Back
2025 Supreme(J&K) 60
In the HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
JAVED IQBAL WANI, J.
Mohit Mahajan S/o Late Vijay Kumar Mahajan - Petitioners
Versus
Sham Dass Gupta S/o Nand Ram Gupta - Respondent
CR 55 of 2013
Decided On :
Advocate Appeared:
For the Appellant :Mr. Ankush Manhas, Advocate
For the Respondent:Mr. Aditya Gupta, Advocate, with Abhishek Wazir & Mr. Munish Sharma, Advocate
A tenant evicted for reconstruction has the first right to tenancy upon completion, provided they pay market rent, as per Section 13 of the J&K Houses and Shops Rent Control Act, 1966.
Headnote:
(A) J&K Houses and Shops Rent Control Act, 1966 - Sections 11 and 13 - Eviction and restoration of possession - Landlord filed for eviction of tenant for building and rebuilding; subsequent orders led to confusion regarding tenant's right to restoration of possession post-construction - Court clarified that tenant has first right to tenancy upon completion of construction, provided they pay market rent. (Paras 10, 12, 14)
(B) Legal interpretation - The court emphasized that the provisions of Section 13 are not mandatory but obligatory, and the landlord must offer the premises to the tenant if not rented out. (Paras 10, 11)
Facts of the case:
The landlord sought eviction of the tenant for reconstruction, leading to a series of appeals and a final decree allowing eviction but requiring restoration of possession post-construction. The tenant applied for restoration, which was contested by the landlord. The Controller's order for restoration was set aside by the appellate court, leading to the current revision petitions.
Findings of Court:
The appellate court misapplied Section 13, failing to recognize the tenant's right to restoration of possession after reconstruction. The landlords were directed to hand over possession to the tenants within ten days.
Issues: The main issues included the applicability of Section 13 regarding tenant's right to restoration of possession and the interpretation of the landlord's obligations post-eviction.
Ratio Decidendi: The court ruled that the tenant has a first right to tenancy after reconstruction, and the landlord cannot deny this right if they choose not to rent out the premises. The appellate court's misinterpretation of Section 13 led to an erroneous decision.
Result: CR 42/2013 dismissed; CR 55/2013 allowed, directing landlords to restore possession to tenants.
JUDGMENT :
1. The issues involved in the instant revision petitions are inter-connected to each other, as such, are being taken up together for disposal at this stage with the consent of the appearing counsel for the parties.
Facts:
• One Sham Dass Gupta, original petitioner in CR 42/2013, (hereinafter referred as “the landlord”) filed a suit for eviction against one Chet Ram, the father of original petitioner 1 in Civil Revision 55/2013 (hereinafter referred as “the tenant”) in respect of a shop situated at Kanak Mandi, Jammu, under the tenancy of said Chet Ram, before the court of first Additional Munsiff, Jammu (Since both the original parties in the suit i.e. the landlord and the tenant have expired and their legal heirs have been bought on record, as such, for the sake of convenience they shall now be referred as landlords and tenants hereafter).
• The aforesaid suit, however, came to be dismissed in terms of judgment and decree dated 31.03.1992, whereafter the said judgment and decree came to be appealed against by the landlords before the court of Principal District Judge, Jammu, which appeal came to be allowed and the judgment and decree dated 31.03.1992 came to be reversed vide judgment and order dated 30.07.1993 and the suit consequently decreed, aggrieved whereof, the tenants preferred a civil second appeal before this court wherein the judgment and decree passed by the appellate court dated 30.07.1993 came to be set aside and suit dismissed, whereupon the landlords filed a Special Leave Petition (SLP) before the Supreme Court which SLP came to be allowed and the suit again came to be decreed on 15.04.2010 in favour of the landlords, however, upon a review petition filed by the tenants before the Apex Court, the decree came to be modified on 05.10.2010 providing that the tenants be evicted by the landlords for the purpose of building and rebuilding of the premises and that the tenants thereafter shall be entitled to the benefit of re- entry under section 13 of the J&K Houses and Shops of Rent Control Act of 1966 (hereinafter referred as the Act of 1966), whereafter upon the execution of the said decree, the landlords took over the possession of the shop in question on 25.05.2010 from the tenants for the purpose of building and rebuilding.
• An application came to be filed by the tenants under Section 13 of the Act of 1966 for restoration of possession of the shop after having been built and rebuilt by the landlords before the Rent Controller, Jammu (hereinafter referred as “the Controller”) on 29.12.2010 which application after being contested by the landlords came to be decided on 17.12.2011 by the Controller and while allowing the same directed the landlords to handover the possession of the shop in question to the tenants within a period of two months from the date of the order while providing further that the tenants shall pay rent to the landlords on the prevalent market rate, to be settled between the parties and that the patchwork, if any, required to be carried out for the purpose of making the shop functional shall be done by the tenants at their own costs which shall be adjusted later towards the rent payable by the tenants to the landlords.
• The landlords aggrieved of the said order of the Controller dated 17.12.2011, filed an appeal before the court of Additional District Judge, Jammu on 16.01.2012 (for short the appellate court), which appeal came to be decided by the appellate court on 04.03.2013, and while allowing the said appeal, the appellate court set aside the order of the Controller and remanded the matter back to the Controller for passing fresh orders after giving opportunity to both the parties to lead evidence with regard to their case, in that, the appellate court opined that the order of the Controller is self-contradictory. The said order dated 04.03.2013 is impugned in both the revision petitions before this court, one filed by the landlords and the other one by the tenants.
• While the tenant
