Delhi District Court
Sh. Devki Nandan vs Sh. Lakshman Dass Arora on 1 December, 2016
IN THE COURT OF MS. SHUCHI LALER: SCJ: RC : JUDGE
(SHAHDARA) KKD COURTS, DELHI.
RC/ARC No. : 60/16
In the matter of :-
1. Sh. Devki Nandan
S/o Late Sh. Kanwar Bhan
Through LRs:-
i. Smt. Krishna Devi
W/o Late Sh. Devki Nandan
R/o B- 12, Jitar Nagar,
Parwana Road, Delhi 110051
ii. Smt. Asha Kamra
D/o Late Sh. Devki Nandan
W/o Sh. Ashok Kumar Kamra
R/o H. No. 8-B, Navyug Adarsh Apartment,
F-Block, Vikas Puri, Delhi- 110018
2. Sh. Inder Kumar Dewan
S/o Late Sh. Devki Nandan
3. Sh. Vijay Kumar Dewan
S/o Late Sh. Devki Nandan
Both R/o B- 12, Jitar Nagar,
Parwana Road, Delhi 110051
.........Petitioners
VERSUS
Sh. Lakshman Dass Arora
S/o Sh. Niyamat Ram Arora
R/o K-19, Old Govind Pura,
Delhi- 110051
Also at:
Pvt. Shop No. 1, Ground Floor,
In property bearing no. B-12, Jitar Nagar,
Parwana Road, Delhi 110051
..........Respondent
RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 1 of 22 pages
Date of institution of the eviction petition : 06.01.2011
Final Arguments Heard on : 16.11.2016
Date of Judgment : 01.12.2016
APPLICATION FOR EVICTION OF TENANT UNDER SECTION
14 (1) (e) OF DELHI RENT CONTROL ACT
JUDGMENT :
1. Eviction has been sought in respect of shop no. 1, ad measuring 8 x 14, situated on the ground floor of the property bearing no. B-12, Jitar Nagar, Parwana Road, Delhi-51 (henceforth referred to as 'tenanted shop') under the ground specified in clause (e) to the proviso of sub section (1) of Section 14 of Delhi Rent Control Act, 1958 (in short DRC Act).
PETITION
2. Brief narration of the facts as disclosed in the petition is as under :-
2.1 That the petitioners are the owners / landlords and are in possession of the property bearing No. B-12, Jitar Nagar, Parwana Road, Delhi (hereinafter referred to as the property in question) which was purchased by petitioner no.1 in his own name and in the name of petitioner no.2 from Sh. Ramesh Chand Gupta through registered GPA, receipt and agreement to sell dt. 28.03.1973.
2.2 That the petitioner no.1 and 2 are senior citizen. The petitioner no.1 retired from his service in the year 1993 and RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 2 of 22 pages petitioner no.2 retired on 31.10.2010. The petitioner no.3 and his wife are government employees.
2.3 That petitioner no.1 had partitioned the property in question into three equal parts. It was settled that petitioner no.1 shall remain the owner of entire ground floor, petitioner no.2 shall remain owner of half portion of first floor and petitioner no.3 shall also remain owner of half portion of first floor. 2.4 That petitioner no.1 and 2 had let out the tenanted shop to respondent on 01.10.1990 at monthly rent of Rs.400/-
excluding electricity and other charges. An agreement cum rent deed was executed on 12.10.1990.
2.5 That the family of petitioners comprises of petitioner no. 1, his wife, one married daughter, son/petitioner no. 2, wife of petitioner no. 2, grandson Mr. Dinesh Dewan, grand daughter-in-law Ms. Ritambara Dewan, great grandson Dewansh, grandson Mr. Gaurav Dewan, grand daughter-in-law Ms. Charul Dewan, great grand daughter Lashika Dewan, son/petitioner no. 3, wife of petitioner no. 3 and two unmarried grandsons Mr. Amit Dewan and Mr. Sumit Dewan.
2.6 That presently petitioner no. 1 has four rooms on ground floor besides one store, kitchen and bathroom, latrine and open courtyard. The petitioner no. 2 has two rooms on first floor and two rooms on second floor besides kitchen, bathroom and latrine whereas petitioner no. 3 has only two rooms on first floor besides kitchen, bathroom and latrine. The accommodation is insufficient for the petitioners and their family members dependent upon them.
2.7 That petitioner no.1 requires at least one bed room for himself and his wife, one room for his married daughter and her family, one room for attending guests, one room for pooja and one RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 3 of 22 pages room for dining and space for parking of cars and two wheelers on ground floor besides kitchen, bathroom and latrine. 2.8 That petitioner no.2 also requires at least one bed room for himself and his wife, two bed rooms for his two married sons, one drawing room, one dining room, one room for attending guests and parking space on ground floor.
2.9 That petitioner no.3 also requires at least one bed room for himself and his wife, two bed rooms for his two sons and their wives who are to be married soon, one room for guests, one drawing room, one dining room and parking space on ground floor.
2.10 That the petitioners have no other residential accommodation in their name and in the name of their family members. The petitioners require the tenanted shop bonafidely for their own use and occupation.
2.11 That the petitioners require the whole property in question including the tenanted shop for residential purposes thereby re-constructing/re-building the entire property in question by demolishing the same.
2.12 That the petitioners require the tenanted shop for making substantial addition or alteration in the property in question and as such the construction or re-construction or addition or alteration which is to be carried out at the property in question cannot be done unless the tenanted shop is vacated by the respondent.
2.13 That the construction of the property in question including the tenanted shop is old and the neighbours of the petitioners have demolished their building to zero level, due to which cracks have occurred in the property in question. 2.14 That the property in question is in dilapidated RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 4 of 22 pages condition and there is every likelihood that the property in question may fall down at any moment thereby endangering the lives of the occupants. In order to avoid any untoward incident, the petitioners want to demolish the property in question and re-construct the same. The construction is not possible unless and until the tenanted shop is vacated by the respondent.
Being aggrieved, the petitioners have filed the instant eviction petition.
WRITTEN STATEMENT
3. The respondent has filed a detailed written statement wherein he has taken preliminary objection such as petitioners have not approached the court with clean hands; petition is without any cause of action; basic requirement of Section 14 (1)(e) DRC Act has not been fulfilled and intention of petitioners is to evict the respondent by hook or by crook. The averments to the contrary are as under :-
3.1 That the property in question was reconstructed by the petitioners about 8 to 10 years ago unauthorisedly without sanctioned site plan being approved by MCD. Since the property has been reconstructed, there is no question of the reconstruction of the property in question again.
3.2 That the petitioners have not filed on record the sanctioned site plan nor an estimate of construction has been prepared. The petitioners have not disclosed regarding availability of funds for reconstruction of the property in question. 3.3 That the petitioners have sufficient accommodation available with them and three rooms on the ground floor are lying vacant. There is no question of reconstruction or rebuilding of property in question for the purpose of residence of petitioners RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 5 of 22 pages and their family members.
3.4 That the tenanted premises is a shop and it cannot in any manner fulfill the requirement of residence of petitioners and the petitioners have nowhere shown their requirement of the shop for commercial purpose.
3.5 That the petitioners have failed to explain that reconstruction or rebuilding of the property in question is not possible without vacation of tenanted shop. The property in question has been newly constructed and does not require any reconstruction or rebuilding.
3.6 That the petitioners are also having residential property at Vasundhra, Ashok Nagar, Ghaziabad and Najafgarh, Delhi. The exact number of residential properties owned by the petitioners is not known to the respondent. 3.7 That the petitioners have not disclosed the complete measurement of the rooms available with them. There are 10 big rooms in the property in question and the petitioners have deliberately not disclosed the size of the rooms available with them.
3.8 That the son of petitioner no. 2, namely Sh. Dinesh Dewan is an Engineer who is posted at Chennai and residing there alongwith his wife and children and the son of petitioner no.
3, namely, Sh. Amit Dewan is also an Engineer by profession and is posted at Raibareilly, U.P. The three rooms on ground floor are lying vacant and the petitioners do not require any accommodation.
3.9 That no partition deed has been placed on record by the petitioner no. 1 nor it has been alleged that it was an oral partition. The respondent is paying rent regularly and he has never misused the tenanted shop. The petitioners' only motive is RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 6 of 22 pages to re-let the tenanted shop on higher rent.
3.10 That the site plan filed by the petitioners is wrong as it does not reflect the accommodation available with the petitioners nor the size of rooms available with them has been shown. 3.11 That at the time of letting out the tenanted shop, the respondent had paid an amount of Rs. 1 lakh in cash to the petitioner no. 1 as pagri amount and due to this reason, the nominal rate of rent of Rs. 400/- pm was fixed. 3.12 That the tenanted shop is the only source of income of the respondent and his family members and in case, eviction order is passed, the entire family of respondent will come on road.
Remaining material contents of the eviction petition have been denied and the respondent prayed for dismissal of the present eviction petition with heavy cost.
REPLICATION
4. The petitioners have filed replication to the written statement of the respondent wherein the allegations to the contrary have been controverted and the averments made in the petition are reiterated to be true and correct.
PETITIONER'S EVIDENCE
5. In support of their case, petitioner no. 1 / Sh. Devki Nandan stepped into the witness box as PW1 and tendered his evidence by way of affidavit which is Ex. P1. He has relied upon the following documents:-
Special Power of Attorney dt. 14.09.2011 as Ex.PW1/1; Photocopies of GPA, Receipt and Agreement to Sell as RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 7 of 22 pages Ex.PW1/2, Ex. PW1/3 and Ex. PW1/4 respectively; Photocopy of Memorandum/Yaddast dt. 09.09.2004 as Ex.PW1/5;
Photocopies of House/Property Tax Receipt of 2010-2011 as Ex.PW1/6 to Ex. PW1/8;
Photocopy of Agreement cum Rent Deed as Ex.PW1/9; Site Plan as Ex.PW1/10;
Proposed Site Plan of the property in question as Ex.PW1/11;
Photocopy of Estimated Cost of Construction dt. 05.08.2011 as Ex. PW1/12;
Copy of Legal Notice dt. 24.09.2010 as Ex. PW1/13; Postal Receipts as Ex. PW1/14;
UPC as Ex. PW1/15;
Reply to Legal Notice dt. 23.10.2010 as Ex. PW1/16; Mutation Receipts and applications as Ex. PW1/17 to Ex. PW1/19;
➢ Mutation Order as Ex. PW1/20.
The Architect Sh. Ram Singh has been examined as PW2 and he proved the proposed site plan already Ex. PW1/11.
A summoned witness, Sh. Rajesh Kumar Gupta has been examined as PW3 and he proved the certificate of estimated costs of construction of property in question which is already exhibited as Ex.PW1/12.
The neighbours of parties, Sh. Kapil Tiwari and Sh. Sunil Aggarwal appeared as PW4 and PW5 and tendered their evidence by way of affidavit which is Ex.PW4/1 and Ex.PW5/1 RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 8 of 22 pages respectively.
The aforesaid witnesses have been duly cross- examined by Ld. Counsel for respondent. Thereafter, petitioners' evidence was closed.
RESPONDENT'S EVIDENCE 6.1 In rebuttal, the respondent stepped into the witness box as RW1 and tendered his evidence by way of affidavit which is Ex RW1/A. He has relied upon the following documents:-
➢ Site Plan as Ex. RW1/1;
➢ Photographs of property in question as Ex.RW1/2 (colly.).
The neighbour Sh. Harjeet Singh Chawla has been examined as RW2 and he tendered his evidence by way of affidavit which is Ex.RW2/A. Another tenant Sh. Ajay Mahajan has been examined as RW3 who tendered his evidence by way of affidavit which is Ex. RW3/X. Son of tenant, namely, Sh. Rahul Mittal has also been examined as RW4 and he tendered his evidence by way of affidavit which is Ex. RW4/X. The aforesaid witnesses have been cross-examined by ld. counsel for petitioners. Thereafter, respondent's evidence was closed.
FINAL ARGUMENTS
7. Rival submissions advanced at bar have been heard and record perused.
JUDICIAL RESOLUTION
8. First and foremost, the court needs to adjudicate upon RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 9 of 22 pages an objection raised by the respondent regarding the maintainability of the present eviction petition. The respondent has alleged that the present petition under Section 14(1)(e) DRC Act is not maintainable as specific remedy under Section 14(1)(g) of DRC Act is available to the petitioners which has not been exhausted by them. It has been further alleged that the petitioners require the tenanted shop for rebuilding and reconstruction for which there is a specific provision under Section 14(1)(g) DRC Act which should have been invoked by them.
9. In the instant eviction petition, the petitioners have specifically pleaded that they require the tenanted shop for their own residence. Though, the petitioners have also averred that the property in question is old and requires rebuilding, the fact that the landlord wishes to rebuild his property would not automatically convert his eviction petition under Section 14(1)(e) DRC Act to a petition under Section 14(1)(g) DRC Act. The mere fact that the petitioners intend to rebuild or reconstruct the property in question on account of its dilapidated condition, would not in any manner have any bearing on their requirement of the tenanted shop for residence. There is no prohibition in the language of clause (e) of Section 14(1) of DRC Act to the effect that the landlord must occupy the premises without making any alteration/rebuilding the same. There is no impediment in the way of the landlord in making an application under Section 14(1)(e) DRC Act. A landlord may build or rebuild his property so as to suit his requirements and if a landlord, while seeking possession of the tenanted premises for his own use and occupation, also states that the premises are required for rebuilding, it would not render the application under clause (e) as an application under clause (g) of Section 14(1) DRC Act. (Reliance is placed upon the judgment titled as Mohammad Usman Vs. Mohan Babu Sharma & Anr. RC.REV.No. 463 of 2013 dated 24.09.2014 of RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 10 of 22 pages Hon'ble Delhi High Court). Thus, the instant petition under Section 14(1)(e) DRC Act is held to be maintainable.
10. The scope of the section 14(1)(e) of DRC Act, has been enlarged by the judgment of the Hon'ble Supreme Court titled as "Satyawati Sharma v. Union of India" AIR 2008 SUPREME COURT 3148 so as to include premises let out for commercial purposes also within the scope and ambit of a petition under section 14(1)(e) of DRC Act.
11. Clause (e) of Proviso to Sub Section (1) of Section 14 of the D.R.C. Act postulates following conditions which must be satisfied : - (i) That the landlord must be the owner of the property ;
(ii) The premises must be required bonafide by the landlord and (iii) Non availability of any other reasonably suitable accommodation.
OWNERSHIP OF LANDLORD / PETITIONER
12. The respondent has not disputed the landlord- tenant relationship and ownership of the petitioners qua the tenanted shop. Thus, the parties are not at variance as regards first ingredient of Section 14(1)(e) DRC Act.
BONAFIDE REQUIREMENT
13. The petitioners have stated that they are facing paucity/scarcity of accommodation so they bonafidely require the tenanted shop for their residence and the tenanted shop would be used after reconstruction of the property in question. The respondent has alleged that the petitioners have sufficient accommodation and has challenged the bonafide need of the RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 11 of 22 pages petitioners on three grounds i.e Firstly, the son of petitioner no. 2, namely, Sh Dinesh Diwan and son of petitioner no 3, Sh Amit Diwan are not residing in Delhi and three rooms on ground floor are lying vacant; Secondly the petitioners have deliberately not disclosed the measurements of rooms available with them and Lastly, the tenanted shop was let out for commercial purpose whereas residential requirement is projected by petitioners.
14. It is not in dispute that the property in question comprises of 10 rooms i.e. 4 rooms on ground floor, four rooms on first floor and two rooms on second floor. During the pendency of instant eviction petition, the petitioner no. 1 expired. The family members who are admittedly residing at the property in question are 9 in number ( wife of petitioner no. 1, petitioner no 2, wife of petitioner no. 2, son of petitioner no. 2 Sh Gaurav Diwan, his wife, his daughter, petitioner no. 3, wife of petitioner no. 3 and son of petitioner no. 3 Sh Sumit Diwan ).
15. Thus, the admitted position which emerges on record is that a family of 9 adult members is in occupation of 10 rooms, kitchen, bathroom and toilets. The petitioner no. 1, being a widow, requires one separate bedroom. The two sons / petitioner no 2 & 3 and their wives would require one room each, thus, they bonafidely require 2 bedrooms. The married grandson Sh Gaurav Diwan and his wife would also require separate bedroom. The daughter of Sh Gaurav Diwan and major grandson Sh. Sumit Diwan would require separate bedrooms i.e. 2 rooms are required for them. A family of 9 members will at least need 6 bed rooms, one drawing room, one dining room, one Puja room, one store room, one guest room, one study room, servant room along with the amenities of RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 12 of 22 pages kitchen, bathroom etc. Petitioners and their family members, however, presently have only 10 rooms. Therefore, the accommodation available with the petitioners is quite clearly insufficient inasmuch as they have only 10 rooms instead of their requirement of at least 6 bed rooms, one guest room, one drawing room, one dinning room, one study room, one store room, one Puja room and one servant room.
16. The petitioners have claimed that they require guests rooms for married daughter of petitioner no. 1 and other guests. The said requirement cannot be considered by any standards as unreasonable. (Reliance is placed upon the judgments titled as Ranjit Kumar Chopra Vs. Virender Khosla, 155 (2008) DLT 65 & Suraj Prakash Vs. Sri Gopal, 75 (1998) DLT 579). Even the grandchildren Sh. Dinesh Diwan and Sh. Amit Diwan, though not residing in Delhi, would require one bedroom each in the property in question. It is not the case of tenant that these grandsons do not have cordial relations with petitioners. There would be occasions when the grandchildren would visit the petitioners so the requirement of separate bedrooms for them seems genuine. Usually, children who take up employment away from their parental home, do not carry all their belongings with them so space / bedrooms are required for these children in parental home wherein their articles can be kept and put to use whenever they visit. In the case titled as Brij Mohan Vs. Sripal Jain 1992 RLR 190 it has been observed that it is necessary to permit the landlord to have an extra room where he could make comfortable his visiting son along with his family. Similar, principal has been settled in K.B. Mathur Vs. Sardar Bhagwan Singh (D) 1988 (2) RCR 61.
RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 13 of 22 pages
17. A landlord cannot be expected to sacrifice his own comfort and live a crowded life in a house owned by him just to accommodate his tenant. The accommodation available with the petitioners is grossly insufficient. The petitioners / landlords wish to live with comfort in a house of their own, the court or the tenant cannot command or compel them to squeeze themselves tightly into lesser premises protecting the tenant's occupancy. (Reference may be make to the judgment titled as Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta, 1999, 6 SCC 222).
18. PW1 has stated that he is planning to make parking in the area of tenanted shop. This requirement can not be said to be malafide for the reason that garage is not a luxury rather it is a necessity for protection of car from sun, rain and theft etc. Except the self serving ipse dixit of respondent in the form of oral evidence, there is nothing on record to show that the petitioners have sufficient accommodation. Though, RW2 and RW3 deposed, in their examination in chief, that the petitioners have no bonafide requirement and they have filed present petition as value of property has increased considerably, they could not withstood the rigors of cross-examination. RW2, RW3 and RW4 admitted that they have never seen construction of property from outside and they have no personal knowledge of petitioner nor about their property. When RW2, RW3 and RW4 have not visited the property in question, they were not competent to depose on the aspect of bonafide requirement of petitioners.
19. Ld Counsel for respondent vehemently urged that the present petition is just a ploy to evict the respondent as three RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 14 of 22 pages rooms on ground floor are lying vacant and even PW4 and PW5 have admitted that four rooms on ground floor are more than sufficient for residence of petitioner no 1. Thus, he contended that the petitioners have sufficient accommodation available with them and present petition be dismissed.
20. The said contention is without merits and is liable to be rejected. The court, after considering the property as a whole and petitioners family as a single unit, has already observed hereinabove that the accommodation available is inadequate. Parents do transfer ownership in favour of their children during their lifetime to avoid future dispute, but, it can not operate as an embargo upon a parent to accommodate his child, who is facing paucity of accommodation, in his owned portion of property. Merely by reason of partition, the petitioner no 1 can not be compelled to chose his tenant over his own children. Even otherwise, the accommodation of four rooms for wife of petitioner no 1 does not, by any standard, appears sufficient. Even individually, the wife of petitioner no 1 would require one bedroom, one drawing room, one dinning room, one pooja room and one guest room for her married daughter.
21. No doubt, PW4 and PW5 have admitted, in their cross-examination, that four rooms on ground floor are more than sufficient for the residence of petitioner no1. PW4 and PW5 are neighbors of petitioners. It cannot be ignored that the landlord is best judge of his requirements and only he can assess his requirements in the background of his position, status in life, social and other responsibilities and other relevant factors. Neither the court nor the tenant nor neighbors can dictate to the landlord as to how he should live and to what use RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 15 of 22 pages he should put each and every portion of his property. Neighbors have no means to ascertain the requirement of a landlord. What may be luxury for one may be assessed as need for another. The requirement of landlord may change from time to time and his neighbors may not have been able to anticipate things. The wife of petitioner no 1 must be aged around 75 years, so , it would be desirable that she resides on ground floor wherein she would require a bedroom, pooja room, guest room, drawing room, dinning room and may be a servant room as well as a room for her nurse / attendant / family member who can take care of her in her old age. The inability of neighbors to assess these requirements, cannot solely be the ground to deprive landlords of their rights, which they derive under the DRC Act.
22. Secondly, the respondent has alleged that the size of one room on ground floor is 40 sq. yards and the petitioners have deliberately not disclosed the measurement / size of the rooms in their possession so as to create artificial paucity of accommodation.
23. The GPA, Agreement to Sell Ex.PW1/2 and Ex.PW1/4 as well as per the own admission of the respondent, the property in question measures 200 sq. yards. Rule 20 of Delhi Municipal Corporation (Building) Bye Laws, 1959 prescribes that no habitable room shall have a floor area of less than 100 sq. feet. In the case titled as Chander Mohan Saini & Ors. Vs. Ujagar Saini & Ors. 2000 (1) RCR (Rent) 87 (Delhi) it has been observed that rooms less than 100 sq. feet cannot be said to be bed room. In the instant case, the property in question has been constructed on a plot of 200 sq. yards, on RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 16 of 22 pages a plot of this size, 4 rooms cannot be said to be a luxury rather rooms of this size are required for comfortable living. The petitioners as such wish to reconstruct the entire property in question so as to have more rooms which are required by them to maintain a basic standard of living. The petitioners are retired government employees, they are entitled to maintain that status even after retirement if they can well afford it. It is difficult to appreciate as to how the status of a retired government employee can go down and he be forced to accommodate himself in rooms of small size. The bona fide of the petitioners cannot be doubted for the reason that a landlord would not rebuilt the entire property and incur considerable expenses only to get rid of his tenants.
24. The last leg of defence of respondent is that the tenanted shop was let out for commercial purpose whereas the requirement of petitioners is residential, thus, no eviction order can be passed. This ground is perfunctory at best. The landlord/ petitioners can alter and modify the tenanted shop to suit their requirement/ need.
25. The family of 9 members would require 6 bedrooms, one pooja room, store room, drawing room, dining room, guest room, study room which are a bare necessity for comfortable living. It is to be noticed that no room is being used by the petitioners as drawing room, dining room, Pooja room, guest room, study room. Thus, the petitioners apparently have a paucity of accommodation. It cannot be denied that the petitioners require more space for affording a basic standard of living with a sense of decency.
26. The requirement of tenanted shop by the petitioners RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 17 of 22 pages for the purpose of residence cannot be brushed aside as mere desire or fanciful requirement. Therefore, judged from any angle, the requirement of the petitioners for the tenanted shop cannot be termed malafide or with oblique motives.
NON-AVAILABILITY OF REASONABLY SUITABLE ACCOMMODATION
27. The respondent has claimed that the petitioners are having residential property at Vasundhara, Ashok Nagar, Ghaziabad, U.P. and Nazafgarh, Delhi. The petitioners have denied the said averment.
28. Self serving bald averment regarding petitioners being owner of the aforesaid properties cannot be a ground for dismissal of present petition. There is no material on record to substantiate the respondent's plea that petitioners are the owners of said properties. Even the details of the said properties have not been disclosed.
29. It is well settled law that bald allegation without any material on record to substantiate the same cannot be looked into as the mere bald allegations are not enough. It is held by the Hon'ble High Court of Delhi in Rajinder Kumar Sharma and Ors. Vs. Leelawati and Ors., 155 (2008) DLT 383:
11....."Only those averments in affidavit are to be considered by Rent Controller which have some substance in it and are supported by some material."
30. Thus, the respondent has made a bald and vague allegation that the petitioners are the owners of aforesaid properties apart from the property in question. This plea of RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 18 of 22 pages respondent is not supported by any document and is bereft of details, hence, it appears to be false and frivolous, accordingly, it is rejected. The respondent has not been able to show that the petitioners have any other reasonable suitable accommodation available with them for residence except the property in question.
ADDITIONAL DEFENCES
31. The additional defences which have been raised by the respondent, in his written statement, are discussed herein below:-
A. That the petitioners want to re let the tenanted shop at higher rent.
32. The respondent has alleged that the only motive of the petitioners is to get the tenanted shop vacated from the respondent to re let the same on higher rent as the property in question is situated in a commercial area and the value of the tenanted shop has increased manifold. The said averment has been denied by the petitioners.
33. It was held by Hon'ble High Court of Delhi in Vinod Kumar Bhalla Vs. Sh. Nanak Singh 1982 (2) RCR (Rent) 715 that in all applications for leave to defend the common defence raised by almost all the tenants, is that the landlord wanted to enhance the rent or to sell the property after getting it vacated. It was observed by the High Court that such types of allegations are without any foundation and that after an order of eviction is RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 19 of 22 pages passed under section 14 (1)(e), the tenant is granted six months time to vacate the premises and the landlord is required to occupy the same within two months and the landlord is further dis-entitle for re-letting or alienating the whole or any part of the premises within three years from the date of obtaining possession from the tenant. Thus, the landlord is not in a position either to sell or re-let the tenanted premises for a period of three years and if a landlord does sell or re-let the premises within the said period then the tenant may proceed against the landlord for restoration of the possession under section 19 of the Act.
34. A similar observation was made in judgment titled Krishna Chopra & Anr. Vs. Smt. Raksha, 2000 Rajdhani Law Reporter 83.
35. Thus, on the basis of the above said case-law, the contention of the respondent is not tenable because in such eventuality, protection / remedy is provided for tenant under DRC Act itself as he can file petition for repossession if the tenanted shop is re-let or transferred by the landlord / petitioners after evicting him, but certainly the petition cannot be dismissed solely on this ground.
36. Thus, this defence raised by the respondent is a sham defense and is dismissed.
B. That the respondent will suffer comparative hardship if the tenanted shop would be evicted.
37. The respondent has averred that he has no other shop in Delhi or anywhere else. It has been stated that the RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 20 of 22 pages tenanted shop is the only source of income for the entire family of the respondent The said fact has been denied by the petitioners.
38. There is no provision in the DRC Act to evaluate comparative hardships and comparative need between landlord and tenant for deciding eviction petition. (Harbhajan Dass Vs Tilak Raj Mehta 1980 RCJ 780 Delhi). Even in case titled as P.S. Pareed Kaka & Ors. Vs. Shafree Ahmad Saheb AIR 2004 SC 2049, the Hon'ble Apex Court held that comparative hardship of tenant is of little consequence. Accordingly, the said plea of the respondent stands rejected.
C. That the present petition has been filed to misappropriate Pagri amount of Rs. 1 lakh.
39. The respondent has taken a defence that at the time of letting out the tenanted shop, the respondent had paid an amount of Rs. 1 lakh in cash to the petitioner no. 1 as Pagari amount and due to the said reason, the nominal rent of Rs.400/- per month was fixed. The said contention has been denied by the petitioners.
40. No document has been filed on record to show that any amount was ever advanced as Pagari at the time of creation of tenancy. Even otherwise, in case, any amount was paid to petitioner no. 1 as Pagari amount, then the respondent has legal remedy to recover the same from the petitioners, but the same cannot be a ground for retention of possession.
41. Thus, this defence raised by the respondent is without any basis and is, accordingly, dismissed.
RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 21 of 22 pages CONCLUSION :
42. The petitioners have established the essential ingredients of Section 14 (1) (e) of DRC Act. Consequently, eviction order is passed in favour of the petitioner and against the respondent. Respondent is directed to hand over vacant and peaceful possession of the tenanted shop, i.e. shop no. 1, ad measuring 8 x 14, situated on the ground floor of the property bearing no. B-12, Jitar Nagar, Parwana Road, Delhi-51 as shown in red colour in the Site Plan Ex.PW1/10.
43. Further, the petitioners shall not be entitled to obtain the possession of the aforesaid tenanted shop from the respondent before expiry of period of six months from the date of passing of this order as prescribed u/s 14 (7) of the DRC Act. The eviction petition under Section 14 (1) (e) r/w section 25-B DRC Act is accordingly disposed off. No order as to costs.
File be consigned to Record Room.
Announced in the open court (SHUCHI LALER)
on this day of 01.12.2016 SCJ/RC (SHAHDARA)
KKD Courts, Delhi
RC/ARC No. 60/16 Devki Nandan & ors. Vs. Lakshman Dass Arora Page 22 of 22 pages