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ANUP KUMAR @ ANUP CHAND V/S SANATAN DHARAM SABHA CHHOTA SHIMLA (H.P.), decided on Wednesday, November 16, 2016.
[ In the High Court of Himachal Pradesh, Civil Revision Petition No. 1 of 2015. ] 16/11/2016
Judge(s) : P.S. RANA
Advocate(s) : B. Nandan Vasishta. Respondennt Rakesh Kumar Thakur.
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    1. Present civil revision petition is filed under Section 25 (5) of H.P. Urban Rent Control Act 1987 against order of learned Appellate Authority dated 5.9.2014 wherein learned Appellate Authority dismissed the appeal of tenant filed under section 24 of H.P. Urban Rent Control Act 1987 and affirmed eviction order of learned Rent Controller.Brief facts of the case:2. Sri Sanatan Dharam Sabha (Sanatan religious society) landlord filed eviction petition against tenant under section 14 of H.P. Urban Rent Control Act 1987 pleaded therein that demised premises was initially rented out to the father of tenant in the month of December 1973 @Rs.117.70 per month. It is pleaded that demised premises was rented out to the tenant after the death of his father but no written agreement or rent note was executed between the landlord and tenant. It is further pleaded that rent of demised premises is Rs.250/- per month and electricity and water fitting provided in the demised premises. It is further pleaded that demised premises is about 600 sq. feet at the top of inn (Temporary lodging place) alongwith toilet. It is further pleaded that tenant alongwith his family is residing in demised premises. It is further pleaded that tenant has altered the demised premises by way of hooking water tank in the walls of demised premises and has also partitioned the demised premises. It is pleaded that walls of demised premises will not bear weight of water tank being old walls. It is further pleaded that demised premises is required by landlord for personal bonafide requirement because landlord organizes religious functions and is facing acute shortage of accommodation. It is further pleaded that landlord is facing difficulty for providing appropriate accommodation to religious persons visiting the temple for religious functions. It is further pleaded that tenant has shifted his business from Shimla and is residing outside State of Himachal Pradesh. It is further pleaded that tenant used to occupy demised premises only during summer and has made demised premises as his summer destination. Prayer for acceptance of eviction petition sought.3. Per contra response filed on behalf of tenant pleaded therein that eviction petition is not maintainable. It is pleaded that demised premises is non-residential in nature and same could not be vacated on the ground of bonafide requirement by the landlord for his own use and occupation. It is further pleaded that eviction petition is bad for non-joinder of necessary parties. It is further pleaded that other legal heirs of original tenant late Sh. Piyare Lal Sood are necessary party in the eviction petition because all the LRs have inherited the demised premises. It is further pleaded that landlord has intentionally suppressed the true and factual information from the Rent Controller. It is further pleaded that landlord has got two rooms set vacated from one Vijay Unial about three years back prior to filing eviction petition. It is further pleaded that temporary partition was made of wooden ply board in the year 1972-73 when the demised premises was rented out to Sh. Piyare Lal Sood. It is further pleaded that same was done to secure privacy within family. Prayer for dismissal of eviction petition sought. Landlord filed rejoinder and reasserted allegations mentioned in the eviction petition.4. As per pleadings of parties learned Rent Controller framed following issues on dated 16.08.2010:(1) Whether demised premises is bonafidely required by the landlord for its own use and occupation as prayed? …….OPP.(2) Whether eviction petition in the present form is not maintainable as alleged? ……OPR(3) Whether eviction petition is bad for non-joinder of necessary parties as alleged? ……..OPR.(4) Whether landlord has not come with clean hands and suppressed true and factual facts as alleged? ……..OPR.(5) Whether landlord has another vacant accommodation with him except demised premises and present eviction petition has been filed just to harass the tenant and to get vacated the demised premises? ……..OPR.(6) Relief.5. Learned Rent Controller decided issue No.1 in affirmative and decided issues No.2 3 4 & 5 in negative. Learned Rent Controller on dated 29.10.2013 allowed eviction petition filed by landlord and held that demised premises is bonafidely required by landlord for its own use and occupation. Learned Rent Controller directed the tenant to hand over the peaceful and vacant possession of demised premises to landlord within two months w.e.f. 29.10.2013. Feeling aggrieved against the order of learned Rent Controller tenant filed rent appeal No.36-S/13(b) of 2013 title Anup Kumar @ Anup Chand Vs. Sri Sanatan Dharam Sabha before Appellate Authority. Learned Appellate Authority decided rent appeal on dated 05.09.2014 and affirmed the order of learned Rent Controller. Feeling aggrieved against the order of learned Appellate Authority present revision petition filed by tenant.6. Court heard learned Advocate appearing on behalf of revisionist and learned Advocate appearing on behalf of non-revisionist and Court also perused the entire record carefully.7. Following points arise for determination:1) Whether civil revision petition filed by tenant is liable to be accepted as mentioned in memorandum of grounds of revision petition?2) Relief.Findings upon Point No.1 with reasons:8. PW-1 Sh. Narinder Gupta has tendered affidavit Ext.PW1/A1 in examination-in-chief. There is recital in the affidavit that deponent is Secretary of Sri Sanatan Dharam Sabha Chhota Shimla and is competent to file present eviction petition. There is further recital in the affidavit that deponent is conversant with the facts of the present case. There is further recital in the affidavit that demised premises is inn (Temporary lodging place) used for organizing various functions of temple and used for providing accommodation to religious persons visiting temple. There is further recital in the affidavit that demised premises is measuring about 600 sq.ft. and is hall situated at the top floor. There is further recital in the affidavit that demised premises was initially rented out to the father of tenant alongwith toilet in the month of December 1973 @Rs.117.70 per month. There is further recital in the affidavit that after the death of original tenant landlord requested the present tenant to handover the vacant portion of demised premises but tenant narrated his desperate position that tenant had no place to give shelter to his family. There is further recital in the affidavit that taking into consideration family condition of tenant demised premises was given to tenant after death of his father on temporary basis till tenant finds alternative accommodation. There is further recital in the affidavit that no written agreement or rent note was executed between landlord and tenant. There is further recital in the affidavit that now tenant has occupied demised premises permanently. There is further recital in the affidavit that landlord is organizing religious functions and accommodation occupied by the tenant is required by Sanatan Dharam Sabha (Sanatan religious society) for religious functions as Sanatan Dharam Sabha (Sanatan religious society) is facing acute shortage of accommodation. There is further recital in the affidavit that Sanatan Dharam Sabha (Sanatan religious society) is facing difficulty for providing accommodation to religious persons visiting the temple. In cross-examination PW-1 has admitted that tenant Vijay Unial has vacated two rooms set in the year 2006. PW-1 has stated that tenant has paid up to date rent. PW-1 has further stated that tenant used to occupy demised premises for 1-2 months only in a year. PW-1 has denied suggestion that demised premises is non-residential in nature.9. PW-2 Sh. Kamal Narian Jhingan has tendered affidavit Ext.PW2/A in examination-in-chief. There is recital in the affidavit that deponent is Senior Vice President of Sanatan Dharam Sabha Chhota Shimla and is conversant with the facts of the present case. There is further recital in the affidavit that demised premises is inn (Temporary lodging place) used for various purposes for organizing various functions of the temple and used for providing accommodation to religious persons visiting temple. There is further recital in the affidavit that demised premises is measuring about 600 sq.ft. and is hall of inn situated at the top floor. There is further recital in the affidavit that demised premises was initially rented out to the father of tenant alongwith toilet in the month of December 1973 @Rs.117.70 per month. There is further recital in the affidavit that after the death of father of tenant present revisionist was requested to handover vacant portion of demised premises but tenant narrated his desperate position that tenant had no place to give shelter to his family. There is further recital in the affidavit that taking into consideration family condition of tenant demised premises was given to tenant after the death of his father on temporary basis till tenant finds alternative accommodation. There is further recital in the affidavit that no written agreement or rent note was executed between landlord and tenant. There is further recital in the affidavit that landlord is organizing religious functions and accommodation occupied by the tenant is required by Sanatan Dharam Sabha (Sanatan religious society) for religious functions as Sanatan Dharam Sabha (Sanatan religious society) is facing acute shortage of accommodation. There is further recital in the affidavit that Sanatan Dharam Sabha (Sanatan religious society) is facing difficulty for providing accommodation to religious persons visiting temple for religious functions. There is further recital in the affidavit that tenant has shifted his business from Shimla and is residing outside State of Himachal Pradesh. There is further recital in affidavit that tenant is occupying demised premises only during summer and has made demised premises as his summer destination. There is further recital in the affidavit that tenant on dated 27.04.2005 agreed to handover vacant portion of demised premises within two years. There is further recital in the affidavit that landlord requires demised premises for his own occupation. PW-2 has denied suggestion that tenant is residing in demised premises. PW-2 has denied suggestion that tenant used to visit outside locality for 1-2 months only in a year. PW-2 has denied suggestion that landlord has sufficient accommodation. PW-2 has denied suggestion that present eviction petition filed just to enhance the rent. PW2 has admitted that Sh. Vijay Unial has vacated premises. Self stated that Sh. Vijay Unial has vacated one room and one kitchen. Self stated that now same is used as office.10. PW-3 Sh. Amar Chand Clerk posted in Municipal Corporation Shimla has stated that he has brought the summoned record. PW-3 has stated that water connection No.20699 was sanctioned in the name of Sh. Anoop Kumar Sood as domestic connection. PW-3 has further stated that water connection was installed on 21.09.2005. PW-3 has further stated that permission to install water connection was granted to tenant in the demised premises in the year 2005.11. PW-4 Sh. Jai Singh dealing clerk posted in HPSEB has stated that he has brought the summoned record. PW-4 has stated that electricity meter was installed in the name of Sh. Pyare Lal Sood as domestic electricity meter.12. PW4-1 Smt. Gita Thakur clerk posted in Municipal Corporation Shimla has stated that she has brought the summoned record. PW4-1 has stated that letter Ext.PW4/A was issued by the office and same is correct. PW4-1 has admitted that no tax of demised premises is obtained from the landlord because demised premises is used for religious purpose. In cross-examination PW4/1 has stated that she could not state whether demised premises is residential or non-residential.13. RW-1 Sh. Y. R. Sharma posted as Incharge Himachal Emporium The Mall Shimla has produced record only.14. RW-2 Sh. Jai Singh posted in HPSEB department has stated that he is posted as dealing clerk since 7-8 years and he has brought the summoned record. RW-2 has proved the meter reading copy Ext.RW2/A and has stated that same is correct as per original record. RW-2 has stated that meter is installed as domestic meter. RW-2 has admitted that in some months monthly consumption of electricity has been shown as ‘nil’.15. RW-3 Sh. S.S. Sood has stated that he is retired as Deputy Secretary from H.P. Secretariat and he is practising as Advocate in High Court. RW-3 has stated that demised premises is situated nearby the place where he is residing. RW-3 has further stated that Sh. Narinder Gupta was his colleague in the Secretariat. RW-3 has further stated that Sh. Anup Kumar tenant is known to him since 1967. RW-3 has further stated that father of Sh. Anup Kumar tenant died in the year 1987. RW-3 has further stated that when father of tenant died at that time tenant and his brothers and sisters used to reside alongwith their father. RW-3 has further stated that tenant has two brothers and two sisters. RW-3 has further stated that demised premises is hall and temporary partition has been effected in the demised premises. RW-3 has further stated that Sh. Vijay Unial tenant is also known to him. RW-3 has further stated that Sh.Vijay Unial was in possession of two rooms set alongwith bath room and kitchen. RW-3 has further stated that Sh.Vijay Unial has vacated two rooms set in the year 2006. RW-3 has further stated that two rooms set is vacant as of today. RW-3 has further stated that below demised premises there is hall about 400-500 sq.feet where religious persons used to reside.16. RW-4 Sh. Anup Chand tenant has stated that demised premises was given on rent to his father namely Sh.Pyare Lal Sood. RW-4 has stated that his father died in the year 1987. RW-4 has further stated that when his father died at that time his mother his brothers and his sisters were residing alongwith his father jointly. RW-4 has further stated that rent of demised premises is Rs.250/- per month. RW-4 has further stated that he is paying rent regularly. RW-4 has further stated that prior to institution of eviction petition one tenant namely Sh. Vijay Unial has vacated two rooms set. RW-4 has further stated that even as of today rooms are lying vacant with landlord. RW-4 has further stated that area of demised premises is about 600 sq.feet. RW-4 has further stated that he is life member of Sanatan Dharam Sabha (Sanatan religious society). RW-4 has further stated that present eviction petition filed just to harass him and in order to increase rent. RW-4 has stated in cross-examination that he has studied upto BA standard and he is residing in the demised premises since 1973. RW-4 has further stated that demised premises is residential in nature. RW-4 has further stated that his sisters are married. RW-4 has further stated that his father and mother have died. RW-4 has further stated that he has four daughters and one son and all have married. RW-4 has further stated that his son and daughters also used to visit him. RW-4 has further stated that his son is posted in Air Force at Tamilnadu. RW-4 has denied suggestion that he is residing alongwith his son outside demised premises. Self stated that he used to visit his son during winter season. RW-4 has admitted that he has received notice Ext.PW1/E. RW-4 has admitted that he did not file any response of notice. RW-4 has denied suggestion that landlord is in urgent need of demised premises for personal use. RW-4 has denied suggestion that he is residing in demised premises only for 2-3 months in a year. RW-4 has stated that his wife is residing alongwith him.17. Following documents filed by parties: (1) Ext.PW-1/A is copy of resolution dated 4.5.2009 passed by Sanatan Dharam Sabha (Sanatan religious society) for filing eviction petition against tenant. (2) Ext.PW-1/B is copy of jamabandi for the year 2004-2005 relating to land upon which demised premises is situated. (3) Ext.PW-1/C is field map. (4) Ext.PW-1/D is copy of resolution dated 27.4.2005 passed by Executive Committee. There is recital in Executive Committee that tenant Anup Kumar Sood has filed application for issuance of ‘NOC’ for installation of water connection. There is recital in resolution dated 27.4.2005 that tenant had agreed that he would vacate the demised premises within two years. There is further recital in resolution that as per assurance of tenant it was decided to give ‘NOC’ for installation of water connection in favour of tenant. (5) Ext.PW-1/E is legal notice dated 8.6.2009 given to tenant. (6) Ext.PW-1/F is acknowledgement receipt. (7) Ext.PW-4/A is information given by Assistant Commissioner-cum-PIO M.C. Shimla under Right to Information Act 2005. There is recital in the letter dated 25.7.2011 that no tax is paid by Temple Committee. There is further recital in the letter that Block is a religious place which is exempted from house tax. (8) Ext.RW-1/A is document issued by Divisional Manager Himachal Emporium The Mall Shimla. (9) Ext.RW-1/B is certificate issued by Divisional Manager Himachal Emporium The Mall Shimla. (10) Ext.RW-1/C is document issued by Divisional Manager Himachal Emporium The Mall Shimla. (11) Ext.RW-1/D is document issued by Divisional Manager Himachal Emporium The Mall Shimla. (12) Ext.RW-2/A is document issued by Assistant Engineer City Electrical Sub-Division Chhota Shimla.18. Submission of learned Advocate appearing on behalf of tenant that landlord has got vacated two rooms set in the year 2006 from Sh. Vijay Unial and on this ground revision petition be allowed is rejected being devoid of any force for reasons hereinafter mentioned. In the present case it is proved on record that eviction petition is filed by Sanatan Dharam Sabha (Sanatan religious society) for eviction of tenant. It is proved on record that object of Sanatan Dharam Sabha (Sanatan religious society) is to promote the public interest i.e. religious functions. Even Assistant Commissioner-cum-PIO Shimla has given certificate Ext.PW4/A under Right to Information Act 2005 placed on record that Sanatan Dharam Sabha (Sanatan religious society) is religious place/institution which is exempted from house tax. It is proved on record that Sanatan Dharam Sabha (Sanatan religious society) also used to organize religious functions and many religious dignitaries used to visit. It is proved on record that Sanatan Dharam Sabha (Sanatan religious society) is discharging public utility service. It is well settled law that when there is conflict between public interest and private interest then public interest always prevail over private interest. There is no evidence on record in order to prove that Sanatan Dharam Sabha (Sanatan religious society) has vacated any demised premises within five years in urban area. It is held that vacation of demised premises by co-tenant namely Vijay Unial is not sufficient to decline the relief sought by Sanatan Dharam Sabha (Sanatan religious society). Plea of tenant is rejected on the concept of necessitas publica major est quam privata (Public necessity is greater than private necessity).19. Submission of learned Advocate appearing on behalf of tenant that son of the revisionist is posted in Indian Army at Tamilnadu and he is unable to keep his parents alongwith him due to service exigencies and on this ground revision petition be allowed is rejected being devoid of any force for reasons hereinafter mentioned. It is proved on record that demised premises is meant for inn purpose (Temporary lodging place for public). Court is of the opinion that in the present case interest of general public is involved and it is well settled law that when there is conflict between interest of general public and interest of private individual then interest of general public always prevail.20. Submission of learned Advocate appearing on behalf of tenant that eviction order passed by learned Rent Controller and affirmed by learned Appellate Authority is contrary to proved facts and contrary to law is also rejected being devoid of any force for reasons hereinafter mentioned. Smt. Geeta Thakur (PW-4) posted as clerk in Municipal Corporation Shimla has specifically stated in positive manner that as per record Sanatan Dharam Sabha (Sanatan religious society) did not pay any tax because same is religious institution. As per testimony of Smt. Geeta Thakur (PW-4) it is proved on record that function of Sanatan Dharam Sabha (Sanatan religious society) is religious function meant for welfare of general public.21. PW-1 Sh.Narinder Gupta Secretary of Sanatan Dharam Sabha (Sanatan religious society) has specifically stated when he appeared in witness box that premises in dispute is required for organizing religious functions and for providing accommodation for religious dignitaries who used to come to attend religious function. PW-1 Sh.Narinder Gupta has specifically stated in positive manner that Sanatan Dharam Sabha (Sanatan religious society) is facing acute shortage of accommodation to religious dignitaries visiting temple for religious function. Testimony of Sh. Narinder Gupta is trustworthy reliable and inspires confidence of the Court. There is no reason to disbelieve the testimony of Sh. Narinder Gupta. Testimony of PW1 is corroborated by Sh. Kamal Narayan (PW-2) who is Senior Vice President of Sri Sanatan Dharam Sabha (Sanatan religious society) Chhota Shimla. PW2 has stated in positive manner that demised premises is used as inn (Temporary lodging place) for the purpose of organizing various religious functions and for providing accommodation to religious dignitaries visiting the temple. PW-2 Sh. Kamal Narayan has stated in positive manner that demised premises is measuring about 600 sq.ft. hall. PW-2 Sh. Kamal Narayan has stated in positive manner that Sanatan Dharam Sabha (Sanatan religious society) used to organize religious functions and is facing acute shortage of accommodation for religious dignitaries who used to come to attend the religious functions. Testimony of PW-2 Sh. Kamal Narayan Senior Vice President of Sri Sanatan Dharam Sabha (Sanatan religious society) is also trustworthy reliable and inspires confidence of the Court. There is no reason to disbelieve the testimony of Sh. Kamal Narayan Senior Vice President of Sanatan Dharam Sabha (Sanatan religious society). Testimonies of RW-1 Sh. Y.R. Sharma RW-2 Sh. Jai Singh are not sufficient to rebut the testimonies of PW-1 and PW-2 because RW-1 Sh. Y.R. Sharma has simply proved certificate issued by Himachal Emporium. RW-2 Sh. Jai Singh has simply proved certificate Ext.RW-2/A issued by Assistant Engineer City Electrical Sub-Division Chhota Shimla relating to consumption of electricity. Testimony of RW3 is also not sufficient to rebut testimony of PW1 and PW2 because landlord is best judge of land lord need.22. It is well settled law that power of revision does not entitle High Court to enter into merits of factual controversies between parties unless findings are perverse or illegal. See AIR 1988 SC 852 Hiralal Kapur vs. Prabhu Chaudhary. See 1987 (3) SCC 538 Helper Girdharbhai vs. Saiyed Mohamad Mira Saheb Kadri. See 1987 (2) SCC 219 Sushila Devi and others vs. Avinash Chandera Jain. See AIR 1991 SC 455 Masjid Kacha Tank Nahan vs. Tuffail Mohamad. See AIR 1969 SC 580 Indore Municipality vs. K.N. Palsikar. See AIR 1995 SC 1375 Pudayani Devi vs. V.V. Rajeshwara Prasad Rao. See AIR 2002 SC 1004 Gurdial Singh vs. Raj Kumar Aneja. It is held that learned Rent Controller and learned Appellate Authority have discussed all pleas of tenant raised in revision petition in their order with cogent reasons and there is no perversity and illegality. In view of above stated facts and case law cited supra point No.1 is answered in negative.Point No.2 (Relief).23. In view of findings upon point No.1 present civil revision petition is dismissed. Parties are left to bear their own costs. Files of learned Rent Controller and learned Appellate Authority be sent back forthwith alongwith certified copy of the order. C.R. No.1/2015 is disposed of. Pending application(s) if any also disposed of.