Delhi District Court
Through Its President vs Smt. Vimla Devi on 27 February, 2020
IN THE COURT OF SHEFALI BARNALA TANDON,
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL RENT
CONTROLLER (CENTRAL) : DELHI
E79834/16
In the matter of :
Arya Anathalaya,
(known in English as Arya Orphanage),
1488, Pataudi House, Darya Ganj,
New Delhi110002.
Through its President,
Shri Sudhir Kumar Gupta.
......Petitioner
Versus
1 Smt. Vimla Devi,
wife of Late Pandit Durga Das,
2 Shri Adarsh Kumar Sharma,
son of Late Pandit Durga Das,
3 Shri Vijendra Kumar Sharma,
son of Late Pandit Durga Das.
4 Shri Bharat Bhushan Sharma,
son of Late Pandit Durga Das.
All residents of :
Flat No. 4, Meerabai Polytechnic Campus,
Maharani Bagh, New Delhi110065.
......Respondents.
Date of Institution : 24.12.2011
Date of order when reserved : 15.02.2020
Date of order when announced : 27.02.2020
E79834/16 13/12
J U D G M E N T:
1. Vide this judgment, the undersigned shall dispose of the present eviction petition filed by the petitioner 'Arya Anathalaya' (hereinafter referred to as 'petitioner) against the respondents/ tenants U/s 22 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'Act'), in respect of the portion of the property bearing Municipal No. 1488 "Pataudi House", New Delhi110002, as shown in 'red' in the site plans annexed with the petition as Annexures 'II' to 'IV' and shown as Unit No. 53.
2. The averments as mentioned in the petition are reproduced in brief here as under :
(a) That the petitioner was founded by Late Swami Shradhanand, a great social reformer, in the year 1918. The petitioner is a society registered under the Societies Registration Act, 1860 and has authorized Sh. Viresh Pratap Chaudhary to initiate eviction/ legal proceedings against the respondents by way of resolution dated 01.07.2011. The petitioner is owner of suit property by way of registered document dated 15.11.2007.
(b) The petitioner is a society and rendered services to the orphan children since 1918 and the number of orphan inmates in the said campus by the year 1961 was 230 boys and 130 girls. Thereafter, it was decided in that year that the boys' section and girls' section should be given different names. The boys' section was named as "Arya Bal Griha" and the girls' section as "Arya Kanya Sadan". Both of them continued as before in the Pataudi House Campus of the orphanage and under its overall control. To improve their academic standards, it was decided by the petitioner to establish a school in the Campus of Pataudi House, Darya Ganj, itself for the benefit of the said inmates and the school named as "Rani Dutt Arya Vidyalaya" came E79834/16 13/12 into existence on 16.09.1995.
(c) That Late Pandit Durga Das was a tenant of Sharddhanand Sewa Sangh in a portion of the property bearing Municipal No. 11/1488, commonly known as "Pataudi House", Daryaganj, New Delhi110002, at a monthly rent of Rs.82.50p. That portion of the tenanted premises is shown in the site plans marked as Annexures "II" to "IV" annexed with the present petition and the tenanted premises are described as Unit No. 53 on the ground floor and the first floor for the purpose of identification. That the tenancy of Pandit Durga Dass stood terminated on 15.01.2006 by way of legal notice dated 03.12.2005 and thereafter became a statutory tenant of Shraddhanand Sewa Sangh. However, the said Pandit Durga Das did not pay any rent/damages for the use and occupation of the tenanted premises to Shardhanand Sewa Sangh from January, 2006.
(d) The Shraddhanand Sewa Sangh has transferred its entire property at the said Pataudi House, including the 'tenanted premises' of the respondent, to the petitioner, without any monetary consideration, by an Instrument duly registered in the office of the SubRegistrarIII, New Delhi on 15.11.2007, hence, the petitioner became the absolute owner.
(e) The said Pandit Durga Das has passed away and thereafter, all the four respondents, as the legal heirs of Pandit Durga Das, have stepped into his shoes as tenanted/statutory tenants of the tenanted premises.
(f) The respondent No. 3 vide letter dated 29.07.2011, sent a copy of the reply dated 13.05.2011 and also a cheque bearing No. 443404 dated 20.07.2011 for a sum of Rs.4,331/ drawn on Punjab National Bank, Darya Ganj, New Delhi, in favour of the petitioner, being the rent for the period from November 16, 2007 to December, 2011 on behalf of the respondents.
(g) The petitioner requires the tenanted premises for enhancement of E79834/16 13/12 the activity of the petitioner to provide better amenities to present students in "Rani Dutta Arya Vidyalay" atleast 10 rooms are required; in order to provide education to more orphan children in Rani Dutta Arya Vidyalaya and to provide class rooms for them, the petitioner requires at least 15 additional rooms; for further expanding its Administrative Wing, 2 rooms are required; to cater to the medical need of boys and girls who are residing in the Campus, 2 rooms are required by the petitioner; to further expand the charitable activities of Arya Anathalaya, it requires 2 rooms; to make provision for more spacious dormitories for existing inmates, in order to make them more comfortable, the petitioner requires 10 rooms & to construct one more Hostel to accommodate orphan/destitute boys and girls, it requires more vacant accommodation.
3. Summons were served upon the respondents and they filed their objections/written statements on 21.04.2012, however, thereafter, they did not appear before the Court, hence, they were proceeded exparte vide orders dated 27.02.2017. The claim of the petitioner has been challenged by the respondents on the following grounds :
(a) That the present petition U/s 22 of DRC Act is not maintainable in law as the petitioner is neither a company or other body corporate or any local authority or any public institution. The petition is liable to be dismissed under section 47 of The Indian Trust Act, 1882 as a trustee cannot delegate his office or any of his duties either to a cotrustee unless the instrument of Trust so provides. Hence, Shri Viresh Pratap Chaudhary is not legally authorized to file the present petition on behalf of the petitioner/trust.
(b) The petitioner is not the owner/landlord of the suit premises. However, there is no relationship of landlord and tenant between the parties.
(c) The site plan as filed for the suit property is wrong & incorrect.
E79834/16 13/12The petitioner has no right to give any unit No. 53 of the suit property. It is denied that the tenancy of Pandit Durga Das stood terminated by means of a legal notice dated 03.12.2005 or his tenancy was terminated on 15.01.2006 or he became a statutory tenant. No such legal notice was ever received by Pandit Durga Dass.
(d) The bonafide requirement of the petitioner is not genuine.
4. Replication to the written statement was filed by the petitioner. The petitioner has denied the allegations of the respondent and has reiterated the same facts as averred in the petition.
5. In order to prove its case, the petitioner has examined Sh. Sudhir Kumar Gupta as PW1 & Sh. Manish as PW2.
6. PW1 Sh. Sudhir Kumar Gupta has reiterated the contents of the petition and also exhibited on record copy of Registration Certificate as Ex. PW1/1; copy of Memorandum, rules & regulation of the petitioner's society as Ex. PW1/2; true copy of resolution dated 01.07.2011 and the original minute book of the Managing Committee dated 01.07.2011 as Ex. PW1/3; copy of letter dated 16.10.1995 addressed to Director of Education, Govt. of NCT of Delhi as Ex. PW1/4; copy of letter dated 16.11.1995 as Ex. PW 1/5; site plan annexed with the petition as Ex. PW1/6 to Ex. PW1/8; certified copy of transfer deed which is exhibited as Ex. PW1/9; legal notice dated 24.04.11 as PW1/10; postal receipts as Ex. PW1/11 to Ex. PW1/14; AD Card as Ex. PW1/15; reply of legal notice dated 08.06.2011 as PW 1/16; reply of legal notice dated 29.07.2011 as Ex. PW1/17 & true copy of resolution dated 27.11.2010 and the original minute book of the Managing Committee dated 27.11.2010 as Ex. PW1/18.
7. PW2 Sh. Manish was a summoned witness from office of the Registrar of Society & Firms, who has brought the file pertaining to Arya E79834/16 13/12 Anathalay having its registration No. S968 and the copy of original certificate of registration of society as already exhibited as Ex. PW1/1. He also brought the original list pertaining to the years 2010 and 2019 and the copy of the same is exhibited as Ex. PW2/1 (collectively). He also brought the original letter showing the list of the members of Managing Committee of Arya Anathalaya from 2011 to 2014, the copy of the said letter is exhibited as Ex. PW2/3. He also brought the original letter having the acknowledgment of office of SDM, Kotwali, Distt. Central for the year 2016 to 2018 in which petitioner has submitted the list of members of Managing Committee on 28.01.2016, 11.01.2017, 19.12.2017 & 24.01.2018. He has proved the original letters dated 10.01.2017, 18.1.2018 & 10.01.2019 as Ex. PW2/4 to Ex. PW2/6.
8. No other witness was examined and the petitioner's evidence was closed vide order dated 07.12.2019.
9. The undersigned has heard the arguments and perused the entire record carefully.
10. The essential ingredients which a landlord/ petitioner is required to prove for the purpose of getting an eviction order U/s 22 of DRC Act are
(i) the landlord is a public institution (ii) the premises are required bona fide by the public institution for the furtherance of its activities.
(i) The landlord is a public institution The foremost question is whether the petitioner trust is a public trust, or private trust. It is objected on behalf of the respondents that the petitioner is neither a company or other corporate body or any local authority or any public institution. It is further objected that no permission has been obtained by the petitioner as required under Slum Areas (Improvement & Clearance) Act, 1956 as the property in question lies in E79834/16 13/12 Slum area as notified by the Government. It is objected that there is no relationship of landlord and tenant between the parties. It is objected that the suit property is not required by the petitioner for bonafide use for further of any activities as the activities of Arya Anathalaya is under investigation. However, respondent did not appear before the Court for proving their contentions.
During the testimony of PW1, he proved the original certificate of registration of society as PW1/1 and also proved the list of members of the Managing Committee alongwith other relevants documents. It has also been stated that the petitioner is not only a society registered under the Societies Registration Act, 1860, it is also a public and charitable trust/institution, looking after the welfare of, inter alia, orphan boys and girls. The purpose of the trust is of public nature i.e. it is not for benefit of a private individual or a family.
11. Now the crucial question is whether the petitioner is a public institution within the meaning of Section 22 of the Act or not.
"Section 22. Special provision for recovery of possession in certain cases. Where the landlord in respect of any premises is any company or other body corporate or any local authority or any public institution and the premises are required for the use of employees of such landlord or in the case of a public institution, for the furtherance of its activities, then, notwithstanding anything contained in Section 14 or any other law, the Controller may, on an application made to him in this E79834/16 13/12 behalf by such landlord, place the landlord in vacant possession of such premises by evicting the tenant and every other person who may be in occupation thereof, if the Controller is satisfied
(a) .......
(b) .......
(c) .......
(d) that the premises are required bona fide by the public institution for the furtherance of its activities.
Explanation . For the purposes of this section, "public institution" includes any educational institution, library, hospital and charitable dispensary but does any include any such institution set up by any private trust." It is held by various Superior Courts that the explanation appended to Section 22 is only illustrative and not exhaustive and it does not purport to define a public institution at all. It is however true that the instances given in the explanation refer to commonly accepted charitable objects. Here it is appropriate to take assistance of the definition of 'charitable purpose' as provided in Section 2(15) of the Income Tax Act, 1961 which reads as under:
"Charitable purpose' includes relief of the poor, eduction, medical relief, and the advancement of any other object of general public utility not involving the carrying on of E79834/16 13/12 any activity for profit".
12. In the book titled as "Law of Rent Control in Delhi, Rameshwar Dial and Adarsh B. Dial, 3rd Edition" the word 'charity' has been elucidated as "A gift to be applied consistently with the existing laws, for the benefit of an indefinite number of persons by providing them eduction or religion, by relieving their bodies from suffering, disease or constraint, by assisting them to establish themselves for life, or by creating or maintaining public buildings or works or otherwise lessening the burdens of the government. The charity is active goodness i.e. doing good to our fellow men, fostering those institutions that are established to relieve pain, to prevent suffering and to do good to mankind in general or to any class or portion of mankind". By the Amendment of 1988, the explanation of Section 22 of the Act has been amended to make it exclusionary also. A public institution setup by a private trust can not now invoke Section 22 of the Act. The distinction between a private and a public trust is that in the former, the beneficiaries are defined and ascertained individuals while in the latter, the beneficial interest vests in an uncertain and fluctuating body of persons. Providing basic amenities to the orphan girls and boys.
13. Keeping in view the aforesaid factors, I hold that the petitioner is a 'public institution' within the meaning of Section 22 of the Act."
Reliance is placed upon judgment cited as 1982 (21) DLT 174, wherein the Hon'ble Delhi High Court held that the "requirement of the public institution must be in furtherance of its object and it should not be to start a new activity. In the said case, the plea of the landlord was that it wanted to start a public library, charitable dispensary and Satsand Bhavan in the premises. It was admitted that there was no such library, dispensary and Satsang Bhavan existing in any part of the suit premises. It was held that the E79834/16 13/12 Section 22 requires that the eviction can be claimed by the landlord i.e. a public institution for the furtherance of its activities and not for starting new activities in the premises. The facts of the aforesaid case are distinguishable to the facts of the present case since in the instance case, it is already on record that there is running dispensary at the ground floor of the premises. The said dispensary has ever been shown in the site plan by the respondent. Accordingly, I hold that no further discussion is required on the aforesaid aspect since the petitioner is already running a dispensary and it is not seeking eviction for starting a new activity. The expansion of medical facilities in the field of allopathic treatment and opening of diagnostic labs cannot be said to be new activity but rather they are complimentary or supplementary."
14. From the record, it appears that the petitioner is a public charitable Trust, hence Indian Trusts Act, 1882 does not apply to the petitioner and Section 47 of that Act has no application in the present case. Moreover, the Rules and Regulations of the petitioner Society do provide for delegation of powers. The Managing Committee of Arya Orphanage had authorized Shri Viresh Pratap Chaudhary to file the present eviction petition against the respondents. There is no legal infirmity in that authorization and the eviction petition has properly been filed. Though the tenanted premises fall in a slum area, yet no permission under the Slum Areas (Improvement & Clearance) Act, 1956 was required to be obtained before filing the present petition. This is because of the nonobstante clause contained in Section 22 of the Delhi Rent Control Act, 1958.
(ii) The premises are required bona fide by the public institution for the furtherance of its activities.
E79834/16 13/12It is submitted by the petitioner that to provide better amenities to present students in Rani Dutta Arya Vidyalaya at least 10 rooms are required and in order to provide education to more orphan children in Rani Dutta Arya Vidyalaya, and to provide class rooms to them, the petitioner requires at least 15 additional rooms. It has to further expand its Administrative Wing, hence, 2 rooms are required; two rooms are required for the medical facility of boys and girls, who are residing in the Campus; two rooms are required to expand the charitable activities of Arya Anathalaya; 10 rooms are required for providing more spacious dormitories for existing inmates, hence, the space are required for further expanding its social service.
It is a well settled preposition of law that neither this Court nor the tenant can impose its own wisdom on the choice of a landlord to seek eviction for a particular place. Further, the respondents have abstrained themselves from proving their contentions on record, as they have been proceeded exparte.
Furthermore, reliance is placed upon In Sarwan Dass Bange Vs. Ram Prakash, 167 (2010) DLT 80 = 2010 IV AD (Delhi) 252, observations made by Hon'ble Supreme Court in Baldev Singh Bajwa Vs. Monish Saini, VIII (2005) 12 SCC 778, have been quoted as under : "...It was held that these restrictions and conditions inculcate inbuilt strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of the tenant, unless his need is bonafide no unscrupulous landlord in all probability, under this section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was E79834/16 13/12 further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the Court his requirements shall be presumed to be genuine and bonafide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine. The tenant is required to give all the necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bona fide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine."
Therefore, the contentions of the petitioner remained unchallenged and unrebutted.
15. In view of the aforesaid discussion, this Court is of the considered opinion that the petitioner(s) have proved all the necessary ingredients of Section 22 of Delhi Rent Control Act, 1958. Accordingly, an eviction order is passed U/s 22 of DRC Act in favour of the petitioner and against the respondents in respect of the portion of the property bearing Municipal No. 1488 "Pataudi House", New Delhi110002, as shown in 'red' in the site plans annexed with the petition as Annexures 'II' to 'IV' and shown as Unit No. 53 (herein after referred to as ("tenanted premises"). This order shall not be executable before the expiry of six months from the date of this order as provided U/s 14 (7) of DRC Act. Parties to bear their own costs.
File be consigned to Record Room.
Announced in the open court (SHEFALI BARNALA TANDON) on 27.02.2020 Administrative Civil Judge cum E79834/16 13/12 Additional Rent Controller (Central) Delhi/27.02.2020 (This judgment contains 12 pages in total) E79834/16 13/12