Delhi District Court
Sh. Sarwan Singh vs Shri Jeet Kumar on 12 February, 2016
Page No. 1 of 25
IN THE COURT OF SUMEDH KUMAR SETHI,
ACJ/CCJ/ARC(WEST), TIS HAZARI, DELHI
UID No. 02401C0000312011
E. No :31/2011
Date of Institution : 09.04.2003
Date of order : 12.02.16
Sh. Sarwan Singh
S/o. Late. Sh. Fateh Singh
R/o. B-137, Hari Nagar
New Delhi-110064
....Petitioner
VERSUS
Shri Jeet Kumar
S/o. Sh. Pandit Diwan Chand
R/o. C-113, Hari Nagar
New Delhi-110064.
Also at :
Fair Price Shop
D-57, Hari Nagar
New Delhi-110064.
...Respondent
JUDGMENT
Vide this order I shall dispose of petition under section u/s 14(1)(a)(c)
(f)(g) & (j) of DRC Act filed on behalf of the petitioner.
1. By filing the present petition, applicant/petitioner is seeking eviction of respondent in respect of tenanted premises/shop i.e. D-57, Hari Nagar, New Delhi-110064 admeasuring 7' 4.5''x 10' X 9'' under section 14(1)(a)(c)(f)(g) & (j) of DRC Act. The brief facts as narrated in the petition are as under:
1.1. That petitioner is the owner/landlord of the premises/shop at property D-57, Hari Nagar, New Delhi-110064 more specifically E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 2 of 25 shown in red colour in the site plan filed with the petition. The said property is comprising two shops one measuring 7' 4.5'' X 10'9'' (the tenanted shop), which is under tenancy of the respondent and another shop measuring 7'3'' X 10'9'' (the vacant shop), one big room measuring 14'10.5'' X 9'' behind these shops, a stair case next to this room and an entry from the service lane. That both the shops had common middle wall and shutter of the vacant shop is locked from outside and always remains closed.
1.2. That the tenanted shop is a non residential/commercial premises and it was let out to the respondent to run only a Fair Price Shop under the department of Food and Civil Supplies, Govt. of NCT of Delhi. The respondent has been using the said shop alone. The respondent has been using the said shop for other business without any written consent from the petitioner and the respondent is liable to vacate the tenanted shop as per provisions of Section 14 (1)(c) of DRC Act.
1.3. That the shop in question was let out to the respondent in the month of September 1972. There is no written agreement between the petitioner and the respondent. There is only oral agreement between the parties.
1.4. That the respondent without consent to the petitioner had broken the common middle wall between the tenanted shop and the vacant shop and the respondent has further constructed the wall between the tenanted shop and the vacant shop leaving a provision/space for a door in this reconstructed wall between the shops. The respondent has caused substantial damage to the tenanted shop and the premises.
1.5. That the respondent has been irregular in paying the rent in regard to the tenanted shop and most of the occasions the E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 3 of 25 respondent has been running in arrears of rent in regard to the tenanted shop for 4-5 months and at this time also the respondent has not paid the rent in regard to the tenanted shop from the month of September 2002 and as such the respondent is liable to vacate the tenanted shop as per provisions of Section 14 (1)(a) of DRC Act, 1958.
1.6. That the entire construction on the aforementioned property no. D-57, Hari Nagar, New Delhi-64 of the petitioner including the tenanted as well as vacant shop is more than 40 years old and construction made of brick and mud only and now has become totally unsafe to be used in any manner and is required by the petitioner for carrying out reconstructions and as such the petitioner is entitled to get the tenanted shop evicted by the respondent as per provisions of Section 14 (1)(f) of the DRC Act.
1.7. That the suit property is required by the petitioner for the purpose of re-building which can not be carried out without the tenanted shop and the vacant shop being vacated by the respondent.
The petitioner requires the suit premises to construct it for residential purposes and the petitioner is entitled to get the tenanted shop evicted by the respondent as per provisions of Section 14 (1)(g) of the DRC Act.
1.8. That a legal notice dated 10.01.2003 was also issued to the respondent but the respondent has not vacated the vacant shop illegally trespassed by him and therefore respondent is liable to vacate the shop as per provisions of Section 14(1)(j) of the Delhi Rent Control Act.
1.9. That the tenanted shop has been rented out at a monthly rent of Rs. 70/- per month in the month of September 1972. Rent has been increased in the year 1992 to the tune of Rs. 170/-.
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2. Summons were sent to the respondent and he was got duly served.
3. In the Written Statement filed on behalf of respondent, he has submitted as under :-
3.1 Para 3 (a) of the petition is not disputed. Para 3 (b) of the petition is not disputed.
3.2 The premises were let out to the respondent for non residential purpose. However, back portion is being used for residential purpose.
3.3 It is denied that it was let out to the respondent to run only a fair price shop as alleged in this para. Tenanted shop consists of two shops for which rent of Rs. 170/- per month is being paid. Firstly, one shop was let out at Rs. 70/- per month and thereafter one shop was let out after six months in the year 1972 at Rs. 100/-. Tenancy became single for which a rent of Rs. 170/- per month was being paid by the respondent to the petitioner.
3.4 Eviction petition has been filed for the part of tenanted premises. Therefore, the present eviction petition is not maintainable and liable to be dismissed on this short ground. The petitioner has intentionally given a false statement of facts with regard to the tenanted premises which consists of two shops having an inlet from inside.
3.5 No rent receipt is being issued by the petitioner. It is the duty of the landlord to issue rent receipts against the rent paid by the respondent. The respondent has been paying rent right from 1972 till the petitioner refused to accept the rent. It is not disputed that the tenancy was oral.
3.6 It is totally incorrect that the respondent has broken a common middle wall between the tenanted shop and vacant shop without the E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 5 of 25 consent of the petitioner. It is denied that the respondent has further reconstructed the wall between tenanted shop and vacant shop. Both the shops are under the same condition as it existed at the time of letting out the premises.
3.7 It is not disputed that a legal notice was received to which proper reply was given.
3.8 Rent was sent by money order twice which was refused and thereafter rent is being deposited U/s. 27 of DRC Act in which notices have been issued to the petitioner but he is avoiding to accept the service. There is no arrears.
3.9 The respondent is at liberty to use the premises for any business. There was no specific purpose for which the shop will be run in the suit premises.
3.10 It is not disputed that it is an old construction. But it is denied that the same is 40 years old. It is further incorrect that the shop has become totally unsafe to be used to in any manner and the same is required by the petitioner for carrying out reconstruction.
3.11 The petitioner do not require the premises bonafide for any purpose. It is denied that the premises are required bonafide by the petitioner for the purpose of rebuilding which can not be carried out without tenanted shop being vacated by the respondent.
3.12 It is denied that the petitioner is the owner of the said premises. However, it is not disputed that the petitioner is the landlord of the property bearing no. D-57, Hari Nagar, New Delhi.
How the petitioner has purchased the property the respondent is not aware and for how much value he has purchased it.
3.13 It is not disputed that the respondent needs one shutter closed and carrying out his business from one shutter only.
E. No.31/11 Sarwan Singh Vs. Jeet Kumar
Page No. 6 of 25
3.14 It is denied that the rent was enhanced from Rs. 70/- per
month to Rs. 170/- per month from September 1992. Infact, the respondent is paying rent @ Rs. 170/- per month. Since the two shops were taken and the tenancy was converted into one unit.
3.15 It is not disputed that the petitioner met with an accident.
3.16 It is not denied that the petitioner could not visit the property bearing no. D-57, Hari Nagar, New Delhi from May, 1998 for a period of four years. It is denied that the respondent taking advantage of ill health condition and inability of the petitioner broke away the common middle wall between the tenanted shop and the vacant and illegally trespassed into the vacant shop of the petitioner.
3.17 It is denied that the common wall between the two shops was broken by the respondent. There is no such finding by the said department. It is not disputed that the respondent has not taken NOC for both the shops which was an irregularity on part of respondent.
3.18 It is not disputed that petitioner has made false statement to SHO PS Hari Nagar, New Delhi about the said fact which fact to the knowledge of the petitioner was false. It is denied that the department on enquiry has confirmed the respondent has indeed illegally taken possession of the vacant shop and the petitioner sought an action against the respondent.
3.19 It is denied that the respondent was entrapped in his own web and for that very purpose the respondent filed a false and frivolous suit for permanent injunction before the Court of Sh. Ashutosh Kumar, Civil Judge, Delhi.
3.20 Notice was issued by the Court to the respondent in that case and petitioner before this Court. Stay order was granted to the respondent against the petitioner. Respondent was not in arrears of E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 7 of 25 rent at any stage. First notice of demand was received in January 2003 demanding rent from September 2002 which was tendered and paid within the stipulated period of two months.
3.21 It is denied that the shop has become unsafe to be used in any manner. It is denied that the construction is made of brick and mud only as mentioned in this para.
4. In replication, petitioner has denied the averments made in the written statements of respondent.
5. Petitioner in order to prove its case examined himself as PW-1 by way of affidavit Ex. P-1. He has also relied upon the document i.e. site plan which is Ex. PW-1/1, the received copy of the complaint by the office of Commissioner of Food and Supply is Ex. PW-1/2, written complaint made to SHO PS Hari Nagar by the petitioner is Ex. PW-1/3, Copy of legal notice dated 10.01.2003 is Ex. PW-1/4, postal receipt is Ex. PW-1/5, returned AD Card is Ex. PW-1/6, returned acknowledgment card is Ex. PW-1/7 and reply to the legal notice of the petitioner is Ex. PW-1/8. Petitioner was cross- examined by counsel for respondent. Petitioner deposed in his cross- examination the fact that he is illiterate. He could not read what was written in the affidavit. He did not remember when he got the affidavit prepared. His friend Surender Singh explained him the contents of the affidavit. The affidavit was prepared in the office of his advocate at Fateh Nagar. The affidavit was got attested by the advocate. He did not accompany his advocate. He went with his advocate to get his affidavit attested. He did not know the name of the Oath Commissioner. He did not remember the date when he went to get the affidavit attested. He did not remember whether he got the affidavit typed two months back or three months back. Vol. he got it attested in the month of September but he did not remember the date. He did not remember the date when his friend told him the E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 8 of 25 contents of his affidavit. He had filed the petition for getting the premises vacated. He was living in his brother's property. He was living in his brother's house for the last 35 years. He had not brought any document to show that he was living for the last 35 years belonging to his brother. He had no child of his own. His brother's daughter is living outside India. His brother is also living abroad. His brother has not written him any letter to vacate the property. He came to India and asked him to vacate the property. He last visited 2-3 months back. Before that he visited about 1 year back. He could not give the month, date and year when he visited India. He did not get the plan sanctioned from MCD with respect to property in dispute. He did not remember his saving fund account number but he must be having Rs. 1.5 Lacs approximately in his bank. He must be in possession of counter foils of rent receipts. He could produce the same. He admitted that one shop was let out at a monthly rent of Rs. 70/-. The rent of Rs. 170/- was enhanced in the year 1992. He denied that the rent was enhanced to Rs. 170/- per month after six months of letting, pertaining to one shop. He denied that both the shops were under occupation and tenancy of respondent since 1972. He was not in possession of any document to show that the rent of Rs. 170/- was enhanced in the year 1992 as stated by him above. Vol. the person who had accompanied him have already died. Tara Singh accompanied him at that time rent was enhanced. However, he died about two years back. He did not mention the name of Tara Singh in his affidavit. The property was assessed to house tax. He had not shown the rent of the premises under the occupation of the respondent. The shop was let out to the respondent for running a fair price shop. The length and breadth of the shop is 10.9 X 7.3 inches. He did not remember the date when he got the plan Ex. PW-1/1. He denied that there was one door between the two shops. He did not know if the locks of the respondent are fixed on E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 9 of 25 both the shops. He denied that the respondent was using the said shops since 1972. There are number of shops adjacent to the shop in the suit. It was a commercial area. I had been opened the shop from 1972 to 1997.He could not tell the number of time he opened the shop. He came to know for the first time in the year 1998 that the respondent is in possession of second shop also. He denied that he was giving false statement with respect to the second shop. He denied that the respondent is in possession of both the shops since 1972. He denied that the rent was enhanced to Rs. 170/- per month when the second shop was given on rent to the respondent. He did not remember when he lodged the complaint in police station with regard to the occupation of second shop by the respondent. He went alone to lodge the said complaint. First time the police department did not take any action against the respondent. Then he lodged a second complaint on 10th of 2000 but he did not remember the exact month, it might be February. He had placed on record the copy of which he sent to Food and Supply Department against the respondent. It was lodged in the year 2002 but he did not remember the month but it might be 11th of the month. He did not remember if he ever received any reply from Food and Supply Department. He visited the office of the Food and Supply Department number of times but they did not bear him properly. He did not remember exactly whether he received any reply from Food and Supply Department. The police had registered the case. He was not in possession of any document to show that any case had been registered against the respondent by police department. He did not know if any case was registered by police department or not. He never went to the premises in dispute alongwith the builders. He never threatened the respondent to vacate the property nor he went to construct the same through the builders. The area of the plot is 57.5 feet. There was one room plus staircase, latrine, open courtyard. The house where he E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 10 of 25 was living has three rooms on the ground floor and two rooms on the first floor. There was one tenant in the said property. His brother was settled abroad for the last 30 to 40 years. He had two daughters. Both are settled in abroad. Officials from Food and Supply Department came and inspected the said premises and thereafter cancelled the license. That information he got from the department. He denied that he was making a false statement that his license had been cancelled. He did not remember the date, month or year when he got information from Food and Supply Department that his license had been cancelled. He had not been issuing any rent receipt. He had received the rent upto 13.06.2002. He was not keeping any account with regard to the rent paid by the respondent as he was illiterate. He knew that the rent had been deposited upto date in the Court. He did not remember when he stopped accepting the rent. His brother had never given him in writing that he wanted to sell his property. He had not shown the property to Architect. Vol. he knew himself about the fate of his property. He could construct the property about getting a plan sanctioned. Vol. 100s of properties had been constructed in Hari Nagar area without getting the plan sanctioned. The illegal instruction was an unauthorized construction. He denied that he required the premises for the purpose of rebuidling. He denied that his brother had not asked him to vacate the property as he went to sell the same. He did not remember the month when he met with an accident in 1998. He never procured ration on the ration card after accident. During those days, ration was closed. He remained on bed for a period of four years. He used to walk in the lanes during this period. He did not remember the month when the respondent filed a suit for permanent injunction. No statement of him was recorded in the said Court. He did not remember if his statement was recorded and the same bore his signatures. He could understand the site plan. He did not remember the name of Architect E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 11 of 25 who had prepared the site plan. He did not remember when the intervening wall was broken. Site plan of the shop was prepared from outside, without seeing from inside the shops. He did not know if the shop was not broken from the place marked A and B in Ex. PW-1/1. Vol. the respondent might have constructed the wall again. He did not know if the entry from one shop to another shop was from place other than portion marked A and B. It took the copy of the letter Mark B. The shop shown in red colour was let out to the respondent. He admitted that the there were shutters on both the shops.
6. Petitioner examined Surender Pal Singh as PW-2 by way of affidavit in evidence. He was cross-examined by the counsel for respondent. In his cross-examination, he admitted that the tenanted premises was not let out in his presence. He admitted that he had no personal knowledge about the terms and conditions settled at that time of inception of tenancy. He had no knowledge about the increase in the rate of rent from time to time but he was only told about that by the petitioner. As per his knowledge the respondent was seen by him in possession of the shops in question till 1995 and even thereafter. Again said Jeet Kumar was in possession of only one shop in the year 1995. He denied that he was deposing falsely to the effect that one shop was in possession of the petitioner prior to 1995. He denied that since 1972 Jeet Kumar was in possession of both the shops. The rent was increased in the year 1992. He had personal knowledge about the increase in rate of rent in 1992. He did not remember if respondent ever tendered or paid rent to the petitioner in his presence. He had not placed on record any document to show that he was making constructions in the year 1992. He had brought one Durmat from the shop in possession of the petitioner in the year 1995 and he had also seen 5 or 6 taslas and shuttering material. He had not mentioned in his affidavit about the E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 12 of 25 said goods lying in the said shop. He denied that there was any passage in between the two shops which existed since 1972. He had visited the said shop earlier in the year 1991 as well. He denied that there was a shutter affixed upon both the shops and the lock and the keys of the same were in possession of the respondent. In the year 1995, petitioner was engaged in the business of massonary which he continued till May 1998. He had old relations with the petitioner. He denied that he was deposing falsely because he was having good relations with the petitioner. He had never come alongwith petitioner in any other Court or in any other case. He was working as Manager in Lord Krishna Bank, Karol Bagh. He was still in visiting terms with the petitioner. He never drafted any correspondence for the petitioner in respect of the property in question during the period 1995 to 1998. The petitioner told him about the alleged breaking open the wall by the respondent on 10.03.2002. He remembered the date as per his memory. He denied that he had made false depositions in his affidavit at the behest of the petitioner. No person in his entire family is engaged in massonary work or construction work. He had no relations with Sh. BS Thapa. He denied that he was deposing falsely.
7. Petitioner examined Satpal Singh as PW-3 by way of affidavit in evidence. He was cross-examined by the counsel for respondent. In his cross-examination, he submitted that he never visited the shops in question. He admitted that the terms and conditions of tenancy were not agreed upon in his presence. In the second week of March, 2002 the petitioner told him that the respondent had taken possession of the second by breaking the wall in between the two shops. The petitioner also told him that he had made complaints to Delhi Police and Food & Supply Department about that. He had very good visiting terms with the petitioner. The date and months mentioned in his affidavit had been so mentioned by him out of his own memory. He could not tell the exact date but after 14th or 15th day E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 13 of 25 of March 2002, the petitioner told him about the breaking of the wall by the respondent. In his affidavit, he had deposed the said event having happened in the second week of March 2002. He denied that he had deposed falsely at the behest of petitioner being an old friend. He did not know about the rate of rent. He denied that he was deposing falsely.
8. Petitioner examined MS Narula, UDC from the office of Assistant Commissioner of Food & Supplies, District West, Janak Puri, New Delhi as PW-4. He submitted that he had brought the summoned record. A complaint was filed by Sarwan Singh against Jeet Kumar, respondent. The original copy of the same is placed at file and the same was received in the office of CFS vide diary no. 319/8 on 11.03.2002. Copy of the same is Ex. PW-4/1. Petitioner also submitted a copy of complaint dated 20.08.2002 which was received by the office of Assistant Commissioner of Food & Supplies, District West, Janak Puri, New Delhi vide diary no. 795/8 on 11.09.02 and the photocopy of the same is Ex. PW-4/2. A letter dated 25.10.2002 was also sent by the SI Hari Nagar, Police Chowki and the same was received by the office of Food & Civil Supplies, District West and the same is Ex. PW-4/3. A show cause notice was issued to the respondent by Assistant Commissioner of Food & Supplies, District West and photocopy of the same is Ex. PW-4/4. The office of Assistant Commissioner of Food & Supplies, District West, Janak Puri, New Delhi also issued show cause notice on 03.10.2002 and photocopy of the same is Ex. PW-4/5. The office of Assistant Commissioner of Food & Supplies, District West, Janak Puri, New Delhi passed an order against Jeet Kumar on 31.10.2002 and attested copy of the same is Ex. PW-4/6. He had no knowledge what happened thereafter. He was cross-examined by the counsel for respondent. In his cross-examination, he stated that he visited the shop alongwith his senior before the issue of show E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 14 of 25 cause notice. He had no personal knowledge since when the respondents were having the said two shops. He had no knowledge how much quantity of wheat, sugar and rice the respondent was getting from the department. He had no record with him to show how much quantity of wheat, sugar and rice was given to the respondent. He had never visited the site prior to issue the show cause notice in between 1972 till the date of issue of show cause notice. He admitted that the letter sent by SI dated 25.10.2002 which is Ex. PW-4/3 was not signed by the SI. The record pertaining to the quantity to be given to the respondent was not available in their office. It was available with Circle Food & Civil Supplies. He had gone through the file of the Food & Supply office regarding the quantity of material which was being supplied to the respondent right from 1972-1973. There was no documentary evidence nor there was any document to show from the file when the wall was broken. From the record which he had brought that day, he could not say if any inspector had visited the site right from 1972 till the date of issuing the show cause notice. He admitted that the complaint was received from Swaran Singh through the office of Commissioner, inquiry was conducted by the office from the license records and finally show cause notice was issued to the licensee and finally the report submitted. He had filed the order passed by Assistant Commissioner (West), Food & Civil Supplies which is Ex. PW-4/6. PE was closed vide order dated 07.09.2005.
9. Respondent in order to prove its case examined himself as RW-1 by way of affidavit in evidence which is Ex. RW-1/A. Respondent was cross-examined by counsel for petitioner. Respondent submitted that he was 10th passed. He knew the contents of his affidavit Ex. RW-1/A. He had not filed any document on record to prove that another shop was also taken on rent by him after six months of taking the first shop on rent in the year 1972. The first shop was taken on rent by him prior to E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 15 of 25 applying for license approximately after 2-3 months of taking the first shop on rent. He had mentioned the address of the first shop for applying the license. He admitted that the first shop was taken on rent by him 7 to 10 prior to applying for license for Fair Price Shop. He denied that he had falsely mentioned in his affidavit that the second shop was taken on rent by him after six months of first shop. He denied that the first shop was taken by him only for running the Fair Price Shop. He had never written any letter or had got issued any legal notice demanding rent receipts from him. He denied that the averments made by him in para 4 of his affidavit are incorrect. He completed all the formalities for getting the license for Fair Price Shop including filling up of the application form. He had mentioned the dimensions of the rented shop in the application while applying for license of Fair Price Shop. He denied that he had mentioned in the application for getting license the capacity with which respect the license was applied in respect of the tenanted premises. He had not written to the Food & Supply Department after getting license for enhancement of capacity of storage of PDS supply in the tenanted shop. (Vol. By the passage of time his card for storage of PDS supply was increased thereafter he got the second shop on rent from Sardar Sarwan Singh). He had placed on record the document which shows the increased the ration cards from the date of applying first license. He denied that he had trespassed in the tenanted premises after demolishing the intervening common wall. (Vol. he had taken the second shop on rent & Rs. 100/-). He had not written to Food & Supply Department the number of cards which was with him on the date on which he had come to the possession of second shop. He denied that he had broken the intervening wall and got possession of the second shop in the year 1998. He admitted that he had no written agreement with respect to the rent of Rs. 100/- of second shop. He had not written any letter or notice to Sardar E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 16 of 25 Sarwan Singh for issuing rent receipts as there was no controversy between him and Sardar Sarwan Singh. He deposed that he was deposing falsely. He denied that he had mentioned all the facts in his affidavit were false. The shop in dispute is low in level from the road which is approximately ½ feet etc. He denied that the shop is 2.5 feet deep in compare to main road. He admitted that the tenanted premises is made by mud but the same is plastered. He denied that the intervening wall between the tenanted premises and second shop was of constructed by the mud on the date on which the first shop was got on rent by him. He denied that he had demolished the intervening wall as he came to know that Sardar Swaran Singh had got fracture in his hip and he was unable to come to the shop. He admitted that in the month of April 2002 when Sardar Swaran Singh had visited the shop and found the intervening wall of the shop had been demolished then he lodged a complaint with Food & Supply Department. He denied that he received a show cause notice dated 26.04.2002 from Food & Supply Department for demolishing the intervening wall and breaching the conditions of license. He admitted that Sardar Swaran Singh had also filed a complaint with police in PS Hari Nagar. He admitted that during the inquiry the police officials of PS Hari Nagar had recorded his statement. He denied that the intervening wall reconstructed by him with cement in the year 2002 by fear of police. He denied that small passage was also kept by him as opened deliberately in the intervening wall. He denied that after getting reconstructed the intervening wall in the year 2002 the Food & Supply Department had inspected his shop. He admitted that he had received a second notice dated 03.10.02 from the Food & Supply Department after getting reconstructed the intervening wall. He had deposited Rs. 500/- as Food & Supply Department had asked for deposit of Rs. 500/-. He had not placed the receipt vide which the amount Rs. 500/-
E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 17 of 25 had been deposited with Food & Supply Department on judicial record. The Food & Supply Department had not given any direction to him to get approval from department for enhancement of capacity of storage of PDS grains at the tenanted premises. He had not been working as licensee of the Food & Supply Department for storage of PDS grains since 9-10 years. He had received a letter from Food & Supply Department through which he was asked to deposit the receipt of Rs. 500/-. The receipt was deposited by him with Food & Supply Department. He did not remember the date on which the receipt was deposited with Food & Supply Department. He denied that he was deliberately not disclosing the date on which the receipt was deposited with Food & Supply Department. As on that day, he was working business of ready made garments. The business of ready made garments was carried on by him at the shops got on rent by him. He was carrying on ready made garment in his own name. He admitted that he had not placed on record any document which shows that he was running the business of ready made garments in his own name in the tenanted premises. He denied that he was carrying on business of ready made garments business by the name of Rajeev Cloth House at the adjoining shop. Rajeev Cloth House was situated in the shop which was owned by his wife. He was residing at C-30, Hari Nagar when he got first time the tenanted premises on rent. He admitted that he had talked Sardar Sawran Singh for reconstruction of the shops as well as remaining portion of the property at his own cost. He denied that he had talked with Sardar Swaran Singh on the condition that after reconstruction he would transfer the two shops in his name. At that time the height of the two shops were of 10 feet. He denied that the shops were in such a condition that no business could be carried out in those shops as on that day. He did not know whether the back portion of the shops in dispute was lying vacant on Sardar Swaran E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 18 of 25 Singh was residing or not. Since the year 1972 the rent of the tenanted premises was never increased from Rs. 70/-. He denied that the rent of the first shop was increased from Rs. 70/- to Rs. 170/- in the year 1972. He denied that he had prevented Sardar Swaran Singh to inspect the tenanted premises since 2002. (Vol. he was tenant. He could not stop the landlord to inspect the shop). He denied that he was deliberately not vacating the tenanted premises with the intention to capture the shops. He denied that the said shops were lying closed since last 10 years. He denied that he was deposing falsely.
10. Arguments have been heard. Material on record perused. Submissions considered.
11. The present petition has been filed on the grounds mentioned u/s 14(a), (c), (f), (g) and (j) of the DRC Act. Although, the case has gone on for a long time, not much deliberation is required to see whether ingredients of each of the grounds are made out. All these grounds will be taken up one by one.
14(1)(c) "That the tenant has used the premises for purpose other than that for which they were let-
(i) If the premises have been let on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord; or
(ii) If the premises have been let before the said date without obtaining his consent;"
"14 (5) No application for the recovery of possession of any premises shall lie under sub-section (1) on the E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 19 of 25 ground specified in clause (c ) of the proviso thereto, unless the landlord has given to the tenant a notice in the prescribed manner requiring him to stop the misuse of the premises and the tenant has refused or failed to comply with such requirement within one month of the date of service of the notice; and no order for eviction against the tenant shall be made in such a case, unless the Controller is satisfied that the misuse of the premises is of such a nature that it is a public nuisance or that it causes damage to the premises or is otherwise detrimental to the interest of the landlord."
12. In the present case, in the legal notice dated 10.01.2003 the petitioner has just stated that the premises was let out for FPS and the tenant is using it for other businesses. The respondent was not called upon to stop the alleged 'misuser'. The first and foremost requirement of the provision is that the premises was let out for a specific purpose. The onus of proving the same lies upon the petitioner. The tenancy was created orally and thus there is nothing on record to show that the premises was let out for a specific purpose. Secondly, the petitioner has not been able to show that how the alleged 'misuser' is of such a nature that it is a public nuisance or that it causes damage to the premises or is otherwise detrimental to the interest of the landlord. It may be noted here that though the ground of substantial damage has been taken as a separate ground, the same is not the effect of any such misuser as the damage to the premises was allegedly done when the shop was being used as a fair price shop only. Thus, the petition cannot be allowed on this ground.
14(1)(f)
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"That the premises have become unsafe or unfit for human habitation and are required bona fide by the landlord for carrying out repairs which cannot be carried out without the premises being vacated"
13. The petitioner has not examined any architect or structural expert to show whether the premises has become unsafe or unfit for human habitation. Although, the respondent has admitted in his cross-examination that he had talked about reconstruction of the premises with the petitioner, it is not known to what extent the premises requires repair. It is also not known whether such repairs can be conducted without the premises being vacated or not. Although the petitioner has alleged that the premises has mud walls, it cannot be presumed that these mud walls have made the premises unfit or unsafe for human habitation, especially when these walls are standing since many decades. It is reiterated that it might be that the premises requires repair, but the petitioner has failed to prove that the same cannot be conducted without the premises being vacated. Thus, petition cannot be allowed on this ground.
14(1)(g) "That the premises are required bona fide by the landlord for the purpose building or re-building or making thereto any substantial additions or alterations and that such building or re-building or addition or alteration cannot be carried out without the premises being vacated;"
"14 (8) No order for the recovery or possession of any premises shall be made on the ground specified in clause (g) of the proviso to sub-section (1), unless the Controller is satisfied that the proposed reconstruction will not radically after the purpose for which the E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 21 of 25 premises were let or such radical alteration is in the public interest, and that the plans and estimates of such reconstruction have been properly prepared and that necessary fund for the purpose are available with the landlord."
14. Section 20 of the DRC Act provides for re-entry of the tenant upon completion of reconstruction in case eviction is ordered for carrying out such reconstruction. Thus, Section 14 (8) provides that the plans of such reconstruction must be ready. The purpose of the same is to know how the tenant will be re-accommodated. Admittedly, no such plans were ever prepared in the present case. Such a plan is mandatory requirement for this provision and cannot be dispensed with. It has also come on record that the petitioner had less than 2 lac rupees in his account at the given time. Now, Court can take judicial notice of the fact that such an amount is not sufficient for reconstruction of the property at present. Even otherwise, no estimates have been filed by the petitioner showing how he intends to carry out reconstruction in compliance of Section 14(8). Thus, the petitioner cannot be allowed on this ground.
14(1)(j) "That the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises;"
"14 (10) No order for the recovery of possession of any premises shall be made on the ground specified in clause (j) of the proviso to sub-section (1) if the tenant, within such time as may be specified in this behalf by the Controller, carries out repairs to the damage E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 22 of 25 caused to the satisfaction of the Controller or pays to the landlord such amount by way of compensation as the Controller may direct"
15. The ingredients of the said provision stand fulfilled in view of the Ex. PW4/6 i.e. the order of the Assistant Commissioner: Food and Supplies. Although, the official witness has been cross examined on part of the respondent with regard to the order, the fact remains that this order is still a valid order and has binding force. The said order clearly states that the respondent broke the wall between the two adjacent shops. The reasoning given in the said order is also commendable. It is rightly pointed out that if the respondent had done no wrong then why did he rebuild the wall leaving space only for a door in between. The Court has no reason to doubt the contents of this order. This also punches holes in the story propounded by the respondent that he had taken both shops on rent at the inception of the tenancy. Rather, it gives credence to the version of the petitioner that he trespassed into the second shop. This issue also stands decided in the judgment dated 11.12.2014 passed in CS No. 791/06 by the Court of Mr. Jitendra Pratap Singh, Ld. Civil Judge. A certified copy of the said judgment is also on record. The respondent herein was directed to handover the possession of the second shop along with damages. The ld. Civil Court has rightly pointed out that the respondent throughout maintained his version that he was using the two shops from the year 1972-73 and it was inconceivable that despite regular inspections, the concerned department failed to notice the increase in size of the FPS for so many years. In the present case, the respondent has also admitted that he only gave the address of the first shop to the department. This, prima facie, makes the version of the petitioner more believable i.e. only one shop was given on rent. Now the onus is upon the respondent to show that he had taken the second shop on rent as well. He has miserably failed E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 23 of 25 to discharge the same both in the civil suit and in this case. Thus, this Court is in consonance with the opinion of the ld. Civil Court. There is nothing on records of the present case to show that the said judgment has been challenged. It goes without saying that breaking of the middle wall and subsquently reconstructing it but with a door in between anounts to substantial damage to the premises. Thus, the petition is allowed on this ground. The respondent is directed to restore the middle wall to its original position (without the door) within one month from the date of this order or pay Rs. 2,00,000/- to the petitioner within such time.
14(1)(a) "That the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a landlord in the manner provided in section 106 of the Transfers of Property Act, 1882 (4 of 1882);"
"14 (2) No order for the recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub-section (1) if the tenant makes payment or deposit as required by section 15:
Provided that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months."
16. The landlord tenant relationship is admitted. It has already been decided that only one shop as shown in the site plan was let out to the respondent. The rate of rent of Rs. 170/- month is admitted.
E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 24 of 25 The respondent has failed to show that the same was for both shops. As a necessary corollary it must be held that rate of rent is for one shop only. In the order dated 16.07.2003 passed u/s 15(1) of the DRC Act, it was already recorded that the petitioner has stated that the respondent was in arrears of rent w.e.f. September, 2002. The respondent also stated that he had paid rent till August, 2002 in Court and thereafter, the rent was deposited in Court upto May, 2003. He was directed to deposit rent thereafter @ Rs. 170/- per month in the said order. The legal notice of demand dated 10.01.2003 was sent to the respondent who is stated to have replied to the same. The said reply has been admitted in the WS of the respondent. The only thing that remains to be seen is whether the petitioner refused to receive rent and thereafter the respondent deposited the rent in Court. Two challans Ex.RW1/1 and 1/2 dated 15.12.2002 and 20.02.2003 are on record. The first one is for deposit of rent for the months of September, October and November, 2002. The second one is for the months of December, January and February, 2003. However, there is nothing on record to show that the rent for March, April and May has been paid till date. Even otherwise, the challans show that the petition for deposit of rent were pending at the time of such deposit. It is not known whether the notices of these petitions were sent to the petitioner or whether these petitions were allowed. It is also not know how the rent was tendered to the petitioner before resorting to deposit in Court. No record of these petitions were filed except for these two challans. A petition u/s 27 of the DRC Act is not a certificate of valid tender of rent and is normally without prejudice to the rights of the parties in trial. The onus was still upon the respondent to show that he validly tendered the rent to the petitioner and he refused to accept the same. There is nothing on record to prove the same. Even for deposit u/s 27 to be considered a valid deposit, it is to be shown that rent was first validly tendered to and E. No.31/11 Sarwan Singh Vs. Jeet Kumar Page No. 25 of 25 refused by the landlord before resorting to this provision. For showing the same, atleast, he could have produced the records of the petitions for deposit. He has chosen not to do so. Hence, this Court holds that the respondent was in arrears of rent w.e.f. September, 2002 and failed to pay or validly tender the same within two months of the notice dated 10.01.2003. Consequently, the order dated 16.07.2003 stands modified to the limited extent that the respondent is directed to pay/ deposit rent @ 170/- per month w.e.f. September, 2002 till date alongwith statutory interest @ 15% per annum (adjusting the amount already paid in pursuance of order dated 16.07.2003) withing one month from the date of this order. The petition stands allowed accordingly on this ground.
17. In view of the aforesaid legal propositions, facts and circumstances of the case, this petition U/s. 14(1)(a)(c)(f)(g) & (j) of DRC Act at hand stands disposed off accordingly
18. Separate file be maintained for considering the benefit u/s 14(2) and 14(10) of the DRC Act.
19. There shall be no order as to costs.
20. File be consigned to Record Room.
Announced in the open court On this 12th day of February, 2016 (Sumedh Kumar Sethi) ACJ/CCJ/ARC(West)/12.02.2016 Tis Hazari, Delhi E. No.31/11 Sarwan Singh Vs. Jeet Kumar