Full Judgment Text
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CASE NO.:
Appeal (civil) 5023 of 1998
PETITIONER:
JAGAT PAL DHAWAN
RESPONDENT:
K.AHAN SINGH (DEAD) BY LRS. AND ORS.
DATE OF JUDGMENT: 21/11/2002
BENCH:
R.C. LAHOTI & BRIJESH KUMAR
JUDGMENT:
JUDGMENT
2002 Supp(4) SCR 301
The Judgment of the Court was delivered by
R.C. LAHOTI, J. The landlord-plaintiff whose prayer seeking eviction of his
tenant under Clause (c) of sub-Section (3) of Section 14 of the Himachal
Pradesh Urban Rent Control Act, 1987 (hereinafter ’the act; for short) has
been refused, is in appeal by special leave.
The suit premises are non-residential consisting of one room and verandah
on the ground floor , and one room on the first floor, in building
no.10/11, situated in Mohalla Tarna, Seri Bazar, Mandi. The premises are
owned by the appellant and held by the respondent on tenancy since 1950s.
The premises are constructed of mud mortar with cement plaster on the inner
sides of the walls. The top has a roof of slates. The structure is about
100 years old.
On 28.5.1988, the landlord initiated proceedings under Section 14(3)(c) of
the Act alleging that the premises are bona fide required by the landlord
for reconstruction into three storeyed structure which cannot be carried
out without the demised premises being vacated. According to the landlord,
the demised premises, looking to their age and nature of construction, had
outlived their utility. The requirement and its bona fides were questioned
by the tenant-respondent who submitted that the structure of the building
was safe and certainly not dangerous and hence did not stand in need of any
reconstruction.
The Trial Court relied on the decision of this Court in Metalware and Co.
etc. v. Bansilal Sarma & Co. etc., [1979] 3 SCC 398 and held that the
condition of the building whether it was good and sound or decrepit or
dilapidated was of significance and relevant for determining the bona fides
of the requirement for reconstruction. Inasmuch as the structure of the
building was not in need of being demolished, the requirement of the
landlord for reconstruction could not be said to be bona fide. The
Appellate Court too agreed with the Trial Court. The High Court has rested
its conclusion against the landlord-appellate on three factors:-
(i) that once the building is found to be in good condition, then the
burden is on the landlord to show that he still needs it for
reconstruction:
(ii) that the building plans produced by the landlord before the Court were
not shown to have been approved by the Municipal Committee without which
the construction could not be carried out.
(iii) that the side walls were common walls with the adjacent building
owners and the landlord had adduced no evidence to show that he had their
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consent to demolish and reconstruct the walls; and
(iv) that the availability of funds for carrying out reconstruction was
not proved.
The learned counsel for the appellant has submitted that none of the
reasons assigned by the High Court or any of the Courts below could have
been relevant to deny the relief prayed for by the landlord. Examined in
the backdrop of the relevant material available on record including
documents of undoubted veracity brought to the notice of this Court the
landlord has clearly made out a case for eviction under Section 14(3)(c) of
the Act and denial of eviction of the respondent has occasioned failure of
justice to the appellant.
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 bona fide 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 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.
Metalware & Co. ’s case deals with Section 14 of Tamil Nadu Building (Lease
and Rent Control) Act, 1960 where recovery of possession by landlord from
the tenant is contemplated if the building is bona fide required for the
immediate purpose of demolishing it (emphasis supplied). This Court held in
Metalware & Co. ’s case that a building which, looking at its age and
nature of construction, was not required to be demolished then the
necessary ingredient of the provision was not satisfied. Metalware & Co’s
case is a two-Judge Bench decision which was considered by a three-Judges
Bench in P. Orr & Sons (P.) Ltd. v. Associated Publishers (Madras) Ltd.,
[1991] 1 SCC 301 wherein this Court clarified that condition of the
building cannot alone be the determining factor of bona fides of the
landlord though it may be taken into consideration as one of the various
circumstances such as the capacity of the landlord, the size of the
existing building, the demand for additional space, the condition of the
place, the economic advantage and other factors justifying investment of
capital on reconstruction.
The Constitution Bench in Vijay Singh and Ors. v. Vijayalaksmi Animal,
[1996] 6 SCC 475, authoritatively pronounced that for granting permission
under Section 14(1)(b) of Tamil Nadu Act the relevant factors are (i) bona
fide intention of the landlord far from the sole object only to get rid of
the tenants; (ii) the age and condition of the building; and (iii)
financial position of the landlord to demolish and erect a new building.
However the Constitution Bench cautioned that these are only some of the
illustrative factors to be taken into consideration alongwith other factors
and no Court can fix any limit in respect of the age and condition of the
building.
So is the view taken in R.V.E. Venkatachala Gounder v. Venkatesha Gupta and
Ors., [2002] 4 SCC 437 and in Harringaton House School v. S.M. Ispahani and
Anr., [2002] 5 SCC 229. The fact that demolition and reconstruction would
result in modernization, making additional space available and/or would
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augment the earning of the landlord are relevant factors for determining
the bona fides of the requirement for demolition and reconstruction.
The locality where the premises are situated has, with the lapse of time,
become a busy commercial locality. The structure of the building is more
than 100 years old. It is in mud mortar and with slates’ roofing-Instead of
outdated two floor space, the landlord proposes to construct a modern
three-storeyed building which would obviously provide additional space and
much better return to the landlord. The landlord has stated that he had no
other residential house of his own available with him and having
reconstructed the building he would like to shift his residence too in his
own newly constructed house. The bona fides of such a requirement could not
have been doubted solely on the ground that the structure of the building,
though old and outdated, had not gone so weak as was needed to be
demolished immediately.
So far as the neighbours are concerned, none has objected to the proposed
reconstruction. In any case that is a matter to be settled by the landlord
with his neighbours. The learned counsel for the appellant submitted during
the course of hearing, and rightly in our opinion, that even if the
neighbours were not agreeable to have the common wall demolished and
replaced by a new wall the appellant was prepared to raise additional walls
of his own next to the common walls, if any, and rest his entire structure
on such walls. This obviates the need of proving consent of the adjoining
building owners for the proposed reconstruction.
So far as the building plans are concerned, it is not the case of the
tenant-respondent that the building, as proposed, cannot under the local
law be permitted to be built. However, this aspect loses all its
significance inasmuch as on behalf of the appellant permission No.
NPAP/Mandi/97/1389 dated 30.6.1998 issued by Municipal Council, Mandi, H.P.
has been brought to the notice of this Court showing that the building
plans proposed by the appellant have been sanctioned under Section 203 of
the H.P. Municipal Council Adhiniyam, 1994 during the pendency of these
proceedings.
So far as the funds are concerned, the plaintiff-appellant had deposed that
he had the requisite financial capacity to undertake the proposed
reconstruction and this part of the testimony was not challenged in cross
examination by the tenant-respondent. However, documents have been filed in
this Court showing availability of an amount of Rs. 1,20,000 invested by
appellant in Indira Vikas Patra of five years duration on 24.9.1988 having
a value of Rs. 2,40,000 on maturity. So also there are six years National
Saving Certificates of Rs. 30,000 purchased on 30th March, 1983 with a
value Rs. 60,450 on maturity. The appellant has Rs. 25,000 in FDR and Rs.
6,247 in savings bank. The proposed construction, according to the
appellant, would need about ? lakh of rupees. Thus, the availability of
funds with the appellant to cover the cost of proposed construction cannot
also be doubted.
In the abovesaid circumstances we are clearly of the opinion that relief of
eviction as sought for could not have been denied to the appellant. There
is no material available to hold that the landlord has something else in
his mind such as getting rid of the tenant without raising construction.
Sub-Section (5) of Section 14 of the Act protects the interest of the
tenant by guarding against malafide evictions. It provides that where a
landlord has obtained possession of the building or rented land for the
purpose of building or rebuilding and puts the building to any other use or
lets it out to any tenant other than the tenant evicted from it, the tenant
who has been evicted may apply to the Controller for an order directing
that he shall be restored to possession of such building or rented land and
the Controller shall make an order accordingly. This provision would not
permit the building from which the tenant is being evicted being subjected
to any other user or misuse. The appeal deserves to be allowed. The orders
of the High Court and the Courts below are set aside. Instead the tenant-
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respondent is directed to vacate the tenancy premises as the same are
required bona fide by the landlord-appellant for carrying out building or
rebuilding under Section 14 (1)(c) of the Act which cannot be carried out
without the building being vacated. The tenant is allowed four months time
for vacating the premises subject to his filing the usual undertaking
within a period of three weeks from today before the executing Court
undertaking to deliver vacant and peaceful possession over the suit
premises to the landlord-appellant on the expiry of the time granted and in
between clearing and continuing to clear all the arrears of rent and not
creating any third party interest. Costs as incurred