired the value or utility of the building, the said objection and ground cannot be taken at this stage, especially when both the authorities below have returned the findings of fact that the petitioners have raised the material additions and alterations without the consent and permission of the respondent. Further the parties during evidence were aware of the issue and once, it has come on record that the additions and alterations done by the petitioners in the premises are without the consent of the respondent, no illegality cannot be found with the findings returned by the Rent Controller and as affirmed by the Appellate Authority.

Learned counsel for the petitioners has placed reliance upon the judgment of Hon'ble Supreme Court in AIR 1980 SC 1218, titled, Onkar Nath Vs. Ved Vyas, to contend that once there is no pleading to the effect that the alteration has impaired materially the value and utility of the premises, the judgment passed by the Rent Controller is unsustainable in law. If the judgment is perused, the Hon'ble Supreme Court had come to the conclusion that neither there is scintilla of evidence nor indeed there is any averment to the effect that the landlord in not occupying any other residential building in the area concerned and has not vacated such a building, without sufficient cause, was under consideration. However, in the present case, it has come in the evidence of PW-5 Dr. Satya Vrat Bhardwaj that the material alteration was done without the permission of the respondent and it has impaired materially the value and utility of the land and the premises. Once the petitioners have been held to be illegally converted the verandah into one room and kitchen without the consent of the respondent, by the Rent Controller, which finding has also been affirmed by the Appellate Authority, this Court will not venture to go into the said finding of fact while exercising the jurisdiction under Section 24 (5) of the Act.

Learned counsel for the petitioners further placed reliance upon the judgment passed by this Court in 1994 (1) Sim. L. C. 171, titled, Sham Sunder Mehra vs. Mastan Singh and others, to contend that the pleadings have to be specific with respect to the eviction on certain grounds. In this judgment, the Court had held that as per Clause (c) of sub-section (3) of Section 14 of the Act, the necessary pleadings, which are required to be made in the petition are

(a) the building or rented land is required bona fide for the purpose of building or re-building or making thereto any substantial additions or alterations; and (b) that such building or re-building or additions or alterations cannot be carried out without the building or rented land being vacated. No doubt, there has to be specific pleading, but once the party did not raise objection at the time of filing written statement and further when it has come in evidence that the alteration has impaired materially the value and utility of the land and the building, the said evidence cannot be ignored, once both the authorities below have returned the findings that there is material additions and alterations made by the petitioners, impairing materially the value and utility of said verandah, which are findings of fact. Thus, the judgment referred above is not attracted to the facts of present case. Furthermore, in the present case, though the Rent Controller has held that the tenanted premises is not bonafidely required by the respondent for rebuilding, but if the evidence adduced by the respondent is read in its entirety, once the building has become unsafe and unfit for human habitation, the same cannot be occupied by the petitioners. One of the petitioners i.e. petitioner No.1-Smt. Leela Thakur has admitted in cross-examination the other tenants have vacated the premises, occupied by them and thus it cannot be said that the building is fit for human habitation.

Learned counsel for the petitioners has also placed reliance upon the judgment of the Hon'ble Supreme Court in (2003) 1 SCC 59, titled Waryam Singh vs. Baldev Singh, to contend that the order for eviction can be passed only if the landlord proves that the tenant had carried out construction without the consent of the landlord and the value and utility had been materially impaired.

In the present case, the Rent Controller has returned the findings that the petitioners have made material additions and alterations in the tenanted premises without consent and permission of the respondent, whereby the value and utility of said verandah has been impaired materially, which finding has been affirmed by the Appellate Authority, and this Court while exercising the jurisdiction under Section 24(5) of the Act for the purpose of satisfying itself to the legality or propriety of the orders, cannot interfere with the said finding of fact. It is settled law that this Court cannot appreciate or re-appreciate the evidence merely to take a different view of the facts as if it is a Court of facts. Reference in this regard is made to the judgment of the Hon'ble Supreme Court in AIR 1999 SC 2507, titled Shiv Sarup Gupta versus Dr. Mahesh Chand Gupta. Furthermore, when it is not disputed by the petitioners that other tenants in the premises have vacated the premises, clearly shows that the accommodation occupied by the petitioners is not safe for human habitation.

Learned counsel for the petitioners also placed reliance upon the judgment passed by the Hon'ble Supreme Court in AIR 2020 SC 2382, titled Krishan Kumar vs. Krishna Nath and others, to contend that additions and alterations are not enough for eviction, until and unless it is proved that the same has materially impaired the value and utility of the building under the Act.

In the present case, the respondent has proved that the petitioners had carried out construction without the prior permission of Municipal Council, Solan by it and even a notice was issued to petitioner No.1 (Exhibit PW-2/D) on 06.05.2010, which is admittedly after institution of the petition. Further as per the evidence led by the respondent, it has been proved that the additions and alterations have materially affected the utility of the building as recorded by the Rent Controller and this Court cannot alter such finding returned by the Rent Controller, which was affirmed by the Appellate Authority, and are based on evidence. As already observed above, this Court cannot appreciate or re-appreciate the evidence while exercising the powers under Section 24(5) of the Act.

Lastly, the learned counsel for the petitioners placed reliance upon the judgment of the Hon'ble Supreme Court in AIR 1994 SC 800, Shadi Singh vs. Rakha, to contend that there is material distinction between effecting repairs and in its guise to make structural alteration or to re¬structure the building. In this judgment, it was held that the pleading has to be made to the effect that the repair cannot be carried out without evicting the tenant from the building or while the tenant remained in occupation. In the present case, the eviction petition has been allowed only on the ground of material additions and alterations and thus, the judgment cited above is not attracted.

Learned counsel for the petitioners argued that the findings given by the Appellate Authority to the effect that since the building was let out 44-45 years back, there must be deterioration and wear and tear are based on assumption. Once the Rent Controller has allowed the eviction petition on the ground of material alteration, this finding has no relevance.

Learned counsel for the respondent has placed reliance upon the judgment passed by this Court in 1997(2) RLR 197, titled M/s Mohan Lal Ashok Raj vs. Lajwanti Devi, to contend that the respondent in its pleading has expressly stated in paragraph 18(a) (1) & (2) that the rented premises had become unsafe and unfit for human habitation and further the same is required bona fide by the respondent for the purpose of re-building and such building or re-building cannot be carried out without the building/rented premises being vacated. Further the respondent had specifically pleaded that the petitioners have illegally converted the verandah into one room and kitchen without the written consent and permission of the respondent and once the issue has been framed, the parties were aware of the ground and once the evidence has been adduced to the effect that the construction has diminished the value of the building and the land, the contention raised by the petitioners that it has not been specifically pleaded "that the additions and alterations have impaired materially the value or utility of the building or rented land" cannot be allowed to be raised before this Court. Once, the petitioners have not raised this very objection before the Rent Controller in the written statement and had not stopped the respondent to lead such evidence, the plea taken by the learned counsel for the petitioners cannot be entertained that the pleading of the respondent before the Rent Controller was not specific. The relevant para of the judgment is reproduced as hereunder:-

"6 . No doubt, it is not necessary in a pleading to set out the evidence, but the respondent could have been more specific in the pleading filed before the Rent Controller. It would have been better if the specific act committed by the tenant had been expressly stated in paragraph 18(a) (2). However, that will not enable the petitioner herein to contend that the findings of the Authority are unsustainable. It is seen from the order of the Rent Controller itself that neither party was taken by surprise and both parties were fully aware as to what was the case to be met by them. At no stage of the proceedings, the petitioner herein raised any objection as to the respondent adducing evidence with regard to the acts committed by him, which according to the respondent caused diminution in the value of the building. If the petitioner wanted to take the stand that there was no pleading and no evidence could have been adduced, he ought to have raised an objection before the Rent Controller and stopped the respondent from adducing such evidence. But, on the other hand, he had allowed the respondent to adduce such evidence as thought fit by the respondent and he had also chosen to let in contrary evidence. In such circumstances, this plea taken by learned counsel for the petitioner for the first time in this revision petition cannot be entertained on the ground that the pleading of the respondent before the Rent Controller was not specific. I cannot hold that the findings of the Appellate Authority are unwarranted or vitiated."

From the above ruling, it is crystal clear that once the evidence has been adduced that the alterations and additions have been found to be done, which have diminished the value and utility of the premises, the said findings cannot be reversed. Further, the petitioners had neither raised the objection in the written statement nor at the time of leading evidence regarding the specific plea of impaired materially the value and utility of the premises, thus the plea taken for the first time in the revision petition is not tenable or permissible. The parties were aware of the facts and the evidence and the Rent Controller has returned positive findings regarding the diminution of the value and utility of the premises, which finding has been affirmed by the Appellate Authority and thus, this Court cannot reverse the said finding of fact, especially when there is neither any perversity nor error of law.

Learned counsel for the respondent further argued that though the respondent has not preferred any revision against the dismissal of appeal, before the Appellate Authority, but this Court once exercising the revisional jurisdiction and considering the revision preferred by the petitioners, can certainly go into the findings which are against the record. In this behalf, learned counsel for the respondent has placed reliance upon the judgment of the Hon'ble Supreme Court in 2002(2) RLR 249, titled Nalakath Sainuddin vs. Koorikadan Sulaiman. The relevant paras of the judgment read as under:-

"16. A single bench decision of Madras High Court in K. Venkataramani v. S Aravamuthan & Ors., AIR 1982 Madras 36, is directly in point dealing with pari materia provision contained in section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act. 1960. It was held that where an order for eviction is based on one of the several landlord can be supported by the landlord without filing an appeal by disputing the grounds, in an appeal preferred by the tenant, the ultimate decision in favour of the correctness of findings on a ground decided against him and submitting that the order of a eviction should have been rested on that ground as well. What is true of the appellate jurisdiction is also true of the revisional jurisdiction under section 25. The division bench decision of Madhya Pradesh High Court in Seetaram & Ors.'s case (supra) was followed.

We agree with the view taken by the High Courts of Madhya Pradesh and Madras. We are of the opinion that-

(i) There is no reason to read and interpret section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 narrowly and limit the scope of revisional jurisdiction conferred on the High Court thereby;

(ii) Once a revision petition is entertained by the High Court, whichever be the party invoking the revisional jurisdiction, the High Court acquires jurisdiction to call for and examine the records of the authority subordinate to it. The records relating to 'any order' and/ or any proceedings, are available to be examined the High Court for the purpose of satisfying itself as to the (a) legality, (b) regularity, or (c) propriety of the impugned order, including any part of the order, or proceedings. The only limitation on the scope of High Court's jurisdiction is that the order or proceedings sought to be scrutinized must be of the subordinate authority. Any illegality, irregularity or impropriety coming to its notice is capable of being corrected by the High Court by passing such appropriate order or direction as the law requires and justice demands;

(iii) 'Any aggrieved party', the expression employed in section 20(1), means a person feeling aggrieved by the ultimate decision, that is, the operative part of the order. A party to the proceedings, who has succeeded in securing the relief prayed for, is not party aggrieved though the order contains a finding or two adverse to him. The respondent can support the order and pray for the ultimate decision being sustained, without filing a revision of his own, and for achieving such end he may seek reversal of any findings recorded against him. However, if the non- petitioning party feels entitled to a more beneficial or larger order in his favour but was allowed a lesser or smaller relief then to the extent of claiming the more beneficial or larger relief he should have filed a revision petition of his own as he was 'an aggrieved party' to that extent.

There is, therefore, no doubt in the present case that in revision preferred under Section 20 of the Act by the tenant laying challenge to the propriety of the decision of under that the order for eviction could be sustained under section 11(3) of the Act also. The High Court has not erred in permitting the landlord to urge such a plea in the revision the tenant though the landlord did not who has succeeded in securing an order of eviction on one of the several grounds urged by him cannot be said to be a person aggrieved by such order. He cannot file a revision rather he can feel satisfied with the order. The person aggrieved is the tenant and in a revision preferred by the tenant it is only just and equitable that the landlord should be permitted to support the order of eviction by disputing correctness of the finding recorded in the impugned order whereby the availability of additional ground for eviction was negatived. Such a right has to be necessarily spelled out in favour of the landlord who has succeeded from the court below else there would be grave injustice."

No doubt, this Court can exercise the jurisdiction under Section 24(5) of the Act, if there are palpably wrong findings given by the Authorities below, but not to correct error of law that too without there being any petition under Section 24(5) of the Act. The scope of jurisdiction of this Court under Section 24(5) of the Act is very limited. The Rent Controller has given specific findings that the respondent has not proved that the building is bona fide required by the respondent for rebuilding which findings have been affirmed by the Appellate Authority and I do not find any perversity in the said findings, which require interference.

From the cumulative reading of the judgments cited by the learned counsel for both the parties, the only conclusion which can be drawn is that this Court can interfere with the findings of the Rent Controller, which have been affirmed by the learned Appellate Authority, in case, there is perversity in the findings, which do not germane from the record or there is error of law.

In the present case, both the learned Authorities below have returned the findings on the basis of the pleadings and evidence, which are findings of fact, and, therefore, this Court cannot interfere with such findings under Section 24(5) of the Act. The petitioners by taking the plea that the respondent had not specifically pleaded in the eviction petition that the said alteration has impaired materially the value and utility of the building clearly shows that they have admitted the additions and alteration.

However, when the evidence was led, this fact has been proved and furthermore, once the other tenants have vacated the premises, the petitioners cannot be allowed to stay in the building as the condition of the building is in bad shape as per the photographs (Exhibit PW-1/A3 to PW-1/A7) placed on record. The findings that the building is unsafe are findings of fact and this Court will not reappreciate the evidence and to come to a different conclusion, especially when the same are based on evidence and there is no illegality or perversity in the said findings recorded by the learned Authorities below.

Consequently, I do not find any merit in the petition and the same is dismissed. No orders as to cost. Pending application(s), if any, shall also stand disposed of.