Home   |   About us   |   Contact us   |   Request Callback  
 
   
ALREADY A MEMBER ?
Username
Password

Translate

This Page To:

 
KHEM CHAND V/S KULDEEP CHAND, decided on Monday, November 7, 2016.
[ In the High Court of Himachal Pradesh, Civil Revision No. 188 of 2006. ] 07/11/2016
Judge(s) : P.S. RANA
Advocate(s) : Revisionist K.D. Sood Sr. with Mukul Sood. NonRevisionist Bhupender Gupta Sr. with Janesh Gupta.
Judgment Full Text : Existing LawyerServices Members, kindly login above.

Non Members, Enter your email address:- and , to request this judgment.

Alternatively, you may send a request by email to info@lawyerservices.in for the Full Text of this Judgment (chargeable).

LawyerServices Facebook Page

Judgments that may be related:-


  State of H.P. Versus Dalip Kumar,   01/03/2017.  

  Agya Ram & Others Versus State of H.P. & Others,   20/09/2016.  

  Santi Sudha Layek Versus South Bengal State Transport Corporation & Others,   15/09/2016.  

  State of H.P. Versus Dile Ram,   12/07/2016.  

  Vijay Balu Navarkar Versus Jalgaon Janata Sahakari Bank Limited & Another,   11/04/2016.  

  Rama Sood & Others Versus Chavan Singh & Others,   01/01/2016.  

  Jagmal Singh Versus State of Rajasthan & Another,   21/07/2015.  

  Khem Chand Versus State of Himachal Pradesh,   12/09/2014.  

  Madhusudan Versus The State (Nct Of Delhi),   19/05/2014.  

  Madhu @ Madhuranatha & Another Versus State of Karnataka,   28/11/2013.  

  Khem Chand & Others Versus Arjun Jain & Others,   13/09/2013.  

  Management of Bosch Ltd., (Earlier Known As Management of Motor Industries Co. Ltd.) Versus State of Karnataka, Represented by The Secretary Cum Presiding Officer & Another,   14/08/2012.  

  Harpreet Singh & Others Versus State Of Delhi,   23/07/2012.  

  Satyabrata Bhattacharjee Versus State of West Bengal & Others,   29/02/2012.  

  Sri Satyananda Nayak Versus Union of India & Others,   12/08/2011.  

  M.S. Sapra Versus Managing Director, Food Corporation of India, Head Quarters New Delhi & Others,   27/04/2011.  

  S.N. Arora & Others Versus Brokers & Brokers Pvt. Ltd,   13/08/2010.  

  R. Sakthivel, (Sub-Inspector), Madurai District Versus The Director General of Police, Chennai & Others,   13/08/2010.  

  State of H.P. Versus Keshav Thakur,   05/07/2010.  

  Shri Santosh Kumar Sur Versus Union Of India & Others,   03/06/2010.  

  C. Ravichandran Versus Tamil Nadu Newsprint and Papers Ltd., Rep. by its Chairman & Managing Director, Chennai,   26/11/2009.  

  GoodYear India Ltd Versus D.N.Trikhja,   26/08/2009.  

  N. Pandiyarajan Versus The Director General of Police, Office of the DGP, Chennai & Others,   17/07/2009.  

  Narayan Patnaik Versus State of Orissa & Others,   04/03/2009.  

  Rajasthan State Road Transport Corporation & Another Versus Bal Mukund Bairwa ,   12/02/2009.  

  S. Ganesan Versus The Presiding Officer, Labour Court & Another ,   12/01/2009.  

  Roop Singh Negi Versus Punjab National Bank & Others ,   19/12/2008.  

  S. Ramaswamy Versus The Management of Canara Bank, Rep. by its Chairman and Managing Director, Head Office, No.112 J.C. Road, Bangalore & Another ,   04/09/2007.  

  K. Arumugham Versus The Director of Employment & Training, Chepauk, Madras 5 & Others ,   31/08/2007.  

  W.Birbal Singh Versus State Of Manipur,   05/02/2007.  

  M/s. East India Hotel Ltd Versus Presiding Officer & Others ,   18/10/2006.  

  Kale alias Kuldeep Versus State of Haryana,   07/08/2006.  

  Shridhar Sakharam Omle Versus Yeshwantrao Chawan Academy of Development Administration ,   18/07/2006.  

  Narinder Mohan Arya Versus United India Insurance Co. Ltd. & Others ,   05/04/2006.  

  A. Sudhakar versus Post Master General, Hyderabad & Another ,   24/03/2006.  

  Raju @ Rajendra Versus State of Rajasthan,   02/02/2006.  

  Chandra Mohan @ Chanda Versus State of Rajasthan,   01/02/2006.  

  Nidhi Dalela Versus Deepak Dalela,   08/11/2001.  

  P.C. Chaturvedi Versus Uttar Pradesh State Textile Corporation Ltd.,   10/10/2001.  

  A.S. SHIRWAL VERSUS UNIVERSITY OF AGRICULTURAL SCIENCES, BANGALORE ,   22/05/2000.  




#LawyerServices #bestlegalsoftware #legalsoftware #judgment #caselaw









    1. Order of Limited remand:- Present civil revision petition is filed under Section 24(5) of H.P. Urban Rent Control Act 1987 against order of learned Appellate Authority(III) Kangra dated 13.10.2006 whereby order of learned Rent Controller dated 30.3.2002 affirmed.Brief facts of the case2. Khem Chand landlord filed eviction petition under Section 14 of H.P. Urban Rent Control Act 1987 for eviction of tenant. It is pleaded that premises is commercial premises situated in Shop No. M/257 main market Palampur. It is pleaded that monthly rent is Rs.100/- (Rupees one hundred) per month and premises was let out in the year 1971. It is pleaded that electricity bill is paid by tenant. It is pleaded that tenant has not paid rent of premises w.e.f. 1.12.1993 and premises is in dangerous condition and would collapse at any time. It is pleaded that premises is required by landlord for rebuilding into three stories structure after demolition of existing structure. It is pleaded that tenant could not carry out rebuilding without vacation of premises by tenant. It is pleaded that landlord requires the premises for his own use as landlord did not own any building within urban area and landlord has not vacated any such building within five years of filing the eviction petition. It is pleaded that back portion of demised premises has collapsed and partially demolished at the instance of Municipal Committee Palampur in consequence of notice. Prayer for acceptance of eviction petition sought.3. Per contra response filed on behalf of tenant pleaded therein that eviction petition is not legally and factually maintainable. It is pleaded that act and conduct of landlord bars the landlord to file present petition. It is pleaded that landlord is estopped by his act conduct and acquiescence to file the present eviction petition. It is pleaded that present petition has been filed just to harass the tenant. It is pleaded that present eviction petition is barred on concept of resjudicata. It is denied that premises has become unsafe and unfit for human habitation. It is pleaded that landlord can raise three stories structure/building without demolition of existing structure and without eviction of tenant. It is also denied that landlord requires the building for his own occupation. It is pleaded that earlier also eviction petition was filed on same ground and earlier eviction petition was dismissed upto the level of High Court. Prayer for dismissal of eviction petition sought.4. Landlord also filed rejoinder and re-asserted the allegations mentioned in eviction petition. As per pleadings of parties following issues were framed by learned Rent Controller on 22.7.2001:-1. Whether tenant has not paid rent of premises from December 1993 uptil now if so its effect? ….OPA2. Whether premises in question/building is in a dangerous condition and unsafe which would collpase at any time and same cannot be re-build without the building being vacated as alleged? ….OPA3. Whether building in question is required by landlord for his own occupation as alleged? If so its effect? …..OPA4. Whether petition is not maintainable? …..OPR5. Whether petitioner is estopped by his act and conduct to file the present petition? ...OPR6. Whether petition is barred under the principle of resjudicata? …..OPR7. Relief.5. Learned Rent Controller decided issue No.1 in affirmative and decided issues Nos. 2 4 5 and 6 in negative. Learned Rent Controller held that issue No.3 was not pressed at the time of arguments. Learned Rent Controller decided issue No. 3 as not pressed. Learned Rent Controller allowed the petition of landlord partly on the ground of non-payment of arrears of rent w.e.f. 1.12.1993 at the rate of Rs.100/- per month. Learned Rent Controller dismissed the eviction petition on other grounds. Learned Rent Controller further directed that if tenant would pay the arrears of rent plus interest at the rate of 9% per annum within a period of thirty days w.e.f. 30.3.2002 plus costs assessed at Rs.200/- then tenant would not be evicted from demised premises.6. Thereafter Khem Chand landlord filed appeal under Section 24 of H.P. Urban Rent Control Act 1987 against order of learned Rent Controller and learned Appellate Authority dismissed the appeal filed by landlord on dated 13.10.2006 and affirmed the order of learned Rent Controller.7. Feeling aggrieved against order of learned Appellate Authority landlord filed present revision petition.8. Court heard learned Advocate appearing on behalf of revisionist and learned Advocate appearing on behalf of non-revisionist and Court also perused entire record carefuly.9. Following points arise for determination in civil revision petition:-Point No.1 Whether revision petition filed under Section 24(5) of Urban Rent Control Act 1987 is liable to be accepted as mentioned in memorandum of grounds of civil revision petition?Point No.2 Relief.10. Findings upon point No.1 with reasons10.1. AW1 Khem Chand has stated that premises is situated in main market Palampur. He has stated that premises was rented out at the rate of Rs.100/- per month. He has stated that tenant did not pay the arrears of rent w.e.f. December 1993. He has stated that shop is 75-80 years old and some portion of shop was burnt in the year 1954-55. He has stated that application was filed before SDM with allegations that premises would fall at any time and would cause damage to human beings. He has stated that thereafter SDM issued notice to him and he also filed response. He has stated that thereafter back portion of shop was demolished. He has stated that he consulted the expert and expert had given the opinion that for re-construction eviction of tenant is essential. He has stated that he would spend Rs. 5 to 7 lacs for reconstruction purpose and he is drawing pension of Rs.6461/-(Rupees six thousand four hundred sixty one). He has stated that he is also owner of three hundred kanal of land in Una and he used to earn rupees three lacs annually from that land. He has stated that banks have also agreed to give loan to him. He has stated that copy of notice issued by SDM is Mark A-3 and further stated that he has also prepared site plan of proposed construction. He has denied suggestion that after December 1993 tenant offered rent but he declined to accept the rent. He has denied suggestion that wall of demised premises is constructed with cement. He has denied suggestion that demised premises did not require any major repair. He has denied suggestion that demised premises is safe for commercial purpose. He has admitted that he and Manohar Lal were joint owners of four shops. Self stated that family partition effected between him and Manohar. He has denied suggestion that three stories building could be constructed without eviction of tenant. He has denied suggestion that he is in possession of other shops also. He had admitted that his earlier eviction petition was dismissed upto High Court level. He has denied suggestion that no notice was given to him by SDM. He has denied suggestion that he did not obtain the opinion of any expert engineer. He has stated that he is not income tax assessee because his income is from agriculture product. He has denied suggestion that documents Mark 1 to 3 have been prepared in fraudulent manner. He has denied suggestion that eviction petition filed by him in order to harass the tenant in illegal manner.10.2 AW2 Ajay Sharma has stated that he is civil engineer consultant at Palampur since 6-7 years and he has seen the demises premises. He has stated that basement of demised premises is damaged and premises is unsafe for commercial purpose. He has stated that no construction could be raised upon the old demised premises and demolition of demised premises is required for new reconstruction purpose. He has stated that he has filed report Ext.AW2/A placed on record. He has denied suggestion that he has not personally visited the demised premises. He has denied suggestion that report Ext.AW2/A is not written by him. He has denied suggestion that foundation and walls of demised premises are of permanent nature. He has denied suggestion that two stories structure could be raised upon the upper roof of demises premises. He has denied suggestion that he has prepared report Ext.AW2/A in his house.10.3 AW3 Kishori Lal Ahlmad SDM Court Palampur has stated that he has brought the record. He has stated that copy of notice issued under Section 133 Cr.P.C. is Ext.AW3/A which is correct as per original record.10.4 AW4 Rakesh Kumar Clerk Municipal Committee Palampur has stated that he is posted as Clerk in Municipal Committee and he did not bring the summoned record.10.5 AW5 Mool Chand has stated that his shop is given upon tenancy to Shiv Kumar proprietor Janta Sweet shop. He has stated that Shiv Kumar informed him that shop of Khem Chand would demolish at any point of time and would damage his shop. He has stated that he told Shiv Kumar tenant to take necessary action. He has stated that thereafter Shiv Kumar filed application before SDM and thereafter official of committee demolished the wall. He has stated that demised premises is not in proper condition. He has stated that his house is situated at a distance of 90 K.m. from Palampur. He has denied suggestion that he is not owner of any shop at Palampur. He has denied suggestion that demised premises is in proper condition. He has denied suggestion that walls of demised premises are in proper condition. He has denied suggestion that he came from 100 K.m. because he is friend of landlord.10.6 AW6 Mahesh Dutt has stated that he is posted as executive officer at Municipal Committee Palampur. He has stated that municipal committee has written request letter to SDM with allegations that if back portion of house would fall then path would be blocked. He has stated that SDM was requested to take necessary action.10.7 AW7 Mohinder Singh has stated that he is posted as Manager in KCC bank. He has stated that bank used to pay loan for construction of house. He has stated that landlord came to him for loan sanction. He has stated that he told the landlord that loan would be sanctioned after completion of loan formalities and he issued letter Ext.AW7/A. He has denied suggestion that landlord did not file any application for loan. He has denied suggestion that revenue papers were not perused. He has denied suggestion that he has issued wrong certificate Ext.AW7/A. He has denied suggestion that he has issued letter against the rules and regulations.10.8 AW8 Vinay Sharma has stated that he is architect at Palampur. He has stated that he has prepared site plan Ext.AW8/A at the instance of landlord. He has stated that cost of structure would be 3-4 lacs. He has stated that he has prepared document Ext.AW8/A after perusal of tatima and after inspection of site. He has stated that he could not state that plinth of demised premises and shop of Manohar are same.10.9 RW1 Khem Chand has stated that he is special attorney of tenant and same is Ext.R-1. He has stated that demised premises is constructed of permanent concrete bricks and further stated that walls are also concrete and lintel is raised upon roof. He has stated that floors are also cemented. He has stated that demised premises was taken in the year 1974 from Manohar Lal. He has stated that SDM did not pass any order relating to demised premises. He has stated that in family partition demised premises came to share of revisionist. He has stated that landlord did not receive the rent despite tendered by tenant. He has stated that expert also visited the demised premises and submitted reports Mark R-1 and Mark R-2. He has denied suggestion that back portion of demised premises fallen. He has stated that he did not see the basement of demised premises. He has stated that he did not visit the back portion of demised premises. He has admitted that tenant did not pay rent after 1993 and self stated that tenant is ready to pay rent after 1993.10.10 RW2 Surender Kumar has stated that he is a member of Municipal Committee Palampur since 1974 and he also remained as President and as of today he is also member of Municipal Committee. He has stated that he has seen the demised premises and further stated that demised premises is constructed of concrete bricks. He has stated that floors are also concrete and lintel is raised upon the premises. He has stated that demised premises did not require any repair. He has stated that a room which was situated behind the shop was demolished and demised premises and rooms are two different portions. He has stated that house was 70-80 years old and demised premises was constructed in the year 1954-55. He has stated that shop of Manohar Lal is also situated adjoining to demised premises. He has stated that there is common wall of demised premises and shop of Manohar Lal. He has stated that demised premises was constructed in his presence. He has stated that two shops came in share of landlord and two shops came in share of Manohar Lal. He has stated that Manohar Lal has constructed two stories building upon his shop. He has stated that two stories building could also be constructed upon demised premises. He has stated that his shop is situated in front of demised premises. He has denied suggestion that cracks have developed in walls of demised premises. He has denied suggestion that 2-3 stories building could not be constructed upon the demised premises.10.11 RW3 Raj Kumar has stated that he is posted in Agriculture University as Assistant Engineer and he has acquired diploma in civil engineering. He has stated that he was appointed as Junior Engineer and he worked as Junior Engineer for 17 years and now he is working as Assistant Engineer since 11 years. He has stated that he also used to do construction work and repair work of buildings and he has inspected the demised premises twice and submitted the report. He has stated that report is Ext.RW3/A. He has stated that entire demised premises is cemented. He has denied suggestion that walls of demised premises have tilted. He has denied suggestion that cracks have developed in demised premises.11. Submission of learned Advocate appearing on behalf of revisionist that learned Appellate Authority did not decide ground No. 5 of appeal relating to issue No. 3 in accordance with law and caused grave miscarriage of justice to revisionist and on this ground case be remitted back to Appellate Authority is accepted for the reasons hereinafter mentioned. Learned Rent Controller has specifically mentioned in order that issue No. 3 was not pressed during the course of arguments by learned Advocate and learned Rent Controller decided issue No. 3 as not pressed. Thereafter landlord filed appeal before learned Appellate Authority and took specific ground in paragraph 5 of appeal that learned Rent Controller gravely erred in not deciding issue No. 3 on merits. Landlord pleaded in paragraph 5 of grounds of appeal that Advocate was not authorised to give any statement relating to issue No.3. Learned Rent Controller did not record statement of learned Advocate in writing to the effect that issue No. 3 was not pressed at the time of arguments. Learned Appellate Court decided ground No. 5 of appeal with observations that demised premises is commercial in nature and landlord cannot seek eviction of tenant in commercial premises on the ground of requirement for own occupation as per H.P. Urban Rent Control Act 1987. Section 14 of H.P. Urban Rent Control Act 1987 was amended vide H.P. Urban Rent Control Amendment Act 2009 (Act No. 8 of 2012) which received assent of President of India on 28.2.2012 and published in H.P. Gazetted on 16.3.2012. Vide amendment in Section 14 of H.P. Urban Rent Control Act 1987 landlord can seek eviction of tenant in residential and non-residential premises for his own occupation. It is well settled law that Court can take judicial notice of amendment in law at subsequent stage.12. Submission of learned Advocate appearing on behalf of non-revisionist that amendment in Section 14 of H.P. Urban Rent Control Act 1987 is prospective in nature and not retrospective in nature and on this ground revision petition be dismissed is decided accordingly. It is well settled law that when legislature enacts a statute then whether its operation would be prospective or retrospective would depend upon the provision of statute. It is well settled law that amendment in statute is always prospective in nature unless it is expressly made retrospective in nature. There is no recital in H.P. Urban Rent Control Amendment Act 2009 (Act No. 8 of 2012) that its operation would be retrospective in nature.13. It is well settled law that when Hon’ble Apex Court of India gives any decision declaring law then Hon’ble Apex Court of India declares pre-existence rights and obligations. It is well settled law that decision of Hon’ble Apex Court of India is always binding upon all Courts situated in India as per Article 141 of Constitution of India. It is well settled law that decision of Hon’ble Apex Court of India is binding upon pending cases of similar nature. Hon’ble Apex Court of India in case reported in 2013(5) SCC 243 titled Hari Dass Sharma vs. Vikas Sood and others made operative amended provision of Section 14 of H.P. Urban Rent Control Amendment Act 2009 (Act No. 8 of 2012) upon pending cases also. In view of decision of Hon’ble Apex Court of India cited supra it is held that provision of H.P. Urban Rent Control Amendment Act 2009 (Act No. 8 of 2012) will also operative in present case.14. Submission of learned Advocate appearing on behalf of revisionist that in view of disposal of civil revision No. 335 of 1997 by Hon’ble H.P. High Court on dated 6.3.1998 present revision petition be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that when civil revision No. 335 of 1997 was disposed of by Hon’ble H.P. High Court on dated 6.3.1998 at that time ground for eviction of tenant on the basis of requirement of premises for own occupation in commercial premises was not available to landlord as per law. But now due to subsequent change in law vide H.P. Urban Rent Control Amendment Act 2009 (Act No. 8 of 2012) landlord can seek eviction of tenant from commercial premises on ground that landlord requires demised premises for his own occupation. Point No.1 is decided accordingly.Point No. 2 (Relief)15. In view of findings upon point No.1 order passed by learned Appellate Authority-III Kangra at Dharamshala dated 13.10.2006 is set aside and case is remanded back to learned Appellate Authority-III Kangra at Dharamshala for limited purpose only with direction to decide ground No. 5 of appeal upon merits afresh in accordance with law and thereafter dispose of entire appeal afresh in accordance with law. Parties are left to bear their own costs. Parties are directed to appear before learned Appellate Authority-III Kangra at Dharamshala on 25.11.2016. Observations will not effect merits of case in any manner and will be strictly confined for disposal of present revision petition. Learned Appellate Authority-III Kangra at Dharamshala will dispose of appeal expeditiously within three months from today. Record of learned Rent Controller and learned Appellate Authority-III Kangra at Dharamshal be sent back forthwith along with certified copy of order. Revision petition is disposed of. All pending miscellaneous application(s) if any also stands disposed of.