HUKAM CHAND DHAWAN Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This is landlord's revision directed against the judgments of the Authorities below under the East Punjab Urban Rent Restriction Act, as applicable to Union Territory, Chandigarh, whereby ejectment application filed by the landlord has been dismissed.

(2.) PETITIONER is owner and landlord of residential building, i.e. House No. 78, Sector 9, Chandigarh. The ground floor of the building, except one garage, was let out to the Director, Public Relations, Punjab, Chandigarh, initially on a rent of Rs. 1170/- per month. Later, rent was increased to Rs. 1870/-. Petitioner sought ejectment of the respondents inter alia on the following grounds : (i) that respondents are in arrears of rent since 1.9.1983 onwards; (ii) that respondents have changed the use of the building from residential to non-residential one, inasmuch as they are operating motor vehicle workshop without the permission of the petitioner in writing; (iii) that the premises in dispute are required by the petitioner for his personal use and occupation and also for occupation of his son who is a practising Advocate for the purposes of residence and setting up of an office needed by an Advocate; and (iv) that the respondents have impaired the value and utility of the premises. Petitioner in his application for ejectment averred that he is 65 years of age and suffering from high blood pressure and osteo-arthritis and his wife is also suffering from asthmatic and osteo-arthritis and he being in possession of 1st and 2nd floor of the house, the same is not suitable for him or his wife. In the amendment ejectment application filed before the appellate Authority, it was also averred that the premises in dispute are also required for the married son, who is dependent upon the petitioner, for the purpose of residence. On notice of the application, the respondents in their written statement denied that they have changed the user of the premises or the petitioner needs the premises for his bona-fide use and occupation, or that the respondents have impaired the value and utility of the premises. On the pleadings of the parties, the following issues were framed by the Rent Controller :- 1. Whether the respondents are liable to be evicted on the grounds alleged ? OPP. 2. Whether the petitioner has no right to evict the respondent from the demised premises ? OPR.

(3.) AFTER hearing the learned counsel for the parties at length and on going through the record, I am of the view that the revision petition deserves to succeed. Section 13(3)(a) of the Act confers a right on the landlord to apply to the Controller for an order directing the tenant to put the landlord in possession in the case of a residential building if he requires it for his own occupation and is not occupying any other residential building in the urban area concerned and has not vacated such a building without sufficient cause after the commencement of the Act, in the said urban area. So far as the requirement and need of landlord is concerned, it is now well-settled that the landlord is the final judge. If he considers the existing accommodation insufficient and he is in need of better and more commodious premises, the Court cannot go into the same and arrive at the conclusion that the alleged need is, in fact, for extraneous considerations. At the same time, it cannot be disputed that the statement of the landlord in this regard cannot be taken at its face value under all circumstances, but the Court has to proceed on the presumption that normally and generally the landlord is the best judge of his own need and convenience. But if the evidence on record shows that the claim put forward by the landlord is very much exaggerated and is prompted by extraneous considerations, then it will not be beyond the power of the Court to arrive at the conclusion, in a given case, in the peculiar circumstances of the said case, that the alleged claim is not bona-fide. In the present case, there are no circumstances to warrant such a conclusion. On reading of the evidence brought on record in regard to personal requirement of the landlord, I am of the view that both the Authorities below have failed to apply correct principles in determining whether the demised premises are required by the landlord for his own use and occupation. Landlord in his amended ejectment application filed before the appellate Authority has given details of the accommodation in his possession and also the size of the family. The reading of the averments made in this regard shows that there is no construction on the main building. The first and second floors are constructed only on the annexe portion. The first floor consists of one drawing hall and bed-room. The improvised dining-room is under the stair-case. Its width is only 8 ft. and the size of the kitchen is 8'- 3" x 6'- 6", and the approach to the kitchen is through the corridor having width of 2'- 6". On the second floor, i.e. Barsati floor, there is no bed-room. The height of the ceiling if only 8 feet. The family of the landlord consists of petitioner, his wife, his son Prem Dhawan, and daughter-in-law Sunita Dhawan, and two grand-children. One of the grand-children, at the time of filing the amended ejectment application, was studying in 7th class and the second one was aged two years. However, as on today, both the children have grown up and now the elder one is 21 years of age and is college-going and the younger one is 11 years of age and is school-going. Sunita Dhawan wife of Prem Dhawan, son of the landlord, is posted as Lecturer in English in M.C.M. D.A.V. College for Women, Sector 36, Chandigarh. Landlord has averred that his family is of good status and the Barsati floor is not convenient for their living at all. He has averred that a separate residence is required for his son and other family members. He has further averred that neither he nor his son is in occupation of any other building except the portion of the demised premises, i.e. first and second floors on the annexe portion, and they have also not vacated any building in the area of Union Territory, Chandigarh, after the commencement of the Rent Act. Petitioner while appearing as PW-1 has reiterated what he has stated in his ejectment application. His son, Prem Dhawan, while appearing as PW-6, has stated that he along with his family is residing with his father and they are in possession of one room and drawing-room, dining-room and kitchen on the first floor and two rooms on the second floor. He has further stated that their family consists of five members and apart from the family members, they do receive a good number of guests from their village and his brother also visits them. PW-5, Ram Kishan, has stated that Prem Dhawan, son of petitioner, is his friend and he was a practicing Advocate with him. He has stated that Prem Dhawan had left the practice and joined job because he had no place for an office. He has also stated that petitioner is in possession of drawing-dining room and one bed-room and two rooms on the second floor, and the accommodation in possession of the petitioner is not sufficient for him or his family members. RW-1, Harnek Singh, Draftsman in the Estate Office, U.T. Chandigarh, while appearing as witness for respondents, has stated from the record that demised premises is a residential building and the first floor on the annexe portion consists of three rooms, i.e. hall, 19-9"x 20', 16'-9x11'x7", hobby room 12"- "x 8-3" besides kitchen and store, and one verandah measuring 10'-4"x 20'. On the second floor, there are two rooms, i.e., barsati 17'-6" x 8'-3", store 8'-3" x 8'-3", dress-alcove 6'x6'-6", one store, verandah, toilet etc. Respondents have not produced any other evidence to show that the landlord is in occupation of any other accommodation than what has been (sic) by him and RW-1, Harnek Singh. Petitioner has been denied relief by the Authorities below under the impression that petitioner is in occupation of first and second floors constructed on the main building. It escaped the notice of the Authorities below that there is no construction on the main building, but the petitioner is in occupation of first and second floors constructed over the annexe portion. Considering the size of the family of the petitioner, as noticed above, and the accommodation in his possession, I am of the view that the finding of the Authorities below that the petitioner is having adequate and suitable accommodation in his possession cannot be sustained. In this regard, it is also to be noticed that petitioner at the time of filing the ejectment application was 65 years of age. Likewise, his wife was also of the same age. Now both of them are more than 80 years of age. Considering their age and the averment made in the ejectment application that they both are patients of osteo-arthritis and there being no rebuttal to this averment by the respondents, I am of the view that it would not be just and proper to ask the petitioner to adjust himself and his family in a small accommodation and allow the main building to remain with the tenants. The purpose and satisfaction of owning a house is of no avail if one has just to be a by- stander and required to adjust oneself in a make-shift arrangement. For all the reasons stated, I am of the opinion that the ground of personal necessity stands proved. The contention of counsel for the respondents that the building in dispute, may be residential one, had been let out for non-residential purposes and therefore, petitioner is not entitled to seek eviction of the respondents on the ground of personal necessity, is without merit. Section 11 of the Act imposes prohibition to convert residential building into non-residential one without permission of the Rent Controller. It provides that no person shall convert the residential building into non-residential building except with the permission in writing of the Controller. A Full Bench of this Court in Hari Mittal v. B.M. Sikka, 1986(1) RCR (Rent) 92 : 1986(1) PLR 1, considered the scope of Section 11 of the Act taking into consideration the decision of the Apex Court in Kamal Arora v. Amar Singh, 1985(1) R.L.R. 643, and held that Section 11 is intended to subserve as a public policy of seeing that the residential accommodation do not fall short of community's requirement, as the shortage of residential accommodation would tend to result in unhygienic conditions of the residential area by accommodating more members than it could legitimately be intended or extra population resorting to unhygienic use of the open space and pavements and creating social tension and health hazard to the community. It was, therefore, observed that the provisions of Section 11 of the Act are mandatory in character. It was held that this provision is attracted even to a residential building which is in the occupation of the landlord, hence the landlord could not convert it into a self-occupying non-residential building without the permission of the Rent Controller in terms of Section 11 of the Act. There is no denying the fact that the building in dispute is located in a residential part of the sector in the city and user of every building is specified by law. Letting out of such a building for non-residential purpose in violation of Capital of Punjab Act and Section 11 of the Act would not bring it within the fold of non-residential building defined in clause (d) of Section 2 of the Act.