Delhi District Court
Sh. Arun Kumar Nayyar vs Ms. Rajni Bahl on 28 April, 2018
:IN THE COURT OF ATUL KRISHNA AGRAWAL
ADDITIONAL RENT CONTROLLER (SOUTH):
COURT ROOM NO. 204, SAKET COURTS: NEW DELHI
EVICTION PETITION NO. 6338/2016
Sh. Arun Kumar Nayyar,
S/o late Shri Hazari Lal Nayyar,
R/o T15, Green Park Extension
New Delhi110016
......... Petitioner
Versus
Ms. Rajni Bahl, (Since deceased through her LRs)
W/o Sh. Pramodh Bahl
R/o H. No. D388, Defence Colony,
New Delhi24
1. Sh. Pramodh Bahl (husband of deceased respondent)
2. Sh. Rajat Bahl (son of deceased respondent)
Both resident of :
R/o H. No. D388, Defence Colony,
New Delhi24
3. Smt Payal Khanna (daughter of deceased respondent)
R/o H. No.11A, Sainik Farms, New Delhi80
4. Smt. Puja Gupta (daughter of deceased respondent)
R/o A2/17, Mianwali Nagar,
Paschim Vihar,
New Delhi87
............Respondents
Petition for eviction under section 14 (1) (e) of the Delhi Rent Control Act
DATE OF INSTITUTION : 20.03.2012
DATE OF RESERVING ORDER : 15.03.2018
DATE OF PRONOUNCEMENT : 28.04.2018
JUDGMENT
Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 1/29
1. Vide this judgment, I shall dispose off the eviction petition filed by petitioner under section 14 (1) (e) of the Delhi Rent Control Act thereby praying that an order of eviction be passed in his favour and against the respondent, in respect of Shop No.1, situated at the ground floor of Property No.S15, Ground Floor, Green Park (Main), New Delhi16 (hereinafter referred to as the "suit shop/premises") on the ground of bonafide commercial requirement of petitioner and his wife.
2. In brief, the case of the petitioner is that he became the landlord qua the suit shop after the death of his mother Smt. Satya Nayyar, who was the original owner of the suit shop. The tenancy in favour of respondent, was created in terms of lease deed dated 01.03.1992 executed between Smt. Satya Nayyar, mother of petitioner and respondent. As per petitioner, after the death of his mother, Sh. H L Nayyar, i.e. his father was looking after the suit shop and was also collecting rent of the same. It is further stated that after the death of his father on 10.11.2011, respondent was paying rent to him (petitioner no.1).
3. It is further the case of petitioner that now he has retired from his job and was drawing pension from the government department. As per petitioner, he is a qualified Engineer and after his retirement, he is doing consultation work. The petitioner now wishes to start his own consultancy business. It is further stated that his wife is a home maker but has experience in the field of garment manufacturing and therefore, she wants to open a boutique.
4. Accordingly, petitioner needs space to open his consultancy business.
Further, he also wants to get a boutique opened for his wife Smt. Neelam Nayyar but he does not have any other suitable place except the suit shop Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 2/29 and one other shop in possession of another tenant, against whom a similar eviction petition is filed and hence, the suit shop is bonafidly required by him for his own use and that of his wife. As such, the petitioner has filed the present eviction petition under section 14 (1) (e) of DRC Act qua the suit shop.
5. After filing of petition, notice was issued to respondent, who filed her leave to defend application, which was allowed by the Ld. Predecessor of this Court vide its Order dated 27.11.2014. Respondent was given leave to contest the suit upon which she filed her written statement. WRITTEN STATEMENT
6. WS was filed by respondent contending therein that the petition filed by petitioner was not maintainable as he was not the exclusive owner of the suit shop and the suit premises was coowned by the other legal heirs of late Smt. Satya Nayyar, whom the Petitioner had deliberately not impleaded in the present petition. Further contended that the petitioner had neither disclosed their names nor pleaded their consent as late Smt. Satya Nayyar is survived by two sons and two daughters and there is dispute amongst petitioner and other coowners. It is further alleged that the petition is bad for nonjoinder of necessary parties as all coowners of the suit property have not been impleaded nor their names have been disclosed.
7. It is further stated that petitioner has not filed a single document on record to show his ownership qua the suit property. It is further contended that the rent receipt dated 13.12.2011 was signed by respondent wherein the name of owner is missing. It is alleged that petitioner has filled up the blank spaces and has also signed in place provided for the owner of the property. It is further stated that after 13.11.2011, two different persons have approached respondent, being legal heirs of original landlord Smt. Satya Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 3/29 Nayyar and upon asking about the documents qua the same, they disappeared.
8. It is alleged that petitioner after getting the premises evicted, wants to let out the same at higher rent. It is however admitted that rent has been paid to petitioner as no other claimant came forward and without prejudice to the rights of other coowners. It is denied that any notice was ever sent or was refused by respondent. It is further denied that petitioner has retired from his job or he is drawing pension.
9. It is further contended that the present petition is liable to be dismissed under Order VI Rule 4 CPC as the necessary ingredients of section 14 (1) (e) of DRC Act has not been complied with and there is lack of necessary ingredients giving cause of action to invoke jurisdiction of this court under section 14 (1) (e) of DRC Act against the respondent qua the suit shop.
10. It is further alleged that the need of bonafide requirement of petitioner, is whimsical and a work of fiction in order to get the suit shop evicted on false grounds. It is further alleged that the present case is one of taking benefit of prevailing law of eviction of commercial property in Delhi as desire in itself cannot be termed as a bonafide requirement and the eviction petition lacks better particulars qua section 14 (1) (e) of DRC Act.
11. It is further alleged in written statement that the petitioner retired from service in the year 2003 and has let out different commercial portions in his occupation, at least 45 times. It is denied that the wife of petitioner is in business activity. On the contrary, she is a housewife and had never undertaken part in business activity. It is alleged that neither the petitioner nor his wife had any past experience or qualification for the said businesses and further no document had been placed on record by the petitioner for Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 4/29 showing the said experience. It is alleged that wife of petitioner has not made any attempt to start the business of boutique in any of the commercial properties available with them despite the fact that same were let out in recent past and hence, there is no substance in the claim of petitioner which has been created only to dispossess the respondent. It is further alleged that the present petition is totally vexatious as petitioner has failed to substantiate his alleged claims. It is further alleged that the petitioner had not given any proposed business plan or financial plan qua his alleged claim of bonafide requirement. It is also alleged that the petitioner had not filed the correct site plan.
12. It is further contended by respondent that the Petitioner has three alternate premises. First is the rear portion of suit premises being S15, Green Park (Main), New Delhi 110016, which is available for commercial purpose, comprising of more than 800 sq. ft. of area consisting of two rooms, kitchen, bathroom, toilet and a verandah. Infact the said premises was lying vacant on the date of filing the present eviction petition on 06.03.2012, however, instead of occupying the same, the petitioner has let it out to one Sh. Sunil Sharma, on a monthly rent of Rs.12,000/ per month w.e.f. 01.04.2012 till 31.03.2014 by way of a Registered Lease Deed.
13. It is further stated that the rear portion of the suit shop which is not part of tenanted premises, measuring about 400 Sq. ft. with a separate entrance, can be used for the alleged requirement of petitioner. However with malafide intentions, petitioner has let out the rear portion of property No. S15, Green Park (Main) immediately after filing of present petition, however petitioner could have started his consultancy office in the said portion but petitioner has chosen to let it out as he does not have any requirement. It is alleged that to start a consultancy work, cannot be termed Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 5/29 as a commercial purpose.
14. The second alternative accommodation alleged by respondent are the first and second floors of the property bearing No. G46, Green Park (Main), New Delhi measuring approx 1800 sq. ft. on each floor, which was also available for commercial purposes. It is alleged that the same was vacated in the year 2011 from a NGO, which was running an office from the said premises. It is contended that as per MCD Bye Laws, the said premises are available for consultancy business and for running a Boutique. However instead of occupying the same, it has been let out to one UBI Management Consultants, for running its office by way of a Lease Deed dated 16.06.2011, for two years.
15. The Third alternate accommodation as contended by respondent is property No. T15, Green Park, Extension, New Delhi which was similarly available for commercial purposes but no efforts were made either by the Petitioner or his wife, to use the same.
16. Lastly, it is stated that the present petition deserves to be rejected in view of law as reported in (1994) ISCCI case titled as 'S P Chengal Varaya Naidu (deceased) by LRs Vs. Jagannath (deceased) by LRs & Ors'. Accordingly, prayer is made for dismissal of the petition. REPLICATION
17. Thereafter, replication was filed by petitioner to the WS of respondent denying the allegations made in the WS being completely vague, contradictory, false, frivolous, mischievous and contrary to the actual facts and circumstances. The contents of eviction petition are reiterated and re affirmed at the same time. In addition thereto, it is submitted that after demise of Smt. Satya Nayyar, the petitioner became absolute and exclusive owner of demised premises vide a registered Will dated 22.10.1992 of his Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 6/29 mother and a relinquishment deed dated 19.01.2007 executed by other legal heirs in favour of petitioner. It is stated that after the demise of Sh. H L Nayyar, father of petitioner on 10.11.2011, respondent has been paying rent to petitioner as owner and respondent has neither disputed the payment of rent nor he has disputed issuance of rent receipt by the petitioner and signing of same. It was denied that there were disputes between the other legal heirs. It was further denied that the petitioner was getting the suit shop evicted for letting out the same, at a higher rent.
18. It is further stated that after retirement, petitioner continues to provide consultancy services to the Government of India on contractual basis and often travels from place to place for such purpose and because of his advanced age, he is not in a position to continue the same. It is further stated that the wife of petitioner was a registered dealer for the purposes of Sales Tax with the Government of Andhra Pradesh and she has experience in the field of garment manufacturing. It is further stated that wife of petitioner had been assisting her friend, who was in the business of manufacturing garments. Even otherwise, opening a garment boutique does not require any special qualification.
19. It is further submitted that the petitioner has no other alternative accommodation in as much as his other three premises are not suitable and the suit premises is the most suitable premises for petitioner and he has all the right to get the same vacated. It is denied that the rear portion of suit premises No. S15, Green Park (Main) New Delhi16, was available for commercial use since the same was not fit for commercial purpose, being on the rear side and having a rear entrance to a dirty and broken road. It is further stated that the rear portion had never been used for commercial purposes and had always been used for residential purposes.
Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 7/2920. It is further stated that even the last lease deed dated 02.04.2012 in favour of Sh. Sunil Sharma, placed on record by the respondent himself, clearly showed that the same had been let out purely for residential purposes only. The said rear portion was not viable for commercial use. It is contended that the law does not expect a landlord to opt for an inferior and unsuitable premises for his bonafide requirement merely because the most suitable premises is in occupation of a tenant.
21. As regards other property, it is admitted that the first floor of property bearing No. G46, Green Park, New Delhi, had been let out in the year 2011 and again on 04.03.2014 to an NGO, however, it is also contended that the same had not been let out for commercial use which was in fact, not legally permissible. It is further averred that after the promulgation of Master Plan for Delhi 2021, as per clause 15.6 of the same, commercial use is permitted only on the ground floor upto a maximum permissible area of 20 Sq.mt. and as such, the question of using the first and second floor for a commercial purpose, was neither permissible nor possible.
22. It is stated that even the photographs, which have been placed on record by respondent himself, shows that the first and second floor are being used for residential purposes and if at all, it is only the ground floor which can be used for a commercial purpose and that too after payment of conversion, misuser and other charges. It is further stated that even otherwise, the petitioner and his wife are senior citizens and because of several old age related ailments, they are unable to use staircase so often as they have difficulty in climbing the staircase. It is further stated that the above properties were let out since the same were not the suitable alternative premises for bonafide requirement of petitioner.
23. As regards the third property, it is further stated that the petitioner Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 8/29 was residing in premises bearing No. T15, Green Park (Extension) New Delhi 110016, alongwith his wife and it was too much to expect that he and his wife would vacate their own house for opening a consultancy office and garment boutique, more so, in view of the fact that the petitioner has his other premises available in occupation of the respondent. Moreover, the above premises was not legally permitted to be used for commercial activities, like running a boutique, etc.
24. It is further contended that respondent cannot ask about the qualification of petitioner and there was nothing malafide in the desire of petitioner to open and start his own consultancy office. It was further denied that respondent had taken the suit premises in the year 1992 on arrangements which were camouflaged as lease but were understood to be given on permanent basis, as alleged by respondent.
25. It is further stated that petitioner had ample resources to start the businesses as referred. As per petitioner, the site plan filed by him was the correct site plan of the suit property. It is also stated that there was no legal prohibition in opening a consultancy office in an area where mostly shops are of the nature of grocery shop, sweet shop, restaurants, electronic items, cloth merchants, etc. It is reiterated that all the necessary pleadings as required for an eviction petition under section 14 (1)(e) of DRC Act, were mentioned. All other contentions of WS are denied.
26. In PE, in order to prove his case, petitioner examined himself as PW 1 and his wife, Smt. Neelam Nayyar as PW2.
PW1 Arun Kumar Nayyar tendered his evidence by way of Affidavit Ex.PW1/A and relied upon following documents :
1) Lease deed dated 01.03.1992 as Ex.PW1/1 2) Site plan as Ex.PW1/2 Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 9/29 3) death certificate of late Smt. Satya Nayyar as Ex.PW1/3 4) Will dated 22.10.1992 as Ex.PW1/4 5) relinquishment deed dated 19.01.2007 as Ex.PW1/5 6) mutation letter issued by MCD on 15.02.2011 as Ex.PW1/6 7) death certificate of late Sh. H L Nayyar as Ex.PW1/7 8) counterfoil of rent receipt as Ex.PW1/8 9) bachelor of technology certificate and master of engineering certificate as Ex.PW1/9 & Ex.PW1/10 10) pension payment order as Ex.PW1/11
11) contracts of government of India as Ex.PW1/12 & Ex.PW1/13
12) photographs of rear side lane of property No. S15, Green Park, New Delhi as Ex.PW1/14 to Ex.PW1/16
16) photograph of rear entrance of property No. S15, Green Park, New Delhi as Ex. PW1/17
17) Site plan of the premises bearing no. S15, Ground Floor, Green Park, New Delhi 110016 as Ex. PW1/18.
18) Site plan of the locality as Ex. PW1/19
19) Property tax document of the premises bearing no.S15, Ground Floor, Green Park, New Delhi 110016 as Ex. PW1/20
20) Photograph of shop Nos. 1 and 2 of S15, Green Park, New Delhi as Ex.PW1/21
21. Photographs of office of 'Asian Age' in S - 7 & 8, Green Park (Main), New Delhi as Ex.PW1/22
22. Lease deed dated 07.01.2008, 01.01.2010, 04.03.2014, 06.06.2013 and extension agreement dated 01.12.2010 of property bearing G46, First Floor, Green Park, New Delhi as Ex.PW1/23 to Ex.PW1/27 respectively Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 10/29
23. Medical record of the Petitioner as Ex.PW1/28 (colly)
24. Medical record Smt. Neelum Nayyar as Ex.PW1/29 (colly)
25. Electricity bills and property tax receipt for the property bearing No. G46, Green Park, New Delhi as Mark PW1/30, Mark PW1/31 and Ex.PW1/32
26. Photographs of property bearing No. G47, Green Park, New Delhi as Ex.PW1/33 to Ex.PW1/34
27. Electricity bill and property tax receipt of the premises bearing No. T15, Green Park (Extension) New Delhi 110016 as Ex.PW1/35 & Ex.PW1/36
28. TDS Certificate issued in favor of the petitioner as Ex.PW1/37
27. This witness was duly cross examined by counsel for respondent.
During the course of his cross examination, certain other photographs Ex.PW1/D1 to Ex.PW1/D8, Ex.PW1/D11 to Ex.PW1/D22 were exhibited. Newspapers are Ex. PW1/D9 and Ex.PW1/D10 which are shown in photographs.
28. PW2 Smt. Neelum Nayyar tendered her evidence by way of Affidavit Ex.PW2/A. This witness was also duly cross examined by counsel for respondent. Thereafter PE was closed.
29. In RE, respondent examined himself as RW1 and tendered his evidence by way of Affidavit Ex.RW1/A and relied upon following documents :
i) certified copy of lease deed duly registered with Sub RegistrarV, New Delhi as Ex.DW1/1
ii) certified copy of document qua letting out of the first floor of the property bearing G46, First Floor, Green Park, New Delhi as Ex.DW1/2
iii) photographs of the rear portion of the suit premises being S10, Green Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 11/29 Park (Main) New Delhi 110016 as Ex.DW1/4 (there is no document exhibited as Ex.DW1/3).
iv) Letter dated 06.08.2010 of Sr. Town Planner, MCD to the President, Vyapar Mandal, Green Park, New Delhi as Ex.DW1/5
v) photographs already Ex.PW1/D1 to Ex.PW1/D18
30. RW1 was duly cross examined by counsel for petitioner. During the course of his cross examination, certain other photographs Ex. RW1/P1 to Ex.RW1/P10 were exhibited.
31. During the pendency of present proceedings, respondent Ms. Rajni Bahl expired on 20.09.2017 and her LR's were brought on record vide order dated 03.11.2017. Thereafter, Sh. Pramod Bahl, husband of Smt. Rajni Bahl, who was impleaded as a legal heir of Smt. Rajni Bahl, also expired on 12.02.2018 and his name was deleted from the array of party as his legal heirs were already on record.
32. Witness namely Sh. Bhagirath Lal was examined as RW2 who tendered his evidence by way of Affidavit Ex.RW2/A and relied upon documents already Ex.DW1/5. This witness was also duly cross examined. During the course of his cross examination, certain other photographs Ex.RW2/P1 to Ex.RW2/P5 were exhibited.
33. Sh. Bhuvan Sharma was examined as RW3 by respondent who tendered his evidence by way of Affidavit Ex.RW3/A. This witness was also duly cross examined by counsel for petitioner and confronted with one photograph Ex.RW3/P1. Thereafter RE was also closed.
34. Final arguments were addressed on behalf of both parties at length which is duly considered by me. Several judgments have also been filed and relied upon which will be discussed in the course of judgment. I have also perused the evidence on record.
Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 12/2935. In order to succeed in a petition under Section 14 (e) of DRC Act, petitioner is required to prove the following ingredients : existence of landlord and tenant relationship between the parties, secondly, that the landlord/petitioner is the owner of the suit property, thirdly, the fact that the suit premises are required bonafide by owner/landlord for accommodation for himself or for any member of his family dependent upon him and lastly, non availability of any other reasonably suitable accommodation for the said purpose, with the landlord.
Landlordtenant relationship between parties
36. As far as this requirement is concerned, there is no express denial of the fact that there exists landlord and tenant relationship between the parties. In para 14 of reply on merits, respondent specifically admits the fact that she had been paying rent to the petitioner but without prejudice to the rights of other coowners. Though she also contended that the shop was also let out to her by Smt. Satya Nayyar i.e. the mother of petitioner, however, it is undisputed fact that Satya Nayyar had since expired. After her death, rent has not been paid by respondent to any other legal heir but only to the petitioner.
37. Even in the crossexamination, respondent as RW1 admitted that the rent was being paid to petitioner. She also admitted her signatures on counterfoil of rent receipt which is Ex. PW1/8. She had also been sending money orders of rent of subsequent period to none other that the petitioner. Hence the admission of respondent that she had started making payment of rent to the petitioner as no other claimant had come forward, is in itself an admission by conduct that petitioner was the undisputed landlord qua respondent.
Ownership of petitioner over suit premises Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 13/29
38. As far as the second requirement regarding the petitioner being owner of the suit property is concerned, at the outset, it is pertinent to mention in the case titled as Ambika Savaria & Ors Vs Sanjay Sharma & Ors, 2016 AIR (SC) 3681, it was held by Hon'ble Supreme Court of India that Section 116 of the Indian Evidence Act, estops even a person already in possession as tenant under one landlord, from denying title of subsequent landlord when once he acknowledges him as his landlord by attornment or by conduct. In the present case, it is an admitted fact that the respondent had paid rent to petitioner for a significant period. Hence, the respondent had attorned the petitioner as their landlord. So the above judgment is also applicable to facts of this case.
39. Even otherwise, the petitioner has relied upon one Will dated 22.10.1992 Ex. PW1/4 and one relinquishment deed dated 19.01.2007 Ex. PW1/5 and one mutation letter dated 05.02.2011 of MCD Ex. PW1/6 in support of his contentions that he had become the absolute owner of the suit premises after the death of his mother.
40. Even if the respondent challenges those documents, this court being that of a rent controller, cannot return any finding regarding the genuineness of the Will Ex. PW1/4 or Relinquishment Deed Ex. PW1/5 which only the legal heirs of Late Smt. Satya Nayyar can challenge inter se. oreover besides the Will Ex. PW1/4, there is also a relinquishment deed Ex. PW1/5 in favour of petitioner and his brother Sh. Suman Kumar Nayyar, which is allegedly executed by the other LRs of Late Smt. Satya Nayyar. (Sh. Suman Kumar Nayyar has got the other floors of the building No. S15, Green Park Main, as the Will, with the suit property i.e. ground floor going to the petitioner). These documents prove the title of petitioner qua the suit property as far as the present case against the respondent is concerned. Even Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 14/29 otherwise, the fact still remains that the said Will Ex. PW1/4 and relinquishment deed Ex. PW1/5 in favour of the petitioner have remained unchallenged till date by any of other legal heirs of Late Smt. Satya Nayyar as no such fact has been brought on record.
41. For the sake of arguments, even if Will Ex. PW1/4 and Relinquishment deed Ex.PW1/5 in favour of petitioner is kept aside, still it is undisputed that the petitioner herein is one of the legal heirs of Late Smt. Satya Nayyar, the undisputed owner of the suit property. Hence in the said capacity of being one of the legal heirs of Late Smt. Satya Nayyar, the petitioner was atleast one of the coowner of the suit property, even if not an exclusive owner. Even in that capacity, he can institute this eviction petition against the respondent.
42. The defence of the respondent is that petitioner was not the exclusive owner and as such without impleading all the coowners of the suit property, the present suit is not maintainable, as such, the petition was also bad for nonjoinder of necessary parties. It was also the contention of respondent that the other coowners have not given any noobjection in favour of petitioner, to use the suit premises as no such document is filed.
43. In my considered opinion, all the aforesaid grounds are unsustainable in the eyes of law. There are catenas of judgments both of Hon'ble Supreme Court of India and Hon'ble High Court of Delhi, wherein it is clearly held that as far as petition under Section 14 (1) (e) of DRC Act is concerned, even one coowner can institute the same without impleading other co owners, since it is settled law that a coowner is the owner of each and every portion of the property like other coowner.
44. In the case titled as India Umbrella Manufacturing Company and Bhag Bhandhai Aggarwala (2004) 3 SCC 178, it was held by Hon'ble Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 15/29 Supreme of India that it is well settled law that one co owner can file suit for eviction of tenant in the property generally owned by the co owners. This principle is based on the doctrine of agency, as one co owner files a suit for eviction against tenant does so on his own behalf in his own right and also as an agent of other coowner. The consent of the other co owners is assumed as taken unless it is shown that the other coowners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. Similar observations have been made by the Hon'ble Supreme Court in the case titled as Om Prakash Vs. Mishry Lal (2017) 5 SCC 451 and; Sh. Ram Pashricha Vs. Jagannath (1976) 4 SCC 184. In fact in the case of Sh. Ram Pashricha (supra), the Hon'ble High Court of Delhi also held that co owner is as much owner of entire property as any sole owner of property. Further, in the judgment of Mohinder Prasad Jain Vs. Manohar Lal Jain AIR 2006 SC 1471, Hon'ble Supreme of India has held that nonjoinder of other coowners in an eviction petition for bonafide requirement is not fatal to the proceedings. There is an assumption that other coowners have consented unless they have filed objections. Hence, in view of aforesaid judgment of Hon'ble Supreme of India, it is clear that the defence taken by respondent that eviction petition was not maintainable without impleadment of alleged other legal heirs of Late Smt. Satya Nayyar, was not maintainable.
45. The respondent contended that some persons had approached her claiming themselves to be the legal heirs of Late Smt. Satya Nayyar. However the name of those persons has not been disclosed. She further admitted that no written notice or letter was received by her from any of those persons claiming ownership or demanding rent from her. Infact it is also admitted that one other legal heir of Late Satya Nayyar i.e. Sh. Suman Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 16/29 Kumar Nayyar, the brother of petitioner was residing on the first and second floor of S15, Green Park (Main) and even he did not claim any rent from her. Being a resident of the same building, he would be aware of the litigation between his brother and respondent but he chose not to interfere for the reason that he was having no interest in the suit premises. So this defence on the face of it, appears to be a sham that some persons approached her claiming to be legal heirs of Late Satya Nayyar. Infact later on, respondent as RW1 even admitted that petitioner was the absolute owner of the suit property. Hence there remains no doubt that the petitioner was the owner of the suit property.
Bonafide need of the petitioner
46. As far as the third requirement of suit premises being required bonafide by landlord is concerned, in the eviction petition, petitioner states that he needs the suit premises for carrying out consultancy work as he is a qualified engineer but now retired from his job and unable to do work by going to the places of his clients, as he was earlier doing. So, he wants to start his own consultancy work/profession from the premises. He has further agitated the need of his wife who wants to start a boutique in the suit premises as she was having experience in Garment manufacturing. So two separate eviction petitions (the present matter is one of them) were filed for the aforesaid two shops. (The eviction petition qua the other shop is also disposed off today itself in the case titled as Arun Kumar Nayyar Vs. Hazari Lal Garg bearing RC ARC No. 6337/16).
47. In response to the aforesaid contentions, respondent states that there is no bonafide requirement or even the desire of petitioner to start any consultancy work in the suit premises and infact the present case was filed for taking benefits of commercial property in Delhi. It is also alleged that Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 17/29 the petitioner had not filed any documents on record to substantiate his qualification as well as experience in consultancy work and even the area of consultancy. It is also contented that the wife of petitioner being a housewife, had never undertaken any business activity on her own. Further, no document in support of her experience in garment business is placed on record.
48. Now as far as petitioner being a qualified engineer is concerned, the same cannot be disputed for the reason that he has filed his Bachelor of Technology Certificate and Master of Engineering Certificate which are Ex. PW1/9 and Ex. PW1/10 respectively. He has also placed on record his pension payment order Ex. PW1/11 in support of the fact that he was a retired government employed engineer. There is no cross examination of petitioner qua the aforesaid documents which leads to an irrefutable conclusion that the petitioner was a qualified engineer and was competent to carry out consultancy services. Infact petitioner has also placed on record proof of some of his contracts with government regarding consultancy work which are Ex. PW1/12 and Ex. PW1/13. This leaves no doubt as far as petitioner's qualification is concerned.
49. As regards space for opening consultancy business in the suit shop is concerned, it is not denied that the petitioner is at an advanced age of his life. Being an old age person, he cannot be expected to travel to different places so as to provide consultancy services, which obviously will take a heavy toll on his body. So the only other option left with petitioner would be to stop doing any work in case he does not have a permanent place to sit. Hence the need of petitioner cannot be denied. Reliance can be placed on Ranjit Singh Chopra vs Virender Khosla 155(2008) DLT 658 wherein old age has been considered to be one of the factors to gauge bonafide need Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 18/29 of the landlord.
50. As regards the requirement of wife of petitioner to run her boutique is concerned, the wife of petitioner Smt. Neelum Nayyar was examined as PW2 and in her crossexamination she stated that she had opened a readymade garment business in Hyderabad and was also registered with Andhra Pradesh Government as a dealer. Though, she also admitted that she had not done any course with respect to manufacturing garments. She further stated in her cross examination that as she was not having any space, she could not open garment boutique. She has further denied the suggestion given to her that she had no knowledge in the business of readymade garments/boutique.
51. It is obvious that Smt. Neelum Nayyar has not filed any document in support of her contentions. However, from her limited crossexamination, there is nothing substantial to suggest that she was not competent to start/run a boutique shop which even otherwise, does not require any technical experience or expertise. In the case titled as Raghunath Gee and Panhale Gee Panhale (D) by Lrs Vs. Chagan Lal Sunder Ji and Company AIR 1999 SC 3864, Hon'ble Supreme Court of India held that it was not necessary for landlord to prove that he had money to invest in new business contemplated or that he has experience of it. In the case titled as Ram Babu Aggarwal Vs. Jai Kishan Das (2010) (1) SCC 164 Hon'ble Supreme Court of India held that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting new business must be rejected on the ground that it is a false claim. Many people start new business even if they do not have any experience in the business and sometimes they are successful in the new business also.
52. Reliance can also be place on judgment of Kerala High Court in Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 19/29 Shanavas P. Vs. Kannaparambil Poulose 2016 (3) KHC 44, wherein it is held that common sense and not experience, or special skill was required to start a new business. In the case titled as North Delhi Municipal Corporation Vs. Mradul Construction Pvt. Ltd. 2014 SCC Online Del 7557, it has been held that : "there is no legal requirement that a landlord must first decide the business which he will carry on in the tenanted premises and only thereafter he can seek to evict the tenant. It has been held by the Supreme Court in catena of judgments that what is the business which is to be carried out from the tenanted premises for which eviction is sought can be decided after the tenanted premises are vacated. In fact, Supreme Court has also consistently held that no prior experience of any nature whatsoever is required for starting of the business which is proposed to be carried out by evicting the tenant.
53. Reliance can also be placed on the judgment in Mohinder Prasad Jain Vs. Manohar Lal Jain AIR 2006 SC 1471, Dinesh Kumar Vs. IVth Additional District Judge 2004 (3) AWC and Adarsh Electricals Vs. Dinesh Dayal 173 (2010) DLT 518, which are filed by petitioner.
54. Hence in view of the above authoritative pronouncements, and also in opinion of this court, in order to start a boutique or garments business, there is no requirement of any special skill or knowledge or even prior experience and hence, even this contention of respondent is without any basis and has to be rejected. Respondent had also contended that the need of petitioner was not bonafide also for the reason that he was having alternate suitable accommodation available with him. The said contention is being dealt separately in the succeeding paragraphs.
Nonavailability of alternate suitable accommodation
55. At the outset, it is pertinent to mention that the suitability of an Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 20/29 accommodation has to be looked from the eyes of a landlord. The court cannot substitute its own wisdom upon the choice of accommodation made by the landlord. In Sunil Kumar Goyal vs Harbans Singh R.C. Rev. No. 300/2017 decided on 18.07.2017, it was reiterated by Hon'ble Delhi High Court that the Court should place itself in the armchair of the landlord and then ask the question to itself whether in the given facts substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest and that if the answer is in the positive, the need is bona fide. It was further held that the Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his need. The concept of bona fide need was held to require a practical approach instructed by realities of life."
56. Further in Ragavendra Kumar v. Firm Machinery and Co., AIR (2000) SC 534, it was similarly held that it is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter. There are several other judgments on this aspect, which are not being reproduced for the sake of avoiding repetition.
57. As regard availability of alternative accommodation is concerned, as per respondent, there are three other properties which are available to the petitioner, if really intends to start his consultancy business for himself and open a boutique for his wife. Moreover, the area of those properties is more than sufficient to carry out such work and the said properties can also be used for commercial purposes, without any restriction. I will deal with all the properties referred to by respondent separately.
Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 21/29i) Rear side of suit premises bearing no. S15, Green Park, Main Road, New Delhi16.
58. As per the respondent, the area of the aforesaid rear portion is more than 800 sq. ft.. which is available for commercial use being on the ground floor and comprising of two rooms, Kitchen, Bathroom and Toilet and Varandah. Moreover the said portion has a separate and independent portion from the rear/back lane. Infact the occupier/user of the said rear portion of property bearing no. S15 and the entire occupants of S Block, use the said portion for their ingress and egress. The passage of rear portion was earlier of concrete but now cemented tiles were placed by the MCD. However the said rear portion was let and relet by the petitioner and was not being used by him for his alleged bonafide need. The counter arguments on behalf of the petitioner is that the said rear portion is not for commercial purpose, being on the rear side and having a rear entrance. The rear portion was never used for commercial purpose and was always being used for residential purposes. As such, same was not viable for commercial use and even otherwise a landlord cannot be made to opt for an inferior or unsuitable premises for his bonafide requirement merely because more suitable premises was in occupation of the tenant.
59. Both the counsels during final arguments, relied on various photographs filed by them of the said rear portion, with petitioner on one side, contending that the rear lane was dirty, full of manholes, shabby, having telephone and electric poles and IGL gas pipelines, AC units, waste pipes, etc. rendering it unfit for commercial use. It was further contended that the said rear portion was not being used even by other residents for commercial activity. On the other hand, as per the photographs relied by the respondent, the rear lane was clean, made of concrete, having a width as big Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 22/29 that two cars can be parked at the same time. It was also contented that the said rear lane was being used for commercial purposes by the other occupants of the SBlock.
60. In my considered opinion, it would be a completely futile exercise for this court to substitute its own opinion as to whether the rear portion opening towards the rear lane, would be appropriate for the petitioner to use it for commercial purposes or not. Infact the mere location of the said alternative accommodation which opens at the rear/back lane, is itself a disadvantage for any kind of business activity and not only a consultancy business which the petitioner wishes to open. Infact the respondent as RW1 admitted in her crossexamination that the rear portion of S15, Green Park Main was not fit to be used for commercial purposes and also the fact that it was being used for residential purposes, all along.
61. Moreover, it is a common knowledge that the rear lane of any society or a complex is usually unclean as compared to the front lane and the back lane is comparatively shorter in width as compared to the front lane of a property. The residential utilities of the society or a building such as gas pipelines, electric poles, cable wires, AC vents, etc. are invariably located on the rear side lane. Further, the rear portion is less attractive and unpleasing (often improperly maintained) as compared to the front portion. The cars and vehicles of the residents are also parked in the rear portion lane. It is also a common knowledge that a prospective customer would less prefer to go to a shop/premises situated on a back lane as compared to a shop which is on the front lane, being easily accessible. The footfall in a shop on the back lane is nominal as compared to the front lane. Hence, a property opening towards the front lane has invariably more material value as compared to a property situated/opening towards the back lane. From the Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 23/29 perusal of the various photographs filed on record by the petitioner, I don't find the situation to be any different in the present case. The respondent's suit property is on the front portion whereas the property alleged to be suitable alternate accommodation is on the back lane, so suit premises is more favourably situated to start any kind of business.
62. Even if for the sake of arguments, it is presumed that few of the occupants of SBlock are using the rear side for any kind of commercial activity, that does not mean that even the petitioner be compelled to use the rear portion having a disadvantage even though the front portion may become available to him. Even otherwise, there are several judicial pronouncements of Hon'ble Delhi High Court as well as Hon'ble Supreme Court wherein it has been categorically held that the front portion is more suitable for business as compared to the back portion of any property. Reliance can be placed on the judgment in Anil Bajaj Vs. Vinod Ahuja AIR 2014 SC 2294 wherein the premises facing the main road was found to be more suitable. Similarly in Joginder Singh Nagi vs M/S New Silver Line Traders Pvt Ltd. RC.REV.No. 409/2015 Date of decision: 19.07.2017, the Hon'ble Delhi High Court relied on above judgment and found that the entry of the premises which was alleged to be alternate accommodation was from the rear side and not from the main market and hence, not a suitable alternate accommodation.
63. Considering all the above facts, in my opinion, the petitioner is within his right to opt for a shop situated on the front lane in comparison to a premises opening towards the back lane. Hence, the rear portion of premises bearing S15, Green Park Main, New Delhi cannot be considered to be an alternate suitable accommodation.
ii) Property bearing no. G46, First and Second floor, Green Park, Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 24/29 New Delhi.
As regards this property, the petitioner has not denied that it has been let out by him to an NGO, however, it is denied that the said property can be let out for commercial purposes. On the other hand, respondent contends that the said property is measuring 1800 sq. ft. and as per the MCD Bye laws, the said premises can be used for commercial purposes which the petitioner wants to start. It is also the case of the respondent that the NGO to whom the first floor of the property was let out was using it for commercial purposes and even otherwise, consultancy business is not a commercial activity and can be done from any premises.
64. There are many lease deeds qua the said property which are on record. A perusal of latest lease deed qua the aforesaid property Ex. PW 1/23 shows that the said property was let out on 04.03.2014 to one Public Health Resource Society, an NGO, wherein it is clearly mentioned that the said premises were not to be used for commercial purposes. Similarly, there is another lease deed dated 06.06.2013 Ex.PW1/27 as per which, the premises were let out for residential purposes. However, this lease deed may not be of much significance for the present case since it is a lease deed executed after the present case was already filed by petitioner. It would be the earlier lease deeds which will disclose the purpose of letting whether it can be used for commercial purpose or not.
65. Infact another lease deed qua the said property dated 16.06.2011, exhibited by respondent as Ex. DW1/2, shows that the said premises was let out to one UBI Management consultants. The purpose of letting is not mentioned in the lease deed but the name of the lessee suggests that it was doing consultancy business in the same. So it does appear that petitioner had been letting it out for professional purposes, if not for business Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 25/29 purposes. So, even if a consultancy business can be started from the said premises, it does not mean that even a boutique can be opened from the said premises.
66. In fact petitioner has also relied upon Master plan of Delhi 2021 as per which retail shops and offices were permitted only on the ground floor of a building abutting streets notified for mixed use, within the maximum permissible ground floor coverage. Apparently, the property in question is on the first floor and not the ground floor, hence it is not open for commercial use as was being contended by the respondent. Further, the property tax receipt Ex. PW1/32 also proves that the property no. G46, Green Park was for residential purpose.
67. I am also in consonance with the contention of petitioner that being an old aged person, he cannot climb stairs of the aforesaid property. The petitioner is more than 70 years of age and his wife is reaching 70 years. Both are senior citizens and would obviously have trouble climbing the stairs of the property on an everyday basis. Further the petitioner has also filed the medical records Ex. PW1/33 and Ex. PW1/34 (collectively) in proof that he and his wife have difficulty climbing the stairs. There is nothing for the court to presume that the medical documents are not reliable. In fact I would go to the extent of saying that if the petitioner and his wife are compelled to start their work from first floor, there is every possibility that they will develop knee and back problem, if they are not already suffering from the same.
68. During argument, counsel for the respondent sought to argue that the place where the petitioner resides i.e. T15, Green Park Extension, New Delhi, was also having seven stairs to reach the lift in the said house. This proved that the petitioner have no difficulty in climbing the stairs. In my Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 26/29 considered opinion, the said argument is fallacious for the reason the climbing seven stairs once in a day to reach home, is a completely different proposition to climbing about twenty stairs on a regular basis, to reach one's office/shop everyday, located on the first floor or even more steps to reach the second floor. It is a common knowledge that almost every single senior citizen would prefer ground floor as compared to the second floor. In my considered opinion, this property also cannot be treated to be an alternate suitable accommodation.
iii) Property No.T15, Green Park Extention, New Delhi16
69. This is the last property which the respondent contends to be an alternate suitable accommodation which was available for commercial use. However it has come on record that the petitioner is residing in the said property. All the contemporary documents of the petitioner including medical documents, bears this address as his residential address. Under such circumstances, the petitioner cannot be expected or compelled to use his own house, so as to start his office business. Even otherwise, the respondent has failed to prove that the aforesaid property can be used for commercial purposes as well. In fact from the electricity bills and property tax Ex. PW1/35 and Ex. PW1/36 of the said property, it is apparent that the same was being used as a residential property and not a commercial one. Hence even this property cannot be treated as an alternate suitable accommodation to start business.
70. In Mukesh Kumar Vs. Rishi Prakash, 2009 (2) RCR 485, the Hon'ble Delhi High Court held as follows: "A landlord, while seeking the eviction of a tenant on the ground of bona fide requirement for himself or his family members dependant upon him, is not expected to disclose the manner in which he is utilizing the Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 27/29 accommodation available with him, if the accommodation with the tenant in respect of which he files the eviction petition is required by him for a purpose different from the purpose he is occupying and using the accommodation already available with him.
For instance the extent of residential accommodation available with the landlord who seeks the eviction of the tenant from a purely commercial or industrial premises, is wholly irrelevant.
71. Of course, it is correct that the petitioner did nor disclose the availability of above three premises in his eviction petition. However the question is whether any prejudice was caused to respondent from the said alleged concealment. The answer is no, for the reason that the petitioner has managed to prove that none of the aforesaid accommodation can be termed to be suitable alternate accommodation. Moreover the respondent has had an opportunity to fully argue and lead evidence to prove the suitability of those accommodations. Reliance can be placed on judgment of Hon'ble Supreme Court in M.L. Prabhakar Vs. Rajiv Singhal (2001) 2 SCC 355, wherein qua the plea of concealment / suppression, it was held that the fact that the landlord has another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the Court and case of neither party was prejudiced. Accordingly, it was held that though the landlord in that case had not mentioned about the other premises but the material in respect of the other two premises had come before the Rent Controller as well as before the High Court and no prejudice had been caused and the parties had squarely dealt with the question. Reliance can also be placed on the judgment in Bhairab Chandra Nandan Vs. Ranadhir Chandra Dutta MANU/SC/0742/1987.
Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 28/2972. In Rishal Singh vs Bohat Ram & Ors. RC.REV. No.495 of 2012 decided on 21.07.2014, the Hon'ble Delhi High Court was of the view that a landlord cannot be directed to accommodate or adjust his requirements or need so that the tenant is not disturbed with eviction from the tenanted premises. In Jerry Joseph Vs. Selvaraj 2002(2) RCR (Rent) 11, it was re affirmed that the landlord is the best judge of his own requirements and the bonafide need must be objectively tested.
Decision
73. In view of my aforesaid findings, the eviction petition stands allowed.
As a consequence thereof, an eviction order is hereby passed under section 14 (1) (e) of the Delhi Rent Control Act, against the respondent (through LRs) qua the suit premises i.e of Shop No.1, situated at the ground floor of Property No.S15, Ground Floor, Green Park (Main), New Delhi16. However in view of Sec 14 (7) of the Act, this eviction order shall not be executable for a period of six months from today. Original documents, if impounded, be returned to the rightful claimant. The parties are left to bear their own costs.
74. File be consigned to Record Room after due compliance.
Announced in the open court (Atul Krishna Agrawal)
on 28.04.2018 Administrative Civil Judgecum
Additional Rent Controllercum
Commercial Civil Judge: (South):
Saket District Courts: New Delhi
Evi. Ptn No. 6338/16 Arun Kumar Nayyar Vs Rajni Bahl Page 29/29