Delhi District Court
S. Gurinder Singh Bhatia vs Sh. Atul Bansal on 31 July, 2018
(1)
IN THE COURT OF Sh. NAVJEET BUDHIRAJA,
ACJ/CCJ/ARC(WEST), TIS HAZARI COURTS, DELHI
E. No. 25908/16
Date of institution:. 05.09.2011
Date of Order: 31.07.2018
S. Gurinder Singh Bhatia
S/o late Sh. Jaswant Singh Bhatia
sole proprietor of
(i) M/s Premier Safe Company,
55, W.H.S. Furniture Block,
Kirti Nagar, New delhi.
(ii) M/s Dimple Iron Factory
55, W.H.S. Furniture Block,
Kirti Nagar, New Delhi.
....... Petitioner
Versus
Sh. Atul Bansal
S/o Sh. S.K. Gupta,
C/o 55-C, W.H.S,
Furniture Block,
Kirti Nagar, New Delhi ......Respondent
JUDGMENT
1. By virtue of this judgment, I propose to decide eviction petition S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (2) under Section 14(1) (e) of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act'), filed by the petitioner, hereinabove against the respondent.
2. Filtering out unnecessary details, the case of the petitioner is as under:
" Respondent Atul Bansal is a tenant in property no. 55, WHS, Furniture Block, Kirti Nagar, New Delhi in one shop measuring 16X12 shown as red color in site plan (for short "tenanted shop" ) which was rented out to him for commercial purposes at Rs.100/- per month which was later graduated to Rs.200/- per month. The petitioner is dealing in trade and manufacturing of steel and wooden furniture. The petitioner has a show room at 63, Rani Jhansi Road, and also at above mentioned address wherein the factory of the petitioner is situated where steel and wooden furniture is manufactured on ground floor and basement. In the manufacturing process, the iron / steel are cut in the basement and thereafter brought on the ground floor where hydraulic brake press is installed and manufactured goods are given shape. The petitioner intends to increase the manufacturing capacity by installing another hydraulic brake press as there are tenders / orders available. For this purpose tenanted shop is required as petitioner does not have other reasonable / suitable commercial accommodation.
The other properties which are under the ownership of petitioner are already in use which are mentioned herein below:
(i) D-30 Rajouri Garden, New Delhi. This is residential premises and self occupied by the petitioner.
(ii) C-7, Mansarover Garden, which consists of four floors but is let out to two tenants i.e. Rakesh Sharma and Jatin Goyal.
S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (3)
(iii) 55, WHC, furniture Block, Kirti Nagar, New Delhi which consists of basement, ground floor, first floor, second floor and third floor. Third floor is let out to M/s Om Sai International; second Floor is also leased out to M/s OSAAEZ; First floor is in occupation of the Petitioner/owner and is being used as showroom for display of samples of furniture items including steel furniture and wooden furniture".
3. Respondent contested the eviction petition by filing his written statement urging that the present petition is not maintainable as Delhi Rent control act is not applicable and also there is no relationship of landlord and tenant between the parties. The relationship between the parties is premised on the memorandum of understanding dated 20.05.1992 which tantamount to usufructuary mortgage. Otherwise also petitioner is also having number of alternative accommodations in the form of one industrial plot at Tronika City, Ghaziabad, U.P., another industrial plot at section 37 Gurgaon, property no. 63 at Rani Jhansi Road, New Delhi, property at loha Mandi, Naraina, property at Cycle market Rani Jhansi Road, Paharganj, New Delhi. He has also let out two property i.e. C-7, Mansarovar Garden and Large portion of property bearing no. 55, WHS, Furniture Block, Kirti Nagar, New Delhi. Further a "pagri" amount of Rs.50,000/- was deposited with the owner of the building i.e. M/s Dimple Iron Factory on monthly payment of Rs.100/- as maintenance charges. Otherwise also the property where tenanted shop is situated is a commercial property which cannot be used for industrial purposes, therefore, petitioner cannot be permitted to install hydraulic brake press and thus the present petition is liable to be dismissed.
S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (4)
4. Replication was also filed on behalf of petitioner denying the averments of the written statement and reiterating those of the petition.
5. In petitioner's evidence, petitioner got examined himself as PW-
1. He tendered his evidentiary affidavit which is Ex.PW-1/A and also relied upon the documents i.e. PW1/1 to Ex.PW1/5 . Lease deed dated 01.06.2011 in favour of his tenant Sumeet Chhabra and also lease deed dated 25.02.2010 in favour of his tenant Sonali Chhabra, photocopies of these lease deeds are Ex.PW1/6 and Ex.PW1/7. He was cross-examined on behalf of respondent. Thereafter, petitioner's evidence stood closed vide order dated 16.10.2014.
6. During respondent's evidence, respondent Sh. Atul Bansal got examined himself as RW-1 vide his affidavit Ex. RW-1/A and also relied upon the documents i.e. copy of memo of understanding dated 20.05.1992 is Ex.RW1/1, copy of order in suit filed by respondent against NDPL is Ex.RW1/2, certified copy of plaint filed by respondent against the petitioner is Ex.RW1/3, order passed in the last certified copy of plaint is Ex. RW1/4 and certified copy of plaint filed by one Sudershan against the petitioner as well as respondent is Ex.RW1/5. He was cross-examined on behalf of petitioner. Thereafter, respondent's evidence was laid to rest vide order dated 28.02.2015.
7. Both the Ld. Counsel addressed their respective arguments. Arguments raised on behalf of both the parties would be deliberated upon alongwith the discussion on the essential ingredients of the petition under Section 14 (1) (e) of DRC Act. Short synopsis were also S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (5) filed on behalf of petitioner. Ld. counsel for the petitioner relied on the following judgments:
(i) Bata India Ltd. v. Anil Kumar Bahl, 189 (2012) DLT, 680.
(ii) Surinder Singh v. Jasbir Singh, 172 (2010) DLT 611
(iii) Hot Chand v. Dhanpat Rai & Ors, 168(2010) DLT 78
(iv) Rajender Kumar Sharma & Ors. v. Leela Wati & Ors., 155 (2008) DLT 383
(v) Krishan Lal v. R.N. Bakshi, 169 (2010) DLT 769.
(vi) Tersem Singh v. Gurvinder Singh, 173 (2010) DLT 379
(vii) Krishan Kumar Gupta v. Swadesh Bhushan Gupta, 152 (2008) DLT 556
(viii) Satyawati Sharma v. Union of India & anr, 148 (2008) DLT 705 SC
(ix) Vinod Arora V. Deepak Aggarwal, 172 (2010) DLT 112
8. Written submissions were also filed on behalf of respondent. In support of his contentions, Ld. Counsel for the respondent has relied upon the following judgments :-
(i) Bantawala and Company v. Life Insurance Corporation of India and Anr., (2011) 13 Supreme Court Cases 446
(ii) BSNL and Ors. V. Subhash Chandra Kanchan and Anr., (2006) 8 Supreme Court Cases 279
(iii) Siddalingamma and Anr. v. Mamtha Shenoy, (2001) 8 SCC 561
(iv) Deena nath v. Pooran Lal, (2001) 5 SCC 705
9. In order to succeed in the petition u/s 14(1)(e) of DRC Act, three ingredients are essentially to be proved by the petitioner which S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (6) are as follows:-
(i) Petitioner is the owner and landlord in respect of the tenanted premises and respondent is the tenant under him.
(ii) That he requires the premises bonafide for himself or for any member of his family dependent upon him.
(iii) That he has no other reasonably suitable accommodation.
I shall deliberate upon the said ingredients as below :-
9(a) Petitioner is the owner and landlord of the tenanted premises and respondent is the tenant under him..
The mainstay of the stand of Counsel for respondent is that the respondent cannot be treated as a tenant in the tenanted shop in view of the Memorandum of Agreement between the parties which is essentially a usufructuary mortgage. Further, there is a clause in the said agreement that the owners i.e. the petitioner herein will not get the shop vacated at any point and is only when the respondent wishes to ask for refund of Rs.50,000/-, petitioner would get vacant possession of the shop. This tendentious contention of Counsel for respondent certainly has some spine as the memorandum of Agreement between the parties Ex.RW/1 dated 20.05.1992 clearly underpins the abovenoted contentions. However, after trawling the facts and circumstances of the case and particularly the terms and conditions of this memorandum, I have reservations that this agreement partakes the character of usufructuary mortgage.
In the Judgment titled as A. Narayana Rao And Etc. vs S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (7) Laxmi Amma And Ors. decided on 17 June, 1994, AIR 1994 Ker 371, Hon'ble Kerala High Court has held as under :
"13. This would take us to examine what would be a usufructuary mortgage as defined under the Transfer of Property Act, 1882 as per the provisions of law concerned and to apply the said provisions to the texts of the documents, apart from the consideration of the provisions of the Kerala Land Reforms Act, 1963 independently and separately, as the facts, admitted and proved, of the second appeal, it is contended, confer Deemed Tenancy rights on the claimants in regard thereto. We would first consider the legal provision as to what are and what are not, the legal requisites of "usufructuary mortgage."
14. Mortgages are defined in Section 58 of the Transfer of Property Act, 1882 and it would be necessary to consider "usufructuary mortgage" and "anomalous mortgage" in comparison as we are concerned with possessory mortgage. Analysis of Section 58(d) provides the following ingredients, namely, (a) delivery of possession or a binding in regard thereto; (b) authority to the mortgagee to retain possession until payment of mortgage money and to receive the rents and profits; and (c) the rents and profits are to be appropriated in lieu of interest or in payment of the mortgage money in part or in whole in regard to the either of them. As defined above in Section 58(g) of the Transfer of Property Act, 1882, any other manifestation would classify the document as "Anomalous Mortgage." Statutory limitation fixed by Section 10(v) of the Kerala Land Reforms Act, 1963, would confine the Court to fix limits of consideration as to whether a document is "usufructuary mortgage" or not to the above considerations.
It is limpid that the concept of usufructuary mortgage as canvassed out from the abovesaid judgment is on different S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (8) footing then that of the terms and conditions incorporated into the agreement Ex.RW/1. This agreement strictly cannot be termed as usufructuary mortgage, although it loosely hinges upon the concept of mortgage.
Elaborating further on this, let us now look at the cross-
examination of respondent/RW-1. Respondent/RW-1 in his cross- examination has expressed nescience about his status in the tenanted shop. Thereafter, certain questions were hurled upon him regarding his status as being a tenant in the tenanted shop as admitted by him in his leave to defend application. The relevant extract of his testimony is as under :
" It is correct that I have mentioned in my affidavit for leave to defend in para 2 that I am a tenant in the property in question and the same was let out to me by M/s Dimple Iron Factory. These submissions are correct. It is correct that I have made similar submissions in para 3 of leave to defend application. The submissions in para 4 at page 9 of my affidavit for leave to defend regarding deposit of pagri is correct. It is correct that I had filed petitions U/s 27 of DRC Act for deposit of rent against the petitioner and these petitions were allowed. I have made submissions in my suit filed against the petitioner for the plaint Ex.RW1/3. I have correctly stated in para three therein that the rent for the premises paid to the petitioner by me was earlier Rs.100/- per month and subsequently Rs.200/- per month and rent has been paid and acknowledged till April 2004. "
From the abovenoted admissions made by respondent/ RW-
1, it would be difficult to assume that the respondent cannot be treated as a tenant in respect of the tenanted shop. When the S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (9) respondent has admittedly invoked the jurisdiction of DRC Act by filing petitions under Section 27 for deposit of rent against the petitioner and which petitions were admittedly allowed, respondent cannot be permitted to reprobate and approbate in this petition by resorting to the memorandum of understanding Ex.RW/1 which in my opinion pales into insignificance. It would be preposterous to permit respondent to recant from his own stand in the leave to defend application that he is a tenant in the tenanted shop which was let out to him and with regard to which he was paying Rs.100/- per month which was later enhanced to Rs.200/- per month. Furthermore, the term 'rent' as used in DRC Act includes any kind of payment or charges for use of the property which in the instant case would cover the maintenance charge of Rs.100/- which lateron was increased to Rs.200/- and which admittedly respondent had paid to the petitioner as well as deposited by way of filing petition under Section 27 of Delhi Rent Control Act.
As far as ownership of the petitioner is concerned, petitioner has testified in paragraph 3 and 4 of his affidavit Ex.PW1/A which is reproduced as under :
"3. That the deponent/petitioner is the owner of property bearing no.55, WHS, Furniture Block, Kirti Nagar, New Delhi. The petitioner has become the owner of the said premises by way of inheritance from his father Late Sh. Jaswant Singh Bhatia. It is submitted that originally this property was owned by the real Uncle of the petitioner (father's brother) Sh. Kuldeep Singh who was proprietor of M/s Premier Safe Company and he was having a Lease Deed executed in favour S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (10) by DDA. The petitioner's father had also become owner of this property by virtue of will of his brother Late Sh. Kuldeep Singh, who expired on 03.11.1997. Even otherwise as per the family settlement between the petitioner's father and his brother, the property in question came to the share of petitioner's father. The petitioner has now inherited this property by virtue of Will of his father, who expired on 12.11.08. This property in question has now been mutated in petitioner's name by DDA vide letter dated 29-1-2010. Later on DDA also executed Conveyance Deed dated 22-7-2011 in favour of the petitioner. Thus the petitioner is the owner of the property in question, having inherited the same. The letter of mutation given by DDA in favour of the petitioner is Ex.PW1/1 and the Conveyance Deed executed by DDA in favour of the petitioner is Ex.PW1/2.
4. That after the death of petitioner's father, some differences arose between the petitioner and her mother concerning the property in question. The petitioner was forced by circumstances to file a suit for declaration against his mother. However the same was then settled and compromised and due to the same, a Compromise Deed dated 28-7-2011 was passed by the Court of Ms. Chavi Kapoor, Civil Judge, West, Tis Hazari, Delhi in Civil Suit no.200/2011, whereby the petitioner was declared the owner of the property in question. The certified copy of the said Decree sheet is Ex.PW1/3".
The above narration of the petitioner regarding his ownership over the tenanted property has not been specifically repudiated on behalf of respondent. It has also been fessed up in cross examination by respondent/RW-1 that petitioner is the owner of the tenanted shop.
S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (11) Further, after respondent considered petitioner as his landlord by filing petitions under Section 27 of DRC Act, law of estoppal also preempts the respondent from challenging the land lordship/ownership of petitioner. In the judgment of Sushil Kanta Chakarvarty Vs. Rajeshwar Kumar, 79 (1999) DLT 2010, Hon'ble Delhi High Court had the occasion to elaborate the concept of ownership as envisaged in aforenoted provision of DRC Act. It has held as under:
"In case of a petitioner u/s 14 (1) (e) of the Act, in order to show the ownership, it is not necessary to show absolute ownership. The legislature used the word "owner", in Section 14 (1) (e) not in the sense of absolute owner, but it was used in contra distinction with a landlord as defined in the Act who is not an owner but who owns the property for the benefit of another person and merely collects the rent. If the person collected the rent for himself and for his own benefit and the property is his own even in the loose sense and no one is claiming rights over the property, then he is considered as owner for the purpose of Section 14 (1) (e) of the Act. Even possessory rights over the property of a person have been given recognized as ownership visa vis tenant under Delhi Rent Control Act".
In the judgment reported Madhu Sudan Kakkar vs. Jawahar Lal 2017(1) RCR (Rent) 383 of Hon'ble High Court of Delhi observed in para 17 which is reproduced as under :-
"17. The Supreme Court in the case of Shanti Sharma and Ors. vs. Ved Prabha and Ors., 1987(2) R.C.R. (Rent) 300:
AIR 1987 SC 2028 noted that the ownership is not to be understood as absolute ownership but only a title better than S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (12) the tenant. The court held as follows :14. The word 'owner' has not been defind in this Act and the word 'owner' has also not been defind in the Transfer of Property Act. The contention of the learned Counsel for the appellant appears to be is that ownership means absolute ownership in the land as well as of the structure standing thereupon. Ordinarily, the concept of ownership may be what is contended by the counsel for the appellant but in the modern context where it is more or less admitted that all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Govt. or the authorities constituted by the State and in this view of the matter it could not be though of what the Legislature when it used the term 'owner' in the provision of Section 19(1)(e) it thought of ownership as absolute ownership. It must be presumed that the concept of ownership only will be as it is understood at present. It could not be doubted that the term 'owner' has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. This Act has been enacted for protection of the tenants. But at the same it has provided that the landlord under certain circumstances will be entitled to eviction and bonafide requirement is one of such grounds on the basis of which landlords have been permitted to have eviction of a tenant. In this context, the phrase 'owner' thereof has to be understood, and it is clear that what is contemplated is that where the person builds up his property and lets out to the tenant and subsequently needs it for his own use, he should be entitled to an order or decree for eviction, the only thing necessary for him to prove bonafide requirement and that he is the owner thereof. In this context, what appears to be the meaning of the term 'owner' is vis-a- vis the tenant i.e. the owner should be something more than S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (13) the tenant. Admittedly, in these cases where the plot of land is taken on lease the structure is built by the landlord and admittedly he is the owner of the structure. So far as the land is concerned, he holds a long lease and in view of the matter as against the tenant, it could not be doubted that he will fall within the ambit of the meaning of the term 'owner' as is contemplated under this Section.........."
Ld. Counsel for the respondent has relied upon the judgment of Hon'ble Supreme Court in Banatwala Vs. Life Insurance Corporation of India (Supra.), BSNL v. Subhash Chandra v. Kanchan (Supra) and Shiva Yogeshwara Cotton Press vs. M. Panchaksharappa, (1962) 3 SCR 876 to stress upon the Memorandum of Agreement containing the term that permanent tenancy has been created in favour of the respondent. However, as has already been discussed when the respondent has invoked the provisions of DRC Act under Section 27, the concept of permanent tenancy cannot be agitated and thus these judgments are not of any benefit to the respondent.
Ld. Counsel for respondent has also referred to previous litigations between the parties i.e. suit for permanent injunction which was filed against the petitioner and his family wherein a statement was given on behalf of petitioner that respondent shall not be disposes without due process of law. Respondent in his evidence has also got exhibited these proceedings. However, this contention is not at all significant as the petitioner has infact followed the due process of law by filing the instant petition and otherwise, previous litigations between the parties do not have S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (14) much bearing on the outcome of the present petition.
Ld. Counsel for the respondent has also raked up the issue that Sh. D.P. Aggarwal was also one of the parties to the memorandum of understanding but he has not been impleaded in the present petition. This argument was raised only during final arguments without there being any pleading or evidence in this regard, therefore this contention is not worth giving any consideration. As far as payment of Rs.50,000/- to the petitioner is concerned, that constitutes a separate cause of action for which respondent is at liberty to avail remedies as per law.
Thus, in the light of the above discussion, the relationship of landlord and tenant between the parties and ownership of the petitioner qua the tenanted shop stands established.
9 (b) That the petitioner requires the premises bonafide for himself or for any member of his family dependent upon him.
Petitioner/PW1 Gurinder Singh Bhatia has deposed about his bonafide need that he requires the tenanted shop for installing additional hydraulic press as he is finding the current manufacturing capacity as insufficient. It is not in dispute that petitioner is dealing in trade and manufacturing of steel and wooden furniture. It is further testified that manufacturing process takes place at basement and ground floor of the property where the iron/steel are cut and thereafter brought on the ground floor in the portion show as A and B in the site plan Ex.PW1/4 where one S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (15) hydraulic press has been installed and manufactured goods are given shape. There is a polishing and painting unit which is being run in the portion shown as D & F in the site plan. All these facts have not been specifically expostulated on behalf of respondent. Respondent has also acknowledged in his cross examination that wooden goods/ furniture are manufactured and displayed on the first floor. He could not say anything about whether the basement is used for storage and cutting of steel furniture. But since no specific questions have been posed to the petitioner in his cross examination regarding the nature and manner of his business as deposed, this part of the testimony of petitioner /PW-1 stands admitted.
Further to prove that petitioner is supplying furniture to various government departments and institutions, he has filed various tenders which are Ex.PW1/5 (colly.). Respondent has also acknowledged in his cross examination that the petitioner has been supplying furniture to Government undertaking/offices. In view of these facts and circumstances, the requirement of the petitioner to install one more hydraulic brake press seems to be plausible. Every person has a right to make endeavors in such direction which could facilitate the growth of his business. In view of ever increasing neck and neck competition in any business, it is the endeavor of every business man to exploit all the resources at his disposal which could provide necessary fillip to his business. Petitioner has a tenable case that he intends to install another hydraulic brake press appurtenant to the hydraulic brake press already installed and for which tenanted shop is required.
S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (16) Respondent has admitted in his cross examination that t enanted property is located at point C which is adjacent to point A and B where the already existing hydraulic brake press is shown to have been installed. It is also an admitted position that in shop Mark at point D and E, the petitioner carries out his work of spray painting of furniture. Thus, the bonafide requirement of the petitioner to install another hydraulic brake press machine for expansion of his business cannot be doubted.
Reliance is placed upon the judgment titled as Raghubir Singh Bisht (D) through Lrs and others vs. Raghunath Singh Negi and others, 2017 (2) RLR 214 (S.C.). Para 19 of same is reproduced below for easy reference:
" 19. It is thus not as if the requirement for the commercial premises in the tenancy of the petitioner/tenant, pleading which the petition for eviction has been filed, is fanciful or that the respondent/landlord and his family members are for the first time pleading requirement for commercial purposes without till now being in business. Once it is the admitted fact that the respondent/landlord and his family members are a business family and are carrying on their business from whatever portions are available or from time to time have becoem available in the property no. 1483-1492, Ward No. XIV, Gali Chuleh Wali, Sadar Nala road, Pan Mandi, Sadar Bazar, Delhi, they are always entitled to seek eviction of tenant in other portions of the aforesaid property for the purpose of expanding their business".
One of the contentions of the Ld. Counsel of the respondent is that the area of tenanted shop would be S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (17) insufficient to house hydraulic brake press machine as admittedly the machine already installed is measuring 10 x 8 ft. approximately and the length of the tenanted shop is 16 ft. This contention does not seem to be tenable as it is for the petitioner to make necessary arrangements so as to accommodate another hydraulic brake press machine. Otherwise also, it is not the case of the respondent that there is marked difference between the measurement of the area of the tenanted shop with that of the size of the machine. Some minor alterations can be made any time in order to make way for the installation of new machine. Petitioner has already denied the suggestion that the hydraulic machine cannot be installed in the tenanted shop. Thus, this contention is not sufficient enough to knock out the case of the petitioner.
On the issue of bonafide requirement, the judgment relied upon by respondent in Siddalingamma and Anr. v. Mamtha Shenoy (Supra.) lays down the settled proposition of law about which there is no quarrel, but as far as factual position is concerned, the same is not applicable.
9(c) That he has no other reasonably suitable accommodation.
Regarding availability of alternative accommodation, petitioner / PW-1 has testified that the property in question comprises of basement, ground floor, first floor, second floor and third floor. The petitioner is in possession of the basement, first floor and some portion on the ground floor for the purpose of his business. The second floor is in occupation of M/s. OSSAE'Z with Ms. S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (18) Sonali Chhabra as its proprietor as tenant and third floor is occupied by Mr. Sumit Chhabra as proprietor of M/s. OM Sai International. All these facts have not been refuted on behalf of respondent.
Respondent/RW-1 has testified in para no. 15 of his evidence about the petitioner having sufficient alternative properties. The said paragraph is reproduced as below:
"That the petition filed by the petitioner is not maintainable as he is having sufficient alternate properties that include the two industrial plots one at Tronica City, Ghaziabad, (U.P) and another at Sector-37, Gurgaon (Haryana). Besides the petitioner is an owner of several Commercial property including property bearing No. 63, Rani Jhansi Road, New Delhi and property at Loha Mandi, Naraina, New Delhi and property at Karol Bagh, New Delhi and Cycle Market, Jhandianwala. The petitioner is also owner of two properties bearing No. C-7, Mansrover Garden, New Delhi and is also having the possession of 95 per cent of the built up area in property bearing No. 55, WHS, Furniture Block, Kirti Nagar, New Delhi. I submit that property bearing No. 55, WHS, Furniture Block, Kirti Nagar, New Delhi is having around 18000 sq. ft. built up area, out of which the respondent possesses only 190 sq. ft. of area".
It can be delineated from the above extract of testimony of respondent that all the alternate properties mentioned by him are situated at other places than the property in question where one hydraulic brake press is already installed and where the petitioner is carrying on his business. There is no quarrel regarding the proposition that the alternate properties if available with the S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (19) landlord should be suitable for his requirement. In the instant case, when the petitioner is admittedly carrying on his business at Kirti Nagar, New Delhi and where he intends to increase the manufacturing capacity by installing another machine, he is not expected to carry out the expansion by installing the machine at far away place from the current place of business. Thus, the properties as mentioned above at Ghaziabad, Gurgaon, Rani Jhansi Road, New Delhi, Naraina, Karol Bagh, Mansrovar Garden, New Delhi cannot be said to be suitable alternative accommodation.
Petitioner/PW-1 has also deposed that the property at Mansrovar Garden C-7, Delhi is a residential property consisting of four floors which has been let out to two tenants namely Sh. Rakesh Sharma and Sh. Jatin Goel. The residential property at D-30, Rajouri Garden, New Delhi is being used for the purpose of his residence. In other commercial property in Delhi i.e 63, Rani Jhansi Road, petitioner is running another showroom for the sale of furniture. No counter evidence has been led by the respondent in this regard.
As regards the ambitious argument of counsel for respondent that petitioner is liable for concealment of his properties, it is observed that this contention is otiose in view of the dictum of High Court of Delhi in the case titled as Hoor Chama Begum v. Hurriyat Khannam & Ors., 2017 (I) RLR 636 (Del.), wherein it is held as under:
"30. The next contention of the respondent is that availability of S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (20) the property at Muradi Raod was not mentioned by the petitioner and whether this fact i.e. that the petitioner did not mentioned about the said property at Muradi Road, Okhla, Delhi in the eviction petition is fatal to the eviction petition filed by the petitioner. The petitioner/landlord is normally obliged only to disclose such properties which can be said to be an alternative suitable accommodation available with the petitioner.
This court in the case of Mukesh Kumar v.
Rishi Prakash, (2010) 174 DLT 64 : [2009 (2) RLR (Del.) 562] held as follows:
"22. As the portion situated on the ground floor (the two shops) and the first floor, the third floor and the terrace above the third floor in property bearing no. 3649 were being used by the petitioner for stocking his own trading goods, it could not be said that the said portions were 'available' with the petitioner, as they were alrelady being utilized by him for his business. He was not obliged, in these circumstances, to specifically make a disclosure with regard to these portions as they were not "vacant" and "available" with him for the purpose for which he required the tenanted premises. A landlord, while seeking the eviction of a tenant on the ground of bonafide requirement for himself or his family members defendant upon him is not accepted to disclose the manner in which he is utilizing the 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 for him. For instance the extent of residential accommodation available with the landlord who S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (21) seeks the eviction of the tenant from a purely commercial or industrial premises, is wholly irrelevant. Similarly, when in the present case, the requirement of the petitioner was for the purpose of setting up of the professional office of his son on the second floor of property No. 3649, it was not necessary for him to have disclosed in the eviction petition the fact that the ground floor, first floor, third floor and terrace floor portions of property no. 3649 were being utilized by him for the purpose of storing and stocking the goods in which he trades. The failure of the petitioner to disclose in the eviction petition itself, the manner in which the other portions of property no. 3649 were being occupied and used cannot ipso facto lead to the conclusion that the requirement of the landlord is not bona fide or that it raises a triable issue".
Thus, petitioner is not bound to disclose the properties which are not suitable or available for his purposes. Otherwise also in view of the discussion in preceding paragraph, the claim of the respondent regarding the availability of other alternative accommodation with the petitioner has already been debunked.
As regards the other contention that out of 17500 sq. ft. of area in the property, respondent is in possession of merely 192 sq. ft., it is held that since respondent has failed to prove that apart from the area under his occupation, some other portion of the property is also vacant, this contention of respondent does not pass any muster. Furthermore, it has already been discussed that the tenanted shop is situated adjacent to the place where one hydraulic brake press is already installed. Therefore, it would S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (22) be more suitable and feasible for the petitioner to install another machine adjacent to the already installed machine so as to efficiently carry out his business.
In the case titled as Madhu Sudan Kakkar v. Jawahar Lal, 2017 (1) RLR 354 (Del.), Hon'ble Delhi High Court has held as under :
"Coming to the first submission of the petitioner regarding property No.6425/1, Factory Road, Nabi Karim, New Delhi which is a four storey commercial building used by the respondent. It is submitted by the petitioner that the upper floors of the property are lying vacant and can be used by the respondent. It has been claimed by the respondent that the Ground Floor of the premises is occupied by him from where he is carrying his business under the name of "Jawahar Leather House". This submission was accepted by the ARC from the telephone bills and Form ST-8 of the said business. It is further claimed by the respondent that the upper floors are very old and dilapidated and can only be used for storage purpose. This is especially so as the upper floors are accessible though the passage on the ground floor which cannot be used for business as it will not attract customers. In any case the petitioner cannot dictate to the landlord from which premises he should start his business. The tenanted premises being on the ground floor would be more suitable for the respondent".
CONCLUSION
10. Petitioner has been able to join all the dots in so far as S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16 (23) building his case under Section 14 (1) (e) of DRC Act is concerned. Consequently, an eviction order is passed u/s 14 (1) (e), DRC Act against the respondent in respect of the tenanted shop i.e property no. 55, WHS, Furniture Block, Kirti Nagar, New Delhi in one shop measuring 16X12 shown as red color in site plan.
11. However, in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
12. No order as to costs. File be consigned to record room.
Digitally signed by NAVJEET NAVJEET BUDHIRAJA
BUDHIRAJA Date: 2018.08.02
11:05:02 +0530
Announced in the open Court ( Navjeet Budhiraja)
on this 31st day of July, 2018 ACJ/CCJ/ARC(West)
Tis Hazari Courts, Delhi
This Order contains twenty three pages and each page has been signed by me. Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2018.08.02 11:05:08 +0530 (Navjeet Budhiraja) ACJ/CCJ/ARC (West) Tis Hazari Courts/31.07.2018 S. Gurinder Singh Bhatia v. Atul Bansal No. 25908/16