DIWAN CHAND BHALLA Vs. A.K.BHOIL

JUDGEMENT

(1.) This revision petition by the tenant is against the order for his eviction passed by the Rent Controller and affirmed by the appellate authority under the Himachal Pradesh Urban Rent Control Act, 1971. Eviction was ordered on proof of the bonafide need of the landlord for his own occupation and also on the ground that the tenant had been allotted a residence for his occupation by the Government. The Himachal Pradesh Urban Rent Control Act, 1987 (the Act for short) came into force during the pendency of the revision before this Court with retrospective effect from 17th day of November 1971. The landlord does not press his claim for eviction on the ground of bona fide need for the reason of the embargo contained in sub -section (6) of section 14 of the Act. The landlord, however, seeks to sustain the order passed by the courts below on the ground mentioned in section 14 (3) (a) (iv) of the Act extracted below: - "A landlord may apply to the Controller for aa order directing the tenant to put the landlord in possession - (a) in the case of a residential building, if,.............................. (iv) the tenant has, whether before or after the commencement of this Act, built or acquired vacant possession of or been allotted, a residence reasonably sufficient for his requirement." This revision was argued by Counsel on both sides on the aforesaid clause (iv) which replaces a similar clause contained in section 14 (3) (f) of the Himachal Pradesh Urban Rent Control Act, 1971.

(2.) The building involved in these proceedings belonged to one Meghnath and another and was in occupation of the revision petitioner as a tenant under them. The tenant was the Welfare Officer in the Accountant Generals Office in Himachal Pradesh. He was allotted a government accommodation in Simla on 3 -10 -1979 and he occupied the allotted premises on 11 -10 -1979. The present landlord purchased the premises by a registered sale -deed Ex. P -l, dated 23 -9 -1982 from Meghnath and another and issued Ex. P -3 notice to the tenant on 20 -10 -1982, to vacate the premises. The tenant had in the meanwhile by Ex. P -l0 letter dated 11 -10 -1982 informed the Government that he intends to surrender the accommodation allotted to him on 30 -10 -1982. The accommodation allotted by the Government was accordingly surrendered by the tenant on 30 -10498 : and he reverted back to the building involved in these proceedings on the same day. The present petition for eviction was filed by the landlord on 2nd December, 1982. There is no dispute that the tenant was in occupation of the accommodation allotted by the government during the period I uh October, 1979 to 30th October, 1982. This court after the new Act came into force by order dated 28th April, 1989 called for a finding from the Rent Controller as to whether the accommodation allotted by the Government was reasonably sufficient for the requirements o f the tenant. The Rent Controller after recording fresh evidence adduced by the parties has submitted a finding to this Court that the accommodation allotted by the Government was reasonably sufficient for the requirements of the tenant. Even though the tenant has filed objections no serious attempt is made to challenge the correctness of the finding. The very fact that the tenant was in occupation of the allotted premises for a period over three years for the residence of himself and his family is itself indicative of the fact that the accommodation allotted by the Government was reasonably sufficient for the requirements of the tenant.

(3.) Learned Counsel for the tenant, Shri Rajiv Sharma, has urged that the accommodation allotted by the Government had been surrendered on 30th October, 1982 and no such accommodation was available on 2nd December, 1982 when the landlord filed the present petition for eviction. Learned Counsel places strong reliance on the decision of a learned single Judge of the Delhi High Court in Ved Prakash v. Chuni Lal, 1971 Delhi Law Times, 59. In that case, construing a similar provision in section 14 (l)(h)of the Delhi Rent Control Act, 1958, the learned single Judge held that the word has in the sub -section preceding the word built, acquired vacant possession of and been allotted contains in itself the meaning of presently possessing and uniess the tenant is in possession of the alternative accommodation referred to in the sub -section on the date of the petition, the landlord is not entitled to -On order for eviction of the tenant on that ground. This decision of the learned single Judge was over -ruled by a Division Bench in Hem Chand Baid v. Smt. Prem Wati Parekh, 1979 (2) Rent Control Reporter, 328. In that case it was held that the learned single Judge had not noticed an earlier decision of a Division Bench of the same High Court in Battoo Mal v. Rameshwar Nath, 1970 Rent Control Reporter 532, wherein it was held that the protection of the Rent Control Act lost for the reason of the tenant acquiring an alternative accommodation will not be revived on surrender of the accommodation at a later date. The Division Bench in Hem Chand Baids case (supra) has summarised the proposition laid down in Battoo Mals case at page 333 of the reports as follows : - "Two propositions appear to be well settled by the Division Bench in Battoo Mals case: (1) that once protection is lost by a tenant by his default, under clause (h) it is lost for ever and cannot be revived at any point of time or under any circumstances : (2) that the landlords right of eviction might get defeated by v. application of general principles of waiver or laches in exceptional cases." Considering also the decision of the Supreme Court in Gajanan Dattatraya Sherbanu Hosang Patel 1976 Rent Control Reporter 33 the Division Beach of the Delhi High Court came to the following conclusion at page 336 : "Once a default is committed by a tenant he ceases to enjoy the protection of law permanently and at no point of time and under no circumstances, the protection of law is revived. In view of this answer in regard to the interpretation of clause (h) of subsection (1) of section 14, the stage in the litigation at which the default should continue, became irrelevant."