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2004 Supreme(SC) 1269
2004(7) Supreme 455
SUPREME COURT OF INDIA
(From Himachal Pradesh High Court)
Arijit Pasayat & C.K. Thakker, JJ.
Shri Kailash Chand and Anr. -Appellants
versus
Shri Dharam Dass -Respondent
Civil Appeal No. 390 of 2004
Decided on 7-10-2004
Counsel for the Parties :
For the Appellants : Dharuv Mehta and Mohit Chaudhry, Advocates.
For the Respondent : Rajesh Gupta, Harpreet Singh and Ajay Choudhary, Advocates.
IMPORTANT POINT
Provisions of third proviso to Section 14(3) of H.P. Rent Control Act referred for fresh consideration to larger Bench.
Headnote:Himachal Pradesh Urban Rent Control Act, 1987-Section 14(3) third proviso-Eviction petition on ground of bona fide need decreed in 1993-Eviction order challenged in revision in High Court on plea that eviction petition was not maintainable in view of third proviso to sub-section (1) of Section 14 of the Act-High Court upheld contention relying on Molar Mal case-Appeal-Appellant landlord had filed earlier eviction petition in respect of Ist floor of building occupied by respondent tenant in 1980-Eviction order was passed but in appeal matter was compromised wherein tenant vacated 1st floor and occupied ground floor as tenant-In the facts and circumstances it might not be said that landlord had obtained possession of a building or premises falling within mischief of third proviso to Section 14(3) of the Act-In changed circumstances, necessity might have increased- A fresh look was necessary on the provision and matter directed to be placed before larger Bench.
Held : In our opinion, it may be possible for the landlord to argue that in the facts and circumstances of the case, it may not be said that the landlord has obtained possession of a building or premises falling within the mischief of third proviso to Section 14(3) of the Act. Again, the third proviso to Section 14(3) of the Act may apply to the facts which were before the court when the suit/application was decided by the court/authority and the landlord has obtained possession of a building or a part thereof. But if the circumstances have changed and the necessity increases, it may be possible for the landlord to apply under sub-section (3) of Section 14 of the Act on the ground of bona fide requirement. To such a situation, third proviso to Section 14(3) of the Act may not prohibit him from approaching a competent court/authority. It appears to us, as observed by the High Court of Punjab and Haryana in two cases referred to above, that the object of the proviso is to restrict the landlord from seeking unreasonable ejectment of tenants. If he was successful in evicting a tenant from a building and his personal requirement is fulfilled or satisfied, he cannot invoke Section 14(3) of the Act again. But if the requirement still continues or the circumstances are different, the third proviso to Section 14(3) of the Act has no application. The submission of the learned counsel that if the third proviso to Section 14(3) of the Act is not interpreted reasonably as submitted by him, it may have to be tested on the touch stone of Article 14 cannot be said to be totally ill-founded. In view of the aforesaid, in our view a fresh look is necessary on the provision, so that the grey areas noticed by us earlier may be creased out. It is, therefore, appropriate that the matter be placed for consideration of the question by a Bench of three Judges. (Paras 10 and 11)
ORDER
The present appeal is filed against the judgment and order dated November 27, 2001 passed by the High Court of Himachal Pradesh, Shimla in Civil Revision No. 35 of 1999. By the said order, a single Judge of the High Court of Himachal Pradesh dismissed the eviction petition filed by the landlord reversing order of ejectment passed by the Rent Controller, Shimla and confirmed by the Appellate Authority (II), Shimla.
2. The appellant herein is the owner of a building being House No. 108, Anandele, Shimla ( suit premises for short). He let the first floor of the suit premises to the respondent. The landlord filed an eviction petition against the tenant in respect of the first floor of the building in November, 1980. The petition was allowed by the Rent Controller by an order dated October 31, 1984. The tenant preferred an appeal and challenged the decree of eviction. On September 17, 1986, however, a compromise was arrived at between the parties. On the basis of the said compromise, the tenant agreed to vacate the first floor in favour of the landlord and was inducted as tenant of the ground floor of the same building.
3. According to the landlord, at the relevant time he was staying all alone in Shimla. Subsequently, however, his wife had also shifted from village Panhoi to Shimla. Moreover, the landlord wanted to get his child educated at Shimla where best facilities for studies are available. He, therefore, filed eviction petition against the tenant. The Rent Controller, Shimla, by an order dated January 20, 1993, held that the landlord wanted the premises for his bona fide occupation and accordingly an order of eviction was passed. Being aggrieved by the said order, the tenant preferred an appeal which was dismissed by the Appellate Authority (II), Shimla, by an order dated November 30, 1998. The aggrieved tenant carried the matter to the High Court by filing Civil Revision 35 of 1999. According to the landlord, a new ground which was never raised before the courts below was put forth by the tenant contending that the eviction petition filed by the landlord was not maintainable in view of third proviso to sub-section (1) of Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the Act ). Section 14 of the Act provides for eviction of tenants in certain cases on certain grounds. Sub-section (3) deals with cases of requirement of building premises by the landlord. The relevant part of sub-section (3) reads as under:
"(3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-
(a) in the case of a residential building, if-
(i) he requires it for his own occupation:
xxxx xxxx xxxx xxxx
xxxx xxxx xxxx xxxx
Provided further that where the landlord has obtained possession of any building or rented land under the provisions of clause (a) or clause (b) he shall not be entitled to apply again under the said clause for the possession of any other building of the same class or rented land:"
4. It was contended on behalf of the tenant before the High Court that since the landlord had obtained possession of the first floor earlier he was not entitled to apply again. The petition, therefore, was not maintainable and was liable to be dismissed on that ground alone. The High Court upheld the contention relying on a decision of this Court in Molar Mal (dead) through LRs. vs. M/s. Kay Iron Works (Pvt.) Ltd., [2000 (4) SCC 285].
5. A two-Judge Bench of this Court in Molar Mal had an occasion to consider a similar provision in Haryana Urban (Control of Rent and eviction) Act, 1973 (hereinafter referred to as "the Haryana Act"). Proviso to Section 13(3)(b) of the Haryana Act also creates an embargo on the landlord from seeking eviction of the tenant if he had earlier obtained eviction of other tenants under the said provision. Considering the ambit and scope of the provision,
