Muni Lal Vs Ved Prakash

The petitioner has filed the instant petition for setting aside the order dated 22.05.2018, passed by learned Rent Controller, Solan, District Solan, H.P. in Rent Petition No. 50/2 of 2001 titled ‘ Ved Parkash vs Muni Lal’ vide which the building plan submitted by the respondent-landlord was accepted, an application filed under Section 151 of CPC and objections filed

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1. Whether reporters of the local papers may be allowed to see the judgment? Yes

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against the building plan were dismissed by learned Rent Controller, Solan.

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Briefly stated, the facts giving rise to the present petition are that the landlord/respondent filed the rent petition on 01.09.2001 against the petitioner/tenant under Section 14 of H.P. Urban Rent Control Act, with the prayer that the tenant be evicted from the tenanted premises occupied by him as the landlord required the premises for bona fide need of widening/constructing staircase for the upper storey of his building. The rent petition was allowed by the learned Rent Controller, Solan, H.P. The tenant filed an appeal, which was allowed. The landlord filed a revision petition before this Court, which was dismissed. The matter was carried to the Hon’ble Supreme Court. The Hon’ble Supreme Court passed an order in Special Leave Petition (C) No. 20260 of 2017 on 09.08.2017, remitting the matter to the Rent Controller for a limited purpose with a direction that the landlord shall provide a suitable and equivalent space to the tenant after the reconstruction of the staircase in the shop and tenant would be evicted only after approval of the plan for the reconstruction of the staircase.

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Learned Rent Controller issued summons to the

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parties. The tenant filed an application praying that the landlord

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be directed to supply the proposal including the map of the proposed staircase and the equivalent space to be made available to the tenant after reconstruction. The landlord filed a copy of the location plan. The tenant also filed a site plan prepared by the Architect. The landlord filed objections to the technical report. The tenant filed a reply to the objections. Learned Rent Controller held that the objections taken by the tenant were not tenable. The carpet area would increase by 29.78 sq. feet. Hence, the objections were dismissed and the site plan filed by the landlord was approved. A direction was issued to the landlord to submit the site plan to M.C. Solan, H.P. for its approval.

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Being aggrieved from the order passed by the learned Rent Controller, the tenant has filed the present petition asserting that the learned Rent Controller acted with material illegality, irregularity and impropriety while passing the order. The learned Rent Controller failed to exercise the jurisdiction vested in him or had exceeded the jurisdiction, which caused a miscarriage of justice. The learned Rent Controller acted with material irregularity by not considering the spirit of the order passed by the Hon’ble Supreme Court of India. The landlord was bound to provide suitable and equivalent space to the petitioner after reconstruction of the staircase in the same shop and he could not

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have accepted the site plan submitted by the landlord. The learned Rent Controller diluted the directions passed by the Hon’ble Supreme Court of India. It was specifically directed that the location of the shop was not to be changed but the learned Rent Controller permitted the change of the location. There is one pillar on the right-hand side of the rented shop. The learned Rent Controller had wrongly held that the pillar cannot be removed in any condition. The pillar will make the shop inaccessible. The area of the shop would decrease. The site plan provides unworkable space to the tenant, which is of no use to him. The pillar will make the ingress and egress to the shop impossible. The space to be provided to the tenant is an encroached portion earmarked by the Municipal Council, Solan, during its operation to remove illegal encroachment from the roadside. The statutory requirement to leave the setback was not followed. An opportunity to lead the evidence in support of the objections was not provided. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Rent Controller be set aside.

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The landlord filed a reply admitting that he had filed a rent petition, which was allowed. The appeal filed before the learned Appellate Authority was allowed. The revision was dismissed and the matter was carried to the Hon’ble Supreme

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Court. It was asserted that the learned Rent Controller had not committed any jurisdictional error. The tenant wants to prolong the litigation. He wants to gain more time and harass the landlord. The objections taken by the tenant were without any basis. The learned Rent Controller has not violated the spirit of the order passed by the Hon’ble Supreme Court of India. The carpet area would increase from 73.94 sq. feet to 103.72 sq. feet after the reconstruction. The basic structure of the building cannot be altered. The pillar cannot be removed from the present place. The area and location of the shop would remain the same. The landlord is entitled to change the location of the staircase. No order was passed by the Hon’ble Supreme Court to permit the parties to record evidence and the learned Rent Controller had not committed any irregularity in acting upon the site plan. Hence, it was prayed that the present petition be dismissed.

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A rejoinder denying the contents of the reply and affirming those of the petition was filed.

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I have heard Mr Vipin Pandit, learned Counsel for the petitioner/tenant and Mr P.S. Goverdhan, Senior Counsel assisted by Mr Rahul, counsel for the respondent/landlord.

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Mr. Vipin Pandit, learned Counsel for the

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petitioner/tenant submitted that the Hon’ble Supreme Court of

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India had specifically directed the landlord not to change the location of the shop. However, the site plan submitted by the landlord changed the location of the shop. The area has been decreased and learned Rent Controller erred in holding that the area had increased. The report filed by the Architect of the tenant was not considered; therefore, it was prayed that the present petition be allowed and the order passed by the learned Rent Controller be set aside.

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Mr. P.S.Goverdhan, learned Senior Counsel for the respondent/landlord submitted that only the location of the staircase is being changed. The location of the shop would remain the same. The front area would increase due to which the total area of the shop would increase. The learned Rent Controller had considered all the aspects and there is no infirmity in the order passed by the learned Trial Court. Hence, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions at the bar and have gone through the records carefully.

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The Hon’ble Supreme Court of India passed the following order in Ved Prakash vs. Muni Lal,MANU/SC/1025/2017 :-

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“3. The Appellant approached the Rent Controller, Solan in Rent Petition No. 50/2 of 2001 seeking the ejectment of the Respondent. The Rent Controller, Solan allowed the petition. The Respondent approached the Appellate Authority. The Appellate Authority reversed the order passed by the Rent Controller and allowed the appeal. The order of the Appellate Authority has been upheld by the High Court.

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In the nature of the order we propose to pass, we do not think it necessary to call the Respondent before this Court, since the relief can be worked out in accordance with this order before the Rent Controller, Solan.

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When the matter came up before this Court on 10.07.2017, this Court passed the following order:

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The Petitioner shall get instruction as to whether even after widening the staircase, the Petitioner will be in a position to still accommodate the Respondent in some other part of the building.

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List after four weeks.

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The said order happened to be passed taking note of the fact that Respondent/tenant was a tailor and he needed only minimum accommodation, as has been noted by the High Court.

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Today, when the matter was taken up, Mr Sandeep Garg, son of the Appellant/Ved Prakash, on due instruction from the Appellant, is present before this Court. Learned Counsel appearing for the Appellant and Mr Sandeep Garg submits that even after the reconstruction of the staircase, the Respondent can be accommodated so as to continue his tailoring work.

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In that view of the matter, we are of the view that the order needs to be worked out before the Rent Controller. Accordingly, we dispose of this appeal and set aside all the orders and remit the matter to the Rent Controller, Solan for the limited purpose, as follows:

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i. The Appellant shall provide a suitable and equivalent space to the Respondent, after the reconstruction of the staircase, in the same shop. The reconstruction shall be undertaken only in such a way.

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ii. The Respondent shall be evicted only after the approval of the plan for the reconstruction of the staircase.

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The Rent Controller will issue fresh notice to the parties for working out this order.”

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It is apparent from the perusal of the order passed by

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the Hon’ble Supreme Court of India that initially the Hon’ble Supreme Court had sought instructions as to whether the landlord was in a position to accommodate the tenant in some other part of the building after widening the staircase. The Hon’ble Supreme Court of India also noticed that the tenant was a tailor and he needed only the minimum accommodation. The son of the landlord appeared before the Hon’ble Supreme Court and informed that the tenant could be accommodated to continue his tailoring work. Hence, the Hon’ble Supreme Court of India passed an order to provide a suitable and equivalent space to the tenant after the reconstruction of the staircase in the same. Thus, the landlord was supposed to provide suitable and equivalent space to the tenant after the reconstruction of the staircase.

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Much emphasis was laid on the use of the word ‘in the same shop’ to submit that the position of the shop of the tenant could not have been changed. This submission is not acceptable. If the position of the shop is not to be changed, there is no question of widening the staircase because widening could not have taken

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place by keeping the shop intact. The use of the word building in para-5 of the order clearly shows that the Hon’ble Supreme Court was of the opinion that accommodation has to be provided in the same building and not that the shop was not to be disturbed. Therefore, the submission on behalf of the petitioner/tenant that the location of the shop has been changed, which is impermissible is not acceptable.

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The site plan (Annexure P-6) shows the existing position and the proposed construction. It shows that the stairs would be shifted from the left side of the shop towards the right side of the shop. This would increase the front area of the shop by 1.05 meters and overall area would increase from 0.92 sq. meters to 1.32 sq. meters. It was submitted that the pillar would come in the front portion and the space to be given to the tenant will not be equivalent and suitable space. This is not acceptable.Merely because the pillar would be in the front portion will not affect the business of the tenant, who is working as a tailor and requires minimum area for himself as noticed by the Hon’ble Supreme Court of India. Thus, much cannot be made out of the pillar in the front portion of the shop.

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The tenant filed a report to the Architect (Annexure P-

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in which it was stated that it was not practically feasible to have

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the staircase from the proposed area as the span left out is too short. The existing area of the shop is falling short of the requirement and the area will not remain useable to run the shop in view of encroachment marked by the Municipal Committee Solan, H.P. It will not be feasible to have a staircase from the proposed area. These observations do not pertain to the site plan filed by the landlord and concern the feasibility of the construction of the staircase.

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The report further mentions that the carpet area of the shop after the proposed alteration in the staircase will be reduced to 5.62 sq. meters which is 1.25 sq. meters less than the existing area provided that the parapet/partition wall is constructed on the edge of the staircase. If the parapet/partition wall is constructed from the floor level, the carpet area of the shop will be reduced to 3.58 sq. meters, which is 3.29 sq. meters less than the existing area. The plan shown by him does not consider the increase in the front portion of the shop as reflected in the site plan of the landlord. Thus, this report is not sufficient to cast doubt on the site plan of the landlord.

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The learned Rent Controller had also noticed that the recorded area marked by the Municipal Committee, Solan was to be demolished and there was feasibility to construct the proposed

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staircase. The encroached portion had already been dismantled by the landlord and the apprehension of the tenant was not justified.

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The present petition has been filed under Article 227 of the Constitution of India. It was laid down by the Hon’ble Supreme Court in Garment Craft v. Prakash Chand Goel, (2022) 4 SCC 181 : (2022) 2 SCC (Civ) 424: 2022 SCC OnLine SC 29 that the power under Article 227 of the Constitution of India is correctional to set right grave dereliction of duty, flagrant abuse or violation of the fundamental principle of law or justice. It was observed:

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15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [ Prakash Chand Goel v. Garment Craft , 2019 SCC OnLine Del 11943 ] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, or reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. [ Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217: (2010) 1 SCC (Civ) 69 ] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

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16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 ] has observed: (SCC pp. 101-102, para 6)

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“ 6 . The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.”

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In the present case, the learned Rent Controller was

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directed to work out the modalities after the widening of the staircase. The learned Rent Controller had ensured that the tenant occupied the same shop and only the position of the staircase was shifted from one side to another. This was the best possible modality that could have been worked out.

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It was submitted that an opportunity to lead evidence was not provided to the parties. It was rightly submitted on behalf of the landlord that the Hon’ble Supreme Court had not directed that parties to lead the evidence and such an opportunity could not have been granted. The learned Rent Controller was to see whether the space remained the same or had changed, which was considered by the learned Rent Controller; therefore, no interference is required with the order passed by the learned Rent Controller in the exercise of jurisdiction under Article 227 of the Constitution of India.

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In view of the above, the present petition fails and the same is dismissed. Parties through their respective counsel are directed to appear before the learned Rent Controller on 31.07.2024 . Registry is directed to transmit the records of the case, so as to reach the same well before the date fixed.

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(Rakesh Kainthla) Judge

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12^th July, 2024. (Ravinder)

Muni Lal v. Ved Prakash

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Muni Lal v. Ved Prakash

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