Delhi District Court
Shri Sirajuddin vs Shri Vasudev Parsad on 26 February, 2009
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IN THE COURT OF SH. PRAVEEN SINGH, ARC (NORTH EAST),
KARKARDOOMA COURTS, DELHI.
E36/09
IN THE MATTER OF:
1. SHRI SIRAJUDDIN
S/O LATE SH. SHAMSUDDIN
R/O FLAT NO. 11521153,
JANTA FLATS,
NAND NAGRI,
DELHI110093.
2. SHRI LIYAKAT ALI
R/O FLAT NO. 11521153,
JANTA FLATS,
NAND NAGRI,
DELHI110093. .... PETITIONERS
VERSUS
SHRI VASUDEV PARSAD
S/O SHRI PURAN CHAND
R/O M113, SUNDER NAGRI,
NAND NAGRI EXTN.,
DELHI110093.
ALSO AT:
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R.K. STUDIO
1153, JANTA FLATS,
NAND NAGRI, DELHI110093. .... RESPONDENT
DATE OF INSTITUTION: 13.05.2008
DATE OF JUDGEMENT: 26.02.2009
ORDER
1. The present petition u/s 14(1) (e) read with Section 25B of the DRC Act, has been filed by the petitioners against the respondent.
2. The case of the petitioners is that they are the landlords/ owners of the flats bearing nos. 11521153, Janta Flats, GTB Enclave, Nand Nagri, Delhi. The respondent is a tenant in respect of one room in the said premises. The tenanted premises were letout for residential purposes to the respondent by Shri Shamsuddin, father of the petitioner but, the respondent started the business of photography in the said premises. The rate of rent for the tenanted premises is Rs.2,000/ per month exclusive of electricity and other charges. The :: 3 ::
premises were letout on 08.04.1992 and the tenancy was oral. It is further submitted that the petitioners require the tenanted premises bonafidely for themselves and their family members dependent upon them. It is further submitted that the petitioners have no other reasonably suitable accommodation except the property no. 1152 1153, Janta Flats, Nand Nagri, Delhi. It is further submitted that the petitioner no.1 has in his family his wife and four children. The eldest son of the petitioner no.1 named Mohd. Muzammil Ahmed is doing B.Com.(Hons.) from Delhi University and also doing Software Engineering/ Computer Course from NIIT, Dilshad Garden and needs a separate room for his studies. The second child of the petitioner th no.1 is a girl named Sadrun Nisha aged 18 years and studying in 12 class. She too needs a separate room with computer. The third child of the petitioner no.1 is son namely Mudassir aged 17 years who is appearing in High School examination and is doing english course :: 4 ::
from Swiss School of language and also doing computer course. He also needs a separate room for his studies for proper development and growth. The fourth child is the son namely Mubeen of petitioner th no.1 whose age is 14 years and is studying in 9 class and he too needs sufficient space for his studies and living. Petitioner no.1 and his wife also need a separate bed room for themselves and one drawing dining and one guest room.
3. The petitioner no.2 in his family is having his wife and four children. The first child of petitioner no.2 is a girl named Zameerun Nisha aged 18 years and is studying in class 12 and is doing D.T.P. Computer Course from Jovial Institute, Janta Flats, Nand Nagri, Delhi 93 and hence she needs a separate room with computer. The second th child is Mohd. Musaddiq aged 15 years and studying in class 8 . He also needs a separate study room. The third child is a daughter th namely Gulshan aged 12 years studying in class 7 and the fourth :: 5 ::
child of petitioner no.2 is Abdul Razzaq, aged 8 years and studying in rd class 3 . Hence, the minimum residential accommodation needed by each of the petitioner is four bed rooms each with separate drawing dining rooms and kitchens. It is further submitted that the petitioners have a large number of relations who keep visiting the petitioners and petitioners at least need two separate guest rooms. It is further submitted that petitioner no.1 is an expert in Vastu Shastra and and lot of people having faith and trust on petitioner no.1 visits the house of petitioner and a big drawing room/ Baithak is provided for the said purpose. It is further submitted that the present accommodation with the petitioners is very less keeping in view of the large family of the petitioners and they are in urgent requirement of the tenanted room as shown in red colour in the site plan. The second floor of the property consists of one open terrace with two kitchens for the families of petitioners no. 1 and 2 alongwith bath and W.C. The first floor of the :: 6 ::
accommodation has three bed rooms which are in occupation of petitioner no.2 and his children and three grownup children of petitioner no.1 are adjusting with great difficulty into the rooms on the first floor and there are frequent fights amongst the children due to paucity of accommodation. Therefore, the petitioners need four more rooms to meet their requirements. Therefore, the families of the petitioners consist of 12 persons in all and there are hardly three rooms on the ground floor and the petitioners have no reasonably suitable/ sufficient alternative, residential or nonresidential accommodation except with the accommodation described above. Moreover, some children of each of the petitioners are major and are of marriageable age.
4. The respondent on being served with the notice of the petition filed the present application for grant of leave to defend. In the application it is submitted that the petition is not maintainable under :: 7 ::
section 14(i)(e) of the DRC Act as the petitioners have 12 rooms and one shop under the possession and the same are available with them in the property bearing no. 11521153, Janta Flats, GTB Enclave, Nand Nagri, Delhi. There are five rooms and one shop on the ground floor and the said shop can be easily used for residence of the petitioners and their family members. Four rooms on the first floor and 3 rooms on the second floor are also available for their residence and their family members dependent upon them. It is further submitted that the petitioners have got suitable and reasonable accommodation in Delhi. Besides 13 rooms in the premises in which the tenanted property is situated, they have a property at Seema Puri, Delhi and another vacant plot measuring about 300400 sq.yds. at Tahirpur, near Leprosy Hospital, Tahirpur, Delhi which can also be used for residential purposes. Thus, the petitioners have sufficient residential accommodation themselves and their family members. It is further :: 8 ::
submitted that the petition is not maintainable because the premises in question were letout by the father of the petitioners for commercial purposes by way of written agreement dated 31.03.1992 and the respondent has been running a photography shop under the name and style of 'M/s. R.K. Studio' since 08.04.1992 and his son and his father are working with him as helping hand. All of them have got no other independent source of income except the shop in question. It is further submitted that the petitioners have wrongly mentioned that there was no written rent agreement or that the rate of rent was Rs.2,000/ per month exclusive of electricity and water charges. It is further submitted that the petitioners and their family members have no bonafide requirement of the premises in question for the purposes of their residence. It is further submitted that in fact the shop in question was builtup by the father of the petitioners Shri Shamsuddin besides four other shops and in the year 1992when the respondent took the :: 9 ::
present shop on rent, there were five shops in the property no. 1152 and 1153, Janta Flats, Nand Nagri, Delhi. One tenant Sh. Yaqub was working as a hair dresser in one of the shops and has vacated the said shop five years ago and at present the shop is being run by petitioner. Shop no.2 was vacated by the tenant Prem Chand about four years ago and similarly, another shop was in possession of Sh. Dinesh Kumar who was running the jewellery business. He had also vacated the shop four years ago. The shop no.4 was also vacated by the tenant Yogender Sharma and as such the petitioners have already got possession of the four shops in the front of the premises in question and three of the shops i.e. shops no. 2,3 and 4 have been converted into residential rooms and the same are being used by the petitioners for their residence and for the use of the family members. It is further submitted that in a civil suit bearing no. 421/96 titled as Yogender Kumar Sharma V/s. Shamsuddin & Others, the statement of the :: 10 ::
respondent was recorded on 08.05.2002 in which he stated that he had been doing the business of photographer since 1992 and in the shop under his possession and no suggestion was put by the counsel for the petitioners and their father that the premises was letout for residential purposes and that the respondent changed the user of the shop without consent of the petitioners and their father.
5. In reply to the application, it is denied that the petitioners have 12 rooms and one shop or that there are five rooms and one shop at the ground floor or that there are 4 rooms on the first floor or that 3 rooms on the second floor. It is again submitted that there are only 3 rooms measuring about 8X6 ft. besides one drawing / professional room, one bathWC and two entrances at the ground floor which are not sufficient to accommodate the petitioner no.1, his wife and four children who are of growing age. The petitioner no.2 is residing at the first floor having only three rooms which are very small :: 11 ::
which are not sufficient for the family of petitioner no. 2. The second floor has no room except two kitchens and bath WC which are being used by the petitioners and their family members. It is denied that the petitioners do not require the tenanted premises for their own residence or for the residence of family members dependent upon them or that the petitioners have got suitable residential alternative accommodation in Delhi or that there are 13 rooms in their possession. It is denied that there is any property situated at Seema Puri, Delhi which may be owned or in possession of any of the petitioners. No number of such alleged property has been stated by the respondent. The petitioners do not have any property at Seema Puri, Delhi. As regards the plot of land situated at Tahirpur, Delhi, it is stated that it is an agricultural land which was allotted by the DDA to the father of the petitioners for agricultural purposes in lieu of agricultural land surrendered by him and, cannot be used for residential purposes. It is :: 12 ::
submitted that the respondent has admitted that it is a vacant plot without any construction on it and the DDA had demolished even an small temporary hut, which was there for keeping the agricultural produce and the agricultural implements. Even otherwise, the plot is situated near a sewage (Nala) and is in an in sanitary condition. It is further submitted that no construction exists on it nor can be raised by the petitioners, as per the terms & conditions imposed by the DDA. It is denied that the petitioners have enough or sufficient residential accommodation for themselves or for their family members in the property in dispute or that they have suitable alternative residential accommodation. It is denied that the premises in question were letout for commercial purposes, as alleged.
6. I have heard the ld. counsels for the parties and perused the record carefully.
7. The controversy between the parties boilsdown to two :: 13 ::
points:
(i) Whether the tenancy was created for residential or commercial purposes and if it was created for commercial purposes, then whether section 14(1)(e) is applicable to the present proceedings?
(ii)Whether the petitioners have sufficient accommodation in the property in question of which the tenanted premises forms a part or have any alternative accommodation available with them?
8. The first contention raised by the ld. counsel for the respondent is that the tenancy was created for commercial purposes and therefore, section 14(1)(e) of the DRC Act is not applicable to the present proceedings and accordingly the respondent should be granted leave to defend. As per the earlier position, the contention that the tenancy was for commercial purposes could have been a triable issue because if it was proved that the tenancy was for commercial purposes, section 14(1)(e) of the DRC Act would be inapplicable. However, in the light of judgement of Hon'ble Supreme Court in Satyawati Sharma V/s. Union of India 148 (2008) DLT 705 (SC), the portion of Section 14(1)(e) of the DRC Act which differentiated between the residential and commercial tenancy for the purposes of Section 14(1)(e) of the DRC Act, has been declared to be :: 14 ::
ultra vires. Their lordships had held that Section 14(1)(e) of the Act was violative of the doctrine of equality embodied in Article 14 of the Constitution of India in so far as it discriminates between the premises letout for residential or for nonresidential purposes when the same was required bonafidely by the landlord for occupation for himself or for any member of his family dependent on him. It was further held that to meet the ends of justice, the discriminatory portion of Section 14(1)(e) of the DRC Act was struckdown and the remaining portion will be read as under: "that the premises are required bona fide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation."
9. In view of the above, section 14(1)(e) as it stands today does not differentiate between the premises which were letout for residential purposes and the premises which were letout for commercial purposes; if, the landlord requires bonafide the said :: 15 ::
premises for himself or for any members of his family dependent upon him. Therefore, in these circumstances, when the distinction between the premises letout for residential purposes or commercial purposes has been obliterated by the judgement of Hon'ble Supreme Court, the contention of the respondent that the premises were letout for commercial purposes would not make any difference to the outcome of the present petition if, the petitioner satisfies or proves other ingredients necessary to entitle him for an order of eviction under section 14(1)(e) of the DRC Act. Therefore, by this ground the respondent has not been able to raise any triable issues.
10. The second contention of the ld. counsel for the respondent has been that there is sufficient accommodation available with the petitioners in the premises of which the tenanted premises forms a part. The respondent has contended that the petitioners have in their possession 13 rooms including one shop at the ground floor :: 16 ::
and the same is sufficient for accommodation of the petitioners and their family members. Both the parties have filed their respective site plans. The outlines of the site plans of both the parties are exactly the same. However, there are differences to the nomenclatures given to the rooms and the uses to which they are put. As per the respondent's site plan, on the ground floor there are four rooms, one hall, two shops, one latrine and bath and a passage whereas; as per the petitioners' site plan, behind the tenanted premises is a store and not a room and adjacent to the tenanted premises is entrance which, the respondent in his site plan has shown to be a room. If, the respondent's site plan is taken to be correct that there is no entrance to the ground floor of the premises in question which is not possible, therefore, the site plan of the petitioner showing the alleged room to be the entrance appears to be more correct. Therefore, there are six rooms including the tenanted room on the ground floor of which five :: 17 ::
are in possession of the petitioners. On the first floor, the site plan of both the parties is exactly the same and thus, on the first floor there are four rooms in possession of the petitioners. On the second floor, both the parties have shown four rooms, one bathroom and one latrine. The respondent in his site plan has named all of them the rooms whereas the petitioners in their site plan have claimed two rooms to be kitchens and two rooms to be stores. Thus, in total, at the most, the petitioners have in their possession 13 rooms. Their families consist of 12 members. There are 8 children of whom 7 are teenagers who would certainly require 7 separate rooms for their accommodation so that they can grow in a healthy and independent environment. Both the petitioners alongwith their wives would also require one bedroom each. Certainly, there is a requirement of kitchens for both the families, which surprisingly the respondent in his site plan has nowhere shown to be existing. So the two of these rooms would be :: 18 ::
taken to be kitchens and each family would at least require a living/ drawing room. Thus, very strictly applied all the 13 rooms are required for the residential purposes of the petitioners and their families. We cannot lose sight of the fact that the families also need some small rooms as store rooms to store their goods. If these rooms are occupied, as stated above, there are no store rooms available for the petitioners or their families. The need of a drawing room for these families to receive guests and entertain them cannot be exaggerated. Therefore, the accommodation available with the petitioners in the premises of which the tenanted premises forms a part, is far from sufficient. In these circumstances, I find that the petitioners have shown that they bonafidely need the premises in question for their residence.
11. The next contention, as raised by the ld. counsel for the respondent is that the petitioners had under them four other tenants in :: 19 ::
various shops which all of them have vacated and, out of the same three have been converted by the petitioners for their residential requirement and therefore, the petitioners have filed the present petition malafidely. I disagree with this contention because if there were commercial premises available which, the petitioners succeeded in getting vacated and, instead of letting them at a higher rent, the petitioners used them for residential requirements for themselves and their families, it all the more goes to show that there is a need for residential accommodation of the large families of the petitioners.
12. The next contention of the ld. counsel for the respondent is that the petitioners have alternate accommodation available in the form of a house at Seema Puri, Delhi. This contention is entirely vague as the petitioners have clearly denied having any such house under their ownership and the respondents have failed to give particulars of such a house. Ld. counsel for the respondent has also :: 20 ::
contended that the petitioners have admitted owning a vacant plot at Village Tahirpur and therefore, there is a residential accommodation available with them and they can easily construct a house on the said plot. This contention is devoid of all merits because, admittedly it is a vacant plot. A vacant plot cannot be used for residential requirements and the respondent cannot force the petitioner to construct a house for himself instead choosing his already constructed premises to reside in.
13. In view of my above discussions, I find that the respondent has failed to raise any triable issues and as the relationship of landlord and tenant is admitted and the ownership of the petitioners is unchallenged, I find that the respondent is not entitled for grant of leave to defend. The application for grant of leave to defend of the respondent is accordingly dismissed.
14. As the application of the respondent for grant of leave to defend has been dismissed, an eviction order is hereby passed in :: 21 ::
favour of the petitioners and against the respondent in respect of the tenanted premises being one room in flats no. 11521153, Janta Flats, GTB Enclave, Nand Nagri, Delhi, more specifically shown in red colour in the site plan Ex.C1 (as exhibited by the court today).
15. File be consigned to record room.
Announced in the open court on th this 26 day of February, 2009 (This order contains twenty one (PARVEEN SINGH) pages and each page bears my signatures) ARC (NE) KARKARDOOMA COURTS DELHI.
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E36/09 26.02.2009 Present: None.
Vide my separate order, an application for grant of leave to defend filed by the respondent has been dismissed and an eviction order has been passed in favour of the petitioners. However, on the last date of hearing the respondent had filed an application under section 340 Cr.P.C. The same be registered separately as a miscellaneous petition and be attached with this file and be listed for reply and arguments on 14.04.2009.
(PARVEEN SINGH) ARC (NE) 26.02.2009