Delhi District Court
Sh. Yashpal Singh vs Sh. Rakesh Kumar @ Raju on 23 July, 2011
IN THE COURT OF SH BALWANT RAI BANSAL
ADDITIONAL RENT CONTROLLER (SOUTH),
SAKET COURTS, NEW DELHI
EVICTION PETITION NO. E339/09
1. Sh. Yashpal Singh
S/o Late S. Raghbir Singh
R/o CII, 67, Lajpat Nagar, New Delhi
2. Sh. Bhupinder Singh
S/o Late S. Raghbir Singh
R/o CII/5354, Lajpat Nagar, New Delhi
3. Sh. Amarjit Singh
S/o Late S. Raghbir Singh
R/o 235C, PocketC,
Sidharth Extn., New Delhi 110014
...... Petitioners.
Versus
Sh. Rakesh Kumar @ Raju
S/o Late Sh. Basant Ram
R/o CII/91, Lajpat Nagar, New Delhi
....... Respondent.
Petition u/s 14(1) (f) & (g) of Delhi Rent Control Act 1958
Date of Institution of the case : 19.02.2005
Date of Judgment reserved : 08.06.2011
Date of Judgment pronounced : 23.07.2011
Eviction Petition No. E339/09 Page 1 of 39
JUDGMENT:
1. Vide this judgment I shall dispose of an eviction petition filed by the petitioners u/s 14 (1) (f) & (g) of DRC Act against the respondent.
2. Brief facts as stated in the petition are that petitioners are the owners/landlords of the property bearing No. C53 & 54, Lajpat Nagar II, New Delhi and the respondent is in occupation of the premises measuring 150 sq. ft. (7 ½' x 20') approximately with pucca roof and portion having an area of 112 sq.ft (7 ½' x 15') in the front court yard with asbestos sheets in front of the room in the aforesaid property. It is stated that the aforesaid property is Govt. built house which was originally allotted to father of the petitioners namely S. Raghbir Singh. After the death of S. Raghbir Singh on 07.03.1971, the said property was mutated in the name of his widow Smt. Kulwant Kaur and sons namely Sh. Joginder Singh and Sh. Amarjit Singh as per conveyance and lease deed dated 04.12.1971. It is further stated that Smt. Kulwant Kaur died on 24.07.2003 and, thereafter, the respondent started paying the rent to the petitioners against the rent receipts issued by them. It is further stated that father of the respondent Sh. Basant Ram was the original tenant in the suit premises who died about five/six years back and since then the respondent being the son of Sh. Basant Ram Eviction Petition No. E339/09 Page 2 of 39 continues to be in occupation of the suit premises. It is further averred that the property of which the suit premises forms a part is an old property more than 46 years old and is in very dilapidated condition. It has become unsafe and unfit for human habitation and there is every apprehension of loss of life of its occupants. There is no other alternative except to demolish the existing building and erect a new building in its place, which cannot be carried out without the premises being vacated by the respondent. It is further averred that proposed reconstruction will not alter nor change the purpose for which the premises were let and same would be in the public interest. It is further stated that the petitioners are carrying on their respective business and have sufficient means to spend on the construction/addition/alterations etc. Hence, the present petition.
3. The respondent has contested the petition by filing the written statement contending that the present petition has been filed with malafide intention to dislodge the respondent under the garb of re building/reconstruction of the property who is running the business of restaurant under the name and style of Multani Dhaba which was earlier being run by his deceased father since 1965. It is stated that the premises in occupation of the petitioners bearing No. IIC/53, Lajpat Eviction Petition No. E339/09 Page 3 of 39 Nagar, New Delhi are not in dangerous condition or otherwise unsafe. In fact, single storey quarter was allotted by the Ministry of Rehabilitation and Smt. Kulwant Kaur, mother of the petitioners had built 2 ½ storey building unauthorizedly without getting the plan sanctioned from L&DO or MCD. It is further stated that the property in question occupied by the respondent is situated on the main road of Lajpat Nagar Market, and, therefore, the greed of the petitioners has become very clear who have been pressing hard for enhancement of rent. It is further stated that the petitioners have not indicated in the eviction petition as to how much amount shall be required for the construction of the ground and first floors and that within what period the construction shall be completed and have further failed to clarify as to within what period the ground floor portion shall be constructed and completed including the tenanted portion. It is further stated that the petitioners have also failed to declare about the ready cash in their hands which is required for the reconstruction/rebuilding of the premises No. IIC/5354, Lajpat Nagar, New Delhi including the tenanted portion. It has also not been disclosed by the petitioner that as to how they will manage the finances and so far no loan has been got sanctioned and further so far no plan has either been got sanctioned from the L&DO or MCD and, therefore, the Eviction Petition No. E339/09 Page 4 of 39 petitioners cannot be granted permission to reconstruct the property.
4. It is further stated that Sh. Basant Ram, the father of the respondent had occupied the tenanted premises sometime in the year 1965 and had started the restaurant/dhaba under the name and style of Multani Dhaba and he has also been making repairs in the tenanted shop and covered verandah at his own cost. Similarly, the tenanted premises are being repaired, whitewashed and painted from time to time by the respondent in order to make the tenanted premises habitable and presentable and as such the entire premises bearing No. IIC/5354, Lajpat Nagar, New Delhi including the tenanted premises are not in a dilapidated or in dangerous condition. The petitioner no. 2 has been living along with his family in the said premises on the ground floor as well as on the first and second floor of the said premises for the past several years which have been renovated/repaired from time to time and no part of the premises occupied by the petitioner no. 2 is dangerous or is likely to fall. The other contents of the petition are stated to be wrong and denied and the respondent has prayed for dismissal of the petition.
5. The petitioner has filed the replication to the written statement in which averments made in the petition have been reiterated and re affirmed and those made in the written statement have been Eviction Petition No. E339/09 Page 5 of 39 controverted.
6. In order to prove their case, the petitioners examined Sh. Amarjit Singh, who is petitioner no. 3 as PW1 and led his evidence by way of affidavit which is Ex. P1 in which he has reiterated the averments made in the petition and replication and has placed on record various documents in support of his contention. Certified copy of Deed of Conveyance dated 04.12.1971 is Ex. PW1/A and lease deed dated 04.12.1971 is Ex. PW1/B, death certificate of Smt. Kulwant Kaur is Ex. PW1/1, photocopy of counter foils of rent receipts issued to the respondent are Mark X2 to X8, original deposit receipt no. 361079 dated 01.02.2005 issued by MCD showing that building plans were submitted to MCD is Ex. PW1/9. Photographs showing the suit property, tenanted premises are Ex. PW1/10 to Ex. PW1/19 and their negatives are Ex. PW1/20, house tax receipt of the suit property is Ex. PW1/21, receipt dated 09.05.2005 of Rs. 25000/ is Ex. PW1/22.
7. The letter issued by MCD in response to the plans submitted for sanction which has been mentioned as Ex. PW1/23 in the affidavit has already been exhibited as Ex. PW3/A. Inspection/valuation report of Sh. B.K. Chauhan which has been mentioned as Ex. PW1/24 has been exhibited as Ex. PW7/2 and site plan filed along with inspection report Eviction Petition No. E339/09 Page 6 of 39 is Ex. PW1/25, copy of site plan submitted by the petitioners for seeking sanction of the building plans is Ex. PW1/26, second inspection report dated 14.12.2005 by Sh. B.K. Chauhan showing the period to be taken for carrying out the repairs which has been mentioned as Ex. PW1/27 has already been exhibited as Ex. PW7/3. Ex. PW1/28 is the probate in respect of the Will left by deceased mother of the petitioners. Ex. PW1/29 is the acknowledgment issued by L&DO office for the substitution application. Ex.PW1/30 is the copy of application submitted to the L&DO office.
8. Though the petitioners have also filed the evidence by way of affidavit of petitioner no. 2 Sh. Yashpal Singh as PW2, but the said witness was not examined by the petitioners.
9. The petitioners have also examined Sh. Vijay Kumar Singla, LIC of India, Branch South Extn. Part - II, New Delhi as PW3, who has brought the record of three policies on the life of Sh. Amarjeet Singh.
10. Next witness is Sh. Krishan Kaushik from MCD, Building Department, Lajpat Nagar, Delhi as PW4, who has placed on record the original letter dated 14.05.2005 issued by MCD seeking information from the owner as Ex. PW4/1
11. Sh. Rakesh Ahuja, Manager, Corporation Bank, Lajpat NagarII, Eviction Petition No. E339/09 Page 7 of 39 New Delhi has been examined as PW5, who has placed on record the statement of SB A/c No. 324 and statement of Current Account No. CBCA 97 in the name of Sh. Amarjeet Singh as Ex. PW5/1 and Ex. PW5/2 respectively.
12. Sh. S.R. Singh. Asstt. From L & DO office, Nirman Bhawan, New Delhi is PW6, who has also placed on record the substitution letter dated 30.10.2006 as Ex. PW6/1 by which the name of Sh. Amarjeet Singh has been substituted in place of Smt. Kulwant Kaur, Amarjeet Singh and Joginder Singh, the earlier owners of the suit property.
13. The last witness examined by the petitioners is Sh. Bal Kishan Chauhan, Architect/Valuer as PW7 who has placed on record the site plan prepared by him as Ex. PW7/1, inspection report as Ex. PW7/2 and report dated 14.12.2005 as Ex. PW7/3.
14. On the other hand, respondent examined himself as RW1 and filed his evidence by way of affidavit which is Ex. RW1/A. In the examination in chief he deposed more or less in terms of the averments made in the written statement.
15. The respondent has also examined Ms. Neelam Saxena, UDC, L & DO, Nirman Bhawan, New Delhi who has brought the file pertaining to the property bearing No. CII/5354, Lajpat Nagar, New Delhi. She Eviction Petition No. E339/09 Page 8 of 39 has deposed that the said property is lease hold property and Sh. Amarjit Singh had applied for NOC in respect of suit property and his application dated 28.09.2005 is Ex. PW1/30 which is still pending disposal and no so far NOC has not been issued.
16. Another witness examined by the respondent as RW2 is Sh. Krishan Kaushik, Record Keeper, Central Zone, MCD, Delhi who has deposed that no NOC has been filed by the petitioner as demanded by the MCD vide letter Ex. PW1/23 and the application of the petitioner for sanctioning the plan was rejected on 19.07.2005 by the MCD. He has placed on record the copy of letter dated 19.07.2005 signed by Sh. Rakesh Bansal, the then AE and Sh. R.K. Sharma, the then XEN as Ex. RW2/1 and the copy of letter dated 26.07.2005 by which rejection was conveyed to the petitioners is Ex. RW2/2.
17. The respondent has also examined Sh. Kamal Chawla, Civil Engineer as RW2 who has placed his report dated 25.02.2008 as Ex. RW2/A. He has also placed on record his report after inspection of the suit property which is Ex. RW2/B, photographs taken at the spot as Ex. RW2/C1 to C17 and sketch plan of the site which are Ex. RW2/D to D3.
18. I have heard the Ld. Counsel for the parties. I have also gone Eviction Petition No. E339/09 Page 9 of 39 through the written submissions filed by both the parties and perused the record carefully.
19. The present petition has been filed by the petitioners u/s 14 (1) (f) and (g) of DRC Act. U/s 14 (1) (f) of DRC Act, the grounds of eviction is available to the landlord when the premises have become unsafe or unfit for human habitation and are required bonafide by the landlord for carrying out repairs which cannot be carried out without the premises being vacated. The petitioners in the present petition are also seeking eviction of the respondent u/s 14 (1) (g) of DRC Act in which the premises are required bona fide by the landlord for the purpose of building or rebuilding or making thereto any substantial additions or alterations which cannot be carried out without the premises being vacated.
20. As such, in the present petition, the petitioners requires the premises in question bonafide for the purpose of rebuilding and re construction in place of the existing construction after demolishing the entire structure, which is also evident from the averments made in the petition, the grounds of eviction u/s 14 (1) (f) of DRC Act has become redundant and same has also been fairly conceded by the Ld. Counsel for the petitioner.
Eviction Petition No. E339/09 Page 10 of 39
21. Now, in order to prove a case u/s 14 (1) (g) of DRC Act, the following ingredients are required to be fulfilled :
(i) the premises must be required bonafide by the landlord for the purpose of building or rebuilding or making thereto any substantial additions or alterations.
(ii) the court must be satisfied that such building or rebuilding or additions or alterations cannot be carried out without premises being vacated.
22. Sub section 8 of section 14 is also relevant which follows:
" No order for the recovery of possession of any premises shall be made on the ground specified in clause (g) of the proviso sub section (1), unless the Controller is satisfied that the proposed reconstruction will not radically alter the purpose for which the premises were let or that such ramedical alteration is in the public interest, and that the plans estimates of such reconstruction have been properly prepared and that necessary funds for the purpose are available with the landlord."
23. The case of the petitioners is that the property of which the suit premises forms a part have become unsafe and unfit for human habitation and are required bonafide by the petitioners for carrying out repairs which cannot be carried out without the premises being vacated. Eviction Petition No. E339/09 Page 11 of 39 It is also case of the petitioners that they have already submitted the building plans for erection of new building in place of the existing construction which is more than 46 years old and is no more safe to live under it and there is no other alternative but to erect a new building in its place and proposed reconstruction will not alter nor change the purpose for which the premises were let out and same would also be in public interest. It is also case of the petitioners that they have sufficient funds for reconstruction.
24. There is no dispute so far the relationship of landlord and tenant between the parties is concerned. However, the respondent has come up with a plea in the written statement that building in question is not in dilapidated condition and otherwise also no plan has been got sanctioned by the petitioners from the L&DO or MCD. The present petition has been filed with malafide intention to dislodge the respondent under the garb of rebuilding/reconstruction of the property as the the property in question is situated on the main road of Lajpat Nagar Market, and, therefore, the petitioners are pressing hard for enhancement of rent. It is also contended that the petitioners have not indicated as to how much amount shall be required for the construction of the ground and first floors and that within what period the Eviction Petition No. E339/09 Page 12 of 39 construction shall be completed including the tenanted portion. It is further contended that the petitioners have not given any such undertaking in written that they are ready and prepared to return similar area occupied by the respondent after reconstruction of the building in question.
25. In order to prove their case that the building in question is in dilapidated condition and is required bonafide for reconstruction, the petitioners have examined petitioner no. 3 Sh. Amarjit Singh as PW1 who has deposed in his examinationinchief that roof of the ground floor are in very dilapidated and in dangerous condition and has already become unsafe. He has further deposed that the existing construction continues to be unsafe and insecure and there is every apprehension of loss of life of its occupant and there is no other alternative but to erect a new building in its place. He has further deposed that the petitioners have already submitted the building plans for construction of new building in place of existing construction which is more than 46 years old and the proposed reconstruction cannot be carried out without the premises being vacated by the respondent. He has further deposed that proposed reconstruction will not change the purpose of which the premises was let out and same would be in public interest. Eviction Petition No. E339/09 Page 13 of 39
26. In the crossexamination, PW1 has stated that Basant Ram, father of Sh. Rakesh Kumar respondent was running a Dhaba in the property in question. He admitted that three shops were let out to various tenants from time to time. Voluntarily, he stated that after eviction of the tenants, the same portions have never been let out again. He admitted that the three shops which were earlier occupied by Sh. Tasdik Ahmend and Harbhajan Singh as well as Sh. Basant Ram which were part of the property in question are facing the main road. Voluntarily, he stated that after getting the property vacated from Taksid Ahmed and Harbhajan Singh, the said two shops have not been let out. He admitted that in the site plan Ex. PW1/25, the third portion mark C bounded as G, X3 and B to X4 was occupied earlier by Sh. Harbhajan Singh who was running AC repair shop however, after his eviction the same has not been let out to anyone. He further admitted that the plan Ex. PW1/26 submitted to the MCD for reconstruction of the building after demolition of the existing building has been applied for residential building and there is no space shown for the shops particularly with regard to the shop occupied by Rakesh Kumar respondent.
27. PW1 has further stated in his crossexamination that on enquiry from MCD, he came to know through their letter dated 26.07.2005 that Eviction Petition No. E339/09 Page 14 of 39 the plan applied for reconstruction has been rejected and accordingly he had applied for reconstruction but he does not remember the date when he had moved the second application seeking permission for re construction. He admitted that his first application was rejected for want of NOC from the Office of L&DO for construction of the property. He admitted that it is a lease hold property and he has not converted the property into free hold. He further admitted that the office of L&DO has not issued the NOC for reconstruction till date. Voluntarily, he stated that they had asked the property mutated. He further categorically admitted that as on today neither the NOC has been issued by the office of L&DO nor he has been given permission by the MCD for reconstruction. He further admitted that MCD has not declared the suit property as dangerous and he has not received any notice from the L&DO or from the MCD declaring the suit property as dangerous. He stated that neither he nor his brother Yashpal Singh is residing in the suit property. He further stated that he cannot tell the year when the first floor and the second floor was constructed but the entire building is 45 years old. He further stated that photographs Ex. CW1/10 and 11 show the portion of the ground floor and the cracks on the walls and cracked chajja are additional construction. He further stated that the last Eviction Petition No. E339/09 Page 15 of 39 construction in the suit property was carried in the year 2000 roughly. He denied the suggestion that the repairs of the entire house were also carried out at that time. He admitted that cracks pertains to balcony of the mezzanine floor which is marked Z1 in Ex. PW1/12. He denied the suggestion that first floor is constructed over the said chajja. He stated stated that Ex. PW1/13 is the roof on the room on the ground floor vacated by Harbhajan Singh, the tenant and same is being used as a room. He further stated that the said room was used by his brother Sh. Joginder Singh. Voluntarily, he stated that since it is in dilapidated condition, at present no one is using it due to its dilapidated condition. He denied the suggestion that there is no damage/seepage in the room or any sign of dilapidation in the room showing in photograph Ex. PW1/13. He further denied the suggestion that photograph Ex. PW1/13 does not depict any seepage but only shows spider webs. He admitted that photographs shown in Ex. PW1/13 to 19 pertain to the ceilings of the rooms on the ground floor of the suit property. He denied the suggestion that suit property is in perfect condition and does not require any demolition or construction. He admitted that he has not received the permission from MCD after refiling of his application for same.
28. The petitioners have also examined Sh. Bal Kishan Chauhan as Eviction Petition No. E339/09 Page 16 of 39 PW7 who is an Architect and and has deposed in his evidence that he had personally inspected the suit premises and the site plan was prepared by him which is correct according to the site and same is Ex. PW7/1 and his inspection report is Ex. PW7/2. He further deposed that construction proposed to be made in the property is likely to take about three months time and the report prepared by him in this regard dated 14.12.2005 is Ex. PW7/3.
29. In the crossexamination of PW7, nothing material could be extracted. He categorically stated that he had inspected the premises personally and, thereafter, prepared the sketch. He further stated that he had seen three persons at the time of his inspection who were servants working in the Dhaba. He further stated that the portion A D F E was covered partly by sheets and partly pucca and the portion ADFE is covered by asbestos sheets and back portion from DX1 to FX2 was pucca construction. He further stated that the measurement from A to X1 is 35 feet in length and width of the Multani Dhaba was 8 feet. He denied the suggestion that portion marked as G and C in Ex. PW7/1 are being used as shop. He denied the suggestion that the portion mark A to X1 and E to X2 in occupation of tenant is not in damaged condition. He stated that he has also mentioned that the portion under the occupation Eviction Petition No. E339/09 Page 17 of 39 of Rakesh Kumar which is used as Dhaba is also in dangerous condition. He further stated that the nature and extent of damages in premises are mentioned in the report.
30. From the aforesaid evidence of the PWs it has emerged out that the claim of the petitioners is that the suit property is in dilapidated and dangerous condition and same is required bonafide by the petitioners for rebuilding/reconstruction which cannot be done without the premises being vacated. As per inspection report Ex. PW7/2 prepared by PW7 Sh. Bal Kishan Chauhan, Architect, it is stated that property bearing No. IIC5354, Lajpat NagarII, New Delhi is an old property which is 45 years old built with brick work in cement mortar supported with spread foundation with bricks in mud mortar. It is also stated that major and minor cracks have appeared in the walls and roofing/ceiling, there is heavy dampness and seepage in the roof slab the cement plaster of walls is chipping off due to seepage and old construction, the electric and sanitary fittings are totally damaged. It is also stated that the floor level of the property has gone down (1 feet down) due to uplifting the road level and hence rainy/dirty water used to enter in the ground floor premises thereby causing seepage and nuisance and foul smell in the property. The report Ex. PW7/2 also depicts that the roof/ceiling of the Eviction Petition No. E339/09 Page 18 of 39 ground floor of the property including the portion under the occupation of Rakesh Kumar who is using it as Dhaba is also in dangerous and dilapidated condition. A B C D is the portion of back court yard of the property and BCGH and A D E F are covered with asbestos sheets. The roof/ceiling of the rest portion and the ground floor is RBC which is in dangerous and dilapidated condition.
31. The aforesaid inspection report Ex. PW7/2 prepared by PW7 Sh. B.K. Chauhan. Architect has remained unshaken. In the cross examination, PW7 has categorically stated that the entire property has been noticed by him which is in damaged condition and he has also mentioned damaged condition in his report. Though, a suggestion was put to the witness that the portion mark A to X1 and E to X2 in occupation of tenant is not in damaged condition, which was denied by the witness. Meaning thereby, the respondent himself admits that except the tenanted portion, the remaining property is in dilapidated condition.
32. It is also not in dispute that major portion of the suit property is covered with asbestos sheets. In this regard, respondent himself has categorically admitted in his crossexamination that the entire house is built up on area of 200 sq. yards and he is in possession of about 300 sq. feet area of the suit property and approximately half of which is covered Eviction Petition No. E339/09 Page 19 of 39 by asbestos sheets. He further admitted that roof of the shops including his portion have not been repaired or replaced since 1965 till date. He stated that he cannot say if the property in question is a Govt. built accommodation. He further stated that he is not aware that the walls adjacent to his tenanted portion have been constructed using mud. He categorically admitted that suit premises is constructed on brick pillars and there are no steel columns. He further stated that no beam is visible on the roof in his tenanted premises and he is not aware about the other portions.
33. Though, in order to rebut the case of the petitioners that the property in question is not in dilapidated and dangerous condition and same is in sound condition, the respondent has examined Sh. Kamal Chawla, Civil Engineer as RW2 who inspected the premises on 14.02.2008 and filed his report dated 25.02.2008 which is Ex. RW2/A. In his report Ex. RW2/A, Sh. Kamal Chawla stated that he was allowed to enter one room on the ground floor where the plaster was peeling off from walls and ceiling as a result of dampness since the room is not being in use for the past some years. In the crossexamination RW2 Sh. Kamal Chawla stated that he had reached at site between 4 5 p.m. on 14.02.2008 and he did not record any proceedings. He further stated that Eviction Petition No. E339/09 Page 20 of 39 he has seen the photograph Ex. RW2/X2, X3 and X4 of the suit property and seepage etc, condition of the building is shown therein. He further stated that he did not enter the suit premises in occupation of the respondent in the suit property. He further stated that he did not inspect the portion in occupation of Rakesh Kumar and he does not know as to how much portion has the ceiling and how much portion is covered with asbestos sheet. He further stated that he did not ask Rakesh Kumar to allow him to inspect his portion in the suit property. He further stated that he did not inspect the first floor of the suit property.
34. From the aforesaid evidence of RW2 Sh. Kamal Chawla, it is evident that he did not examine the premises under the occupation of the respondent and hence, his report dated 25.02.2008 Ex. RW2/A is of no worth. However, this witness was allowed to inspect the premises again and he inspected the property in question on 14.10.2009 and filed his report dated 03.11.2009 as Ex. RW2/B, photographs taken at the spot as Ex. RW2/C1 to C17 and sketch plan of the site as Ex. RW2/D1 to D3. Thereafter, he was again examined on 03.11.2009. In his report dated 03.11.2009 Ex. RW2/B, he stated that entrance/corridor of the premises at ground floor were found in good condition except cobwebs, the walls of the rooms on right hand side on the ground floor were Eviction Petition No. E339/09 Page 21 of 39 found in good condition and same are load bearing walls . There were no cracks in ceiling and no signs of seepage or traces of water on floor. At one point in ceiling in one of the corners of room, seepage was seen which is due to lack of maintenance . He has further stated in his report that walls of the room on the first floor were found without any defect and same are capable of carrying load and mud mortar is used in brickwork. He has further mentioned that in the hall type room in front, parts of plaster were found lying on floor, bars were found dangling from ceiling and the said condition of the rooms is due to lack of maintenance or negligence on the part of the occupants. The walls and ceiling of the room on left of the hall appear to be in good shape. He has mentioned that he had peeled out some plaster from walls to check quality of plaster of walls and he is of the opinion that plaster used in walls is in cement mortar which is in good condition and mortar used in brickwork is mud mortar. He also checked the quality of bricks and same is of the very good quality. He has also mentioned that walls of room are competent to bear load and there was no sign of any seepage on floors or walls on account of water logging. He has further mentioned that condition of the room under the possession of Sh. Rakesh Kumar is better than the others. After inspecting the whole Eviction Petition No. E339/09 Page 22 of 39 premises, he is of the opinion that the condition of the premises No. C53 & 54, Lajpat Nagar II is in sound condition structurally and leaving apart roof slab of one hall on ground floor, the whole building is safe. As per his report, it can be structurally repaired, seepage can be rectified by proper water proofing treatment and can be made habitable.
35. However, in the crossexamination, RW2 Sh. Kamal Chawla has categorically admitted that the plans Ex. RW2/D1 to D3 are not according to scale. He further admitted that he has not given the dimension of any of the portion of the building. He further categorically admitted that he has prepared the report Ex. RW2/B today only. He also admitted that the photograph Ex. RW2/X22 is showing the level of ground floor of the suit property and level of basement of the adjoining property. He further admitted that because of MCD footpath, the rain water cannot go inside the suit property from front side. He stated that height of the footpath inside the suit premises shown in Ex. RW2/X22 is about 6 inches and same footpath is running in front of the adjoining building in front of the basement in occupation of the respondent. He further admitted that two wide steps appearing on Ex. RW2/X22 of the adjoining building are on the footpath. He also admitted that some portion of the tenanted premises in occupation of the respondent is Eviction Petition No. E339/09 Page 23 of 39 covered with asbestos sheet and some portion is covered with slabs but he cannot give the dimensions, approximate ratio of these portions nor he has taken the measurement of the same. He further stated that the wall marked as R1 to R11 is made of mud mortar. He further stated that on his inspection , he presumed that the entire walls on ground floor of the building were of mud mortar except wall R12 to R13. He admitted that the house is 45 years old. He denied the suggestion that all the walls are of 4.5 inches thickness. However, he admitted that he had not checked all the walls. He stated that he has not checked, therefore he cannot tell whether the walls on which the tiles are affixed are of 4.5 inches or not.
36. From the aforesaid testimony of RW2 Sh. Kamal Chawla, it has come on record that at first instance he submitted his inspection report Ex. RW2/A without inspecting the entire suit property. Again, when he inspected the suit property, he did not prepare his inspection report simultaneously. He had inspected the suit property on 14.10.2009 and report was prepared and filed by him on the date of his examination in the court on 03.11.2009. Even the plans submitted by him Ex. RWD1 to D3 are not according to scale and he has not given the dimensions of any of the portion of the building. This witness has also admitted in his Eviction Petition No. E339/09 Page 24 of 39 crossexamination that entire walls of the ground floor are made of mud mortar which substantiates the report of PW7 Sh. Bal Kishan Chauhan examined by the petitioners.
37. Moreover, a perusal of the photographs Ex. PW1/10 to Ex. PW1/19 shows that there are seepage in the walls as well on the roofs. It has also been admitted by the respondent in his crossexamination that suit premises is constructed on brick pillars and there are no steel columns. It has also come on record that walls has been constructed using mud mortar and the roof of the shops including the shop under the possession of the respondent have not been repaired or replaced since 1965 till date. It is also evident from the photograph Ex. RW2/X22 that adjacent property to the suit property has been reconstructed and the basement level of the adjoining property has come to the level of ground floor of the suit property which is not in dispute. The respondent has also admitted in his crossexamination that adjoining property No. 48 has been reconstructed and presently he is running his dhaba in the basement portion of the said property and the photographs Ex. RW1/P1 to P3 show the tenanted premises in the suit property as well as in the property no. 48. He further admitted that basement of adjoining property No. 48 and the ground floor of suit Eviction Petition No. E339/09 Page 25 of 39 property are on the same level. A bare perusal of the photographs Ex. RW1/P1 to P3 shows basement level of the adjoining property has been raised. The respondent has also admitted that the difference between the level of two properties are about 3 or 4 feet. It has also come on record that because of MCD footpath, the rain water cannot go inside the suit property from front side as admitted by RW2 Sh. Kamal Chawala and is also evident from the photograph Ex. RW2/X22.
38. In the totality of aforesaid evidence on record, it cannot be said that the suit property is not in dilapidated condition as alleged by the respondent in the written statement. Moreover, in order to succeed in a petition u/s 14 (1) (g) of DRC Act, the petitioner is not required to prove that the property is in dilapidated condition. As clause (g) of section 14 (1) of DRC Act does not have any reference to the condition of the building as such and what is necessary under the clause is that the landlord must satisfy the court that he reasonably and bonafide requires the premises for the immediate purpose of demolishing it and the demolition is for the purpose of erecting a new building in the place of old one. It has been held in Kailash Kumar Vs. B.S. Raijada 1972 RCR (Rent) 433 by the Hon'ble High Court of Delhi that, "Where the landlord planned to demolish his old style one storied house to improve Eviction Petition No. E339/09 Page 26 of 39 and develop his property so as to make it more profitable to himself, he need not prove that premises were old, unsafe or unfit for human use. Petition for eviction under clause (g) of section 14 (1) of the Delhi Rent Control Act, 1958 should be considered as concerned only with the requirement of the landlord for rebuilding the premises being bonafide. It cannot be taken to be concerned with the condition of the premises as that is subject matter of clause (f) of section 14 (1) of the Rent Act"
39. So far the bonafide requirement of the petitioners is concerned, it has come on record that after getting the shops vacated from two tenants Taksid Ahmed and Harbhajan Singh, the said two shops have not been let out again by the petitioners. In this regard, the respondent has also admitted in his crossexamination that the petitioner has not let out the adjoining two shops in the property to anyone after the same were vacated by the earlier tenants. It has also come on record that major portion of the premises in question is lying vacant and same is not being put to use due to its dilapidated condition which is also visible from the photographs proved on record. It has also come on record that adjoining property has been reconstructed and the basement level of the adjoining property has been raised to the level of the ground floor of the suit property. Therefore, it would be in public interest also that premises in Eviction Petition No. E339/09 Page 27 of 39 question be also rebuilt/reconstructed and it cannot be said that the petitioners have any malafide intention if they want the premises to be vacated for the purposes of rebuilding/reconstruction.
40. Though, the respondent has taken a plea in the written statement that present petition has been filed with malafide intention to dislodge the respondent under the garb of rebuilding/reconstruction as the property in question occupied by the respondent is situated on the main road of Lajpat Nagar Market, and, therefore, out of the greed, the petitioners are pressing hard to enhance the rentals. As discussed herein above, despite getting the vacant possession of two adjoining shops to the tenanted premises from the earlier tenants, the petitioners have not let out again the said two shops which has also admitted by the respondent in his crossexamination. Therefore, there is no merit in the contention of the respondent that the petitioners want to dispossess the respondent from the suit premises under the garb of re building/reconstruction of the property in order to fetch higher rent.
41. Moreover, section 20 of DRC Act takes care of this apprehension of the respondent. Section 20 of DRC Act provides that if after the tenant has delivered possession on or before the date specified in the order of the Controller, the landlord fails to commence the work of Eviction Petition No. E339/09 Page 28 of 39 building or rebuilding within one month of the specified date, or fails to place the tenant in occupation of the premises, the Controller may on an application by the tenant within such time as may be prescribed, order the landlord to place the tenant in occupation of the premises or part thereof or to pay to the tenant such compensation as the Controller thinks fit.
42. In the written statement, the respondent has also raised a plea that the petitioners have not indicated in the eviction petition as to how much amount shall be required for the construction of the ground and first floors and further that petitioners have failed to declare about the ready cash in their hands which is required for the reconstruction/rebuilding of the premises No. IIC/5354, Lajpat Nagar, New Delhi including the tenanted portion. It is also contended that it has also not been disclosed by the petitioners that as to how they will manage the finances for the proposed construction/ reconstruction. In this regard, the petitioners have categorically stated in the petition itself that normal and general cost of construction these days approximately varies between Rs. 400/ per sq.ft and Rs. 500/ sq. ft and the total area proposed to be constructed is 1200 sq. ft on ground floor and 1200 sq. ft. on first floor and the petitioners have sufficient means to spend on the Eviction Petition No. E339/09 Page 29 of 39 construction/addition/alteration of the entire house.
43. The petitioners have also examined Sh. Vijay Kumar Singla from LIC of India, South Extension, PartII, New Delhi as PW2 who has deposed that there are three policies bearing No. 111802557, 112757460 and 110060072 in the name of Sh. Amarjeet Singh and the surrendered value of these polices are Rs. 156756/, 112060/ and Rs. 88210/ respectively which are in force. In the crossexamination, PW2 stated that no loan has been sanctioned or given to the policy owner till date. He further stated that policy no. 1 is for Rs. 1,00,000/ and maturity date is 28.03.2008, second policy is for sum assured of Rs. 2 lacks and date of maturity is 28.03.12 and third policy is for sum assured of Rs. 50,000 and maturity date is 28.03.2008.
44. Next witness examined by the petitioners is Sh. Rakesh Ahuja, Manager, Corporation Bank, Lajpat NagarII, New Delhi as PW5 who has placed on record the statement of saving bank account No. 324 in the name of Sh. Amarjeet Singh for the period from 01.04.2006 to 31.10.2006 as Ex. PW5/1 and the balance as on 31.10.2006 in the said account is Rs. 8,69,137/. He has also placed on record the current account statement in the name of M/s Dutta Transport Co. of A/c No. CBCA 97 of which Amarjeet Singh is a sole proprietor as Ex. PW5/2 Eviction Petition No. E339/09 Page 30 of 39 and the balance in the said account is Rs. 2,95,826/ as on 31.10.2006. In the crossexamination of PW5, nothing material could come out to shake the testimony of this witness.
45. From the aforesaid evidence of PW2 and PW5, it is evident that the petitioners are having sufficient means for the purpose of re construction. Moreover, now a days the finances are easily available from the financial institutions and the banks. Therefore, it cannot be said that the petitioners are not having sufficient means or cannot manage finances for the proposed reconstruction of the building.
46. It is also contended by the respondent that the petitioners have not indicated in the petition that within what period the construction shall be completed and have further failed to clarify as to within what period the ground floor portion shall be constructed and completed including the tenanted portion. In this regard, PW7 Sh. B.K. Chauhan has categorically stated in his evidence that the construction proposed to be made in the property is likely to take about three months time. He has also placed on record his report dated 14.12.2005 Ex. PW7/3 showing the total minimum time required for carrying out the reconstruction. Therefore, there is no merit in the contention of the respondent that petitioners have not disclosed the period within which the proposed Eviction Petition No. E339/09 Page 31 of 39 reconstruction shall be completed.
47. The next contention of the respondent is that the petitioners have not given any such undertaking in writing that they are ready and prepared to return similar area occupied by the respondent after reconstruction of the building in question. In this regard, the respondent has also stated in the crossexamination that he is not ready to vacate the premises as the petitioner has not given any undertaking to reconstruct/repair the premises within reasonable period and to relet the same to him. He further categorically stated that, " I am ready to vacate the premises if the petitioner undertakes to relet the premises to me after its reconstruction or repairs." The aforesaid statement of the respondent substantiates the contention of the petitioners that the premises in question is in dilapidated condition and same requires reconstruction. But, the respondent is not vacating the premises as the petitioner has not given any undertaking to reconstruct/repair the premises within reasonable period and to relet the same to him after its reconstruction and if the petitioners give any such undertaking, the respondent is ready to vacate the suit premises. It shows that respondent also concedes that premises are required bonafide by the petitioner for the purposes of reconstruction of the entire building. Eviction Petition No. E339/09 Page 32 of 39
48. So far the apprehension of the respondent regarding undertaking by the petitioners to reconstruct the premises within reasonable time and to deliver back possession to the tenant after reconstruction is concerned, as discussed herein above Section 20 of DRC Act takes care of this apprehension of the respondent. It is mandatory on the part of the petitioners to give such an undertaking in the court that within which period the construction shall be completed and which portion shall be relet to the respondent. In this respect, the Ld. Counsel for the petitioner during the course of arguments fairly conceded that petitioners are ready to give proportionate space to the respondent which is under his possession after being sanctioned by the competent authority.
49. It is also apprehension of the respondent that the petitioners have not got the building plans sanctioned from MCD and NOC has not been granted by L&DO for the proposed reconstruction and in the absence of the same the petitioners cannot proceed further with the plan of re constructing the building. From the crossexamination of PW1, it is evident that the office of L&DO has not issued the NOC for reconstruction till date and the building plans submitted by the petitioners has not been sanctioned by the MCD. Of course, it is the Eviction Petition No. E339/09 Page 33 of 39 genuine concern of the respondent in vacating the suit premises unless the building plans are got sanctioned from MCD.
50. Although, as per provisions of section 14 (1) (g) of DRC Act, which requires that plans and estimates of reconstruction have been properly prepared does not mean that the plans must be sanctioned by the competent authority. However, it is not possible to lose sight of the fact that until the plans are sanctioned, it would be extremely harsh and unjust to the tenant to ask him to move out of the premises in order to enable the landlord to reconstruct the same and then have recourse to the provisions contained in section 20 (3) if the landlord failed to commence the work or rebuilding within month or specified date. Therefore, it is reasonable that in order to establish his bonafide in requiring the premises for rebuilding and reconstruction, the petitioner should also establish that he has obtained sanction of the competent authority in respect of the building plans.
51. In the present case, it is an admitted fact that the building plans which have been prepared and submitted by the petitioners to the MCD have not been sanctioned by the MCD till date and NOC has not been granted by the office of L&DO for proposed reconstruction. Therefore, in the absence of approved sanctioned plan from MCD and NOC from Eviction Petition No. E339/09 Page 34 of 39 L&DO, the petitioner cannot start the work of rebuilding or re construction. It cannot be ignored that unless plans are sanctioned by the MCD, it would be unjust and harsh to the respondent to vacate the suit premises in order the enable the petitioner for reconstruction and in case the landlord fails to commence the work of building or rebuilding within specified period of time, the respondent from whom the tenanted premises has been vacated would suffer a great hardship and hence interest of the tenant is also to be secured.
52. In the case titled as Harrington House School, Appellant Vs. S.M. Ispahani & Anr., Respondents AIR 2002 SUPREME COURT 2268 the facts were that the landlords needed the suit premises for the immediate purpose of demolition so as to construct a multistorey complex theater as the building was 50 years old. The plans of the proposed construction were ready but had not been submitted to the local authority for approval. The explanation given by the landlords through PW1 S.A. Ispahani was that a substantial amount is charged by the local authority by way of fee for sanctioning the plans for reconstruction and if the reconstruction is not carried out within a limited time, the sanction has to be kept renewed periodically for which the local authority again charges a substantial amount by way of renewal Eviction Petition No. E339/09 Page 35 of 39 fee. The phenomenal delay in disposal of litigation entails heavy financial burden on the landlord and that is why they have not submitted the plans for approval though ready.
53. In these circumstances, the Hon'ble Supreme Court of India held that a procedure can be devised to protect the interests of boththe tenant and the landlord, specially by taking care of the apprehension expressed by the tenant that the property may remain lying un constructed in spite of being vacated by the tenant and followed by demolition if the plans for proposed reconstruction are not sanctioned by the local authority. It was held by the Hon'ble Supreme Court of India that decree passed by the High Court is sustained but it was directed that the landlords shall submit the plans of reconstruction for the approval of the local authority. Only on the plans being sanctioned by the local authority the decree for eviction shall be available for execution. Such sanctioned or approved plans shall be produced before the Executing Court whereupon the Executing Court shall allow a reasonable time to the tenant for vacating the property and delivering possession to the landlorddecree holders.
54. In the present case also, though the petitioners have prepared the Eviction Petition No. E339/09 Page 36 of 39 plans and also submitted to the MCD for approval, but same have not been sanctioned by the MCD nor NOC has been issued by the L&DO till date. Therefore, in the facts and circumstances of the present case and in view of the ratio of the judgment of the Hon'ble Supreme Court cited supra, the interests of tenant are required to be secured. Hence, respondent shall not be required to vacate the suit premises unless the petitioner gets NOC from the L&DO and the plans sanctioned from the MCD for the purpose of rebuilding/reconstruction of the premises.
55. Section 20 of DRC Act provides further protection to the tenant while passing an order under clause (g). It requires the Controller, while passing an order under clause (g) viz. (1) to ascertain from the tenant whether he elects to be placed in occupation of the premises or part thereof from which he is to be evicted, (2) to record the fact of the eviction in the order, if the tenant so elects and (3) to specify in the order the date on or before which the tenant shall deliver possession so as to enable the landlord to commence the work of building or rebuilding as the case may be.
56. Further as per section 20 (2) of DRC Act, if the tenant delivers possession on or before the date specified in the order, the landlord shall, on the completion of the work of repairs or building or re Eviction Petition No. E339/09 Page 37 of 39 building, place the tenant in occupation of the premises or part thereof.
57. As such by virtue of section 20 of DRC Act, the election is to be made by the tenant whether he wants to be placed in occupation of the premises or part thereof from which he is to be evicted and if the tenant elects so, the date is to be specified on which the tenant shall deliver the possession to enable the landlord to commence the work of building or rebuilding. But, in the present case, as discussed herein above, the building plans for proposed reconstruction or rebuilding have not been sanctioned by the MCD and further NOC has not been granted by the office of L&DO for proposed reconstruction and therefore, at this stage, the provisions of Section 20 of DRC Act cannot be complied with. The respondent cannot be asked whether he wants to be placed in occupation of the premises or part thereof from which he is to be evicted and further no specified time can be given to the respondent by which he has to vacate the suit premises. Hence, provisions of Section 20 of DRC Act are deferred and same will be considered once the petitioner gets the plans sanctioned from MCD and requisite NOC from L&DO.
58. In view of aforesaid discussions, as it has been established that the petitioners require the premises in question bonafide for the purpose of building or rebuilding for erecting a new building in place of old one Eviction Petition No. E339/09 Page 38 of 39 which cannot be possible without the premises being vacated by the respondent. Hence, present petition u/s 14 (1) (g) of DRC Act is allowed and an eviction order is passed in favour of the petitioners and against the respondent in respect of the suit premises i.e. one room measuring 150 sq. ft. (7 ½' x 20') approximately with pucca roof and portion having an area of 112 sq.ft (7 ½' x 15') in the front court yard with asbestos sheets in front of the room in the property bearing No. C53 & 54, Lajpat NagarII, New Delhi, more specifically shown in the site plan Ex. PW7/1. However, it is made clear that eviction order shall be executable when the petitioners get the building plans sanctioned from MCD for the proposed reconstruction and the requisite NOC from L&DO.
59. File be consigned to record room to be revived as and when the petitioners move an appropriate application for revival of present petition after getting the plans sanctioned from MCD for reconstruction of the premises.
Announced in the open court (Balwant Rai Bansal)
on 23rd July , 2011 ARC/ (South), New Delhi
Eviction Petition No. E339/09 Page 39 of 39
E339/09
23.07.2011
Present: Petitioners no. 1 and 2 in person.
Respondent in person.
Vide my separate judgment dictated and announced in the open court, present petition u/s 14 (1) (g) of DRC Act is allowed and an eviction order is passed in favour of the petitioners and against the respondent in respect of suit premises.
However, it is made clear that eviction order shall be executable when the petitioners get the building plans sanctioned from MCD for the proposed reconstruction and the requisite NOC from L&DO.
File be consigned to record room to be revived as and when the petitioners move an appropriate application for revival of present petition after getting the plans sanctioned from MCD for reconstruction of the premises.
(B.R. Bansal) CCJ/ARC/ACJ (South), New Delhi 23.07.2011 Eviction Petition No. E339/09 Page 40 of 39