Atma
S. Berar Vs. Mukhtiar Singh [2002] Insc 537 (12 December 2002)
R.C.
Lahoti & Brijesh Kumar. R.C. Lahoti, J.
An
order for eviction from residential building on the ground of requirement of
the landlord for his own occupation passed by the Controller and upheld in
appeal by the Appellate Authority has been upset and reversed by the High Court
in exercise of revisional jurisdiction. The aggrieved landlord is in appeal by
special leave.
Section
13(3)(a) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter the
Act, for short) contemplates a landlord making an application to the Controller
for an order directing the tenant to put the landlord in possession of
residential building if he requires it for his own occupation. The order of the
Controller is subject to appeal before Appellate Authority. Under sub-Section
(5) of Section 15 of the Act, the High Court is conferred with jurisdiction of
calling for and examining the records for the purpose of satisfying itself as
to the legality or propriety of any order passed or proceedings taken under the
Act. The High Court may pass such order in relation thereto as it may deem fit.
The
suit premises are a residential building constructed by the landlord-respondent
in the year 1961 in the city of Moga.
He was a member of Indian Revenue Service. He retired and lived in the suit
premises with his wife upto 30.4.1982. On 1.5.1982 he let out a part of the
suit premises to the tenant-respondent. The appellant, with all his experience
acquired in the services, thought of trying his luck as a consultant/advisor in
customs and central excise matters and hence shifted to the industrial township of Ludhiana. On 14.6.1991 the landlord initiated proceedings for the
eviction of the tenant-respondent alleging that he had grown old and was not in
a position to continue the profession of consultant/advisor. At one time he had
a mind of purchasing or renting in suitable accommodation but at the end he had
given up the idea and decided finally to settle in Moga and live peacefully in
the suit premises of his own. His wife too was in a fragile state of health and
Moga provided adequate medical facilities to take care of the wife's health
apart from the warmth of affection and nearness of friends and relations and
old acquaintances.
The
suit premises are the only premises owned by the appellant.
Admittedly,
he has no other premises of his own available for his residence anywhere else.
The
requirement of the landlord, as pleaded and proved, was found worth entitling
the landlord to an order for recovery of possession over the tenanted premises,
in the opinion of the two courts below the High Court. By the time the
litigation travelled up to the High Court and came to be decided by the
impugned order dated 6.7.1999 about 8 years had elapsed in-between. The life of
the old retired revenue service personnel had not remained static and underwent
several events in pursuit of peace and comfort so imminently needed in the
evening of life to a person who had the fortune of having good education and
also enjoying status and position in life being a member of All India Services.
We would concentrate on dealing with the events which occurred pendente lite
and predominantly prevailed with the High Court for reversing the finding of
facts as to requirement which, but for those events, probably the High Court
would not have been inclined to do. It appears that most of the relations of
the appellant-landlord are settled in Canada. The appellant spends time with them and stays quite often at Canada. On 1.11.1986, he acquired status
as a permanent resident in Canada. In the
year 1995 he has also got Canadian citizenship. In November 1989, he let out an
additional portion of the building to the same tenant, i.e. the respondent. On
16.1.1990 and 21.2.1990, the appellant wrote two letters to the tenant
respondent which letters spell out the parties negotiating for sale and
willingness of the appellant to sell the house to the tenant. Admittedly, the
negotiations failed. On 14.6.1991, proceedings for eviction were initiated. On
27.7.1996, the Rent Controller passed an order for eviction of the respondent.
On 29.9.1997, the appellate authority dismissed the tenant's appeal. On
5.3.1998, the High Court made a remand to the appellate authority for recording
further evidence in the light of the two letters dated 16.1.1990 and 21.2.1990
affording the landlord an opportunity of explaining his conduct as disclosed by
the two letters and if these letters had the effect of causing a dent in the
case of requirement as pleaded by the landlord. The appellant's statement was
recorded by the appellate authority. The appellate authority once again, by
order dated 19.1.1999, dismissed the tenant's appeal. On 6.7.1999, the tenant's
revision was allowed by the impugned order. The High Court has, in its impugned
order, held that the appellant-landlord was at an advanced age of life and as
all his relations were settled in Canada where the appellant too seems to have
settled, it was difficult to accept the story that the appellant would come
back to India and live in the suit premises. This finding finds additional
strength, in the opinion of High Court, from the factum of the appellant having
negotiated the sale of the house with the tenant early in the year 1990 as
revealed by his two letters.
At
this stage, we would like to refer to the statement of the appellant recorded
by way of additional evidence by the appellate authority on 28.4.1998. The
appellant was 80 years of age on that day. He states that he belongs to Moga Tehsil
where he had built his house and was living happily with his family. He wants
to reside in his own house. His wife hails from village Lopo in Tehsil Moga.
His eyesight has been reduced almost to nil and he has to be supported by
someone in his movements. His hearing power was also rendered very weak. His
wife was almost of his age and though the old age had set in for her too yet
she was enjoying reasonably good faculties functioning well by God's grace. He
candidly admitted having written the letters dated 16.1.1990 and 21.2.1990. He
explained, "When I wrote these letters I thought that it would be
difficult for me to get the building vacated and as such I should sell the
same. As such, the correspondence in this respect continued for about three
months in the beginning of 1990. The negotiations did not mature.
The
respondents refused to purchase the property. Thereafter I changed my mind and
I made up my mind to live at Moga since I could not live at Ludhiana. . I made up my mind that I was not
to sell the house at any cost to anyone. None of my daughters is now living at Ludhiana." He further stated that he
had three sons.
Two of
them were well settled with their families and living away from him. The third
son had died in an air crash. He had two brothers.
Both
have died. He again said, "When I had written the letters I had a mind to
shift to Canada." He went on to say that his
first cousin Jagat Singh Brar was living just behind the suit house at Moga and
he too had retired from Indian Revenue Services about 10-12 years before.
He has
other landed property in village Gulab Singh Wala, Tehsil Moga. He left his
practice in 1985 on account of the death of his third son.
In the
light of the statement of the landlord, as originally recorded and as
additionally recorded under the orders of the High Court, indeed a pathetic
story of landlord-tenant litigation and law's delays is revealed. A retired
government servant, accompanied by his old aged life companion, is shuttling
between India and Canada in search of a shelter and settlement in the evening
of life so as to peacefully pass the balance of his life and to breathe his
last in his own house which is the only property which he had built on his own
by investing his earnings and his toil. It is true that the appellant has good
number of kith & kin settled in Canada and the thickness of relationship with them tempted him to try a
settlement in Canada but his links and moorings in his
motherland were not all lost. It is very natural for an ageing Indian to
witness his sentiments for the motherland and the birth place gaining more
strength and bondage becoming thicker with the advancement in age. His desire
to convert the house, which he has built himself, into a home so as to live
peacefully therein with his wife cannot be said to be unnatural and certainly
not wishful merely or whimsical.
One of
the grounds for eviction contemplated by all the rent control legislations,
which otherwise generally lean heavily in favour of the tenants, is the need of
the owner landlord to have his own premises, residential or non-residential,
for his own use or his own occupation. The expressions employed by different
legislations may vary such as 'bona fide requirement', 'genuine need',
'requires reasonably and in good faith', and so on. Whatever be the expression
employed, the underlying legislative intent is one and that has been
demonstrated in several judicial pronouncements of which we would like to refer
to only three.
M.N. Venkatachaliah,
J. (as His Lordship then was) speaking for the three-Judges Bench, said
"Statutes enacted to afford protection to tenants from eviction on the
basis of contractual rights of the parties make the resumption of possession by
the landlord subject to the satisfaction of certain statutory conditions. One
of them is the bona fide requirement of the landlord, variously described in
the statutes as "bona fide requirement", "reasonable
requirement", "bona fide and reasonable requirement" or, as in
the case of the present statute, merely referred to as "landlord requires
for his own use". But the essential idea basic to all such cases is that
the need of the landlord should be genuine and honest, conceived in good faith;
and that, further, the court must also consider it reasonable to gratify that
need.
Landlord's
desire for possession, however honest it might otherwise be, has inevitably a
subjective element in it and that, that desire, to become a
"requirement" in law must have the objective element of a
"need". It must also be such that the court considers it reasonable
and, therefore, eligible to be gratified. In doing so, the court must take all
relevant circumstances into consideration so that the protection afforded by
law to the tenant is not rendered merely illusory or whittled down."
(1979) 1 SCC 273, it was held that the words "reasonable requirement"
undoubtedly postulate that there must be an element of need as opposed to a
mere desire or wish. The distinction between desire and need should doubtless
be kept in mind but not so as to make even the genuine need as nothing but a
desire.
(1999)
6 SCC 222, this Court in a detailed judgment, dealing with this aspect, analysed
the concept of bona fide requirement and said that the requirement in the sense
of felt need which is an outcome of a sincere, honest desire, in
contradistinction with a mere pretence or pretext to evict a tenant refers to a
state of mind prevailing with the landlord.
The
only way of peeping into the mind of the landlord is an exercise undertaken by
the judge of facts by placing himself in the armchair of the landlord and then
posing a question to himself ___ Whether in the given facts, substantiated by
the landlord, the need to occupy the premises can be said to be natural, real,
sincere, honest? If the answer be in positive, the need is bona fide. We do not
think that we can usefully add anything to the exposition of law of requirement
for self occupation than what has been already stated in the three precedents.
Let us
revert back to the facts of the case. Can it be said that the desire of the
landlord to be in his own house and live comfortably in his own castle ___
every home is a castle to the inmate ___ restricting his movements so as to
adjust with ailing physique and weakening faculties is unnatural, illusory, a
pretext or mere pretence for getting rid of the tenant? What is there to
demonstrate that the need is divorced of reality, sincerity and honesty? Fed up
by the litigation and alarmed by the delays which eviction matters
unfortunately take in law courts, having acquired a proverbial notoriety,
brought down the landlord on his knees and he offered the tenant to sell his
house so that he could settle himself by utilizing the sale proceeds in some
other house but in the heart of Moga Tehsil which he loves, for, he was born
there and remained attached to it in spite of moving at places. There is no
evidence adduced nor any material brought on record to hold that the landlord
had ever tried to sell the house to anyone other than the tenant himself or at
any time before and after the month of January and February 1990. We must give
weight to the factor that the landlord has not felt shy of admitting having
written the two letters __ rather having negotiated the sale with the tenant __
but then he assigns reason which sounds reasonable and probable and explains
his conduct. His determination to live in his own house is emboldened by the
attitude of the tenant. We find nothing unnatural about it. The learned
appellate authority took into consideration the entries contained in the passport
showing the landlord's frequent movements between India and Canada wherefrom
the appellate authority inferred that the appellant's links with Moga were
still alive.
The
learned senior counsel for the respondent criticized this finding submitting
that the passport entries show the landlord's entry into India but not
necessarily his stay at Moga. Suffice it to observe, where else and for what
the landlord, having reached India, would have gone excepting visiting his own
place which is the natural urge of any son of the soil to do while visiting the
country or returning to the motherland.
Simply
because a different Judge of Court of facts could have been persuaded to change
opinion and draw a different inference from the same set of facts is not the
jurisdiction of a revisional authority to upset pure finding of fact.
Precedents galore were cited by the learned senior counsel for the parties
dealing with jurisdiction of revisional court to interfere with findings of
fact. In all fairness to the learned counsel, we may refer to a few of them.
The
object of conferring revisional jurisdiction on the High Court, by sub-Section
(5) of Section 15 of the Act, is to enable it satisfying itself as to the
legality or propriety of an order made by the Chander and Ors. (1988) 3 SCC 131
it was held that the nature and scope of revisional jurisdiction conferred on
the High Court shall have to be determined on the language of the Statute
investing the a three-Judge Bench held that the revisional power referable to
Section 25-B(8) of Delhi Rent Control Act, 1958 is not as narrow as the revisional
power under Section 115 of the CPC and it is also not so wide as an appellate
power. Having kept the legal principles in view and on an objective
determination and on a proper appreciation of the evidence in the light of the
surrounding circumstances a conclusion as to the need of the demised premises
for user by the landlord and his bona fides shall not be liable to be
interfered with in Chand Gupta (1999) 6 SCC 222 this Court made a comparative
study of the provisions contained in section 115 CPC in juxtaposition with
Section 25-B(8) of Delhi Act and held that the High Court cannot appreciate or reappreciate
evidence dictated by its mere inclination to take a different view of the facts
as if it were a court of facts. A conclusion arrived at which is wholly
unreasonable or is one that no reasonable person acting with objectivity could
have reached on the material available, ignoring the weight of evidence,
proceeding on a wrong premise of law or deriving such conclusions from the
established facts as betray a lack of reason and/or objectivity would render
the finding 'not according to law' calling for an interference under Section
25-B(8) proviso by the High Court. Mudigonda take the same view. The scope of revisional
jurisdiction under Section 15(5) of the Act is similar, that is, confined to
testing the legality or propriety of order or proceedings of Controller.
The
learned counsel for the tenant-respondent submitted that the findings arrived
at by the Rent Controller and the Appellate Authority were vitiated and the
High Court was justified in interfering therewith especially in the light of
the events which had taken place during the pendency of the proceedings. The
power of the Court to take note of subsequent events is well-settled and
undoubted.
However,
it is accompanied by three riders : firstly, the subsequent event should be
brought promptly to the notice of the Court; secondly, it should be brought to
the notice of the Court consistently with rules of procedure enabling Court to
take note of such events and affording the opposite party an opportunity of
meeting or explaining such events; and thirdly, the subsequent event must have
a material bearing on right to relief of any party. We have dealt with each one
of the so- called subsequent events brought to the notice of the High Court as
also of this Court by the learned counsel for the tenant-respondent.
None
of them causes a dent in the case of bona fides and need as were found proved
by the authorities below the High Court. Seen in the light of normal human
nature and behaviour, the events pendente lite rather reinforce the direness of
the need. We need only remind ourselves of the observations made by
three-Judges Bench of this Court in Prativa Devi's case (supra) "the
landlord is the best judge of his residential requirements. He has a complete
freedom in the matter. It is no concern of the courts to dictate to the
landlord how, and in what manner, he should live or to prescribe for him a
residential standard of their own". The High Court need not be solicitous
and venture in suggesting what would be more appropriate for the landlord to
do. "That was the look out of the appellant and not of the High Court. The
gratuitous advice given by the High Court was uncalled forThere is no law which
deprives the landlord of the beneficial enjoyment of his property". The
present one, in our opinion, is an appropriate case where the High Court ought
not to have interfered with the findings of fact arrived at by the two
authorities below and that too concurrently, in exercise of its revisional
jurisdiction simply because it was inclined to have a different opinion.
The
appeal is allowed with costs throughout. The judgment of the High Court is set
aside and that of the Rent Controller and the Appellate Authority restored. An
order for recovery of possession over the suit premises, in favour of the
landlord and against the tenant, shall follow. The tenant-respondent is allowed
four months' time for vacating the suit premises and delivering vacant and
peaceful possession to the appellant-landlord and in-between clearing and
continuing to clear all the arrears of rent subject to his filing usual
undertaking within a period of three weeks from today.
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