Satya Parkash Mehta, Advocate vs Mela Ram

N.K. Kapoor, J.—This is landlord''s petition u/s 18-A (8) of the East Punjab Urban Rent Restriction (Amendment) Act No. II of 1985 (for short the Act) against the eider of the Rent Controller, Jalandhar, dated 21-2-1991 whereby the petition filed u/s 12-A of the Act was dismissed.

Briefly put, the petitioner filed a petition u/s 13-A of the Act on the ground that he is a specified landlord as defined u/s 13-A of the Act as amended by Act No. II of 198 5 (Punjab). As per averment made by the petitioner, he retired from Punjab Government service as Prosecuting Inspector on 22 4-1971. He further averred that ever since his retirement he is practising as an Advocate He is a member of the Julandhar Bar Association since 1971. Presently, he is living at Amritsar for want of proper accommodation in Talandhar city where he intends to reside. It has further been averred that the petitioner does not own and possess any other suitable accommodation in Jalandhar City and so require the premises in dispute for his personal bona fide needs. In pursuance to the notice issued by the Rent Controller, the respondent put in appearance and prayed for grant of leave to contest the application on the grounds (i) that the application has not been given bona fide but it is mala fide in content. The petitioner does not require the premises in dispute bona fide for his residence. He has not filed correct, site plan as the site plan attached does not show the house of the petitioner which is on (he east of the disputed premises. According to the respondent, the house in possession of the petitioner consists of four rooms, deori and a varandah on the ground floor and at least three habitable chubaras on the first floor. This information has been withheld as else it would be proved that'' the petitioner has sufficient accommodation ; (ii) that the petitioner is residing in a new locality at Jalandhar after his retirement for the last more than 15 years. The petitioner never occupied any portion of the building which is lying vacant and the fact that vital information has been withheld is itself a ground to disentitle the petitioner to seek eviction of the respondent u/s 13-A of the Act. (iii) Despite having retired in the year 1971, the present application has only been filed in the year 19 6; (iv) that the entire building is in a dilapidated condition and to seek eviction from such a building the appropriate remedy is u/s 13 of the Act and not u/s 13-A of the Act ; (v) that after retirement the petitioner has rented cut a portion of the building consisting of five rooms to Narider Kumar which clearly proves that he does not need the premises in dispute for living. Lastly not only this, only a year back the petitioner has rented out three rooms adjoining the portion to the disputed premises to one Ravi Kumar.

The petitioner denied that the present application has been filed mala fidely. In fact. the petitioner highlighted that the ambit and scope of section 13 (3) (a) and section 13-A are quite different. In the former, the words used are "requires for his own occupation" whereas in the latter section i.e. 13-A the words used are "intends to reside" and this way relieves a landlord of the necessity, to prove his requirement of the premises. It was urged that the provision of Section 13-A of the Act. provides for imposition of stiff penalty of six months imprisonment in case the landlord fails to occupy the premises for a continuous period of three months after eviction and the tenant can also apply for restoration of the premises The factum of having let out some portion of the building after retirement, was denied The Rent Controller after hearing learned l-counsel for the parties allowed the application of the tenant u/s 18 A (5) of the Act by order dated 16-1-1987. The observation, of the Rent Controller" while allowing this application is as under:-

"Present is a fit case where parties can only prove their respective cases by leading evidence and this application cannot be decided on affidavits alone. Tenant/petitioner has alleged that respondent/petitioner has rented out/premises within one year from the date of this application and is also in possession if house on the eastern portion of the premises in dispute, which is sufficient for use and occupation of petitioner. So taking into consideration the circumstances of the case, I allow this application u/s 18-A (5) of East Punjab Urban Rent Restriction Act,"

On the pleadings of the parties, the Rent Controller framed the following issues :-

Is applicant disentitled from obtaining any cider for possession of residential premises in dispute from the respondent u/s 13A ? OPR.

Relief

The petitioner with a view to prove his case examined Diwan Chand AW1, Inder Mohan Singh, Sectional Officer of the Municipal Corporation, AW2, Dev Dot Khanna AW3, Sat: Parkash petitioner AW 4, Plans Singh AW5 and Man Singh AW6. Diwau Chand, AW1, was examined to prove the photographs of the disputed properly of the petitioner. Indermohan Singh, AW2, proved the order Exhibit A57/1 and Exhibit A57/2 pursuance to which notices u/s 273 (2) of the Punjab Municipal Act were issued to the, petitioner and copies". of the notices Exhibit A58 to A 60 wherein it was specifically recorded that whole of the building bearing No. N. J, 143 is in a dangerous condition. Sarv Sh. Dev Dutt Khanna, AW3 and Man Singh, AW 6, too were examined, to prove the condition of the building According to Dev Dutt Khanna, AW5, the condition of the building of the eastern block is unfit and unsafe for human habitation. As regards the western block, he opined that the rooms marked X and Y are not lit for human habitation as encircled red in Exhibit A62. Man Singh ; AW6 proved his report Exhibit AW6/1 and supplementary report. Exhibit AW6/2. He too was of the view that the building is unsafe and unfit for human habitation. Satya Parkash, AW 4, in his statement in the court stated that the property its dispute is one unit though consists of two block i.e. eastern block and western block. Eastern block bears; No. B 27/XXIV/52 and Western Block bears No. B. XXIV/341. The present petition pertains to a portion of building bearing No. B. XXIV-341 This witness deposed that be intends to reside in the building now in occupation of the respondents he has no other building/house for his residence at Jalandhar City, As regards the requirement, the petitioner asserted that the entire building i. e. portion in occupation of the respondent and the portion .got vacated from Sardari Lal ex-tenant, in fact, is required for his personal occupation ''The Rent Controller on perusal of the statement of Satya Parkash and the expert witnesses Dev Dutt Sharma and Man Singh came to the conclusion that the entire building is in a dilapidated condition and the same cannot be said to be safe for human habitation and so the application made u/s 13-A of the Act was dismissed.

The learned counsel for the petitioner assailed the finding of the Rent Controller terming these to be wholly illegal and unwarranted on facts. According to the counsel, the Rent Controller had erred in law in not properly construing the ambit of section 13-A of the Act. According to him, once it is proved that the landlord is a specified landlord and he does not own and possess any other suitable accommodation in the local area in which he intends to reside the Rent Controller has no choice but to accede to his request and '' pass an order of eviction against the respondent. According to the counsel this beneficial provision was inserted vide Punjab Act No. II of 1985 to give some relief to persons who had retired or about to retire within the stipulated period as mentioned in Section 13-A of the Act Not only this, section 19 (2-A) of the Act safeguards the interest of the tenant in case it comes to light that the landlord despite having got an order of eviction from a residential building or a scheduled building has not occupied the same for a continuous period of three months from the date of such eviction or has let out the whole or any part of such building which was got evicted from the tenant and if so proved, such a landlord is liable to be punished with an imprisonment for a term which may extend to six months or with fine which may extend to Rs. 1000/- or both. As regards the conclusion of the Rent Controller that whole of the building is in a dilapidated condition and unfit for living, the counsel urged that the Rent Controller has misconstrued the statements of Sarv Sh. Man Singh and Dev Dutt Khanna and this is for the reason that the building consists of two blocks and so the observation of the expert witnesses with regard to the eastern portion of the building have erroneously been applied to the western portion as well. In any case, it is not the case of the tenant that the building in his occupation is unsafe and unfit for human habitation. This way the Rent Controller has set up entirely a new case for the respondent which is otherwise beyond his pleadings In support of his submissions the counsel relied upon the case reported as Jagan Nath Aggarwal v. Smt. Neelam Rani (1980) 82 P.L.R. 320. Dr. Dina Nath v. Smt. Santokh Kaur 1987 91 P. L. R. 171 K. A. Anthappai v C. Ahammed, J. T. 1992 (4) S. C 65 and Kapil Dev Gupta v. Ram Kishan 1988 93 P. L. R. 606. Replying upon Dr. Dina Nath''s cases (supra) the counsel urged that the words in Section 13-A of the East Punjab Rent Restriction Act are "He does not own and possess any other suitable accommodation in the local area and intends to reside" whereas in section 13(3) (a) (i) of the Act the words are "he is not occupying any other residential building in the urban area concerned and requires it for his own occupation". Both these expressions have indeed different connotations and so cannot be termed similar. Even the purpose of introducing of this Act-Punjab Act No. 2 of 1985-is quite clear. It is intended to provide succour to the public servants who had retired or were going to retire within a specified period to recover possession of the residential house owned by them irrespective of the fact that it is treated as a scheduled building under the control Act by evicting the tenants for their own residence. Since the purpose is to give immediate relief to a retiring public servant, provision of Section 13-A are at variance with the earlier provision contained in section 13(3) (a) (i) of the Act. There is no denying the fact that once the Rent Controller reaches a conclusion that conditions laid in Section 13-A of the Act are satisfied, there is no option but to order eviction of the tenant/tenants. In the present case the Rent Controller on the basis of evidence has come to the conclusion that whole of the building including the portion in occupation of the tenant is, in fact ; unfit and unsafe for human habitation. This being the factual position. it would be too broad a proposition to hold that when the building otherwise is unfit and unsafe for human habitation, even then the same can be got vacated on an application of the landlord u/s 13-A of the Act. The counsel next contended that even if it be held that the building is unsafe and unfit for human habitation, yet the same does not debar a landlord from seeking eviction of his tenant on the ground that he requires the building for dis personal use and occupation. The judgment in Jagan Nath Aggarwal''s case (supra) cited by the counsel is, in fact, not applicable on the facts of the present case. In Jagan Math''s case (supra) the precise contention raised by the landlady was that she needed the disputed property for her own use and occupation after reconstructing the same i.e. to say it was specifically stipulated in the petition that the disputed house is in a dilapidated condition. It is in these circumstances that the Court observed that the grounds for eviction on the basis of bona fide need and for the reason that the building is unsafe and unfit for human habitation cannot be termed contradictory to each other in the given circumstance. The observation of the Court are in the following words :-

"In given case the landlord may bona fide require the premises for his own use and occupation after reconstructing and at the same time one of the grounds of ejectment may be that the premises are unsafe and unfit for human habitation, in the present case the bona fide of the landlord are clear from the fact that he wanted to occupy the premises after reconstructing the same. In other words, the main plea was that the premises have become unsafe and unfit for human habitation and he wants to reconstruct the same and after reconstruction the same will be occupied by him. I do not find how both the pleas are contradictory to each other".

In the present case, there is no such averment in the petition itself that the premises in dispute is in a dilapidated condition and the petitioner wants to reconstruct and thereafter occupy the same. Similarly, the judgment in K. A. Anthappai''s case (supra) does not advance the case of the petitioner in any manner. The counsel next challenged the conclusion of the Court with regard to condition of the building. According to him, the Rent Controller, indeed has erred in law in not properly perusing the statement of the expert witnesses as well as statement of the petitioner which consequently has resulted in returning the said adverse finding. The ambit and scope of Section 18-A(8) of the Act is rather limited, yet wish a view to satisfy whether any error bad been committed by the Rent Controller. I have perused the various statements of the witnesses referred to by the learned counsel for the petitioner in support of his plea, but I am unable to find any merit in this event. It is petitioner''s own case that this huge building having numerous rooms consists of separate blacks i.e. eastern block and western block It is the case of the petitioner that whole of the eastern block of the building is, in fact, in a diapidated condition and so is unfit and unsafe for human habitation. The dispute merely relates to a portion of the western block which is in possession of the respondent Even with regard to the other portion of the western block, the stand of the petitioner is that the same is also unfit and unsafe for human habitation. Man Singh, who was examined as AW6, vide his report Exhibit AW6/1 dated 6.4.1988 pertaining to western portion of the house bearing House No. B-XXlV/541 came to the conclusion (i) that the building; is very old, its age being about 100 years. It has out lived its useful life (ii) The roofs are cracked, uneven-some planks have already fallen and the remaining ones are in danger or falling at any time; (iii) that the building is unsafe and unfit for human habitation. By way of supplementary report dated 14.10.1988 Exhibit AW6/2 his conclusions are, "''... ..that since my inspection dated 26.3.1988 the roofs of double bed room on second floor and office room on ground floor nave partly fallen and roof of one small room on the second floor completely fallen. This confirms the conclusion as per para 5 of my report dated 6.4.1988 that the building is unsafe and unfit for human habitation. As a matter of fact, it has become very dangerous also."

Satya Parkash, AW4, when examined had to admit the existing ruinous condition of the building. He deposed, "it is impossible to count the rooms of the building in dispute i.e. the entire building which is in ruinous condition It is correct that there are numerous rooms in the entire building. All of the rooms are in ruinous condition and unsafe and unfit for human habitation. The present petition is not on the basis of the building being unfit and unsafe for human habitation. The premises got vacated from Sardari Lal is three storeyed and has two big rooms, four small rooms besides a kitchen and verandah..... I have not got the portion of Sardari Lal required as it is not repairable, Past of the rest of the promises i.e. the portion excepting in possession of the respondent and the one got vacated (from Sardari Lal, is lying vacant partly from 1980 and partly from 1971. There might be ten to fifteen rooms in that vacant portion. This vacant portion was not in repairable and habitable. I did not even tried to reconstruct it for my residence .." On the basis of this and other evidence on record, the Rent Controller came to a conclusion that the building is in a dilapidated condition and is unfit and unsafe for human habitation. No error is discernible on careful reading of the statement of the witnesses and on seeing the photographs of the building, Even otherwise powers of this Court are rather limited All that it envisages is that it can call for record of the case to satisfy itself that the decision therein is according to law and to pass such order in relation with the case as it thinks fit. In any case, such a power cannot, be equated with the right of appeal. Section 18- A (8) of the Act reads as under :-

"No appeal or second appeal shall lie against an order for the recovery of possession of any residential building or scheduled building made by the Controller in accordance with the procedure specified in this section :

Provided that the High Court may, for the purpose of satisfying itself that an older made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit."

This Court in Dr. Dina Math''s case (supra) considered this provision. My brother D. V. Sehgal, J., (as he then was)held as under:-

"The power of the High Court under the proviso to sub-Section (8) of Section 18 A is not extensive with the power of revision under sub-Sections (5) of Section 15 of the Act The former does not confer power on the High Court to appreciate the evidence to satisfy itself as to the legality or propriety of the order. It. can call for the record of the case for the purpose of satisfying itself that the order made by the Rent Controller is according to Jaw. In other words, it can interfere with the order if it is without jurisdiction or contrary to law and express provisions of the Act as amended by the Punjab Act No. 2 of 1985 or where the order is perverse resulting in miscarriage of justice."

The apex Court in cast" reported as Hari Shankar v. Rao Girdhari Lal Chawdhary, A .I. R. 1963 S. C. 698 considered the scope of the Section 35 of the Delhi and Ajmer Rent (Control) Act vis-a-vis the revisional power u/s 115 of the Code of'' Civil Procedure The Provision contained in Section 35(1) is identical to Section 18-A(R) of the Act. Section 35(1) of the Delhi and Ajmer Rent (CONTROL) Act reads as under :-

"The High Court may, at any time, call for the record of any case under this Act for the purpose of satisfying itself that a decision made there in is according to law and may pass such order in relation thereto as it thinks fit."

Examining the phrase "according to law", the Court observed as under:-

"The phrase "according to law" refers to the decision as a whole, and is not to be equaled to error or law or of fact simiplicitor. It refers to the overall decision, which must be according So law which it would not be, if there is a miscarriage of justice: due to a mistake of law. The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which Section 115 is limned. But it must not be over looked that the section-inspite of its apparent width of language where it. confers a power on the High Court to pass such order as the High Court might think fit,-is controlled by the opening warts, where it says that the High Court may send for the record of the case to satisfy, itself that, the decision is "according to law". It stands to reason that if it was considered necessary that there should be a rehearing, a eight of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal."

The Court in the instant case was considering as to whether the High Court was competent to reconsider the concurrent finding about the commenced and so in the context of above noted provision cams to the conclusion that the learned Judge was not justified in interfering with a plain finding of fact. The apex Court in case reported as Malini Ayyappa Naicker (Now Dead) through I.R. etc. Vs. Seth Manghraj Udhavadas Firm by Managing Partner Chathurthuj Chhabildas (Dead) Thereafter by I.Ss. and Others, while examining the first proviso to Section 75 of the Provincial Insolvency Act (1920) which too is in the following words, "Provided that the High Court, for the purpose of satisfying itself that an order made in any appeal decided by the District Court was according to law, may call for the case and pass such order with respect thereto as it thinks fit" came to the conclusion that this does not confer any right upon the High Court to reappreciate the evidence on record. In case the Legislature intended to confer power upon the High Court to re-examine both questions of law and fact it would have conveyed its intention by appropriate words as has been done under various statutes. Even a wrong decision on facts by a competent court is also a decision according to law.

The decision of the Rent Controller, on perusal of the various material on record coupled with the statement of the petitioner, cannot be termed as erroneous. In the light of the decisions of the apex Court, the decision of the Rent Controller, cannot be termed as ''not according to law". Resultantly, no case is made out for interference under the revisional jurisdiction of this Court, The revision petition is consequently dismissed. However, in the circumstances of the case, the parties to bear their own costs.