A.C. Goyal, J.
1 .This S.B. Civil Second Appeal under Section 100 of the Code of Civil Procedure is preferred by the appellant defendant-tenant (hereinafter referred as the defendant) against the judgment and decree dated 21.11.03, whereby learned Additional District Judge No. 3, Jaipur City, Jaipur, affirmed the judgment and decree of eviction dated 3.5.2001, passed by learned Additional Civil Judge (Junior Division) (East), Jaipur City, Jaipur.
2. The facts in brief giving rise to the present appeal are that a civil suit No. 43/99 for eviction and arrears of rent was instituted by the respondent plaintiff landlord (hereinafter to be referred as the 'plaintiff') on 15.2.99, with the averments that residential house No. 3/19 of 225 sq. yards area situated at Malviya Nagar, Jaipur was let out to the defendant-appellant on monthly rent of Rs. 1000/-, in 1993. The plaintiff claimed eviction on the grounds of default in payment of rent and bonafide and reasonable requirement of the suit premises to start a maternity and child hospital with the averments that the plaintiff was going to retire on 31.3.1999, as a Junior Specialist (Gyne), her son Rajiv Jain had passed M.D. (pediatrics) and was working as a Child Specialist in a private hospital on monthly payment of Rs. 4,000/-, her daughter-in-law had also passed MBBS, DGO and was a gynecologist but was unemployed and her husband had also retired in 1993. The defendant in written statement while admitting the tenancy denied the grounds of eviction. It was also pleaded that the plaintiff wanted to enhance the rent to Rs. 2000/- p.m.
3. The trial court framed eight Issues. Issues Nos. 1 and 2 relating to default in payment of rent, as well as house tax were decided against the plaintiff, Issues Nos. 3, 4 and 5 relating to requirement, comparative hardship and partial eviction were decided in favour of the plaintiff. Issues Nos. 6 and 7 relating to damages claimed by the defendant and plea of payment of rent from July to September 1998 were decided against the defendant and as such suit for eviction was decreed.
4. First Appeal preferred by the defendant was dismissed vide impugned judgment dated 21.11.2002.
5. I have heard learned counsel for the parties. Learned counsel for the defendant submitted that the plaintiff did not come to the Court with clean hands as she concealed the facts of alternate accommodation available to her at Jai Jawan Colony, Jaipur; that the defendant had no other accommodation ; that area of plot in question is only 225 sq. yards which is not sufficient for hospital purposes ; that the land use of the disputed premises was residential and it could not have been used for any commercial purposes; that the plaintiff did not even apply for change of land use and any such change in land use is not permissible in view of the judgment delivered by Division Bench of this Court in Amit Jain v. Rinesh Gupta (1), that Nurshing Home is prohibited in the residential area according to the Master Development Plan-2011 ; that minimum plot area should be 750 sq. mts. for any institutional building according to Jaipur Development Authority Regulations 2000 (in short J.D.A.) and thus the findings of the courts below are perverse and substantial questions of law are involved in the present appeal. It was also submitted that pure question of law can be raised at any stage. Reliance is placed upon Jaipur Development Authority v. Radhey Shyam and Ors. (2), Deena Nath v. Pooran Lal (3), and Rattan Dev v. Pasam Devi (4).
6. Per contra, learned counsel for the plaintiff contended that according to Section 13(1)(h) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act) the landlord has to prove that the premises are required reasonably and bonafide for the use or occupation of himself or his family and there is no classification as to whether such requirement is for residential or commercial purposes. Reliance is placed upon M/s. Maulavi Abdur Rub Firoze Ahmed & Co. v. Jay Krishna Arora (5), that concurrent findings of requirement and comparative hardship are based on evidence; that in view of 74th Amendment in the Constitution of India, Article 243 Z-F was added, which came into force w.e.f. 1st of June 1993 and thus all the activities of the J.D.A. can now only be discharged by concerned Municipality/Municipal Corporation in view of Article 243 W and as per Entry No. 2 contained in Twelfth Schedule under Article 243W land-use and construction of buildings can be regulated only by Municipalities/Corporation and not by the J.D.A. and even no declaration is required to this effect that the J.D.A. is now not competent to deal with the change in land use etc. and as such rules framed under Section 173A of Rajasthan Municipalities Act 1959 (Act, 1959), providing for land use change from residential to commercial or any other purpose would be applicable; that application for permission of change in land use can be made only after possession of the suit house; that there is no bar in constructing a small Nursing Home for convenience of the public; that no such objection was taken before the trial court as well as the first appellate court with regard to application of the Master Plan etc.; that Section 15 of the Act provides for restoration of possession to evicted tenants ; that it is open to the landlord to use his residential building either for residential or for non-residential purposes as the case may be. Reliance is placed upon S. Basha v. D.B. Indiramma (6).
7. Firstly the objection with regard to non-applicability of the Jaipur Development Authority Act, 1982 (in short the Act, 1982) in view of the 74th Amendment in the Constitution of India is taken up. This Act of 1982 was enacted by the Rajasthan State Legislature. It extends to Jaipur Region area and it is not in dispute that the Malviya Nagar area lies in Jaipur Region. The J.D.A. was established under Section 3 of the Act, 1982. Powers and functions of the J.D.A. are contained under Section 16 of the Act, 1982 including the preparation of Master Development Plan and Zonal Development Plans. Section 17 provides that no other authority or person shall undertake any development within the Jaipur Region without permission of the J.D.A. Sections 21 and 22 provide for preparation of Master Development Plan and Zonal Development Plans by the J.D.A. Section 25 provides for subsequent modification of Plans. Sub-section (2-a) of Section 25 provides that the Authority or the Nagar Nigam, Jaipur, or any other body or Committee, as may be authorized by the State Government in this behalf, may, in order to promote plan development of any part of the Jaipur Region in more efficient manner, make such modifications in land use of the plan for such area, as may be specified by the State Government by notification in the Official Gazette. Section 65 of the Act, 1982 makes a provision for charges by the Authority as conversion charges for conversion of the use of land from residential purpose to commercial or any other purpose and such rate and date shall be notified by the State Government. The controversy between the parties centres to the point that as to whether it is the J.D.A. or Nagar Nigam empowered to permit the change in land use in the Jaipur Region. As stated hereinabove, the suit house in situated in Malviya Nagar and the area of Malviya Nagar lies in the Jaipur Region and thus as per relevant provisions of the Act, 1982 as referred hereinabove the J.D.A. is empowered to allow conversion of the use of land from residential purpose to commercial or any other purpose and is also empowered to modify change in land use as shown in Master Development Plan. The J.D.A, is operating in the Jaipur Region under the Act, 1982 and till the Act, 1982 is declared ultra virus, the statement made by learned counsel Sh. Jain cannot be accepted that the Jaipur Nagar Nigam is empowered to permit the change in land use in Malviya Nagar area. Thus the first objection raised by learned counsel for the respondent goes away.
8. I have given my thoughtful consideration to the submissions made by learned counsel for the defendant as well as the plaintiff and am of the considered view that concurrent findings of facts arrived at by the courts below are in no way perverse and no substantial question of law arises in this second appeal. The courts below have taken into consideration the entire evidence available on the record including the alternative accommodation available to the plaintiff at Jai Jawan Colony, Jaipur and the fact that the defendant also had no other accommodation of his own at Jaipur and have given cogent reasons to arrive at that the plaintiff's requirement for the suit house is both reasonable and bonafide. With regard to comparative hardship and partial eviction both the courts below came to the concurrent findings. Keeping in view the entire facts and circumstances, I find no ground to interfere with the said findings. It was observed by the First Appellate Court that the defendant along with his father resides in the suit house and thus for such a small family he can have other house on rent and mere paying excess rent cannot be taken as greater hardship to the tenant in comparison to the landlord, while on the other hand the plaintiff, her son and her daughter-in-law, all three are doctors and thus their requirement is more and thus greater hardship would be caused to the plaintiff in case the decree of eviction is not passed and further keeping in view the area of the suit house, it was rightly held that partial eviction is also not possible. In Deena Nath's case (supra), the Hon'ble Supreme Court while dealing with the provisions of eviction under the M.P. Accommodation Control Act, 1961, held that since the legislative intent is made clear by making provision that the landlord has no other suitable accommodation of his own in the city or town concerned, it was the duty of the courts to consider the requirement of the landlord keeping in mind the statutory mandate. In the instant case, both the courts below have considered the alternative accommodation available with the plaintiff and came to this conclusion that the suit house is more suitable for running a hospital and the alternative accommodation available to the plaintiff at Jai Jawan Colony would be used by the plaintiff for residential purpose, as the plaintiff along with her husband is residing in a rented house presently and the construction of the house at Jai Jawan Colony was completed during the pendency of the first appeal. Thus, no legal provision was overlooked by the courts below as held by the Hon'ble Supreme Court in Deena Nath's case (supra). In Ratan Dev's case (supra), the plaintiff-landlord was not examined but that fact was not taken into consideration by the first appellate court, therefore, the appeal was sent to the first appellate court for rehearing and afresh decision. Learned counsel for the defendant referred Master Development Plan-2011. At S. No. 12 the provisions with regard to Mixed Land Use are given including nursing home and certain activities are not permitted in residential premises. Learned counsel for the defendant also referred Schedule 'Da' Tippani 'Ka' contained in J.D.A. Regulations 2000 which provide that area of any plot meant for institutional building in any scheme shall be not less than 750 sq. mtrs. According to learned counsel for the defendant change in land use is not permissible by the J.D.A. in view of the above provisions and thus it is a substantial question of law. But this submission cannot be accepted in view of the provisions of Section 13(1) (h) of the Act which provide only that the premises are required reasonably and bonafide by the landlord for the use or occupation of himself or his family. A bare perusal of these provisions goes to show that the landlord has only to prove that the premises are required reasonably and bonafide for the use or occupation of himself or his family and there is no classification as to whether such requirement is for residential or commercial purpose. It was held by the Hon'ble Supreme Court In M/s Maulavi Abdur Rub Firoze Ahmed & Co.'s case (supra), that the law does not require that the landlord must need the premises for his own occupation only for the purpose to which they were being put by the tenant. It may well be that a tenant cannot put the dismissed premises to any other use. But there is no bar in law in the way of the landlord requiring the business premises for his residential occupation and vice Versa, provided the premises are capable of being put to different uses. While taking the similar view the Andhra Pradesh High Court in S. Basha's case (supra), held that it is open to the landlord to use his residential building either for residential purpose or for a non residential purpose as the case may be and it is not necessary that the requirement should only be for the residential purpose. It is significant to refer the provisions of Section 15 of the Act as under: -
'Restoration of possession to evicted tenant:- Where a decree for eviction of any premises has been passed by the court against a tenant on any, of the grounds specified in Clause (h) of Sub-section (1) of Section 13 and the landlord fails to utilise the premises the use of purpose for which such eviction shall have been decreed within two months of obtaining possession thereof, or, in the case of premises let out for residential purposes at any time within one year and in the case of premises let out for commercial or business purposes, at any time within five years of obtaining possession, lets the whole or any part thereof to any person than the evicted tenant the court which passed the decree may, on the application of the evicted tenant place him in possession of the premises.'
Thus, it is evident from Section 15 of the Act that in case the landlord fails to utilise the premises for the purpose eviction was ordered within the prescribed period, the possession of the suit property may be restored to the tenant.
9. The objections with regard to prohibition for establishing a nursing home in Malviya Nagar which is a residential area according to Master Development Plan and minimum plot size required 750 sq. mtrs. for establishing a nursing home as per J.D.A. Regulations, 2000 and non applying for change in land use by the plaintiff are in no way can be termed as substantial questions of law in the instant case. The judgment of this Court delivered in Amit Jain's case (supra), was in a public interest litigation and certain directions were given to J.D.A. for compliance with regard to change of land use. It was nowhere held vide his judgment that J.D.A. has no power to permit change of land use from residential purpose to commercial or any other purpose. No doubt, pure question of law can be raised at any stage of the case as held by the Hon'ble Supreme Court in Jaipur Development Authority's case (supra). But in the instant case, no such pure question of law arises, although it is correct that no such objection with regard to Master Development Plan and minimum 750 sq. mtrs. requirement for establishing a nursing home as referred hereinabove were raised on behalf of the defendant before the courts below.
10. As already discussed hereinabove that Section 25 (2-a) and 65 of the Act, 1982 respectively provide for modifications in land use as shown in the Master Development Plan and Zonal Development Plans for conversion of the use of land from residential to commercial or any other purpose, meaning thereby that on an application made by the plaintiff the J.D.A, may grant permission for conversion of the use of land from residential to hospital purpose and may also modify the use of land as shown in Master Plan. This contention made by learned counsel for the plaintiff appears to be justified that the plaintiff would apply only after he gets the vacant possession of the suit house and there is no purpose making such prayer in advance i.e. before getting the vacant possession of the suit house. Consequently, this second appeal along with stay application is dismissed at the admission stage.