Delhi District Court
Qazi Shamim Ahmed & Ors. vs Vinod Kumar Pathak on 27 September, 2013
IN THE COURT OF MUNISH MARKAN, ADDITIONAL RENT
CONTROLLER, SOUTH, NEW DELHI
E03/2013
Qazi Shamim Ahmed & ors. v/s Vinod Kumar Pathak
27.09.2013
Order:
1. Vide this order, I shall dispose off the leave to defend application
moved by the respondent.
2. The case of the petitioners, in brief, is that they are the owners/landlords of property no.260 and 260A, Hauz Rani, Malviya Nagar, New Delhi having 9shops on the front side of the ground floor bearing no.260/1, 260/2, 260/3 and 260/A1 to 260/A6. The two shops no.260/A5 and 260/A6 measuring 10' x 10' each in the said property (hereinafter called the suit shops) were given on rent to the respondent vide License Deed dated 01.10.1975 by the mother of the petitioners Late Mst. Rabia Begum for commercial purposes and respondent is doing the business therein under the name and style of M/s Pathak Electrical Co. and the last rent paid is Rs.535/ per month.
3. Giving the details of ownership, the petitioners have stated that the property no.260 and 260A, Hauz Rani, Malviya Nagar, New Delhi was owned by E No.03/2013 Page 1/17 their father Qazi Sajjad Hussain and comprised ground floor, 1st and terrace. The front portion of the ground floor comprised nine shops and rear portions thereof and first and terrace floor were constructed for being used for residential purposes. Qazi Sajjad Hussain transferred 125sqr. Yards area out of the said property in favor of his wife by registered Sale Deed dated 05.02.1971 and the transferred area was designated as No.260A and the left over portion was designated as no.260.
4. It is further stated that apart from the suit shops, the other shop nos. 260/1, 260/2 and 260/3 were given on rent by Qazi Sajjad Hussain to one Sh.Jai Chand Jain and shop no.260/A1 and 2 was given on rent by Mst. Rabia Begum to one Sh.Subhash Chand and the shop 260/A4 was leased out to Sh.Bhola Ram Bhushan.
5. It is stated that Mst. Rabia Begum executed a Will dated 26.03.1979 in respect of the portion of her property and appointed Qazi Sajjad Hussain as Mutawali and died in the year 1985. Similarly, Qazi Sajjad Hussain executed a Will dated 10.02.1979 in respect of his property and died in the year 1990. By virtue of the said Will, Qazi Sajjad Hussain constituted a Wakf Ul Aulad and as per the Will, petitioners claimed to be the joint owners of the whole of the property including the suit shops. As per Will, Qazi Sajjad Hussain appointed his brother Qazi Irshad Hussain and petitioner no.1 as joint Mutawalis in respect of the property. Petitioner no.1 is taking care of the property of Qazi Sajjad Hussain and also the suit shop and respondent had paid the rent to the petitioner no.1.
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6. Giving the details of their families, petitioners stated that petitioner no.1 aged 71years has a family comprising his wife, one married son having two children and one married daughter, petitioner no.2 aged 70years has a family comprising wife, one married son having two minor children and two married daughters. Further, it is stated that petitioner no.3 aged 65years has a family comprising his wife, two sons and a married daughter. Petitioner no.4 Qazli Salim Ahmed aged 63years is a widower. Petitioner no.5 Qazi Shamim Ahmed aged 59years has a family comprising his wife, two unmarried sons namely Tazim Ahmed aged 25years and Mohd. Faris (21years) and a married daughter.
7. As per petitioners, the suit shops are bonafide required by the petitioner no.4 and 5 and their family members for their commercial needs. It is stated that petitioner no.4 aged 63years is a diabetic and is doing business of Sale of religious books of Persian, Arabic and other languages by putting small stall outside his rented residential accommodation at 2115, Gali Khazurwali, Ahata Kale Saheb, Lal Kuan Delhi and is earning meager income of Rs.57000/ per month. It is stated that petitioner no.5 has retired as a translator from Royal Embassy of Saudi Arabia, New Delhi in 20012002 and since then unemployed and has not been able to get any job commensurate with his experience, liking and ability. He has two unmarried sons. One of them Tazim Ahmed aged 25years is working at a Call Center at Gurgaon and earning around Rs.2023,000/ per month but finding it very difficult to travel to Gurgaon for his job and the other son is pursuing his graduation in Tourism from E No.03/2013 Page 3/17 IGNOU and is trying to secure a job but could not succeed. It is stated that petitioner no.5 and his sons are unable to sustain themselves because of financial constraints and the remaining petitioners have agreed that petitioner no.5 along with his sons can start a business of travel agency viz. a viz. booking tickets, hotels and allied hospitality services and in this regard, can utilize his experience and connections gained from his service in Embassy. It is stated that the education of the son of the petitioner no.5 in tourism will come handy for the said business and therefore, to start the business of travel agency, petitioner no.5 requires approximate space of 300400sqr. Feet and the need can be met from the suit shops which are on the main road and ideal for such business. It is further stated that it has been agreed by the petitioners that portion of the vacated shops shall be used by the petitioner no.4 to put a stall for his business of selling religious and other books and petitioner no.5 and his family members would also be able to take care of petitioner no.4 who is a widower. They stated that petitioner no.5 and his sons do not own any other commercial space and therefore, there is bonafide need of the petitioners for the suit shops.
8. They further stated that there is a vacant shop no.260/A3 which is insufficient space and therefore is used by the petitioners for storage purposes as petitioners and their family have been residing on the ground floor back portion and first floor of property no.260 and 260A. They further stated that shop no.260/A3 has been decided to be merged on the vacation of shop no.260/A4 for the need of petitioner no.3.
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9. They further stated that petitioner no.1, 2, and 5 permanently reside at property no.260 and 260A, Hauz Rani, Malviya Nagar, New Delhi but on account of requisite repairs and renovations and dilapidated structure, they have taken rented accommodation at Hauz Rani, Malviya Nagar, New Delhi. Petitioner no.4 is residing at a rented accommodation at the same address as that of petitioner no.3 at Lal Kuan.
10. They further stated that petitioner no.1 exclusively owns a residential flat at Dwarka bearing no.603 Block 2, Shahjahanbad Apartment, Plot No.1, Sector 11, Dwarka, New Delhi which is on rent. They further stated that they have filed separate petitions against the other three tenants in the remaining shops on the bonafide requirements of other family members of petitioners no.1, 3 to 5. They further stated that respondent filed a civil suit for permanent injunction against petitioner no.1 bearing CS No.207/2012 wherein he admitted the petitioner no.1 to be the landlord and himself as the tenant. Therefore, the present petition has been filed on the ground of bonafide requirement of petitioner no.3.
11. Respondent filed the leave to defend application wherein he admitted that the suit shops no.260/A5 and 260/A6 were given on rent by the owner Late Smt. Rabia Begum vide License Deed dated 01.10.1975 for commercial purposes at a rent of Rs.200/ per month and security of Rs.1000/, and having present rent of Rs. 535/ per month where the respondent and his son are doing the business of M/s Pathak Electrical Co. and therefore, the petition filed by petitioners in respect of both the shops is not maintainable. Respondent stated that petitioners have concealed the E No.03/2013 Page 5/17 material facts as petitioners have alternative space/ space behind the shop and there construction activities are in progress where they can construct as number of shops as they want. He stated that petitioners have deliberately not filed the last Will of Smt. Rabia Begum. Respondent conceded that the petitioners have filed eviction petitions against all the tenants in the property no.260 and 260A but disputed the bonafide need of the petitioners stating that all the petitioners are well established and have sufficient means of living and sufficient space available with them to do commercial activities. Respondent stated that the adjoining shop no.260/A3 is lying vacant for more than 18months and stated that petitioners have not started any business in the said shop and therefore, the petitioners have no intention to do business and there is no bonafide requirement. Respondent stated that petitioners are in possession of first and second floor and also have the back portion area which is covered with boundary wall covered by both sides by a big gali and in the area, commercial activity can be done on any floor and therefore, petitioners have sufficient space available with them. Respondent stated that petition u/s 14 (1) (e) of DRC Act is not maintainable for commercial premises. The present rent of Rs.535/ per month is admitted and is stated to be regularly paid to petitioner and lately being deposited in DR petition because of refusal of the petitioners. Respondent stated that he is regularly paying to MCD the conversion charges. It is stated that the size of plot is 705sqr. yards and stated that petitioner can construct new shops in the open space available in the Gali without evicting the respondent.
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12. Respondent giving the details of his family stated that his family comprises of wife, son and three daughters who are fully dependent upon the earnings of the suit shop and stated that he has no other shop either in his name or in the name of his family members. Respondent admitted having filed an injunction suit along with other tenants. Respondent further stated that son of petitioner no. 5 Qazi Tazeem Ahmed is appointed as senior CSA and earning more than Rs.50,000/ per month and petitioner no.5 is also providing teaching classes for Saudi language and earning Rs.3040,000/ per month.
13. He stated that petitioners have demolished the building rear portion of the property and constructing a new building and therefore, have sufficient space on both sides of the Gali where any shop can be constructed without evicting the respondent. Respondent admitted that petitioner no.1 is a Mutawali as per the Will of Qazi Sajjad Hussain but denied that they are the owners of the property as the property vests in the name of Almighty God. He also did not dispute the proceedings of meeting of beneficiaries dated 01.01.1991 but disputed the ownership of the petitioners. Respondent further stated that petitioners have not filed any notice of termination of license. It is stated that petitioners entered into an agreement to sell the front portion to a builder who is constructing the building of the petitioners. Therefore, respondent prayed for grant of leave to defend.
14. Petitioners filed reply to the leave to defend application wherein they reiterated their case as made out in their petition and controverted the stand taken by E No.03/2013 Page 7/17 the respondent. They stated that ownership of the petitioners and relationship of landlord and tenant has been admitted by the respondent in the civil suit no.207/2012 filed by respondent along with other tenants. They stated that the fact of petitioners being the children of Smt.Rabia Begum has been admitted by the respondent. They further stated that on the back side of the property, it is not feasible or possible to open commercial shops and apart from the 9shops in the front of the property, the other portion is being used by the petitioner for residential purposes and even because of paucity of the space, some of the petitioners along with their family members are residing in old Delhi rented accommodation which has not been denied by the respondent. It is stated that respondent cannot dictate the terms to the petitioner. They denied that any agreement for selling the front portion shop was entered into and stated that they were carrying out repairs and renovation in the rear portion of the ground floor and first floor as it is an old structure in dilapidated condition. It is stated that Will of Smt. Rabia Begum has already been filed with the petition.
15. Respondent filed the rejoinder wherein he reiterated his stand as made out in his leave to defend application and controverted the stand taken by the petitioners in the reply to leave to defend and the petition. Respondent further stated that he along with his wife and son are also doing the business along with him in the suit shops.
16. I have heard the Ld. Counsel for both the parties and have gone through the record carefully.
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17. First of all, few legal issues raised by the respondent are taken up.
As per respondent, the suit premises was given on rent by mother of petitioners Smt. Rabia Begum to the respondent as per license deed dated 01.10.1975 for commercial purposes and therefore, the present petition is not maintainable u/s 14 (1) (e) of DRC Act. It is argued that the petition is not maintainable under section 14(1)(e) of DRC Act as it is a commercial tenancy. This issue is no longer Res Integra in view of the law laid down by Hon'ble Supreme Court in Satyawati Sharma (dead) through LRs v/s Union of India; (2008) 5 SCC 287, wherein it has been held that provisions of section 14 (1) (e) of DRC Act are applicable to commercial tenancy as well. Therefore, it is held that the present petition is not barred under section 14 (1)
(e) of DRC Act.
18. The stand of the respondent is that he along with his wife and son is doing the business by the name of M/s Pathak Electric Co. at the suit shops and his son and wife have not been impleaded as a party and therefore, it is argued that the petition is bad for non joinder of parties. The respondent himself has relied on the License Deed dated 01.10.1975 which clearly shows that it is the respondent only who has been treated as a tenant. There is no mention of the son of the respondent in the License deed. Therefore, merely because the tenant claims that his son and wife are also doing the business along with the tenant, he needs not be arrayed as a party. Therefore, in my considered opinion, there is no impediment in filing the petition against the respondent.
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19. Coming to the question of relationship of landlord and tenant and ownership of the suit shop. The respondent has denied the relationship of landlord and tenant between the parties and has also disputed the ownership of the petitioners to the suit shop. However, the respondent has admitted the License Deed dated 01.10.1975 vide which suit shops were given on rent by owner Smt. Rabia Begum who admittedly was the mother of the petitioners. The Will of Smt.Rabia Begum dated 26.03.1979 has not been disputed by the respondent. By virtue of said Will, WakfUlAulad was constituted in respect of the portion no.260A which was in her name. Her husband Qazi Sajjad Hussain was appointed as Mutawali of the Wakf. After her death, Qazi Sajjad Hussain had also died in the year 1990 and his death is also not disputed. In fact, the respondent has also relied upon the Will dated 10.02.1979 executed by Qazi Sajjad Hussain in respect of property no.260 and 260A. The contentions of Ld. Counsel for respondent is that as per the Will of Qazi Sajjad Hussain, the suit shops constitute a Wakf and petitioner no.1 is only the Mutawali who has to administer the property of the deceased and has to act as per the terms of the Will.
20. It is argued by Ld. Counsel for respondent that in the said Will, Qazi Sajjad Hussain has stated in para 2 that the ownership of the corpus of the property shall vests in God Almighty and the manner of utilization of the usufruct was also given whereby after paying the various taxes etc. and maintenance and other charges for the repair of the property, remainder 2.5% would be utilized for the benefit, E No.03/2013 Page 10/17 maintenance and upkeep of the mosque at village Hauz Rani as per the discretion of the Mutawali and the residue shall go to 8 petitioners. It is argued that as per the said Will, para 11 thereof, none of the heirs of Qazi Sajjad Hussain shall have any proprietary title or interest in the Wakf property and therefore the petitioners are not the owners of the suit shops.
21. On the other hand, Ld. Counsel for petitioners has argued that the respondent along with other three tenants in the other shops (regarding which also eviction petitions are filed and leave to defend application being decided along with present application) had filed civil suit no.207/2012 where in the plaint itself, they had admitted themselves to be the tenant in their respective portions including the suit shops and also stated that suit shops are owned by Qazi Shamim Ahmed Mutawali i.e. petitioner no.1 in the present eviction petition. It is therefore, argued that petitioners are the owners of the suit shop. Further, it is argued that as per the Will of Qazi Sajjad Hussain dated 10.02.1979 and proceedings of meeting of beneficiaries of Wakf Ul Aulad dated 01.01.1991, the petitioner no.1 is the Mutawali and petitioners being the beneficiaries of the WakfUlAulad are the owners of the suit property including the suit shops.
22. Admittedly the petitioners are the children of the owner of the suit shops Mst. Rabia Begum. The License Deed dated 01.10.1975 has been admitted by the respondent. Petitioner has filed on record the certified copy of the plaint in the civil suit no.207/2012 and in para 1 thereof, the present respondent has admitted the E No.03/2013 Page 11/17 petitioner no.1 as the Mutawali and owner and treated himself as tenant. Perusal of the Will of Qazi Sajjad Hussain clearly shows that he constituted a WakfUl Aulad and appointed petitioner no.1 along with his brother Qazi Irshad Hussain as the Mutawali.
For the purposes of present eviction petition, the concept of ownership has to be seen from a limited perspective. Law does not require the petitioner/landlord to be absolute owner of the suit property. It requires the landlord to be more than tenant. In the present case, the relationship of landlord and tenant has been duly admitted by the respondent. The contention of the respondent that the property vests in God Almighty cannot be construed as to perpetuate the tenancy of the respondent to thwart the claim of the respondent being the owner of the suit shop for the purposes of eviction petition. In this regard, petitioners have also relied on Mohd Qamar Shah Khan v/s Mohd. Salamat Ali Khan; AIR 1933 All 407, wherein it has been held that in case of a private Wakf, the Estate vests in the beneficiaries and the Mutawali is practically speaking the owner with one limitation and i.e. he cannot make a transfer of the Wakf property but in every respect, his position is the same as that of an owner. Petitioners also relied on Fazlul Rabbi v/s State of West Bengal; AIR 1965 SC 1722, and Sri Radhakanta der & Anr. v/s Commissioner of Hindu Religious Endowments, Orissa; (1981) 2 SCC 226 and Maulvi Hakim Mohd. Abul Fateh v/s The Delhi Wakf Board; 59 (1995) DLT 327. Perused the same.
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23. However, as aforesaid, the concept of ownership under Delhi Rent Control Act is a limited one and it is settled law that for the purposes of Section 14 (1) (e) of DRC Act, Landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than a tenant. Reliance in this regard can also be placed on Rajender Kumar Sharma & Ors v/s Smt. Leelawati and Ors.; RCR 23/2007 DOD 23.09.2008, (Delhi). Therefore, in the given facts and circumstances, it is held that petitioners are the owners and landlords of the suit shop and relationship of landlord and tenant is duly established between the parties and no triable issue is raised in this regard necessitating leading of any evidence.
24. Coming to the question of bonafide requirement of petitioners. The stand of the petitioners is that suit shops are required for the bonafide need of the petitioner no.5 who along with his two sons namely Tazim Ahmed and Mohd. Faris need to open business of travel agency along with settling petitioner no.4 in a part of the suit shops for selling religious and other language books. The fact that petitioner no.5 has retired from the Embassy of Saudi Arabia is not in dispute. The petitioner no.5 having two sons is also not in dispute. The contentions of the respondent is that Sh.Tazim Ahmed is getting a salary of more than Rs.50,000/ and petitioner no.5 is giving teaching classes for Saudi language and earning Rs.3040,000/. Respondent has failed to give details of any place where from petitioner no.5 is alleged to be teaching classes of Saudi language. It is not the case of the petitioners that Sh.Tazim E No.03/2013 Page 13/17 Ahmed is not earning. In fact, the stand of the petitioners is that Tazim Ahmed is working at a Call Centre and finding it difficult to travel to Gurgaon for his job and is earning Rs.2023,000/ per month and the family is dependent upon his income because of financial constraint. However, leave to defend is silent regarding the contention of the other son of petitioner no.5 namely Mohd. Faris aged 21years pursuing graduation in Tourism from IGNOU. It is an admitted fact that petitioner is retired from the Embassy and has two sons aged 25years and 21years. The contentions of the petitioner that apart from the petitioner no.5 and his sons, part of the suit shops shall be given to the petitioner no.4 for his use for the purpose of setting up of stall for selling religious and other languages books. In the given facts and circumstances, the requirement of the petitioner no.4 and petitioner no.5 and his sons cannot be stated to be whimsical. The petitioners have also explained that petitioner no.5 intends to utilize his experience and connections with his earlier job place i.e. Embassy and also intends to encash the education of his son in Tourism which will help in generating the business of travel agency. The need of a person to settle himself in his post retirement period as well as his two grown up sons along with his brother i.e. petitioner no.4 seeking an area of 20' x20' cannot be stated to be a fanciful need or whimsical desire.
25. Law is well settled in this regard that landlord is the best judge of his requirements and cannot be deprived of his rights and it is not for the court or the tenant to dictate in what manner he should live or where he should not live or what he E No.03/2013 Page 14/17 should do nor the court can impose its own standard on landlord. Reliance in this regard can be placed on Surinder Gera v/s Col. Rajesh Ratan Sethi; 191 (2012) DLT 765 (Del). In the given facts and circumstances, in my considered view, the need of the petitioners no. 4 &5 and his sons for a commercial space is bonafide and no triable issue is raised by the respondent necessitating leading of any evidence.
26. Coming to the question of availability of suitable, alternative accommodation.
As per respondent, the petitioners are having the back portion of the property where a number of shops can be constructed on the either sides of the property which is having Gali on both the sides and therefore, it is argued that petitioners have sufficient alternative accommodation available with them. It was further argued that the adjoining shop no.260/A3 is also lying vacant. In my considered opinion, the facts of the case need to be appreciated in its totality. There are 8 petitioners and there was available only one shop that too was being used for storage purposes and even in the petition, the petitioners have stated that petitioners no.6 to 8 who are the married sisters of petitioners no.1 to 5 do not claim any right, title or interest in the whole of the properties and has been impleaded to avoid any technical objections.
Further, it is an admitted fact that the petitioners have also filed eviction petitions in respect of the other shops on the ground of the bonafide requirement of the other petitioners. Further, It was argued by Ld. Counsel for petitioners that the adjoining E No.03/2013 Page 15/17 shop no.260/A3 was the only shop which was lying vacant and was used for storage purposes by all the petitioners who are residing in the remaining portion of the property no.260 and 260A. The contention of the petitioners is that the shop no. 260/A3 is sought to be merged with the suit shop i.e. 260/A4 for fulfilling the bonafide need of petitioner no.3 and the same is therefore, not available for the present petitioner no. 4 & 5.
27. The need of the petitioner no.5 and his sons and petitioner no.4 is specific. Therefore, it cannot be said that the petitioners have suitable alternative accommodation. In my considered opinion, the petitioners do not have the alternative suitable accommodation for the bonafide need of petitioner no.5 and his sons and petitioner no.4.
28. Further, the contention of the respondent that petitioners can construct the shops in the space which faces the two Galis cannot be accepted as it is not for the court or the tenant to force the landlord to construct the shops in the other available space so as to avoid the eviction of the tenant. The further contention that petitioners have the first floor of the property above the shops on the front side which can also be utilized for the purpose of need of petitioner no.5 and his sons cannot be accepted as it is a well known fact that businesses on the ground floor attract more customers. This further is negative by the stand of the petitioners who claim to be residing there on the first floor which is also stated to be in dilapidated state and under repairs. The photographs filed by the respondent itself shows that the first floor portion and E No.03/2013 Page 16/17 terrace above is under repairs and is residential in nature. Therefore, no triable issue is raised in this regard as well necessitating leading of any evidence.
29. Accordingly, leave to defend application is dismissed and eviction order is passed in favour of the petitioners and against the respondent in respect of shops no.260/A5 and 260/A6 in property no.260 and 260/A, Hauz Rani, Malviya Nagar, New Delhi as shown in red in the site plan Ex.P1 (exhibited while passing this order). No order as to costs.
However, petitioners shall not be able to execute this order before expiry of six month from the date of passing of this order. File be consigned to Record Room.
Announced in open court 27.09.2013 (Munish Markan) Additional Rent Controller, South, New Delhi E No.03/2013 Page 17/17